Bangalore District Court
Sunil Babu.N vs B. Nagaraj on 7 May, 2015
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
BANGALORE. (SCCH-11)
DATED THIS 7TH DAY OF MAY, 2015
PRESENT: SRI. GANAPATI GURUSIDDA BADAMI, B.A,LL.B(SPL).
I ADDL.SMALL CAUSES JUDGE & XXVII ACMM
M.V.C No.1598/2014
PETITIONER: Sunil Babu.N,
S/o. Narayana,
Aged about 21 years,
R/a No.23/2,
Thimmarayappa garden,
Bazar Street,
Neelasandra,
Bangalore - 47.
(By pleader - Sri.B.S.Manjunath)
- V/S -
RESPONDENTS: 1. B. Nagaraj,
S/o.Balappa,
R/a No.5, B Street,
Shanthinagar,
Banglore - 27.
(By pleader - Sri.Bhaskar Babu.H.J)
2. The Oriental Insurance Co., Ltd.,
No.16/1, S.P.Complex,
Apple Villa, I floor,
Lalbagh Road,
Bangalore.
(By pleader - Sri.Ravishankar.S)
*******
SCCH - 11 2 MVC No.1598/2014
JUDGMENT
Petitioner has filed this claim petition against the respondents claiming the compensation for the injuries sustained in the road traffic accident.
2) It is averred that, on 16.3.2014 at about 6:30pm, petitioner was riding his motor cycle bearing No.KA-05-S-1147 from Neelasandra to Anepalya along with his friends Anand and Dilip by observing traffic rules and regulations slowly and cautiously and came near Sanjivini Ambulance office. At that time, driver of water tanker bearing No.KA-09-A-3388 driven the same in rash and negligent manner endangering human life with high speed from opposite direction and dashed to the motor cycle of the petitioner. Due to said impact, the petitioner and pillion riders fell down and sustained grievous injuries.
3) Immediately after the accident, the petitioner was shifted to Hosmat hospital wherein first aid treatment was given and then he was shifted to NIMHANS hospital where initial treatment was given to the petitioner and then he was admitted in Bowring and Lady SCCH - 11 3 MVC No.1598/2014 Curzon hospital and he was kept under observation of head injury and right hip region and X-Rays were taken and dislocation of hip joint was confirmed. The petitioner was treated conservatively and he was discharged on 21.3.2014 with an advice for follow-up treatment and bed rest. Accordingly, the petitioner is undergoing follow-up treatment and bed rest. The petitioner has spent huge amount towards medical expenses, conveyance, nourishment and attendant charges and he has to incur huge expenses for follow-up treatment.
4) Prior to the accident, the petitioner was hale and healthy and he was aged about 21 years and studying in Final year B.Com in United Mission College, Mission Road, Bangalore and due to the fractures sustained in the said accident, the petitioner is unable to attend the classes and annual examination and it affected his educational career and bright future. Due to the accidental injuries, the petitioner has undergone deep mental shock, pain and sufferings and he has been put to untold hardship and he has got physical difficulties and he cannot do any work and participate in sports and extra curricular activities. The accidental injuries have caused permanent disability. The Ashok nagar traffic police have registered SCCH - 11 4 MVC No.1598/2014 case against the driver of offending vehicle under Cr.No.23/2014 for the offences punishable under Section 279, 228 of IPC. The respondents being owner and insurer of offending vehicle are jointly and severally liable to pay the compensation to the petitioner. Hence the petitioner has claimed the compensation of Rs.6,00,000/- along with interest and costs.
5) Respondent No.2 has appeared through counsel and filed Written Statement and denied the contents of claim petition. It is also contended that, there is breach of specified terms and conditions of insurance policy by the respondent No.1 and the respondent No.2 cannot be made liable to satisfy the award which may be passed in this claim petition. The petitioner is not entitled for any relief as the accident occurred solely due to negligence on the part of the petitioner who was riding the vehicle with two pillion riders which is prohibited under law. the complaint, FIR and charge sheet disclose that the petitioner was driving the motor cycle with two pillion riders which is contrary to the law and act of the petitioner in driving the motor cycle with two pillion riders amounts to violations of the terms and conditions of policy covered under motor cycle and as he cannot put the blame on the vehicle owned by the respondent No.1 and act of SCCH - 11 5 MVC No.1598/2014 the petitioner riding the vehicle in violation of law does not entitle him for any compensation though allegation against the vehicle owned by the respondent No.1. The offending vehicle was not having fitness certificate which was plied on road which is gross violation of terms of insurance policy. The alleged accident was not caused due to rash and negligent driving by driver of offending vehicle and alleged accident taken place due to sole negligence on the part of petitioner. The respondent No.2 issued insurance policy bearing No.421403/31/2014/3352 which was valid from 23.11.2013 to 22.11.2014. But the liability of the respondent No.2 is subject to the terms and conditions of insurance policy. The respondent No.2 may be permitted to take all defences available to the respondent No.1 if he fails to appear after service of notice, or placed exparte or fails to contest the claim petition. The compensation claimed by the petitioner is highly speculative, excessive, exorbitant and highly disproportionate without any basis. If this tribunal were to pass award and compensation to the petitioner, rate of interest may be restricted to 4% per annum. Therefore it is prayed for dismissal of claim petition.
SCCH - 11 6 MVC No.1598/2014
6) Though respondent No.1 appeared through his counsel,
he has not filed Written Statement. Hence Written Statement of the respondent No.1 is taken as not filed.
7) Petitioner himself examined as PW.1 and also examined Dr.Ramachandra S/o Subbashetty as PW.2 and got marked Ex.P.1 to 21 and closed the evidence. Though sufficient time has been granted to the respondent No.1 and 2, they have not adduced their evidence. Hence respondent No.1 and 2 side evidence is taken as nil.
8) Heard the arguments of learned counsel for petitioner. Though sufficient time has been granted to the respondent No.2, he has not adduced the evidence and submitted the arguments. Hence respondent No.2 side arguments are taken as not addressed and claim petition is taken for disposal on merits.
9) On the basis of the pleadings of the parties, following issues have been framed:
1. Whether petitioner proves that, on 16.03.2014 at about 6.30 pm., when he was riding his motor cycle, bearing Regn.No.KA-05-S-1147 from Neelasandra to Anepalya along with his friend Anand, Dilip slowly and cautiously and when he came near Sanjivini ambulance office, at that time, the driver of water tanker bearing SCCH - 11 7 MVC No.1598/2014 Regn. No.KA-09-A-3388 driven the said vehicle from opposite direction in a rash and negligent manner with high speed and dashed to the motor cycle by which petitioner sustained grievous injuries?
2. Whether respondent No.2 proves that the respondent No.1, violated the terms and conditions of insurance policy?
3. Whether petitioners are entitled for compensation? If so, what quantum of compensation amount and from whom?
4. To what order or award?
10) My findings on the above issues are as under:
Issue No.1: Affirmative.
Issue No.2: Affirmative.
Issue No.3: Partly Affirmative; the petitioner is entitled to compensation of Rs.2,82,400/- with interest @ of 6% p.a. from the date of petition till complete realisation, from respondent No.1 and 2.
Issue No4: As per final order for the following:
REASONS
11) ISSUE No.1 AND 2: PW1 has stated in his evidence that, on 16.3.2014 at about 6.30 pm., he was riding his motor cycle bearing Regn.No.KA-05-S-1147 along with his friends from Neelasandra to SCCH - 11 8 MVC No.1598/2014 Anepalya on Anepalya main road slowly and cautiously and came near Sanjivini ambulance office, at that time, the driver of water tanker bearing Regn.No.KA-09-A-3388 came from opposite direction by over taking other vehicle and came to his extreme right side with high speed and dashed to the vehicle. In the cross-examination of PW.1, he has stated that, on the date of accident, he had gone to Neelasandra and accident taken place on 16.3.2014 at about 6.30 pm. and on that day, he was proceeding on Suzuki Slogan motor cycle. He has stated that, he and his two friends by name Dilip and Anand were going on motor cycle.
The cross-examination portion is as under :
"Myself and my two friends by name Dilip and Anand were going on motor cycle".
This evidence of PW.1 goes to show that, petitioner and his friends by name Dilip and Anand were going on the motor cycle by triple riding. He has also admitted that, on that day, he had not worn helmet. He has admitted in his cross-examination that, as per registration certificate only rider and one pillion rider are permitted to travel on motor cycle. He has admitted that, water tanker came from opposite direction and dashed to the motor cycle.
SCCH - 11 9 MVC No.1598/2014
12) The learned counsel for petitioner has contended in his
arguments that, on 16.3.2014 at about 6.30 pm., the petitioner and his friends by name Dilip and Anand were proceeding on motor cycle bearing Regn.No.KA-05-S-1147 from Neelasandra to Anepalya on Anepalya main road slowly and cautiously and when they came near Sanjivini Ambulance office, at that time, the driver of water tanker driven the same in rash and negligent manner and came to the extreme right side and dashed to the motor cycle. He has submitted that, accident taken place due to rash and negligent driving by the driver of water tanker and Ashok Nagar Traffic Police have registered the case against the driver of the said vehicle and after investigation, they have filed charge sheet for the offences punishable under section 279, 338 of I.P.C. He has also submitted that, there is no negligence on the part of the petitioner. He has also relied upon decision reported in (B.U.Chaitanya Vs. Managing Director, Bangalore Metropolitan Transport Corporation and another) 2013 ACJ 1423 and submitted that, in the said decision, it is held that, if negligence is proved and accident is admitted, the insurance company cannot be deny its liability in respect of other two claims arising out of the same accident. He has also relied upon SCCH - 11 10 MVC No.1598/2014 decision reported in (K.Pushpa Latha and another Vs.E.Murali Manohar Rao and another) 2014 ACJ 640 and submitted that, the violation section 128(1) of the Motor Vehicle Act ipsofacto does constitute contributory negligence on the part of riders of the motor cycle. He has also relied upon decision reported in (Karnail Singh and others Vs. Balwinder Singh and another) 2014 ACJ 1762 in respect of contributory negligence. He has also relied upon decision reported in (Binoj Antony Vs. New India Assurance Co., Ltd.,) 2014 ACJ 1678 and (United India Insurance Co., Ltd., Vs. Santosh Devi and others) 2014 ACJ 1287.
13) The petitioner has produced true copy of F.I.R and complaint which are marked at Ex.P.1 and 2 and as per the said documents, on 16.3.2014 at about 6.30 pm., the petitioner and his friends were proceeding on motor cycle bearing Regn.No.KA-05-S- 1147 on Anepalya Main Road near Sanjivini Ambulance office, at that time, the driver of water tanker bearing Regn.No.KA-09-A-3388 driven the same in rash and negligent manner and caused the accident. Petitioner has also produced true copy of hand sketch map which is marked at Ex.P.3 and as per the said document, the petitioner and his friends were proceeding on motor cycle bearing SCCH - 11 11 MVC No.1598/2014 Regn.No.KA-05-S-1147 from east to west direction and water tanker bearing Regn.No.KA-09-A-3388 came from west to east direction and caused the accident. The petitioner has also produced panchanama of place of accident and as per the said document, the accident taken place on Gajendranagar main road, 18th cross. The petitioner has also produced wound certificate, IMV report and charge sheet and as per charge sheet, the police have filed charge sheet against the driver of water tanker bearing Regn.No.KA-09-A-3388 for rash and negligent driving and causing the accident and the said vehicle was driven on the right side of the road and vehicle was not having fitness certificate and permit. On perusal of the charge sheet, it discloses that, the said vehicle was driven on the right side and accident taken place due to rash and negligent driving by the driver of offending vehicle. Question regarding contributory negligence will be discussed in detail subsequent paragraphs. So, I hold that, the petitioner has proved the rash and negligent driving by the driver of said vehicle. So I answered issue No.1 in affirmative.
