Bangalore District Court
Anuj Sharma Alias Anuj vs Go Digit General Insurance Limited on 1 February, 2024
KABC020114352021
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES, AT BENGALURU. (SCCH25)
-: PRESENT:-
SMT. PRAKRITI KALYANPUR, B.A(L),LL.B., LL.M.
XXIII Additional Small Causes Judge, Bengaluru.
DATED THIS THE 1ST DAY OF FEBRUARY 2024
MVC No.1641/2021
PETITIONER: Mr. Anuj Sharma @ Anuj
S/o. Uday Shankar Sharma,
Aged about 19 years,
R/at Post - Rampur,
GramSikara Hakeem,
Basti, Mahson,
Uttar Pradesh - 272 124.
(By Sri.H.V.Kumara Swamy,
Advocate/s.)
V/S
RESPONDENTS: 1. Go Digit Gen. Ins. Co.
Ltd.,
No.95, Atlantis,
4th B Cross Road,
Koramangala 3rd Block,
Industrial Layout,
5th Block, Bangalore - 95.
Policy issued by its office in policy
No.D0283/31/3/13012021.
Date of validity from 14.01.2021 to
SCCH - 25 2 MVC 1641/2021
13.01.2022.
(By Sri.Raghavendra Bhat,
Advocate.)
2. Mr.Nagaraju M.
S/o Sri. Munikantappa,
Major,
R/at No.179, 4th Main,
A.K.Colony, Domlur Layout,
Bangalore - 71.
(By Sri. H.K.Ramamurhty,
Advocate.)
......
JUDGMENT
The Petitioner has filed this petition under Sec.166 of the M.V. Act, seeking compensation for the injuries sustained by him in a road accident dated 20.01.2021.
2. The case of the Petitioner in brief is that:
On 20.01.2021 at about 7.30 pm., the Petitioner was traveling as a pillion rider on motorcycle bearing Reg.No.KA 03EK4187 which was ridden by his brother Chandrashekar Sharma slowly and cautiously on the said road. At that time all of a sudden an Auto Rickshaw bearing Reg.No.KA03AF SCCH - 25 3 MVC 1641/2021 8545 driven by its driver, came with high speed in a rash and negligent manner and dashed against his motorcycle from opposite direction. Due to the tremendous impact, he fell down and sustained grievous injuries.
3. It is the further case of the Petitioner that, immediately after the accident, he was shifted to HOSMAT Hospital, Bangalore, wherein he was treated as an inpatient for a day and later shifted to Vijayalakshmi Hospital, wherein he was treated as an inpatient. So far he has spent Rs.6,50,000/ towards medical and nourishment expenses. The petitioner has suffered from permanent disability. He is not able to lead a normal life as prior to the said accident. The petitioner has suffered loss of income due to this accident. The accident occurred due to the reckless driving by the driver of the Auto rickshaw bearing No.KA03AF8545. The K.R. Puram Traffic Police has registered a case against the driver of the offending vehicle. The 1 st Respondent being the insurer and the 2nd respondent being the owner of the offending SCCH - 25 4 MVC 1641/2021 vehicle are jointly and severally liable to pay compensation to the petitioner. Hence, this petition.
4. In response to notice issued by this tribunal, the Respondents 1 & 2 appeared through their respective counsels. But the respondent No.1 alone filed written statement.
5. The objections of the Respondent No.1:
This respondent admits the issuance of the policy in respect of the vehicle bearing No.KA03AF8545. Further submitted that the driver cum owner of the of the vehicle did not have valid and effective DL, permit and FC to drive the vehicle as on the date of accident. Further there is non compliance of Sec.134(c) and 158(6) of MV Act. It has denied the rash and negligence and involvement of the vehicle bearing Reg.No.KA03AF8545. The Respondent insurer has further denied the age, occupation, income and other details of the Petitioner and has sought for dismissal of the petition.SCCH - 25 5 MVC 1641/2021
6. On the above rival contentions of the parties, this court has framed the following issues:
1. Whether the Petitioner proves that, the accident occurred due to rash and negligent driving by driver of Autorickshaw bearing Reg.No.KA03 AF8545 and in the said accident petitioner sustained injuries?
2. Whether the Petitioner is entitled for Compensation? If so, what is the quantum? From whom payable?
3. What order or award?
7. The Petitioner in order to prove his case, has examined himself as PW.1 and has got marked 13 documents as per Exs.P.1 to P.13. Dr.Nagaraj B.N. was examined as PW.2 and got marked 2 documents as per Exs.P.14 & P.15. He has also examined Mr.Chandru - Supervisor at Vijayalakshmi Hospital, Bangalore, as PW.3 and got marked 1 document as per Ex.P.16. On the other side, the Respondent No.1 has examined Mr. Batheppa - ASI, Halasur Traffic PS, Hosakote, SCCH - 25 6 MVC 1641/2021 Bangalore, as RW.1 and got marked 4 documents as per Exs.R.1 to R.4. It has also examined its official Mr.Sachin Honnavara - Legal Manager as RW.2 and got marked 2 documents as per Exs.R.5 & R.6.
