Bangalore District Court
Smt. Mahalakshmi Swamy vs Sri. Kambanna on 31 May, 2022
KABC020228572020
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES, AT BENGALURU
DATED THIS THE 31st DAY OF MAY 2022
(SCCH25)
Present: Miss.B.T.ANNAPOORNESHWARI
B.A., L.L.B., L.L.M.
XXI A.C.M.M. & XXIII A.S.C.J, Bengaluru.
MVC No.4822/2020
PETITIONER: Smt. Mahalakshmi Swamy
K.N.
W/o Narasimhaswamy H.N.
Aged about 59 years,
R/at #B6, SFS Apartments,
6th 'B' Cross,
Yelahanka New Town,
Bangalore - 560 064.
(By Sri.B.S.Harish Kumar,
Advocate.)
V/S
RESPONDENTS: 1.Sri. Kambanna
Major,
S/o Mallanna,
R/at #22, Near Govt. School,
Kanaka Nagar,
Chikka bommasandra,
Bangalore - 560 065.
2 MVC 4822/2020
SCCH-25
(RC owner of Goods Auto bearing
Reg.No.KA50A6684)
(ExParte)
2.The United India Ins. Co.
Ltd.,
Regional Office, T.P.Hub,
5th and 6th Floors, Krishi
Bhavan,
Hudson Circle, Opp.
BBMP Head Office,
Nrupathunga Road,
Bangalore - 560 001.
(Insurer of Goods Auto bearing
Reg.No.KA50A6684)
Policy No.0716003118P115050410 valid
from 20.02.2019 to 19.02.2020
(By Sri.K.H.Dinesh Reddy,
Advocate.)
.......
JUDGMENT
The Petitioner has filed this petition under Sec.166 of the M.V. Act seeking compensation for the injuries sustained by her in a road accident on 23.10.2019.
2. The case of the Petitioner in brief is that, on 23.10.2019 at about 12.45 p.m. the petitioner was proceeding 3 MVC 4822/2020 SCCH-25 as a Pillion rider on the Scooty bearing Reg.No.KA50V2179 which was ridden by petitioner's daughter Chaitra H.N. slowly, carefully and cautiously by observing all traffic rules and regulations, proceeding on the left side of the road near Adithi International School, Yelahanka New Town, Bangalore, at that time a Goods Auto bearing Reg.No.KA50A6684 driven by its driver at high speed in a rash and negligent manner without following traffic rules and regulations, so as to endanger to human life and all of a sudden came from back side and dashed against hind side of the Scooty, due to impact the petitioner and rider were thrown on the road and sustained grievous injuries. Immediately after the accident she was shifted to Navachethana Hospital, Yelahanka, Bangalore, and admitted as an inpatient on 23.10.2019, provided first aid treatment and thereafter shifted to Chord road Hospital, Rajajinagar, Bangalore, and admitted as an in patient on 23.10.2019, underwent surgeries and discharged on 29.10.2019. Again the petitioner admitted to the same Chord Road Hospital as an inpatient on 25.11.2019 for 4 MVC 4822/2020 SCCH-25 second time and underwent wound debridement + Plate screw removal from lateral malleolus + external fixator removal + below knee cast application done under spinal Anaesthesia and discharged on 27.11.2019 with an advice to take complete bed rest, continue medicines and to take regular followup treatment as an outpatient. So far she has spent Rs.6,25,000/ towards medical, conveyance, nourishment and other incidental charges etc.. Prior to the accident she was hale and healthy, doing Tailoring work beside household work and earning more than Rs.15,000/ per month. On account of the said injuries, due to fractures and disability, the petitioner confined to bed and unable to do any manual work till this day and undergoing huge pecuniary loss and hence she is undergoing great mental shock, agony and financial loss. The disability is greatly coming in the way of her daytoday activities, avocation and household work. Therefore, the Respondents being the RC owner and the insurer of the offending vehicle are jointly and severally liable to pay compensation to the Petitioner. 5 MVC 4822/2020
SCCH-25
3. In response to service of notice issued by this court/Tribunal, the Respondent No.1 remained absent and hence placed exparte and the respondent No.2 has appeared through their counsel and filed objection statement.
