Bangalore District Court
Surya Prakash.K vs Venkatadhari Tent House on 30 January, 2024
KABC020020782022
BEFORE THE CHIEF JUDGE, COURT OF SMALL CAUSES,
MEMBER PRL.MOTOR ACCIDENT CLAIMS TRIBUNAL AT
BENGALURU
DATED THIS THE 30th DAY OF JANUARY 2024
PRESENT : Smt. B.V. RENUKA, B.Sc., L.L.B
Chief Judge, Court of Small Causes &
MEMBER, PRL. M.A.C.T., Bengaluru.
M.V.C. No. 2771/2022
PETITIONER: Surya Prakash K
S/o Krishnaswamy Naidu,
Aged about 47 years,
No.23, 2nd floor, 1st cross,
krishna Nanda Nagar,
Malagala, 2nd stage,
Nagarabhavi,
Bengaluru - 560 091.
(Represented by Sri G. Suresh,
Advocate)
-Vs-
RESPONDENTS:1. Venkatadhari Tent House,
Proprietor Venkatesh M,
S/o Muttashetty,
No.28/4, 9th cross, 4th main road,
Agrahara Dasarahalli,
Bengaluru -560 079.
(Exparte)
2. The Manager,
Reliance General Insurance,
No.28, 5th floor, Southern Portion,
East Wing, Centenary Building,
SCCH-1 2 MVC No.2771/2022
M.G.Road, Bengaluru -560 001.
Policy No.141522123340036037
Validity 22.09.2021 to 21.09.2022.
(Represented by Sri K.Chandrashekar,
Advocate)
*******
JUDGMENT
This claim petition is filed by the petitioner under Section 166 of the of the Motor Vehicles Act, 1989 claiming compensation of Rs.1,58,973/- along with interest at 10% p.a., from the respondents on account of the damages caused to his TVS Jupiter motorcycle bearing registration No.KA-02-KF-5841 in an accident.
2. Briefly stated the case of the petitioner is as follows:
That on 02.10.2021 at about 7.30 am., when the petitioner had parked his TVS Jupiter motorcycle bearing registration No.KA-02-KF-5841 at 2 nd stage, Near Gandhi Park, opposite to Green House Vegetable shop, Nagarbhavi, Bengaluru, the driver of Mahindra Bolero & Pickup Fb B.S IV bearing registration No.KA-02-AF-3609 came from Hanumagiri with high speed and in a rash and negligent manner and dashed against the vehicle bearing registration SCCH-1 3 MVC No.2771/2022 No.KA-02-JT-5942 and thereafter hit against the TVS Jupiter motorcycle bearing registration No.KA-02-KF-5841 belonged to the petitioner and due to the accident, the motorcycle of the petitioner was extremely damaged. Thereafter, the owner of other vehicle hit by Mahindra Bolero, by name Arun B.N. S/o Narayanawamy lodged a complaint before Kamakshipalya Traffic Police. A case was registered in Cr.No.123/2021 for the offence under Sec.279 of IPC. Hence, this petition for compensation.
3. In response to the notice, the respondent No.1 has not chosen to appear before the Court and he was placed exparte.
4. Respondent No.2 has appeared through its advocate and filed its written statement, wherein it has denied the entire averments of the petition as false. The issuance of policy in respect of Mahindra Bolero & Pickup Fb B.S IV bearing registration No.KA-02-AF-3609 is admitted, but the liability is subject to the terms and conditions of the policy. The driver of Mahindra Bolero & Pickup Fb B.S IV bearing registration No.KA-02-AF-3609, had no valid and effective driving licence at the time of SCCH-1 4 MVC No.2771/2022 accident and the said vehicle had no valid registration certificate, permit, fitness certificate at the time of accident and hence, the second respondent is not liable to pay the compensation. The alleged accident was caused due to the negligence of the petitioner and hence, the second respondent is not liable to pay the compensation. Hence, prays to dismiss the petition.
