Bangalore District Court
Syed Umer vs Hdfc Ergo General Insu.Co.Ltd on 13 December, 2016
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS TRIBUNAL,
BANGALORE CITY. SCCH-14
PRESENT: Basavaraj Chengti., B.Com.,LL.B.,(spl)
Member, MACT,
XVI ADDL. JUDGE,
Court of Small Causes,
BANGALORE.
MVC No.3491/2015
Dated this the 13th day of December 2016
Petitioner/s : Syed Umer
S/o Late Syed Malik
Aged about 57 years,
R/at No.22, 1st main,
3rd cross, SRK Garden
Jayanagar,
Bengaluru-560041
V/s (By pleader Sri GM)
Respondent/s 1.HDFC ERGO General Insu.Co.Ltd
No.25/1, II Floor, Shankar Narayan
Building, M.G.Road,
Bengaluru-560001.
2.Nagesh,
S/o Chikkaveeraiah
Major
R/at Sathanur Road,
Mahadeshwaranagar
Channapatna,
Ramanagara District.
(R1-By pleader Sri VSN
R2- Exparte)
SCCH-14 2 MVC NO.3419/2015
JUDGMENT
This petition is filed by the petitioner U/s 166 of Motor Vehicles Act claiming compensation of Rs.4,00,000/- for the injuries sustained by him in a road traffic accident.
2. Brief averments of the petition are as under:
The petitioner was aged 57 years, was a cloth merchant and earning Rs.25,000/- per month. On 10.05.2015 at about 2.30 pm, the petitioner was standing by the side of the footpath on C.K.Road, in front of Syed Isa's house, Channapatna Town, at that time, motorcycle bearing No.KA-42-E-6383 ridden by its rider at high speed in a rash and negligent manner came and dashed to the petitioner. Due to which, the petitioner was thrown on the road and sustained severe injuries to his face. Immediately, he was shifted to Channapathna Government Hospital, wherein first aid was done and thereafter, he was shifted to Rajarajeshwari Medical College Hospital, Bengaluru wherein he was treated as an inpatient for 11 days and fractures were treated conservatively. The doctor has advised the petitioner not to involve in any mental strain work for six months. Channapathan police have registered Cr.No.43/2015 against the rider of motorcycle bearing No.KA-42-E-6383 for the offences punishable U/s 279 and 338 of IPC. The respondents are the insurer and owner of the said vehicle and they are jointly and severally liable to pay compensation. Hence, the petitioner has filed this petition for a compensation of Rs.4,00,000/- with Court cost and interest.SCCH-14 3 MVC NO.3419/2015
3. In pursuance of the notice, the respondent No.1 has appeared before the Court through his counsel and filed his objection statement. The respondent No.2 has not appeared before court in spite of deemed service of notice which was published in news paper and hence, he is placed exparte. The respondent No.1 has denied the case of the petitioner as false. He has admitted the issuance of policy in favour of the respondent No.2 in respect of motorcycle bearing No.KA-42-E-6383, but he has denied the involvement of said motorcycle in the alleged accident and the manner of accident. He has contended that the accident has occurred due to negligence of the petitioner himself who was darting across the road without observing the flow of traffic on the busy road, that the injury caused to the petitioner was simple which was cured and the petitioner is leading normal life, that a minor was riding the insured motorcycle without holding driving license with 2 pillion riders at the time of accident and as such, there is violation of terms and conditions of the policy, that the compensation claimed by the petitioner is excessive, exorbitant and same is against the principles of computation of damages, that claim is bad for non compliance of Sec.158(6) and 134 (c) of the M.V.Act, that there is contributory negligence on the part of the petitioner and degree of his negligence is on higher side. Hence, he has sought for dismissal of the petition with cost.
4. On the basis of above pleadings, the following issues were framed:
SCCH-14 4 MVC NO.3419/2015ISSUES
1. Whether the petitioner proves that he sustained grievous injuries in the nature of permanent disablement on 10.05.2015 at about 02.30 p.m., on C.K. Road, In front of house of Syed Isa, Channapatna Town, Ramanagar District, in an accident arising due to rash and negligent riding of rider of Bajaj CT-100 Motorcycle bearing No.KA-42-
E-6383?
