Bangalore District Court
Ghousia Banu vs The Oriental Insurance Co.Ltd on 18 February, 2017
IN THE COURT OF III ADDL.SENIOR CIVIL JUDGE AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, BENGALURU. (SCCH-18)
Dated: This 18th day of February 2017
Present: SRI.VEERANNA SOMASEKHARA
B.Com, LL.B.,
III ADDL. SENIOR CIVIL JUDGE.
COURT OF SMALL CAUSES,
BANGALORE.
M.V.C.No.488/2015
PETITIONER: Ghousia Banu
W/o. Saleem Ulla
Aged about 27 years,
R/a No.12, 1st Cross, 4th Main,
Venkatarampura,
Palace Guttahalli,
Bangalore-560 003.
(By Pleader Sri.IT)
/Vs./
RESPONDENTS: 1. The Oriental Insurance Co.Ltd.,
R.O.No.44/45, Residency Road cross,
Leo Complex, Bengaluru-25.
Policy issued by its Branch office at
No.BO-15, Richmond Road,
Bangalore
No.79, 2nd Floor, ,MM Road,
Frazer Town,
Bengaluru-5600005.
(By pleader Sri.VK)
2.Raghavendra.M
S/o.M.Muniyappa, Major,
R/at No.C-2, Property No.44,
C/o.Chandrasekhar Reddy Building,
2nd Cross, Ibbalur Village,
Agara, Sarjapura Road,
Bangalore-560013.
(Exparte)
J U D G M E N T
The petitioner has filed this claim petition against the respondents U/S.166 of M.V. Act for seeking compensation of Rs.15,00,000/- with interest for the injuries sustained by her in a road traffic accident.
2. The brief contents of petition are as under:
On 6-12-2014, at about 9.10 A.M., the petitioner was standing by the side of the road, near P.G.Halli bus stop for crossing the road, at that time, the rider of the motorcycle bearing Reg.No.KA-03-HW-8743 ride the same in a rash and negligent manner and dashed to the pedestrian i.e. petitioner. Due to the said impact, the petitioner fell down on the road and sustained grievous injuries. Thereafter, the public gathered at the spot have shifted the injured to Bilva hospital, Bangalore, wherein, she has taken first aid and thereafter, she was shifted to Fortis hospital, Bengaluru, wherein, she has taken treatment as an inpatient. The contention of the petitioner is that, she has spent more than Rs.3,00,000/- towards medical expenses and other incidental charges.
3. The contention of the petitioner is that, she was hale and healthy at the time accident, aged about 27 years, working as a medical transcriptionist at Scribetech (India) Healthcare Pvt.Ltd., and drawing salary of Rs.10,038/-p.m. Further the contention of the petitioner is that, she has sustained fracture of right temporal bone and sustained fracture of acetabulum and right interior pubic rami and as such, she has suffered disablement and she is not in a position to work as she was doing earlier to the accident.
4. Further the contention of the petitioner is that, the respondent No.2 is the owner cum rider of motor bike bearing Reg.No.KA-03-HW-8743 and the respondent No.1 is the insurer of the said vehicle and the policy was in force as on the date of accident. The accident has occurred due to rash and negligent riding of the rider of the said motorcycle and as such, both the respondents are jointly and severally liable to pay compensation to the petitioner. Contending the above facts, she prays to grant for compensation of Rs.15,00,000/- with interest and cost.
5. In response to the petition notice, the respondent No.1 has appeared before the court through his counsel and filed the objection statement. The respondent No.2 has not appeared before the court. Accordingly, he was placed exparte.
6. The brief contents of objection statement of respondent No.1 are as under:
The respondent No.1 has contended that, the claim petition filed by the petitioner is not maintainable either in law or on facts. Further the respondent No.1 has denied the contents of column No.1 to 14 of the petition in toto. Further the respondent No.1 has admitted the issuance of policy to the alleged motor bike and the liability if any is subject to the terms and conditions mentioned in the policy. Further he contended that, the rider of the alleged motor bike was not having driving license to ride the motorcycle as on the date of accident and as such, to that effect, the concerned police have filed the charge sheet against the rider of the alleged motorcycle. Hence, the owner of the alleged vehicle has violated the policy conditions and as such, the respondent No.1 Insurance company is not liable to indemnify the respondent No.2. Further he contended that, the owner of the vehicle and the concerned police have not complied the mandatory provision of Sec. 134 (c) & 158 (6) of M.V Act. Further the respondent No.1 has denied the age, occupation and income of the petitioner and injuries sustained by her and medical expenses incurred by her and disablement suffered by her. Contending the above facts, he prays to dismiss the petition as against him with cost.
