Bangalore District Court
Sri.Prathap S/O Murthy vs M/S Shriram General on 7 November, 2016
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL;
B'LORE (SCCH-17)
DATED THIS THE 7th DAY OF NOVEMBER, 2016.
PRESENT; Sri.A.SAMIULLA B.Sc, LL.B,
XIX Addl SCJ & MACT.
MVC.No.2762/2013
Petitioner : Sri.Prathap S/o Murthy,
23 years, R/at No.353, 1st Main,
Bapujinagar, Anandapuram,
Chamarajapete, Mysore Road,
Bangalore-560 002.
(By Sri.CKS)
V/s
Respondents : 1. M/s Shriram General
Insurance Co. Ltd., S & S Corner
Building, Hospital Road,
Shivajinagar, Bangalore-01.
Head Office (Correspondence)
E-8, EPIP, RIICO Industrial
Area, Sitapura, Jaipur,
Rajasthan-302022.
2. Sri.Manikandan.P.
R/at No.145, ASAI, Thambi
Street Madurai (West),
Madurai-625016
Tamil Nadu.
(R-1 by Sri.DNM
R-2 ex parte)
SCCH 17 2 MVC 2762/13
J U D G M E N T
Petition is filed under Section 166 of MV Act seeking compensation of Rs.7,50,000/- for the injuries sustained in a Road Traffic Accident.
2. In short, the case of petitioner is that, he is working in DTDC Courier Company, which hired TATA Goods Vehicle, bearing No.TN-58/X-9757 for transportation of courier parcel from Bangalore to Tamil Nadu and vice versa and his employer assigned him to accompany the courier parcel for loading and unloading, as such he traveled in said Goods vehicle as a representative of courier parcel on 15th day of February 2013, which is driven by driver Sri.Pandi, who drove the same in rash and negligent manner near Thonnaikan Thota, Service Road, Milk Dairy, Krishnagiri SCCH 17 3 MVC 2762/13 about four o' clock in the morning and tried to overtake a lorry ahead of it and caused accident by dashing the rear portion of said lorry, due to impact he and the driver Pandi sustained injuries. They were shifted to Government Hospital, Krishnagiri and thereafter he admitted to Venlakh hospital, Bangalore. Jurisdictional police registered case against the driver Pandi. First respondent is the insurer and second respondent is the owner of lorry, they are liable to pay compensation. Hence petition is filed.
3. First respondent resisted the claim petition by filing written statement. Second respondent is placed ex parte.
First respondent by denying the petition averments in toto, inter alia contended that the lorry in question is insured with it, but it disowned the liability for violation of SCCH 17 4 MVC 2762/13 terms and conditions of policy, as the owner of vehicle entrusted the vehicle to a person not holding valid and effective driving licence and used the vehicle on road without fitness certificate and permit. It denied that the petitioner traveled in the lorry as a representative of Goods. Petitioner traveled in the goods lorry as a passenger and he is not covered under the policy. Petition is bad for non compliance of mandatory requirements by the owner of lorry and the investigation officer as envisages u/S 134(c) & 158(6) of MV Act. Reserving right to contest the petition on all grounds it prays to dismiss the petition.
4. Following issues arise for consideration:
ISSUES
1. Whether petitioner proves that on 16.02.13 he was traveling in a TATA goods vehicle bearing No. TN-58-X-9757 for loading and unloading of the SCCH 17 5 MVC 2762/13 courier parcel of his employer. When the vehicle was proceeding on service road, milk dairy Krishnagiri at about 4.10 a.m. the driver while over taking dash to the back portion of the lorry ahead of it. As a result of which he sustained injuries as alleged?
2. Whether petitioner is entitled for compensation?
If so, at what rate and from whom?
3. What order or award?
5. To prove the case, petitioner examined himself as Pw.1 and documents Ex.P1 to 5 were marked. Doctor was examined as Pw.1 and documents Ex.P6 to 8 were marked. Whereas, first respondent examined its Legal Assistant Manager as Rw.1 and documents Ex.R.1 to 4 were marked. Junior Assistant, RTO, Madurai was examined as Rw.2. Legal Assistant Manager Shobha of first respondent company was examined as Rw.3.
SCCH 17 6 MVC 2762/13
6. Heard arguments from both sides.
7. Answer to the above issues is as follows;
Issue-1: Affirmative.
Issue-2: Partly affirmative.