5. On the basis of the above pleadings, this Court has framed the following issues:
1. Whether the petitioner proves that on 02.10.2021 at about 7.30 a.m., in 2nd stage, near Gandhi Park, Green House vegetable shop in Nagarbhavi, Bengaluru, the TVS Jupiter two wheeler bearing Registration No.KA-02/KF-
5841 belonging to him was damaged in the accident due to rash and negligent driving of the Mahindra Bolero Pick Up vehicle bearing registration No.KA-02-AF-3609 by its driver as averred ?
2. Whether the petitioner is entitled for compensation and if so, what amount and from whom?
3. What Order and award ?
6. The petitioner got examined himself as PW-1 and two witnesses were examined as PWs 2 and 3 and got marked Exs.P.1 to P.21. On the other hand, the SCCH-1 5 MVC No.2771/2022 respondent No.2 has not chosen to lead any oral or documentary evidence on its behalf.
7. Heard the arguments on both sides.
8. My findings on the above issues are as follows: :
Issue No.1 ... In the Affirmative, Issue No.2 ... Partly in the affirmative, compensation of Rs.1,00,000/-
with interest at 6% p.a., from the respondents No.1 an 2.
Issue No.3 ... As per final order for the following:-
REASONS
9. Issue No.1 :- This petition is filed by the petitioner for the damages caused to his two wheeler TVS Jupiter motorcycle bearing registration No.KA-02-KF-5841 in the road traffic accident that occurred on 02.10.2021 at about 7.30 am. In order to prove this issue, the petitioner has placed his oral evidence and also documentary evidence as per Exs.P.1 to P.11 such as FIR with complaint, Insurance Policy of his vehicle, order sheet in CC No.4684/2021, plea in CC No.4684/2021, chargesheet, spot sketch, spot panchanama, his statement, notice under Sec.133 of M.V.Act, reply to the said notice and IMV Report. PW.1 in his affidavit evidence has narrated the manner in which SCCH-1 6 MVC No.2771/2022 the accident occurred and accident was due to rash and negligent act on the part of the driver of the Bolero Pickup Vehicle bearing registration No.KA-02-GT-5942.
10. As per PW.1, when he had parked his two wheeler near Gandhi Park opposite to Green House Vegetable shop, Nagarabhavi, on 02.10.2021 at about 7.30 am., at that time, Mahindra Bolero Pickup vehicle bearing registration No.KA-02-AF-3609 came from the side of Hanumagiri with high speed and in a rash and negligent manner and hit against his two wheeler, due to which his two wheeler was extremely damaged. That means, PW.1 was very much present when the accident took place and he has seen the accident. Ex.P.1 is the FIR with complaint, which discloses that on the basis of the complaint lodged by one Arun B.N., a criminal case was registered against the driver of the Bolero Pickup vehicle bearing registration No.KA-02-AF- 3609. In the complaint, the complainant has categorically stated that when he had parked his two wheeler in front of Green House Vegetable shop to buy vegetables, another two wheeler i.e., TVS Jupiter bearing registration No.KA- 02-KP-5841 was also parked and at that time, Mahindra SCCH-1 7 MVC No.2771/2022 Bolero Pickup vehicle bearing registration No.KA-02-AF- 3609 came from the side of Hanumagiri in rash and negligent manner and hit his two wheeler and then hit another two wheeler causing major damages to both the motorcycles. This complainant is none other than the owner of another TVS motorcycle bearing registration No.KA-02-JT-5942. That means, in the accident, two wheeler belonging to PW.1 and the complainant are damaged. The complaint was lodged by the complainant on the date of accident.
