Bangalore District Court
Basavaraju vs Go Digit General Insurance Limited on 25 April, 2024
KABC020045682023
BEFORE THE COURT OF VIII ADDITIONAL SMALL
CAUSES JUDGE AND THE MOTOR ACCIDENT CLAIMS
TRIBUNAL (SCCH5) AT BENGALURU
DATED THIS THE 25th DAY OF APRIL, 2024
PRESENT: SRI. MALAKARI RAMAPPA WADEYAR
B.A., LLB.,(Spl.)
VIII ADDL. SCJ & ACMM,
MEMBER - MACT,
BENGALURU.
M.V.C No.869/2023
PETITIONER : Sri Basavaraju
S/o Siddegowda,
Aged about 53 years,
R/at No.359, 5th cross,
8th main, Mico layout,
BTM II stage, Bengaluru 560076.
(By Sri.Girimallaiah, Adv.,)
V/s
RESPONDENTS : 1. Go Digit Gen. Ins. Co. Ltd.,
Pioneer atlantis, No.9495,
2 MVC No.869/2023
SCCH 5
4th B cross, 5th block, Koramangala,
Bengaluru 560095.
(Insurer of Suzuki Access Scooter
bearing Regn No. KA05LL1900)
(By Sri.S Maheshwara, Adv.,)
2. Sri Mohammed Ifraz
S/o Sanavulla,
No.16/17, 4th cross,
Chinnaiahnapalya, Wilson garden,
Bengaluru 560027.
(RC owner of Suzuki Access Scooter
bearing Regn No. KA05LL1900)
(Exparte)
****
::JUDGMENT::
This petition is filed by the Petitioner against Respondent No.1 & 2 under Sec.166 of M.V.Act 1989 for the relief of compensation.3 MVC No.869/2023
SCCH 5
2. The brief facts of the case is as under; That on 12012023 at about 9.30 a.m. the petitioner was proceeding on his Bicycle near junction of Sourth End circle, Jayanagar 3rd block, at that time the rider of the Suzuki Access Scooter bearing Regn No. KA05LL1900 riden the same at high speed, in a rash and negligent manner and dashed against the petitioner's bicycle and caused the accident, due to the impact, petitioner thrown on the road and sustained severe injuries. Immediately after the accident, he was taken to Bengaluru hospital, after taking the initial treatment he was shifted to Pragathi Multi Speciality hospital, wherein he took treatment as an inpatient and undergone surgeries. Out of this accident Jayanagara traffic PS has registered a case against the rider of the Suzuki Access Scooter bearing Regn No.KA05LL 4 MVC No.869/2023 SCCH 5 1900 at Cr No.9/2023 for the offences punishable U/Sec.279 and 338 of IPC.
R1 is the insurer and R2 is owner of the said Suzuki Access Scooter are jointly and severally liable to pay compensation. Hence, prays to allow the petition and grant compensation of Rs.20,00,000/ with interest at the rate of 12% p.a.
3. On service of notice, 2nd respondent has not appeared before the court and hence placed as Exparte.
4. The 1st respondent has appeared before the court and filed written statement by admitting the issuance of policy to the offending Suzuki Access Scooter bearing Regn No.KA05LL1900. There is no compliance of Sec.134(c) and 158(6) of M.V.Act. Further this respondent has denied the cause and manner of accident. The accident took placed on 5 MVC No.869/2023 SCCH 5 12012023 and complaint lodged on 13012023 after delay of 1 day, but no valid reason is assigned for the said delay. It is further submitted that, the rider of the offending vehicle was not having valid and effective DL at the time of accident but he was possessing only LL. Further has denied the age, occupation, income of the petitioner and also the injuries sustained by him. On other grounds prays for dismissal of the petition against this respondent.
5. On going through the rival pleadings of the parties, my learned predecessor has framed the following:
::ISSUES::
1. Whether Petitioner proves that, on 12012023 at about 9.30 a.m while he was riding his Bicycle near junction of South End circle, Jayanagar 3rd block, at that time the rider of the Suzuki Access Scooter bearing Regn No. KA05LL 1900 ridden the same at high speed, in a 6 MVC No.869/2023 SCCH 5 rash and negligent manner and dashed against the petitioner's vehicle, as a result of which petitioner sustained severe injury, as mentioned in claim petition?
