Bangalore District Court
Ramegowda vs Muthuraj. G on 27 February, 2024
KABC020126692021
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES, AT BENGALURU. (SCCH25)
-: PRESENT:-
SMT. PRAKRITI KALYANPUR, B.A(L),LL.B., LL.M.
XXIII Additional Small Causes Judge, Bengaluru.
DATED THIS THE 27TH DAY OF FEBRUARY 2024
MVC No.1913/2021
PETITIONER: Sri. Ramegowda
S/o. Late Cheluvegowda,
Aged about 55 years,
R/at Ray Kote, Hongahalli,
Krishna Sagar,
Srirangaptna Taluk,
Mandya District.
Since lost Memory Power and
cannot speak after the accident.
Reptd by his wife and net friend
Smt.Gowramma
W/o Ramegowda,
Aged about 52 years,
R/at the above address
and also at:
#434, LIG, 1st Cross,
Sharadadevinagar,
Mysore - 570 022.
(By Ramakrishnaiah K.
Advocate/s.)
V/S
SCCH - 25 2 MVC No. 1913/2021
RESPONDENTS: 1. Muthuraj G.
S/o K.Gangadharaiah,
Major,
Annamallenahalli Village,
Karadi Post, Tiptur Taluk,
Tumkur District.
(RC owner of Private Bus
bearing Reg.No.KA517937)
(By B.N.Nagaveni, Advocate.)
2. The New India
Assurance Co. Ltd.,
T.P.Hub,
#9/2, Mahalakshmi
Chambers,
M.G.Road, Bangalore01.
(Insurer of Private Bus
bearing Reg.No.KA517937)
Policy #670104312000100022577 valid
from 18.01.2021 to 17.01.2022,
Policy issued at Channapatna office
(By Sri. S.V.Sudhakar
Reddy, Advocate.)
......
JUDGMENT
The Petitioner has filed this petition under Sec.166 of the M.V. Act, seeking compensation of Rs.20,00,000/ for the injuries suffered by him in a road accident dated 23.01.2021.
SCCH - 25 3 MVC No. 1913/2021
2. The case of the Petitioner in brief is that:
On 23.01.2021 at about 7.45pm when he was standing at 'U' turn at Kenchanakuppe Gate, on NH275, BM Road, Bidadi Hobli, Ramanagara Taluk & District in order to cross Mysore Bangalore road, a Private Bus bearing Reg.No.KA51 7937 driven by its driver with high speed, in a rash and negligent manner came from Ramanagara side towards Bangalore side and dashed against the petitioner. Due to the impact the petitioner fell to the ground and sustained severe head and bodily injures. Immediately he was taken to Bidadi Govt. Hospital, wherein first aid was done and later shifted to NIMHANS, Bangalore. He was again shifted to Victoria Hospital, Bangalore and to JSS hospital Mysore. He has spent around Rs.2,00,000/ towards treatment, hospital charges, medicines, conveyance, nourishing food and other incidental expenses.
3. It is the further case of the Petitioner that, the petitioner is suffering from loss of memory, severe headache, SCCH - 25 4 MVC No. 1913/2021 giddiness etc., and he is unable to continue his work as an Agriculturist and Milk Vendor. Prior to the date of accident he was hale and healthy and earning more than Rs.20,000/ per month. The Bidadi police have registered a case in Cr.No.0027/2021 against the driver of the Private Bus. The 1 st Respondent being the RC owner and the 2nd respondent being the insurer of the Private Bus are jointly and severally liable to pay compensation to the petitioner. Hence, this petition.
4. In response to notice issued by this tribunal, the Respondents appeared through their respective counsels, but the respondent No.2 alone filed written statement.
5. The objections of the Respondent:
It has denied all the petition averments except accepting the issuance of policy. It contends that the Private Bus is not at all involved in the accident and the petitioner in collusion with the police has filed false case against the Private Bus. The petitioner was under the influence of alcohol when he SCCH - 25 5 MVC No. 1913/2021 was crossing the road and therefore, he contributed entirely to accident. He was crossing a road at a place without any Zebra crossing. It also contended that the driver of the Private bus did not have a valid and effective DL and the bus did not have FC and Permit as on the date of accident. The petition is bad for noncompliance of Sec.158(6) and 134(c) of MV Act. The Cheque issued in favour of the policy was dishonored for insufficient funds and the same was intimated to the respondent No.1 as well as RTO concerned. Hence, since the insurance policy was canceled as on the date of accident, the respondent No.2 is not liable to pay any compensation to the petitioner. Further it has denied the age, income, avocation of the petitioner. It has contended that the compensation claimed by the petitioner is highly excessive and exorbitant. Therefore, prayed for dismissal of the petition.