Issue-3: As per final order for the following;
R E A S O N S
8. Issue-1: The case of petitioner is that, he sustained injuries in a vehicular accident occurred due to the actionable negligence on the part of driver of offending lorry. Per contra the first respondent denied the claim put forth by the petitioner.
It is well known that to succeed in a claim petition filed by invoking provision u/S 166 of MV Act, it is sine qua non on the part of victim to demonstrate that he sustained injuries due to the actionable negligence of driver of SCCH 17 7 MVC 2762/13 offending vehicle. The initial burden is on the petitioner to prove the factum of negligence under the theory of preponderance of probability.
9. To discharge the initial burden the petitioner filed evidence affidavit reiterating the petition averments. He specifically stated that on that eventful day he traveled in the offending lorry as a representative of goods, which met with an accident as its driver driving the same in rash and negligent manner tried to overtake a lorry ahead of it and ended in dashing the hind portion of said lorry, resulting injuries to him.
10. In support of oral evidence he placed reliance on documents produced at Ex.P1 to 8, among them Ex.P1, is first information report registered by the Krishnagiri Town SCCH 17 8 MVC 2762/13 Police against the driver of lorry on the basis of report lodged by the petitioner. Ex.P2 is discharge summary.
11. In Cross-examination of Pw.1 it is suggested that, he had not traveled in the lorry on the date of accident, he denied it. This suggestion is contrary to the averments set out in the written statement, wherein at para 11 it is pleaded that the petitioner traveled in the lorry as a passenger at the time of accident. He admits that he was not working in the lorry either as a coolie or cleaner. It is suggested that, he was traveled in the lorry as a passenger, he denied it. It is suggested that, he was sitting by the side of door, which was not properly locked and due to his negligence he fell down from the vehicle and sustained injury, he denied it. Though the Pw.1 denied the suggestions SCCH 17 9 MVC 2762/13 but from the said suggestions inference can be drawn that, on that day the petitioner sustained injuries while traveling in the lorry, which met with an accident. It is suggested that, there is no negligence on the part of driver of lorry, he denied it.
12. On the other hand the Rw.1 stated that, the petitioner traveled as an un-authorised passenger in the goods vehicle i.e., insured vehicle as on the date of accident, as such company is not liable to pay compensation to him. This evidence depict that the first respondent admits the accident but denies its liability on the ground that the injured traveled in the lorry as a passenger, who is not covered under the policy.
SCCH 17 10 MVC 2762/13
13. In cross-examination the Rw.1 stated that, the company conducted investigation through its investigator and he can produce the investigation report. But no such report is filed. The out come of said investigation is not revealed. Withheld of said document results in drawing adverse inference.
14. Rw.3 in her affidavit evidence stated that, on the date of accident the petitioner traveled in the goods vehicle i.e., insured vehicle as an un-authorised passenger, who is not covered the risk under the policy.
15. In cross-examination the Rw.3 categorically admits that, on the date of accident the vehicle was hired by DTDC Courier Company and the vehicle was goods vehicle. She SCCH 17 11 MVC 2762/13 denied that the petitioner traveled in the lorry as a representative of goods.
16. In the light of evidence supra let us analyze the contentions raised by the respective parties in the petition. First, the first respondent contended that the Police have not filed final report; as such petition is not maintainable. This contention is not tenable because the conclusion of the Police is not binding on the Court. Therefore, the fact that the Police have not filed a charge sheet does not necessarily establish the lack of negligence on the part of driver of the offending vehicle.
Second, the first respondent contended that the petitioner fails to establish the accident and sustaining of injuries. This contention is not sustainable because the first SCCH 17 12 MVC 2762/13 respondent in the written statement itself admits that the petitioner traveled in the goods lorry on the date of accident. In addition to this the suggestions supra made to Pw.1 during the course of cross-examination and the evidence of Rw.1 and 3 clearly shows that the first respondent admits that on that day the petitioner traveled in the lorry and sustained injuries in a road traffic accident.