2. Whether the Petitioner is entitled for compensation as prayed in the petition?
If so, from which respondent?
3. What order or award?
6. In order to prove his case, examined himself as PW.1, Dr Gururaju at Pragathi multi speciality hospital as PW.2 and Doctor of SOADS as PW.3 and got marked the documents at Ex.P1 to P17 and closed their evidence.
7. On the other hand, ASI of Jayanagara traffic PS as RW.1, FDA of Electronic city RTO as RW.2 and legal manager of 1st respondent insurance company is examined as RW.3 and got marked the documents at Ex.R1 to R7. 7 MVC No.869/2023
SCCH 5
8. Heard the arguments and perused the evidence available on record, then my findings on the above issues are as follows:
Issue No.1 : In the Affirmative
Issue No.2 : Partly in the Affirmative
Issue No.3 : As per final order for the
following:
::REASONS::
9. Issue No.1: In order to prove his case, petitioner himself examined as PW.1, in his chiefexamination petitioner has reiterated the facts narrated in his petition. In this regard copy of FIR is marked as Ex.P.1, copy of complaint is marked as Ex.P.2, copy of statement of petitioner is marked as Ex.P.3, copy of spot mahazar with sketch is marked as Ex.P4, copy of IMV Report is marked as Ex.P.5, copy of wound certificate is marked as Ex.P.6, copy of 8 MVC No.869/2023 SCCH 5 charge sheet is marked as Ex.P.7, discharge summary is marked as Ex.P8, N/c of aadhar card is marked as Ex.P9, medical bills marked at Ex.P10, xray is marked as Ex.P11 and OPD card is marked at Ex.P12.
10. There is no cross examination by the counsel for Respondent No.2. Counsel for respondent No.1 has cross examined the PW.1, there is no questions disputing the place, date and time of the accident, only dispute is that the rider of the motor cycle having LL, but such suggestion is denied by PW.1. Further suggestion is that said motor cycle has not caused the accident such suggestion is also denied by the petitioner.
11. On the other hand, ASI of Jayanagar traffic PS is examined as RW.1 and got marked the notice U/Sec.133 and reply as per Ex.R1 to R3 wherein he has deposed that at the time of acciden rider of the motor cycle by name Mohammed 9 MVC No.869/2023 SCCH 5 Ifraz had only LL, so that after investigation he has filed charge sheet against him U.Sec.3(1) R/w 181 of IPC along with 279 & 338 of IPC. In crossexamination by counsel for petitioner also he has reiterated the said facts.
12. FDA of Electronic city RTO is examined as RW.2 and marked the authorization letter as Ex.R4, learner's license of the rider of offending vehicle is marked as Ex.R5, which was in force at the time of the accident, copy of the DL is marked at Ex.R6 which is obtained after the accident. In crossexamination by counsel for petitioner has also reiterated the said facts.
13. The legal manager of 1 st respondent insurance company is examined as RW.3 and got marked the documents copy of the insurance policy issued infavour of the offending vehicle along with terms and conditions marked at Ex.R7, wherein he has deposed that policy was in 10 MVC No.869/2023 SCCH 5 force at the time of accident but rider had no effective DL at the time of the accident. Further in crossexamination denied that there was effective DL at the time of the accident.
14. On perusal of the papers available on record it reveals that, based on the complaint given by one Ramesh B as per Ex.P2, Jayanagara traffic PS has registered the Cr No.09/2023 for the offences punishable U/Sec.279 and 337 of IPC. Ex.P4 is the spot mahazar with sketch, on perusal of the same it reveals that, very accident is occurred due to negligence of the rider of the offending scooter by name Mohammed Irfaz. The police after thorough investigation has filed charge sheet against the rider of the Suzuki Access Scooter bearing Regn No.KA05LL1900 for the offences punishable U/Sec. 279 and 338 of IPC and Sec.3(1) R/w 181 of IPC stating that the rider of the said vehicle ridden the same in a rash and negligent manner and dashed against the 11 MVC No.869/2023 SCCH 5 petitioner who was peddling his cycle and caused the accident without effective DL.