8. Heard the arguments of the learned counsels for both the parties.
The counsel for the petitioner has relied upon the following decisions:
1. ILR 2003 KAR 493 : Mallamma Vs. Balaji & Ors.
2. 2007 ACJ 210 : Bangarevva & Others Vs. Kamalavva & Ors.
3. (2011) 4 SCC 693 : Ravi Vs. Badrinarayan & Ors.
4. 2017 (1) AKR 386 : National Insurance Co., Ltd., Vs. M.Ganesh Muniswamy & Ors.
5. MFA No.11380/2008 : National Ins. Co. Lt., Vs. Smt. Gayathri and Ors.
6. MFA No.9308/2011 : United India Ins. Co. Ltd., Vs. Smt. Rathna & Anr.
7. 2004 ACJ 677 : Oriental Ins. Co. Ltd., Vs. Ramesh B. Jain & Ors.
8. 1999 ACJ 1318 : H.G.Ramachandra Rao Vs. Srikantha & Ors.SCCH - 25 7 MVC 1641/2021
9. 2015 ACJ 1018 : National Ins. Co. ltd., Vs. Basavaraj & Anr.
10. 2004 ACJ 677 : Oriental Ins. Co. Ltd., Vs. Ramesh B. Jain and Ors.
11. MFA 667/2020 C/w MFA No.669/2010 : The Oriental Ins. Co. Ltd., Vs. N.Stephenraj and Anr.
12. MFA 6311/2014 : Oriental Ins. Co. Ltd., Vs. Smt. Dimple @ Rashmi Sethi & Ors.
13. 2018 ACJ 33 : Oriental Ins. Co., Ltd., Vs. Mahaboob Ali Khan and Anr.
14. MFA 5993/2015 : Smt. Nithya Venkatesh and Ors.
Vs. National Ins. Co. Ltd., and Anr.
The counsel for the respondent No.1 has relied upon the following decisions:
1. (2009) ILR (Karnataka) 2921 : Bajaj Alianz Gen. Ins.
Co. Ltd., Vs. B.C.Kumar and Yoganarasimha.
2. (2009) 15 SCC 165 : North West Karnataka RD. Transport Corp. Vs. Gourabai and Ors.
3. MFA No.13794/2007 (MV) : Bad Anoranz Gen. Ins. Co. Ltd., Vs. B.H.Lokesh.
4. MFA No.201689/2016 : Mahadevi S. Shivaputra.
5. MFA 101150/2015 : Mr. Irappa Vs. Sagar Krishna Bhogan and Anr.
SCCH - 25 8 MVC 1641/2021
6. (2013) ILR (Karnataka) 1701 (MFA NO.21987/2011 (WC) : United India Ins. Co. Ltd., Belgaum Vs. Basappa & Anr.
7. ILR 2009 KAR 2921 : Bajaj Allianz Gen. Ins. Co. Ltd., Vs. B.C.Kumar and Anr.
8. MFA No.7599/2016 (MV) : Janakamma Vs. Mohan Kumar and Anr.
9. Criminal Petition No.5509/2007.
9. On hearing both sides and perusal of the evidence on record this court answers the above issues as follows: Issue No.1: In the affirmative, Issue No.2: In the affirmative, Issue No.3: As per the final order, for the following: REASONS
10. Issue No.1:
The counsel for the petitioner has relied on the following decisions to show that strict rules of Evidence Act are not applicable to a claim petition under MV Act.SCCH - 25 9 MVC 1641/2021
ILR 2003 KAR 493 : Mallamma Vs. Balaji & Ors., Wherein the Hon'ble High court of Karnataka has held that strict rules of Evidence Act need not be applied in a case of motor vehicle accident to prove rash and negligent driving.
2007 ACJ 210 : Bangarevva & Others Vs. Kamalavva & Ors.
Wherein the Hon'ble High court of Karnataka has held that the documents produced show that driver of the offending vehicle is prosecuted in the criminal case. There is no denial of the occurrence of the accident. There is no contra evidence to disbelieve the oral evidence. In that view, the petitioners appellants have successfully proved the negligence. The contra finding of the Tribunal in that belief is liable to be set aside.