17. It is pertinent to note that, as stated supra the proof of negligence is based on the theory of preponderance of probability and the proof is not required beyond shadow of doubt as it is required in a criminal trial. Here, the oral evidence coupled with the registration of case against the driver of lorry in question and inconsistent suggestions made by the first respondent during the cross-examination SCCH 17 13 MVC 2762/13 of Pw.1 probablize the case of petitioner that the accident occurred due to the negligence of driver of lorry. Since the petitioner discharged initial burden the onus shifted on the first respondent to show that the Pw.1 not sustained injuries in a road traffic accident. In cross-examination of Pw.1 it is suggested that he sat by the side of door in lorry, which is not properly locked, due to this he fell down and sustained injuries. Mere suggestion in the cross-examination is not substantive evidence. Except this suggestion the first respondent has not placed any material to show that the accident not occurred due to the negligence of lorry driver. In the absence of contra material it can be said that the petitioner sustained injuries in a road traffic accident occurred due to the negligence of driver of lorry. Hence above issue is answered in affirmative.
SCCH 17 14 MVC 2762/13
18. Issue-2: Petitioner stated that, he was working in DTDC Courier Company and used to earn Rs.5,000/- per month and due to accidental injuries he is totally disabled. He has spent considerable amount towards medical and other incidental charges and prays to award compensation.
In that context let us determine just and reasonable compensation under the following heads;
Pain and sufferings: The discharge summary, X-rays, OPD book and inpatient record produced at Ex.P2 and 5 to 8 respectively show that in the said accident Pw.1 sustained injury i.e., Type I compound fracture both bones of left leg. Said injury is grievous in nature. Pw.1 was admitted to Sanjay Gandhi Hospital on 16/2/13. He underwent surgery on 19/2/13. He was treated by closed reduction and internal SCCH 17 15 MVC 2762/13 fixation with IMIL Nail under Anesthesia. He was discharged on 25/2/13 with an advice to take follow up treatment. He was readmitted on 3/7/13 and Dynamisation was done on 5/7/13 and discharged on 6/7/13. He took treatment as inpatient for fourteen days. Pw.2 stated that on radiological examination shows the union of fracture and implants in situ. Pw.1 suffered with permanent physical impairment of fifteen per cent disability. All these facts make it clear that the Pw.1 sustained above said fracture injury in the accident. Considering all these facts coupled with the injury suffered and surgery underwent by the Pw.1 a sum of Rs.35,000/- is awarded under this head. Attendant charges, extra nutritious food and conveyance charges: Discharge summary of Sanjay Gandhi Hospital SCCH 17 16 MVC 2762/13 depicts that, the Pw.1 was an inpatient from 16/2/13 to 25/2/13 and again admitted on 3/7/13 and discharged on 6/7/13. He took treatment as inpatient for 14 days. Out patient book and case sheet reveals that the Pw.1 took follow-up treatment. During said period he has to spent considerable amount on his conveyance, attendant charges and nutritious food. Under these circumstances a sum of Rs.14,000/- is awarded under this head.
Medical expenses: The 20 medical bills produced at Ex.P3 & 4 depict that, the Pw.1 spent Rs.34,834/- towards medical expenses. Bill No.1 is inpatient bill of Rs.10,500/- issued by the Venlakh hospital. Bill No.2 is issued by the Sanjay Gandhi Hospital to the tune of Rs.16,263/-. In cross- examination of Pw.1 it is suggested that the medical bills SCCH 17 17 MVC 2762/13 Ex.P3 & 4 are created documents, he denied it. Though the first respondent contended that the petitioner availed ESI benefits but failed to prove it. In cross-examination the Rw.1 & 3 stated that they have no documents to show that the petitioner availed ESI benefits. Though the Pw.1 was subjected to cross-examination but nothing is elicited to doubt the genuineness of medical bills. Thus the petitioner is entitled for medical expenses of Rs.34,834/-. Loss of earning during laid up period: Pw.1 stated that he was earning Rs.5,000/- per month and Rs.1,800/- per week working over time in DTDC Courier company. Except the self serving statement the petitioner has not produced a scrap of paper to demonstrate that he was working in DTDC Courier Company and was earning Rs.5,000/- per month and SCCH 17 18 MVC 2762/13 Rs.1,800/- per week by working over time. In the absence of positive evidence about avocation and income of Pw.1, his income is considered as Rs.4,000/- per month on notional income basis as the accident is of the year 2013. Pw.1 sustained Type I compound fracture both bones of left leg. Pw.1 took treatment as inpatient for 14 days and he took follow-up treatment also. Considering the nature of injuries sustained and the line of treatment it can be said that the Pw.1 requires at least three months recovering from the said injuries. Therefore, during said laid up period he lost the income. Hence a sum of Rs.12,000/- is awarded under this head.
