Bangalore District Court
Gangadharaiah vs Icici Lombard Gen Ins Co Ltd on 29 June, 2024
KABC020236232018
BEFORE THE COURT OF SMALL CAUSES AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, AT
BENGALURU
(SCCH-16)
Present: Sri. Ganapati Bhat,
B.Sc., LL.B. (Spl.). L.L.M.
X Addl. Judge, Court of Small Causes
& Member, MACT, Bengaluru.
MVC No.5696/2018
Dated: 29th June 2024
Petitioner Sri Gangadharaiah,
S/o Siddappa,
Aged about 42 years,
Residing at No.125/2,
Muddaiahnapalya Village,
Viswaneedam Post,
Bengaluru - 560 091.
(Sri Narasimhamurthy K.N.,
Advocate)
Vs.
Respondents 1. ICICI Lombard General Ins. Co.
Ltd., by its Manager,
ICICI Lombard House, 414,
Veer Savarkar Marg,
Near Siddi Vinayaka Temple,
Prabhadevi, Mumbai - 400 025.
(Insurer of Toyota Innova car
bearing No.KA-41-Z-0455
Policy No.TIL/10258551 for the
period 10-05-2015 to
09-05-2016)
(Sri S.N. Ramaswamy, Advocate)
2 (SCCH-16) MVC 5696/2018
2. ICICI Lombard Gen. Ins. Co. Ltd.,
by its Manager, No.89,
Second Floor, SVR Complex,
Hosur Main Road, Madivala,
Bengaluru - 560 068.
(Local Office of the insurer)
(Sri S.N. Ramaswamy, Advocate)
3. Sri Shivaraj,
S/o Ningaiah,
Residing at No.92,
NHCS Layout, 3rd Stage,
4th Block, Basaveshwaranagar,
Bengaluru - 560 079.
(Owner of Toyota Innova car
bearing No.KA-41-Z-0455)
(Sri M.S. Chandra Shekar Babu,
Advocate)
JUDGMENT
The petitioner has filed this petition under Section 166 of M.V. Act 1989, seeking compensation of Rs.10,00,000/- against the respondents for the injuries sustained by him due to the accident caused by the driver of the Toyota Innova Car bearing No.KA-41-Z- 0455.
2. The facts in brief stated in the petition are as under;
On 26-12-2015, at about 12.30 p.m., the petitioner was proceeding in his Hero Honda Splendor Plus 3 (SCCH-16) MVC 5696/2018 motorcycle bearing No.KA-41-EB-0634 from Bengaluru to Kunigal road. When he reached Hosapete Circle, the driver of the Toyota Innova car bearing No.KA-41-Z-0455 drove his vehicle in rash and negligent manner and dashed the two-wheeler vehicle of the petitioner. Due to the accident, the petitioner has fell down and sustained grievous injuries. The petitioner has sustained lacerated wound over left lateral mallelous, multiple lacerated wound over right forearm dorsal, fracture lower end of left tibia. Immediately after the accident, the petitioner was shifted to General Hospital, Magadi. Thereafter, he was shifted to M.C. Orthopaedic, Arthroscopy and Joint Replacement Center, Tumakuru. He was admitted as an inpatient from 27-12-2015 to 31-12-2015. He underwent surgery and has taken follow up treatment. Prior to the accident, the petitioner was hale and healthy. At the time of accident, he was aged about 42 years and working as plumber. He was earning a sum of Rs.30,000/- per month. Due to the accidental injuries, the petitioner could not do his avocation and lost his income during the period of treatment and future income also. The petitioner has 4 (SCCH-16) MVC 5696/2018 suffered permanent disablement. The petitioner has incurred a sum of Rs.1,00,000/- towards hospital charges, medicines, conveyance and nourishment. The accident was due to rash and negligent driving of the driver of the car bearing No.KA-41-Z-0455. The Magadi Police have registered criminal case against the driver of the said vehicle for the offences punishable under Section 279 and 337 of IPC. The respondents No.1 and 2 are the insurers and respondent No.3 is the owner of the offending vehicle. Hence, they are jointly and severally liable to pay compensation to the petitioner. The petitioner has sought for compensation of Rs.10,00,000/- with interest. He has prayed to allow the petition.