2. Whether the petitioner is entitled for compensation? If so, how much and from whom?
3. What Order or Award?
5. During the evidence, the petitioner has examined himself as PW.1 and examined two witnesses as PW.2 and 3. He has got marked documents as Ex.P1 to P13. The respondent No.1 has examined two witnesses as RW-1 and 2. He has got marked documents as Ex.R1 to 6.
6. Heard both sides. The counsel for petitioner filed written arguments and relied upon following rulings;
1. 2011 ACJ 911 (Ravi Vs Badrinarayan & Ors)
2. ILR 2003 KAR 493 (Mallamma Vs Balaji & Ors)
3. 2011 AIR SCW 1551 (Parmeshwari Vs Amirchand & Ors ) The respondent No.1 has cited following rulings:
1. 2008 ACJ 2855 (UIICL Vs Rakesh Kumar Arora & Ors )
2. MFA No.384/2010 (UICL Vs M.S.Raghu)
3. ILR 2009 KAR 3562 (Veerappa & Anr Vs Siddappa & Anr) SCCH-14 5 MVC NO.3419/2015 I have gone through the written arguments and rulings.
I have perused the records.
7. My findings on the above issues are as under:-
Issue No.1: In Affirmative.
Issue No.2 : In Affirmative, For Rs.80000/-
from the respondent No.1.
Issue No.3 : As per final order :
for the following:
REASONS
8. ISSUE NO.1: The petitioner is the victim. He has asserted that he sustained grievous injury in a road traffic accident arising due to rash and negligent riding of the rider of Motorcycle bearing No.KA-42-E-6383. He has examined himself, Dr.Krishna Kumari and Syed Nissar as PW-1 to 3 and got marked documents as Ex.P-1 to 13 to prove his case. On the other hand, the respondent no.1 has denied the case of the petitioner as false and contended that the insured vehicle was not involved in the alleged accident, but it is falsely implicated in the case for getting compensation, that the petitioner has sustained simple injury by an old scooter ridden by a minor with 2 pillion riders, that the petitioner by colluding with the respondent no.2 and police, implicated the insured vehicle and changed its rider, that there was sole or contributory negligence on the part of the petitioner of the occurrence of accident, that the insured has violated the terms and conditions of the policy and as such, he is not liable to indemnify the insured. He has examined his officer and investigator as RW-1 and 2 and got marked documents as Ex.R-1 to 6 to prove SCCH-14 6 MVC NO.3419/2015 his defence and to disprove the case of the petitioner. The respondent no.2 is exparte.
9. Evidence of PW-1: Syed Umar is the replica of averments of the petition, whereas evidence of RW-1: Jayashekar is as per the defence of the respondent no.1. PW-2:Dr.Krishna Kumari has produced IP record of Rajarajeshwari hospital pertaining to the petitioner and deposed in that regard. Case sheet produced by her is marked as Ex.P-13. Since, evidence of PW-2 is only regarding production of document, her oral evidence is not of much importance. PW-3: Syed Nissar is an eye witness and he has supported the version of PW-1 as to manner of accident. RW-2:
H.K.S.Prasanna is the investigator and he has deposed regarding investigation done by him for the respondent no.1. He and RW-1 have stated that the petitioner and charge sheeted rider have stated that the accident has occurred due to rash and negligent riding of rider of motorcycle who was aged 16-17 years and there were 3 persons on the motorcycle. Their evidence is concentrated on implication of rider.