4. The Respondent No.2 in the written statement have stated that there is non compliance of Section 134(c) and Section 158(6) of M.V. Act, denied the averments made in columns 3 to 6, 8 to 14, 21 and 22 and submitted that the insured vehicle was said to be driven by the first respondent without possessing valid and effective DL as on the date of accident and hence the police also filed chargesheet under Section 3(a) r/w.Sec.181 of M.V. Act and hence there is breach of policy. Further submitted that on account of the carelessness on the part of the driver of the scooty in which petitioner was proceeding as pillion rider as he driven the vehicle in rash and negligent manner with high speed and suddenly slowed down without giving any signal and caused the accident and hence the petition is bad for nonjoinder of 6 MVC 4822/2020 SCCH-25 necessary party as insurer and owner of the scooty have not been impleaded.
5. 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 act of Driver of Goods Auto bearing Reg.No.KA50A6684 and in the said accident petitioner sustained injuries?
2. Whether the Petitioner is entitled for Compensation? If so, what is the quantum? From whom?
3. What order or award?
6. The Petitioner in order to prove her case, she has examined himself as PW.1 and marked 18 documents as per Exs.P.1 to P.18. On the other side, the Respondent No.2 got examined Smt.R.Manjula - A.O. as RW.1 and produced 4 documents as per Exs.R.1 to R.4 and also examined 7 MVC 4822/2020 SCCH-25 Smt.Mamatha - Superintendent, Yelahanka RTO, Bangalore, as RW.2 and produced 2 documents as per Ex.R.5 and R.6.
7. Heard the arguments of the learned counsel for both the parties. The counsel for the petitioner has relied upon decisions reported in, (1) 2022 (1) AKR 262 New India Assurance Co. Ltd., Bangalore v. Hajaratiabi Moulasab Karjagi and another, (2) 2022 (1) AKR 179 IffcoTokyo General Insurance Bengaluru v. Sujata Basavaraj Tirlapur and others, (3) 2019 (4) AKR 772 Divisional Manager, national insurance Company Limited, Hubli v. Smt.Zubeda Khatalsab Khanapuri and another, (4) 2014(2) AKR 456 New India Assurance Co. Ltd. V. B.M. Subramanya & another.. The counsel for the Respondent No.2 has filed the decision reported in, 1996 ACJ 253 in the case of New India Assurance Co. Ltd., Vs. Mandar Madhav tambe and Ors..
8. On hearing both sides and perusal of the evidence on record this court answers the above issues as follows: 8 MVC 4822/2020 SCCH-25 Issue No.1: In the affirmative Issue No.2: Partly in the affirmative.
Issue No.3: As per the final order,
for the following:
REASONS
9. Issue No.1:
The Petitioner in order to prove that the accident was occurred due to actionable negligence on the part of the driver of the Goods Auto bearing No.KA50A6684 has examined herself as PW.1 and produced 5 documents as per Exs.P.1, P.2, P.4, P.7 and P.9. She has deposed specifically in her evidence that the driver of the offending Goods Auto driven it in a rash and negligent manner and all of a sudden came from her back side with a high speed and dashed to her Scooty and caused the accident. On the other side, the Respondent No.2 being the insurer has denied that the accident was occurred due to the rash and negligence of the driver of the offending vehicle and contended that there was negligence on the part of the petitioner. In the cross 9 MVC 4822/2020 SCCH-25 examination of PW.1 it is brought out that, on that day her daughter was riding the scooty, in the first information it is mentioned that unknown goods vehicle caused the accident, in her statement there is no mention of number of the goods vehicle.
