Bangalore District Court
Yogendra. N vs Icici Lombard Insurance Co. Ltd on 13 March, 2015
BEFORE THE COURT OF SMALL CAUSES AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, AT BENGALURU (SCCH-09)
PRESENT: SRI MANJUNATH NAYAK,
B.A.L, LL.B.,
Judge, Court of Small Causes &
XXVI ACMM,(SCCH-09) Bengaluru.
Dated: 13th MARCH 2015.
MVC.No.6192/2013
*****
PETITIONER: Yogendra. N, Aged 50 years,
S/o Late Nanjundappa,
R/a No.49 Subhashchandra Bose Road
Menaznagar, J.P.Nagar Post,
Bengaluru - 560 078.
(By Pleader Sri. Kemparaju)
Vs.
RESPONDENTS: 1. ICICI Lombard Insurance Co. Ltd.,
Lombard House,
Opp. To Petrol Bunk,
Beside Ayyappa Temple,
Near Under pass flyover,
Madiwala, Bengaluru - 560 034.
(P.No.3003/TM-00061668/00/000)
(By Pleader, Sri. A.N. Hegade)
2. Ramachandraiah M.C.,
S/o. Chikkahanumaiah,
Aged 48 years,
R/a No.117, Dabaspet Post,
Sompura Hobli, Nelamangala Taluk,
Bengaluru Rural District - 562 111.
*****
JUDGMENT
MVC No.6192/2013 SCCH-9 2 This petition is filed under Section 166 of Motor Vehicles Act, 1989, claiming compensation for the injuries sustained by the petitioner in a road traffic accident dated 10-07-2013.
2. The case of the petitioner, as set-out in the petition is as follows:
That on 09-07-2013, one Krishna Murthy has taken the petitioner's vehicle on hire to carry the Tent house new materials to Arasikere and at about 5.00 a.m. on 10-07-2013, when the petitioner was driving his vehicle near Bidaregudi, a Tata ACE bearing Reg. No.KA-52-8834 came in a rash and negligent manner and dashed to the petitioner's vehicle, due to which, he sustained injuries. The petitioner was hospitalized, taken treatment as an inpatient in the hospital and incurred huge medical expenses. The petitioner was earning Rs.30,000/- per month by owning the vehicle. Due to the accidental injuries, he is permanently disabled, lost his earning capacity and put to irreparable loss and hardship.
The accident was due to the rash and negligent driving of the offending vehicle by its driver. The respondents, being the owner and insurer of the offending vehicle, are liable and responsible to pay compensation to the petitioner.On all these grounds, petitioner prayed for awarding the compensation of Rs.15,00,000/- to him.
3. In response to the notice, both the respondents appeared before this Tribunal through their respective counsel and MVC No.6192/2013 SCCH-9 3 respondent No.1 filed their written statement and admitted that the offending vehicle was insured with them and insurance policy was in force on the date of accident. The respondent No.1 denied other petition averments, including the accident, manner in which the accident took place and rash and negligent driving of offending vehicle by its driver, as cause for the accident. The respondent No.1 further denied that injuries sustained by the petitioner, treatment taken for injuries and medical expenses incurred by him and disability caused to the petitioner due to the accident. The respondent No.1 further contended that the accident was due to the negligence of the petitioner himself, as he was driving his vehicle in a rash and negligent manner and thereby contributed for cause of the accident. The respondent No.1 further contended that the driver of offending vehicle had no valid driving licence and offending vehicle had not valid permit and fitness certificate on the date of accident. Hence, there is violation of policy conditions by the owner of the offending vehicle. Therefore, they are not liable to indemnify the owner of offending vehicle and to pay compensation to the petitioner. The compensation claimed by the petitioner is exorbitant and excessive. On these grounds, respondent No.1 prayed for dismissal of the claim petition with costs.
MVC No.6192/2013 SCCH-9 4
4. On the basis of the above pleadings, following issues were framed:
1. Whether the petitioner proves that the accident dated: 10.07.2013 at about 5.00 A.M. near Bidaregudi towards Arasikere, was due to the rash and negligent driving of the driver of the Tata Ace bearing Reg.No.KA-52-8834 and that he has sustained the injuries due to the said accident?