10. Copies of police records are at Ex.P-1 to 5 which reveal that Channapatna East police have registered Cr.No.43/15 on 16.5.2015 at 4.00 p.m., on the basis of information given by Syed Shaji Taha, investigated the matter and filed charge sheet against Irfan Pasha, the rider of Motorcycle bearing No.KA-42-E-6383 for the offences punishable U/s 279 and 338 of IPC. The police have drawn spot panchanama which reveals the topography of the place of accident. There is no dispute regarding place of accident. The police have detained Motorcycle bearing No.KA-42-E-6383 under panchanama SCCH-14 7 MVC NO.3419/2015 and subjected it to inspection. Vehicle detention panchanama was drawn on 17.5.2015. The charge sheeted rider was arrested on 18.5.2015. The motorcycle was inspected on 21.5.2015. The said vehicle was not damaged, but that itself is no ground to believe that the vehicle is falsely implicated. Lodging of FIR, detention of vehicle and filing of charge sheet are not challenged. Complaint regarding false claim is filed by the respondent no.1 after service of notice in this case. Copy of complaint is at Ex.R-2, postal acknowledgements are at Ex.R-3, CD is at Ex.R-4 and transcription of CD is at Ex.R-4(a). On perusal of complaint at Ex.R-2, it reveals that the respondent no.1 has impliedly admitted the involvement of Motorcycle bearing No.KA-42-E-6383 in the accident, but he has specifically contended about implication of rider. RW-1 and 2 have also impliedly admitted the involvement of said motorcycle in the accident. Therefore, false implication of Motorcycle bearing No.KA-42- E-6383 in the case is ruled out.
11. There was a delay of 6 days in lodging complaint. But, there was no delay in admitting the petitioner to hospital. History of his injury is shown as RTA in medical records. Copy of wound certificate and MLC extract at Ex.P-6 and Ex.R-1 confirm the same. Evidence of RW-1 and 2 coupled with the averments of complaint at Ex.R-2 are sufficient to believe that the petitioner met with an accident and sustained injury due to rash and negligent riding of rider of Motorcycle bearing No.KA-42-E-6383. Rulings cited by the petitioner are applicable to this case. So, delay in lodging complaint is acceptable and condonable. But, defence of the respondent no.1 is that the motorcycle was not ridden by Irfan Pasha, but it was ridden SCCH-14 8 MVC NO.3419/2015 by his minor son Mubarak Pasha who was not holding driving license. Charge sheet filed by the police, evidence of PW-1 and 3 are contradictory to his defence. RW-1 and 2 are silent regarding riding of motorcycle by Mubarak Pasha, but have stated that rider of motorcycle was aged around 16-17 years. Non disclosure of name of Mubarak Pasha by them indicates that they seem to be not sure about role of Mubarak Pasha. Complaint at Ex.R-2 is dt. 26.3.2016. The respondent no.1 has filed his written statement on 21.6.2016. RW-1 has given evidence on 17.8.2016 and RW-2 has given evidence on 8.11.2016. Name of Mubarak Pasha is clearly mentioned in complaint at Ex.R-2, but same is not mentioned in pleading and evidence of the respondent no.1. RW-1 has shown ignorance regarding action taken on complaint at Ex.R-2. These aspects create doubt regarding involvement of Mubarak Pasha in the accident.
12. Entire defence of the respondent no.1 regarding change of rider of motorcycle is based on evidence of RW-2 and contents of Ex.R-4 and Ex.R-4(a). Ex.R-4(a) is true transcription of contents of Ex.R-4. The petitioner has not disputed the correctness of same. But, it is to be noted that RW-2 is silent regarding material facts pertaining to Ex.R-4. He has not stated that who has recorded the video, when it was recorded, which instrument was used for recording the same, whether Ex.R-4 CD is the original video or copy of it, if it is a copy, by which instrument it was copied, whether recording was done with intimation and consent of the persons whose video was shot or whether it was a sting operation. Evidence of RW-1 and 2 does not give answers to these material questions.
SCCH-14 9 MVC NO.3419/2015Hence, their evidence and contents of Ex.R-4, 4(a) become unacceptable.