10. The respondent No.2 got examined the RW.1 who deposed in support of the defence of the respondent No.2. The RW.1 further deposed that the accident occurred on 23.10.2019 and first information lodged on the same day by the daughter of the petitioner without mentioning the vehicle number but after lapse of three months on 31.1.2020 without proper investigation the concerned police seized the vehicle and filed false chargesheet against their insured vehicle to help the petitioner to get compensation. In the cross examination it is brought out that the police filed chargesheet against the driver of offending vehicle.
11. The Ex.P.7/first informant shows that there is no mention about the goods vehicle number. On perusal of 10 MVC 4822/2020 SCCH-25 wound certificate/Ex.P.3 and Ex.P.6/discharge summary there is no mention about the nature of vehicle which caused the accident but in the history it is only mentioned as RTA. The reply notice shows that on 31.1.2020, after three months the said reply by the owner taken by the police for the notice u/Sec.133 of M.V. Act. The petitioner has not produced the seizure mahazar and MVA report. The respondent No.2 contends that as there is no mention of vehicle number in first information then how the notice issued after three months to the first respondent is not explained and there is no any proper investigation documents in this regard and hence it is clear that the insured vehicle was falsely implicated with active collusion of the petitioner, respondent No.1 and police and therefore adverse inference to be taken in this regard. The said contention has some force but the respondent No.2 has not lead any cogent evidence and also not summoned the I.O. to prove the said contention with cogent evidence. Therefore, in absence of cogent evidence the said contention is not acceptable one. Therefore, the 11 MVC 4822/2020 SCCH-25 documents placed by the Petitioner such as FIR, charge sheet, spot sketch, FIS and spot mahazar as per Exs.P.1, P.2, P.4, P.7 and P.9 are all public documents which have got presumptive value under law. As such, there are no reasons to discard or disbelieve the version of the Petitioner/PW.1 and accept the version of the Respondent No.2. The wound certificate produced by the Petitioner as per Ex.P.3 further shows that, on account of the accident, the Petitioner has sustained grievous and simple injuries. In the cross examination of PW.1 nothing worth is elicited to disprove her case with regard to accident. Under these circumstances, relying upon the oral evidence of PW.1 coupled with the documents produced as per Exs.P.1, P.2, P.4, P.7 and P.9 this court is of the opinion that the accident has been occurred due to the rash and negligent driving of the driver of the offending Goods Auto and same has resulted in grievous and simple injuries to the Petitioner. Accordingly issue No.1 held in the affirmative.
12 MVC 4822/2020
SCCH-25
12. Issue No.2: The Petitioner has further averred that, on account of the accidental injuries she is bed ridden, undergo physiotherapy. In spite of all better possible treatment she is still suffering with permanent disability. She is undergoing deep mental shock, severe pain and sufferings since the injuries caused are permanent in nature. Further, the Petitioner to substantiate that there is loss of income due to she is suffering from the permanent disability has not examined any doctor who has got expertise in this field. She also has not placed disability certificate issued by the competent person. Therefore, the version of the Petitioner that, the injuries sustained in the accident have caused her disability is not acceptable. The counsel for the petitioner prayed to award compensation for loss of amenities but as there is no evidence led in this regard and hence no compensation can be awarded under this head. On perusal of Ex.P.6 discharge summaries shows that the petitioner was clinically stable at the time of discharge. However, it is 13 MVC 4822/2020 SCCH-25 pertinent to note that, the wound certificate produced as per Ex.P.3 discloses that, the petitioner has sustained (1) Deep lacerated wound over right ankle, exposing tibial plafond and soft tissue, (2) Swelling and deformity of left knee and (3) Abrasions over right hand and the doctor opined that the injury Nos.1 and 2 are grievous in nature and injury No.3 is simple in nature. Therefore, the Petitioner is entitled for compensation of Rs.25,000/ under the heads of Pain and Suffering. The Petitioner has stated