6. On the above rival contentions of the parties, this court has framed the following issues:
1. Whether the petitioner proves that, the accident occurred due to rash and SCCH - 25 6 MVC No. 1913/2021 negligence driving of driver of Private bus bearing Registration No.KA517937 and in the said accident petitioner sustained injuries?
2. Whether the petitioner is entitled for Compensation? If so, what is the quantum? From whom?
3. What Order or Award?
7. The Petitioner in order to prove his case, has got examined Dr. (Col) T.S.Vasan as PW.1 and has got marked 5 documents as per Exs.P.1 to P.5. Smt. Gowramma W/o Ramegowda got examined as PW.2 and got marked 9 documents as per Exs.P.6 to P.14. Mr. Kiran M got examined as Pw.3 and got marked 2 documents as per Exs.P.16 & 16. On the other side, the Respondent No.2 examined Sri.Ravi Kumar as RW.1 and got marked Exs.R.1 & R.2 and also got examined Bikram Singh Rana as RW.2 and got marked Exs.R.3 to R.9.
8. Heard the arguments of the learned counsels for both the parties.
SCCH - 25 7 MVC No. 1913/2021 The counsel for the Petitioner has filed written arguments and also filed the following decisions:
1. 2022 ACJ 1973 : IFFCO - TOKIO Gen. Ins. Co. Ltd., Vs. Shahanas and Ors.
2. 2022 ACJ 388 : United India Ins. Co. Ltd., Vs. Murugammal and Ors.
3. 2023 ACJ 2428 : ICICI Lombard Gen. Ins. Co. Ltd., Vs. Sekh Mariyam Bibi and Ors.
4. 2022 ACJ 1876 : United India Ins. Co. Ltd., Vs. Champabai and Ors.
5. 2023 ACJ 1234 : Manager National Ins. Co. Ltd., Vs. Amruta and Ors.
6. 2022 ACJ 2816 : Radhar Singh and Anr. Vs. Govind Saran Saini and Ors.
7. 2022 ACJ 37: Bajaj Allianz Gen. Ins. Co. Ltd., Vs. Hiteshkumar Manubhai Joshi and
8. 2022 ACJ 2114 : C. Subramani Vs. National Ins. Co.
Ltd., and Ors.
9. 2022 ACJ 1433 : Satyabhama Dave and Ors. Vs. Ratturam and Ors.
10. 2023 ACJ 490 : Manjunath Vs. Sunil and Anr.
11. MFA 7043/2014 : Srikanta M.R. Vs. Geetha and Anr.
12. 2021 (2) KCCR 1735: M/s. National Ins. Co. Ltd., Bangalore Vs. Mr. Narasimhamurthy M and Anr.
SCCH - 25 8 MVC No. 1913/2021 The counsel for the respondent No.2 has relied upon the following decisions:
1. MFA No.6592/2012 : TATA AIG Gen. Ins. Co. Ltd., Vs. G. Srinath and Anr.
2. MFA No.6268/2018 (MVD) : Smt. Ashalatha and Ors.
Vs. Suresh and Anr.
3. MFA No.30366/2012 (MV) : The Manager, Royal Sundarm Alliance Ins. Co. Ltd., Vs. Adamma and Ors.
4. MFA No.20495/2010 (MV) : Branch Manager, National Ins. Co. Ltd., Vs. K.M.Holi Basayya and Anr.
5. MFA No.4056/2010 (MV) : United India Ins. Co. Ltd., Vs. Gopalakrishna and Ors.
The counsel for the 2nd respondent has filed written arguments.
