Bangalore District Court
Govindraju.B vs M/S Reliance General Insurance on 13 December, 2016
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS TRIBUNAL,
BANGALORE CITY.
SCCH-14
PRESENT: Basavaraj Chengti., B.Com.,LL.B.,(spl)
XVI ADDL. JUDGE,
Court of Small Causes & MACT.,
BANGALORE.
MVC No.6854/2013
Dated this the 30th day of JUNE 2015
Petitioner/s : GovindRaju.B.
S/o Bhimaiah,
Aged about 38 years.
R/at No.55 and No.32/64
Shivulayout, Ring Road,
Mariyappanapalya,
Bangalore south.
Bangalore-56.
V/s (By pleader Sri RL)
Respondent/s 1. M/s Reliance General Insurance
Co.Ltd.
By its Manager,
No.28, Centenary Building
5th floor, M.G.Road,
Bangalore-11
2. Sri.Raghuveer,
S/o Ramaiah,
No.4-75,
Gajwel, Medak,
Andrapradesh.
(R1-By pleader Sri KMR
R2-By pleader Sri HKB)
SCCH-14 2 MVC No.6854/2013
JUDGMENT
This claim petition is filed by the petitioner U/Sec.166 of Motor Vehicles Act for grant of compensation for the injuries sustained by him in a road traffic accident.
2. Brief averments of the petition are as under:
On 05.12.2013 at about 04.00 A.M., the petitioner was proceeding in the Eicher mini lorry bearing No.AP-23-U-8863 along with courier bags, on NH-44, Bangalore-Hyderabad Road. When they reached near Guttur Y Junction, the driver of the said lorry drove the vehicle in a rash and negligent manner with high speed, endangering to human life and dashed against the median of the road. As a result, the said lorry was turtled and the petitioner was also fell down and sustained fracture of humerus left distal third comminuted closed without radial nerve palsy and other grievous injuries all over the body. Immediately, the petitioner was taken to Govt. Hospital, Penukonda for treatment. There he was taken first aid and he was shifted to Rajarajeshwari Hospital, Bangalore wherein he was admitted as inpatient and fracture was operated and discharged with an advise to take follow up treatment. Even today he is under medical treatment. He spent Rs.1,50,000/- towards medicine, treatment and conveyance etc. The petitioner was a courier collector and supervising the courier bags under private courier company and was earning Rs.15,000/- p.m., Due to accidental injuries, he is unable to work as a result, loss of earning and earning capacity and physical disablement. Penukonda police have registered Cr.No.154/2013 against the driver of Eicher lorry SCCH-14 3 MVC No.6854/2013 bearing AP-23-U-8863 for the offences punishable U/Sec.279 and 338 of IPC. The respondents are the insurer and owner of the said lorry and are jointly and severally liable to pay compensation.
Hence, the petitioner has filed this petition for a compensation of Rs.10,00,000/- from the respondents with cost and interest.
3. In pursuance of the notice, the respondent no.1 has appeared before the court through his counsel and filed statement objections. Inspite of service of notice, the respondent no.2 remained absent and he is placed exparte. The respondent no.1 has admitted the issuance of the policy in favour of respondent no.2 in respect of vehicle bearing No.AP-23-U-8863, but he has denied the other averments of the petition as false. He has contended that the driver of the vehicle had no valid the effective driving license at the time of accident and the insured lorry had no permit as such there is violation of the policy condition and also the Motor Vehicles Act. He has contended that the insured and the concerned police have not complied with their mandatory duties, that the Eicher lorry bearing No.AP-23-U-8863 was registered as a goods carriage vehicle and at the time of alleged accident the petitioner was traveling as gratuitous passenger in the said vehicle and thereby there is violation of policy terms and conditions, that the insured vehicle was not involved in the accident, that the compensation claimed by the petitioner is highly exorbitant, excessive, arbitrary, unreasonable and without any legal basis. Hence, he has sought for dismissal of the claim petition with cost.
SCCH-14 4 MVC No.6854/20134. On the basis of above pleadings, the following issues were framed :
ISSUES
1. Whether the petitioner proves that he sustained grievious injuries in the nature of permanent disablement on 05.12.2013 at about 04.00 a.m., On NH-44 Road, Bangalore-Hyderabad Road, Guttur Y Junction, in an accident arising due to rash and negligent driving of driver of Eicher Mini Lorry bearing No.AP-23-U- 8863?
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 two witnesses as PW.2 and 3. He has got marked documents as Ex.P1 to 16. The respondent No. 1 has examined RW-1 and got marked documents as Ex.R1 and 2.
