Bangalore District Court
Shaik Shahinsha vs Maruthi. R on 5 March, 2024
KABC020140312020
BEFORE THE CHIEF JUDGE, COURT OF SMALL
CAUSES &, MEMBER PRL.MOTOR ACCIDENT CLAIMS
TRIBUNAL AT BENGALURU
(S.C.C.H. - 1)
Dated this the 5th day of March, 2024
PRESENT: Smt. B.V. RENUKA, B.Sc., LL.B.,
Chief Judge
Member, Prl. M.A.C.T., Bengaluru.
M.V.C. No.3120/2020
Petitioner: Shaik Shahinsha,
Aged about 39 years,
S/o. Shaik Nazeer Ahmed,
R/o. No.9, 4th Floor,
Sri Lakshminarayana Temple Layout,
Vagdevi Vilas School Road,
Munnekolalu, Marathahalli post,
Bengaluru-37.
Permanent Address:
Shaik Shahinsha,
S/o. Shaik Nazeer Ahmed,
R/o. No.46/711 Upstairs,
Budhawar peta,
Kurnool, Andrapradesh-518 002.
(Represented by Sri M.Rajanna,
Advocate)
-Vs-
SCCH-1 2 M.V.C.No.3120/2020
Respondents: 1. Sri Maruthi R.,
S/o. Sri Rangappa,
R/o No.93, 3rd floor,
Vandana Apartment,
V.G.P. Layout, Kudlu,
Bengaluru- 560 068.
(Owner of motorcycle No.KA-01-HX-
7811)
(Exparte)
2. The TATA AIG General Insurance
Company Limited,
No.69, 2nd floor, J.P. & Devi,
Jambukeshwara Arcade,
Miller's Road, Bengaluru-52.
By its Manager.
(Represented by Sri Muralidhar
Negavar, Advocate)
JUDGMENT
This claim petition is filed by the petitioner under Section 166 of the Motor Vehicles Act claiming compensation of Rs.10,00,000/- along with interest from the respondents on account of the injuries sustained by him in the road traffic accident.
2. Briefly stated, the case of the petitioner is as follows:
SCCH-1 3 M.V.C.No.3120/2020
That on 20.05.2018 at about 10.00 p.m., when the petitioner was a pedestrian on V.G.P. layout road, near Football Court, Hosur Main road, Kudlu, Bengaluru, at that time, the rider of the motorcycle bearing registration No.KA-01-HX-7811 came from west to east with high speed and in a rash and negligent manner came towards wrong side of the road i.e., to the extreme right side of the road and dashed against the petitioner. Due to the impact, the petitioner fell down and sustained grievous injuries. He took treatment in NH Narayana Multi Speciality hospital, Bengaluru. A case was registered in Crime No.02/2019 against the rider motorcycle bearing registration No.KA-01- HX-7811 at Electronic city Traffic Police Station under Sections 279, 337 and 338 of IPC . Hence, this petition for compensation.
3. In response to the notice of the petition, the respondent No.1 has not chosen to appear before the Court and he was placed exparte.
The second respondent appeared before the Court through its Advocate and filed the written statement by SCCH-1 4 M.V.C.No.3120/2020 denying petition averments as false. The issuance of insurance policy in respect of the motorcycle bearing registration No.KA-01-HX-7811 is admitted, but the liability is subject to the terms and conditions of the policy. The petitioner has lodged a false complaint against the insured vehicle after the lapse of 7 months of the alleged accident by twisting the facts and by colluding with the insured and other concerned persons in order to get compensation and insured vehicle is not at all involved in accident. The rider of the motorcycle had no valid and effective driving licence to drive the motorcycle as on the date of accident, as such the jurisdictional police have chargesheeted him for the offences punishable under Section 279,338 of IPC and Section 134(A &B), 187, 3(1), 181 of Motor Vehicles Act, thereby the respondent No.1 has violated the terms and conditions of the policy. The first respondent has not complied with the mandatory requirements of Section 134(c) of M.V.Act and Police have not complied the mandatory requirements of Section 158(6) of M.V.Act. The compensation claimed is excessive and exorbitant. Hence, prays to dismiss the petition.
SCCH-1 5 M.V.C.No.3120/2020
4. On the basis of the above pleadings of the parties, this Tribunal has framed the following Issues:
1. Whether the petitioner proves that due to rash and negligent riding of motorcycle bearing No.KA-01-HX-
7811 by its rider accident has occurred on 20.05.2018 to the petitioner who was pedestrian at the extreme left side of the road and he sustained injuries in the accident?