9. On hearing both sides and perusal of the evidence on record this court answers the above issues as follows: Issue No.1: In the affirmative, Issue No.2: In the affirmative, Issue No.3: As per the final order, for the following: SCCH - 25 9 MVC No. 1913/2021 REASONS
10. Issue No.1:
In order to prove that the accident occurred due to the actionable negligence on the part of the Driver of the Private bus bearing Reg.No.KA517937 the petitioner has got examined his wife as PW.2 and got marked Exs.P.6 to 12. PW.2 has reiterated the averments of the petition in her affidavit in lieu of her chief examination. During her cross examination nothing worthwhile is elicited to show the absence of negligence on the part of the private bus driver. In support of his case the petitioner has also got examined the FDA at Bidadi Govt. Hospital as PW.3 and got marked authorization letter and MLC Register extract as per Exs.P.15 & 16. During his crossexamination he has admitted that there is a mention of 'the Victim being under influence of alcohol' in Ex.P.16. The Respondent No.2 has taken a contention that the private bus was not at all involved in the accident. In order to prove the same, they got examined their legal officer as RW.2 and got marked Exs.R.3 to 9. However, SCCH - 25 10 MVC No. 1913/2021 during his cross examination also nothing worthwhile is elicited to show noninvolvement of the Private bus in the accident.
11. The accident was caused on 23.01.2021 at 7.30pm and FIR was registered as per Ex.P.6 on the same day by 9.30pm. Mahazar was conducted on the next day from 8.00 to 9.00am. As per the IMV report at Ex.P.9 there were no damages found on the bus. The petitioner has suffered injuries as per the wound certificate at Ex.P.10. The police have filed charge sheet as per Ex.P.12 against the driver of the private bus. The contention of the counsel for the Respondent No.2 is that in the case sheet of JSS Hospital, Mysore it is mentioned that the petitioner was hit by a KSRTC Bus. However, it is to be noted that the petitioner was taken to the JSS Hospital at the end. Before that he was in Victoria Hospital and even before that he had gone to NIMHANS and before that to the Government hospital, Bidadi and the MLC register extract produced from the Bidadi Govt. hospital at Ex.P.16 shows that he was hit by the Bus. However, there is no mention of any SCCH - 25 11 MVC No. 1913/2021 KSRTC bus hitting the petitioner anywhere else. Therefore, a stray entry made in a Case sheet of the fourth hospital cannot be considered to defeat the case of the petitioner. In addition, there is nothing on record to show that the petitioner being under the influence of alcohol contributed to the accident or that he was negligent in any way. Accordingly, on the basis of the documents before the court the Tribunal holds that the accident occurred due to the actionable negligence on the part of the driver of the Private Bus. Accordingly, issue No.1 is answered in the affirmative.
12. Issue No.2: In order to prove the injuries and disability suffered by the petitioner, the petitioner has produced the wound certificate as per Ex.P.10 which is also in consonance with the discharge summary produced by the petitioner at Ex.P.11. He has also got examined Doctor as Pw.1 through a Court Commissioner. He has stated that the petitioner remained in unconscious state when he was initially treated in NIMHANS SCCH - 25 12 MVC No. 1913/2021 and also when he was being treated in Victoria Hospital. The CT scan showed bilateral contusion. He was brought to JSS hospital comatosed state. He has given the details of the problems faced by the petitioner and the surgeries undergone by him. He has assessed the whole body disability of the petitioner at 50% on the basis of the physiological assessment report at Ex.P.2 & disability assessment report at Ex.P.3. During his crossexamination by the counsel for the respondent No.2 there is nothing to show that the disability assessed by him is not genuine. On perusal of Exs.P.1 to 5 it is mentioned that the patient was unable to speak and had difficulty following simple instructions and answering simple questions. On assessment, the patient's social age was found to be 9 years. The petitioner has relied on the decision of the Hon'ble High Court of Karnataka in 2023 ACJ 490 :
Manjunath Vs. Sunil and Anr. Wherein the court assessed functional disability at 100% considering that injured with permanent disability of 50% could not do any work due to damage to frontal and temporal lobes affecting his memory.
SCCH - 25 13 MVC No. 1913/2021 Accordingly, on the basis of the documents at Exs.P.1 to 5 which were marked through the Doctor, this Tribunal considers that the petitioner is unable to do any job and the Tribunal deems it fit to fix the disability of the petitioner at 100%.