13. Secondly, Ex.R-4 is an electronic record. Sec.65A of Evidence Act prescribes that contents of such electronic record may be proved in accordance with the provisions of Sec.65B of Evidence Act. Sec.65B of Evidence Act provides that if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned U/s 65B(2) of the Evidence Act;and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
14. The respondent no.1 has not complied the above conditions before producing the CD at Ex.R-4 and transcription at Ex.R-4(a). Hence, said evidence is inadmissible. Therefore, oral evidence of RW-1 and 2 remained uncorroborated as to implication of rider. In view of charge sheet filed by the police, their evidence is liable to be rejected. Rulings relied by the respondent no.1 can not be applied to this case. Charge sheet is prima facie evidence as to negligence of Irfan Pasha for the occurrence of accident. Evidence of PW-1 and 3 establish the involvement of said Irfan Pasha in the accident and occurrence of accident due to his negligence. There is no oral or documentary evidence as to sole or contributory negligence of the SCCH-14 10 MVC NO.3419/2015 petitioner. Except bare denials, nothing is elicited from PW-1 and 3 to disbelieve their evidence as to riding of offending motorcycle by the charge sheeted rider Irfan Pasha.
15. Copy of wound certificate, discharge summary, scan report, OPD book and case sheet are at Ex.P-6 to 9 and 13 corroborate the evidence of PW-1 and disclose that the petitioner has sustained fracture of right zygomatic arch. It was treated conservatively. The injury was described as grievous. There is nothing on record to disbelieve the medical records. There is no evidence to support the contention of the respondent no.1 that the injury caused to the petitioner was simple. I am of the opinion that the accident has occurred due to negligence of the rider of Motorcycle bearing No.KA- 42-E-6383, that Irfan Pasha was riding the said motorcycle at the time of accident and the petitioner sustained grievous injury in the said accident. Hence, I hold that the petitioner has succeeded to prove this issue. The respondent no.1 has failed to establish his defence as to false implication of insured vehicle, change of rider of motorcycle and occurrence of accident due to sole or contributory negligence of the petitioner. Consequently, I answer the issue in affirmative.
16. ISSUE NO.2: The petitioner has pleaded that he sustained grievous injury in the accident and suffered permanent disability. He has sought for awarding compensation of Rs.4,00,000/- with cost and interest. The respondent no.1 has denied the case of the petitioner as false and contended that the compensation claimed by the petitioner is excessive and exorbitant. PW-1: Syed Umar has SCCH-14 11 MVC NO.3419/2015 deposed about injury caused to him, about treatment given to him, about amount spent by him, about effect of injury and disability caused to him. His evidence is partly supported by medical records at Ex.P-6 to 13. RW-1 and 2 have deposed about false implication of rider, but their evidence is unacceptable. There is no evidence to rebut the oral and documentary evidence adduced by the petitioner regarding his injury.
17. Evidence of PW-1 as to his age is supported by copy of voter ID at Ex.P-10. Date of birth of the petitioner is shown as 28.10.1957 in voter ID. It means, he was aged 57 years as on the date of accident. There is no corroboration to evidence of PW-1 as to his occupation and income. However, there is nothing on record to disbelieve the oral evidence of PW-1 as to his occupation. Hence, it can be believed that the petitioner was a businessman. In the absence of positive evidence, income of the petitioner shall have to be assessed notionally. If his income is considered as Rs.8,000/- p.m., it will meet the ends of justice.
18. Evidence of PW-1 and contents of wound certificate, discharge summary, scan report, OPD book and case sheet at Ex.P-6 to 9 and 13 reveal that the petitioner has sustained following injuries:
1. Haemorrhagic contusion of left temporal lobe
2. Linear undisplaced fracture of right zygomatic arch
19. The petitioner was treated as an inpatient in Rajarajeshwari hospital for 12 days. He was treated conservatively. He took follow up treatment in the same hospital. As per OPD book, his last follow up was on 25.7.2015. He might have taken rest during SCCH-14 12 MVC NO.3419/2015 said period. Total laid up period comes to 2½ months. During the said period, the petitioner might have lost income and might have spent amount for nourishment, conveyance and attendant charges apart from incurring medical expenses. There is no evidence as to nourishment, conveyance and attendant charges, but the petitioner has got marked medical bills amounting to Rs.4,062/- as Ex.P-11. Prescriptions at Ex.P-12 support the medical bills. There is nothing on record to disbelieve the bills. Hence, the petitioner is entitled for a compensation of Rs.30,000/- towards pain and sufferings, Rs.5,000/- towards medical expenses, Rs.10,000/- towards nourishment, conveyance and attendant charges, Rs.20,000/- towards loss of income during laid up period.