2. Whether the respondent No.2 proves that the accident has occurred on account of negligent act of petitioner himself?
3. Whether the petitioner is entitled for compensation ? If so, what is the quantum of compensation and from whom?
4. What order ?
5. The petitioner is examined himself as PW-1 and got marked Exhibits P.1 to P.16. The respondent No.2 has examined one witness as RW-1 and got marked Exs.R.1 to R.5.
6. Heard the arguments of both sides.
7. My findings on the above issues are as under:
Issue No.1 In the Affirmative
Issue No.2 In the Negative
Issue No.3 Partly in the affirmative, awarding
compensation of Rs.1,00,000/- from the
respondents No.1& 2
Issue No.4 As per final order for the following:-
SCCH-1 6 M.V.C.No.3120/2020
REASONS
8. Issues No.1 and 2:- Since these issues involve common discussion, I have taken them together.
The petitioner in order to prove his case, has placed reliance upon his oral evidence and documentary evidence as per Exs.P.1 to P.12 such as FIR , complaint, spot panchanama, spot sketch, notice under Section 133 of M.V.Act, reply to notice, IMV report, chargesheet, wound certificate , surgical discharge summary and certificates of discharge. PW-1 being the injured in his affidavit evidence has narrated how he met with an accident and the accident was due to the rash and negligent act on the part of the rider of the motorcycle bearing registration No.KA- 01-HX-7811.
9. The first respondent being the owner of the motorcycle in question has remained exparte. The second respondent being the insurer of the motorcycle in question has contended that a false complaint has been lodged against the rider of the insured vehicle after 7 months of the alleged accident by twisting the facts and by colluding SCCH-1 7 M.V.C.No.3120/2020 with the insured and other concerned persons in order to get compensation and as such the insured vehicle is not at all involved in the alleged accident. It has also contended that if the occurring of the accident is proved by the petitioner, then there is no negligence on the part of the rider of the motorcycle, but the accident occurred due to the sole negligence of the petitioner himself who was standing carelessly on the road. Thus, the second respondent has seriously disputed the involvement of the insured motorcycle in the accident on the ground of inordinate delay of 7 months in lodging the complaint.
10. As per PW1, on 20.05.2018 at about 10.00 p.m. on VGP layout road near Football Court, Hosur main road, Kudlu, Bengaluru city he was a pedestrian at the extreme left side of the road and was proceeding towards western side and at that time the rider of the motorcycle bearing registration No.KA-01-HX-7811 came from west to east in a rash and negligent manner and with high speed and came to the extreme right side and dashed against him and due to it he fell down and sustained injuries.
SCCH-1 8 M.V.C.No.3120/2020
11. RW1 who is an official of the second respondent company has deposed that the petitioner has lodged the complaint after the lapse of 7 months 10 days against the insured motorcycle by twisting the facts illegally in order to get compensation and though as per the deposition of PW1, he claims that he has given intimation to the police and his brother also given statement to the police when they visited the hospital, but no complaint has been filed by the petitioner and no FIR has been registered against the vehicle and this fact creates strong suspicion against the case of the petitioner.
12. As per the admissions of RW1 in the cross- examination, she is giving evidence in this case on the basis of concerned documents and respondent No.1, who is the owner of the offending motorcycle is an accused in a criminal case regarding the accident and in the chargesheet, accused is shown as Police Officer and in the complaint reason for the delay in giving complaint is mentioned and the police have filed chargesheet against the first respondent. All these admissions of RW1 disclose SCCH-1 9 M.V.C.No.3120/2020 that the first respondent is the owner of the motorcycle in question and he is a police Officer and the police have filed chargesheet against him relating to the accident. As per PW1, in the complaint the complainant has given the reason for delay in lodging the complaint. As such, whether the reason assigned by the complainant in the complaint has to be believed or not is the point to be considered now.
13. FIR and complaint as per Exhibits P.1 and 2 disclose that on the basis of complaint lodged by the petitioner himself, a criminal case was registered against the rider of the motorcycle bearing registration No.KA-01- HX-7811. It is noticed that as per the complainant, accident occurred on 20.05.2018, but the complaint was lodged on 02.01.2019. Thus, there is delay of 7 months 10 days in lodging the complaint. In the complaint -Ex.P.2, the petitioner has stated that he met with an accident on 20.05.2018 and immediately after the accident his brother who was residing nearby shifted him to the hospital and he has undergone surgery for the fractures sustained in the SCCH-1 10 M.V.C.No.3120/2020 accident and thereafter his brother gave complaint to the vigiled personal in hospital and as he was worried about his recovery and treatment, there was delay in visiting the police station to lodge the complaint and after his recovery, by discussing with his family members, he has visited the police station and requested the police for further proceedings and thereafter, he went to his native place Kurnool. Thus, in Ex.P.2, the petitioner has given the reasons for delay in lodging the complaint. Ex.P.2 was given to Police Inspector, Electronic City Traffic police station, Bengaluru on 02.01.2019. In view of this explanation offered by PW1, the medical records of the petitioner have to be taken into consideration to decide whether there was alleged accident to the petitioner through the insured motorcycle.