2. Whether the petitioner is entitled for compensation? If so how much and from whom?
3. What order?
5. To prove the above issues, petitioner examined before this Tribunal as P.W.1 and got marked Ex.P.1 to P.16 documents. The respondents examined two witnesses on their behalf as R.W.1 and R.W.2 and got marked Ex.R.1 to Ex.R.3 documents.
6. I have heard the arguments.
7. By considering the evidence on record and because of my below discussed reasons, I answer the above issues in the followings:
Issue No.1: IN THE AFFIRMATIVE.
Issue No.2: PARTLY IN THE AFFIRMATIVE Issue No.3: AS PER FINAL ORDER.
REASONS ISSUE NO.1:
MVC No.6192/2013 SCCH-9 5
8. The petitioner, who was examined before this Tribunal as PW.1, has reiterated the petition averments in his examination-in- chief affidavit and deposed about the accident, manner in which the accident took place and rash and negligent driving of Tata ACE vehicle by its driver, as cause for the accident. PW.1 further deposed about the injuries sustained by him, treatment taken for those injuries and medical expenses incurred by him. PW.1 further deposed that he was earning Rs.30,000/- per month by owning the vehicle and due to the accidental injuries, he is permanently disabled, lost his earning capacity and put to irreparable loss and hardship.
9. The petitioner produced the F.I.R., registered in respect of the accident as per Ex.P.1. The charge sheet is marked as per Ex.P.2. The wound certificate of the petitioner is marked as per Ex.P.3. The IMV report is marked as per Ex.P.4. The driving license is marked as per Ex.P.5. The R.C. of the vehicle owned by the petitioner is marked as per Ex.P.6. The medical bills were marked as per Ex.P.7. The prescription chits are marked as per Ex.P.8. The copy of complaint is marked as per Ex.P.9. The further statement is marked as per Ex.P.10. The spot mahazar and sketch are marked as per Exs.P.11 and P.12. Notice issued under Section 133 of MV Act is marked as per Ex.P.13. The MVC No.6192/2013 SCCH-9 6 driving license of driver of offending vehicle is marked as per Ex.P.14. The R.C. of the offending vehicle is marked as per Ex.P.15. The Insurance policy is marked as per Ex.P.16.
10. The respondent No.1 examined their Legal Manager as R.W.1 and he admitted that the offending vehicle was insured with them and insurance policy was in force on the date of accident. RW.1 further deposed that the offending vehicle is a transport vehicle with seating capacity of two persons, including driver and at the time of accident, eight persons were travelling in the said vehicle. Thereby, there is violation of policy conditions. RW.1 further deposed that the driver of the offending vehicle had driving license to drive only non transport vehicle, whereas the offending vehicle is a transport vehicle and he had no valid driving license to drive the same.
11. The respondent No.1 summoned ARTO of Tumkur and examined him as R.W.2 and he produced driving license extract of driver Ramachandraiah and further deposed that the Tata Ace vehicle is a light goods vehicle with seating capacity of two persons and as per Ex.R.3 driving license, he was not authorized to drive the light goods vehicle.
MVC No.6192/2013 SCCH-9 7
12. The respondent No.1 produced the insurance policy of the offending vehicle as per Ex.R.1. The driving license extracts of driver Ramachandraiah are marked as per Exs.R.2 and R.3.