15. Further on perusal of the IMV report marked at Ex.P.5 it is noticed that, accident was not due to any mechanical defect of the vehicle and the offending scooter was not damaged in the said accident. On perusal of wound certificate marked at Ex.P.6 it is noticed that, petitioner has sustained fracture of medial tibial condyle of the left knee and multiple contusions of the left shoulder and left knee and the doctor opined that the injuries are simple and grievous in nature.
16. Considering all these aspects this tribunal comes to the conclusion that, very accident is occurred due to negligency of rider of the Suzuki Access Scooter bearing Regn No.KA05LL1900 without effective DL. In this regard the counsel for petitioner has relied upon the citation reported 12 MVC No.869/2023 SCCH 5 in 2020 ACJ 1 in between Senior Devisional Manager, National isnurance company Ltd Vs. Jyothiba Appaji Shigate and others. Wherein Hon'ble High Court of Karnataka observed as follows;
"Motor Vehicles Act, 1988, Sec.149 (2) (a) (ii) and Central Motor Vehicles Rules 1989, rules 3 (1) and 24 (3) (v) - Motor insurance - Driving licence - Learner's licence Liability of insurance company - pillion rider on motor cycle sustained fatal injuries due to negligence of the motor cyclist
- Insurance company disputes its liability on the ground that motor cyclist was possessing a learner's license and according to rule 3 (1) motor cyclist was supposed to drive with an instructor - husband of the deceased pillion rider deposed that deceased was possessing licence to drive motor cycle - no pleading or defence by insurance company that deceased was not holding a driving licence and that she travelled only as a pillion rider Rule 24 (3) (v) exempts a motor cyclist from the requirement of instructor to accompany - Whether the tribunal was justified in holding that learner's licence held by the motor cyclist was a valid licence and fastening liability on insurance company - Held:
yes, motor cyclist need not be accompanied by an instructor.'' On perusal of the facts and circumstances of the above cited citation it is noticed that, pillion rider of the motor cycle was sustained injuries, then succumbed to the injuries.13 MVC No.869/2023
SCCH 5 Rider had only Learner's license, her husband filed petition for compensation, respondents were not contested the petition and deposed their evidence. Under such circumstances Hon'ble High Court of Karnataka observed that, when petition is not contested by the respondents alleging that pillion rider/deceased had no DL at the time of the accident, under such circumstances it is just and necessary to hold that rider of the motor cycle has ridden the said motor cycle under the guidance of the pillion rider who is having the effective DL, but in the case on hand injured is 3rd party, there is no pillion rider along with the rider of the offending motor cycle. Under such circumstances this tribunal is of the opinion that the citation is not helpful to the case of the petitioner. Considering all these aspects this tribunal comes to the conclusion that the rider of the offending motor cycle has ridden the motor cycle without 14 MVC No.869/2023 SCCH 5 effective DL and caused the accident with his negligence.
Hence I have answered above Issue No.1 in the affirmative.
17. Issue No.2: As per the evidence of the petitioner, he had sustained fracture of medial tibial condyle of the left knee and multiple contusions of the left shoulder and left knee for which he had underwent the operations for Mippo proximal tibial dual plating on 13012023. In this regard he has furnished copy of wound certificate marked as Ex.P.6, discharge summary marked as Ex.P.8 issued by Pragathi multi speciality hospital wherein petitioner has taken treatment as an inpatient from 12012023 to 16012023.
18. In support of his case, petitioner has also examined the duty doctor of Pragathi multi speciality hospital by name Dr Gururaju as PW.2 and he has produced 15 MVC No.869/2023 SCCH 5 case sheet and xray marked at Ex.P14 & 15 and he has been cross examined by the counsel for respondent No.2 , wherein he admitted that he has not treated the petitioner so that he cannot depose anything aobut the petitioner, only they were claiming for case sheet and xray hence he is producing the same.
19. Further Dr. Nagaraj B N, orthopaedic surgeon at SOAD hospital is examined as PW3 and furnished clinical notes and xray marked as Ex.P.16 & 17 and he has assessed the physical disability of left lower limb as 45% and whole body disability at 15%. PW.3 has been cross examined by the counsel for respondent No.2 wherein he has deposed that, he has not treated the doctor but only assessed the disability. In crossexamination deposed that, he has not treated the petitioner but has assessed disability. Further deposed that there was fracture of tibia and which is united, 16 MVC No.869/2023 SCCH 5 copy of discharge summary marked at Ex.P8 speaks that petitioner was inpatient at Pragathi Multi speciality hospital for 4 days, surgery is conducted on tibia. As per say of the petitioner he is 53 years old and running fruit vending business on streets. No proof is furnished. Hence by considering the same functional disability is assessed at the rate of 10% for the purpose of calculation of loss of future income.