that she has spent Rs.6,25,000/ towards medical, conveyance, nourishment and other incidental charges etc.. In this regard she has produced bills issued by Chord road hospital for Rs.1,40,000/ (total bill is Rs.3,81,420/ out of this Rs.2,40,000/ was paid by the Insurance Co.) and outpatient bill for Rs.5,480/ and 16 medical bills for Rs.32,899/, in total for a sum of Rs.1,78,379/ as per Exs.P.11 to P.13. There is no any contrary evidence lead by the respondent No.2 and in the crossexamination also nothing contrary elicited to said medical bills except suggestions which were 14 MVC 4822/2020 SCCH-25 denied. Therefore the petitioner entitled for total amount of Rs.1,78,379/ under the head of medical expenses. As mentioned above the Petitioner was shifted to Navachethana Hospital, Yelahanka, Bangalore, provided first aid and later she was shifted to Chord Road Hospital, Rajajinagar, Bangalore, and she was inpatient from 23.10.2019 to 29.10.2019, 25.11.2019 to 27.11.2019 and discharged with an advice to take complete bed rest and to continue regular follow up treatment. During that time, certainly she would have spent some amount towards conveyance, transportation and for other incidental expenses. Therefore, the Petitioner is entitled for a sum of Rs.10,000/ towards conveyance, transportation and other incidental expenses. In total, the Petitioner is entitled for a sum of Rs.2,13,379/. If it is rounded of then the compensation comes to Rs.2,13,400/.
LIABILITY
13. The respondent No.2 further contended that the driver of offending insured vehicle did not has valid DL as on 15 MVC 4822/2020 SCCH-25 the date of accident as he only had LLR as it is clear from the documents which are chargesheet and the reply given to police notice and hence as there is breach of policy conditions and hence they are not liable to pay compensation to the petitioner and if any compensation awarded then the respondent No.1 is liable to pay the same. The counsel for the petitioner submitted that as there was not provision for the DL holder to sit in the Goods Auto and hence even though the first respondent held LLR was having valid DL but said submission cannot be acceptable for the reason that there needs to be compliance of Section 3 of M.V. Act and there is no any exceptions provided under the said provision of law for goods Auto and when there is no compliance of Section 3 then it is clear that the holder of LLR did not has valid DL as on the date of accident. Further, in support of the defence the respondent No.2 examined the RW.1 who deposed in support of their defence. In the crossexamination of RW.1 it is elicited that the policy 16 MVC 4822/2020 SCCH-25 was valid as on the date of accident, the first respondent was driving the offending vehicle on the date of accident.
14. The respondent No.2 further got examined the official of Yelahanka RTO, Bengaluru, as RW.2 who deposed that as per Ex.R.6/Learner's license the first respondent only having learner's license. In the crossexamination of RW.2 it is elicited that in the Auto the DL holder cannot be accommodated to sit by the side of LLR driver as it is LMV Three wheeler Goods Auto category vehicle.
15. In this regard the counsel for the respondent No.2 has relied upon above referred decision reported in 1996 ACJ 253. I have perused the said decision at para 14 it is observed in the said case that, "..... the aforesaid clause in the insurance policy makes it abundantly clear that the insurance company, in the event of an accident, would be liable only if the vehicle was being driven by a person holding a valid driving license or a permanent driving licence 17 MVC 4822/2020 SCCH-25 'other than a learner's licence'. This clause specifically provides that even if respondent No.3 had held a current learner's licence at the time of the accident, the appellant would not be liable.....". In the said case in the policy there was specific clause that only if the vehicle was being driven by a person holding a valid driving licence other than a learner's licence but in this case there is no any such clause in the policy issued to respondent No.1 and hence with due respect to said decision this Tribunal is of the view that it is not applicable to the present case. I have also perused the decisions relied upon by the counsel for the petitioner referred above wherein pay and recovery principle is taken into considered to saddle liability on the insurance company and they are aptly applicable to the case on hand as the petitioner is third party.