11. In order to prove that the accident occurred due to the actionable negligence on the part of the Driver of the Autorickshaw bearing Reg.No.KA03AF8545, the petitioner has examined himself as PW.1 and has got marked 6 SCCH - 25 10 MVC 1641/2021 documents as per Exs.P.1 to P.6. PW.1 has reiterated the averments of the petition in his affidavit in lieu of his chief examination. The Respondent No.1 has denied the involvement of the offending Autorickshaw in the accident. Further contended that the accident occurred due to the sole negligence of the petitioner himself. In the crossexamination of PW.1, he has stated that he does not know that there is delay of 1 month 4 days in giving the complaint. He has stated that he does not know the distance between Sriramanagara and Madras Road Tin Factory. In support of their defence the Respondent No.1 has got examined the Investigation Officer of Cr.No.26/2021 as RW.1 and got marked Exs.R.1 to 4 they are true copy of police notice u/sec.133 of MV Act, reply to police notice u/Sec.133 of MV Act, wound certificate of petitioner and police intimation sent by HOSMAT Hospital dated 20.01.2021. RW.1 has stated that the offending vehicle driver did not have a DL and the vehicle did not have FC. However, he has not collected the MLC Extract. He has stated that there were no CC TVs installed near the spot of accident and so he did not SCCH - 25 11 MVC 1641/2021 collect any CC TV Footage. The witness was treated as hostile and the respondent No.1 has crossexamined him. In his crossexamination he has admitted that there is delay of 34 days in giving the complaint. He has also admitted that as per Ex.R.4 the MLC intimation was sent by the hospital authorities on the very next day of the accident. He has admitted that Sriramanagara shown in Ex.R.4 is not within the jurisdiction of his station. The spot of accident is shown as Sriramanagara in wound certificate also. He has admitted that even though Sriramanagara is not within his jurisdiction he has registered an FIR. During his crossexamination by the counsel for the petitioner, RW.1 has admitted that he has done inspection of the accident spot and found that the spot is within the jurisdiction of their station. He has admitted that he would have transferred the complaint if the accident spot was not within his jurisdiction. The respondent No.1 has also got examined its Legal Manager as RW.2 and got marked Exs.R.5 & 6 insurance policy and MLC register Extract. During his crossexamination, he has admitted that ' History SCCH - 25 12 MVC 1641/2021 of RTA tow wheeler Vs. three wheeler on 20.01.2021 at 7.30pm' is shown in the wound certificate and MLC register extract. He has also admitted that 'History of RTA while traveling in a two wheeler was hit by an Autorickshaw around 7.30pm on 20.01.2021 near OM Road, Service Road, near Indian Petrol bunk, K.R.Puram' is written in Ex.P.8 discharge summary. He has also admitted that as per Ex.R.6 the MLC information is entered on 20.01.2021. He has also admitted that the MLC intimation was sent from HOSMAT hospital on the date of accident.
12. The defence of the respondent No.1 is that there is no clarity about the spot of accident i.e., whether it was in Sriramanagara or in Old Madras Road/Tin Factory. In pursuance of the same, the counsel for the Respondent No.1 has crossexamined PW.1 and RW.1 on the same line. On combined reading of crossexamination of RW.1 by the counsel for R1 and the counsel for petitioner it is clear that the spot of accident was within the jurisdiction of his station. This also SCCH - 25 13 MVC 1641/2021 becomes clear on perusal of Ex.P.3 sketch which shows that the accident occurred in the junction of KR Pura Flyover OM road service Road. In Ex.P.7 wound certificate Sriramnagar is mentioned but in Ex.P.8 OM Road Service Road, near Indian Oil Petrol Bunk, KR Puram is mentioned. However, on combined reading of evidence of PW.1, RW.1, Exs.P.1 to 4, 7, 8 it is clear that the accident has taken place at OM Road Service Road, KR Puram. As per Ex.R.6 the accident has taken place near Sriramanagara and as per Ex.R.4 the MLC intimation is received by Halasuru Traffic PS. It is a settled principal of law that MV Act is a beneficial legislation and it cannot be interpreted to defeat its objective. The dispute of jurisdiction if any with respect to the spot of accident is already settled by the Investigation Officer by registering an FIR. Therefore, this defence of the Respondent No.1 does not hold any water.
13. The second defence taken by the respondent No.1 is about delay of 34 days in registering the complaint. However, SCCH - 25 14 MVC 1641/2021 the date of accident is 20.01.2021 at 7.30pm. The MLC is registered on 20.01.2021 at 9.10pm as per Ex.R.6. The MLC intimation is sent on 20.01.2021 and received by the Halasuru Traffic Police on 21.01.2021 at 7.10am. The date of admission to HOSMAT hospital is 20.01.2021 at 9.10pm. As per Exs.P.8 & P.9 discharge summaries also the accident was on 20.01.2021 at 7.30pm. Therefore, there is no dispute about the date and time of the accident.
The counsel for the petitioner has relied on the following decisions.
(2011) 4 SCC 693 : Ravi Vs. Badrinarayan & Ors. Wherein the Hon'ble Supreme court of India has held that, delay in lodging the FIR thus, cannot be the ground to deny justice to the victim.
2017 (1) AKR 386 : National Insurance Co., Ltd., Vs. M.Ganesh Muniswamy & Ors.
Wherein it is held that Claimant admittedly sustained injuries in road traffic accident and immediately thereafter he was SCCH - 25 15 MVC 1641/2021 admitted to hospital where he took treatment - Doctors clearly mentioned that claimant sustained grievous injuries in road traffic accident and MLC sent to police station - Even though claimant had not lodged any complaint, on basis of MLC report, police could intimate action -delay in lodging complaint cannot be held against claimant - claimant rightly held entitled for grant of compensation.
14. It is well settled by the Hon'ble Supreme Court of India that only on the ground of delay in filing FIR a petition under MVC cannot be dismissed. Moreover, in the complaint itself it is stated that there was no one to take care of the petitioner and hence there was delay in complaint. The respondent No.1 also contended that the petitioner has not complied Sec.134(C) of MV Act. As against this, the counsel for the petitioner has relied on MFA No.11380/2008 : National Ins. Co. Lt., Vs. Smt. Gayathri and Ors.
SCCH - 25 16 MVC 1641/2021
Wherein it is held by the Hon'ble High Court of Karnataka that, Non compliance of Sec.134 © of MV Act by claimant cannot be denied the benefit of compensation. Not inferming the Insurer is a defect on the part of the complainant but it is not fatal to the claim, unless it is proved that the claimant has committed fraud by falsely implicating the vehicle to claim compensation.
Therefore, this contention of the respondent No.1 also does not hold any water.
15. Ex.P.5 MVA report reveals that the Autorickshaw bearing No.KA03AF8545 was damaged to its (i) Front body shape at right side portion damaged. (ii) Front right side indicator damaged and (iii) Rear right side wheel mudguard damaged. The petitioner has not furnished the IMV report with respect to his motorcycle. Therefore, as per Ex.P.5 it can be inferred that the Autorickshaw hit the petitioner's motorcycle's back and therefore the Autorickshaw suffered damages to its right side.
SCCH - 25 17 MVC 1641/2021
16. The counsel for the Respondent No.1 has argued that the Tribunal cannot rely only on the plea of guilt by the offending driver and the insurance company cannot be mandated to challenge the chargesheet filed against the insurer and that fraud vitiates everything. In support of the same, he has furnished ILR 2009 KAR 2921 : Bajaj Allianz Gen. Ins. Co. Ltd., Vs. B.C.Kumar and Anr.
Wherein the Hon'ble High Court of Karnataka held that 'Plea of guilt by the driver cannot become the sole criterion for allowing the claim petition by the MACT'.
(2009) ILR (Karnataka) 2921 : Bajaj Alianz Gen. Ins. Co. Ltd., Vs. B.C.Kumar and Yoganarasimha. Wherein the Hon'ble High Court of Karnataka held that 'Plea of guilt by the driver cannot become the sole criterion for allowing the claim petition by the MACT'.
SCCH - 25 18 MVC 1641/2021MFA No.201689/2016 : Mahadevi S. Shivaputra. Wherein the Hon'ble High Court of Karnataka held that if the insurance companies are saddled with the burden of challenging the charge sheets filed throughout the country without there being no clear legal mandate. (2013) ILR (Karnataka) 1701 (MFA NO.21987/2011 (WC) : United India Ins. Co. Ltd., Belgaum Vs. Basappa & Anr.
Wherein the Hon'ble High Court of Karnataka held that fraud unravels everything.
Criminal Petition No.5509/2007.
Wherein the Hon'ble High Court of Karnataka held that the insurance company can contest the case seeking quashing of criminal case against the insured even if the insured pleads guilty.
The other documents at Exs.P.1 to 6 i.e., FIR, FIS, spot sketch, spot mahazar, MVA report and charge sheet are in SCCH - 25 19 MVC 1641/2021 accordance with the statement given by the petitioner. No contrary evidence is led against these documents from the side of respondent No.1. As such, there are no reasons to discard or disbelieve the version of the Petitioner/PW.1.
17. The counsel for the respondent No.1 has also furnished the following decisions.
MFA No.7599/2016 (MV) : Janakamma Vs. Mohan Kumar and Anr.
Wherein the Hon'ble High Court of Karnataka held that since the MLC from 1 st hospital was not produced and there was delay in FIR, the decision of the Tribunal to reject the Tribunal is correct.
(2009) 15 SCC 165 : North West Karnataka RD. Transport Corp. Vs. Gourabai and Ors.
Wherein the Hon'ble Supreme Court of India held that documents establish beyond the shadow of doubt that the injuries sustained were not on account of any vehicular accident.
SCCH - 25 20 MVC 1641/2021MFA No.13794/2007 (MV) : Bad Anoranz Gen. Ins. Co. Ltd., Vs. B.H.Lokesh.
Wherein the Hon'ble High Court of Karnataka held that the case sheet entry is recorded at the earliest point of time and it is mentioned in the case sheet as self fall from the motorcycle.
MFA 101150/2015 : Mr. Irappa Vs. Sagar Krishna Bhogan and Anr.
Wherein the Hon'ble High Court of Karnataka held that the claimant had history of self fall from the bike at the time of admission to the hospital.
Therefore, it can be seen that in all these cases the observations of the Hon'ble High Court of Karnataka and the Hon'ble Supreme Court of India is with respect to the facts of the particular case and so it cannot be as a matter of fact applied to the case on hand.
18. As per Ex.P.7/Wound Certificate, the petitioner SCCH - 25 21 MVC 1641/2021 sustained injuries on 20.01.2021 in a RTA. This shows that on account of the accident the Petitioner has sustained simple and grievous injuries. As per Ex.P.5, the accident was not due to any mechanical defect of the above said motor vehicle. Therefore, on overall perusal of Exs.P.1 to 6 it is clear that the accident occurred on 20.01.2021 and the petitioner sustained injuries as mentioned in Ex.P.7 and the sole reason for the occurrence of the accident was rash and negligent driving by the driver of the Autorickshaw bearing No.KA03AF8545. Accordingly, issue No.1 is held in the affirmative.
19. Issue No.2: In order to prove the injuries and disability suffered by the petitioner, the petitioner has produced the wound certificate as per Ex.P.7. As per Ex.P.7, the Petitioner has sustained - (i) Abrasion present on right thigh, (ii) Abrasion over anterior shin of right leg, (iii) Abrasion over 1 st web space of right foot, (iv) Fracture distal right femur shaft and (v) Fracture proximal right leg both bone. Out of these injuries, SCCH - 25 22 MVC 1641/2021 injury Nos.1, 2, 3 are simple in nature and injury Nos.4 & 5 are grievous in nature.
20. The petitioner has got examined Chandru - Supervisor at Vijayalakshmi Hospital, Bangalore, as PW.3 and got marked 1 document i.e., one original indoor case paper at Ex.P.16. In the cross examination of PW.3, nothing worth is elicited.
21. Further the petitioner has also got examined Dr.Nagaraj B.N. Orthopedic Surgeon at Sai Ortho and Dental Center, Bangalore as PW.2. He has deposed the details of injuries of Fracture of the right distal femur and fracture of the proximal end of the both bones right leg sustained in the RTA. He further stated about the total disability of the right lower limb at 58% and whole body physical disability at 19% and produced 2 documents as per Ex.P.14 - Clinical report and Ex.P.15 - Two Xrays of petitioner respectively. PW.2 further deposed that petitioner needs another surgery for the removal SCCH - 25 23 MVC 1641/2021 of the implant and the estimate of this surgery is around Rs.60,000/.
22. In his cross examination, PW.2 stated that, he has not treated the petitioner. The injuries are around the knee. The fracture is united. The stability component is interlinked with the mobility component. Further stated that, the hip and ankle movements are normal and the condition of the petitioner has improved when compared to the first date of discharge. The healing process in the petitioner is good as he is young aged person.
Disability:
23. On perusal of the evidence of PW.2 it is clear that he has assessed the disability of the petitioner. The injuries suffered by the petitioner have affected his mobility and stability.
SCCH - 25 24 MVC 1641/2021
24. The petitioner has averred that, at the time of accident he was an Electrician Assistant at Hegde Creators, and earning a sum of Rs.20,000/ per month. From the evidence of PW.2 it can be seen that the healing process in the petitioner is good as he is a young person. However, the disability would affect the petitioner in his work as an Electrician Assistant. Therefore, the court deems it fit to fix the functional disability at 16%.
Monthly income:
25. The Petitioner has deposed in his evidence that, he was an Electrician Assistant at Hegde Creators, Bangalore and earning a sum of Rs.20,000/ per month. In support of this he has produced salary certificate dated 21.09.2021 issued by Hegde Creators as per Ex.P.10. Apart from this he has not produced any documents such as Bank statement, vouchers etc., and also not examined his employer to prove his earnings. Moreover during his crossexamination he has SCCH - 25 25 MVC 1641/2021 stated that he does not know the Hegde Creators. Later he says that Ngaraj Hegde shown in Ex.P.4 is his owner.
26. The Hon'ble High Court of Karnataka in MFA No.7404/2014 (MVD), by relying on the decisions of the Hon'ble Supreme Court of India in Meena Pawaria and others Vs. Ashrafali and others (2021 SCC online sc 1083), Jakir Hussein Vs. Sabir (2015) 7 SCC 252, Smt. Neeta and others Vs. Divisional Manager, MSRTC Kolhapur (2015)3 scc 590, Kala Devi and Orthers Vs. Bhagwan Das Chouhan and Others (2015) 2 SCC 771, Sonobanu Nazirbhai Mirza Vs. Ahmadabad Municipal Transport Service (2013) 16 SCC 719, Pushkar Mehra Vs. Brij Mohan Kushwaha and others (2015) 12 SCC 688, Govind Yadav Vs. The New India Insurance Company Limited and another (2011) 10 SCC 683 and Ningamma and another Vs. United India Insurance Company Limited (2009) 13 SCC 710 has held that there is a SCCH - 25 26 MVC 1641/2021 continuous and consistent trend by the Apex Court that the Minimum Wages Act provide for a source by which the notional income of the deceased, who had no valid proof of income could be assessed. .......The range of the wages between highly skilled and unskilled labour may have to be considered by the Tribunal while assessing the income of the deceased........However, such guidelines cannot take the place of statutory guidelines and therefore we hold that it would be proper to rely on the wages fixed under the Minimum Wages Act as a guideline and assess whether the deceased was a skilled or unskilled laborer.