Loss of future income due to disability: Pw.2 stated that the Pw.1 sustained Type I compound fracture both bones of SCCH 17 19 MVC 2762/13 left leg, which is grievous in nature. Pw.1 was treated by closed reduction and internal fixation with IMIL nail under anesthesia. Pw.2 stated that the Pw.1 was readmitted on 3.7.2013 and dynamisation was done on 5.7.2013 and he was discharged on 6.7.2013. He stated that the Pw.1 is suffering from loss of movement of Hip, Knee and Ankle. Pw.2 stated that on radiological examination shows that the Pw.1 suffered with permanent physical impairment of 15 per cent to the whole body. In cross-examination he stated that he personally treated the petitioner and conducted surgery and implant is in situ. It is suggested that the disability assessed is on higher side, he denied it. He admitted that the fracture is united. Pw.2 assessed that the Pw.1 suffers permanent physical disability of 15% to the whole body. SCCH 17 20 MVC 2762/13
It is well settled that the loss of earning capacity is to be determined basing on the permanent physical disability. Pw.1 has not produced cogent evidence to establish his avocation. If his avocation is considered as courier boy then there is maximum use of upper and lower limb due to this he finds difficulty in work and there is functional disability which affects his earning capacity to the extent of 10%. Medical records disclose that the Pw.1 was aged 23 years at the time of accident. Appropriate multiplier is 18. Thus Pw.1 is entitled for Rs.86,400/- (Rs.4,000x12x18x10/100). Loss of future amenities and future happiness:
Pw.1 was aged 23 years at the time of accident. He suffered Type I compound fracture both bones of left leg. Fracture is united and implant in situ. He suffered 15% of SCCH 17 21 MVC 2762/13 permanent physical impairment to whole body. He will face difficulties in his day to day activities and he will not be able to enjoy the life in the same manner as he used to do earlier to the accident. Therefore, it would be just and reasonable to award a sum of Rs.20,000/- under this head. Future medical expenses: Pw.2 stated that, the fracture is united and implant is in situ. He stated that the Pw.1 has to undergo one more surgery for removal of implant which will cost Rs.10,000/- to Rs.12,000/-. The facts on hand show that the Pw.1 has to undergo one more surgery for removal of implant for which he has to bear expenses. Thus he is entitle for Rs.15,000/- towards future medical and other incidental expenses.SCCH 17 22 MVC 2762/13
Petitioner is entitled for compensation under the following heads;
a) Towards pain and suffering Rs.35,000/-
b) Towards attendant charges,
extra nutritious, food and
conveyance expenses Rs.14,000/-
c) Towards medical expenses Rs.34,834/-
d) Loss of income during laid
up period Rs.12,000/-
e) Loss of future income due to
permanent disability Rs.86,400/-
f) Loss of future amenities
and happiness Rs.20,000/-
g) Towards future medical expenses Rs.15,000/-
Total Rs.2,17,234/-
19. Liability: First respondent is the insurer and second
respondent is the owner of vehicle in question. It is not in SCCH 17 23 MVC 2762/13 dispute that the policy was in force at the time of accident.
The first respondent contended that the driver of offending vehicle was not having valid driving licence. This contention of first respondent is negatived by the evidence of Rw.2, who stated that the driver possessed valid driving licence at the time of accident. Secondly, the first respondent contended that the petitioner traveled in the goods lorry as a passenger and he is not covered under the policy, as such it is not liable to pay compensation. On the other hand, petitioner pleaded that he traveled in the lorry as a representative of goods on the basis of his company's assignment.
Let us analyse the proof displayed by the parties to unmask the truth regarding the dispute, whether the SCCH 17 24 MVC 2762/13 petitioner traveled in the goods vehicle as a representative of goods or as an unauthorized passenger.
In the first information report nothing is stated that the injured traveled in the goods lorry as a representative of goods but it is only stated that he traveled in the lorry along with the driver. In claim petition at column No.10 and 22, it is stated that the petitioner traveled in the lorry as a representative of goods. In para 22 also it is stated that the employer of petitioner assigned him to accompany with courier parcel for loading and unloading. In affidavit evidence the petitioner re-narrated the said facts. In cross-examination he stated that, he does not possess any documents to show that he is working in the company. SCCH 17 25 MVC 2762/13
It is worth to note that except self serving statement the petitioner has not placed any documentary evidence to show that he was working in DTDC Courier Company and on that day he was assigned to accompany the goods as a representative of goods. At the least he has not chosen to examine any of the employee of said company or the driver of lorry to speak about his travel along with the goods. But the petitioner either produced any document or examined any witness for the reasons best known to him. Withheld of best available evidence results in drawing adverse inference. In the absence of proof that the petitioner traveled in the goods lorry as a representative of goods, then the only inference that can be drawn is that the petitioner traveled in goods vehicle as a gratuitous passenger, whose risk is not SCCH 17 26 MVC 2762/13 covered under the policy. Thus insurer is absolved from its liability.