7. On the basis of above pleadings, the following issues were framed:
1. Whether the petitioner proves that she had sustained grevious injuries in an accident that was occurred due to rash and negligent riding of the rider of the Motor Cycle bearing Registration No.KA-03-HW-8743 on 06-12-2014 at about 9-10 A.M. near P.G.Halli Bus Stop, Bengaluru?
2. Whether the petitioner is entitled for compensation as prayed? If so, at what rate and from whom?
3. What order or award?
8. In order to prove the case, the petitioner has examined herself as PW-1 and got marked the documents as Ex-P-1 to 11. In support of her evidence, the PW-1 has examined the medical record incharge of Lalitha Healthcare Pvt.Ltd., as PW-2 and got marked the document as Ex.P.12.
9. To disprove the case of the petitioner and to prove the defence, the respondent No.1 has examined its official as RW-1 and got marked the documents as Ex-R-1 to 17.
10. Heard the arguments and perused the records.
11. My findings to the aforesaid issues are as follows:
Issue No.1: In the Affirmative Issue No.2: In the Partly Affirmative as against the respondent No.2 Issue No.3: As per final order for the following:
R E A S O N S
12. ISSUE NO.1:- During the course of arguments, the petitioner has not submitted the arguments and as such, the arguments of petitioner is taken as heard.
13. On the other hand, the learned counsel for the Respondent No.1 filed the written arguments by reiterating the contents of objection statement filed by the respondent No.1 and also evidence put forth by RW-1. Further he contended that, on the alleged date of accident, the rider of the alleged motor bike was not having driving licence to ride the motor bike and as such, the owner of the vehicle has violated the policy conditions. Hence, the respondent No.1 insurance company is not liable to pay compensation to the petitioner. Contending the above facts, he prays to dismiss the petition as against the respondent No.1 with cost.
13. In support of the arguments, the learned counsel for the respondent No.1 has relied upon the following citations:
1. 2008 ACJ 1307 (Sardari and others Vs Sushil Kumar and others)
2. ILR 2011 Kar.2827 (Vishwanath Shetty Vs. Vincent Pinto and another)
14. Perused the records. On perusal of the evidence available on records, it reveals that, to prove the case, the petitioner has examined herself as Pw-1 and she has stated in her evidence by reiterating the contents of petition. Further in support of her evidence, the PW-1 has produced the documents and the same are marked as Ex.P.1 to 11.
15. Thereafter, the counsel for the respondent No.1 has cross-examined the PW-1 at length. In the cross examination, the PW-1 has clearly stated at page No.9 that:-
"¤.¦.5 JAzÀÄ UÀÄgÀÄw¹zÀ zÁR¯ÉAiÀÄ°è £À£ÀUÉ C¥ÀWÁvÀ ªÀiÁrzÀ ¨ÉÊPï £ÀA§gï PÁtô¹®è JAzÀgÉ ¸Àj. ¤.¦.5 JAzÀÄ UÀÄgÀÄw¹zÀ zÁR¯ÉAiÀÄ°è C¥ÀWÁvÀ ªÀiÁrvÉAzÀÄ ºÉýzÀ ¨ÉÊPï£À £ÀA§gï PÁtô¸ÀzÀ PÁgÀt, CfðAiÀÄ°è PÁtô¹zÀ ¨ÉÊPï £À£ÀUÉ C¥ÀWÁvÀ ªÀiÁqÀzÉà EzÀÝgÀÆ ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä ¸ÀļÀÄî ºÉüÀÄwÛgÀĪɣÉAzÀgÉ ¸ÀjAiÀÄ®è,"
On perusal of the above evidence, it reveals that, the respondent No.1 has denied the involvement of the alleged vehicle in the accident and contended that, the alleged vehicle was not caused the accident to the petitioner.