6. Heard the arguments. The petitioner counsel filed written argument and relied upon following rulings;
1. MFA 1039/2003(Smt.Yellamma Vs Kishore Kashtwale)
2. MFA 3322/2012(TOICL Vs Sri.Kantha @ Kanthalal)
3. 1998 ACJ 952 (NIACL Vs Doredla Satyanarayana) I have gone through the written arguments, rulings and perused the records.
7. My findings to the above issues are as under:-
Issue No.1: In Affirmative.
Issue No.2: In Affirmative For Rs.2,90,000/-
from the respondent no.2
Issue No.3: As per final order:
for the following:
SCCH-14 5 MVC No.6854/2013
REASONS
8. ISSUE No.1: PW-1 Govindraju is the petitioner and his evidence is as per the averments of the petition. He has stated that he sustained grievous injuries in the nature of permanent disablement in the accident which has occurred due to rash and negligent driving of driver of Eicher Mini Lorry bearing No.AP-23-U- 8863. PW-2 Dr.Ramesh has deposed that the petitioner sustained fracture injury which has caused him permanent disability. Evidence of PW-3 is not helpful to decide the issue in hand. Similarly, RW-1 Ravindra has reiterated the averments of written statement filed by the respondent No.1, but he is not an eyewitness to the accident and hence, his evidence is inadmissible as to manner of accident. However, the respondent No.1 has impliedly admitted as to causing of injury to the petitioner by way of suggestions to PW-1. It is suggested to PW-1 that he sustained injury by falling somewhere else. Except bare denials, nothing is elicited from PW-1 in cross examination. Those denials are not sufficient to believe the defence of the respondent No.1.
9. Copy of FIR, mahazar, sketch, charge sheet and wound certificate are at Ex.P1 to 5 which corroborate the evidence of PW-1 and 2. There was no delay in lodging FIR. The complainant is the first informant. The police after investigation, filed charge sheet against the driver of the Eicher Mini Lorry bearing No.AP-23-U- 8863 for the offences punishable U/s 337 and 338 of IPC. The sketch clearly discloses that the lorry was dashed against the road divider. There is nothing on record to disbelieve police records.
SCCH-14 6 MVC No.6854/2013Causing accident to road divider clearly establish the rash and negligent driving of the driver of Eicher Mini Lorry bearing No.AP- 23-U-8863. FIR and charge sheet clearly indicate the presence of the petitioner in the lorry at the time of accident. Wound certificate reveals that the petitioner has sustained simple and grievous injury in a road traffic accident. Evidence of PW-2 and contents of Ex.P13 and 14 go to show that the petitioner is suffering from permanent disability due to accidental injuries. There is no evidence to rebut the oral and documentary evidence adduced by the petitioner. Evidence of RW-1 is not helpful to the respondent No.1 to prove his defence. Hence, I have no hesitation to hold that the accident has occurred due to rash and negligent driving of driver of Eicher Mini Lorry bearing No.AP-23-U-8863 in which the petitioner sustained grievous injuries in the nature of permanent disablement. Thus, the petitioner has succeeded to prove the issue and I answer the issue in the affirmative.
10. Issue No.2: Govindaraju has deposed about his age, occupation and income. In police records, his age is shown as 34 years, whereas in medical records his age is mentioned as 38 years. The petitioner has produced copy of his voter ID which remained unmarked. The date of birth of the petitioner is shown as 01.01.1974 in the voter ID. It means the petitioner was aged 39 years as on the date of the accident. Ex.P10 is Form 16A issued by SSN Logistics Pvt Ltd in favour of the petitioner in respect of TDS of Rs.10,731/-. This document goes to show that the company has paid Rs.10,73,096/- to the petitioner during the period from SCCH-14 7 MVC No.6854/2013 01.07.2013 to 30.09.2013. The nature of payment is shown as 194C and the code is described in page No.3 as " Payments to contractor and Sub-contractor". This falsifies the claim the petitioner that he was working as courier collector and supervisor under SSN Logistics Pvt Ltd and was getting a salary of Rs.15,000/- per month. The payments made to the petitioner as shown in Ex.P10 reveals that he was contractor or sub-contractor of the said company to whom an amount of Rs.10,73,096/- was paid during the period from 01.07.2013 to 30.09.2013. No other documents is produced by the petitioner as to his occupation and income. Hence, I hold that the petitioner was contractor/sub- contractor of SSN logistics Pvt Ltd. Though, Ex.P10 indicates that the petitioner was paid more than Rs.15,000/- per month by the company, but in view of the admission of the petitioner/PW-1, I restrict his income @ Rs.15,000/- pm.