20. As per the case of the petitioner, he was aged about 53 years, for proof of his age, he has produced copy of aadhar card marked as Ex.P.9, on perusal of the same, the year of birth of the petitioner is shown as 1969 and the alleged accident is occurred in the year 2023, accordingly relying on Ex.P.9 his age is considered about 54 years as on the date of accident, hence multiplier 11 is applicable as per 17 MVC No.869/2023 SCCH 5 decision reported in 2009 ACJ 1298 in between Sarla Varma and Others V/s. Delhi Transport Corporation and others.
21. As per his case, he was fruit vendor on street and thereby earning Rs.25,000/ p.m., to prove the said fact, petitioner has not produced any documentary evidence. Hence considering the same, this court relied upon the Karnataka Minimum Wages for the year 202223. In the case on hand, petitioner is doing fruit vending on street so that, he comes under the category of formerly groupIII - now semi skilled worker category. Very accident is occurred on 1201 2023, accordingly as on the date of accident including dearness allowances for semi skilled workers minimum wages for a month will come to Rs.14,980/, so that, said fact is taken into consideration for the purpose of calculation of loss income during laid up period and also for the purpose of calculation of loss of future income. 18 MVC No.869/2023
SCCH 5 Therefore, the loss of future income works out as under; 14,980/ x 12 x 11 x 10% = Rs.1,97,736/.
22. Keeping in mind injuries caused to the petitioner, treatment taken, expenses incurred and also the pain suffered, this tribunal comes to the conclusion that, it is just and necessary to allot compensation under other heads, accordingly for pain and sufferings compensation of Rs.15,000/ is awarded, for conveyance, nourishment and attendant charges Rs.15,000/ is awarded, for loss of amenities of life Rs.15,000/ is awarded and Rs.14,980/ is awarded under the head of loss of income during the laid down period. Further petitioner is also entitled for compensation for medical expenses incurred by him, for which, he has produced medical bills marked as Ex.P.10 for an amount of Rs.78,334/. Further PW.3 in his affidavit has 19 MVC No.869/2023 SCCH 5 stated that petitioner has required one more surgery for removal of implants which may cost around Rs.60,000/, but in order to prove the same he has not produced any estimation report. Hence an amount of Rs.20,000/ is awarded under the head of future medical expenses.
23. Accordingly, the Petitioner is entitled for compensation as detailed below: Sl.No. Head of Compensation Amount in Rs.
1. Loss of future income 1,97,73600
2. Pain and sufferings 15,00000
3. Conveyance, nourishment and 15,00000 attendant charges
4. Medical Expenses 78,33400
5. Loss of amenities in life 15,00000
6. Income during laid down period 14,980 00
6. Future medical expenses 20,000-00 Total 3,56,05000
24. Accordingly I hold that, the Petitioner is entitled for total compensation of Rs.3,56,050/ with interest at the 20 MVC No.869/2023 SCCH 5 rate of 6% p.a. from the date of petition till its realization of entire amount.