3. In response to the notice, the respondents No.2 and 3 have appeared through their counsels and filed their separate written statements. In response to the notice, the respondent No.1 appeared through its counsel, but it did not choose to file its written statement.
4. The facts in brief stated in the written statement of the respondent No.2 are as follows; 5 (SCCH-16) MVC 5696/2018 The respondent No.2 has denied the allegations in the petition. It has denied the involvement of the Innova car bearing No.KA-41-Z-0455. It has admitted the existence of insurance policy to the said vehicle as on the date of accident. It has denied the occurrence of the accident and manner of the accident. It has further denied the alleged rash and negligent driving of the driver of the Innova car bearing No.KA-41-Z-0455. It has stated that the accident was due to the negligence of the petitioner. It has further stated that there is delay of 7 days in lodging the complaint which is not explained in this case. It has denied the manner of accident stated in the petitioner. It has denied the age, avocation and income of the petitioner. It has further denied the alleged medical expenses, conveyance, nourishment and treatment taken by the petitioner. It has stated that the compensation claimed is exorbitant. It has stated that the respondent No.3 has not furnished the vehicle documents and particulars of the accident, hence, he has violated Section 134(c) of IMV Act. It has further stated that the police have not forwarded the documents, hence, they 6 (SCCH-16) MVC 5696/2018 have not complied Section 158(6) of IMV Act. It has stated that the petition filed is false. It has prayed to dismiss the petition.
5. The facts in brief stated in the written statement of the respondent No.3 are as follows;
The respondent No.3 has denied the allegations in the petition. He has stated that he has sold the vehicle to some other person. He has stated that as on the date of accident, the insurance policy of the vehicle was in force. He has stated that he is not liable to pay compensation. He has prayed to dismiss the petition.
6. Earlier this petition was dismissed for non- prosecution. Later, it was restored and the petition was proceeded on merits.
7. Based on the pleadings the following issues came to be framed:
1. Whether the petitioner proves that he sustained grievous injuries due to the road traffic accident alleged to have occurred on 26-12-2015 at about 12.30 p.m., due to the rash and negligent driving of the driver of the Innova Car bearing registration No.KA-41-Z-0455? 7 (SCCH-16) MVC 5696/2018
2. Whether the petitioner is entitled to compensation? If so, what is the quantum and from whom?
3. What order or Award?
8. In order to prove his case, the petitioner himself got examined as PW1 and got marked documents as Ex.P1 to Ex.P9. The official of the respondent No.1 and investigating officer got examined as RW1 and RW2 and got marked documents as Ex.R1 to Ex.R3. The respondent No.3 neither adduced any oral evidence nor produced any documents.
9. Heard arguments of the learned counsel for the petitioner and learned counsel for the respondents No.1 and 2. Perused the pleadings and evidences and materials available on record, my findings on the 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 8 (SCCH-16) MVC 5696/2018 REASONS ISSUE No.1:
10. The petitioner has contended that when he was proceeding in his Hero Honda Splendor Plus motorcycle bearing No.KA-41-EB-0634 from Bengaluru to Kunigal road, the driver of the Innova car bearing No.KA-41-Z-0455 drove his vehicle in rash and negligent manner and dashed the two-wheeler vehicle of the petitioner. It is the further contention of the petitioner that due to the accident, he has fell down and sustained grievous injuries. It is the further contention of the petitioner that immediately after the accident, he was shifted to Government Hospital, Magadi and thereafter, he was shifted to M.C. Orthopaedic, Arthroscopy and Joint Replacement Center, Tumakuru. It is further contended by the petitioner that the accident was due to rash and negligent driving of the driver of the car bearing No.KA-41-Z-0455. It is further contended by the petitioner that Magadi Police have registered criminal case against the driver of the offending vehicle for the offences punishable under Section 279 and 337 of IPC. 9 (SCCH-16) MVC 5696/2018
11. In Kusum and Others vs Satbir and Others reported in (2011) SCC 646, the Hon'ble Supreme Court has held that in a case relating to the Motor Accident Claims, the claimants are not required to prove the case as needs required to be done in a criminal trial.
12. In Parameshwari vs. Amir Chand and others reported in (2011) SCC 635, the Hon'ble Supreme Court has held that a road accident claims the strict principle of proof in a criminal case are not required.
