Bangalore District Court
Sri. Lohith.N vs Reliance General. Insu. Co. Ltd on 8 January, 2020
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL, BANGALORE.
(SCCH11)
DATED THIS 8th DAY OF JANUARY, 2020
PRESENT: SMT.B.S.RAYANNAWAR, B.A, L.L.B.
I ADDL.SMALL CAUSES JUDGE & MACT
M.V.C No.7392/2017
PETITIONER: Sri. Lohith.N,
S/o. Late Narayana Reddy,
Aged about 20 years.
R/at No.419, 12 th main,
3rd Stage, Manjunathanagar,
Bengaluru - 560 010.
(By Sri.S.P.S........... Advocate)
V/S
RESPONDENTS: 1. Reliance General. Insu. Co. Ltd.,
Head Office, No.28, 5th Floor,
Southern portion, West Wing,
Centenary building, M.G.Road,
Bengaluru - 560 001.
(By Sri.A.N.H........... Advocate)
2. Sri. Shanthkumar.C.K,
Father name not known,
Aged about 45 years,
R/at No.C4, No.216,
Sanjay tower, S.C.Road,
Netkalappa circle, Basavangudi,
Bengaluru - 560 004.
Also at
No.305, 2nd main,
Ganganadi road, Pipe line,
Srinagar, Bengaluru - 560 050.
(Exparte)
SCCH - 11 2 MVC 7392/2017
3. Sri. Manjunath.V,
S/o. Vijendra,
Aged about 24 years,
R/at No.30, 2nd Cross,
Indiranagar slum,
Rajajinagar, Manjunathnagar,
Bengaluru - 560 010.
(Exparte)
JUDGMENT
The petitioner has filed this petition under Section 166 of Motor Vehicle Act praying for compensation of Rs.9,00,000/ from the respondents for the injuries sustained by him in road traffic accident.
2. The case of the petitioner in brief is as hereunder:
It is averred that on 23.10.2016 at about 11.30 pm., in 3 rd "C" main Manjunathnagar Bengaluru while talking with his friend Santhosh in foot path at that time respondent No.3 drove the car in rash and negligent manner hit the Petitioner. Due to this impact the Petitioner sustained swelling, tenderness, deformity and crepitus over distal aspect of right leg. Fracture of distal third both bones of SCCH - 11 3 MVC 7392/2017 right leg other abrasions all over the body. Immediately after the accident Petitioner was shifted and admitted to Nandan Health care, Unit of Kaade Hospital, Manjunathnagar at Bengaluru 560 010 from 24.10.2016 and discharged on 27.10.2016 as an inpatient still under follow up treatment and advice to take rest and follow up treatment.
On the date of accident the Petitioner was hale and healthy working as a Marketing executive in Sancity Lan Developers Pvt., Ltd., Malleshwaram, Bengaluru and earning a sum of Rs.15,000/ per month. Due to this accident the injuries sustained, the Petitioner cannot attend his office work and his family needs and suffer loss of wages and earning. The disability will greatly affect to his day to day work and to take care of his mother. The Vijayanagar Traffic police station, Bengaluru city, West traffic subdivision registered case in crime No.274/2010 under Section 279, 337, 338 of IPC and 134(A &B) R/w 187 & 3(1) R/w 181 & 5(1) R/w 180 has registered a case against the owner and driver of the Toyota etios car bearing reg.No.KA41B0116. The second respondent is the present RC owner and third respondent is the driver of the said car. Hence Respondents are jointly and severally liable to pay the compensation SCCH - 11 4 MVC 7392/2017 to the petitioner. On these grounds petitioner has filed above petition for the relief's stated supra.
3. After service of notice, Respondent No.2 and 3 not appeared before this court and hence placed exparte. Respondent No.1 has appeared through their advocate and contested the case by filing objection statement wherein, it has denied the allegations made in the petitions as false and frivolous. It has further disputed the manner of the accident, age of the injured and quantum of the compensation claimed under different heads. The driver of offending vehicle not having valid and effective driving license on the date of accident. In the absence of valid and effective driving licence the insurance company is not liable to pay compensation. Hence, it prayed for dismissal of the petition.