11. Evidence of PW-1 and 2 coupled with contents of wound certificate at Ex.P5, discharge summary at Ex.P6 and 7, X-rays at Ex.P9 and 14, IP records at Ex.P16 reveal that the petitioner sustained communited fracture of distal 3rd of left humerus, that he was admitted in Rajrajeshwari hospital twice after getting treatment at Govt.Hospital, Penukonda, that he underwent surgery twice and now his fracture is united with implants in situ, that total period of hospitalization is 80 days. He might have taken follow up treatment and bed rest for a period of 3 months. Thus, total laid up period comes to 6 months. It can be believed that the petitioner lost income during the said period. There is no rebuttal SCCH-14 8 MVC No.6854/2013 evidence in that regard. Medical bills amounting to Rs.6,577/- are at Ex.P12. Though, there is no prescription, it can not be said that the bills are created bills. Hence, I award a compensation of Rs.40,000/- towards pain and sufferings, Rs.10,000/- towards medical expenses, Rs.10,000/- towards nourishment, Rs.10,000/- towards conveyance and attendant charges and Rs.90,000/- towards loss of income during laid up period.
12. PW-2 Dr.Ramesh has stated that the petitioner sustained permanent disability of 40% to left upper limb and 14% to the whole body, that the cost of future surgery may be Rs.5,000/- to Rs.10,000/-. In cross examination, he has stated that the petitioner can do courier bags shifting work with difficulty, that he can lift normal weight. He has admitted that the fracture is united, but has denied that his assessment of disability is wrong. In view of union of fracture and existence of implants, I am of the opinion that if extent of disability is restricted to 30% to left upper limb and to 10% to whole body, it will meet the ends of justice. The said disability is physical as well as functional, but there is no evidence to believe that the petitioner suffered loss of earning capacity due to accidental injury. However, the disability has resulted in many difficulties which may persist in future. Therefore, the petitioner is not entitled for any compensation towards loss of future income, but he is entitled for compensation of Rs.1,00,000/- towards disability, Rs,25,000/- towards loss of amenities and Rs.5,000/- towards future medical expenses. Thus the petitioner is entitled for just and reasonable compensation as under;
SCCH-14 9 MVC No.6854/20131. Pain and suffering Rs. 40,000/-
2 Medical expenses Rs. 10,000/-
3 Nourishment Rs. 10,000/-
Conveyance and attendant Rs. 10,000/-
charges 4 Loss of income during the period of treatment and bed Rs. 90,000/-
rest (Rs.15,000X6) 5 Loss of amenities Rs. 25,000/-
6 Loss of Disability Rs.1,00,000/-
7 Future medical expenses Rs. 5,000/ -
Total Rs.2,90,000/-
The petitioner is further entitled for interest @ 9% pa, from the date of petition till the date of payment.
13. The petitioner has proved that the accident was due to rash and negligent driving of driver of Eicher Mini Lorry bearing No.AP-23-U-8863. The respondents are the insurer and owner of said vehicle. In normal course, the owner and insurer are jointly and severally liable to pay compensation and interest to the injured. In this case, the owner has not contested the matter, but the insurer is the contesting party. RW-1 Ravindra has deposed for the respondent No.1. Authorisation letter and copy of policy are at Ex.R1 and 2. The respondent No.1 has admitted the issuance of policy to the respondent No.2 in respect of Eicher Mini Lorry bearing No.AP-23-U-8863. The policy was a package policy and it was in force on the date of accident.
14. The respondent No.1 has disputed his liability on two grounds. One is that the respondent No.2 has violated the policy conditions and the other one is that the petitioner was an SCCH-14 10 MVC No.6854/2013 unauthorised passenger in a goods vehicle. He has contended that the driver of insured vehicle was not holding license, that the vehicle was not having FC and permit. The said contentions remained as pleadings without documentary evidence. The petitioner has produced copy of FIR, FC, permit during arguments which falsify the contentions of the respondent No.1, but there is nothing record to believe that the petitioner was traveling in the lorry as owner of the goods or employee of the respondent No.2. It is not his case that he was the employee of the respondent No.2. He has specifically contended that he was traveling in the vehicle along with courier bags on the deputation of his employer. Existence of courier bags is not mentioned in the panchanama, but contents of FIR and charge sheet go to show that the lorry was loaded with courier bags, but there is no evidence to believe that the courier bags were of SSN Logistics Pvt Ltd, and the petitioner was deputed to go with the bags. The policy was a package policy and there was seating capacity in the lorry for 3 persons, but that itself does not make the presence of the petitioner in the lorry as authorised. He was not the employee of the respondent No.2. It is already held above that the petitioner was not the employee of the SSN Logistics Pvt Ltd, but he was contractor/sub contractor of the said company. He was not the owner of courier bags loaded in the lorry. Therefore, I hold that the petitioner was an unauthorised passenger in Eicher Mini Lorry bearing No.AP-23-U-8863 which is a goods vehicle. By allowing the petitioner to travel in the vehicle, the driver and the owner of the vehicle have violated the policy conditions. The rulings relied upon by the petitioner are not SCCH-14 11 MVC No.6854/2013 applicable to the fact of this case. In view of the breach of terms and conditions of the policy, the respondent No.1 is absolved from indemnifying the respondent No.2. The burden to pay compensation and interest is upon the respondent No.2. He shall deposit the amount as calculated above before the Court. Hence, I answer the issue as above.