14. As per PW1, immediately after the accident he was shifted to NH Narayana Multispeciality hospital , Bengaluru wherein he took treatment from 20.05.2018 to 23.05.2018 and he was on bed rest for one month from 23.05.2018 to 22.06.2018. The discharge summary at SCCH-1 11 M.V.C.No.3120/2020 Ex.P.10 discloses that the petitioner was admitted to the said hospital with the alleged history of RTA i.e, patient hit by two wheeler near football Court, VGP Layout at around 9.45 p.m. on 20.05.2018. As per the said document, the petitioner was inpatient in that hospital from 21.05.2018 to 23.05.2018. Even the certificates at Exhibits P.11 and P.12 which are issued by the doctor of NH Narayana Multispeciality Hospital, disclose that the petitioner has undergone surgery for the fractures and he was discharged on 23.05.2018 with an advise to take bed rest for nearly one month. As such, Ex.P.10 clearly discloses that the petitioner was admitted to NH Narayana Multispeciality Hospital with a history of RTA met by the petitioner on 20.05.2018 at about 9.45 p.m. through a 2 wheeler. If the history of RTA mentioned in Ex.P.10 was not correct or it is created, as alleged by the second respondent , then the second respondent would have summoned the medical records of NH Narayana Multispeciality Hospital. The second respondent except examining its official who has given evidence on the basis of the documents, the has not chosen to summon any person working in NH Narayana SCCH-1 12 M.V.C.No.3120/2020 Multispeciality Hospital to disprove the contents of RTA mentioned in Ex.P.10. Generally, immediately after the accident, the injured will be shifted to hospital for treatment and as such, the hospital records are the initial documents regarding the accident.
15. The learned Counsel for the petitioner in his written arguments has alleged that the accused was a Police Constable, though many times the petitioner went to the police station to lodge the complaint , but the police have not received his complaint, then he went to his native place to take bed rest, thereafter when he went to the police station to lodge the complaint again police did not receive the complaint from him, as such, he approached DCP and on the instructions of DCP concerned police have received the complaint from him on 02.01.2019 and lodged the FIR. The medical records clearly establish that the petitioner was admitted to NH Narayana Multispeciality Hospital immediately after the accident with the history of RTA and he was given treatment in the said hospital . Therefore, merely because there was inordinate delay of 7 SCCH-1 13 M.V.C.No.3120/2020 months in lodging the complaint, false implication of the insured motorcycle as contended by the second respondent cannot be inferred.
16. Moreover, the second respondent has not summoned MLC or other documents of NH Narayana Multispeciality Hospital, Bengaluru to prove that the medical records produced by the petitioner are created documents. Even the wound certificate Ex.P.9 obtained by the police from NH Narayana Multispeciality Hospital discloses that the petitioner was admitted to the said hospital with a history of RTA on 20.05.2018. PW1 in his cross-examination has deposed that due to the nature of the injury sustained by him in the accident, it was not possible for him to lodge the complaint during hospitalisation, thereafter also it was not possible for him to lodge the complaint as he was not allowed to walk on the road for a period of one month. As per the versions of PW1 in the cross-examination, after one month of the accident, eventhough he has approached the police , but they did not register his case for one or the other reason. SCCH-1 14 M.V.C.No.3120/2020 Admittedly, the first respondent who was the rider of the motorcycle in question as on the date of accident was a Police Constable. Such being the case, the version of PW1 that inspite of his request the police have not received the complaint from him for one or the other reasons and not registered the case appears to be probable.
17. PW1 in his cross-examination has deposed that after receipt of M.L.C. , the police have visited the hospital, at that time he was not in a position to speak and therefore, his brother has given the statement on his behalf, but he has not produced any document in this regard. That means as per PW1, when the police visited the hospital his brother has given the statement on his behalf. But the said statement is not produced before the Court by the petitioner. Even the MLC extract referred by PW1 is not placed before the Court by either of the parties. Therefore, the reasons assigned by the petitioner for delay in lodging the complaint as to non-receipt of the complaint from him by the concerned police after he taking bed rest has to be believed as a genuine reason since the first respondent SCCH-1 15 M.V.C.No.3120/2020 being the rider of the motorcycle was an official of the police department. Even the materials on record disclose that the petitioner is a resident of Kurnool , Andrapradesh state. As such, the say of the petitioner that after taking treatment he had been to his native place for recovery and bed rest and at that time it was not possible for him to lodge the complaint has be accepted as a genuine reason.