4. From the above facts, the following issues have been framed:
ISSUES
1) Whether Petitioner proves that, he sustained grievous injuries in the accident that occurred on SCCH - 11 5 MVC 7392/2017 23.10.2016 at about 11.30 pm, 3 rd 'C' main, Manjunathnagar, Bengaluru while talking with his friend Santhosh in footpath, due to the rash and negligent driving of the car bearing reg.No.KA41B 0116 by its driver ?
2) Whether petitioner is entitled for the compensation as prayed in the claim petition? If so, what is the quantum of compensation and from whom ?
3) What order or Award?
5. In order to substantiate his case petitioner has got examined himself as PW.1 and has produced 14 documents marked as Ex.P.1 to 14 and closed his side. Assistant RTO, Rajajinagara has examined as RW.1 and got marked Ex.R.1. Retired PSI has examined as RW.2. ARTO, Gnanbharathi, Bengaluru has examined as RW.3 and got marked Ex.R.2. Legal Officer of first respondent has examined as RW.4 and and got marked Exs.R.3 to 6 and closed their side evidence.
6. Heard the arguments by Learned Counsel for Petitioner and first respondent.
7. Findings of this Court on the above issues are as under: SCCH - 11 6 MVC 7392/2017 Issue No.1 : In the Affirmative;
Issue No.2 : Partly in the Affirmative;
Issue No.3 : As per final order for the following: :REASONS:
8. ISSUE NO.1: It is the case of the petitioner that, on 23.10.2016 at about 11.30 pm., in 3 rd "C" main Manjunathnagar Bengaluru while talking with his friend Santhosh in foot path at that time respondent No.3 drove the car bearing Reg.No.KA41B0116 in rash and negligent manner hit the Petitioner. Due to this impact the Petitioner sustained grievous injuries.
9. To prove his case, petitioner got examined as PW.1 and filed his affidavit in lieu of his examination in chief and produced FIR, complaint, Wound certificate, charge sheet, sketch, mahazar and IMV report at Ex.P.1 to 7. Ex.P.2 Complaint lodged by Petitioner himself, on the basis of which the Vijayanagar Traffic Police have lodged FIR as per Ex.P.1 against the driver of ETIOS KA41B0116, police have drawn sketch as per Ex.P.5, mahazar as per Ex.P.6 and after investigation police have filed charge sheet at Ex.P.4 against the SCCH - 11 7 MVC 7392/2017 driver of car. Petitioner produced Ex.P.3 wound certificate which shows that, he sustained swelling, tenderness, deformity and crepitus over distal aspect of right leg and Xrays of right ankle joint AP/lateral view dated 24.10.2016 shows fracture distal third both bones of right leg and doctor opined injury No.1 is grievous in nature.
10. During cross examination by learned counsel for respondent No.1 admitted on the alleged date of accident he was standing along with his friends at that time four to five persons came in a Car abused him in filthy language and assaulted him and car rn over him. PW.1 deposed that, he has not mentioned in his complaint that so and so persons came to assault them. it is denied suggestion that, the present case is in nature of criminal case and not an accidental case. Further deposed that, after the accident he shifted to kaade hospital and took treatment as inpatient for four days. He sustained fracture injury, surgery was conducted, It is denied suggestion that, the medical bills are reimbursed by his company. During cross examination nothing is elicited to disbelieve the case of SCCH - 11 8 MVC 7392/2017 the petitioner, moreover after conducting the investigation the police filed charge sheet against the driver of the offending Car. Hence by perusal of evidence on record shows that, the accident occurred due to rash and negligence driving of the driver of the Car. Hence Issue No.1 answered in the Affirmative.
11. ISSUE NO.2: PW.1 deposed that, after the accident he was shifted to Nandan Health Care, Unit of Kaade Hospital, Bangalore wherein he took treatment as an inpatient from 24.10.2016 to 27.10.2016. On the date of accident he was hale and healthy working as a marketing executive in Sancity Land Developers Pvt. Ltd., Malleshwaram, Bengaluru and earning a sum of Rs.15,000/ per month. Due to the accident and injuries sustained he is not able to attend his office work and his family needs and suffer loss of wages and earning.
12. Petitioner produced Ex.P.3 wound certificate reveals that, petitioner sustained swelling, tenderness, deformity and crepitus over distal aspect of right leg. Xray of right ankle joint AP/lateral SCCH - 11 9 MVC 7392/2017 view dated 24.10.2016 shows fracture distal third both bones of right leg and Doctor has opined that, injury No.1 is grievous in nature. Petitioner produced discharge summary at Ex.P.13 of Nandana Hospital wherein it shows that, he took treatment from 24.10.2016 to 27.10.2016 that is for 4 days. Petitioner has produced 18 medical bills at Ex.P.11 to a tune of Rs.77,324/ along with 12 medical prescriptions at Ex.P.10.
13. But petitioner has not examined doctor who treated the petitioner. Hence there is no evidence on record with regard to disability. As admitted by petitioner he has not produced any document in support of his avocation and income. But during cross examination PW.1 admitted that, now he is working as Sales Officer in VLMC Private Office. Hence it shows that, the petitioner is continued in his service. Hence Petitioner is not entitle for the compensation under the head of future loss of income. Except producing the medical records Petitioner not examined the doctor for assessment of disability. Hence it is just and proper to award Global compensation of Rs.1,25,000/.
SCCH - 11 10 MVC 7392/2017
14. In the present case it is the contention of first respondent that, as on the date of accident driver of offending was not holding valid driving license to drove the same, police have also mentioned in charge sheet that, the driver of offending vehicle not holding DL, hence first respondent to prove their contention have examined RW.3 ARTO, Gnyanbharathi, who produced Ex.R.2 Driving License Extract, deposed that, Manjunath .V. S/o Vijyendra was holding driving license to ride motor cycle with gear, light motor vehicle from 30.03.2016 to 29.03.2036 and holding driving license to drive LMV Cab from 11.04.2018 to 11.04.2021 and Manjunth not holding driving licenses to drove Motor Cab before 11.04.2018. It shows that, on the date of accident the driver of offending vehicle not holding valid and effective license to drove Motor Cab. In the present case accident took place on 23.10.2016 it shows that on the date of accident the driver of the offending vehicle not holding valid driving licence.
15. As discussed supra the driver of the offending vehicle was not having valid and effective DL as on the date of accident. Hence at SCCH - 11 11 MVC 7392/2017 this stage it just and necessary to relied upon citation reported in AIR 2018 Supreme Court 592 (Pappu and Ors. Vs. Vinod Kumar Lamba and Anr.) wherein lordships held that, "Motor Vehicles Act (58 of 1988), S.149 - Insurer's liability - Accident occurred due to rash and negligent driving of truck - Insurer taking plea that driver of offending truck had no valid licence - Except copy of driving licence of person, owner of offending truck not producing any evidence establishing that it was driven by authorised person having valid driving licence - Fact that offending truck was duly insured - Would not per se make insurance company liable - However, insurance company directed to pay award amount to claimants in first instance and in turn, recover same from owner of vehicle". Hence, respondent No.1 being the insurer and the Respondent No.2 being the owner are jointly and severally liable to pay the compensation Rs.1,25,000/ to the Petitioner with interest at the rate of 9% per annum from the date of petition till its realization. Hence this issue is answered partly in the affirmative.
16. ISSUE No.3: In view of the findings given on the above said issues, I proceed to pass the following: SCCH - 11 12 MVC 7392/2017
ORDER Petition filed by the petitioner u/s 166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioner is entitled for compensation of Rs.1,25,000/ with interest at 9% p.a. from the date of petition till realization.
The respondent No.1 & 2 are jointly and severally liable to pay the compensation to the petitioner.
The Respondent No.1 shall deposit the compensation amount within 30 days from the date of this order with liberty to recover the same from respondent No.2.
In the event of deposit of the said compensation amount, entire amount shall be released in favour of petitioner on proper identification.
Advocate fee is fixed at Rs.1,000/. SCCH - 11 13 MVC 7392/2017 Office to draw award accordingly.