It is significant to note that in spite of amendment Act, 1994 the effect of the provisions contained in section 147 of MV Act with respect to persons other than the owner of the goods or his authorized representative remains the same and they covered under policy. The unauthorized passengers of goods vehicle not covered under the policy.
Petitioner relied on Rule 100 of Karnataka Motor Vehicle Rules, 1989 and decision reported in ILR 2008 Karnataka 4414 (The Division Manager, The New India Insurance Co.Ltd V/s Shashidhara and another). As per Rule 100, the owner or the hirer or a bonafide employee of the SCCH 17 27 MVC 2762/13 owner or the hirer of the vehicle can travel in goods vehicle. In the decision supra it is held that, Rule clearly says that one person other than the driver can be carried in the vehicle. The claimant was accompanying the vehicle as the hirer, and there was no infirmity in the claim having been allowed.
One cannot dispute this preposition. But in the facts situation on hand the petitioner utterly fails to demonstrate that he was working in DTDC Courier Company and he was assigned by the company to travel in the vehicle as a representative of goods. This shows that the petitioner traveled in the goods vehicle as on unauthorized passenger as such the insurer is not liable to pay compensation. The SCCH 17 28 MVC 2762/13 owner has to pay the compensation. Accordingly this issue is answered.
20. Issue-3: By virtue of above findings, Tribunal proceeds to pass the following;
ORDER Petition is allowed in part with costs.
Petition is dismissed against first respondent. Petitioner is entitled for compensation of Rs.2,17,234/-(Rupees Two Lakhs Seventeen Thousand Two Hundred Thirty Four Only) with interest @ 9 per cent per annum (excluding future medical expenses of Rs.15,000/-) from the date of petition till its realization.
Second respondent is liable to pay compensation to the petitioner. He is directed to deposit the aforesaid SCCH 17 29 MVC 2762/13 compensation amount within 60 days from the date of this judgment.
In the event of deposit, 50 per cent of the amount shall be kept in fixed deposit in any nationalized/Schedule bank of the choice of petitioner for a period of three years with liberty to draw accrued interest periodically and remaining 50 per cent shall be released in favour of petitioner.
Advocate's fee is fixed at Rs.1,000/-.
Draw an award accordingly.
(Dictated to the Stenographer, transcribed by her corrected by me and then pronounced in the Open court, this the 7th day of November, 2016) (A.SAMIULLA) XIX ADDL.SCJ & MACT:
BANGALORE.
SCCH 17 30 MVC 2762/13
A N N E X U R E
LIST OF WITNESSES & DOCUMENTS EXAMINED &
MARKED ON BEHALF OF THE PETITIONERS &
RESPONDENTS:
FOR PETITIONER:
Pw.1: Sri.Prathap
P.w.2: Dr.Shiva Kumar.Y.S.
DOCUMENTS:
Ex.P.1 FIR of Krishnagiri PS Crime No.74/2013 in Tamil
Ex.P.1a Translation of FIR
Ex.P.2 Discharge summary
Ex.P.3 Medical bills 12 in numbers for Rs.33,247/-
Ex.P.4 Medical bills 80 No.s for Rs. 1,587/-.
Ex.P.5 One X-ray film.
Ex.P.6 Inpatient case sheets dated 16.02.2013
Ex.P.7 Inpatient case sheets dated 03.07.2013
Ex.P.8 X-ray Film
FOR RESPONDENTS:
R.w.1: Sri. Yallappa .B.A.
R.w.2: Sri.S.Gnana Shekhar
R.w.3: Sri.Shobha.K.A
DOCUMENTS:
Ex.R.1 Copy of Policy
Ex.R.2 Authorisation
Ex.R.3 Copy of Driving licence
(A.SAMIULLA)
XIX ADDL.SCJ & MACT:
BANGALORE.