Bangalore District Court
Mr. Malkajappa @ vs Sri. Rajappa K on 30 June, 2022
KABC020215572020
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES, AT BENGALURU
DATED THIS THE 30th DAY OF JUNE 2022
(SCCH25)
Present: Miss.B.T.ANNAPOORNESHWARI
B.A., L.L.B., L.L.M.
XXI A.C.M.M. & XXIII A.S.C.J, Bengaluru.
MVC No.4465/2020
PETITIONER: Mr. Malkajappa @
Mallikarjuna
s/o Ramappa Bagali,
Aged about 36 years,
R/at No.6/101/1, Yelhar,
Yadgir - 585321,
Karnataka.
(By Sri.Dhananjaya A., Advocate.)
V/S
RESPONDENTS: 1.Sri. Rajappa K.
S/o Not known to the
petitioner,
aged Major,
R/at No.53, 2nd Mainroad,
Old Chama Kattigenahalli,
Yelahanka Post,
Bangalore - 560 064.
(Owner of the Scooter bearing
Reg.No.KA50EC4876)
2 MVC 4465/2020
SCCH-25
(Exparte)
2. HDFC ERGO Gen. Ins.
Company Ltd.,
No.25/1, II Floor,
Shankar Narayana Building,
No.2, M.G.Road,
Bangalore - 560 001.
(Insurer of the Scooter bearing
Reg.No.KA50EC4876)
(By Sri.Kiran Pujar,
Advocate.)
.......
JUDGMENT
The Petitioner has filed this petition under Sec.166 of the M.V. Act seeking compensation for the injuries sustained by him in a road accident on 20.11.2019.
2. The case of the Petitioner in brief is that, on 20.11.2019 at about 5 to 5.30 p.m. the petitioner was riding his motorcycle bearing Reg.No.KA50S5153 from Devanahalli side to Yelahanka side near BSF Gate service road, at that time one scooter bearing Reg.No.KA50EC4876 ridden in a rash and negligent manner, without observing traffic rules and 3 MVC 4465/2020 SCCH-25 regulations came in a high speed from opposite and dashed to his motorcycle, due to impact he fell down and sustained injuries. Immediately he was shifted to OM Shakthi Hospital, K.K.Hospital and private clinics. Prior to the accident the petitioner was hale and healthy, working as a Concrete mixing work and earning Rs.25,000/ per month. So far he has spent Rs.4,00,000/ to Rs.5,00,000/ towards medical expenses and Rs.1,00,000/ towards conveyances, Rs.3,00,000/ towards nourishment food. On account of the said injuries the petitioner is permanently disabled not able to chew the food, suffering from head ache, giddiness, not able to speak properly and suffering from disabilities. Therefore, the Respondents being the RC owner and the insurer of the offending vehicle are jointly and severally liable to pay compensation to the Petitioner.
3. In response to service of notice issued by this court/Tribunal, the Respondent No.1 remained absent and hence placed exparte and the respondent No.2 has appeared through their counsel and filed objection statement. 4 MVC 4465/2020
SCCH-25
4. The Respondent No.2 in the written statement have submitted that they have no knowledge of details given in para Nos.1 to 5 and denied the averments made in para 4 and 5, 8 to 14 and denies the very occurrence of the accident and involvement of insured vehicle and submitted that there is no compliance of Sections 134(c) and 158(6) of M.V. Act. Further submitted that the petitioner was solely negligent in causing the alleged accident and hence there is delay in lodging the first information. The driver of the offending vehicle was not holding valid DL as on the date of accident and hence there by breach of policy conditions.
5. On the above rival contentions of the parties, this court has framed the following issues:
1. Whether the Petitioner proves that, the accident occurred due to rash and negligent act of rider of motorcycle bearing Reg.No.KA50EC4876 and in the said accident petitioner sustained injuries?5 MVC 4465/2020
SCCH-25
2. Whether the Petitioner is entitled for Compensation? If so, what is the quantum? From whom?
3. What order or award?
6. The Petitioner in order to prove his case, he has examined himself as PW.1 and marked 16 documents as per Exs.P.1 to P.16. The Exs.P.17 and P.18 are got marked in the crossexamination of RW.1/I.O. by the petitioner's counsel. On the other side, the Respondent No.2 got examined Mr.S.Somashekaraiah - ASI, Yelahanka Traffic PS, Bangalore, as RW.1 and produced 3 documents as per Exs.R.1 to R.3 and also examined Sri.Suresh S. - Legal Manager as RW.2 and produced 2 document as per Exs.R.5 to R.6. The Ex.R.4 is marked in the crossexamination of RW.1 by the respondent No.2.
7. Heard the arguments of the learned counsel for both the parties. The counsel for the Respondent No.2 has relied upon the decisions reported in, (1) 2013(3) TAC 29 (SC) in the 6 MVC 4465/2020 SCCH-25 case of United India Ins. Co. Ltd. Through its Divisional Manager Vs. Sujata Arora and Ors., (2) MFA 23290/2012 (MV), 23291 and 23292/2012 in the case of the Branch Manager, Cholamandalam, MS General Ins. Co. Ltd., Vs. Tulasawwa and Ors., (3) MFA 31559/2010 in the case of The Divisional Manager Oriental Ins. Co. Ltd., Vs. Jagannath @ Jagappa and Anr., (4) Special leave to appeal (C) No.31406/0017 in the case of M.S.Middle High School Vs. HDFC Ergo Gen. Ins. Co. Ltd., and Ors., (5) 1997 ACJ 1065 in the case of United India Ins. Co. Ltd. Vs.Gian Chand and Ors.. I have perused the said decisions in detail.
8. On hearing both sides and perusal of the evidence on records this court answers the above issues as follows: Issue No.1: In the affirmative Issue No.2: Partly in the affirmative.
Issue No.3: As per the final order,
for the following:
7 MVC 4465/2020
SCCH-25
REASONS
9. Issue No.1:
The Petitioner in order to prove that the accident was occurred due to actionable negligence on the part of the rider of the motorcycle bearing No.KA50EC4876 has examined himself as PW.1 and produced 6 documents as per Exs.P.1 to P.4, P.6 and P.7. He has deposed specifically in his evidence that the rider of the offending motorcycle ridden it in a rash and negligent manner so as to endangering to human life, came with a high speed and dashed to his motorcycle from opposite and caused the accident. On the other side, the Respondent No.2 being the insurer has denied that the accident was occurred due to the rash and negligence of the rider of the offending vehicle and contended that there was negligence on the part of the petitioner. In the crossexamination of PW.1 nothing worth is elicited to disprove the case of the petitioner with regard to alleged manner of accident. Further, in support of the defence the respondent No.2 did not examine any witness nor lead any evidence to disprove the case of the petitioner in 8 MVC 4465/2020 SCCH-25 this regard. The documents placed by the Petitioner such as FIR, FIS, spot sketch, spot mahazar, MVA report and charge sheet as per Exs.P.1 to P.4, P.6 and P.7 are all public documents which have got presumptive value under law. As such, there are no reasons to discard or disbelieve the version of the Petitioner/PW.1 and accept the version of the Respondent No.2. The wound certificate produced by the Petitioner as per Ex.P.5 further shows that, on account of the accident the Petitioner has sustained simple and grievous injuries. Under these circumstances, relying upon the oral evidence of PW.1 coupled with the documents produced as per Exs.P.1 to P.4, P.5 and P.6 this court is of the opinion that the accident occurred due to the rash and negligent riding of the rider of the offending motorcycle and same has resulted in simple and grievous injuries to the Petitioner. Accordingly issue No.1 is held in the affirmative.
10. Issue No.2: The Petitioner has further averred that, on account of the accidental injuries he is not able to chew the food, suffering 9 MVC 4465/2020 SCCH-25 from giddiness, head ache and other disabilities. Further, the Petitioner to substantiate that there is loss of income due to he is suffering from the permanent disability has not examined any doctor who has got expertise in this field. He also has not placed disability certificate issued by the competent person. Therefore, the version of the Petitioner that, the injuries sustained in the accident have caused him disability is not acceptable. On perusal of Ex.P.5, the petitioner sustained (1) Swelling of face, and (2) Fracture of right zygomatic bone in which injury No.1 is simple in nature and injury No.2 is grievous in nature. The Ex.P.11/Three discharge summaries shows that the petitioner underwent surgery as, "UNDER GA LEFORT II FRACTURE RIGHT 2MC DONE ON 25.11.2019, PATIENT WITH STOOD PROCEDURE WELL AND UNDER GA IMPLANTS REMOVAL OERPATED CASE OF LEFORT II #RIGHT DONE ON 03.12.2020." In absence of any specific evidence to prove that the said injury caused disability to the petitioner and his functions are affected and he lost future income, the petitioner is not entitled to any compensation under the head of 10 MVC 4465/2020 SCCH-25 loss of future income. Therefore, the Petitioner is only entitled for compensation of Rs.35,000/ under the heads of Pain and Suffering. Further, the Petitioner has stated that he has spent total Rs.9,00,000/ towards medical, conveyance, nourishment and other incidental charges etc., but in this regard he has produced 49 medical bills only for a sum of Rs.1,72,842.90/ as per Ex.P.16. In the crossexamination of PW.1 even though he denied that the Sl.Nos.4,11 and 35 are not advance receipts, but on perusal of Sl.Nos.4 and 11 they are advance receipts. On perusal of Sl.No.35 it is not advance receipt. But in the calculation of bills the Sl.No.35 amount only shown as Rs.29,480/ and the total amount is not calculated and hence the Sl.Nos.4 and 11 are calculated which might be the advance bills of Sl.No.35 main bill and hence they are considered. There is no contrary to this bill from the respondent No.2. Therefore the petitioner entitled for total amount of Rs.1,72,842.90/ under the heads of medical expenses. As mentioned above the Petitioner was admitted to OM Shakthi Hospital, KK Hospital and private clinics and nursing homes, treated and as per 11 MVC 4465/2020 SCCH-25 Ex.P.11 discharge summaries he was inpatient from 20.11.2019 to 23.11.2019 and 23.11.2019 to 28.11.2019 and again 02.12.2020 to 04.12.2020 in all for a period of 12 days and discharged with an advice. During that time, certainly he would have spent some amount towards conveyance, transportation and for other incidental expenses. Therefore, the Petitioner is entitled for a sum of Rs.15,000/ towards conveyance, transportation and other incidental expenses. In total, the Petitioner is entitled for a sum of Rs.2,22,843/. If it is rounded of it comes around Rs.2,22,900/ and same is awarded to the petitioner with interest @ 6% per annum.
LIABILITY:
11. The Respondent No.2 contended that the rider of the offending vehicle had no valid DL as on the date of accident and hence the insurance company is exonerated from paying compensation to the petitioner. Further contended relying on Ex.R.6 statement of chargesheeted accused alleged to have given before their investigator that Sri.Yashwanth was 12 MVC 4465/2020 SCCH-25 not riding the bike on that day but her sister Meghana was riding the bike but in this regard not lead evidence of investigator and Sri.Yashwanth to prove the said Ex.R.6 and hence the Ex.R.6 cannot be based to hold the contention of the respondent No.2 in this regard as proved. Further, in this regard the respondent No.2 lead the evidence of its official as RW.2 who deposed in support of said defence and got marked Exs.R.5 and R.6, which are true copy of policy and letter given by Sri.Yashwanth. In the crossexamination of RW.2 it is brought out that as on the date of accident the policy was in force, as per chargesheet Sri.Yashwanth is accused, as per Ex.R.3 Sri.Yashwanth had LLR valid from 10.07.2019 to 09.1.2020. The RW.2's evidence cannot be accepted to support the defence of the respondent No.2 in respect of Ex.R.6.
