Bangalore District Court
Girish vs The Oriental Ins.Co.Ltd on 2 July, 2015
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BANGALORE CITY.
SCCH-14
PRESENT: Basavaraj Chengti., B.Com.,LL.B.,(spl)
Member, MACT,
XVI ADDL. JUDGE,
Court of Small Causes, n
BANGALORE.
MVC No.5130/2013
Dated this the 2nd day of July 2015
Petitioner/s : Girish,
S/o K.Ramanna,
Aged about 20 years,
Residing at
C/o Siddaraju Building,
Siddanahosahalli,
Bangalore North.
Permanent Address:
Kaluvarahalli,
Hosur Post,
Sira Taluk,
Tumkur Dist.
V/s (By pleader Sri BRS)
Respondent/s 1. The Oriental Ins.Co.Ltd.
Regional Office,
Leo Shopping Complex,
M.G.Road,
Bangalore
2. G.Byregowada,
S/o B.S.Gange Byrappa,
No.3, Lakshmidevi Nilaya,
Bhuvaneshwarinagar,
Hesarghatta Road,
T.Dasarahalli,
Bangalore-560057.
(R1-By pleader Sri.MR
R2- By pleader Sri.CV)
SCCH-14 2 MVC NO.5130/2013
JUDGMENT
This petition is filed by the petitioner U/s 166 of Motor Vehicles Act claiming compensation of Rs.5,00,000/- for the injuries sustained by him in a road traffic accident.
2. Brief averments of the petition are as under:
The petitioner was aged 20 years, working as a Courier Delivery Boy and was getting monthly income of Rs.8,000/-. On 02.09.2013 at about 12.45 P.M., the petitioner was standing near Madanayakanahalli bus stop to cross the other side of the NH-4 Bangalore-Tumkur road to go to Siddanahosahalli, carefully and cautiously. At that time, Scooter bearing No.KA-02-L-7203 ridden by its rider in a rash and negligent manner with high speed, neglecting all the traffic rules and regulations came and dashed against the petitioner. Due to impact, the petitioner fell down and sustained grievous injuries on his right leg and other parts of the body. Immediately, he was shifted to Shiva Ganga Hospital for treatment and then, he was shifted to Dr.K.Narasimhaiah Hospital, Tumkur wherein he was admitted as an inpatient from 02.09.2013 to 08.09.2013. He underwent closed reduction with internal fixation. The petitioner was discharged with an advice to take follow up treatment and bed rest. He spent Rs.70,000/- towards treatment, medicine, conveyance and attendant charges.
Madanayakanahalli Police have registered Cr.No.533/2013 against the rider of the said Scooter. The respondents are the insurer and owner of the said vehicle and they are jointly and severally liable to pay compensation to the petitioner. Therefore, the petitioner has SCCH-14 3 MVC NO.5130/2013 filed this petition for a compensation of Rs.5,00,000/- with cost and interest.
3. In pursuance of notices, the respondents have appeared before Court through their respective counsel and filed written statement separately. The respondent no.1 has admitted that he has issued a "Long Term Act Only Policy" in favour of the respondent no.2 in respect of Scooter bearing No.KA-02-L-7203 and the policy was valid from 170.01.1996 to till cancellation of registration or till Fitness certificate is expired. He has denied the averments of the petition as false and contended that the registration certificate of the Scooter and its fitness was valid till 12.01.2010, that the accident has occurred on 02.09.2013, that after expiry of fitness certificate the policy was automatically cancelled and it was in valid on the date of accident. He has further contended that the rider of insured vehicle was not holding valid and effective driving licence on the date of accident, that the respondent no.2 has violated the terms and conditions of the policy, that the insured and police have not complied with their mandatory duties, that the vehicle was used without having Fitness certificate, that the accident has occurred when the petitioner suddenly started to cross the busy road unmindful and he himself had contributed to the accident, that the compensation claimed by the petitioner is excessive, exorbitant and same is without any basis of justification. Hence, he has sought for dismissal of the claim petition with exemplary cost.