16. To prove the said fact and to disprove the contention of the petitioner, the respondent No.1 has examined its official as RW-1 and she has stated in her evidence by reiterating the contents of objection statement filed by the respondent No.1. Further in support of her evidence, she has produced the documents and the same are marked as Ex-R-1 to 17. But on perusal of the entire evidence of RW-1, it reveals that, the RW- 1 is not an eyewitness to the accident and as such, the evidence of RW-1 is not much helpful to decide the alleged rash and negligent act of the rider of the alleged motorcycle.
16. Further to prove the rash and negligent riding of the rider of the alleged motorcycle, in support of her oral evidence, the petitioner has relied upon the copy of FIR with complaint and charge sheet and the same are marked as Ex.P.1 and 6. On perusal of Ex.P.1 and 6 i.e., copy of FIR with complaint and charge sheet, it reveals that, Sadashivanagar Traffic police have registered a case against the rider of the motorcycle bearing Reg.No.KA-03-HW-8743 and after completion of investigation, the concerned police have filed the charge sheet against the rider of the said vehicle.
20. Further on perusal of Ex-R-3 and 4 i.e. certified copy of order sheet of CC.No.2009/2015 and certified copy of Judgment dated 7-5-2015 passed by the MMTC V Court, it reveals that, as per the charge sheet submitted by the concerned police, the above said Criminal case was registered against the rider of the motorcycle and after recording the evidence of injured, the MMTC V court has passed the Judgment vide order dated 7-5-2015 by convicted the rider of the alleged motorcycle for the offences punishable U/s.279 and 338 of IPC, and Sec.177 and 181 of MV Act. Further on perusal of copy of Judgment, it reveals that, while recording the statement of accused U/s.313 of Cr.PC, the rider of the alleged motorcycle has admitted the incriminating evidence appeared against him.
Considering the above facts and on perusal of evidence of PW-1 coupled with documents and for the above reason, I am of the opinion that, the petitioner has proved that, the accident has occurred mainly due to rash and negligent riding of the rider of the alleged motorcycle bearing Reg.No.KA-03-HW-8743 as contended in the petition by producing oral and documentary evidence.
20. Further on perusal of Ex-P-5 i.e. copy of Wound certificate, it shows that, the petitioner has sustained simple as well as grievous injuries in the above said accident.
21. Considering the above facts and circumstances of the case and on appreciation of evidence of PW-1 coupled with documents and for the above reason, I am of the opinion that, the petitioner has proved this issue by producing sufficient documents. Accordingly, I answer this issue in the affirmative.
22. ISSUE NO.2:- The specific contention of the petitioner is that, she was hale and healthy at the time of accident, aged about 27 years, working as a medical transcriptionist at Scribetech (India) Healthcare Pvt.Ltd., Bengaluru and drawing salary of Rs.10,038/-p.m. Further the contention of the petitioner is that, she has sustained severe head injury and also sustained fracture of right temporal bone and sustained fracture of acetabulum and right interior pubic rami and as such, she is not in a position to work as she was doing earlier to the accident. Hence, she has left the job and as a result, she has lost the income.
On the other hand, the respondent No.1 has denied the above contention of the petitioner in toto.
23. To prove the age, the petitioner has not produced any supportive documents. On the other hand, on perusal of Ex-P-5 i.e. copy of wound certificate, wherein, the age of the petitioner is shown as 27 years as on the date of accident and the same is considered as age of the petitioner, then the proper multiplier applicable to the case on hand is 17.
24. To prove the occupation and income, the petitioner has relied upon the documents at Ex-P-10 and 11 i.e. pay slips for the month of October 2014 and November 2014. On perusal of the contents of pay slips, it clearly goes to show that, at the time of accident, the petitioner was working as a medical transcriptionist at Scribetech (India) Healthcare Pvt.Ltd., Bengaluru and drawing salary of Rs.10,038/- P.M. Further on perusal of the contents of complaint, wherein, the occupation of the petitioner is mentioned as employee at private company. Considering the above facts and looking to the contents of pay slips and contents of complaint, I am of the opinion that, the petitioner has proved her occupation and income as contended in the petition by producing oral and documentary evidence. For the above reason, I am of the opinion that, if the income of the petitioner is considered as Rs.10,000/-p.m. certainly it would meet the ends of justice.
25. Further on perusal of the records, it reveals that, to prove the extent of disablement suffered by the petitioner, she has not examined the doctor. Further on perusal of the records, it reveals that, to prove the contention of the petitioner that, after the accident, she has left the job, she has not produced any proper documents. Considering the above facts and for the above reason, I am of the opinion that, the petitioner is not entitled for compensation under the head of loss of future earnings.
