Karnataka High Court
Sachin R Rajmane vs Iffco Tokio General Insurance on 15 October, 2020
Bench: Alok Aradhe, H T Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF OCTOBER 2020
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA NO.361 OF 2017(MV)
C/W
MFA NO.4117 OF 2016(MV)
IN MFA 361/2017
BETWEEN:
Sachin R. Rajmane,
S/o Ravi Rajmane,
Aged about 29 years,
R/o No.285, Vinayakanagar,
Vinayaka Temple Road,
Devasandra, K.R.Puram Post,
Bangalore-560 036.
.... Appellant
(By Sri. T.Vijaykumar, Adv.)
AND
1. IFFCO-TOKIO General Insurance
Company Limited,
By its Manager,
Strategic Business Unit,
No.8, K.S.C.M.F. Building,
2
III Floor, 3rd Block,
Cunningham Road,
Bangalore-560 052.
2. K.M.Chowdegowda,
S/o Muniyappa,
Aged about 32 years,
R/o M.V. Extension, Hosakote,
Bangalore Rural District Pin-562114.
3. The Chairman and Managing Director,
B.M.T.C., Double Road,
Shanthinagara, Bengaluru-27.
4. The United India Insurance Co. Ltd.,
By its Manager,
No.40, Lakshmi Complex,
1st Floor, Opp. To Vani Vilas Hospital,
K.R.Road Fort,
Bengaluru-560 002.
...Respondents
(By Sri. B.Pradeep, Adv. for R1:
Sri.D.Vijaykumar, Adv. for R3:
Sri. Lakshminarasaiah, Adv. for
Sri. B.C.Setharama Rao, Adv. for R4)
This MFA is filed under section 173(1) of MV Act
against the judgment and award dated:16.02.2016
passed in MVC No.4470/2007 on the file of the XIII
Additional Small Causes Judge, Member, MACT, Court
of Small Causes , Bengaluru, partly allowing the claim
petition for compensation and seeking enhancement
of compensation.
3
IN MFA 4117/2016
BETWEEN
United India Insurance Co. Ltd.,
K.R.Road, Bangalore.
Through its Regional Office,
Krishi Bhavan Building,
Nrupathunga Road,
Bengaluru-560 009.
Rep. by its Deputy Manager,
Smt. Sudha D Rao.
...Appellant
(By Sri. Lakshminarasaiah, Adv. for
Sri.B.C.Seetharama Rao, Adv.)
AND
1. Sri. Sachin R. Rajmane,
Aged about 29 years,
S/o Ravi Rajmane,
R/o No.285, Vinayakanagar,
Vinayaka Temple Road,
Devasandra, K.R.Puram Post,
Bangalore-560 036.
2. IFFCO-TOKIO General Insurance Co. Limited,
Customer Service Centre,
"Sri. Shanthi Towers",
5th Floor, 3rd Main,
No.141, East of NGEF Layout,
Kasturinagar,
Bangalore-560 084.
3. Sri. K.M.Chowdegowda,
Aged about 41 years,
4
S/o Muniyappa,
Residing at M.V. Extension, Hosakote,
Bangalore Rural District Pin-562114.
4. The Chairman & Managing Director,
B.M.T.C., Double Road,
Shanthinagara, Bengaluru-560027.
...Respondents
(By Sri. Pradeep B., Adv for R2:
Sri.F.S.Dabali, Adv. for R4)
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated:16.02.2016
passed in MVC No.4470/2007 on the file of the XIII
Additional Small Causes Judge, Member MACT, Court
of Small Causes, Bengaluru, awarding compensation
of Rs.11,82,160/- with interest @ 6% p.a. from the
date of petition till realization.
These MFAs coming on for admission, through
video conference, this day, H.T. Narendra Prasad J.,
delivered the following:
JUDGMENT
MFA No.361/2017 has been filed by the claimant and MFA No.4117/2016 has been filed by the insurance company under Section 173(1) of the Motor 5 Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) being aggrieved by the judgment dated 16.02.2015 passed by the Motor Accident Claims Tribunal. Since, both the appeals arise out of the same accident as well as a common judgment, they are heard together and are being decided by this common judgment.