Monthly income:
13. The Petitioner has deposed in his evidence that, he was doing Agriculture and Milk Vending and earning Rs.20,000/ per month. In this regard he has not produced any documents nor examined any witness. The accident occurred in the year 2021. Therefore, this Tribunal deems it fit to fix the notional income of Rs.15,000/ per month.
14. At the time of accident the Petitioner was aged about 56 years as could be made out from Ex.P.13/Notarized copy of Aadhar Card. He was hale and healthy before the accident. Keeping all the above things in mind, Petitioner is entitled to the following compensation: SCCH - 25 14 MVC No. 1913/2021
i) PAIN AND SUFFERING: After the accident, the Petitioner was treated at Govt. Hospital, Bidadi, after first aid treatment he was shifted to NIMHANS, Bangalore. Thereafter he was shifted to JSS Hospital, Mysore, wherein he was admitted as an inpatient from 25.01.2021 to 16.02.2021. In this regard, he has produced Ex.P.11 Discharge summary issued by JSS Hospital. Considering that the nature of injuries he has undergone is grievous, the Petitioner is awarded a sum of Rs.1,00,000/ under this head.
ii) MEDICAL EXPENSES:
The Petitioner has pleaded that he has spent a sum of Rs.2,00,000/ towards hospitalization, medical expenses, extra nourishment, conveyance and other miscellaneous expenses etc., In this regard, he has produced 31 medical bills as per Ex.P.14 for a sum of Rs.19,783/. There is no contrary evidence to these bills from the respondents.
SCCH - 25 15 MVC No. 1913/2021 Therefore, the petitioner is entitled to the said amount under this head.
iii) LOSS OF INCOME DURING LAID UP PERIOD: As mentioned above the petitioner has sustained grevious injury. The petitioner has taken treatment for almost 22 days at JSS Hospital, Mysore as can be made out from Ex.P.11 Discharge summary. Therefore, considering the nature of injuries and duration of treatment it can be said that the Petitioner may have required at least One month time for recovering from the injuries sustained by him. Hence, he is entitled only for a sum of Rs.15,000/ under this head.
iv) LOSS OF FUTURE INCOME: On perusal of Ex.P.13, as on the date of accident he was 56 years old. As per the dictum laid down in Sarala Verma's case the appropriate multiplier applicable for his age is 9.
Therefore, the Petitioner is entitled for a sum of
SCCH - 25 16 MVC No. 1913/2021
Rs.16,20,000/ (Rs.15,000/ x 12 x 9 x 100%=
Rs.16,20,000/) under this head.
(v) LOSS OF FUTURE AMENITIES AND
HAPPINESS:
The Petitioner was aged about 56 years at the time of accident. He has sustained grievous injuries and as per consideration of this Tribunal, he is suffering from 50% functional disability. The Petitioner has to suffer this disability throughout his life. Moreover he will always feel that he does not look normal. Because of this he will have to lose some of the amenities and comforts. Therefore, considering the age and nature of injuries that the Petitioner has suffered, a sum of Rs.20,000/ is awarded under this head.
(vi) ATTENDANT, CONVEYANCE, FOOD AND NOURISHMENT CHARGES:
After the accident, the Petitioner was treated in the above said hospitals, admitted for 22 days as an inpatient and discharged with advise. However, during this period he must SCCH - 25 17 MVC No. 1913/2021 have spent considerable amount on his food and nourishment, conveyance and attendant expenses. Therefore, the Petitioner is entitled for a sum of Rs.20,000/ under this head.
15. The Petitioner is entitled to compensation under the following heads:
1. Pain & suffering Rs.1,00,000/
2. Medical expenses Rs.19,783/
3. Loss of income during laid up Rs.15,000/ period
4. Loss of future income Rs.16,20,000/
5. Loss of future amenities and Rs.20,000/ happiness
6. Attendant, conveyance, food and Rs.20,000/ nourishment charges TOTAL Rs.17,94,783/ If it is rounded off it comes around Rs.17,95,000/ and same is awarded under different heads to the Petitioner.
LIABILITY
16. One of the contentions taken by the respondent No.2 is that the petitioner was under the influence of alcohol at the time of accident. No evidence has been brought about SCCH - 25 18 MVC No. 1913/2021 by the respondent No.2 to show that there was any kind of contribution to the accident due to the consumption of the alcohol by the petitioner. Therefore, their contention does not hold any water.
