Bangalore District Court
Sri. Rajesh B.G vs Sri. Vinod L. Poojary on 11 October, 2017
BEFORE THE COURT OF VIII ADDITIONAL SMALL
CAUSES JUDGE AND THE MOTOR ACCIDENT CLAIMS
TRIBUNAL (SCCH-5) AT BENGALURU
DATED THIS THE 11TH DAY OF OCTOBER, 2017
PRESENT: SMT. ROOPA K.N. B.Sc, LLB.,
VIII ADDL. SCJ & XXXIII ACMM
MEMBER - MACT
BENGALURU.
M.V.C No.5610/2014
PETITIONER : Sri. Rajesh B.G.
S/o. Ganesh
Aged about 22 years
R/at No.37/1, Baraguru Village,
Doddamagge (Post),
Arakalgud Taluk,
Hassan District.
(By Sri.B.M.Chandrashekara, Adv.,)
V/s
RESPONDENTS : 1. Sri. Vinod L. Poojary
S/o. Lakshmana Poojary
No.8/1,
Sri Lakshmi Venkateshwara Nilaya,
1st Floor, 17th Cross,
Ranganathapura, Malleshwaram,
Bengaluru - 560 003.
(By Sri.B.S.Krishna, Adv.,)
2. ICICI Lombard General Insurance
Co. Ltd.,
No.18, 2nd Floor,
2 MVC No.5610/2014
SCCH 5
S.V.R. Complex,
Hosur Main Road,
Madiwala,
Bengaluru.
(Policy
No.3005/2010859873/BO/00000000/72
Policy period:
13.01.2014 to 12.01.2015
(By Sri.Gururaj Salur, Adv.,)
****
::JUDGMENT::
This petition is filed by the petitioner under Section 166 of Motor Vehicles Act, 1989, claiming compensation for the injuries sustained in the alleged accident.
2. The brief facts of the case of the petitioner is as follows:
On 10.10.2014 at around 6.00 p.m. he was proceeding on his Motor Cycle bearing Reg.No. KA-02-JA-4000 as rider, when he reached near Vijayanagar West of Chord Road water tank signal junction, at that time, Motor Cycle bearing Reg.No. KA-04-HD-4544 being ridden the same in rash and negligent manner came with high speed from Maruthi 3 MVC No.5610/2014 SCCH 5 Mandir to Vijayanagar and dashed against him, as a result of which, he fell down and sustained grievous injuries. Immediately after the accident, he was shifted to Gayathri Hospital, Bengaluru, wherein he underwent operation, towards which, he had spent a sum of Rs.30,000/- towards medical expenses. It is the case of the Petitioner that, he was working in Medplus Medical Shop and earning a sum of Rs.12,000/- p.m. and due to the accidental injuries, he could not able to attend his day-to-day work as earlier he was doing. Hence, he has claimed compensation of Rs.8,27,000/- against Respondents No.1 and 2.
3. After service of summons, both Respondents No.1 and 2 have appeared through counsels and filed their respective objection statement.
4. Respondent No.1 in his objection statement admitted that, Motor Cycle bearing Reg.No. KA-04-HD-4544 was duly insured with Respondent No.2, 4 MVC No.5610/2014 SCCH 5 which was valid as on the date of the accident. He admitted that, alleged accident was due to rash and negligence on the part of the rider of the Motor Cycle bearing Reg.No.KA-02-JA-4000. Except this, he denied all other petition averments and prays to dismiss the claim petition filed against him.
5. Respondent No.2 in its written statement denied averments of the claim petition inter-alia admitted issuance of policy infavour of Motor Cycle bearing Reg.No.KA-04-HD-4544 and if there is any liability to pay the compensation, it is subject to terms and conditions of the policy. It also admitted that, there is no negligence on the part of the rider of the above said Motor Cycle. Except this all other defences are formal in nature and prays to dismiss the claim petition filed against it.
6. On the basis of the above pleadings, I have framed the following:
5 MVC No.5610/2014
SCCH 5 ::ISSUES::
1. Whether Petitioner proves that he sustained injuries in road traffic accident that occurred on 10.10.2014 at about 6.00 p.m. near Vijayanagar, West of Chord Road, Water Tank Signal Junction, Bengaluru, while the Petitioner was riding the Motor Cycle bearing Reg.No.KA-02-JA-
4000, due to rash and negligent act of riding of the Motor Cycle rider, vehicle bearing Reg.No.KA-04-HD-4544, has met with an accident?