14) ISSUE NO.2 : The respondent No.2 has taken contention about violation of terms and conditions of insurance policy by the respondent No.1. The petitioner has produced charge sheet SCCH - 11 12 MVC No.1598/2014 and as per said document, police have filed charge sheet against the driver of offending vehicle for the offences punishable under section 279, 338 of IPC and also filed charge sheet under section 56 R/W. Section 192, 66 R/W.Section 192-A and 18(1)(r)(r)(r) R/W.Section 177 of Motor Vehicle Act for not having fitness certificate and permit. This goes to show that, as on the date of accident, the said vehicle was not having fitness certificate and permit and there is clear violation of terms and conditions of insurance policy. So I answered issue No.2 in affirmative.
15) ISSUE NO.3: PW.1 has stated in his evidence that, immediately after the accident, he was taken to HOSMAT Hospital wherein first aid treatment was given and then shifted to NIMHANS wherein initial treatment was given for head injury and then referred to Bowring and Lady Curzon Hospital where X-rays and C.T scanning was done for head injury and dislocation of right hip region was confirmed. He has stated that, he was treated conservatively and discharged on 21.3.2014 and he has also spent Rs.25,000/- towards medical expenses and Rs.20,000/- towards conveyance, nourishment and attendant charges.
SCCH - 11 13 MVC No.1598/2014
16) The petitioner has produced medical bills which are
marked at Ex.P.11 and as per the said document, the petitioner has spent Rs.8,255/-. So, the petitioner is entitled compensation of Rs.8,255/- under the head of medical expenses. Hence, the petitioner is awarded compensation for Rs.8,255/- under the head of medical expenses.
17) The petitioner was admitted in the Bowring and Lady Curzon Hospital on 17.3.2014 and discharged on 21.3.2014 and he was admitted in the said Hospital for 5 days. He has also produced wound certificate of HOSMAT for having taken treatment in the said Hospital. Considering the cost of living, income of petitioner and cost of attendant charges and other incidental charges, I feel it just and proper to award the compensation of Rs.5,000/- under the head of loss of income during laid up period. Hence the petitioner is awarded the compensation of Rs.5,000/- under the head of loss of income during laid up period.
18) The petitioner has admitted in the Bowring and Lady Curzon Hospital for 5 days. During the period of hospitalization, he SCCH - 11 14 MVC No.1598/2014 might have spent some amount towards food, conveyance, nourishment and attendant charges and his family members would have spent some amount towards food and other incidental charges. Considering this fact, I feel it just and proper to award the compensation of Rs.6,000/- under the head of food, conveyance, nourishment and attendant charges. Hence the petitioner is awarded the compensation of Rs.6,000/- under the head of food, conveyance, nourishment and attendant charges.
19) The petitioner has produced wound certificate and as per the said document, the petitioner sustained dislocation of the left tibio femoral joint and dislocation of right hip joint and injuries No.1 to 3 are grievous in nature. He has produced X-ray report issued by HOSMAT Hospital and as per said document, the petitioner sustained dislocation of left tibio femoral joint and dislocation of right hip joint. Due to the accidental injury, the petitioner would have suffered physically and mentally and accidental injuries will cause pain and agony in day to day activity of the petitioner. Considering this fact, I feel it just and proper to award the compensation of Rs.20,000/- under the head of pain and agony. Hence the petitioner SCCH - 11 15 MVC No.1598/2014 is awarded the compensation of Rs.20,000/- under the head of pain and agony.
20) The petitioner suffered dislocation of left tibio femoral joint and dislocation of right hip joint and as per the wound certificate, the said injuries are grievous in nature and injuries caused physical disablement to the petitioner and he cannot enjoy the amenities in life as earlier. As per the evidence of PW.2, petitioner suffered the whole body disability at 9%. Considering this aspect, I feel it just and proper to award the compensation of Rs.20,000/- under the head of loss of amenities in life. Hence the petitioner is awarded the compensation of Rs.20,000/- under the head of loss of amenities in life.