11. PW.1 was cross-examined by the second respondent's counsel wherein suggestions were made that he has not seen the accident and Mahindra Bolero Pickup vehicle has not hit his vehicle, but some other vehicle has hit his vehicle and he had parked his two wheeler on the road and not in the parking place. Except denial of the suggestions, nothing worth is elicited from the mouth of PW.1 to disbelieve his version as to occurring of the accident due to the rash and negligent act on the part of the driver of Mahindra Bolero Pickup vehicle in question. SCCH-1 8 MVC No.2771/2022
12. Exs.P.6 and P.7 are the spot sketch and the spot panchanama which reveals the state of affairs at the accident spot. In Ex.P.6, the place of accident is shown in alphabet 'A' and the parking of two wheelers is shown in alphabet 'B' and the movement of Mahindra Bolero Pickup vehicle is shown in alphabet 'C'. As per Ex.P.6, it is evident that the driver of Mahindra Bolero vehicle who was on the left side of the road proceeding towards Kalyananagar from Hanumagiri side has suddenly taken the vehicle towards right side, that too near the place where two wheelers were parked, on the edge of the foot path and has hit those two wheelers resulting in accident. This document clearly establishes that on account of the driver of the Mahindra Bolero vehicle taking the said vehicle suddenly from left side to right side, i.e., towards the complete edge of the foot path, this accident has occurred. In Ex.P.7, it is mentioned that the place of accident is at Nagarabhavi 2nd stage, near Gandhi Park road and the said road is a two way road without having center median. It also discloses that near Gandhi Park situated at 2nd stage of Nagarabhavi, there is a vegetable SCCH-1 9 MVC No.2771/2022 shop by name Green House Vegetable shop and both the two wheelers were parked infront of the said shop when the accident took place. Thus, Exs.P.6 and P.7 clearly establish that the accident has occurred due to the rash and negligent act on the part of the driver of Mahindra Bolero vehicle in question.
13. Ex.P.8 is the statement given by the petitioner before the police and it supports the complaint lodged by the complainant. Ex.P.11 is the IMV report wherein the damages caused to three vehicles involved in the accident are mentioned. As per Ex.P.11, the front and rear right side of motorcycle of the complainant and front portion and rear both sides of the motorcycle of the petitioner were extremely damaged in accident. Ex.P.11 also discloses that front right side portion of Bolero vehicle was damaged in accident. Ex.P.12 are the photographs of the motorcycle of the petitioner which disclose that the said motorcycle was extensively damaged on account of Bolero vehicle hitting the motorcycle on its right side portion. Hence, by considering Exs.P.11 and P.12 also, it can be safely held that the accident occurred due to the rash and negligent SCCH-1 10 MVC No.2771/2022 act on the part of the driver of the Mahindra Bolero vehicle in hitting the said vehicle to the motorcycle of the petitioner.
14. Exs.P.9 and P.10 are the notice issued to the owner under Sec.133 of M.V.Act and reply to the said notice. In these documents, the owner has given the details of the driver who was driving the Bolero vehicle on the date of accident and also details of documents of his vehicle. Such being the case, it can be said that the vehicle belonging to the first respondent was very much available on the date of accident at the place and time of accident as stated by PW.1.
15. Ex.P.5 is the chargesheet filed by the police against the driver of the Bolero Pickup vehicle bearing registration No.KA-02-AF-3609. This chargesheet was not challenged by the driver of the Bolero vehicle. On the other hand, Exs.P.3 and P.4 which are the Order Sheet and Plea in CC No.4684/2021 discloses that the driver of Bolero vehicle has pleaded guilty in the criminal case and paid fine. This conduct of the driver of the Bolero Vehicle also SCCH-1 11 MVC No.2771/2022 enables the court to hold that as the accident took place due to his negligence, he has pleaded guilty and paid fine. Thus, all these documents clearly establish that the accident has occurred due to the rash and negligent act on the part of the driver of the Mahindra Bolero goods vehicle, resulting in damages to the motorcycle of the petitioner.
16. Though the second respondent has denied the accident and negligence aspect in the written statement and though second respondent's counsel has cross- examined PW.1 by making some suggestions, but it has not chosen to place any rebuttal evidence in contra to the evidence placed by the petitioner. Hence, by considering the oral as well as documentary evidence produced by the petitioner before the court, I am of the opinion that the petitioner has proved that accident occurred resulting in damages to his vehicle on account of rash and negligent act on the part of the driver of Bolero Pickup vehicle bearing registration No.KA-02-AF-3609. Accordingly I answer Issue No.1 in the Affirmative.