18. It is noticed that only when the petitioner approached the higher Police Authority , the complaint was received on 02.01.2019 by the concerned police on the instructions of DCP. In the absence of evidence of any official from NH Narayana Multispeciality Hospital or doctor from the said hospital or in the absence of MLC extract, it is not made known whether the admission of the petitioner to the said hospital due to RTA was intimated to the concerned police after registering MLC case or not. Normally, the hospital authorities will intimate about the registration of MLC case to the concerned police , thereafter it is the duty of the police to visit the hospital and record the statement of the injured. But in the present SCCH-1 16 M.V.C.No.3120/2020 case, it appears no such procedure has been followed by the hospital authorities or the police. For the lapses committed by the said authorities, the petitioner being an injured cannot be denied his right to claim compensation. Hence, by considering the medical records of the petitioner and the facts and circumstances brought out in the evidence, I am of the opinion that merely because there was delay of 7 months in lodging the complaint, the claim of the petitioner cannot be doubted when he has given prime importance to his treatment rather than lodging the complaint. As such, the explanation offered by the petitioner in his complaint and also in his evidence for delay in lodging the complaint has to be accepted as a plausible explanation to believe that he met with an accident on 20.05.2018 on account of dashing of motorcycle to him.
19. The learned counsel for the petitioner during his arguments has relied upon the judgment of Apex Court in S.L.P. (Civil) No.21077/2019 (Janabai W. , D/o. Dinkar Rao Ghorpade and others Vs. ICICI Lambord General SCCH-1 17 M.V.C.No.3120/2020 Insurance Co.Ltd.) and submitted that the evidence placed on record proves that the accident has occurred due to the rash and negligent act on the part of the rider of the motorcycle bearing registration No.KA-01-HX-7811 and there is no false implication of the insured vehicle in accident. As discussed above, this Court has come to the conclusion that the contention of the second respondent about the false implication of the insured vehicle is not proved, but it is proved that accident has occurred due to the rash and negligent act on the part of the rider of the motorcycle bearing registration No.KA-01-HX-7811 . Therefore, as observed in the above judgment, the delay in lodging the complaint cannot enable the Court to doubt the claim of the petitioner since the treatment of the petitioner was given primary concern rather than lodging the complaint. Therefore, the observations made in the above judgment is applicable to the present case on hand.
20. The learned counsel for the second respondent during his arguments has relied upon the judgments in (1) M.F.A.No.4461/2009 (MV) (Sri G.B.Ravi Vs. H.J.Bhaskar SCCH-1 18 M.V.C.No.3120/2020 and another) and (2) M.F.A. No.201689/2016 (MV) (Mahadevi and others Vs. Shivaputra and another) and submitted that the petitioner in collusion with the police and the owner has got manipulated the documents and those documents cannot be accepted as insured vehicle was falsely implicated in the accident to have wrongful gain from the insurance company by the petitioner. I have gone through these judgments. The facts and circumstances of these judgments differ from the facts and circumstances of the present case on hand. As discussed above, this Court has come to the conclusion that the insured vehicle is involved in the accident and due to the rash and negligent act on the part of the rider of the motorcycle, this accident has occurred. Therefore, these two judgments are of no help to the second respondent.
21. Spot panchanama and spot sketch at Exhibits P.3 and P.4 reveals the state of affairs at the accident spot. In Ex.P.3, the place of accident is shown as near Football ground situated at Kudlu, V.G.P. Layout, Vandana Apartment road. In Ex.P.3, it is mentioned that the said SCCH-1 19 M.V.C.No.3120/2020 roan runs East to West and width of the said road is about 25 feet and it leads to Vandana Apartment. In Ex.P.4 -Spot sketch, the place of accident is shown in alphabet 'A', the movements of the pedestrian is shown in alphabet 'B' and the motorcycle bearing registration No.KA-01-HX-7811 is shown in alphabet 'C'. The place of accident 'A' in Ex.P.4 is on the extreme left side of the road. As per Ex.P.4, the rider of the motorcycle bearing registration No.KA-01-HX-7811 who was on the left side of Vandana Apartment road has taken his motorcycle suddenly to the extreme right side and has dashed the petitioner who was the pedestrian on that road. PW1 in his cross-examination has deposed that at the time of accident he was proceeding from Kudlu to Marthahalli as a pedestrian and there is no footpath at the spot and two wheelers were parked towards his left side. In Exs.P.3 and P.4, the existence of footpath in front of Vandana Apartment is not shown. As there was no footpath on the left side of the road, the petitioner was proceeding on the extreme left edge of the road as shown in Ex.P.4 and at that time the rider of the motorcycle who was on the left side of Vandana Apartment road had taken SCCH-1 20 M.V.C.No.3120/2020 it suddenly towards extreme right side of the road and has dashed the petitioner resulting in accident. Exhibits P.3 and P.4 clearly establish that the petitioner met with an accident due to the rash and negligent act on the part of the rider of the motorcycle bearing registration No.KA-01- HX-7811 . Thus, Exhibits P.3 and P.4 supports the case of the petitioner.