21) As per the evidence of PW.1, prior to the accident, he was hale and healthy and he was aged about 21 years and he was a student studying in final year B.Com at United Mission College, Mission road, Bangalore. He has stated that, the accidental injuries affected his education carrier and bright future and injuries have caused permanent disability and he is getting acute pain and headache and unable to walk fast, stand for long time and concentrate on his study.
SCCH - 11 16 MVC No.1598/2014 Since petitioner is a student, he has no income of his own and he has to depend upon his father and mother for his maintenance and he has no independent source of income. PW.2 has stated that, the petitioners have suffered disability of right lower limb at 17.2% and whole body disability at 9%. The petitioner sustained posterior dislocation of right hip joint and he undergone closed reduction of right hip joint under spinal anesthiya. As per the decision of Hon'ble High Court reported in K. Nanjappa V/s Shekar 2004 (3) TAC 475 in case of non-earning member, income has to be taken at Rs.15,000/- per annum and 1/3 is to be deducted. In a decision reported in Savitri Devi Gupta V/s M/s Swarnakumar Ram Kumar 2005 (1) TAC 104 (Delhi) wherein it is held that as per the second schedule, notional income should be taken at Rs.15,000/- per year or Rs.1,250/- per month. The petitioner is aged about 21 years and as per the decision of Hon'ble Supreme Court reported in AIR 2009 SC 3104 (Sarla Verma) , the multiplier applicable to the facts of the case is
17. If notional income of the petitioner is taken at Rs.15,000/- per year, the loss of income will be Rs.15,000x17= 2,55,000/-. If 1/3 is deducted towards personal expenses, it will be Rs.85,000/-. So I SCCH - 11 17 MVC No.1598/2014 hold that, the petitioner is entitled for compensation of Rs.85,000/- under the head of loss of income.
22) The PW.2 has not suggested any future medical expenses like removal of implants and petitioner has also not stated in his evidence about future medical expenses. So, I hold that the petitioner is not entitled for compensation under the head of future medical expenses.
23) As discussed in issue No.1, petitioner and his friends by name Dilip and Anand were proceeding on Motor cycle and one Tanker vehicle came from opposite direction and dashed to the Motor cycle. It is not the contention of the respondent insurance company that due to triple riding, the accident taken place. Even it is also not suggested in the cross-examination that, due to triple riding, the petitioner lost control and balance of the vehicle and he and his friends fell down and sustained injuries. Mere triple riding of Motor cycle is not a ground to reject the claim for compensation. Because, in the decision reported in 2014 ACJ 640, Hon'ble Andhra High Court has held that, "violation of safety measures contained either in section 128(1) of the Act or in any other provision cannot be taken SCCH - 11 18 MVC No.1598/2014 into consideration to disallow compensation payable for an injured or dependants of the deceased in a motor accident case or any part thereof."
In one more decision reported in (Karnail Singh and others Vs. Balwinder Singh and another) 2014 ACJ 1762 wherein it is head that "The three persons traveling on a Motor cycle may have been guilty of traffic offence but there is no reason for the Court to make any inference regarding negligence as contributory by only fact that the persons were going on Motor cycle."
In one more decision reported in (Binoj Antony Vs. New India Assurance Co., Ltd.,) 2014 ACJ 1678 , the Hon'ble Kerala High Court has held as under:
"The mere fact that a motor cycle was carrying two pillion riders cannot ipso facto give rise to an inference of contributory negligence unless it is positively proved that such carrying of two pillion riders actually contributed to the accident. One can easily visualize a case where a motor cycle with two pillion riders was stationary on the right side (sic) of the motor cycle on a road and another vehicle comes from behind and hits the vehicle. In such a case, the SCCH - 11 19 MVC No.1598/2014 mere fact that the motor cycle was carrying two pillion riders cannot spell out negligence on the part of the rider of the motor cycle or even on the two pillion riders. It is possible to visualize several other similar circumstances, where mere carrying of two pillion riders cannot possibly contribute to an accident as such."