12. Further the respondent No.2 has got examined the I.O. as RW.1 who has produced the true copies of police notice, reply notice and LLR at Exs.R.1 to R.3 who deposed 13 MVC 4465/2020 SCCH-25 that on the date of accident Sri.Yashwanth was the rider of the offending vehicle and Sri.Varadarajan was his pillion rider. In the crossexamination of RW.1 it is elicited that as per Ex.R.2 the owner of the vehicle replied that the rider had no DL and policy was in force but in the indemnity bond there is mention about LLR of rider of offending vehicle. The RW.1 also admits that in Ex.R.4 there is clearly mentioned that the rider had no valid DL as on the date of accident but it is later added in pen and admits that in Exs.P.1, 2 and 4 there is no mention about two riders were proceeding on the offending vehicle. In the crossexamination of RW.1 by counsel for petitioner he admits Ex.P.17/DL of the pillion rider of offending vehicle and Ex.P.18/statement of pillion rider.
13. On perusal of Ex.P.2/first information there is no mention that the on the date of accident there were two proceeding on the offending vehicle as there is only mention about rider only. Similarly the averments of Exs.P.4 and P.7 also show that the offending vehicle was ridden by rider alone. 14 MVC 4465/2020
SCCH-25 The Ex.P.9/reply notice given by the owner of offending vehicle to the notice u/Sec.133 of M.V. Act which is dated 04.12.2019 clearly shows that the rider did not hold valid license as on the date of accident. The Ex.P.17 is the statement of one K.V.Varadaraj which is contrary to Exs.P.1, 2, 4 and 7 as they do no aver about presence of pillion rider on the offending vehicle and the said statement states that he was pillion rider on the date of accident in the offending vehicle. In Ex.R.4 indemnity bond there is no mention about LLR to the rider of the offending vehicle but it clearly shows that in the enclosures serial numbers in the second serial number there is addition in pen stating as 'LLR'. Even though if it is considered that as per Ex.R.3 the rider of offending vehicle had LLR as on the date of accident but the Exs.P.1 and P.2 do not speak that on the date of accident the offending vehicle was having two persons and hence it is clear that the rider having LLR ridden the offending vehicle in contravention of Section 3 of M.V. Act as he was not accompanied with the DL holder. The petitioner has not lead any contrary evidence to 15 MVC 4465/2020 SCCH-25 this and more so the respondent No.1 who is the owner has remained absent and not lead any evidence in this regard. Therefore, from the above evidence the respondent No.2 has proved its defence that as on the date of accident the rider ridden it in contravention of policy conditions as he was not accompanied by the valid DL holder as pillion rider.
14. Now it needs to be assessed whether contravention of Section 3 of M.V. Act exonerates the liability of the insurance company in payment of compensation to the third party or not. In this regard the counsel for the respondent No.2 has relied upon the decisions referred above and I have perused the said decisions and with due respect to the said decisions this Tribunal is of the view that they are not applicable to the present case as the facts and circumstances of those cases and this case are different and hence not applicable. With regard to this aspect I rely upon the decisions of Hon'ble S.C. in, (1) Civil Appeal No.6902/2021 arising out of (SLP No.(C) No.5311/2019) in the case of Kurvan 16 MVC 4465/2020 SCCH-25 Ansari alias Kurvan Ali Vs. Shyam Kishore Murmu and Anr., (2) Civil Appeal No.19992000/2020 arising out of (SLP No (C) 1473914740/2018) in the case of Nirmala Kothari Vs. United India Ins. Co. Ltd., (3) Special Leave petition (Civil) 9027/2003 in the case of National Ins. Co. Ltd., Vs. Swaran Singh and Ors.. , wherein the Hon'ble S.C. observed as, "...Mere absence, fake or invalid DL or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.". Further I also rely upon the decision of our own Hon'ble H.C. in the case of New India Assurance Co. Ltd. Vs. Yallavva and Anr.. The said decisions are aptly applicable to the present case also wherein the respondent No.2 has not proved that the insured was guilty of negligence and failed to exercise 17 MVC 4465/2020 SCCH-25 reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver. Though the Respondent No.1 being the RC owner of the offending vehicle alone liable to pay compensation to the Petitioner in view of breach of policy conditions but the respondent No.2/Insurer is directed to deposit the compensation amount at the first instance and later to recover the same from the respondent No.1/owner by filing Execution petition as per law. The Petitioner has claimed for a sum of Rs.25,00,000/ but he is entitled only for a sum of Rs.2,22,900/ with interest @ 6% per annum. Therefore, the petition needs to be allowed in part. Accordingly Issue No.2 is held partly in the affirmative.
15. Issue No.3: For the reasons and discussions made above and finding to the above issues this Tribunal proceeds to pass the following: 18 MVC 4465/2020 SCCH-25 ORDER The petition is allowed in part.
The Petitioner is entitled for compensation of Rs.2,22,900/ (Rupees Two Lakhs Twenty Two Thousand and Nine Hundred only) from the Respondent No.1/owner only along with interest at 6% p.a. from the date of petition till the date of depositing the amount.
However, the Respondent No.2 insurer is directed to deposit the compensation amount with interest within sixty days from the date of this award at first instance and later to recover the same from the respondent No.1/owner by filing Execution petition as per Law.
On deposit of compensation and interest, 20% of compensation shall be deposited in any nationalized or schedule bank in the name of the 19 MVC 4465/2020 SCCH-25 Petitioner for period of 3 years and balance amount shall be released in favour of the Petitioner by way of epayment and on proper identification and due acknowledgment as per Rules.
Advocate fee is fixed at Rs.1,000/.
Draw decree accordingly.
(Typed to my dictation directly on the computer by the Stenographer, corrected and then pronounced by me in open court on this the 30th day of June 2022).
(Miss B.T.ANNAPOORNESHWARI) XXI A.C.M.M.& XXIII A.S.C.J., Bengaluru.
ANNEXURE List of Witnesses examined for Petitioner:
PW.1 Sri.Malkajappa @ Mallikarjuna List of Documents marked for Petitioner:
Ex.P.1 Certified copy of FIR,
Ex.P.2 Certified copy of FIS
Ex.P.3 Certified copy of spot sketch
20 MVC 4465/2020
SCCH-25
Ex.P.4 Certified copy of Spot Mahazar
Ex.P.5 Certified copy of wound certificate
Ex.P.6 Certified copy of MCA reports (2 in Nos.)
Ex.P.7 Certified copy of Charge sheet
Ex.P.8 Certified copy of police notice
Ex.P.9 Certified copy of reply to police notice
Ex.P.10 25 medical prescriptions
Ex.P.11 3 discharge summary
Ex.P.12 Notarized copy of Aadhar Card of petitioner
(Compared with original and original is returned) Ex.P.13 Notarized copy of DL of petitioner (Compared with original and original is returned) Ex.P.14 MRI spine report Ex.P.15 Four diagnostic prescriptions Ex.P.16 49 medical bills for Rs.1,72,842.90/ Ex.P.17: True copy of DL of pillion rider Ex.P.18: True copy of statement of pillion rider List of Witnesses examined for Respondent/s:
RW.1 Mr.S.Somashekaraiah RW.2 Sri.Suresh S.
List of documents exhibited for Respondent:
Ex.R.1 True copy of police notice u/Sec.133 of MV Act Ex.R.2 True copy of reply to police notice u/Sec.133 of MV Act.21 MVC 4465/2020
SCCH-25 Ex.R.3 True copy of Learner's licence Ex.R.4 Indemnity bond dated 04.12.2019 Ex.R.5 True copy of policy Ex.R.6 Letter given by Sri.Yeshwanth dated 23.01.2021 along with copy of Aadhar card of said Sri.Yashwanth (alleged to have given before investigator of R2's company) (Miss B.T.ANNAPOORNESHWARI) XXI A. C.M.M.,& XXIII ASCJ Bengaluru.22 MVC 4465/2020
SCCH-25 30.06.2022 For Judgment Pronounced vide separate judgment with following operative portion:
ORDER The petition is allowed in part. The Petitioner is entitled for compensation of Rs.2,22,900/ (Rupees Two Lakhs Twenty Two Thousand and Nine Hundred only) from the Respondent No.1/owner only along with interest at 6% p.a. from the date of petition till the date of depositing the amount.