2. Whether Petitioner is entitled for compensation as prayed in the petition? If so, from which Respondent?
3. What Order or Award?
7. In order to prove the above Issues for consideration, Petitioner examined himself as PW-1 and got marked Ex.P.1 to Ex.P.14. Further, Dr.Kiran J., Consultant Doctor at Gayathri Hospital has been examined as PW-2, who got marked Ex.P.15 and Ex.P.16. Per contra, Respondents did not preferred to lead any oral or documentary evidence.
6 MVC No.5610/2014
SCCH 5
8. Heard the arguments of learned counsel for the Petitioner and Respondents.
9. My findings on the above issues are as under:
Issue No.1 : In the Affirmative
Issue No.2 Partly in the affirmative,
Petitioner is entitled for a global compensation of Rs.25,000/-
with interest at the rate of
9% p.a. from Respondent No.2.
Issue No.3 : As per final order for the
following:
::REASONS::
10. Issue No.1 and 2: As these two issues are
interlinked with each other, they are taken together for common discussion in order to avoid repetition of facts and evidence.
11. As this petition is filed under Sec.166 of the M.V.Act, the burden is on the Petitioner to prove that the alleged accident took place because of the negligence on the part of rider of the Motor Cycle bearing Reg.No. 7 MVC No.5610/2014 SCCH 5 KA-04-HD-4544. Inorder to prove the above said issues, Petitioner examined himself as PW-1 and Doctor as PW-2 and got marked in all 16 documents.
12. Inorder to prove this fact, PW-1 has produced Police records which are marked as Ex.P.1 to Ex.P.6 i.e., FIR with Complaint, Spot Mahazar, Sketch, IMV Report, Wound Certificate and Charge Sheet. If we peruse the oral and documentary evidence adduced by the Petitioner, which clearly discloses in Ex.P.1 i.e., FIR and Complaint that, on 10.10.2014 at around 6.00 p.m. he was proceeding on his Motor Cycle bearing Reg.No. KA-02-JA-4000 as rider, when he reached near Vijayanagar West of Chord Road water tank signal junction, at that time, Motor Cycle bearing Reg.No. KA-04-HD-4544 being ridden the same in rash and negligent manner came with high speed from Maruthi Mandir to Vijayanagar and dashed against him, as a 8 MVC No.5610/2014 SCCH 5 result of which, he fell down and sustained grievous injuries.
13. If the Police records are perused, the contents of Spot Mahazar and Mahazar marked as Ex.P.2 and Ex.P.3 clearly indicates that, at the time of the accident, this Petitioner was coming on Water Tank Road and he was crossing the junction towards Maruthi Mandir and at that time, this offending vehicle came from West of Chord Road and dashed against Motor Cycle of the Petitioner. The sketch clearly indicates that, offending Motor Cycle rider was riding it on the middle of the road, as the place of accident is a junction, where almost 3-4 roads connects, the rider of the vehicle ought to have taken more care and caution while crossing the junction.
14. Per contra, Respondents did not chosen to lead any oral or documentary evidence in order to disprove the contention taken by the Petitioner. The conduct of the Respondent No.1 being the R.C.Owner of the 9 MVC No.5610/2014 SCCH 5 offending Motor Cycle in not contesting the claim petition, compels this Court to draw an adverse inference that, this accident was solely due to rash and negligent riding by the ride of the Motor Cycle bearing Reg.No. KA-04-HD-4544. Accordingly, Respondent No.1 being the owner and Respondent No.2 being the insurer of the above said vehicles are jointly and severally liable to pay compensation to the Petitioner.
15. Coming to the quantum of compensation that has to be awarded to the Petitioner, he was aged 22 years at the time of the accident. In order to prove his age, he has produced Ration Cards which are marked as Ex.P.9 and Ex.P.14, wherein age of the Petitioner is shown as 21 years as on 09.09.2015. Accordingly, it is considered that, Petitioner was aged 22 years as on the date of the accident.
16. Petitioner has contended that, he was working in Medplus Medical Shop as Incharger and earning 10 MVC No.5610/2014 SCCH 5 Rs.12,000/- p.m. In this regard, he has produced Ex.P.12 ID Card issued by Medplus and Ex.P.13 is the Letter of Employment issued by Optival Health Solutions Pvt. Ltd., In order to prove is employment and income, he has not adduced the evidence of author of Ex.P.13.
17. It is the case of the Petitioner that, he had sustained fracture of V metatarsal of right eye, laceration over right leg with tear of underlying tendon and abrasion over right leg, for which, he took treatment as inpatient in Gayathri Hospital Pvt. Ltd., and discharged on 11.10.2014. This fact has been corroborated by the contents of Ex.P.5 Wound Certificate issued by Gayathri Hospital Pvt. Ltd., Petitioner has also produced Prescriptions marked as Ex.P.7, Medical Bills marked as Ex.P.8 to the tune of Rs.17,600/- and Ex.P.11 are the X-ray films.