13. There is no serious dispute as such regarding the occurrence of the accident. There is also no serious dispute regarding the injuries sustained by the petitioner due to the accident. To prove that the accident was due to the rash and negligent driving of offending vehicle by its driver, petitioner has produced F.I.R with complaint as per Exs.P.1 and P.9. It is evident from Exs.P.1 and P.9 that on 10-07-2013 at about 5.00 a.m. when the petitioner was going in his vehicle near Bidaregudi, Arasikere, a Tata ACE bearing Reg. No.KA-52-8834 came in a rash and negligent manner and dashed to the vehicle, in which the petitioner was going, due to which, he sustained injuries. The Honnavalli police, who have registered the F.I.R. have conducted the investigation and filed the charge sheet against the driver of offending Tata Ace, as evident from Ex.P.2. The filing of the charge sheet in the criminal case is prima facie evidence for this case to prove and establish that the accident was due to the rash and negligent driving of offending vehicle by its driver. The spot mahazar and sketch produced as per Exs.P.11 and P.12 would also indicate that the accident was due to the negligence of driver MVC No.6192/2013 SCCH-9 8 of the offending vehicle. The IMV report produced as per Ex.P.4 goes to show that there were no mechanical defects in the vehicles involved in the accident, to cause the accident. By producing all these materials, petitioner has discharged the initial burden placed upon him to prove the accident and rash and negligent driving of the offending vehicle, as the cause for accident.
14. Even though the respondents contended that the petitioner, as a driver of his vehicle, has contributed for the cause of accident by negligent driving of the vehicle, they failed to prove and substantiate the same by leading any evidence before this Tribunal. Under such circumstances, this Tribunal has to accept the petitioner's version and hold that the accident was due to the rash and negligent driving of offending vehicle by its driver.
15. To show that he has sustained injuries due to the accident, petitioner has produced the wound certificate as per Ex.P.3, which shows that due to the accident, he has sustained swelling on his right knee, abrasion over dorsum of left foot and x- ray reveals, dislocation of left knee. I will discuss about these evidence in detail while determining the quantum of compensation. So far as this issue is concerned, it is proved that, due to the accident, petitioner has sustained grievous injuries. Accordingly, I answer Issue No.1 in the affirmative.
MVC No.6192/2013 SCCH-9 9 ISSUE No.2:-
16. This issue is regarding to the quantum of compensation to be awarded to the petitioner and liability to pay the same. The wound certificate relating to the petitioner, which is produced as per Ex.P.3, goes to show that due to the accident, petitioner sustained swelling of his right knee and left dorso-lateral aspect. The petitioner has not produced any documents to show the number of days treatment taken by him as an inpatient in the hospital. Therefore, I feel it is just and proper to award a sum of Rs.20,000/- to the petitioner under the head pain and sufferings.
17. There are no documents to show the number of days treatment taken by the petitioner as an inpatient in the hospital. Therefore, there are no grounds to award compensation to the petitioner towards attending charges, extra nourishment and conveyance charges.
18. The medical bills produced by the petitioner as per Ex.P.7 goes to show that he has incurred the medical expenses to the tune of Rs.50,393/-, which can be rounded off into Rs.51,000/-. Hence, I hold that the petitioner is entitled for a sum of Rs.51,000/- towards medical expenses.
19. Even though the petitioner contended that he is permanently disabled due to those injuries and lost his earning MVC No.6192/2013 SCCH-9 10 capacity, he failed to prove the same by examining the Medical Officer or by leading any evidence before this tribunal. Therefore, there are no grounds to award compensation to the petitioner under the head loss of future income and loss of amenities and happiness, due to permanent disability.
20. The petitioner claims that he is a owner cum driver of the vehicle and earning Rs.30,000/-p.m. The petitioner failed to produce any documents to prove his actual income and avocation. Since the petitioner had sustained injuries, he might have prevented from doing any work and earning any income for a period of 2 months, during the period of taking treatment. The petitioner was aged 29 years. Therefore, considering his income as Rs.6,000/-p.m., I feel it is just and proper to award Rs.12,000/- to the petitioner towards loss of income during the period of taking treatment. There are no grounds to award the compensation under any other heads. So the petitioner is entitled for the compensation under the following heads:-
1 Pain and sufferings Rs. 20,000/-
2 Medical expenses Rs. 51,000/-
Loss of income during the Rs. 12,000/-
3 period of taking treatment
Total:- Rs. 83,000/
MVC No.6192/2013
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In total, petitioner is entitled for the compensation of Rs.83,000/-.