27. It is pertinent to note that as per the Minimum Rates of wages as per Notification, the monthly income of Electrician is Rs.13,691/ per month. Therefore the notional income of the petitioner can be rounded off to Rs.14,000/ per month.
SCCH - 25 27 MVC 1641/2021
28. At the time of accident the Petitioner was aged about 20 years as could be made out from Ex.P.7/Wound Certificate. He was hale and healthy before the accident. The accident took place in the year 2021. Keeping all the above things in mind, Petitioner is entitled to the following compensation:
i) PAIN AND SUFFERING: After the accident, the Petitioner was treated at HOSMAT Hospital, Bangalore and admitted as in inpatient and treated conservatively from 20.01.2021 to 21.01.2021 and from there he was shifted to Vijayalakshmi Hospital, Bangalore wherein he was treated as an inpatient from 21.01.2021 to 04.02.2021, he was operated on and discharged with advice to take follow up treatment. In this regard, he has produced Exs.P.8 & 9 Discharge summaries issued by HOSMAT and Sri.Vijayalakshmi Hospital. Considering that the nature of injuries he has undergone is simple and grievous, the Petitioner is awarded a sum of Rs.40,000/ under this head. SCCH - 25 28 MVC 1641/2021
ii) MEDICAL EXPENSES:
The Petitioner has pleaded that he has spent a sum of Rs.6,50,000/ towards hospitalization, medical expenses, extra nourishment, conveyance and other miscellaneous expenses etc., In this regard, he has produced 66 medical bills as per Ex.P.12 for a sum of Rs.3,09,773/. There is no contrary evidence from the respondent No.1 to disprove the medical expenses by the petitioner. Therefore, the petitioner is entitled for the above said amount under this head.
iii) LOSS OF INCOME DURING LAID UP PERIOD: As mentioned above the petitioner has sustained simple and grievous injuries. The petitioner has taken treatment for total 17 days at HOSMAT hospital and Vijayalakshmi Hospital which can be made out from Exs.P.8 & 9 Discharge summaries of both hospitals. Therefore, considering the nature of injuries and duration of treatment it can be said that the Petitioner may have required at least one month time for SCCH - 25 29 MVC 1641/2021 recovering from the injuries sustained by him. Hence, he is only entitled for a sum of Rs.14,000/ under this head.
iv) LOSS OF FUTURE INCOME: On perusal of Ex.P.7, as on the date of accident he was 20 years old. As per the dictum laid down in Sarala Verma's case the appropriate multiplier applicable for his age is 18. Therefore, the Petitioner is entitled for a sum of Rs.4,83,840/ (Rs.14,000/ x 12 x 18 x 16%= Rs.4,83,840/) under this head.
(v) LOSS OF FUTURE AMENITIES AND
HAPPINESS:
The Petitioner was aged about 20 years at the time of accident. He has sustained simple and grievous injuries and as per consideration of this Tribunal, he is suffering from 16% functional disability. The Petitioner has to suffer this disability throughout his life. He will suffer in his mind that he is no more a normal man. This will have an adverse effect on the future life of the petitioner. Because of this he will have to lose SCCH - 25 30 MVC 1641/2021 some of the amenities and comforts. Therefore, considering the age and nature of injuries that the Petitioner has suffered, a sum of Rs.20,000/ is awarded under this head.
(vi) ATTENDANT, CONVEYANCE, FOOD AND NOURISHMENT CHARGES:
After the accident, the Petitioner was treated in the above said hospital, admitted for 17 days as an inpatient and discharged with advise to take follow up treatment. However, during this period he must have spent considerable amount on his food and nourishment, conveyance and attendant expenses. Therefore, the Petitioner is entitled for a sum of Rs.20,000/ under this head.
(vii) FUTURE MEDICAL EXPENSES:
As per the version of PW.2, the Petitioner has to undergo another surgery for removal of implants and the estimation of this surgery is around Rs.60,000/. In this regard neither the petitioner nor PW.2 has produced any estimation bill about further surgery. As per the evidence of Pws.1 & 2 and looking SCCH - 25 31 MVC 1641/2021 at the earlier treatment cost and nature of injury and the evidence on record, it appears it would be justifiable if an amount of Rs.20,000/ is awarded to the Petitioner under this head. Therefore, the Petitioner is awarded a sum of Rs.20,000/ under this head.