17. ISSUE No.2: The petitioner in order to prove that TVS Jupiter Two Wheeler bearing registration No.KA-02- SCCH-1 12 MVC No.2771/2022 KF-5841 belongs to him, has produced the RC card standing in his name as per Ex.P.15. Ex.P.15 stands in the name of the petitioner in respect of TVS Jupiter Two wheeler bearing registration No.KA-02-KF-5841. Hence, it can be said that the petitioner is the owner of the motorcycle bearing registration No.KA-02-KF-5841, which was damaged in accident.
18. PW.1 has deposed that due to the accident, his two wheeler was extremely damaged and he has shifted his damaged vehicle to Namana motors, TVS authorised dealer at Magadi main road, Sunkadakatte, Bengaluru and thereafter he shifted the said vehicle to Bridgestone Agencies, Bengaluru and he got repaired the vehicle by spending Rs.1,50,437/- and even chassis of the said vehicle was also changed due to the extreme damage caused to the vehicle and he has spent Rs.8,536/- towards replace of chassis number. In support of his evidence, PW.1 has produced invoice bills as per Exs.P.13 & P.14. He has also examined employees of Bridgestone Agencies as PWs.2 & 3. As per PW.2, the petitioner brought his damaged two wheeler for repair to Bridgestone Agencies SCCH-1 13 MVC No.2771/2022 and the said vehicle was got repaired and the petitioner has paid bill amount of Rs.1,58,973/-. He has deposed that Exs.P.13 & P.14 are issued by him. According to PW.2, through his mechanic, the motorcycle of the petitioner has been repaired. PW.3 said to be the mechanic working in Bridgestone Agencies has deposed that he got repaired the two wheeler of the petitioner, which was damaged by raising job cards and mentioning required spare parts and used spare parts to repair the vehicle. In support of his evidence, he has produced job cards of different numbers as per Exs.P.16 to P.21.
19. IMV report-Ex.P.11 discloses that the motorcycle of the petitioner has sustained damages in accident. As per Ex.P.11, 1) front wheel mudguard damaged, 2) front left side shape damaged, 3) rider foot board and seat assembly damaged, 4) rear both side shape damaged, 5) rear both side indicators and tail lamp damaged, 6) rear body safety guard damaged 7) rear pillion rider hand gripper damaged, 8) rear right side silencer damaged, 9) rear left side engine case damaged and 10) impact found on rear portion of the chassis frame.
SCCH-1 14 MVC No.2771/2022
20. Ex.P.12 are the photos which disclose that the rear right side and left side of the motorcycle of the petitioner was extensively damaged on account of accident. E.P.13 is the Invoice bill obtained by the petitioner from Bridgestone Agencies in respect of the damaged parts of the motorcycle which require replacement. In Ex.P.13, nearly 335 items are shown as the spare parts to be replaced and its cost and labour cost at about Rs.1,50,437/-. Ex.P.14 is the spares invoice bill dated 11.05.2022 under which chassis of the motorcycle was also changed as it was badly damaged and it is amounting to Rs.8,536/-. The petitioner claimed the amounts under Exs.P.13 and P.14 as damages caused to his vehicle. As per PWs. 1 and 2, the damaged motorcycle was got repaired by spending an amount of Rs.1,50,437/-. PW.3 is the mechanic who has got repaired the motorcycle and the job cards produced by him as per Exs.P.16 to P.21 disclose that the damaged vehicle was left at Bridgestone Agencies for repair and it was repaired by PW.3 by replacing the parts. Even in Ex.P.17, it is mentioned that the petitioner has paid Rs.1,00,000/- and Rs.50,437/- towards the SCCH-1 15 MVC No.2771/2022 invoice bill-Ex.P.13. Now, we have to consider whether the spare parts which are replaced to the damaged motorcycle are in connection to the damages caused to the motorcycle in accident.