However, the Respondent No.2 insurer is directed to deposit the compensation amount with interest within sixty days from the date of this award at first instance and later to recover the same from the respondent No.1/owner by filing Execution petition as per Law. 23 MVC 4465/2020
SCCH-25 On deposit of compensation and interest, 20% of compensation shall be deposited in any nationalized or schedule bank in the name of the Petitioner for period of 3 years and balance amount shall be released in favour of the Petitioner by way of epayment and on proper identification and due acknowledgment as per Rules.
Advocate fee is fixed at Rs.1,000/. Draw decree accordingly.
(Miss B.T.ANNAPOORNESHWARI) XXI A.C.M.M. & XXIII A.S.C.J. Bangalore.24 MVC 4465/2020
SCCH-25 AWARD BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA & XXI ACMM : BANGALORE CITY MVC No.4465/2020 PETITIONER: Mr. Malkajappa @ Mallikarjuna s/o Ramappa Bagali, Aged about 36 years, R/at No.6/101/1, Yelhar, Yadgir - 585321, Karnataka.
(By Sri.Dhananjaya A., Advocate.)
V/S
RESPONDENTS: 1.Sri. Rajappa K.
S/o Not known to the petitioner,
aged Major,
R/at No.53, 2nd Mainroad,
Old Chama Kattigenahalli,
Yelahanka Post,
Bangalore - 560 064.
(Owner of the Scooter bearing
Reg.No.KA50EC4876)
(Exparte)
2. HDFC ERGO Gen. Ins.
Company Ltd.,
No.25/1, II Floor,
Shankar Narayana Building,
No.2, M.G.Road,
Bangalore - 560 001.
(Insurer of the Scooter bearing
Reg.No.KA50EC4876)
(By Sri.Kiran Pujar, Advocate.)
.......
25 MVC 4465/2020
SCCH-25
WHEREAS, this petition filed on by the Petitioner/s
above named U/sec.110A/166 of the M.V.C. Act, praying for the compensation of Rs. (Rupees Only) for the injuries sustained by the Petitioner/Death of in a Motor Accident by Vehicle No. WHEREAS, this claim petition coming up before Miss.
B.T.Annapoorneshwari, XXIII Addl.Judge, Member, Bangalore, in the presence of Sri/Smt. Advocate for Petitioner/s and of Sri/Smt. Advocate for Respondent.
ORDER The petition is allowed in part.
The Petitioner is entitled for compensation of Rs.2,22,900/ (Rupees Two Lakhs Twenty Two Thousand and Nine Hundred only) from the Respondent No.1/owner only along with interest at 6% p.a. from the date of petition till the date of depositing the amount.
However, the Respondent No.2 insurer is directed to deposit the compensation amount with interest within sixty days from the date of this award at first instance and later to recover the same from the respondent No.1/owner by filing Execution petition as per Law.
On deposit of compensation and interest, 20% of compensation shall be deposited in any nationalized or schedule bank in the name of the Petitioner for period of 3 years and balance amount shall be released in favour of the 26 MVC 4465/2020 SCCH-25 Petitioner by way of epayment and on proper identification and due acknowledgment as per Rules.
Advocate fee is fixed at Rs.1,000/.
Given under my hand and seal of the Court this day of 2022.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA BANGALORE.
By the __________________________________ Petitioner/s Respondent Court fee paid on petition 1000 Court fee paid on Powers 0000 Court fee paid on I.A. Process Pleaders Fee _________________________________ Total Rs.
_________________________________ Decree Drafted Scrutinised by MEMBER, M.A.C.T.METROPOLITAN:
BANGALORE Decree Clerk SHERISTEDAR