13. In Bimla Devi and others vs. Himachal Road Transport Corporation and others reported in (2009) 13 SCC 513, the Hon'ble Supreme Court has held that the claimants were merely to establish their case on touch stone of preponderance of probability and that standard of proof on beyond reasonable doubt could not have been applied.
14. In Dulcina Fernandes and others vs. Joaquim Xavier Cruz and another ruling reported 10 (SCCH-16) MVC 5696/2018 in (2013) 10 SCC 6, the Hon'ble Supreme court has held as follows:
"7.It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pickup van as set up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt."
15. In Anita Sharma and others vs. The New India Assurance Co. Ltd., and another, ruling reported in (2021) 1 SCC 171, the Hon'ble Supreme Court has held as follows:
"Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eyewitnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true."
11 (SCCH-16) MVC 5696/2018
16. In Gurdeep Singh Vs Bhim Singh ruling reported in (2013) 11 SCC 507, the Hon'ble Supreme Court has held that in the motor accident claims, it is very difficult to get eyewitness. It has further held that even if, the eyewitnesses are available, they are not ready to come and depose in court of law for many reasons and thus, courts have to go by the oath of the claimant only.
17. Therefore, from the above rulings of the Hon'ble Supreme Court, it is clear that the strict proof of the case by the petitioner is not required and in all the MVC cases, the standard of proof required from the petitioner is preponderance of probability. The concept of proof of the case beyond reasonable doubt is not applicable in deciding the MVC cases by the Tribunal.
18. In order to prove his case, the petitioner has produced as many as 9 documents. They are marked as Ex.P1 to Ex.P9. Out of the said documents, Ex.P1 is the FIR, Ex.P2 is the complaint, Ex.P3 is the charge sheet, Ex.P4 is the panchanama, Ex.P5 is the statement of witness, Ex.P6 is the wound certificate, Ex.P7 is the 12 (SCCH-16) MVC 5696/2018 discharge summary, Ex.P8 is the prescriptions and Ex.P9 is the medical bills. In Ex.P1 and Ex.P2, it is stated that when petitioner was moving along with his wife from Bengaluru to Honnenahalli, the driver of the Innova car bearing No.KA-41-Z-0455 drove his vehicle in rash and negligent manner and dashed the two-wheeler vehicle of the petitioner. It is further stated that due to the accident, the petitioner and his wife have sustained injuries. It is further stated that the petitioner was shifted to Government Hospital, Magadi and thereafter, he was shifted to M.C. Orthopaedic, Arthroscopy and Joint Replacement Center, Tumakuru. The accident took place on 26-12-2015 and the complaint was given on 01-01-2016. The complainant has stated that since she was attending her husband, hence there is delay in lodging the complaint. The petitioner has produced the discharge summary given by the M.C. Orthopaedic, Arthroscopy and Joint Replacement Center, Tumakuru. The said document is marked as Ex.P7. In the said document, it is stated that petitioner was admitted to the hospital on 27-12-2015 and discharged on 31-12- 13 (SCCH-16) MVC 5696/2018 2015. The reasons stated by the petitioner in Ex.P2 regarding the delay in lodging the FIR is supported by the documentary evidence. As per Ex.P5, the petitioner has given the statement before the police. In Ex.P6, the injuries to the petitioner are mentioned. In Ex.P6, it is stated that the injury No.3 is grievous in nature and injuries No.1 and 2 are simple in nature. The petitioner has produced the police documents as well as medical documents. The respondents have not produced any contrary materials to show that the driver of the Innova car bearing No.KA-41-Z-0455 was not negligent at the time of accident. The respondent No.2 has produced one CD with report of a private lab. The forensic lab expert is expressed that the CD is not morphed. According to the opinion of the expert in the said lab, the CD is not morphed. However, it is not the case of the respondent No.2 that the petitioner has stated that offending vehicle is not involved in this case. It is his case that the respondent No.3 has stated that the accident was not due to negligence of his driver. Therefore, in all the documents, it is stated that the accident was due to 14 (SCCH-16) MVC 5696/2018 rash and negligent driving of the driver of the Innova car bearing No.KA-41-Z-0455.