21. Though the petitioner has placed the evidence of PWs 2 & 3 to prove Exs.P.13, P.14, P.16 to P.21, but whether the amount of compensation to be awarded to the petitioner can be decided on the basis of evidence of PWs.2 and 3, is the point to be considered now. The second respondent has not placed any contra evidence to disbelieve the evidence of PWs1 to 3 regarding the damages caused to the motorcycle in accident. IMV report shows that about 12 damages are caused to the motorcycle in accident. But, in Ex.P.13, it is shown that nearly 353 items are replaced. Suggestions were made to PWs 2 and 3 that some of the spare parts other than the one damaged in the vehicle at the time of accident, are replaced during repair. These suggestions were denied by PWs 2 & 3. However, by considering the total number of items mentioned in Exs.P.13,P.16 to P.21, it is noticed that even some of the spare parts which are not damaged in the accident are also SCCH-1 16 MVC No.2771/2022 replaced. The damages mentioned in IMV report to some spare parts of the motorcycle will not tally with the spare parts mentioned in Ex.P.13.
22. PW.1 in his cross-examination has deposed that when he purchased TVS Jupiter motorcycle in the year 2020, its cost was Rs.95,000/-, but the repair charges taken for his vehicle was Rs.1,50,437/- which is more than the purchase value of his vehicle. Even PW.2 in his cross- examination has admitted that when the motorcycle was brought to his service center, its cost was Rs.96,000/- and they have charged an amount of Rs.1,58,973/- towards repairs. That means, the cost of repairs is more than the purchase value of the motorcycle of the petitioner. As discussed above, the spare parts which are not at all damaged in the accident, were also shown in Exs.P.13 and P.16 to P.21. It is pertinent to note that the petitioner has purchased the motorcycle in the year 2020 for Rs.95,000/-. Accident occurred in the year 2021. That means, certainly as the vehicle gets older, value will automatically depreciate on account of its handling and usage and the parts of the vehicle needs to be replaced SCCH-1 17 MVC No.2771/2022 depending upon the handling and usage of the vehicle. Merely because the petitioner has proved that his motorcycle was damaged in accident, that does not mean that the claim towards such damage made by the petitioner has to be accepted in toto without considering its veracity.
23. It is noticed that the parts of the motorcycle which are not damaged in accident have also been included in Exs.P.13 and P.16 to P.21. Thus, there is discrepancy between the claim and the proof placed on record in support of such claim. PWs.2 & 3 in their cross- examination have pleaded ignorance about some of the spare parts which are replaced are made of plastic, fiber and rubber and the cost of those parts are to be paid by the owner of the insured vehicle and not the insurer. PW.2 has deposed that the repair charges was amounting to Rs.1,58,973/- and since every part comes separately, the said cost has been charged. As discussed above, the purchase value of the motorcycle is less than the repair charges claimed by the petitioner. It appears that the petitioner got repaired his motorcycle by replacing all the SCCH-1 18 MVC No.2771/2022 parts which were also required replacement on account of its handling and usage.
