Bangalore District Court
Shri Manjunath vs Ahri Anantha @ Ananthanarayana on 26 April, 2019
IN THE COURT OF III ADDL. JUDGE AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, BENGALURU. (SCCH-18)
Dated: This the 27th day of April 2019
Present: SRI.MAHANTESH S.DARGAD
B.Sc., LL.B.,
III ADDL. JUDGE &
MEMBER, MACT
COURT OF SMALL CAUSES,
BANGALORE.
M.V.C.No.331/2016
Petitioners Shri Manjunath,
Son of Krishnappa,
Aged about 21 years,
Residing at Ward No.1,
No.117/3, N.G.R. Layout,
Bommanahalli,
Madivala,
Bengaluru-560 068.
(By Pleader Shri Daniel Jairaj)
V/s
Respondents 1. Ahri Anantha @ Ananthanarayana
Bhovi,
Son of Narasinga Rao,
Aged about 34 years,
S.12, Lake View Residency,
Kodichikkanahalli,
Bengaluru City.
(Exparte)
2. Royal Sundaram Alliance Insurance
Co. Ltd.,
2 SCCH-18 MVC 331/2016
No.30, 3rd floor,
J.N.R.C.T. Centre,
Rajaram Mohan Ray Road,
Sampangiram Nagar,
Bengaluru.
(By Pleader Shri K.P.)
3. Shri G.K.Moorthy,
Son of Ramanna,
C/o Nageshwarar Rao Bros,
CBSGUNJ, Gangavathi,
Koppal District.
(RC Owner of motor cycle No.KA-
37-E-1546)
(Exparte)
4 The Manager,
United India Insurance Co. Ltd.,
Krushi Bhavan, Hudson Circle,
Corporation Circle,
Bengaluru.
Policy
No.070401/31/11/02/00012168
valid from 4.2.2012 to 3.2.2013.
(By Pleader Shri H.G. Srinivas)
J U D G M E N T
The petitioner has filed this claim petition against the respondents U/S. 163-A of M.V. Act for seeking compensation of 3 SCCH-18 MVC 331/2016 Rs.8,00,000/- for the injuries sustained by him in a road traffic accident.
2. The brief contents of petition are as under:
On 13.7.2012 at about 6.30 p.m., the petitioner was proceeding in a motor cycle baring No.KA-37/3/1546 as a pillion rider and one Abhisheik was riding the said motor cycle slowly and cautiously, when they reached near Maseedi, NGR Layout, Viratnagar, Bengaluru, the driver of the car bearing No.KA-41-M- 4463 drove the same in a rash and negligent manner and lost the control over the vehicle and dashed against the motor cycle. As a result, petitioner fell down and sustained grievous injuries. Immediately he was shifted to St.John's Medical College Hospital, Bengaluru, wherein he was admitted as an inpatient .
3. The contention of the petitioner is that, he was hale and healthy at the time of accident, aged about 21 years, doing tailoring work and getting a sum of Rs.40,000/- per annum The 4 SCCH-18 MVC 331/2016 accident occurred due to the involvement of both the vehicle and as such, the respondents are jointly and severally liable to pay compensation to the petitioners. Contending the above facts, they pray to grant for compensation with interest and cost.
4. In response to the petition notice, the respondent No.1 and 3 have not appeared before the court and placed exparte. The respondent No.2 and 4 have appeared through their counsel and filed their written statement.
5. The brief contents of written statement of respondent No.2 are as under:
The respondent No.2 has contended that the petition filed by the petitioners is not maintainable either in law or on facts. This respondent has admitted about the issuance of policy in respect of car bearing No.KA-41-M-4463 and the policy is valid as on the date of accident and the liability if any is subject to the terms and conditions mentioned in the policy. Further contended that neither the owner nor the jurisdictional police have complied 5 SCCH-18 MVC 331/2016 the mandatory provisions of S.134© and S.158(6) of the MV Act in furnishing the better particulars. Further contended that the accident occurred due to the sole negligence of the motor cycle. The driver of the car had no valid and effective driving licence as on the date of accident. Further the respondent No.2 has denied the age, occupation and income of the petitioner. Further contended that the compensation claimed by the petitioner is highly excessive, exorbitant and without any basis. Contending the above facts, he prays to dismiss the petition with cost.