In the decision reported in United India Insurance Company V/s Santhosh Devi and others 2014 ACJ 1287, Hon'ble Rajasthan High Court relied upon decision of Hon'ble Supreme Court reported in Sudhir Kumar Rana V/s Surinder Singh 2008 ACJ 1834, Hon'ble Supreme Court has defined contributory negligence and composite negligence in different prospects. The said paragraph of decision is as under:
"A contributory negligence may be defined as negligence in not avoiding the consequences arising from the negligence of some other person. When means and opportunity are afforded to do so. The question of contributory negligence would arise only when both parties are found to be negligent.
SCCH - 11 20 MVC No.1598/2014 In the light of the principles laid down in the above said decisions, the riding of motor cycle with two pillion riders is violation of provision of law which attracts penalty and it is not a contributory negligence. Since the offending vehicle was not having fitness certificate and permit and the respondent No.1 allowed the said vehicle to ply on the road in gross violation of terms and conditions of insurance policy. So I hold that the respondent No.1 and 2 are equally liable to pay the compensation to the petitioner. So, I hold that petitioner is entitled for compensation under different heads which is calculated as under:
1) Medical Expenses Rs. 8,255/-
2) Loss of income during the period Rs. 5,000/-
of treatment So
3) Food, conveyance, nourishment, Rs. 6,000/- I
attendant and other expenses
hold
4) Pain and agony Rs. 20,000/-
5) Loss of amenities in life Rs. 20,000/- that
the
6) Loss of income Rs. 85,000/-
Total Rs.1,44,255/- peti
tioner is entitled for compensation of Rs.1,44,255/- along with interest @ of 6% p.a. from the date of petition till complete SCCH - 11 21 MVC No.1598/2014 realisation. Accordingly, I answer this issue No.3 in partly affirmative.
24) ISSUE No.4: In view of answers to issues No.1 to 3, I proceed to pass the following:
O R D E R The petition filed under Section 166 of M.V. Act is partly allowed with costs.
The petitioner is entitled to compensation of Rs.1,44,255/- along with interest at the rate of 6% p.a. from the date of petition till complete realisation.
The respondent No.1 and 2 are jointly and equally are liable to pay the compensation to the petitioner.
The respondent No.1 and 2 shall deposit awarded compensation amount with accrued interest in their respective proportion within one month, from the date of this award.
In case of deposit of the awarded compensation by the respondent No.1 and 2, entire amount shall be released to the petitioner by means of account payee cheque on proper identification and verification.
Advocate fee is fixed at Rs.1,000/-.
SCCH - 11 22 MVC No.1598/2014
Draw award accordingly.
(Typed to my online dictation by the Stenographer, corrected and pronounced by me in open court on this 7th day of May, 2015.) (GANAPATHI GURUSIDDA BADAMI) I ADDL.SMALL CAUSES JUDGE & XXVII ACMM A N N E X U R E WITNESSES EXAMINED FOR PETITIONERS:
PW.1 - Sunil Babu
PW.2 - Dr. S. Ramachandra
DOCUMENTS MARKED FOR PETITIONERS:
Ex.P.1 - True copy of FIR
Ex.P.2 - True copy of complaint
Ex.P.3 - True copy of hand sketch map
Ex.P.4 - True copy of panchanama
Ex.P.5 - True copy of IMV report
Ex.P.6 - True copy of wound certificate
Ex.P.7 - True copy of charge sheet
Ex.P.8 - Discharge summary
Ex.P.9 - OPD card
Ex.P.10 - X-ray report
Ex.P.11 - 11 medical bills
Ex.P.12 - 4 medical prescriptions
Ex.P.13-17 - 5 x-rays
Ex.P.18 - absent certificate
SCCH - 11 23 MVC No.1598/2014
Ex.P.19 - OPD card
Ex.P.20 - case sheet of petitioner
Ex.P.21 - One X-ray
WITNESSES EXAMINED FOR RESPONDENTS :
- NIL -
DOCUMENTS MARKED FOR RESPONDENTS :
- NIL -
I ADDL.SCJ. & MACT.