29. The Petitioner is entitled to compensation under the following heads:
1. Pain & suffering Rs.40,000/
2. Medical expenses Rs.3,09,773/
3. Loss of income during laid up Rs.14,000/ period
4. Loss of future income Rs.4,83,840/
5. Loss of future amenities and Rs.20,000/ happiness
6. Attendant, conveyance, food and Rs.20,000/ nourishment charges
7. Future Medical Expenses Rs.20,000/ TOTAL Rs.9,07,613/ If it is rounded off it comes to around Rs.9,07,700/ and same is awarded under different heads to the Petitioner.SCCH - 25 32 MVC 1641/2021
LIABILITY
30. The Respondent No.1 in the written statement has specifically denied the involvement of the offending vehicle bearing No.KA03AF8545 in the accident. It has contended that, the accident occurred due to the sole negligence of the petitioner himself but has not proved the same. The Respondent No.1 has contended that the rider of the offending vehicle did not have a valid DL and FC at the time of accident. Ex.P.6 the charge sheet filed by the police also shows that the driver was charged u/Secs.3(1) & 181, 134(A&B),187, 56 and 177 of the MV Act.
31. The counsel for the petitioner has argued that the Tribunal cannot rely on chargesheet alone to infer about non possession of DL and that not having FC is not a ground for dismissal of petition. In support of the same, he has relied on the following decisions:
SCCH - 25 33 MVC 1641/2021
MFA No.9308/2011 : United India Ins. Co. Ltd., Vs. Smt. Rathna & Anr.
Wherein the Hon'ble High Court of Karnatka has held that, to hold that the driver of the insured vehicle had no driving licence as on the date of accident, there must be clear evidence on the record of the case to that effect. Police charge sheet is no evidence to hold that the driver of the insured vehicle had no driving licence as on the date of accident.
2004 ACJ 677 : Oriental Ins. Co. Ltd., Vs. Ramesh B. Jain & Ors.
Wherein the Hon'ble High court of Karnataka has held that, relying only on charge sheet and evidence of the Investigation Officer it cannot be held that the offending vehicle did not have the DL.
1999 ACJ 1318 : H.G.Ramachandra Rao Vs. Srikantha & Ors.
Wherein the Hon'ble High court of Karnataka has held that, insurance company made no SCCH - 25 34 MVC 1641/2021 effort to summon either the driver or any evidence from RTO's office or any other evidence to prove its contention but relied upon the admission of the driver in Criminal trial that he had no licence and on the deposition of police officer statement purported to be made by the driver is not the statement in his own words but an inference of the court that he admitted guilt which cannot be said to mean that he admitted having no licence - statement of the police officer does not inspire confidence as he has not produced copy of notice asserted to have been issued to the driver and he had not made note of the oral enquiries made by him. The insurance company has not discharged its burden to establish that the driver had no licence and is not exempted from liability.
2015 ACJ 1018 : National Ins. Co. ltd., Vs. Basavaraj & Anr.
Wherein the Hon'ble High court of Karnataka has held that, the insurance company has to file application against owner to produce SCCH - 25 35 MVC 1641/2021 licence and also from the concerned transport authority. Otherwise only on the basis of charge sheet the insurance company cannot be absolved of liability.
MFA 667/2020 C/w MFA No.669/2010 : The Oriental Ins. Co. Ltd., Vs. N.Stephenraj and Anr.
Wherein the Hon'ble High court of Karnataka has held that, the insurance company has not made any efforts to show that the driver did not possess valid DL like examining the driver or getting the document from RTO.
MFA 6311/2014 : Oriental Ins. Co. Ltd., Vs. Smt. Dimple @ Rashmi Sethi & Ors.
Wherein the Hon'ble High court of Karnataka has held that, in the case of New India Assurance Company Ltd., Vs. Sri.N.Srinivasa Murthy and Others, in MFA No.6621/2006 (MV) C/w MFA Crob.
No.2304/2006 (MV), wherein it is held that a mere nonpossessing of fitness certificate is not a reason to deny compensation to the claimant.SCCH - 25 36 MVC 1641/2021
2018 ACJ 33 : Oriental Ins. Co., Ltd., Vs. Mahaboob Ali Khan and Anr.
Wherein the Hon'ble High court of Karnataka has held that, non possession of FC is not one of the grounds on which the insurance company their action.
MFA 5993/2015 : Smt. Nithya Venkatesh and Ors. Vs. National Ins. Co. Ltd., and Anr.
Wherein the Hon'ble High court of Karnataka has held that, Since the vehicle in question was validly registered, it implies that it had a fitness certificate. In view of the above, the submission of the learned counsel for the insurance company in respect of breach of policy conditions and the insurer is not liable to pay the compensation, is unsustainable.