The respondent no.2 has denied the averments of the petition as false and contended that the petitioner is not SCCH-14 4 MVC NO.5130/2013 maintainable either in law or on facts, that his scooter was insured with the respondent no.1 and the policy was valid as on the date of accident, that the rider of the vehicle was holding valid and effective driving licence on the date of accident, that the compensation claimed by the petitioner is excessive, exorbitant, unreasonable and speculative in nature, that if the court comes to conclusion in granting any compensating, then the respondent no.1 is liable to pay the same. Hence, he has sought for dismissal of the claim petition as against him.
4. On the basis above pleadings, the following issues were framed:
1. Whether the petitioner proves that he sustained grievious injuries in the nature of permanent disablement on 02.09.2013 at about 12.45 pm, Near Madanayakanahalli Bus Stop, NH-4 Express Highway, Dasanapura Hobli, Bangalore North Taluk, Bangalore, in an accident arising due to rash and negligent driving of the driver of Scooter bearing No.KA- 02-L-7203?
2. Whether the petitioner is entitled for compensation? If so, how much and from whom?
3. What Order or Award?
5. During the evidence, the petitioner has examined himself as PW.1 and examined a doctor as PW.2. He has got marked documents as Ex.P1 to P10. The respondent no.1 has examined ARTO, Rajajinagar and his Administration Officer as RW.1 and 2. He has got marked documents as Ex.R1 to 4.
6. Heard the arguments and perused the records.
SCCH-14 5 MVC NO.5130/20137. My findings on the above issues are as under:-
Issue No.1: In Affirmative.
Issue No.2 : In Affirmative, For Rs.2,60,000/-
from the respondent No.1.
Issue No.3 : As per final order :
for the following:
REASONS
8. ISSUE NO.1: In order to prove the manner of accident and its result, the petitioner has relied upon his own oral evidence and that of PW.2 and documentary evidence at Ex.P1 to 6. The respondents are the insurer and owner of Scooter bearing No. KA-02-L-7203. The respondent no.1 has examined RW.1 and 2 and got marked documents as Ex.R1 to 4 to prove his defence. The respondent no.2 has not adduced any evidence on his behalf. The evidence of RW.1 and 2 and documents as Ex.R1 to 4 are pertaining to the liability of the respondent no.1 under the policy. The said evidence is not helpful to decide the issue under consideration.
9. PW.1 Girish is the petitioner and he has reiterated averments of the petition and stated that on 02.09.2013 at about 12.45 p.m., near Madanayakanahalli Bus stop, he was standing to cross the road and at that time, Scooter bearing No.KA-02-L-7203 ridden by its rider in rash and negligent manner came and dashed against him, that he sustained fracture of both bones of right leg in the accident, that he underwent surgery with implants and he suffered permanent disability due to accidental injuries. In cross- examination, he has stated that he was standing on the divider with an intention to cross the road when the Scooter bearing SCCH-14 6 MVC NO.5130/2013 No.KA-02-L-7203 came and dashed him, that no other person was injured in the accident, that his fracture is united. He has denied the suggestions that he was standing on the road when the accident has occurred, that due to his own negligence, he sustained injury in the accident, that the accident has occurred due to his fault. Only on the basis of said suggestions and denials, the evidence of PW.1 cannot be disbelieved.
10. PW.2 Dr.Ramesh has stated about the injury caused to the petitioner. His evidence is corroboratory to the oral evidence of PW.1 and contents of wound certificate, discharge summary at Ex.P5 and 6. PW.2 has produced OPD card and X-ray at Ex.P9 and 10 which support the version of PW.1 and 2. There is nothing on record to disbelieve the evidence of PW.1 and 2 and contents of medical records at Ex.P5, 6, 9 and 10 as to the injury caused to the petitioner. The said evidence clear disclose that the petitioner sustained fracture of both bones of right leg and he suffered permanent disability.