19. The petitioner has entered into the witness box and got examined as PW1. He has re-iterated the contents of the petition in his examination-in-chief. In the cross-examination, he has denied the suggestion that the accident was due to his self fall. He has denied the suggestion that the accident was not caused by the offending car. The Legal Manager of the respondent No.1 has entered into the witness box and got examined as RW1. He has re-iterated the contents of the written statement of respondent No.2 in his examination-in- chief. RW2 is the investigator of the respondent No.1. In the examination-in-chief, he has supported the case of the respondent. But, in the cross-examination, he has admitted that the driver of the offending vehicle has pleaded guilt in criminal court. He has admitted that the police have filed the charge sheet against the driver of the Innova car. Therefore, the CD produced by the RW2 will not show that the accident was not due to the rash and negligent driving of the driver of the Innova car 15 (SCCH-16) MVC 5696/2018 bearing No.KA-41-Z-0455. The respondent No.2 has not adduced the evidence of eyewitness or investigating officer to show that the charge sheet filed is incorrect and the insured vehicle is not involved in this case. The petitioner has produced both oral and documentary evidence to show that the accident was due to rash and negligent driving of the driver of the Innova car bearing No.KA-41-Z-0455. It is admitted by the respondent No.2 that the respondent driver of the respondent No.3 has pleaded his guilt in the criminal court. In all the police documents, it is stated that the accident was due to rash and negligent driving of the driver of the offending vehicle bearing No.KA-41-Z-0455. From the oral and documentary evidence, the petitioner has proved that the accident was due to rash and negligent driving of the driver of the Innova car bearing No.KA-41-Z-0455. The petitioner has further proved that due to the accident, he has sustained grievous injuries. Hence, I answer issue No.1 in the affirmative.
ISSUE No.2:
20. As discussed above, the petitioner has proved that the accident was caused due to rash and negligent
16 (SCCH-16) MVC 5696/2018 driving of the driver of the car bearing No.KA-41-Z-0455. Therefore, petitioner is entitled to the compensation under various heads. The damages are to be assessed under two heads, they are pecuniary damages and non pecuniary damages. The pecuniary damages are those like medical, treatment, attendants, transport, actual loss of earning, future loss of earning. Non pecuniary damages includes mental and physical shock, loss of amenities, loss of expectation of life, loss of prospects of marriage. The petitioner who has sustained injuries is entitled for compensation under the following heads:
A) Towards loss of future income :
The petitioner has stated that he has sustained grievous injuries due to accident. He has further stated he has disability. But, he has not adduced the evidence of medical officer. Hence, he has not proved the disability. Therefore, no compensation is awarded towards loss of future earnings due to disability.
Medical expenses :
In this case the petitioner has sustained grievous injuries. As per Ex.P7, he has taken treatment as inpatient from 27-12-2015 to 31-12-2015 for 5 days. The
17 (SCCH-16) MVC 5696/2018 petitioner has produced 21 medical bills at Ex.P9 which are amounting to Rs.44,357/-. Therefore, the petitioner is entitled for reimbursement of total medical bills of Rs.44,357/-.
Pain and sufferings :
The petitioner has sustained grievous injuries in this case. So considering the injuries to the petitioner, an amount of Rs.50,000/- is to be awarded to the petitioner towards pain and sufferings.
Attendant charges :
As per Ex.P7 - discharge summaries, the petitioner has admitted as inpatient for 5 days from 27-12-2015 to 31-12-2015. Considering the nature of the injuries and the medical treatments, it appears that the petitioner has needed attendant for one month. Therefore, 800 x 30 i.e., Rs.24,000/- is awarded towards the attendant charges.
Food and nourishment :
The petitioner was admitted as inpatient for 5 days in M.C Orthopaedic, Arthroscopy and Joint replacement center Tumakur.He has needed special food and
18 (SCCH-16) MVC 5696/2018 nourishment for one month. Therefore, Rs.600/- per day i.e., Rs.18,000/- is awarded towards food and nourishment.
Conveyance expenses :
The petitioner is the resident of Muddaiahnapalya Village and he has taken treatment in M.C Orthopaedic, Arthroscopy and Joint replacement center Tumakur.
Hence, Rs.15,000/- is the just compensation towards conveyance.