20. The petitioner has not examined any doctor and not produced any medical certificate to prove that he sustained permanent disability and that his earning capacity is reduced. Evidence of PW-2 is not helpful to prove that any disability is caused to the petitioner. There is no evidence that the fracture injury is not cured and fracture is not united. Since, it was an undisplaced fracture, it should have been united. There is no medical evidence as to requirement of treatment to the petitioner in future. I am of the opinion that the petitioner did not suffer loss of earning capacity and the petitioner does not require any treatment in future. Therefore, he is not entitled for any compensation towards loss of future income and towards future medical expenses. However, he has got some difficulties which may persist in future for short period resulting in temporary loss of amenities. Hence, the petitioner is entitled for a compensation of Rs.15,000/- towards temporary loss of amenities.
SCCH-14 13 MVC NO.3419/2015Thus, the petitioner is entitled for just and reasonable compensation as under:
1. Pain and sufferings Rs. 30,000/- 2 Medical expenses Rs. 5,000/- 3 Nourishment, conveyance and Rs. 10,000/-
attendant charges 4 Loss of income during the Rs. 20,000/-
period of treatment and bed rest 5 Temporary loss amenities Rs. 15,000/-
Total Rs.80,000/-
Hon'ble Supreme Court in Civil Appeal No.3238/2015
(arising out of SLP (C) 1865/2014 (Chanderi Devi and Anr., Vs. Jaspalsingh & Ors.,) and Hon'ble High Court in MFA No.2326/2016 (Annapurna & Ors., G.Ashawathraya & Anr.,) have held that rate of interest shall be @9% p.a., Hence, I hold that the petitioner is entitled for interest @9% p.a., from the date of petition till the date of payment.
Liability
21. The respondents are the insurer and owner of Motorcycle bearing No.KA-42-E-6383. The petitioner has proved that he suffered grievous injury in an accident arising due to rash and negligent riding of rider of said motorcycle. The respondent no.1 has failed to prove that the rider of motorcycle is changed for getting compensation. Hence, the respondents are jointly and severally liable to pay compensation and interest as stated above. The policy is admitted. It was in force on the date of accident. There is no evidence SCCH-14 14 MVC NO.3419/2015 as to violation of policy conditions by the insured. Hence, the respondent no.1 is liable to indemnify the respondent no.2 and to compensate the petitioner. Consequently, I answer the issue as above.
22. ISSUE NO.3: In view of above discussion and findings, I proceed to pass the following:
ORDER The petition filed by the petitioner U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioner is entitled for a compensation of Rs.80,000/- with interest @ 9% per annum from the date of petition till the date of payment.
The respondents are jointly and severally liable to pay to the petitioner a compensation of Rs.80,000/- with interest. In view of policy, the respondent No.1 is directed to deposit the amount before court within one month from the date of order.
After deposit, entire amount with interest shall be released in favour of the petitioner through account payee cheque with proper identification.
Advocate's fee is fixed at Rs.2,500/-.SCCH-14 15 MVC NO.3419/2015
Draw award accordingly.