6.The brief contents of written statement of respondent No.4 are as under
The respondent No.4 has contended that the petition filed by the petitioner is not maintainable either in law or on facts. This respondent has stated that the policy in respect of vehicle bearing NO.KA-37-E-1546 is a liability policy only, the policy does not cover the risk of pillion rider as such, there is violation of terms and conditions of the policy. Further contended that in FIR clearly 6 SCCH-18 MVC 331/2016 mentioned that there are 3 members were traveling in the said motor cycle and they are in drunken state. As per FIR Mani is the rider of the motor cycle, but one Abhishek has been chargesheeted. It clearly shows that the rider of the motor cycle was not possessing valid and effective driving licenceFurther contended that neither the owner nor the jurisdictional police have complied the mandatory provisions of S.134© and S.158(6) of the MV Act in furnishing the better particulars. Contending the above facts, he prays to dismiss the petition with cost.
7. In order to prove their case, the petitioner has examined himself as PW1 and got marked the documents at Ex.P1 to Ex.P12 and Medical record keeper is examined as PW2 and got marked the documents at Ex.P13 to Ex.P17.
8. To disprove the case of the petitioners and to prove the defence, the respondent No.2 has examined its official as RW1 and got marked the documents at Ex.P1 to Ex.P5 and Administration officer of the respondent No.4 company examined as RW2. 7 SCCH-18 MVC 331/2016
9. Heard the arguments.
10. On the basis of above pleadings, the following issues were framed:
Recasted Issue No.1: Whether the petitioner prove that he sustained grievous injury in a motor vehicle accident that was taken place on 13.7.2012 at about 6.30 p.m. near Maseedi, NGR layout, Viratnagara, Bengaluru due to the involvement of the vehicles bearing No.KA-37-E-1546 and KA-41- M-4463?
2)Whether the petitioner is entitled for compensation as prayed? if so, at what rate and from whom?
5)What order or award?
11. My findings to the above issues are as under:
Recasted Issue No.1: In the Affirmative Issue No. 2: Partly Affirmative Issue No.5: As per final order for the following:
R E A S O N S
12. Recasted Issue No.1 : During the course of arguments, the learned counsel for the petitioner argued by reiterating the contents of petition and also evidence put forth by 8 SCCH-18 MVC 331/2016 PW1. The petitioner have proved their case as contended in the petition by producing oral and documentary evidence. Accordingly, he prays to allow the petition.
13. The contention of the respondent No.2 is that the petition was not maintainable as the FIR was registered against the rider of the motor cycle bearing No.KA-37-E-1546 and after thorough investigation the I.O. has filed the charge sheet against the rider of the motor cycle and hence, this respondent being the insurer of the said car, is not liable to pay the compensation.
14. On rival contention urged by both the counsel, I, intend to discuss the case on merits.
15. On perusal of the evidence available on records, it reveals that, to prove their case, the petitioner No.1 has examined himself as PW1. PW1 in his evidence reiterated the averments of the petition. Further in support of his evidence he has produced documents and same are marked as Ex.P1 to Ex.P5 such as copy of 9 SCCH-18 MVC 331/2016 FIR with complaint, spot mahazar, IMV report and wound certificate. On perusal of Ex-P1 complaint has been lodged by Ananth Son of Narasinge Rao and based on the complaint FIR came to be registered by Banasawadi Traffic police station in Cr.No.203/2012 for the offences punishable us/ 279 and 337 of IPC. On perusal of Ex.P2 and Ex.P3 mahazar and sketch also corroborate the Ex.P1. On perusal of IMV report at Ex.P4 reveals that both the vehicle got damaged.
16. In order to disprove the contention of the respondent No.2, the counsel for the petitioner has argued that since the petition is filed u/s 163-A of the M.V. Act. Hence, petitioner need not prove the negligence of the rider of the motor cycle and only involvement of the vehicle is sufficient to claim for compensation us/ 163-A of the M.V. Act.