27. Further on perusal of Ex-P-5 i.e. copy of wound certificate, it shows that, the petitioner has sustained the following injuries:
1. Head injury
a) Haemorrhagic contusion bilateral frontal lobe
2) Fracture of right temporal bone
3) Undisplaced fracture roof of right acetabulum and right inferior pubic ramus.
Further it reveals that, as per the opinion of the doctor, all the injuries are grievous in nature. Considering the above facts and looking to the nature of injuries and considering the occupation of the petitioner, I deem it just and reasonable to grant for compensation of Rs.75,000/-under the head of pain and suffering.
28. Further as stated above that, the petitioner has sustained severe head injury and also sustained fracture of roof of right acetabulum and right inferior pubic rami. Looking to the above nature of injuries, I am of the opinion that, the said injuries may affect some extent on the occupation of the petitioner. For the above reason, I deem it just and reasonable to grant for compensation of Rs.40,000/-under the head of amenities.
28. Further on perusal of Ex-P-7 i.e., discharge summary, it shows that, the petitioner has taken treatment as an inpatient for a period of 6 days at Lalitha Healthcare Pvt.Ltd., Bangalore. Further on perusal of document of sl.no.9 to 12 of Ex-P-9 i.e. OPD slips, it shows that, after discharge from the hospital, the petitioner has taken follow-up treatment as an outpatient for a period of 3 months. Looking to the period of hospitalization and looking to the period of follow-up treatment, I deem it just and reasonable to grant for compensation of Rs.10,000/-under the head of attendant, nourishment and conveyance charges.
29. The contention of the petitioner is that, she has spent more than Rs.3,00,000/- towards medical expenses and other incidental charges. To prove the said fact, the petitioner has relied upon the medical bills and prescriptions and the same are marked as Ex.P.8 & 9. On the other hand, the respondent No.1 has disputed the genuineness of the said bills and to that effect, the counsel for the respondent No.1 has cross-examined the Pw1 at length, but nothing has been elicited from her to disbelieve those bills. Considering the above facts and on perusal of Pw-1 coupled with medical bills, it shows that, the petitioner has spent an amount of Rs.93,365/-towards medical expenses. Considering the above facts and for the above reason, I deem it just and reasonable to grant for compensation of Rs.93,000/- under the head of medical expenses.
30. Further due to the accidental injuries, the petitioner might not have attended her regular work atleast for a period of 4 months, as she has sustained severe head injury. Considering the above facts and for the above reason, I deem it just and reasonable to grant for compensation of Rs.42,000/-under the head of loss of income during laid up period and rest period.
Considering the above facts and circumstances of the case and for the above reason, I am of the opinion that, the petitioner is entitled for total compensation of Rs.2,60,000/- under the following heads:
Compensation heads Compensation
amount
1. Towards Pain and suffering Rs. 75,000/-
2. Towards loss of amenities Rs. 40,000/-
3.Towards attendant, nourishment and Rs. 10,000/-
conveyance charges
4.Towards loss of income during laid up Rs. 42,000/-
period and rest period
5. Towards Medical expenses Rs. 93,000/-
Total Rs. 2,60,000/-
31. LIABILITY: On perusal of the contents of petition and contents of objection statement, it reveals that, the respondent No.2 is the owner and the respondent No.1 is the insurer of the alleged motorcycle bearing Reg.No.KA-03-HW- 8743. Further on perusal of Ex-R-17 i.e. copy of policy, it shows that, the policy was in force as on the date of accident. Further as stated above that, the accident has occurred due to rash and negligent riding of the rider of the alleged motorcycle.
32. The specific contention of the respondent No.1 is that, as on the date of alleged accident, the rider of the alleged motorcycle was not having driving licence to ridden the vehicle and as such, the owner of the vehicle has violated the policy conditions. In support of his version , the respondent No.1 has examined its official as RW-1 and she has stated in her evidence by reiterating the contents of objection statement filed by the respondent No.1. Further to prove the above contention, the respondent No.1, the respondent No.1 has relied upon the copy of charge sheet and the certified copy of order sheet in CC.No.2009/2015 and the certified copy of Judgment passed in CC.No.2009/2015.
33. On perusal of Ex-R-2 i.e. copy of charge sheet, it reveals that, after completion of investigation, the concerned police have filed the charge sheet against the rider of the alleged motorcycle for the offences punishable U/s.279 & 338 of IPC and Sec.119 R/w 177 of MV Act and Sec.3(1) R/w.181 of MV Act, alleging that, on the alleged date of accident, the rider of the motorcycle was not having driving licence to ride the alleged motorcycle.
34. Further on perusal of Ex-R-4 i.e. certified copy of Judgment in CC.No.2009/2015 dated 7-5-2015, on the file of MMTC V Court, Bengaluru, it shows that, after recording the evidence, the MMTC V Court, Bengaluru, has convicted the accused for the offence punishable U/s.279 and 338 of IPC and Sec.177 and 181 of MV Act. Considering the above facts and looking to the evidence of RW-1 coupled with contents of charge sheet and contents of Judgment, I am of the opinion that, the respondent No.1 has proved his contention that, on the alleged date of accident, the rider of the alleged motorcycle was not having driving licence to ride the motorcycle as contended in the objection statement by producing oral and documentary evidence. For the above reason, I am of the opinion that, the owner of the alleged vehicle has violated the policy conditions. Hence, the respondent No.1 Insurance company is not liable to indemnifying the respondent No.2 who is the owner cum rider of the alleged motorcycle. On the other hand, as stated above that the alleged accident has occurred due to rash and negligent riding of the rider of the alleged motorcycle and as such, the respondent No.2 being the owner cum rider of the alleged motorcycle is liable to pay compensation of Rs.2,60,000/- with interest @ 9% p.a. from the date of petition till the date of deposit. Accordingly, I answer the issue No.2 in the partly affirmative.
34. ISSUE NO.3: In view of above discussion on issue Nos.1 and 2, I proceed to pass the following;
O R D E R The claim petition filed by the petitioner U/S.166 of MV act is hereby partly allowed with cost, as against the respondent No.2 i.e. owner of the vehicle.
The claim petition filed by the petitioner as against the respondent No.1-Insurance company is hereby dismissed without cost.
The petitioner is entitled for compensation of Rs.2,60,000/-with interest @9% p.a. from the date of petition till the date of deposit.
The respondent No.2 being the owner of the vehicle is liable to pay compensation to the petitioner and directed him to deposit the above compensation amount in this tribunal within 60 days from the date of this order.
After deposit of compensation amount, looking to the medical expenses incurred by the petitioner, the entire amount with accrued interest shall be released in the name of petitioner through account payee cheque on proper identification.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Dictated to the stenographer, transcribed by her, corrected, signed and then pronounced by me in open court on this 18th day of February 2017).
(VEERANNA SOMASEKHARA) III ADDL.SMALL CAUSES JUDGE & XXIX ACMM, BANGALORE.
ANNEXURES List of witnesses examined on petitioner's side:
P.W.1. Ghousia Banu P.W.2. Siddalingappa Hampannavar List of documents exhibited on petitioner's side:
Ex-P1 True copy of FIR with complaint Ex-P2 True copy of Panchanama Ex-P3 True copy of spot sketch Ex-P4 True copy of MVA report Ex-P5 True copy of wound certificate Ex-P6 True copy of charge sheet Ex-P7 Discharge summary Ex-P8 Medical bills Ex-P9 Prescriptions Ex-P10&11 Pay slips Ex-P12 Case sheet
List of witnesses examined on respondents side:
R.W.1: Vasundhara Rastogi List of documents exhibited on respondents side:
Ex-R1 Authorization letter
Ex-R2 Copy of charge sheet
Ex-R3 Certified copy of order sheet in CC.No.2009/2015
Ex-R4 Certified copy of Judgment
Ex-R5 Certified copy of statement of witness
Ex-R6 Certified copy of FIR with complaint
Ex-R7 Certified copy of panchanama
Ex-R8 Certified copy of sketch
Ex-R9&10 Certified copy of statement of injured and one Syed Hussain
Ex-R11 Copy of notice
Ex-R12 Certified copy of reply
Ex-R13 Certified copy of notice
Ex-R14 Certified copy of arrest warrant
Ex-R15 Certified copy of wound certificate
Ex-R16 Certified copy of MVA report
Ex-R17 Copy of policy.
III ADDL.SMALL CAUSES JUDGE
& XXIX ACMM.