21. Now I have to consider the question of liability to pay the compensation. The respondent No.1, though admitted that the offending vehicle was insured with them, they tried to deny their liability to pay compensation on the ground that the driver of offending vehicle had no valid driving licence at the time of accident and thereby there is violation of policy conditions by the owner of the offending vehicle. In this regard, the respondent No.1 has summoned the RTO of Tumkur and examined him as RW-2 and he produced the driving licence of the offending vehicle. The charge sheet was filed against one Ramachandraiah, who is the driver of offending vehicle and his DL extract produced as per Ex.R.1 and R.3, reveals that he was having valid driving licence to ride Motor cycle with gear and LMV-NT-car. In this particular case, the offending vehicle is a Tata ACE-2100 light goods vehicle as evident from Ex.P.15. RW-2 specifically deposed that the driver Ramachandraiah was not authorized to drive the Tata ACE light goods vehicle, since he was authorized to drive LMV-NT-car. In this regard, it is necessary to refer some of the decision relied upon by the respondent No.1 reported in 2009 ACJ 1411 (Oriental Insurance Co. Ltd., vs Angad Kol and others), 2008 ACJ 2161( MVC No.6192/2013 SCCH-9 12 New India Assurance Co. Ltd., vs Roshanben Rahemansha Fakir and another) and ILR 2010 KAR 2296 (M/s.Bajaj Allianz General Insurance Co. Ltd,. vs N.M.Rajaprakash and another). As per the ratio laid down in the above decisions, if the driver holds driving licence to drive the LMV-NT-Car, he was not authorized to drive LGV transport vehicle. Therefore, there is violation of policy conditions by the owner of offending vehicle. Under such circumstances, liability of the insurance policy gets exonerated. Hence, it is the respondent No.2, who is the owner of the offending vehicle, is liable and responsible to pay the compensation to the petitioner. Accordingly, I answer point No.2 partly in the affirmative.
ISSUE No.3:-
22. In view of my above findings, the petition is deserves to be partly allowed. Hence, I proceed to pass the following:
ORDER The petition filed by the petitioner U/s.166 of MV Act is partly allowed with costs.
The petitioner is awarded with the compensation of Rs.83,000/- (Rs. Eighty three thousand only) with interest at the rate of 6% p.a. from the date of petition till its realization.
The respondent 2 is liable to pay the
compensation to the petitioner.
MVC No.6192/2013
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The respondent No.2 shall deposit the
compensation amount awarded with interest
within two months from the date of award.
Entire compensation amount with interest shall be released to the petitioner through A/c payee cheque on proper identification and verification.
The petition, against respondent No.1, stands dismissed.
Advocate fee is fixed at Rs.500/- Draw award accordingly.
******* (Dictated to the stenographer, transcribed by her, corrected and then pronounced in the open court on this the 13th day of March 2015) (MANJUNATH NAYAK), Judge, Court of Small Causes & XXVI ACMM, Bengaluru.
()()()()() ANNEXURE Witnesses examined on behalf of petitioner:
PW.1 : Yogendra N Documents marked on behalf of petitioner:
Ex.P1 : FIR
Ex.P2 : Charge Sheet
Ex.P3 : Wound Certificate
Ex.P4 : IMV Report
Ex.P5 : Driving Licence
Ex.P6 : R.C
Ex.P7 : 61 medical bills
Ex.P8 : 8 prescription chits
Ex.P9 : Complaint
Ex.P10 : Further Statement
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Ex.P11 : Spot Mahazar
Ex.P12 : Spot Sketch
Ex.P13 : Section 133 Notice.
Ex.P14 : Driving Licence
Ex.P15 : R.C
Ex.P16 : Insurance Policy.
Witnesses examined on behalf of respondents:
R.W.1 : P. Chidananda
R.W.2 : S.Balakrishna
Documents marked on behalf of the respondents:
Ex.R1 : Insurance Policy
Ex.R2 : Driving Licence Extract
Ex.R3 : D.L.Extract
(MANJUNATH NAYAK),
Judge, Court of Small Causes
& XXVI ACMM, Bengaluru.