17.The counsel for the respondent No.2 has argued that petition was not maintainable as the FIR was registered against the 10 SCCH-18 MVC 331/2016 rider of the motor cycle bearing No.KA-37-E-1546 and after thorough investigation the I.O. has filed the charge sheet against the rider of the motor cycle. He has produced the documents marked at Ex.R1 to Ex.R5 such as authorization letter, charge sheet, copy of order sheet in MVC 2114/2013 and petition copy in MVC 2114/2013 and insurance policy with terms and conditions.
18. On perusal of charge sheet marked at Ex.R2, the I.O. has charge sheeted against the rider of the motor cycle Abhisheik for the offences punishable u/s 279 and 338 of IPC.
19. The counsel for the respondent has relied the decision reported in AIR 2003 Karnataka 258 in case of P.S.Somaiah and another Vs. The Director, Bengaluru Diary and others and 2009 ACJ 700 in case of Durai Raj and others Vs. Tamil Nadu State Transport Corporation Ltd and others. In which it is observed that motorcyclist had two pillion riders sustained injuries and motor cyclist admitted that he did not posses a valid driving 11 SCCH-18 MVC 331/2016 licence---Pillion riders with the knowledge of this fact had chosen to travel on the vehicle, three persons were riding on the motor cycle against the permitted capacity of two. The injured has also contributed to the cause of accident.
20. At this juncture this court has drawn the attention on the decision of our own Hon'ble High Court of Karnataka, Circuit Bench at Gulberga in between Branch Manager, reported in 2013 ACJ 2304 in between United India Insurance Co.Ltd., Vs. Lalitabai and others in which it is held that;
Motor Vehicles Act, 1988, section 163-A claim application---Maintainability of - Negligence---Collision between two wheeler and truck resulting in death of two wheeler rider--- evidence on record and particularly FIR indicated that the accident occurred due to negligence of the deceased---No dispute about involvement of the truck---Whether claimants are entitled to compensation without a finding negligence---Held:
yes.12 SCCH-18 MVC 331/2016
21. On perusal of the said decision it is observed that claimants are entitled to compensation without a finding negligence
22. Another decision of our Hon'ble High Court of Karnataka at Bengaluru, reported in 2013 ACJ 1492 in between Sanaulla and another Vs. Divisional Manager, Bengaluru Metropolitan Transport Corporation Motor Vehicles Act, 1988, section 163-A Claim application---Negligence---Accident with Corporation bus resulting in death of motor cyclist and pillion rider---Claimants filed claim against corporation u/s 163-A contending that accident occurred due to rash and negligent driving of bus---Claimants further contended that they need not prove negligence of bus driver---Specific case of Corporation is that motor cyclist at high speed lost control over motor cycle, dashed against road median divider, both riders on motor cycle fell on the other side of the road, while bus was coming from opposite direction and its driver could not anticipate that 13 SCCH-18 MVC 331/2016 both riders would fall on other side of the road-
--Corporation is in no way responsible for the accident and claim application is not maintainable--Tribunal found that claimants proved the accident, they need not prove negligence of the bus driver and awarded compensation----Tribunal's finding upheld.
23. On perusal of the said decision it is observe that once claimants proved the involvement of the vehicle in the accident, they need not prove the negligence of the other side of the vehicle driver.
24. Another decision of the Hon'ble Supreme Court reported in 2013 ACJ 2856 in between United India Insurance Company Ltd., Vs. Sunil Kumar and another in which it is held that;
Motor Vehicles Act, 1988, section 163-A -
Claim application---Maintainability of --- Negligence of victim---Insurance Company resisted the claim on the ground that injured who was driving the vehicle was negligent---Tribunal 14 SCCH-18 MVC 331/2016 awarded compensation for the injuries sustained by claimant----Appeal by insurance company dismissed by High Court---Liability under section 163-A is on the principle of no fault---
Legislature never wanted the claimant to plead or establish negligence of owner or driver---No provision in section 163-A for apportionment of liability----Whether owner or insurance company can be permitted to prove contributory negligence or default or wrongful act on the apart of victim or claimant---Held: no ; otherwise it would defeat the very object and purpose of the provision;
25. On perusal of the said judgment it is observed that compensation claimed u/s 163-A legislature never wanted the claimant to plead or establish negligence of owner or driver, otherwise it would defeat the very object and purpose of the provision.