22. Exhibits P.5 and P.6 are the notice issued to the first respondent under Section 133 of M.V.Act and reply to the said notice. In Ex.P.6 i.e., in the reply, the first respondent has stated that the motorcycle bearing registration No.KA-01-HX-7811 belongs to him and he is the RC owner of the said vehicle and he was riding the said motorcycle on the date of the accident. If really the motorcycle in question was not involved in the accident as contended by the second respondent and it has been falsely implicated by the petitioner, then the owner of the said motorcycle i.e., the first respondent would not have stated in Ex.P.6 that on the date of accident he was riding the motorcycle involved in the accident. Thus, Exhibits P.5 SCCH-1 21 M.V.C.No.3120/2020 and P.6 also supports the case of the petitioner. Ex.P.7 is the IMV report wherein it is shown that no damages are caused to the motorcycle.
23. Ex.P.9 is the wound certificate which discloses that petitioner has sustained grievous injuries in the accident . Ex.P.8 is the charge sheet filed by the police against the rider of the motorcycle bearing registration No.KA-01-HX-7811 after detailed investigation. Even in the chargesheet it is alleged that accident took place due to the rash and negligent act on the part of the rider of the motorcycle in taking the motorcycle to the extreme right side and hitting the petitioner, who was moving on the edge of the road. This chargesheet was not challenged by the rider of the motorcycle i.e. the first respondent. This conduct of the first respondent in not challenging the chargesheet itself is sufficient to draw an adverse inference against him that as the accident took place due to his negligence, he has remained silent.
24. The evidence of RW1 is of no help to the second respondent to prove that accident was not caused by SCCH-1 22 M.V.C.No.3120/2020 insured vehicle and about false implication of the said vehicle in the accident in order to get compensation, since RW1 has given evidence only on the basis of the documents. The second respondent has not chosen to examine the rider of the motorcycle i.e., the first respondent to prove its contentions. The admissions of RW1 in the cross-examination supports the case of the petitioner. Hence, by considering all these aspects, I am of the opinion that the petitioner has proved that he met with an accident and sustained injuries due to the rash and negligent act on the part of the rider of the motorcycle bearing registration No.KA-01-HX-7811, whereas the second respondent has failed to prove that accident has occurred on account of the negligent act of the petitioner himself. Hence, I answer issue No.1 in the affirmative and issue No.2 in the negative.
25. Issue No.3:
(a). Pain and Agony:
PW-1 has produced the wound Certificate at Ex.P.9, which discloses that the petitioner has sustained (1) SCCH-1 23 M.V.C.No.3120/2020 Deviated Nose nasal bleed (2) Abrasions over the left leg (3) Swelling over the left thigh. As per the opinion of the doctor, the said injuries are grievous in nature. Ex.P.10 is the discharge summary, which discloses that the petitioner has taken treatment in NH Narayana Multispeciality Hospital as an inpatient from 21.05.2018 to 23.05.2018 and he has undergone surgery by way of closed reduction for the nasal bone fractures sustained in the accident. Exhibits P.11 and P.12 also supports the case of the petitioner. The injuries sustained by the petitioner requires minimum 2 months treatment. During the treatment period, the petitioner has suffered lot of pain and agony. So, taking into account the nature of the injuries sustained by the petitioner and number of days of his treatment in the hospital, I deem it just and proper to award compensation of Rs.30,000/- under the head Pain and agony.
(b). Medical Expenses (including conveyance, attendant charges and extra nourishment): SCCH-1 24 M.V.C.No.3120/2020
PW-1 has deposed that he has spent around Rs.1,00,000/- towards medical expenses, nourishment food, conveyance and other incidental charges. In support of his evidence, he has produced medical bills at Ex.P.13 which are amounting to Rs.11,936/-. In Ex.P.13(1) , which is the final bill of NH Narayana Multispeciality Hospital , it is mentioned that the bill amount was sponsored by Medi Assist India Private Limited. Even PW1 has deposed that out of total bill of Rs.53,387/-, he has spent Rs.4,005/-
from his pocket at the time of discharge and remaining amount was reimbursed by Medi Claim policy. However, the bills are in respect of registration charges, X-ray and C.T.Scan charges, consultation charges after his discharge from the hospital. The petitioner is entitled for those amounts. There are 3 pharmacy bills in Ex.P.13, which do not bear the signature of the person who has issued them. Even there are no prescriptions supporting pharmacy bills. However, by considering the nature of the injuries sustained by the petitioner and the type of treatment undergone by the petitioner , it can be said that the petitioner has spent some amount towards medicines, SCCH-1 25 M.V.C.No.3120/2020 conveyance, nourishment and attendant charges. Hence, I deem it just and proper to award compensation of Rs.20,000/- under this head.
(c) Loss of income during the treatment period:
PW-1 has deposed that prior to the accident, he was working as a Manager at Capgemini Technology Services India Limited and he was drawing salary of Rs.75,000/p.m. , but due to the accidental injuries he did not attend to his duty for about 2 months. In support of his evidence, PW1 has produced his identity card issued by his company at Ex.P.15 and Leave certificate at Ex.P.16. Exs.P.15 and P.16 discloses that the petitioner is an employee of Capgemini Technology Services India Limited since March 3, 2010 and his designation is Manager. In Ex.P.16, it is mentioned that the petitioner has taken approved Privilege Leave from 21.05.2018 to 31.05.2018, from 01.06.2018 to 15.06.2018 and from 06.07.2022 to 08.07.2022 . PW1 in his cross-examination has deposed that as he has applied for privilege leave, he has got salary.
According to PW1, if he had applied for loss of pay, in future he may encash those privilege leave. According to SCCH-1 26 M.V.C.No.3120/2020 PW1 himself, he has got salary as he had applied for Privilege Leave. Hence, I am of the opinion that the petitioner has not suffered any loss of income during treatment period. As such, no amount is awarded under this head.
(d) Future loss of earning capacity:
PW-1 has deposed that after the accident he did not attend to his duty for a period of 2 months and now he is doing his duty with difficulty. PW1 in his cross- examination has deposed that now also he is working in Capgemini Technology Services India Limited and his annual package salary is Rs.12,25,000/-. Hence, it can be said that now the petitioner is having salary of Rs.1,02,000/- per month. According to him in the month of May 2018 he was getting salary approximately at Rs.75,000/per month. That means after the accident, the salary of the petitioner has been enhanced. Hence, I am of the opinion that there is no loss of future income to the petitioner on account of accidental injuries. Even the petitioner has not examined the doctor who treated him to SCCH-1 27 M.V.C.No.3120/2020 prove that he has suffered permanent physical disability amounting to functional disability. As such, by holding that the petitioner has not suffered any loss of future earning capacity due to accidental injuries, no amount is awarded under this head.
(e) Towards unhappiness and loss of amenities:
PW-1 has deposed that due to the accidental injuries, he has got pain in his face and his face has been disfigured as there are ugly scar marks on his face and he has lost beauty of his face. From the difficulties stated by PW1 and the ugly scar marks on his face will definitely cause unhappiness to the petitioner to some extent while doing his normal activities and his avocation. Hence, I deem it just and proper to award Rs.50,000/- under this head.
26. In view of the reasons stated above, in all the petitioner is entitled to the compensation as under:
Sl. Head of Compensation Amount
No.
a. Pain and Agony Rs. 30,000-00
SCCH-1 28 M.V.C.No.3120/2020
b. Medical Expenses, conveyance, Rs. 20,000-00
nourishment and attendant
charges
c. Unhappiness and loss of Rs. 50,000-00
amenities
TOTAL Rs. 1,00,000-00
Thus, the petitioner is entitled for a sum of Rs.1,00,000/- with interest at the rate of 6% p.a. from the date of the petition till deposit in Court.
27. So far as the liability is concerned, according to the petitioner, the first respondent is the owner and the second respondent is the insurer of motorcycle bearing registration No.KA-01-HX-7811 . The second respondent in the written statement though admits that it has issued a policy to the motorcycle in question and it was valid as on the date of accident , but its liability is subject to the terms and conditions of the policy. The second respondent has contended that the first respondent who was riding the vehicle had no valid and effective driving licence to ride it at the time of alleged accident and as such the jurisdictional police have chargesheeted him for the SCCH-1 29 M.V.C.No.3120/2020 offences punishable under Sections 279, 338 of IPC , Sections 134(A &B) , 187, 3(1), 181 of IMV Act and as such the first respondent has violated the terms and conditions of the policy , hence, it is not liable to indemnify the first respondent.