11. The respondents have not examined the rider of Scooter bearing No.KA-02-L-7203 to rebut the evidence of PW.1 regarding negligence. They have also failed to examine any of the eye witnesses to disprove the case of the petitioner. On the other hand, the petitioner has got marked copies of police records namely FIR, panchanama, IMV report and chargesheet which reveal that Madanayakanahalli police have registered Cr.No.533/13 against the rider of Scooter bearing No.KA-02- L-7203 for the offences punishable U/Sec.279 and 337 of IPC on the basis of information given by one Natraj on 02.09.2013 at SCCH-14 7 MVC NO.5130/2013 03.30 P.M., There is no delay in lodging FIR. The police have drawn Mahazar, detained Scooter bearing No.KA-02-L-7203 and subjected it to IMV inspection. The report of IMV authority reveals that there were damages on the scooter. Its brake system was in order. It is opined by IMV authority that the accident was not due to any mechanical defects of the vehicle. The police have filed chargesheet against the rider of Scooter bearing No.KA-02-L-7203 for causing grievous injury to the petitioner by riding his vehicle in rash and negligent manner. There is nothing on record to believe that the chargesheet is defective or collusive. The respondents have not established the negligence of the petitioner by producing evidence. Only on the basis of denials extracted during the cross of PW.1, it cannot be held that the petitioner was solely negligence or has contributed to the accident. Therefore, I am of the opinion that oral evidence of PW.1 and 2 and contents of Ex.P1 to 6, 9 and 10 substantiate the averments of the petition as to manner of accident and its result. The respondents have failed to prove their defence in that regard. Hence, I answer the issue in affirmative.
12. ISSUE NO.2: PW.1 Girish has deposed about the injuries caused to him in the accident, about the treatment taken by him, about amounts spent for such treatment, about his difficulties and result of such injury. He has stated that he suffered permanent disability due to accidental injury. PW.2 Dr. Ramesh has supported the version of PW.1. He has stated that the petitioner is suffering from permanent disability of 24% to right lower limb which is 12% disability to whole body, that the petitioner has to undergo one more surgery for removal of implants SCCH-14 8 MVC NO.5130/2013 which may cost Rs.10,000/-. OPD card and x-ray at Ex.P9 and 10 corroborate the evidence of PW.2. Except bare denials, nothing is elicited from PW.1 and 2 regarding injury, difficulties and disability. However, it is admitted that fracture of the petitioner is united. He has undergo surgery for removal of implants. Therefore, I am of the opinion that if the disability of whole body is considered as 1/3rd of disability of right lower limb, it will meet the ends of justice. The disability caused to right lower limb of the petitioner is to the extent of 24%. Then, whole disability will be 8%.
13. Wound certificate and discharge summary at Ex.P5 and 6 reveal that the petitioner has suffered fracture of both bones of right leg and he underwent surgery with implants in Dr.K.Narasimhaiah Hospital, Tumkur, that he was in the hospital from 02.09.2013 to 08.09.2013. He might have taken follow up treatment for a period of 3 months. He has produced advance receipt and medical bills which are marked as Ex.P7 and 8. Total amount of medical bills is Rs.42,593/-. Though, prescriptions are not produced, there is nothing on record to believe that the bills at Ex.P8 are created bills. The petitioner might have incurred expenses towards nourishment, conveyance and attendant charges. However, there is no corroboration to the evidence of PW.1 as to incurring Auto charges of Rs.200/- per trip and as to incurring total expenses of Rs.70,000/-. Therefore, I award a compensation of Rs.50,000/- towards pain and sufferings, Rs.43,000/- towards medical expenses, Rs.10,000/- towards nourishment, conveyance and attendant charges. The petitioner might have lost his income during the period of treatment and bed SCCH-14 9 MVC NO.5130/2013 rest. He is suffering from permanent disability to the extent of 8% to the whole body. The disability is physical as well as functional. There is no corroboration to the evidence of PW.1 regarding his age, occupation and income. In police records his age is shown as 21 years. In wound certificate, his age is mentioned as 22 years. I am of the opinion that if his age is considered as 22 years, it will meet the ends of justice. Appropriate multiplier is 18.
14. The petitioner has stated that he was working as a courier delivery boy. PW.1 has deposed about the same. The chargesheet discloses that the petitioner was a factory worker. There is no evidence regarding income of the petitioner apart from oral evidence of PW.1. In the absence of specific evidence, I am of the opinion that the petitioner was a courier delivery boy and was getting a salary of Rs.6,000/- p.m., The injury caused to his right leg will definitely affect his occupation resulting in loss of earning to the extent of disability. Therefore, I hold that the petitioner has suffered loss of earning capacity of 8%. His loss of earning during the period of treatment and bed rest comes to Rs.18,000/-. His loss of future income would be Rs.6,000X12X18X8%=Rs.1,03,680/- which can be rounded to Rs.1,04,000/-.
15. The petitioner is suffering from several difficulties. PW.1 and 2 have deposed about the same. Those difficulties will persist in future. The petitioner has to undergo one more surgery for removal of implants. PW.2 has deposed that cost of future surgery is Rs.10,000/-. Therefore, I award a compensation of Rs.25,000/- towards loss of amenities and Rs.10,000/- towards SCCH-14 10 MVC NO.5130/2013 future medical expenses. Thus, the petitioner is entitled for just and reasonable compensation as under;
1. Pain and suffering Rs. 50,000/-
2 Medical expenses Rs. 43,000/-
3 Nourishment, conveyance and Rs. 10,000/-
attendant charges 4 Loss of income during laid up Rs. 18,000/-
period 5 Loss of future income Rs.1,04,000/-
(Rs.6,000X12X18X8%) 6 Loss of amenities Rs. 25,000/-
7 Future medical expenses Rs. 10,000/-
Total Rs.2,60,000/-
The petitioner is further entitled for interest @ 9% p.a., from the date of petition till the date of payment.
Liability
16. The petitioner has proved that he sustained fracture injury in the accident which resulted in permanent disability. He suffered such injury in the accident arising due to rash and negligent riding of rider of Scooter bearing No.KA-02-L-7203. The respondents are the insurer and owner of said Scooter. Hence, they are jointly and severally liable to pay compensation to the petitioner as calculated above. The respondent no.1 has denied his liability to indemnify the respondent No.2 and to compensate the petitioner on the ground that the policy issued in favour the respondent No.2 was a "long term act only policy", that it was valid till expiry of fitness certificate or till cancellation of registration certificate, that the registration certificate/fitness certificate of the said vehicle was valid till 12.01.2010 and therefore, the policy is deemed to have been cancelled before the accident and he is not SCCH-14 11 MVC NO.5130/2013 liable to pay any compensation to the petitioner. The respondent no.2 has contended that his policy was valid on the date of accident and hence, the respondent no.1 is liable to indemnify him.
17. The respondent no.1 has examined RW.1 and 2 and got marked Ex.R1 to 4 to prove his defence. The respondent no.2 has not adduced any evidence on his behalf.
18. RW.1 Sudheendra is the ARTO, Rajajinagar, Bangalore and he has produced 'B' register extract pertaining to Scooter bearing No.KA-02-L-7203 and deposed that fitness of the said vehicle was valid till 12.01.2010, that fitness certificate was not renewed thereafter. He has admitted in cross-examination that the fitness certificate can be renewed in some other RTO by producing proof regarding change of address, but in this case, there is no evidence to believe that the respondent no.2 has renewed the fitness of his scooter after 12.01.2010. Therefore, I am of the opinion that evidence of RW.1 that the fitness of said scooter was expired on 12.01.2010 is believable.