15 SCCH-18 MVC 331/2016
26.Another decision of the Hon'ble Supreme Court reported in 2018 ACJ 1 in between United India Insurance Co.Ltd., Vs. Sunil Kumar and another', which reads thus;
Motor Vehicles Act, 1988, section 163-A (1) ---claim application---Negligence of victim--
-Whether in a claim proceedings under section 163-A is it open to the insurance company to raise the defence/plea of negligence of victim--- Held; No; permitting the insurance company to raise defence of negligence would bring proceedings under section 163-A at par with proceedings under section 166 which would not only be self-contradictory but also defeat the very legislative intention.
27. On perusal of the said decision it is observed that S. 163-A (2) of the Act, does not specifically exclude a possible defence of the insurer based on negligence of the claimant as contemplated by section 140(4) to permit such defence to be introduced by the insurer and/or to understand the provisions of 16 SCCH-18 MVC 331/2016 section 163-A of the Act to be contemplating any such situation would go contrary to the very legislative object behind introduction of section 163-A of the Act, namely, final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability was taking an unduly long time. For the said reasons, in a proceeding under section 163-A of the Act it is not open for the insurer to raise any defence of negligence on the part of the victim.
28. In the instant case, though the FIR registered against the rider of the motor cycle bearing No.KA-37-E-1546, even if the charge sheet is also filed against him, u/s 163(A) of the Act, rash and negligent need not be proved, the petitioner has to prove only involvement of the vehicle. So, as per the recent decision of the Hon'ble Supreme Court of India reported in 2018 ACJ we, grant of compensation under section 163-A of the Act on the basis of 17 SCCH-18 MVC 331/2016 structured formula is in the nature of a final award and the adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident and under section 163A of the Act, it is not open for the insurer to raise any defence of negligence on the part of the owner of the vehicle as the legislature has intention to provide compensation with out making the question of negligence an issue and that is why section 163-A of the Act has been introduced. It is no doubt that, the accident occurred due to the involvement of both the vehicles, the respondent No.2 need not raise any defence of negligence. Looking to the evidence of both the sides and the documents placed before the court it is clear that the accident occurred due to the involvement of the vehicles. Hence, I answer the Recasted issue No.1 in the affirmative.
18 SCCH-18 MVC 331/2016
29. ISSUE NO.2:- The case of the petitioner is that he met with an accident on 13.7.2012 at about 6.30 p.m. and sustained grievous injuries. Immediately he was shifted to St.John's Hospital, Bengaluru, wherein he was admitted as an inpatient. To substantiate the said fact, petitioner has produced wound certificate at Ex.P5, which discloses the following injuries;
1)Lacerated wound over the right heel region
2)Abrasion below right knee measuring 2 x 1 cm
3)Abrasion below left knee measuring 2 x 1 cm
4)Abrasion over left ankle anter aspect measuring 2 cm X 1cm
30. The doctor is of the opinion that the injury No.1 is grievous in nature and the injury No.2 to 4 are simple in nature. The petitioner has not examined the doctor. 19 SCCH-18 MVC 331/2016
31. PW2 being the Medical record keeper has produced the document marked at Ex.P13 to Ex.P17, such as out patient record, inpatient case sheet, X-ray and CD.
32. This is a petition filed under section 163(A) of M.V.Act, To compute the quantum of compensation, this court has relied the Gazette Notification of The Ministry of Road Transport and Highways Notification, New Delhi, 22nd May, 2018 S.O.2022(E)--In exercise of the powers conferred by sub-section(3) of section 163A of the Motor Vehicles Act, 1988, (59 of 1988) the Central Government, keeping in view the cost of living, hereby makes the following amendment to the Second Schedule to the said Act, viz., In the Motor Vehicles Act, 1988, for the Second Schedule, the following Schedule shall be substituted namely:-
"The SECOND SCHEULE OF S. 163A © Accidents resulting in a minor injury;20 SCCH-18 MVC 331/2016
A fixed compensation of twenty five thousand rupees shall be payable.