17. The respondent No.2 has taken the contention that the private bus did not have a valid permit at the time of accident and in order to prove the same they got examined RTO of Tumkur as RW.1 and got marked Exs.R.1 & 2. During his cross examination he has stated that as per the permit given to the offending vehicle, the permit had expired on 05.03.2020 and was transferred to another vehicle. During his cross examination he has denied any knowledge of the vehicle getting any permit from any other RTO. As against this contention the counsel for the petitioner has relied upon the following decisions:
1. 2023 ACJ 1234 : Manager National Ins. Co. Ltd., Vs. Amruta and Ors.
2. 2022 ACJ 2816 : Radhar Singh and Anr. Vs. Govind Saran Saini and Ors.
SCCH - 25 19 MVC No. 1913/2021
3. 2022 ACJ 37: Bajaj Allianz Gen. Ins. Co. Ltd., Vs. Hiteshkumar Manubhai Joshi.
4. 2022 ACJ 2114 : C. Subramani Vs. National Ins. Co. Ltd., and Ors.
5. 2022 ACJ 1433 : Satyabhama Dave and Ors. Vs. Ratturam and Ors.
6. 2021 (2) KCCR 1735: M/s. National Ins. Co. Ltd., Bangalore Vs. Mr. Narasimhamurthy M and Anr.
On perusal of all these decisions it is clear that in case of absence of valid permit, the insurance company can be directed pay and recover.
18. The next contention taken by the respondent No.2 is that the Cheque given for the insurance by the respondent No.1 had been dishonored and intimation is also given to the respondent No.1. In order to prove the same, they have produced Exs.R.4 to R.9 i.e., the copy of insurance policy, original Cheque, Bank endorsement, notice to insured with postal receipt, notice to RTO with postal receipt and new insurance policy copy. On perusal of these documents it is clear that the policy had to start from 18.01.2021 till SCCH - 25 20 MVC No. 1913/2021 17.01.2022. However, the Cheque was dishonored as on 04.02.2021 and the notice of the same was given to the respondent No.1 as per Ex.R.7 on 04.02.2021 and on the same day the notice was issued to the RTO also. Thereafter the respondent No.1 has got issued new policy on 05.02.2021. This shows that he was aware of cancellation of the insurance policy.
The counsel for the petitioner has relied upon the following citations:
1. 2022 ACJ 1973 : IFFCO - TOKIO Gen. Ins. Co. Ltd., Vs. Shahanas and Ors.
2. 2022 ACJ 388 : United India Ins. Co. Ltd., Vs. Murugammal and Ors.
3. 2023 ACJ 2428 : ICICI Lombard Gen. Ins. Co. Ltd., Vs. Sekh Mariyam Bibi and Ors.
4. 2022 ACJ 1876 : United India Ins. Co. Ltd., Vs. Champabai and Ors.
5. MFA 7043/2014 : Srikanta M.R. Vs. Geetha and Anr.
The counsel for the respondent No.2 has relied upon the following decisions:
SCCH - 25 21 MVC No. 1913/2021
1. MFA No.6592/2012 : TATA AIG Gen. Ins. Co. Ltd., Vs. G. Srinath and Anr.
2. MFA No.6268/2018 (MVD) : Smt. Ashalatha and Ors. Vs. Suresh and Anr.
3. MFA No.30366/2012 (MV) : The Manager, Royal Sundarm Alliance Ins. Co. Ltd., Vs. Adamma and Ors.
4. MFA No.20495/2010 (MV) : Branch Manager, National Ins. Co. Ltd., Vs. K.M.Holi Basayya and Anr.
5. MFA No.4056/2010 (MV) : United India Ins. Co. Ltd., Vs. Gopalakrishna and Ors.
On perusal of these decisions it is clear that the insurance company cannot be held liable to pay compensation in case of cancellation of the insurance policy due to dishonor of Cheque if the cancellation was duly informed to the insured.