Loss of income during laid-up period :
The petitioner has taken treatment as inpatient for 5 days. By considering the injuries and treatments taken, it appears that the petitioner has needed bed rest for one month. Therefore, Rs.15,000/- is awarded towards loss of income during laid -up period.
Loss of amenities :
The petitioner has sustained grievous injuries and there are complications to him. Therefore, awarding the compensation of Rs.15,000/- would be just and reasonable towards loss of amenities.
19 (SCCH-16) MVC 5696/2018
21. Hence, the petitioner is entitled to the compensation under different heads as follows :
1. Loss of future income Nil
2. Medical expenses 44,357-00
3. Pain and sufferings 50,000-00
4. Attendant charges 24,000-00
5. Food and nourishment 18,000-00
6. Conveyance expenses 15,000-00
7. Loss of income during laid- 15,000-00 up period
8. Loss of amenities 15,000-00 Total 1,81,357-00
22. This petition was dismissed for non-prosecution on 26-9-2019 and same is restored on 21-8-2023. Hence petitioner is not entitled to interest on the compensation from 27-09-2019 up to 20-08-2023. In all, petitioner is entitled for compensation of Rs.1,81,357/- with interest at the rate of 6% per annum from 04-10-2018 to 26-09- 2019 and from 21-08-2023 till its realization.
Liability:
23. The respondent No.3 is the owner and respondent No.1 and 2 are the insurer of the offending vehicle. The respondent No.2 has admitted the insurance policy to the offending vehicle as on the date of accident. The petitioner has proved the rash and 20 (SCCH-16) MVC 5696/2018 negligent driving of the driver of the offending vehicle. The respondent No.2 has not proved that the driver of the offending vehicle has no valid diving licence at the time of accident by adducing the cogent evidence. Therefore, the respondent No.2 being the insurer of the vehicle, it has to indemnify the respondent No.3. Therefore, the respondent No.1 to 3 are jointly and severally liable to pay the compensation. The petitioner is entitled to the compensation of Rs.1,81,357/-. Hence, I answer issue No.2 partly in the affirmative.
ISSUE No.3:
24. In view of the findings, the petition deserves to be allowed in part. Hence, the following order is passed:
ORDER The petition is partly allowed with costs.
The petitioner is entitled to compensation of Rs.1,81,357/- (Rupees one lakh, eighty one thousand, three hundred and fifty seven only) with interest at the rate of 6% p.a., from 04- 10-2018 up to 26-09-2019 and from 21- 08-2023 till its realization.
21 (SCCH-16) MVC 5696/2018 The respondents are jointly and severally liable to pay the compensation amount. However, the primary liability to pay the compensation amount is fastened on respondents No.1 and 2 -
Insurance Company and it is directed to pay the compensation amount within two months from the date of this order.
Out of the compensation amount
awarded to petitioner, 30% of the
compensation amount with
proportionate interest shall be
deposited in his name as FD in any
nationalized bank for the period of two years with liberty to draw the accrued interest periodically and the remaining 70% amount with proportionate interest shall be released to him through E-
payment on proper identification and verification.
Advocate's fee is fixed at Rs.2,000/-. Draw an award accordingly.
(Dictated to the stenographer, directly on computer, typed by him, corrected and then pronounced in the open court this the 29th day of June 2024) (Ganapati Bhat) Member, MACT, Bengaluru.
22 (SCCH-16) MVC 5696/2018 ANNEXURE Witnesses examined on behalf of petitioner:
PW1 Sri Gangadharaiah Documents marked on behalf of petitioner:
Ex.P1 Certified copy of FIR Ex.P2 Certified copy of Complaint Ex.P3 Certified copy of Charge Sheet Ex.P4 Certified copy of Panchanama Ex.P5 Certified copy of Statement of Witness Ex.P6 Certified copy of Wound Certificate Ex.P7 Discharge Summary Ex.P8 Prescriptions (7 in nos.) Ex.P9 MedicalBills (21 in nos.) Rs.44,357/-
Witnesses examined on behalf of respondents:
RW1 Sri Naveena RW2 Sri Maheshkumar H.L.
Documents marked on behalf of the respondents:
Ex.R1 Authorization Letter
Ex.R2 C.D.
Ex.R3 The report of the Proaxis Sci-tech Private
Limited with report
(Ganapati Bhat)
Member, MACT, Bengaluru.