2. Facts giving rise to the filing of the appeal briefly stated are that on 11.01.2007 at about 6:00 p.m., the claimant was proceeding on his Suzuki Samurai motorcycle bearing registration No.KA- 02/EA-1159 on the left side of K.R.Puram towards Hoskote. When he came near Bandapura Gate on Hoskote Road, at that time, Hero Honda Motor Cycle bearing registration No.KA-53/E-6092 came at a high speed and in a rash and negligent manner, dashed against the vehicle of the claimant and sped away. As a result of the aforesaid accident, the claimant fell 6 down and suffered severe injuries all over the body and was hospitalized.
3. The claimant filed a petition under Section 166 of the Act on the ground that he was a student of 5th semester B.E. and he had bright future and because of disability to his eye, he lost his future earning capacity. It was pleaded that he also spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the rider of the Hero Honda motorcycle. Hence, he sought for compensation.
4. On service of notice, the respondent No.2 filed written statement in which the averments made in the petition were denied. It was pleaded that from the FIR it is clear that one Patalappa has lodged the complaint before Hoskote Police Station stating that 7 he is an eyewitness to the accident. He stated that the BMTC bus bearing registration No.KA-01/F-2480 was stationed in Bandapura bus stop, at that point of time claimant being the rider of Samurai motorcycle, came at a high speed, in a rash and negligent manner and dashed to the rear portion of BMTC, due to which front portion of Samurai motorcycle and rear portion of BMTC bus were damaged. It was further pleaded that the complainant was very confident to disclose the true fact on the same day before the police that in the accident two vehicles were involved, i.e, BMTC bus and Samurai motorcycle. Therefore, the accident has occurred due to the negligence of the rider of Samurai motorcycle. It was further pleaded that the complaint was given on 11.01.2007 at about 10.00 p.m., police have drawn spot mahazar on the next day between 6.30 to 7.00 a.m., in the spot mahazar police have stated that the offending vehicle is shown as Samurai, 8 but without assigning any reasons, after 6 months, the police have charge sheeted rider of the Hero Honda motorcycle instead of rider of Samurai motorcycle.
5. It was further pleaded that the police have seized both the vehicles and referred for MV inspection. The MV inspector conducted the inspection on 12.01.2007 at about 5.00 p.m. and given report to the police. According to the MV report Samurai motorcycle and BMTC bus were damaged which clearly shows that the vehicles involved in the accident are Samurai motorcycle and BMTC bus, despite that the police had seized Hero Honda motorcycle after 6 months and referred it to MV inspection and the inspector has given a report stating that there are some damages to Hero Honda motorcycle, which would clearly establish that Hero Honda is intentionally involved. It was further pleaded that the 9 investigating agency had not at all used its commonsense that nobody would wait without repair for seizing his vehicle by the police for a lapse of 6 months which clearly reveals that Hero Honda was not at all involved in the accident and it is falsely implicated. It was further pleaded that the MV report of Hero Honda reveals that the vehicle is badly damaged even after 6 months of the accident. But the statement of the complainant shows that there is no clue of involvement of the Hero Honda which would clearly shows that it is not at all involved in the accident. Hence, prays for dismissal of the petition.
6. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1, Dr.Manoj Mathai Anicatt, Ophthalmologist in Manipal Hospital as PW-2, Dr.Abhinandan J.G., Neurosurgeon as PW-3, 10 Dr.Dineshkumar, Physiotherapist as PW-4 and got exhibited 16 documents namely Ex.P1 to Ex.P16. On behalf of the respondents, an officer of the insurer of Hero Honda motorcycle was examined as RW-1 and got exhibited 5 documents namely Ex.R1 to Ex.R5. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.8,84,000/- along with interest at the rate of 8% p.a. and directed the respondent No.1 who is the insurer of the Hero Honda motorcycle to pay the compensation. Being aggrieved, the claimant has filed MFA No.862/2010 seeking enhancement of the compensation and the respondent No.1 insurance company has filed MFA No.9009/2009 questioning the liability fastened on it before this 11 Court. This Court passed a common order dated 23.02.2011 holding that the BMTC is proper party and remanded the matter back to the Tribunal for fresh consideration.
7. After remand, the claimant got impleaded the BMTC and its insurer as respondent No.3 and respondent No.4 and got amended the petition to the effect that at the time of the accident, the BMTC bus was moving in front of his vehicle, stopped abruptly without giving any signal, consequently, he also slowed down the Samurai motorcycle in order to avoid the bus. At that time, the rider of the Hero Honda motorcycle came at a high speed in a rash and negligent manner dashed to the rear side of the Samurai motorcycle and sped away. As a result of the severe impact, he dashed to the bus which was stopped suddenly. Therefore, the accident took place on account of the negligent riding of the Hero Honda 12 motorcycle and abrupt stationing of BMTC bus. Accordingly pleaded that the respondent Nos.1 to 4 being the RC owners and insurers of both the vehicles are liable to pay the compensation.
8. In response to the due service of notice of the impleading application, the respondent No.3 entered appearance through his counsel and the respondent No.4 remained absent. Even after giving sufficient opportunity the respondent No.3 did not file its written statement and it is taken as not filed and the case was posted for further evidence. The claimant got examined the driver and conductor of the BMTC bus respectively as PWs.5 and 6 and got exhibited 6 documents as Ex.P17 to P23. On behalf of the respondents the respondent No.1 has not let in further evidence and the respondent No.3 remained not contesting the matter on merits. After hearing both the sides on merits and on going through the evidence 13 the Tribunal held that the claimant is entitled to a compensation of Rs.11,00,000/- along with interest at the rate of 6% p.a. saddling joint and several liability on respondent Nos. 1 to 4 as per the judgment dated 25.02.2012 and further held contributory negligence at 50% on the claimant. Being aggrieved, the claimant went in appeal challenging the contributory negligence fixed on him in MFA No.5344/2012 before this Court. This Court by order dated 30.04.2015 remanded the matter back for fresh adjudication after framing necessary issues and to record the statement of the parties.
9. The Tribunal after remand afforded opportunity to both the parties to appear and contest the matter further on merits, in response to which the claimant and the first respondent entered appearance through their respective counsels, draft issues were called for and counsel for the respondent No.1 filed 14 the draft issue, despite sufficient opportunities, claimant has not filed the draft issue and the same is taken as not filed. The Tribunal framed the additional issues and opportunity was given to both the parties to adduce their additional evidence. Learned counsel appearing for claimant and the respondent No.1 have submitted that they have no further evidence to lead. Learned counsel for the respondent No.1 was heard on merits, claimant and his counsel were absent and arguments on behalf of the claimant on merits taken as not submitted. In the meanwhile respondent No.4 has come up in Misc.No.310/2012 which was allowed and an opportunity was given to the respondent No.4 to appear and contest the matter on merits.
10. The respondent No.4 filed its written statement denying the petition averments. It was pleaded that since the accident is because of the negligence of the claimant, the petition is bad for non- 15 joinder of necessary parties. Since no additional issue was raised, an opportunity was given to respondent No.4 to cross-examine the witnesses examined for other parties and to adduce its defence evidence, in response to which it has chosen to cross-examine the claimant and let in the evidence of its officer as RW-1 and got exhibit 1 document as Ex.R6. On hearing the parties and on perusal of the records the Tribunal fixed the liability of 40% on the respondent No.1, 30% on the claimant and 30% on the respondent No.4. The Tribunal further held that the claimant is entitled to a compensation of Rs.16,88,800/- along with interest at the rate of 6% p.a. and directed the respondent No.1 to deposit Rs.6,75,520/- and respondent No.4 to deposit Rs.5,06,640/- along with interest at 6% p.a. from the date of petition till the date of payment being 70% of the total compensation. Being aggrieved the claimant has filed MFA 16 No.361/2017 and the respondent No.4 before the Tribunal being the insurer of the bus filed MFA No.4117/2016.
11. The learned counsel for the appellant insurance company submitted that the Tribunal has committed a grave error of law and fact in making the claimant liable to pay 30% of the compensation assessed in favour of the respondent No.1 on the finding that the driver of the BMTC bus has contributed to the extent of 30% to the said accident. This finding is contrary to the pleadings available on record.
Secondly, in the first instance the claimant has pleaded negligence against the driver of Hero Honda motorcycle. An eyewitness has given a complaint against the rider of the Hero Honda motorcycle, the police have after investigation filed charge sheet against the rider of Hero Honda motorcycle. He has 17 pleaded guilty in a criminal case and it is very clear from the evidence of PW1 and IMV report at RW.4 that the accident has occurred due to the rash and negligent riding of the rider of Hero Honda motorcycle. Therefore, the finding given by the Tribunal is wrong.
12. On the other hand, Sri B.Pradeep, learned counsel appearing for the respondent No.1 in MFANo.361/2017 submitted that the Tribunal on the basis of the evidence of the parties has rightly held that the claimant as well as driver of the bus and rider of the Hero Honda have contributed to the accident. In fact the insurer of the bus has not examined any witness to disprove the contention of the claimant. Hence, the Tribunal has rightly held the rider of the Hero Honda, claimant and the driver of the bus are responsible at 40:30:30 respectively. 18
13. Both the learned counsels appearing for the insurance company have submitted that the Tribunal in addition to granting compensation under the heads of 'loss of future earning' and 'loss of amenities and comfort' has wrongly granted compensation under the head 'permanent disability' and the same has to be disallowed.
14. The learned counsel appearing for the claimant submitted that the accident has occurred due to the rash and negligent riding of the rider of the Hero Honda motorcycle and also the driver of the BMTC bus who has suddenly applied the brake. It is very clear from the evidence of the parties and the documents produced that the Tribunal is not justified in holding that the rider of the Samurai motorcycle i.e, the claimant has contributed 30% to the accident.
Secondly, at the time of the accident claimant was a student of III year B.E., he was a bright student 19 and due to the injuries, he got disability to his right eye of lost his eyesight and hence the monthly income assessed by the Tribunal is on the lower side.
Thirdly, due to the accident claimant has suffered grievous injuries and he has suffered lot of pain during treatment. The claimant has examined the doctor who assessed the disability of 100% to the right eye and whole body disability at 33.33%, he has to suffer the disability and unhappiness throughout his life, he was inpatient for a period of more than three months and he was taking treatment of physiotherapy for more than seven months. Therefore, the compensation awarded by the Tribunal for 'pain and suffering' and 'loss of amenities are on the lower side. Hence, he sought for allowing the appeal.
15. We have considered the submissions made by the learned counsel for the parties and have perused the records.
20
16. It is the case of the claimant that on 11.01.2007 at about 6.00 p.m. he was proceeding on his Samurai motorcycle on left side of the road of K.R.Puram towards Hoskote. When he came near Bandapura gate on Hoskote road, the rider of the Hero Honda motorcycle came at a high speed in a rash and negligent manner dashed against the rear side of Samurai motorcycle and sped away. As a result he dashed to the bus which was stopped suddenly. The accident has occurred due to the negligent riding of the Hero Honda motorcycle as well as abrupt stationing of BMTC bus. The claimant was examined as PW-1, in his deposition he has clearly stated that due to the abrupt stationing of the bus by its driver as well as negligent riding of the rider of the Hero Honda motorcycle the accident has occurred. One Patalappa S/o.Chicklakshmanappa has filed the complaint stating that the rider of the Samurai motorcycle 21 dashed to the rear portion of the BMTC bus. The police after thorough investigation have filed charge sheet against the rider of the Hero Honda motorcycle stating that the accident has occurred due to the rash and negligent riding of the rider of Hero Honda motorcycle. In the cross examination of the respondent No.1 it is suggested that the accident has taken place because of the negligence of the claimant and on behalf of the respondent No.4 it was suggested that the accident is because of the negligent riding of the claimant as well as the Hero Honda motorcycle by its rider, there is no negligence on the part of the BMTC bus. The respondent No.1 has got examined its officer as RW-1 and he has reiterated the statement of objection averments of the first respondent and submitted that the rider of the Hero Honda motorcycle is falsely implicated and the accident is because of the rider of Samurai motorcycle who is the claimant 22 himself. The respondent No.4 has got examined the Administrative Officer as RW-2, he has deposed that the accident is because of negligence of rider of the claimant himself, there is no negligence on the part of the BMTC. The respondents except examining RW.1 and RW.2 have not examined any eyewitnesses. The second respondent who is the owner of Hero Honda motorcycle has remained ex-parte.
17. As per Ex.P1 and P2, Ex.R2 to R6 the accident has taken place on 11.01.2007 at about 6.00 p.m. the complaint was lodged by one Patalappa. In the complaint it is stated that he was standing in the Bandapura bus stop. At that time he saw the bus stationed in the bus stop, the rider of the Samurai motorcycle came at a high speed in a rash and negligent manner dashed to the rear portion of the stationed bus. The spot mahazar at Ex.R3 reveals that the bus as well as the rider of the Samurai motorcycle 23 were in the spot. It is also referred that bus had suffered damages to the back left side of indicator and number plate, on the other hand the Samurai motorcycle has suffered damages to head light, speed meter, indicator light as well as safety guard and the back wheel disk. The IMV report of Hero Honda reveals that damage was to the fuel tank dent at right side, front wheel mudguard, head lamp unit along with shield. The police after thorough investigation filed charge sheet against the rider of the Hero Honda motorcycle. Taking into consideration the evidence of the parties and the aforesaid documents the Tribunal has rightly held the contributory negligence on the part of the respondent No.1 - insurance company i.e, Iffco Tokio General Insurance Company at 40% and claimant as well as bus at 30% each.
24
18. In respect of quantum is concerned, at the time of the accident claimant was a student aged about 20 years and he was studying in III year B.E. and he has a bright future. As a result of the accident he suffered disability to his right eye which will affect his future earning capacity. Hence, we are of the opinion that the income of the claimant has to be taken at Rs.10,000/- per month. The Tribunal has rightly assessed the body disability is taken at 30%. The claimant is aged about 21 years at the time of the accident and multiplier applicable to his age group is '18'. Thus, the claimant is entitled to Rs.6,48,000/- (Rs.10,000*12*18*30%) on account of 'loss of future income'.
Since the income of the claimant is enhanced to Rs.10,000/- per month, the claimant is entitled for compensation of Rs.80,000/- (Rs.10,000*8 months) under the head 'loss of income during laid up period'. 25
Since the compensation for 'loss of future earnings' and 'loss of amenities' has been granted, the claimant is not entitled for compensation for permanent disability. Hence, the same is disallowed.
The compensation awarded by the Tribunal under other heads remains unaltered.
Out of the total compensation the insurer of the Hero Honda motorcycle i.e., Iffco Tokio General Insurance Company is directed to deposit 40% of the compensation amount and the insurer of the bus, i.e., United India Insurance Company Limited is directed to deposit 30% of the compensation amount within a period of four weeks from the date of receipt of copy of this judgment.
Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till payment is made. 26
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
The amount in deposit is ordered to be transmitted to the Tribunal, forthwith.
Accordingly, the appeals are disposed of.
Sd/-
JUDGE Sd/-
JUDGE Cm/-