19. RW.2 Anushree is the Administrative Officer of respondent no.1 and she has deposed as per the averments of written statement of his employer. She has stated that the rider of insured vehicle was not holding a valid and effective driving license, that her company has issued long term act only policy in favour of the respondent No.2 which was valid till cancellation of registration or till expiry of fitness certificate, that the fitness of the insured vehicle was valid till 12.01.2010 and the policy was automatically cancelled on 12.01.2010, that the accident has SCCH-14 12 MVC NO.5130/2013 occurred on 12.01.2010 and therefore, the petition as against the respondent No.1 is liable to be dismissed. Except bare denials, nothing is elicited from her, but there is no corroboration to her evidence regarding driving license of the rider of insured vehicle.
20. Ex.R1 is B extract of Scooter bearing No.KA-02-L-7203 and it reveals that Fitness of the said vehicle was valid till 12.01.2010. RW-1 has deposed that the said vehicle is not renewed thereafter. Ex.R2 is the copy of application filed by the officer of the respondent no.1 before concerned RTO for details of the said scooter. Ex.R3 is DL extract of Arassen Pillay Samoo. The said extract is not pertaining to the rider of scooter. Therefore, same is not helpful to the respondent no.1. ExR4 is copy of policy issued by the respondent no.1 in favour the respondent no.2 in respect of Scooter bearing No.KA-02-L-7203 and it reveals that the policy was valid till cancellation of registration of the vehicle. These documents is contradictory to the evidence of RW-2 in respect of the fact that the policy was valid till expiry of fitness certificate. In this case, the scooter involved in the accident was not having a valid fitness certificate on the date of accident, but there is no evidence to believe that the registration certificate of the said vehicle was cancelled. The policy issued by the respondent No.1 is valid till cancellation of registration and not till expiry of fitness certificate. Evidence of RW-1 and 2 and contents of Ex.R1 to 4 are not sufficient to hold that the registration certificate of the scooter bearing No.KA-02-L-7203 was ever cancelled. Therefore, I hold that the registration certificate of the said vehicle was in force on the date of accident. It is evident that the said vehicle was not having SCCH-14 13 MVC NO.5130/2013 fitness certificate on the date of accident, but it is not ground as per Ex.R4 to cancel the policy. In view of ruling of our Hon'ble High Court in MFA No.6621/2006 expiry of fitness of the vehicle is not a ground for the insurance company to deny the payment of compensation. Therefore, I am of the opinion that the respondent No.1 is not absolved from indemnifying the respondent No.2 and from paying compensation to the petitioner. The respondent No.1 is liable to deposit the amount as calculated above. Hence, I answer the Issue as above.
21. ISSUE NO.3: In view of above discussion and findings, I proceed to pass the following:
ORDER The petition filed by the petitioner U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioner is entitled for a compensation of Rs.2,60,000/- with interest @ 9% per annum from the date of petition till the date of payment. Future medical expenses do not carry any interest.
The respondents are jointly and severally liable to pay to the petitioner a compensation of Rs. 2,60,000/- with interest. In view of police, the respondent no.1 is directed to deposit the amount before court within one month from the date of order.
After deposit, Rs.1,00,000/- shall be deposited in the name of the petitioner in any nationalized or scheduled bank for a period of 3 years. Balance SCCH-14 14 MVC NO.5130/2013 amount with interest shall be released in favour of the petitioner through account payee cheque with proper identification.
Advocate's fee is fixed at Rs.5,000/-. Draw award accordingly.