16. By leading evidence as discussed above the respondent No.2 proved that there is breach of policy conditions as the first respondent driven the offending 18 MVC 4822/2020 SCCH-25 insured vehicle without DL but only holding LLR in contravention of Section 3 of M.V. Act which is also supported by the chargesheet filed under said Section. Therefore, the respondent No.1 is only liable to pay compensation to the petitioner. However, for the discussion made above under the principle of pay and recovery the respondent No.2/Insurer is to pay the compensation to the petitioner at the first instance and later to recover the same from the respondent No.1 by filing execution as per law. The Petitioner has claimed a sum of Rs.20,00,000/ but she is entitled only for compensation of Rs.2,13,400/ with interest @ 6% per annum. Therefore, the petition needs to be allowed in part. Accordingly Issue No.2 is held partly in the affirmative.
17. Issue No.3: For the reasons and discussions made above and finding to the above issues this Tribunal proceeds to pass the following: 19 MVC 4822/2020 SCCH-25 ORDER The petition is allowed in part.
The Petitioner is entitled for compensation of Rs.2,13,400/ (Rupees Two Lakhs Thirteen Thousand and Four Hundred only) along with interest at 6% p.a. from the date of petition till the date of depositing the amount.
The Respondent No.1/Owner is solely liable to pay compensation to the petitioner. However, the Respondent No.2/insurer is directed to deposit the compensation amount within sixty days from the date of this award at first instance and later to recover it from the respondent No.1/owner by filing Execution petition as per law.
On deposit of compensation and interest entire amount shall be released in favour of the 20 MVC 4822/2020 SCCH-25 Petitioner by way of epayment on proper identification and due acknowledgment as per finance 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 31st day of May 2022).
(Miss B.T.ANNAPOORNESHWARI) XXI A.C.M.M.& XXIII A.S.C.J., Bengaluru.
ANNEXURE List of Witnesses examined for Petitioner:
PW.1 Smt. Mahalakshmi Swamy K.N. List of Documents marked for Petitioner:
Ex.P.1 Certified copy of FIR,
Ex.P.2 Certified copy of charge sheet
Ex.P.3 Certified copy of wound certificate
Ex.P.4 Certified copy of Spot sketch
Ex.P.5 Certified copy of police notice
Ex.P.6 Discharge summary (2 in Nos.)
21 MVC 4822/2020
SCCH-25
Ex.P.7 Certified copy of FIS
Ex.P.8 Certified copy of reply to police notice
Ex.P.9 Certified copy of spot mahazar
Ex.P.10 Claim settlement issued by Reliance General
Ins. Co. (2 pages)
Ex.P.11 Out patient bill for Rs.5,480/
Ex.P.12 Bill issued by Chord Road Hospital for
Rs.1,40,000/
Ex.P.13 16 medical bills for Rs.32,899/
Ex.P.14 Medical prescriptions (1 page)
Ex.P.15 7 Xrays
Ex.P.16 Notarized copy of Aadhar card of petitioner
(Compared with original and original is returned) Ex.P.17 Notarized copy of DL (Compared with original and original is returned) Ex.P.18 Copy of policy (R2 counsel submits no objections) List of Witnesses examined for Respondent/s:
RW.1 Mr.R.Manjula RW.2 Smt.Mamatha
List of documents exhibited for Respondent:
Ex.R.1 Authorization letter
Ex.R.2 True copy of Policy
Ex.R.3 True copy of police notice
22 MVC 4822/2020
SCCH-25
Ex.R.4 True copy of Reply to police notice Ex.R.5 Authorization letter Ex.R.6 True copy of learner's license of Sri.Kambanna (Miss B.T.ANNAPOORNESHWARI) XXI A. C.M.M.,& XXIII ASCJ Bengaluru.
23 MVC 4822/2020
SCCH-25 31.05.2022 For Judgment Pronounced vide separate judgment with following operative portion:
ORDER The petition is allowed in part. The Petitioner is entitled for compensation of Rs.2,13,400/ (Rupees Two Lakhs Thirteen Thousand and Four Hundred only) along with interest at 6% p.a. from the date of petition till the date of depositing the amount.