24. PW.1 has deposed that his vehicle was having insurance policy at the time of accident, but he has not claimed any compensation from his insurance company since he is the third party. But, he has not produced any document in this regard. However, it can be presumed that the petitioner has not claimed any compensation from his Insurance Company towards the damages caused to his motorcycle. Though the evidence of PWs. 1 to 3 disclose that the motorcycle was got repaired and PW.1 has got repaired it by spending Rs.1,50,437/- , but PW.1 has not produced the photos of the repaired motorcycle. Therefore, by considering the damages mentioned in IMV report, I am of the opinion that the claim of the petitioner under Ex.P.13, is too high. Hence, by considering all these aspects, I am of the opinion that though the evidence of PWs 1 to 3 disclose that the damaged motorcycle was repaired, but it is not possible to believe that it was repaired by spending an amount of Rs.1,58,973/-. SCCH-1 19 MVC No.2771/2022
25. The petitioner has claimed compensation towards idle charges of the vehicle and cost incurred for his conveyance during idle period. But, no materials are placed to prove that he has spent amount towards conveyance and other incidental expenses. However, by considering the damages shown in the IMV report and by considering that the motorcycle was placed in Bridgestone Agencies for repair for some days, it can be said that the petitioner has spent some amount towards repair charges, conveyance and other incidental expenses. Taking into account, the discrepancy between the damaged parts of the motorcycle with that of the spare parts intended to be replaced as per tax invoice-Ex.P.13 and also the depreciated value of the vehicle and by considering all attending facts and circumstances of the case, I am of the opinion that it is proper to award Rs.1,00,000/- as compensation towards parts of the vehicle to be replaced, labour charges, conveyance etc. As such, the petitioner is entitled for compensation of Rs.1,00,000/- with interest at 6% per annum from the date of petition till the date of realization. SCCH-1 20 MVC No.2771/2022
26. So far as the liability is concerned, the respondent No.1 is the owner and the respondent No.2 is the insurer of the Bolero Pickup vehicle bearing registration No.KA-02-AF-3609. The first respondent has remained exparte. The second respondent in its written statement has admitted issuance of policy in favour of the first respondent with respect to Bolero Pickup vehicle bearing registration No.KA-02-AF-3609. Such being the case, I am of the opinion that the respondents No.1 and 2 are jointly and severally liable to pay compensation of Rs.1,00,000/- to the petitioner with interest at 6% p.a. from the date of the petition till date of deposit in the Court. Accordingly, I answer Issue No.2 partly in the affirmative.
27. Issue No.3 : In view of my answers to issue Nos.1 and 2 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 respondents No.1 and 2, awarding compensation of Rs.1,00,000/- (Rupees One SCCH-1 21 MVC No.2771/2022 Lakhs Only) with interest at 6% p.a., from the date of petition till the date of deposit in Court.
The respondents No.1 and 2 are jointly and severally liable to pay the compensation amount with interest to the petitioner. However, the respondent No.2, being the Insurance Company is directed to deposit the compensation amount in Court within 3 months from the date of this order.
After deposit of the compensation amount, the entire compensation amount shall be released in favour of the petitioner, as the compensation amount awarded is towards damages caused to the motorcycle belonging to the petitioner.
Advocate's fee is fixed at Rs.1,000/- . Draw an Award accordingly.
(Dictated to the Stenographer Gr.I, transcribed by her, corrected, signed and then pronounced by me in the Open Court on this the 30th day of January 2024.) (B.V.RENUKA) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore.
ANNEXURES SCCH-1 22 MVC No.2771/2022 Witnesses examined on behalf of the petitioner:
P.W.1 : Surya Prakash K P.W.2 : Ashok K.R. P.W.3 : Dilip Documents marked on behalf of the petitioner: Ex.P-1 : Certified copy of FIR with complaint Ex.P.2 Certified copy of Insurance Policy Ex.P-3 : Certified copy of order sheet in CC No. 4684/2021 Ex.P.4 : Certified copy of plea in CC No.4684/2021 Ex.P-5: Certified copy of chargesheet Ex.P-6 : Certified copy of spot sketch Ex.P-7 : Certified copy of spot panchanama Ex.P.8 Certified copy of statement Ex.P.9 Certified copy of notice issued under Sec.133 of MV Act.
Ex.P.10 Certified copy of reply to above notice Ex.P.11 Certified copy of IMV report Ex.P.12 Photos (15) Ex.P.12(a) CD of Ex.P.12 Ex.P.12(b) Bill issued by photographer Ex.P.13 Invoice bill dated 30.03.2023 Ex.P.14 Spares Invoice Bill dated 11.5.2022 Ex.P.15 Notarized copy of RC card Ex.P.16 Notarized copies of job cards to P.21
Witnesses examined on behalf of the respondents :
- NIL -
Documents marked on behalf of the respondents:
- NIL -
(B.V.RENUKA) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore.