Bangalore District Court
Ashok.H vs Shruthi.R on 17 January, 2025
KABC020235932022
Digitally signed by
APPASAB APPASAB RAMAPPA
RAMAPPA NAIK
Date: 2025.01.22
NAIK 16:01:28 +0530
BEFORE THE COURT OF XXIV ADDITIONAL SMALL
CAUSES JUDGE, THE MOTOR ACCIDENT CLAIMS
TRIBUNAL & A.C.J.M. (SCCH-26) AT BENGALURU
DATED THIS THE 17th DAY OF JANUARY, 2025
PRESENT
SRI. APPASAB NAIK,
B.A.L.L.B.(Spl)
XXIV ADDL. SCJ & ACMM & MEMBER -
MACT BENGALURU.
M.V.C No.4265/2022
PETITIONER : Sri.Ashok.H.,
S/o.Hanumanthaiah.T.,
Aged about 42 years,
R/at Maruthi Road,
Kuvempu Nagara,
Ward No.21, Kunigal Town & Taluk,
Tumkur District.
(By Sri.Abdul Rehman - Adv.,)
V/s
RESPONDENTS : 1. Shruthi.R.,
D/o.Rajanna.P.V.,
R/at No.E 1096, JTO Telephone
Department, BSNL Madanahalli,
Gowribidanur Town,
Chikkaballapura - 561 206.
SCCH - 26 2 MVC No.4265/2022
2. National Insurance Co., Limited,
# 97, 3rd Floor, 8th Cross,
Temple Street, Above Patanjali Store,
Malleshwaram,
Bengaluru.
(Policy No.55100331216260000067
valid from 28.06.2021 to 27.06.2022)
(By Sri.S.R.Murthy - Adv.,)
::JUDGMENT::
The petition is filed by the petitioner under Sec.166 of Motor Vehicles Act, 1989 seeking compensation for an amount of Rs.20,00,000/- for the injuries sustained by him, in a road traffic accident.
2. The brief facts of the petitioner's case are as under:
It is the case of the petitioner that on 29.05.2022 at about 4.00 pm., when the petitioner was proceeding as a pillion rider along with his friend Manohar.B.R as rider on TVS Jupiter bearing Reg.No.KA-04-EF-7727 from Begur towards Kunigal on Begur-Kunigal Road, near Begur kere, at that time the rider of the above said vehicle rode the SCCH - 26 3 MVC No.4265/2022 same in very high speed, with rash and negligent manner. Due to impact both rider and pillion rider fell down along with the vehicle and sustained fracture injuries. Immediately, after the accident, the petitioner was shifted to CHC Hospital, Kunigal for first aid treatment and then referred to M.C. Orthopeadic, Arthroscopy and joint replacement center, Tumkur and took treatment as inpatient for 5 days and discharged with an advise to take followup treatment. The petitioner has spent more than Rs.3,00,000/- towards medical, conveyance, nourishment and other incidental charges etc., Prior to the accident, petitioner was hale and healthy, working as doing business and agriculture and earning a sum of Rs.3,50,000/- per month. The accident occurred only due to rash and negligent manner of riding of the TVS Jupiter bearing Reg.No.KA-40-EF-7727 by its rider and in this connection the Kunigal Police have registered a case in their crime No.191/2022, after investigation the said police have filed charge sheet against the said rider SCCH - 26 4 MVC No.4265/2022 for the offence punishable under Section 279, 337 of IPC R/w Sec.134 (a) & (b) of MV Act. The first respondent being the R.C Owner and the second respondent being the Insurer of the said TVS Jupiter bearing Reg.No.KA-40-EF- 7727. Hence, both the respondents are jointly and severally liable for payment of compensation.
3. After service of summons, the respondent No.1 and 2 have appeared before the court through their counsels. The respondent No.2 has filed the objections to main petition. The respondent No.1 did not filed written statement, hence written statement of respondent No.1 is taken as nil.
Respondent No.2 has filed its objection contending that the claim petition is false and petition is not maintainable. Further contended that, the owner of the alleged offending vehicle and the concerned police have not complied the mandatory provisions of Sec.134(c) and 158(6) of MV Act. Respondent has admitted the issuance of the insurance policy in respect of TVS Jupiter bearing SCCH - 26 5 MVC No.4265/2022 Reg.No.KA-40-EF-7727 and the liability if any, shall be strictly subject to the terms and conditions of the policy and the petitioner has to put strict proof of the same. Further contended that,the rider of the insured vehicle has no valid and effective driving license to ride the said motor cycle at the time of accident. The 1 st respondent knowing full well that the rider was not having valid and effective driving licence to drive the class/type of vehicle allegedly involved in the alleged accident. It has also denied the nature of injuries sustained by the Petitioner, avocation and income of the Petitioner and the expenses incurred by him and disability suffered by him. The compensation claimed is highly exorbitant. For all these, he has prayed for dismissal of the petition.
4. On the basis of the above pleadings, the following issues have been framed:
:: ISSUES::
1. Whether the Petitioner proves that, on 29.05.2022, at about 4.00 pm., he was riding his TVS Jupiter motor cycle bearing Reg.No.KA-
SCCH - 26 6 MVC No.4265/2022 04-EF-7727 from Begur towards Kunigal on Bengaluru Kunigal Road near Beguru kere, at that time the rider of the said vehicle had driven the very high speed, rash and negligent manner and fell down along with vehicle and petitioner (pillion rider) and sustained grievous injuries over to right anterior cruciate ligament complete tear right medical menixcal B.H. tear, pain, swelling giving way right knee as mentioned in claim petition?
2. What petitioner is entitled for compensation as prayed in the petition? If so, from which respondent?
3. What Order or Award ?
5. The petitioner in order to prove his case has examined himself as PW.1 and got marked 21 documents as Ex.P1 to Ex.P15. He has examined Dr.Nagaraj.B.N/Orthopaedic Surgeon as PW.2 and got marked 2 documents as Ex.P16 & 17 and Medical Record Officer is examined as PW.3 and got marked 4 documents as Ex.P18 to Ex.P21. On the other hand, respondent No.1 has examined the Medical Officer, the authorized person of Medical Officer as SDA Smt.Chaitra Shivakumar has examined as RW1 and got marked Ex.R1 & 2 and closed SCCH - 26 7 MVC No.4265/2022 its side.
6. Heard the arguments from both sides. Perused the entire records. The respondent No.2 has filed its written arguments.
7. My answers to the above issues are as under:
Issue No.1 : In the Affirmative
Issue No.2 : Partly in the affirmative
Issue No.3 : As per final order for the
following:
REASONS
8. Issue No.1: In order to prove the actionable negligence, the petitioner has got examined himself as PW-1. He has got marked 21 documents as Ex.P1 to Ex.P21. He has reiterated the averments of the petition in his affidavit filed for his examination- in-chief.
9. It is relevant to note that the respondent No.2 has specifically contended that the rider of the Jupiter motor cycle was not having driving license to ride the TVS Jupiter motor cycle bearing Reg.No.KA-04-EF-7727 at the time accident. Therefore, the burden is on the petitioner to SCCH - 26 8 MVC No.4265/2022 prove that the alleged accident occurred due to the negligence of rider of TVS Jupiter motor cycle bearing Reg.No.KA-04-EF-7727.
10. Petitioner himself examined as PW.1 and in his evidence has stated that on 29.05.2022 at about 4.00 pm., when he was proceeding as a pillion rider on TVS Jupiter motor cycle bearing Reg.No.KA-04-EF-7727 along with his friend Sri.Manohar.B.R as a rider from Begur towards Kunigal on Begur-Kunigal Road, near Begur kere, at that time the rider of the above said vehicle rode the same with high speed, in a rash and negligent manner and fell down both the rider and pillion rider along with the vehicle and thereby sustained grievous injuries and sustained grievous injuries all over the body.
11. PW.1 in support of his version, he has produced the certified copy of FIR, complaint, spot panchanama, rough sketch, seizure panchanama, IMV report, wound certificate and final report and got them marked at Ex.P1 to 8.
SCCH - 26 9 MVC No.4265/2022
12. I have perused Ex.P1 to 8,from these documents it is clear that the accident took place on 29-05-2022 at about 7.00 pm., and the FIR at Ex.P1 in crime No.191/2022 came to be registered on 6-06-2022 at around 7.00, at Kunigal Police Station for the offences punishable u/s 279, 337 of IPC and Sec.134)A&B), 187 of MV Act. Ex.P2 - Complaint was lodged by the petitioner, Ex.P3 - Spot Panchanama describe the place of accident, Ex.P4 - Hand Sketch Map shows that, accident occurred very edge of the road which goes towards Kunigal, Ex.P-5 is the vehicle Seizure Panchanma, Ex.P6 - IMV report reveals that no any damage were found on the motor cycle at time of inspection and also reveals that the incident is not due to the any mechanical defects. Thereafter the police conducted investigation and filed charge-sheet at Ex.P.8 against the rider of the alleged motor cycle for the offences punishable u/s 279, 338 of IPC and Sec.134(B),187 of MV Act.
13. The learned counsel for the respondent No.2 has SCCH - 26 10 MVC No.4265/2022 cross examined PW1. I have perused the entire cross- examination of PW1. PW1 denied that the injury sustained by him due to accident. The learned counsel for the respondent No.2 has not elicited anything from the mouth of PW-1 to disbelieve his version. There is nothing on record to show that the charge-sheet filed by the police is defective or collusive. Moreover, it is settled law that the term "rashness and negligence" has to be construed lightly while deciding a petition for claim of compensation under the MV Act as compare to the word "rashness and negligence" as finds mention in the Indian Penal Code. This is because the provisions of M.V.Act dealing with compensation are benevolent legislation and not a penal one. Therefore, on over all appreciation of evidence, I am of the opinion that the accident occurred due to the sole negligence of rider of the offending motor cycle which belongs to the respondent No.1. Accordingly, I answer issue No.1 in the affirmative.
14. ISSUE NO.2: This petition is filed for seeking SCCH - 26 11 MVC No.4265/2022 compensation of Rs.20,00,000/- for the injuries sustained by the petitioner in the road traffic accident as stated above. The petitioner has already proved that, the accident was occurred due to sole negligence on the part of rider of offending motorcycle. The petitioner contended that, prior to the accident, he was hale and healthy, business man and farmer and earning a sum of Rs.30,000/- per month. On account of the injuries sustained in the accident, he has lost his earning capacity lost his income and he is not able to do his work as he was doing earlier to the accident.
15. In this case, the petitioner has proved the accident and injuries sustained by him in the alleged accident by producing cogent evidence. Further the petitioner got examined Dr.Nagaraj .B.N as PW-2 and produced documents as per Ex.P.16 and Ex.P.17 The Ex.P16 is the clinical notes and Ex.P.17 is the X-ray.
16. The doctor - PW2 has stated in his evidence that the petitioner sustained injuries, i.e., right knee, ACL tear SCCH - 26 12 MVC No.4265/2022 with medical meniscus tear. The PW-2 has assessed the disability of the petitioner to the right lower limb as 40% and as 13% to the whole body.
17. The PW-2 has assessed the disability of the petitioner and also gave evidence with respect to the disability of the petitioner. The wound certificate and discharge summary as per Ex.P.7 and Ex.P.9, disclose the injury and treatment. Learned counsel for respondent No.2 insurance company has submitted the written arguments that the petitioner has no loss of income as per IT returns and head of loss of future income does not arise.