The notifications shall come into form on the date of its publication in the Official Gazette".
33. On applying the principles of Gazette Notification, as the petitioner has sustained one grievous injury and rest of the injuries are simple in nature and the doctor has not examined to assess the disability. Therefore, it is just and proper to award Rs.25,000/- towards injuries sustained by the petitioner in a road traffic accident.
34. LIABILITY: As this petition is u/s 163(A) of M.V. Act, involvement of the vehicle is sufficient. once claimant proved the accident, he need not prove the negligence of the other side of the vehicle driver. Therefore, I have already discussed in issue No.1 that the accident occurred due to the involvement of the vehicle 21 SCCH-18 MVC 331/2016 bearing No.KA-41-M-4463. Therefore, the petition against the respondent No.3 & 4 is deserved to be dismissed.
35. The respondent No.2 Insurance Company has admitted about the issuance of the policy in respect of car bearing No.KA- 41-M-4463 and its validity from 22.4.2012 to 21.4.2013. The accident occurred on 13.7.2012. Therefore, the respondent Nos.1 & 2 are jointly and severally liable to pay the compensation. In view of the valid insurance policy, the respondent No.2 is liable to pay the compensation with interest @ 9% P.A. from the date of petition till the date of deposit. Accordingly, I answer the issue No.2 in the partly affirmative.
36. ISSUE NO.3: In view of my findings on the above issues, I proceed to pass the following;
ORDER The claim petition filed by the petitioners U/S 163(A) of MV Act against the respondent No.3 & 4 is hereby dismissed.
22 SCCH-18 MVC 331/2016
The claim petition filed by the petitioners U/S 163(A) of MV Act against the respondent No.1 & 2 is partly allowed with costs.
The petitioners are entitled for compensation of Rs.25,000/- with interest @ 9% P.A. from the date of petition till the date of deposit.
The respondent No.1 & 2 are jointly and severally liable to pay the compensation. In view of the valid insurance policy the respondent No.2 being the insurer is liable to pay compensation to the petitioners with interest at 9% p.a. from the date of petition till the date of deposit within two months from the date of this order.
Out of the above compensation amount awarded to the petitioners together with interest, entire amount shall be released to the petitioner through account payee cheque on proper identification.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Dictated to the stenographer directly on computer, corrected by me and then pronounced in the open court on this 27th day of March 2019) 23 SCCH-18 MVC 331/2016 (MAHANTESH S.DARGAD) III ADDL. SMALL CAUSES JUDGE & XXIX ACMM BENGALURU.
ANNEXURE List of witnesses examined on petitioner's side:
PW1 Shri Manjunatha PW2 Shri Anil Kumar S
List of documents exhibited on petitioner's side:
Ex-P1 True copy of FIR with complaint
Ex-P2 True copy of Spot mahazar
Ex-P3 True copy of sketch
Ex.P4 True copy of IMV report
Ex-P5
True copy of wound certificate
Ex-P6 Discharge summary
Ex-P7 Medial bills
Ex-P8 Advance receipts
Ex-P9 Prescriptions
Ex-P10 Lab report
Ex-P11 Aadhar card
Ex-P12 X-ray
24 SCCH-18 MVC 331/2016
Ex.P13 Authorization letter
Ex.P14 Outpatient record
Ex.P15 Inpatient record
Ex.P16 Inpatient record
Ex.P17 X-ray
List of witnesses examined on respondents' side:
RW1 Shri Sandeep RW2 Shri Naveen Kumar
List of documents exhibited on respondents' side:
Ex.R1 Authorization letter
Ex.R2 True copy of charge sheet
Ex.R3 Copy of order sheet in MVC 2114/2013
Ex.R4 Petition in MVC 2114/2013
Ex.R5 Insurance policy
III ADDL.SMALL CAUSES JUDGE
& XXIX ACMM.
Bengaluru.