The Respondent No.1/Owner is solely liable to pay compensation to the petitioner. However, the Respondent No.2/insurer is directed to deposit the compensation amount within sixty 24 MVC 4822/2020 SCCH-25 days from the date of this award at first instance and later to recover it from the respondent No.1/owner by filing Execution petition as per law.
On deposit of compensation and interest entire amount shall be released in favour of the Petitioner by way of epayment on proper identification and due acknowledgment as per finance rules.
Advocate fee is fixed at Rs.1,000/. Draw decree accordingly.
(Miss B.T.ANNAPOORNESHWARI) XXI A.C.M.M. & XXIII A.S.C.J. Bangalore.25 MVC 4822/2020
SCCH-25 AWARD BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA & XXI ACMM : BANGALORE CITY MVC No.4822/2020 PETITIONER: Smt. Mahalakshmi Swamy K.N. W/o Narasimhaswamy H.N. Aged about 59 years, R/at #B6, SFS Apartments, 6th 'B' Cross, Yelahanka New Town, Bangalore - 560 064.
(By Sri.B.S.Harish Kumar,
Advocate.)
V/S
RESPONDENTS: 1.Sri. Kambanna
Major,
S/o Mallanna,
R/at #22, Near Govt. School,
Kanaka Nagar,
Chikka bommasandra,
Bangalore - 560 065.
(RC owner of Goods Auto bearing
Reg.No.KA50A6684)
(ExParte)
2.The United India Ins. Co. Ltd.,
Regional Office, T.P.Hub,
5th and 6th Floors, Krishi Bhavan,
Hudson Circle, Opp.
BBMP Head Office,
Nrupathunga Road,
Bangalore - 560 001.
(Insurer of Goods Auto bearing
Reg.No.KA50A6684)
Policy
No.0716003118P115050410
26 MVC 4822/2020
SCCH-25
valid from 20.02.2019 to
19.02.2020
(By Sri.K.H.Dinesh Reddy,
Advocate.)
.......
WHEREAS, this petition filed on by the Petitioner/s
above named U/sec.110A/166 of the M.V.C. Act, praying for the compensation of Rs. (Rupees Only) for the injuries sustained by the Petitioner/Death of in a Motor Accident by Vehicle No. WHEREAS, this claim petition coming up before Miss.
B.T.Annapoorneshwari, XXIII Addl.Judge, Member, Bangalore, in the presence of Sri/Smt. Advocate for Petitioner/s and of Sri/Smt. Advocate for Respondent.
ORDER The petition is allowed in part.
The Petitioner is entitled for compensation of Rs.2,13,400/ (Rupees Two Lakhs Thirteen Thousand and Four Hundred only) along with interest at 6% p.a. from the date of petition till the date of depositing the amount.
27 MVC 4822/2020
SCCH-25 The Respondent No.1/Owner is solely liable to pay compensation to the petitioner. However, the Respondent No.2/insurer is directed to deposit the compensation amount within sixty days from the date of this award at first instance and later to recover it from the respondent No.1/owner by filing Execution petition as per law.
On deposit of compensation and interest entire amount shall be released in favour of the Petitioner by way of epayment on proper identification and due acknowledgment as per finance rules.
Advocate fee is fixed at Rs.1,000/.
Given under my hand and seal of the Court this day
of 2022.
MEMBER
MOTOR ACCIDENT CLAIMS TRIBUNAL,
METROPOLITAN AREA BANGALORE.
28 MVC 4822/2020
SCCH-25
By the
__________________________________ Petitioner/s Respondent Court fee paid on petition 1000 Court fee paid on Powers 0000 Court fee paid on I.A. Process Pleaders Fee _________________________________ Total Rs.
_________________________________ Decree Drafted Scrutinised by MEMBER, M.A.C.T.METROPOLITAN:
BANGALORE Decree Clerk SHERISTEDAR