(Dictated to the stenographer over computer, corrected and pronounced by me in open court on this 8th day of January, 2020.) (B.S. RAYANNAWAR) I ADDL.SMALL CAUSES JUDGE & XXVII ACMM ANNEXURE WITNESSES EXAMINED FOR PETITIONER:
PW.1 Sri. Lohith.N DOCUMENTS MARKED FOR PETITIONER: Ex.P.1 FIR Ex.P.2 Complaint Ex.P.3 Wound certificate Ex.P.4 Charge sheet Ex.P.5 Sketch Ex.P.6 Mahazar Ex.P.7 IMV report Ex.P.8 133 notice Ex.P.9 Reply to 133 notice Ex.P.10 12 medical prescriptions Ex.P.11 18 medical bills Ex.P.12 4 Advance receipts Ex.P.13 Discharge summary Ex.P.14 Xray WITNESSES EXAMINED FOR RESPONDENTS : RW.1 Sri. Jagadish.B.H RW.2 Sri. Narasimhaiah SCCH - 11 14 MVC 7392/2017 RW.3 Sri. H.D.Manjunath RW.4 Sri. Pradeep.D.S DOCUMENTS MARKED FOR RESPONDENTS : Ex.R.1 Letter issued by the RTO Ex.R.2 DL extract Ex.R.3 Policy copy Ex.R.4 and 5 Two 133 notices Ex.R.6 Reply I ADDL.SCJ. & MACT. SCCH - 11 15 MVC 7392/2017 (Judgment pronounced in open court.) ORDER
Petition filed by the petitioner u/s 166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioner is entitled for compensation of Rs.1,25,000/ with interest at 9% p.a. from the date of petition till realization.
The respondent No.1 & 2 are jointly and severally liable to pay the compensation to the petitioner.
The Respondent No.1 shall deposit the compensation amount within 30 days from the date of this order with liberty to recover the same from respondent No.2.
In the event of deposit of the said compensation amount, entire amount shall be released in favour of petitioner on proper identification.SCCH - 11 16 MVC 7392/2017
Advocate fee is fixed at Rs.1,000/. Office to draw award accordingly.
I ADDL.S C J & XXVII ACMM SCCH - 11 17 MVC 7392/2017 AWARD SCCH NO.11 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA : BANGALORE CITY M.V.C No.7392/2017 PETITIONER: Sri. Lohith.N, S/o. Late Narayana Reddy, Aged about 20 years.
R/at No.419, 12 th main, 3rd Stage, Manjunathanagar, Bengaluru - 560 010.
(By Sri.S.P.S........... Advocate) V/S RESPONDENTS: 1. Reliance General. Insu. Co. Ltd., Head Office, No.28, 5th Floor, Southern portion, West Wing, Centenary building, M.G.Road, Bengaluru - 560 001.
(By Sri.A.N.H........... Advocate)
2. Sri. Shanthkumar.C.K, Father name not known, Aged about 45 years, R/at No.C4, No.216, Sanjay tower, S.C.Road, Netkalappa circle, Basavangudi, Bengaluru - 560 004.
Also at No.305, 2nd main, SCCH - 11 18 MVC 7392/2017 Ganganadi road, Pipe line, Srinagar, Bengaluru - 560 050.
(Exparte)
3. Sri. Manjunath.V, S/o. Vijendra, Aged about 24 years, R/at No.30, 2 nd Cross, Indiranagar slum, Rajajinagar, Manjunathnagar, Bengaluru - 560 010.
(Exparte)
WHEREAS, this petition filed on by the
petitioner/s above named U/sec.110A/166 of the M.V.C. Act,
praying for the compensation of Rs. (Rupees
) for the injuries sustained by the
petitioner/Death of in a Motor Accident by
Vehicle No. .
WHEREAS, this claim petition coming up before
Smt.B.S.Rayannawar, I Addl.Judge, Member, Bangalore, in the
presence of Sri/Smt.
Advocate for petitioner/s and of Sri/Smt. Advocate for respondent.
SCCH - 11 19 MVC 7392/2017
ORDER Petition filed by the petitioner u/s 166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioner is entitled for compensation of Rs.1,25,000/ with interest at 9% p.a. from the date of petition till realization.
The respondent No.1 & 2 are jointly and severally liable to pay the compensation to the petitioner.
The Respondent No.1 shall deposit the compensation amount within 30 days from the date of this order with liberty to recover the same from respondent No.2.
In the event of deposit of the said compensation amount, entire amount shall be released in favour of petitioner on proper identification.
SCCH - 11 20 MVC 7392/2017Advocate fee is fixed at Rs.1,000/.
Given under my hand and seal of the Court this day of 2020.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA: BANGALORE.