18. Learned counsel for respondent No.2 Insurance company has cross-examined PW-1 and PW-1 clearly admitted that;
"ನಾನು ಪ್ರತಿ ತಿಂಗಳು ಆದಾಯ ಗಳಿಸುತ್ತೇನೆ ಎಂಬ ಬಗ್ಗೆ ದಾಖಲೆಯನ್ನು ಕೊಟ್ಟಿರುತ್ತೇನೆ. ಸಾಕ್ಷಿ ಮುಂದುವರೆದು ಐಟಿ ರಿಟರ್ನ್ ಕೊಟಿರುತ್ತೇನೆ ಎಂದು ನುಡಿಯುತ್ತಾ ರೆ."
19. The PW-1 has produced income tax returns from 2020 to 2023 as per Ex.P.12 to 14, on careful perusal of Ex.P.12 it shows that the annual income of the petitioner in SCCH - 26 13 MVC No.4265/2022 the year 2020-2021 was that Rs.3,05,100/-. For the year 2021-2022 Rs.3,40,700/- and for the year 2022-2023 Rs.4,67,050/-. The accident was occurred on 29.05.2022. On perusal of the income tax returns under Ex.P.12 to 14, it shows that the income of the petitioner is hiked and the same is admitted by the PW-1. Admitted facts need not be proved as per Section 58 of Indian Evidence Act. Therefore, there is no loss of earning capacity due to the accidental injury to the petitioner. Hence, the petitioner is not entitled for the compensation under the head of loss of future earning capacity.
20. PAIN AND SUFFERINGS:As per the wound certificate and discharge summary produced at Ex.P.7 and Ex.P.9, the petitioner has sustained i) Right anterior cruciate ligament complete tear and ii) Medial meniscal B/H tear. As petitioner has undergone pain and sufferings due to injuries sustained in the accident. By considering the above facts and discussion made above and looking to the nature of injuries, I deem it just and reasonable to grant for compensation of Rs.30,000/- under the head of Pain and sufferings.
SCCH - 26 14 MVC No.4265/2022
21. LOSS OF AMENITIES: Further on perusal of evidence of PW-1, it reveals that, petitioner has sustained injury and the same is mentioned above paras. The petitioner was aged about 55 years at the time of accident. Considering the above facts and on perusal of evidence of PW-1 and PW-2, considering the nature of injuries sustained by the petitioner, I deem it just and reasonable to grant for compensation of Rs.30,000/- under the head of loss of amenities.
22. MEDICAL BILLS: The petitioner has not produced any medical bills and he stated in his cross examination that Heath Insurance ದಿಂದ ಆಸ್ಪತ್ರೆ ಖರ್ಚು ಬಂದಿರುತ್ತದೆ. Therefore, the petitioner is not entitled for the head of medical bills.
23. ATTENDANT, FOOD AND NOURISHMENT AND CONVEYANCE CHARGES:
Further on perusal of Ex-P-9 i.e., discharge summary of M.C.Orthopaedic, Arthroscopy &joint replacement center Tumukur, it shows that, the petitioner has taken treatment as an inpatient from 30-05-2022 to 04-06-2022 i.e., for a period of 5 days he has taken treatment in the said hospital.
SCCH - 26 15 MVC No.4265/2022 Looking to the period of hospitalization, naturally he was unable to do his own work and he was needed help from some other person. The attendance and nourishment charges of the petitioner during the hospitalization is required. Therefore it is proper to award the amount of Rs.7,500/- under the head of attendant, food and nourishment and conveyance charges.
24. LOSS OF INCOME DURING LAID UP PERIOD AND REST PERIOD:-
Further due to the accidental injuries, the petitioner might have taken rest at least for a period for injuries of Right anterior cruunate ligament complete tear and ii) Medial menial B/A tear and as such, if one month income is awarded under the head of loss of income during laid up period and rest period, certainly it would meet the ends of justice. For the above reason, I deem it just and reasonable to grant for compensation of Rs.35,000/-under the head of loss of income during laid up period and rest period.