28. In support of its contention, the second respondent has examined its official as RW1 and she has deposed about the above contention taken in the written statement. RW1 has produced copy of the insurance policy , office copy of the legal notice issued to the first respondent , certified copies of the notice issued by the police to the respondent No.1 under Section 133 of MV Act and reply of the first respondent to the said notice as per Exhibits R.2 to R.5. In the chargesheet Ex.P.8 it is alleged that the rider of the motorcycle in question had no driving licence as on the date of accident to ride the motorcycle. Even in the reply given by the first respondent to the notice issued to him by the police under Section 133 of M.V.Act as per Exhibits P.6 and R.5, the first respondent himself has stated that he had no driving licence as on the date of SCCH-1 30 M.V.C.No.3120/2020 accident. Even RW1 in her cross-examination has deposed that in Ex.R.5, the respondent No.1 has stated that he has no driving licence. Thus, from the evidence of RW1 and from the Exhibits Ex.P.6, P.8 and Ex.R.5, it can be safely held that the rider of the motorcycle in question i.e., the first respondent had no driving licence as on the date of accident. Whether on the ground that the rider of the motorcycle had no driving licence as on the date of accident , the insurance company can be exonerated from indemnifying the first respondent is the point to be considered now.
29. In this regard, the learned counsel for the petitioner has relied upon the judgment in Civil Appeal No.8144/2018 (Shamanna and another Vs. The Divisional Manager, Oriental Insurance Co.Ltd., and others) and Civil Appeal No.6902/2021 (Kurvan Ansari alias Kurvan Ali and another Vs. Shyam Kishore Murmu and another) and submitted that if this Court comes to the conclusion that the driver of the vehicle had no valid SCCH-1 31 M.V.C.No.3120/2020 driving licence as on the date of accident , the Court has power to pass an order of Pay and Recover.
30. The learned Counsel for the second respondent during his arguments relied upon the following judgments :
1. M.F.A. Nos.100226/16 (MV) C/w. 100730/16 (dated 22.04.2021 Smt. Padma and others Vs. Ramanjali Naidu and others)
2. Civil Appeal Nos.7220-7221/ 2011 of Hon'ble Supreme Court of India decided on 23.09.2020 (Beli Ram Vs. Rajinder Kumar and another )
3. M.F.A.No.4716/2011 (MV) (United India Insurance Co.Ltd. Vs. Smt.Umamaheshwari @ Umadevi and others)
4. S.L.P. © No.33638/2017 ( Balu Krishna Chavan Vs. The Reliance General Insurance Company Ltd., and others)
5. 2018(1)Kar.L.R.249 ( The Oriental Insurance Co.Ltd. Vs. Annemma and others)
31. In the judgments relied upon by the petitioner counsel, their Lordships have directed the insurance company to pay the compensation amount to the claimants and then recover the same from the owner of the vehicle. That means Pay and Recover order was passed in the decisions relied upon by the petitioner counsel. Whereas, in the judgments relied upon by the second respondent SCCH-1 32 M.V.C.No.3120/2020 counsel, their Lordships have held that if there is no valid driving licence , insurance company is not liable to indemnify the owner in case of breach of terms and conditions of the policy. It was also held in the said judgments that, when the notice has been issued by calling upon the owner to produce the driving licence and if he fail to produce, then insurance company is not liable to pay the compensation. It was also observed in the said judgments that, if the driver is charged with Section 3(1) read with Section 181 of M.V.Act, it has to be presumed that he has no driving licence. It is pertinent to note that in all cases, an order of pay and recover cannot be passed, since the facts and circumstances of the case has to be taken into consideration.
32. In the present case as discussed above, the rider of the motorcycle had no driving licence at all to ride the motorcycle as on the date of accident. If the driving licence had expired and if it was not renewed and if the rider had invalid driving licence, then the matter would have been different. But in the present case, the rider of the SCCH-1 33 M.V.C.No.3120/2020 motorcycle had no driving licence at all . Moreover, the first respondent is a police official and not a layman. By considering the irresponsible conduct of the first respondent in riding the motorcycle without having driving licence itself enables the Court not to pass Pay and Recover order in this case. In the judgments referred by the second respondent counsel, his Lordships of Hon'ble Supreme Court of India have observed that as the rider of the insured vehicle was not possessing driving licence, insurance company cannot be fastened with Pay and Recover when there is a clear breach of policy conditions and the liability is on the owner himself. Thus, the act of the owner in riding the motorcycle without having driving licence amounts to breach of policy conditions within the meaning of Section 149(2)(a)(ii) of M.V.Act and as such the liability of the insurer has to be exonerated on the said ground.