25. In the case on hand, respondent No.1 being the insurer has issued insurance policy as per Ex.R7 which is valid for the period from 27052022 to 26052027 the alleged accident was occurred on 12012023 it reveals that, as on the date of accident, insurance policy was in force. Further the rider of the offending vehicle had no valid and effective driving license as on date of the accident. In this regard counsel for petitioner has relied upon the citation of Hon'ble Supreme Court of India reported in 2018 ACJ 2163 in between Shamanna and another Vs. Devisional manager, Oriental Insurance company and others and prays to pass the order for pay and recovery. Wherein Hon'ble Supreme Court of India observed as follows;
21 MVC No.869/2023
SCCH 5 "Motor vehicles Act 1988, Sec.149 (2) (ii) - motor insurance - driving licence liability of insurance company
- pay and recover order - tribunal held that driver of the offending vehicle was not holding a valid licence at the time of accident and since there was violation of policy condition directed the insurance company to pay and recover - High court observed that under Article 142 of the constitution only Supreme Court is vested with the power to direct the insurance company to pay and recover - High Court reversed the order passed by the tribunal and held that only the owner of offending vehicle is liable to make the payment of compensation awarded by the tribunal - whether the tribunal was justified in directing the insurance company to pay compensation and then recover the amount from the owner of offending vehicle - Held: Yes; where driver did not possess a valid driving licence and there is breach of policy condition, pay and recover can be ordered in case of 3 rd party risks; insurance company directed to recover the amount from the owner of vehicle by initiating proceedings before the executing court without filing suit.'' Looking to the same it is noticed that very case was of the year 2008, there was scope for pay and recovery as per the observation made and findings given by the Hon'ble Supreme Court of India in the above cited citation but very accident is occurred in the year 12012023, since on 01042022 amenment is brought to motor vehicles act 1988, thereafter if accident is occurred there will be no policy 22 MVC No.869/2023 SCCH 5 for pay and recovery. Hence above cited citation is not helpful to the case in hand. So that prayer made by the counsel for petiioner is not considered. So that R2/owner is liable to pay the compensation of Rs.3,56,050/ infavour of the petitioner with interest at the rate of 6% p.a. within 60 days from the date of this order. With these views, I have answered Issue No.2 partly in the affirmative.
26. Issue No.3: For the reasons assigned to Issues No.1 and 2, I proceed to pass the following:
::ORDER::
The petition filed by the Petitioner under Sec.166 of the M.V. Act, 1989 is partly allowed with cost.
The Petitioner is entitled for compensation of Rs.3,56,050/ (Rupees Three lakhs fifty six thousand and fifty Only) with interest at the rate of 6% p.a. from the date of petition till its realization.23 MVC No.869/2023
SCCH 5 The Respondent No.2 shall deposit award amount with interest within 60 days from the date of this order.
The Petitioner is entitled to get release 60% of the award amount through epayment directly to his account on furnishing the Bank A/c details along with address proof and remaining 40% shall be kept in Fixed Deposit in any of the Scheduled Bank for a period of three years, in his name.
The Advocate Fee is fixed at Rs.1,000/. Draw award accordingly.
(Dictated to the stenographer directly on computer, typed by her, thereof is corrected and then pronounced by me in the Open Court on this the 25th day of April, 2024) (MALAKARI RAMAPPA WADEYAR) VIII ADDL. JUDGE & ACMM, MEMBER, MACT, BENGALURU.
::A N N E X U R E::
LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER: PW1 : Sri Basavaraju.
PW2 : Dr. Gururaju.
PW3 : Dr. Nagaraj B N.
24 MVC No.869/2023
SCCH 5
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONER: Ex.P.1 : Copy of FIR Ex.P.2 : Copy of Complaint Ex.P.3 : Copy of statement of petitioner Ex.P.4 : Copy of Spot Mahazar with sketch Ex.P.5 : Copy of IMV Report Ex.P.6 : Copy of Wound Certificate Ex.P.7 : Copy of charge sheet Ex.P.8 : Discharge summary Ex.P.9 : N/c of aadhar card Ex.P.10 : Medical bills Ex.P.11 : Xrays Ex.P.12 : OPD records Ex.P.13 : Medical prescriptions Ex.P.14 : Case sheet Ex.P.15 : Xray Ex.P.16 : Clinical notes Ex.P.17 : Xray LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENTS: RW.1 : Sri Mahadevaiah.
RW.2 : Sri Akshaya C M.
Sri Vallabha Bai Patil.
25 MVC No.869/2023
SCCH 5
LIST OF DOCUMENTS MARKED ON BEHALF OF THE RESPONDENTS: Ex.R1 : Copy of 133 notice Ex.R2 : Copy of reply :
Ex.R3 : Copy of charge sheet Ex.R4 : Authorization letter Ex.R5 : Learners license Ex.R6 : Copy of DL extract Ex.R7 : Copy of policy with terms and conditions (MALAKARI RAMAPPA WADEYAR) VIII ADDL. JUDGE & ACMM, MEMBER, MACT, BENGALURU.Digitally signed
MALAKARI by MALAKARI
RAMAPPA
RAMAPPA WADEYAR
WADEYAR Date: 2024.05.09
12:14:22 +0530