18. PW-2 is Dr.Kiran J. Consultant Doctor at Gayathri Hospital has not assessed any disability except 11 MVC No.5610/2014 SCCH 5 producing Police records like Ex.P.15 Police Intimation and Ex.P.16 is Admission Record. In my opinion, mere fracture for V metatarsal bone will not cause any permanent disability to a person. Hence, Petitioner is entitled for global compensation.
19. Accordingly, I hold that Petitioner is entitled for global compensation of Rs.25,000/- with interest at the rate of 9% p.a. from the date of petition till its realization.
20. Relying upon a judgment of the Hon'ble Apex Court reported in 2013 AIR SCW 5375 in between Minu Rout and ors. V/s. Satya Pradyumna Mohapatra and ors., with regard to interest at the rate of 9% p.a. on the compensation amount, in para No.13 of the judgment, Hon'ble Apex Court held that, 'Insurance Company is also liable to pay interest at the rate of 9% p.a. from the date application till the date of payment' and also by following the principles laid down in (2011) 4 12 MVC No.5610/2014 SCCH 5 SCC 481: AIR 2012 SC 100 in between Municipal Council of Delhi V/s. Association of Victims of Uphaar Tragedy. In view of the above judgments with regard to the rate of interest and also it is settled principles of law that, while awarding interest on the compensation amount, the Court has to take into account the rate of interest on the Nationalized Bank and the rate of interest at the rate of 9% p.a. cannot said to be on the higher side. Accordingly, the Petitioner is entitled to interest at the rate of 9% p.a.
21. Coming to the question of fixing the liability to pay the compensation to the Petitioner, Respondent No.2 being the Insurance Company had issued policy infavour of Respondent No.1 inrespect of Motor Cycle bearing Reg.No.KA-04-HD-4544 and it is valid and effective on the date of accident. Accordingly, the Respondent No.2 being the insurer and Respondent No.1 being the owner of the offending vehicle are jointly and severally liable to 13 MVC No.5610/2014 SCCH 5 pay compensation to the Petitioner. However, Respondent No.2 has to indemnify Respondent No.1. Accordingly, Issue No.1 is answered in affirmative and Issue No.2 in partly affirmative.
22. Issue No.3: On the basis of discussions made on Issue Nos.1 and 2, I proceed to pass the following:
::ORDER::
The petition filed under Sec.166 of MV Act, 1989 is partly allowed with cost.
Petitioner is entitled for global compensation of Rs.25,000/- (Rupees Twenty Five Thousand Only) with interest at the rate of 9% p.a. from the date of petition till realization from Respondent No.2.
The Respondent No.2 is liable to pay the compensation to the Petitioner and shall deposit the said amount within 60 days from the date of this order.
On deposit of compensation amount, entire amount shall be released to the Petitioner through account payee cheque, on proper identification.
Fee of counsel for petitioner is fixed at Rs.1,000/-.
14 MVC No.5610/2014
SCCH 5 Draw award accordingly.
(Dictated to the stenographer, transcript thereof is corrected and then pronounced by me in the Open Court on this the 11th day of October, 2017) (ROOPA K.N.) VIII ADDL. SCJ & XXXIII ACMM, MEMBER, MACT, BENGALURU.
::A N N E X U R E::
LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER:-
PW-1 : Sri. Rajesh B.G. PW-2 : Dr. Kiran
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONER:-
Ex.P.1 : Copy of FIR with Complaint Ex.P.2 : Copy of Spot Mahazar Ex.P.3 : Copy of Sketch Ex.P.4 : Copy of IMV Report Ex.P.5 : Copy of Wound Certificate Ex.P.6 : Copy of Charge Sheet Ex.P.7 : Total 3 Prescriptions Ex.P.8 : Total 17 Medical Bills Ex.P.9 : Attested copy of Ration Card Ex.P.10 : Attested copy of State Bank of India SB Account Pass Book Ex.P.11 : Total 2 X-rays Ex.P.12 : Notarized copy of Employment ID Card Ex.P.13 : Notarized copy of Letter of Employment Ex.P.14 : Notarized copy of Ration Card 15 MVC No.5610/2014 SCCH 5 Ex.P.15 : Police Intimation Ex.P.16 : Admission Record LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENTS:-
-NIL-
LIST OF DOCUMENTS MARKED ON BEHALF OF THE RESPONDENTS:-
-NIL-
(ROOPA K.N.) VIII ADDL. SCJ & XXXIII ACMM, MEMBER, MACT, BENGALURU.