(Dictated to the Stenographer, directly on computer and then corrected by me and pronounced in the open court, on this the 13th day of December 2016.) (Basavaraj Chengti) XVI ADDL.JUDGE, Court of Small Causes & MACT, Bangalore.SCCH-14 16 MVC NO.3419/2015
ANNEXURE WITNESSES EXAMINED AND DOCUMENTS MARKED FOR PETITIONERS AND RESPONDENTS:
PW.1 Syed Umer PW.2 Dr.Krishna Kumari PW.3 Syed Nissar Respondent' s RW.1 Jayashankar RW.2 H.K.S.Prasanna Ex.P1 - Copy of FIR with complaint Ex.P2 - Copy of Spot panchanama
Ex.P3 - Copy of vehicle detention panchanama Ex.P4 - Copy of IMV report Ex.P5 - Copy of charge sheet Ex.P6 - Copy of wound certificate Ex.P7 - Discharge summary Ex.P8 - scan report Ex.P9 - OPD book Ex.P10- Copy of Voter ID Ex.P11- Medical bills (15 in nos. amounting to Rs.4,062/-) Ex.P12-Prescriptions (11 in nos) Ex.P13-case sheet Respondent's Ex.R1 - MLC extract Ex.R2 - Copy of complaint Ex.R3 - Postal Acknowledgments (3 in nos.) Ex.R4 - CD Ex.R4(a)- Transcription of CD Ex.R5- Authorization letter Ex.R6- copy of policy XVI ADDL.JUDGE, Court of Small Causes & MACT, Bangalore.SCCH-14 17 MVC NO.3419/2015
Perused records.
It is noticed that two documents are marked as Ex.R1. Hence, marking of one of them shall have to be changed. Therefore, marking of copy of policy is changed and it is renumbered as Ex.R6.
For judgment by 13.12.2016.
XVI ADDL. JUDGE SCCH-14 18 MVC NO.3419/2015 Dt.13.12.2016 P-GM R1-VSN R2 -Exparte For Judgment Order pronounced in open court vide separate judgment.
ORDER The petition filed by the petitioner U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioner is entitled for a compensation of Rs.80,000/- with interest @ 9% per annum from the date of petition till the date of payment.
The respondents are jointly and severally liable to pay to the petitioner a compensation of Rs.80,000/- with interest. In view of policy, the respondent No.1 is directed to deposit the amount before court within one month from the date of order.
After deposit, entire amount with interest shall be released in favour of the petitioner through account payee cheque with proper identification.
Advocate's fee is fixed at Rs.2,500/-. Draw award accordingly.
XVI ADDL.JUDGE, Court of Small Causes & MACT., Bangalore.SCCH-14 19 MVC NO.3419/2015
AWARD SCCH NO.14 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA : BANGALORE CITY MVC No.3491/2015 Petitioner/s : Syed Umer S/o Late Syed Malik Aged about 57 years, R/at No.22, 1st main, 3rd cross, SRK Garden Jayanagar, Bengaluru-560041 V/s (By pleader Sri GM) Respondent/s 1.HDFC ERGO General Insu.Co.Ltd No.25/1, II Floor, Shankar Narayan Building, M.G.Road, Bengaluru-560001.
2.Nagesh, S/o Chikkaveeraiah Major R/at Sathanur Road, Mahadeshwaranagar Channapatna, Ramanagara District.
(R1-By pleader Sri VSN R2- Exparte) WHEREAS, this petition filed on by the petitioner/s above named U/Sec.166 of the M.V.C. Act, praying for the compensation of Rs.
(Rupees ) for the
injuries sustained by the petitioner/Death of in a motor
Accident by vehicle No.
SCCH-14 20 MVC NO.3419/2015
WHEREAS, this claim petition coming up before
Sri/Smt.Basavaraj Chengti, XVI Addl.Judge, Court of Small Causes, Bangalore, in the presence of Sri/Smt. Advocate for petitioner/s and of Sri/Smt. Advocate for respondent.
ORDER The petition filed by the petitioner U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioner is entitled for a compensation of Rs.80,000/- with interest @ 9% per annum from the date of petition till the date of payment.
The respondents are jointly and severally liable to pay to the petitioner a compensation of Rs.80,000/- with interest. In view of policy, the respondent No.1 is directed to deposit the amount before court within one month from the date of order.
After deposit, entire amount with interest shall be released in favour of the petitioner through account payee cheque with proper identification.
Advocate's fee is fixed at Rs.2,500/-.
Given under my hand and seal of the Court this day of 2015.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA: Bangalore.
SCCH-14 21 MVC NO.3419/2015By the __________________________________ Petitioner/s Respondent No.1 No.2 _________________________________ Court fee paid on petition 10-00 Court fee paid on Powers 01-00 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