(Dictated to the Stenographer, directly on computer and then corrected by me and pronounced in the open court, on this the 2nd day of JULY 2015.) (Basavaraj Chengti) XVI ADDL.JUDGE, Court of Small Causes & MACT, Bangalore.SCCH-14 15 MVC NO.5130/2013
ANNEXURE WITNESSES EXAMINED AND DOCUMENTS MARKED FOR PETITIONERS AND RESPONDENTS:
PW.1 Girish
PW.2 Dr.B.Ramesh
Respondent' s
RW.1 Sudheendra
RW.2 Anushree Sarkar
Ex.P1 Copy of FIR with complaint
E.xP2 Copy of Panchanama
Ex.P3 Copy of IMV report
Ex.P4 Copy of Charge Sheet
Ex.P5 Copy of Wound Certificate
Ex.P6 Discharge Summary
Ex.P7 Advance Receipt
Ex.P8 Medical Bills (26 in nos amounting to Rs.42,723/-)
Ex.P9 OPD card
E.xP10 X-ray film (10 in nos)
Respondent's
Ex.R1 B Register Extract
Ex.R2 Copy of letter to RTO
Ex.R3 DL extract
Ex.R4 Copy of Policy
XVI ADDL.JUDGE,
Court of Small Causes & MACT,
Bangalore.
.
SCCH-14 16 MVC NO.5130/2013
Dt.02.07.2015
P-BRS
R1-MR
R2-CV
For Judgment
Order pronounced in open court
vide separate judgment.
ORDER
The petition filed by the petitioner U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioner is entitled for a compensation of Rs.2,60,000/- with interest @ 9% per annum from the date of petition till the date of payment. Future medical expenses do not carry any interest.
The respondents are jointly and severally liable to pay to the petitioner a compensation of Rs. 2,60,000/- with interest. In view of police, the respondent no.1 is directed to deposit the amount before court within one month from the date of order.
After deposit, Rs.1,00,000/- shall be deposited in the name of the petitioner in any nationalized or scheduled bank for a period of 3 years. Balance amount with interest shall be released in favour of the petitioner through account payee cheque with proper identification.
Advocate's fee is fixed at Rs.5,000/-. Draw award accordingly.
XVI ADDL.JUDGE, Court of Small Causes & MACT., Bangalore.SCCH-14 17 MVC NO.5130/2013
AWARD SCCH NO.14 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA : BANGALORE CITY MVC No.5130/2013 Petitioner/s : Girish, S/o K.Ramanna, Aged about 20 years, Residing at C/o Siddaraju Building, Siddanahosahalli, Bangalore North.
Permanent Address:
Kaluvarahalli, Hosur Post, Sira Taluk, Tumkur Dist.
V/s (By pleader Sri BRS) Respondent/s 1. The Oriental Ins.Co.Ltd.
Regional Office, Leo Shopping Complex, M.G.Road, Bangalore
2. G.Byregowada, S/o B.S.Gange Byrappa, No.3, Lakshmidevi Nilaya, Bhuvaneshwarinagar, Hesarghatta Road, T.Dasarahalli, Bangalore-560057.
(R1-By pleader Sri.MR R2- By pleader Sri.CV) SCCH-14 18 MVC NO.5130/2013 WHEREAS, this petition filed on by the petitioner/s above named U/Sec.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
Sri/Smt.Basavaraj Chengti, XVI Addl.Judge, Court of Small Causes, Bangalore, in the presence of Sri/Smt. Advocate for petitioner/s and of Sri/Smt. Advocate for respondent.
ORDER The petition filed by the petitioner U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioner is entitled for a compensation of Rs.2,60,000/- with interest @ 9% per annum from the date of petition till the date of payment. Future medical expenses do not carry any interest.
The respondents are jointly and severally liable to pay to the petitioner a compensation of Rs. 2,60,000/- with interest. In view of police, the respondent no.1 is directed to deposit the amount before court within one month from the date of order.
After deposit, Rs.1,00,000/- shall be deposited in the name of the petitioner in any nationalized or scheduled bank for a period of 3 years. Balance SCCH-14 19 MVC NO.5130/2013 amount with interest shall be released in favour of the petitioner through account payee cheque with proper identification.
Advocate's fee is fixed at Rs.5,000/-.
Given under my hand and seal of the Court this day of 2015.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA: Bangalore.
By the __________________________________ Petitioner/s Respondent No.1 No.2 __________________________________ Court fee paid on petition 10-00 Court fee paid on Powers 01-00 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-14 20 MVC NO.5130/2013