25. By considering the above facts and circumstances of SCCH - 26 16 MVC No.4265/2022 the case and for the above reasons, I am of the opinion that, the petitioner is entitled for compensation under the following heads:
Compensation heads Compensation
amount
1. Towards Pain and Sufferings Rs. 40,000/-
2. Towards loss of Amenities Rs. 30,000/-
3.Towards attendant, food and Rs. 7,500/-
nourishment and conveyance
charges
4. Towards loss of income Rs. 35,000/-
during laid up period and rest
period.
TOTAL Rs.1,12,500/-
Hence, the petitioner is entitled for total compensation of Rs.1,12,500/-.
26. REGARDING INTEREST & LIABILITY: Having regard to the nature of the claim and current bank rate of interest, this Tribunal is of the view that if interest at the rate of 6% p.a, is awarded, it would meet the ends of justice.
SCCH - 26 17 MVC No.4265/2022
27. LIABILITY:- In the absence of challenging the same, the respondent No.1 being the RC owner and respondent No.2 being the insurer offending motor cycle bearing Reg.No.KA-02-KH-2564 are jointly and severally liable to pay the compensation to the petitioner with interest at the rate of 6% p.a. The primary liability is on the respondent No.2 to pay the compensation amount to the petitioner with interest at the rate of 6% p.a. Accordingly, I answer issue No.2 partly in the Affirmative.
28. ISSUE NO.3: For the aforesaid reasons, I proceed to pass the following :-
-: ORDER :-
The petition filed under Section 166 of M.V Act 1988, is hereby partly allowed with costs in the following terms:
The petitioner is entitled for
compensation of Rs.1,12,500/- (Rupees
One Lakh Twelve Thousand Five Hundred Only) with interest at the rate of 6% p.a. from SCCH - 26 18 MVC No.4265/2022 the date of petition till its realization.
The respondent No.1 & 2 are jointly and severally liable to pay compensation to the petitioner. However, the respondent No.2 being insurer of offending motor cycle is directed to deposit the compensation amount in this tribunal within one month from the date of this order.
After deposit of compensation amount, release the entire amount to the petitioner through NEFT/RTGS by way of E-payment on proper identification.
Advocate fee is fixed at Rs.1,000/-.
Draw an award accordingly.
(Dictated to the stenographer, directly over computer, typed by her, corrected by me and then pronounced in the open Court on this day 17th January 2025.) (APPASAB NAIK) XXIV ADDL. SCJ & ACJM, MEMBER, MACT, BENGALURU.
SCCH - 26 19 MVC No.4265/2022
::A N N E X U R E::
I. LIST OF WITNESSES EXAMINED ON BEHALF OF THE
PETITIONER:-
PW.1 Ashok.H
PW.2 Dr.Nagaraj.B.N.
PW.3 Srinivas.A.G
II. LIST OF DOCUMENTS MARKED ON BEHALF OF THE
PETITIONER:-
Ex.P.1 FIR
Ex.P.2 Complaint
Ex.P.3 Spot Panchanama
Ex.P.4 Rough Sketch Map
Ex.P.5 Seizure Panchanama
Ex.P.6 MVI Report
Ex.P.7 Wound Certificate
Ex.P.8 Final Report
Ex.P.9 Discharge Summary
Ex.P.10 X-ray
Ex.P.11 Notarized copy of Aadhaar Card of
petitioner
Ex.P.12-14 Income Tax Returns acknowledgment Ex.P.15 Certificate U/S.65 B of Evidence Act.
Ex.P.14 Medical prescription report
SCCH - 26 20 MVC No.4265/2022
Ex.P.15 Bill receipt
Ex.P.16 Clinical Notes
Ex.P.17 X-ray
Ex.P.18 Authorization Letter
Ex.P.19 Police Intimation Report
Ex.P.20 MLC Register Extract
Ex.P.21 Case Sheet
III. LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENTS:-
RW.1 Chaitra.C. IV. LIST OF DOCUMENTS MARKED ON BEHALF OF THE RESPONDENTS:-
Ex.R.1 Authorization Letter
Ex.R.2 MLC Register Extract
(APPASAB NAIK)
XXIV ADDL. SCJ & ACJM,
MEMBER, MACT, BENGALURU.