By the ______________________________________________ Petitioner/s Respondent No.1 No.2 ______________________________________________ Court fee paid on petition 1000 Court fee paid on Powers 0100 Court fee paid on I.A. Process Pleaders Fee _______________________________________________ Total Rs.
_______________________________________________ Decree Drafted Scrutinised by MEMBER, M.A.C.T. METROPOLITAN: BANGALORE Decree Clerk SHERISTEDAR SCCH - 11 21 MVC 7392/2017 SCCH - 11 22 MVC 7392/2017 SCCH - 11 23 MVC 7392/2017 SCCH - 11 24 MVC 7392/2017 SCCH - 11 25 MVC 7392/2017 SCCH - 11 26 MVC 7392/2017 SCCH - 11 27 MVC 7392/2017 SCCH - 11 28 MVC 7392/2017 SCCH - 11 29 MVC 7392/2017 SCCH - 11 30 MVC 7392/2017 SCCH - 11 31 MVC 7392/2017 SCCH - 11 32 MVC 7392/2017 SCCH - 11 33 MVC 7392/2017 SCCH - 11 34 MVC 7392/2017 SCCH - 11 35 MVC 7392/2017 SCCH - 11 36 MVC 7392/2017 SCCH - 11 37 MVC 7392/2017 SCCH - 11 38 MVC 7392/2017 SCCH - 11 39 MVC 7392/2017 SCCH - 11 40 MVC 7392/2017 Advanced Search Search Tips View Complete document K V Subba Reddy vs N Raghava Reddy on 28 February, 2014 Showing the contexts in which sasseriyil appears in the document Change context size Current
11. Sri S.G.Bhagavan, learned counsel for complainant, relying on judgment of this court, reported in ILR 2006 KAR 4242 (in the case of H.Narasimha Rao Vs. R.Venkataram) would submit that in a proceeding initiated under section 138 of the Act, it is not open to drawer of cheque to contend that cheque was issued to pay time barred debt. There is no bar under law to repay time barred debt.
12. The learned counsel for accused has referred to judgment of Kerala High Court, reported in 2001 Crl.L.J.24 (in the case of Sasseriyil Joseph Vs. Devassia), wherein Kerala High Court has held that section 138 of the Act is attracted only if there is legally recoverable debt and it cannot be said that time barred debt is legally recoverable debt.
13. The learned counsel for accused would further submit that judgment rendered by Kerala High Court in Sasseriyil Joseph's case was challenged before the Supreme Court in Special Leave to Appeal (Crl.) No.1785/2001, wherein the Supreme Court has held:-
"We have heard learned counsel for the petitioner. We have perused the judgment of the High Court of Kerala in Criminal Appeal No.161 of 1994 confirming the judgment/order of acquittal passed by the Addl. Sessions Judge, Thalassery in Criminal Appeal No.212 of 1992 holding inter alia that the cheque in question having been issued by the accused for due which was barred by limitation the penal provision under Section 138 of the Negotiable Instrument Act is not attracted in the case. On the facts of the case as available on the records and the clear and unambiguous provision in the explanation to Section 138 of the Negotiable Instrument Act the judgment of the lower appellate court as confirmed by the High Court is unassailed.
Therefore, the special leave petition is dismissed."
14. The learned counsel for accused would submit the view taken by Kerala High Court in Sasseriyil Joseph's case (supra) that under section 138 of the Act a time barred debt cannot be held as legally recoverable debt, has been confirmed by the Supreme Court in Special SCCH - 11 41 MVC 7392/2017 Leave to Appeal (Crl.) No.1785/2001.
15. On consideration of aforestated judgments, I find that the view taken by Kerala High Court in Sasseriyil Joseph's case (supra), has been confirmed by the Supreme Court in Special Leave to Appeal (Crl.) No.1785/2001. There are no reasons for me to differ from the view taken by the Kerala High Court and confirmed by the Supreme Court in Special Leave to Appeal (Crl.) No.1785/2001.
In the case on hand, even if the averments of complaint and evidence of complainant are accepted at their face value, dishonoured cheque was issued on 30.10.2001 to discharge the debt, which had become due on 20.05.1997. Therefore, I hold dishonoured cheque was issued to discharge time barred debt.