32. However on perusal of Exs.R.1 & R.2 it is clear that the respondent No.2 himself has replied to the notice given by the police u/Sec.133 of MV Act that he did not have a DL and FC as on the date of accident. Therefore, it can be held that there is breach of the terms of the contract by the SCCH - 25 37 MVC 1641/2021 owner/insured and the insurer i.e., the respondent No.1 is not under any liability to indemnify him. The entire liability of paying the award amount is on the respondent No.2.
33. It is pertinent to note the decision in New India Assurance Co. Ltd., Vs. Yallavva reported in 2020(2) KCCR 1405(FB), wherein the Hon'ble High Court of Karnataka has held that the Tribunal may order for pay and recovery when the insurance company successfully establishes that there is breach of any condition recognize u/Sec.149(2).
This decision is based on the Principles laid down in Pappu Vs. Vinod Kumar Lamba - (2018) 3 SCC 2008 and Shamanna Vs. Oriental Insurance Co. Ltd., (2018) 9 SCC 650, wherein the Hob'ble apex court has observed that "mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against SCCH - 25 38 MVC 1641/2021 either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time". Further the apex court has held that 'the Tribunal can direct the insurance company to pay the award amount to the claimants and inturn recover the same from the owner of the vehicle".
34. In this case, the respondent No.2 is the owner of the Autorickshaw. The insurance company has not proved that the driver consciously drove the Autorickshaw in the absence of DL. Therefore, the Tribunal deems it just that the insurance company i.e., Respondent No.1 may be directed to pay the award amount to the petitioner and later recover the same from the respondent No.2 i.e., the owner of the vehicle. The petitioner has claimed for a sum of Rs.30,00,000/ but he is SCCH - 25 39 MVC 1641/2021 entitled only for a sum of Rs.9,07,700/ with interest @6% per annum from the date of petition till its realization. Therefore, the petition needs to allowed. Accordingly, issue No.2 held in the Affirmative.
35. Issue No.3:
For the reasons and discussions made above and finding to the above issues, this court proceed to pass the following: ORDER The petition is allowed with cost.
The Petitioner is entitled for compensation of Rs.9,07,700/ (Rupees Nine Lakhs Seven Thousand and Seven Hundred only) along with interest @ 6% p.a. from the date of petition till the date of depositing the amount.
However, the Respondent No.1/Insurer is directed to deposit the compensation amount SCCH - 25 40 MVC 1641/2021 with interest before this Tribunal within sixty days from the date of this award.
Respondent No.1 is entitled to recover the award amount from the Respondent No.2.
On deposit of compensation and interest, 50% is to be deposited in any N/S Bank for a period of 3 years in the name of the petitioner and the remaining amount shall be released in favour of the Petitioner by way of epayment on proper identification and due acknowledgment as per rules.
Advocate fee is fixed at Rs.1,000/.
Draw decree accordingly.
(Typed to my dictation directly on the computer by the Stenographer, corrected and then pronounced by me in open court on this the 1st Day of February 2024).
(PRAKRITI KALYANPUR) XXIII ASCJ & ACMM, Bangalore.SCCH - 25 41 MVC 1641/2021
ANNEXURE List of Witnesses examined for Petitioner:
PW.1 Mr. Anuj Sharma @ Anuj PW.2 Dr. Nagaraj B.N. PW.3 Mr. Chandru
List of Documents marked for Petitioner:
Ex.P.1 True copy of FIR Ex.P.2 True copy of FIS Ex.P.3 True copy of spot sketch Ex.P.4 True copy of spot mahazar Ex.P.5 True copy of MVA Report Ex.P.6 True copy of Charge sheet Ex.P.7 True copy of wound certificate Ex.P.8 DAMa issued by HOSMAT hospital Ex.P.9 Discharge summary issued by
Sri.Vijayalakshmi Hospital (Three pages) Ex.P.10 Salary Certificate dated 21.09.2021 issued by Hedge Creators Ex.P.11 Three Photos along with CD Ex.P.12 66 medical bills for Rs.3,09,773.57/ Ex.P.13 44 Medical prescriptions Ex.P.14 Clinical report Ex.P.15 Two Xrays Ex.P.16 One original indoor case paper SCCH - 25 42 MVC 1641/2021 List of Witnesses examined for Respondent/s:
RW.1 Mr. Batheppa RW.2 Mr. Sachin Honnavar
List of documents exhibited for Respondent:
Ex.R.1 The copy of police notice u/Sec.133 of MV Act Ex.R.2 True copy of reply to police notice u/Sec.133 of MV Act Ex.R.3 True copy of wound certificate of petitioner Ex.R.4 True copy of police intimation sent by Hosmat Hospital dated 20.01.2021 Ex.R.5 True copy of insurance policy Ex.R.6 True copy of MLC register extract (PRAKRITI KALYANPUR) XXIII ASCJ & ACMM, Bengaluru.