15. ISSUE NO.4: 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.2,90,000/- with interest @ 9% p.a., from the date of petition till the date of payment. Future medical expenses do not carry any interest.
The respondent No.2 is liable to pay compensation of Rs.2,90,000/- to the petitioner with interest. He is directed to deposit the amount before the court within one month from the date of award.
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. Remaining amount and interest shall be released in his favour SCCH-14 12 MVC No.6854/2013 through account payee cheque with proper identification.
The claim petition as against the respondent No.1 stands dismissed without cost.
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 30th day of JUNE 2015.) (Basavaraj Chengti) XVI ADDL.JUDGE., Court of Small Causes & MACT., Bangalore.SCCH-14 13 MVC No.6854/2013
ANNEXURE WITNESSES EXAMINED AND DOCUMENTS MARKED FOR PETITIONERS AND RESPONDENTS:
PW.1 Govindaraju.B
PW.2 Dr.B.Ramesh
PW.3 Ramachandran.C
Respondent' s
RW.1 Ravindra .B.V
Ex.P1 - Copy of FIR
Ex.P1a - Kannada translation copy of FIR
E.xP2 - Copy of Spot mahazar
Ex.P2a - Kannada translation copy of Spot Mahazar
Ex.P3 - Copy of sketch
Ex.P4 - Copy of Charge sheet
Ex.P5 - Copy of Wound certificate
Ex.P6-7 - Copy of Discharge summaries in 2 nos
Ex.P8 - Photos in 2 nos
Ex.P9 - X-ray
Ex.P10 - Copy of Form 16A of income tax
Ex.P11 - Photos and CD
Ex.P12 - Medical bills (2 in nos amounting to Rs.6,577/-)
Ex.P13 - OPD Book
Ex.P14 - X-ray
Ex.P15 - Authorisation Memo
Ex.P16 - IP records.
Respondent's
Ex.R1 - Authorisation letter
Ex.R2 - Copy of Policy.
XVI ADDL.JUDGE.,
Court of Small Causes & MACT.,
Bangalore.
SCCH-14 14 MVC No.6854/2013
Dt.30.06.2015
P-RL
R1-KMR
R2-HKB
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.2,90,000/-/- with interest @ 9% p.a., from the date of petition till the date of payment. Future medical expenses do not carry any interest.
The respondent No.2 is liable to pay compensation of Rs.2,90,000/-/- to the petitioner with interest. He is directed to deposit the amount before the court within one month from the date of award.
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. Remaining amount and interest shall be released in his favour through account payee cheque with proper identification.
The claim petition as against the respondent No.1 stands dismissed without cost.
Advocate's fee is fixed at Rs.5,000/-. Draw award accordingly.
XVI ADDL.JUDGE, Court of Small Causes & MACT., Bangalore.SCCH-14 15 MVC No.6854/2013
AWARD SCCH NO.14 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA : BANGALORE CITY MVC No.6854/2013 Petitioner/s : GovindRaju.B. S/o Bhimaiah, Aged about 38 years.
R/at No.55 and No.32/64 Shivulayout, Ring Road, Mariyappanapalya, Bangalore south.
Bangalore-56.
V/s (By pleader Sri RL) Respondent/s 1. M/s Reliance General Insurance Co.Ltd.
By its Manager, No.28, Centenary Building 5th floor, M.G.Road, Bangalore-11
2. Sri.Raghuveer, S/o Ramaiah, No.4-75, Gajwel, Medak, Andrapradesh.
(R1-By pleader Sri KMR R2-By pleader Sri HKB) 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
SCCH-14 16 MVC No.6854/2013
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.2,90,000/-/- with interest @ 9% p.a., from the date of petition till the date of payment. Future medical expenses do not carry any interest.
The respondent No.2 is liable to pay compensation of Rs.2,90,000/-/- to the petitioner with interest. He is directed to deposit the amount before the court within one month from the date of award.
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. Remaining amount and interest shall be released in his favour through account payee cheque with proper identification.
SCCH-14 17 MVC No.6854/2013The claim petition as against the respondent No.1 stands dismissed without cost.
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 18 MVC No.6854/2013
SCCH-14 19 MVC No.6854/2013