33. Admittedly, in the present case also, the first respondent has not chosen to lead his evidence, since he remained exparte. Even in the reply given by the first SCCH-1 34 M.V.C.No.3120/2020 respondent to the police notice as per Ex.P.6 and Ex.R.5, the first respondent was not possessing valid and effective driving licence. It is noticed that the rider of the motorcycle i.e., the first respondent was chargesheeted for the offences punishable under Section 3(1) read with Section 181 of M.V.Act for not possessing the driving licence . As such, from the evidence of RW1 coupled with the documents placed before the Court, it is established that the insured i.e., the first respondent has violated the terms and conditions of the policy by riding his vehicle without having driving licence as on the date of accident. Hence, I am of the opinion that the insurance company i.e., 2 nd respondent cannot be fastened with the liability of Pay and Recover, when there is clear breach of policy conditions and the liability to pay the compensation is on the first respondent -owner himself. As such, it is not proper to pass an order of Pay and Recover of compensation amount since the facts and circumstances of the present case differs from the facts and circumstances of the judgments relied upon by the petitioner counsel. On the other hand, it is proper to direct the first respondent to pay the SCCH-1 35 M.V.C.No.3120/2020 compensation by exonerating the liability of the second respondent to pay the compensation. As such, the petition against the second respondent is liable to be dismissed. By considering all these aspects, I am of the opinion that the first respondent is liable to pay the compensation of Rs.1,00,000/- to the petitioner along with interest at 6% p.a. from the date of the petition till deposit in Court. Accordingly, I answer issue No.3 partly in the affirmative.
34. Issue No.4 : In view of my findings on Issue Nos.1 to 3 and for the reasons stated therein , I proceed to pass the following: -
ORDER The claim petition filed by the petitioner is allowed in part with costs against the respondent No.1 awarding compensation of Rs.1,00,000/- (Rupees one lakh only ) with interest at 6% p.a., from the date of petition till the date of deposit in Court.
The respondent No.1 is liable to pay the compensation amount with interest to the petitioner within 3 months from the date of this order.SCCH-1 36 M.V.C.No.3120/2020
As the compensation amount is meager, entire compensation amount with interest is ordered to be released to the petitioner.
The petition filed by the petitioner against the respondent No.2 is dismissed.
Advocate's fee is fixed at Rs.1,000/- .
Draw an Award accordingly.
(Dictated to the Stenographer, transcribed by her, corrected, signed and then pronounced by me in the Open Court on this the 5 th day of March, 2024) (Smt.B.V.RENUKA) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bengaluru.
ANNEXURES Witnesses examined on behalf of the petitioners:
P.W.1 : Shaik Shahinsha Documents marked on behalf of the petitioners:
Ex.P-1 Certified copy of FIR Ex.P.2 Certified copy of complaint Ex.P.3 Certified copy of Spot Panchanama Ex.P.4 Certified copy of S[pot Sketch Ex.P.5 Certified copy of notice under Section 133 of M.V.Act Ex.P.6 Certified copy of reply to notice Ex.P.7 Certified copy of IMV Report Ex.P.8 Certified copy of chargesheet SCCH-1 37 M.V.C.No.3120/2020 Ex.P.9 Certified copy of wound certificate Ex.P.10 Surgical discharge summary
Exs.P.11 & Certificate of discharge dated P.12 25.05.2018 and 06.06.2018 Ex.P.13 Medical bills (8) Ex.P.14 Notarized copy of Aadhar card Ex.P.15 Notarized copy of identity card issued by Capgemini Technology Services India Limited Ex.P.16 Leave Certificate issued by the employer of the petitioner Witnesses examined on behalf of the respondents :
RW-1 : Shreyas Bhat Documents marked on behalf of the respondents:
Ex.R.1 Authorization letter
Ex.R.2 True copy of insurance policy
Ex.R.3 Office copy of the legal notice issued to
the respondent No.1
Ex.R.3(a) Postal receipt for having sent the legal
notice at Ex.R.3
Ex.R.4 True copy of notice issued by the Police
to the respondent No.1 under Section
133 of MV Act
Ex.R.5 Reply to the notice
(Smt.B.V.RENUKA)
Chief Judge,
Court of Small Causes &
Member, Prl. M.A.C.T.
Bengaluru.