19. The case on hand is very peculiar, because the Cheque was presented for encashment on 28.01.2021 whereas the accident occurred on 23.01.2021. Therefore, as on the date of accident, the respondent No.1 was not aware about the cancellation of the policy. Hence relying on the principles laid down by the Hon'ble Apex court in (i) Oriental Ins. Co. Ltd.
SCCH - 25 22 MVC No. 1913/2021 Vs. Inderjit Kaur and Ors. (1998) 1 SCC 371, (ii) United
India Ins. Co. Ltd. Vs. Laxmamma & Ors. (2012) 5 SCC 234, (iii) National Ins. Co. Ltd. Vs. Seema Malotra & Ors. (2001) 3 SCC 151 and (iv) National Ins. Co. Ltd., Vs. Balkar Ram and Ors. (2013) SCC online 592, this Tribunal holds that the respondent No.2 is liable to pay compensation because the policy has got canceled only after the accident. Accordingly the insurance company is directed to pay the compensation and later recover the same from the respondent No.1/insured. Though the Petitioner has claimed for a sum of Rs.20,00,000/ but he is entitled only for a sum of Rs.17,95,000/ with interest @ 6% per annum from the date of petition till its realization. Therefore, the petition needs to be allowed. Accordingly, Issue No.2 is held in the affirmative.
20. Issue No.3:
For the reasons and discussions made above and finding to the above issues, this court proceed to pass the following: SCCH - 25 23 MVC No. 1913/2021 ORDER The petition is allowed with cost.
The Petitioner is entitled for compensation of Rs.17,95,000/ (Rupees Seventeen Lakhs Ninety Five Thousand only) along with interest @ 6% p.a. from the date of petition till the date of depositing the amount.
The Respondent No.2/Insurer is directed to deposit the compensation amount with interest before this Tribunal within sixty days from the date of this award.
Respondent No.2 is entitled to recover the award amount from the Respondent No.1.
On deposit of compensation and interest, 50% is to be deposited in any N/S Bank for a period of 3 years in the name of the petitioner and the remaining amount shall be released in SCCH - 25 24 MVC No. 1913/2021 favour of the guardian of the Petitioner by way of epayment on proper identification and due acknowledgment as per rules.
Advocate fee is fixed at Rs.1,000/.
Draw decree accordingly.
(Typed to my dictation directly on the computer by the Stenographer, corrected and then pronounced by me in open court on this the 27th Day of February 2024).
(PRAKRITI KALYANPUR) XXIII ASCJ & ACMM, Bangalore.
ANNEXURE List of Witnesses examined for Petitioner:
PW.1 Dr. (Col) T.S.Vasan PW.2 Smt. Gowramma PW.3 Sri. Kiran M.
List of Documents marked for Petitioner:
Ex.P1 Inpatient case sheet
Ex.P2 Psychological assessment report
Ex.P3 Disability assessment report
SCCH - 25 25 MVC No. 1913/2021
Ex.P4 CT Bran (Plain)
Ex.P5 CT Scan films 2 in Nos.
Ex.P6 True copy of FIR
Ex.P7 True copy of FIS
Ex.P8 True copy of Spot and seizure mahazar
Ex.P9 True copy of MVA report
Ex.P10 True copy of wound certificate
Ex.P11 Discharge summary issued by JSS hospital
Ex.P12 True copy of charge sheet
Ex.P13 Notarized copies of Aadhar cards of
petitioners and Guardian
Ex.P14 31 Medical bills for Rs.19,783/
Ex.P15 Authorization letter
Ex.P16 True copy of MLC register extract
List of Witnesses examined for Respondent/s:
RW.1 Sri. Ravi Kumar RW.2 Sri. Bikram Singh Rana SCCH - 25 26 MVC No. 1913/2021
List of documents exhibited for Respondent:
Ex.R.1 Authorization letter Ex.R.2 True copies of endorsements on lease
Agreement and renewal of permit pertaining to vehicle No.KA517937 (Three Pages) Ex.R.3 Authorization letter Ex.R.4 Insurance policy copy Ex.R.5 Original Cheque Ex.R.6 Bank endorsement Ex.R.7 Notice to insured with postal receipt Ex.R.8 Notice to RTO with postal receipt Ex.R.9 New Insurance policy copy (PRAKRITI KALYANPUR) XXIII ASCJ & ACMM, Bengaluru.