Bangalore District Court
Mr. Avinash N vs Mr.Saravanan P on 30 January, 2023
KABC020115152020
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES, AT BENGALURU.
DATED THIS THE 30th DAY OF JANUARY 2023
(SCCH25)
Present: Miss.B.T.ANNAPOORNESHWARI
B.A., L.L.B., L.L.M.
XXIII Additional Small Causes Judge,
Bengaluru.
MVC No.2313/2020
PETITIONER: Mr. Avinash N.
S/o. Sri. Nagaraju T.,
Aged about 35 years,
R/at #1002,
Opp. Andra Bank,
1st Block, 4th Stage,
Devarachikkanahalli,
Bilekahalli,
Bangalore - 560 047.
(By Sri.S.J.Krishnaji Rao,
Advocate/s.)
V/S
RESPONDENTS: 1. Mr.Saravanan P.
Aged about 42 years,
S/o Paramasivam M.,
R/at No.1241, 6th & 7th
SCCH - 25 2 MVC 2313/2020
Cross,
Gottigere Weavers Colony,
Main Road, Right Side,
Bangalore - 560 083.
(RC owner of Bus No.TN45
H7691)
(ExParte)
2. united India Ins. Co.
Ltd.,
Regional Office,
#18, 6th Floor,
Krishi Bhavana,
Nrupathunga Road,
Hudson Circle,
Bangalore - 560 001.
Rep. By the Manager.
(Insurer of bus No.TN45H7691)
Policy No.0704033119P112829647
valid period 05.01.2020 to 06.01.2021
(By Sri.V.R.Muralidhara,
Advocate.)
......
JUDGMENT
The Petitioner has filed this petition under Sec.166 of the M.V. Act, seeking compensation for the injuries sustained by him in a road accident dated 24.02.2020. SCCH - 25 3 MVC 2313/2020
2. The case of the Petitioner in brief is that, on 24.02.2020 at about 11.10am he was riding motorcycle bearing Reg.No.KA51EX6497 by following all traffic rules and regulations on Bannerughatta Main Road, Opp. Sagar Automobiles, Bangalore, when he reached near LPG Gas Bunk, towards Bangalore Dairy Circle, the driver of Bus bearing No.TN45H7691, came at high speed in a rash and negligent manner and dashed against his motorcycle and caused the accident. Due to impact the petitioner fell down, the left back wheel of the bus ran over his right hand, sustained crush injuries to right hand and other parts of the body. Immediately he was shifted to Sagar Hospital, Bangalore, for treatment wherein clinical and radiological examinations were carried out and was treated with several surgeries I..e, wound debridment ORIF with multiple 'K' wiring re implantation of right thumb, multiple vessel nerve repair on 24.02.2020, wound debridement, excision of necrotic tissue and major dressing on 27.02.2020, Vac application was done and discharged on 06.03.2020 with SCCH - 25 4 MVC 2313/2020 advice. So far he has spent Rs.8,00,000/ towards hospitalization, conveyance, medical treatment, attendant charges, nursing care and other incidental expenses. At the time of accident, the petitioner was aged about 35 years, hale and healthy, doing Part time business of wholesale vegetable vending, under the name and style M/s Avinash Vegetables and earning around Rs.25,000/ per month and also working as Sale Executive, Bangalore south at M/s Subhas Enterprises and drawing salary around Rs.34,000/ per month totally he was earning around Rs.60,000/ per month. Due to accidental injuries the petitioner is still under bed rest and could not resume to his avocation till date. The Mico Layout Traffic police have registered a case against the Driver of the offending vehicle. The 1 st respondent is the owner and the 2nd respondent is the Insurer of the offending vehicle are jointly and severally liable to pay compensation to him.
3. In spite of due service of summons, the respondent No.1 did not appear and hence placed exparte. In response SCCH - 25 5 MVC 2313/2020 to notice issued by this Tribunal, the Respondent No.2 has appeared and filed written statement.
4. The respondent No.2/Insurance Company in the written statement have denied the case of the petitioner as false, admitted issuance of policy but subject to its terms and conditions and submitted that there is noncompliance of Sections 134(c) and 158(6) of M.V. Act. Further submitted that the petitioner is bad for nonjoinder of necessary parties as the owner and insurer of the motorcycle bearing No:KA51 EX6497 are not made as parties. The first respondent willfully entrusted his vehicle to a person who did not possess valid and effective DL to drive the same as on the date of the accident and also allowed to ply his vehicle on the road without having valid and effective permit and FC as on the date of the accident and therefore he has been prosecuted by the police under Sections 56, 66 r/w.Sec.192 of M.V. Act and hence there is breach of policy terms and conditions and they are not liable to indemnify the first respondent. Further SCCH - 25 6 MVC 2313/2020 submitted that the alleged accident not occurred in the manner as pleaded by the petitioner but the said accident occurred due to rash and negligent riding the motorcycle by the petitioner by violating motor vehicle rules and regulations without having DL and insurance to use his vehicle and not wearing the helmet. Therefore, prayed for dismissal of the petition against them.
5. 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 negligent act of driving of the Driver of the Bus bearing Reg.No.TN45H 7691 and in the said accident the petitioner has sustained injuries.?
2. Whether the Petitioner is entitled for Compensation? If so, what is the quantum? From whom?
3. What order or award?
6. The Petitioner in order to prove his case, he has examined himself as PW.1 and got marked 21 documents as SCCH - 25 7 MVC 2313/2020 per Ex.P.1 to P.21. He has also examined Mr.Gururaj V. Manager, Accounts at M/s Subhas Enterprises as PW.2 and produced 2 documents as per Exs/P.22 to P.23. Mr.Praveena C. Senior Manager, Medical Record Department, Sagar Hospital is examined as PW.3 and produced 4 documents as per Exs.P.24 to P.27. Mr.Basavaraj G.S. Record Keeper at Excel care Hospital, Bangalore, examined as PW.4 and produced 2 documents as per Exs.P.28 and P.29. Mr.Sanjosh
- Technician, MRD at St.Philominas Hospital, Bangalore, examined as PW.5 and produced 2 documents as per Exs.P.30 and P.31. Dr.Priyadarshan - Consulting Plastic surgeon at Sagar hospital and Excel Care Hospital Bangalore, examined as PW.6 and produced 2 documents as per Exs.P.32 and P.33. On the other side the 2nd respondent has got examined Mr.Jayashankar M.U. Administrative Officer as RW.1 and produced 2 documents as per Exs.R.1 and R.2. It has also examined Mr.Suresh Y. Sudi - FDA, Bangalore Regional Transport Office (Central), HSR Layout, Bangalore, as RW.2 and produced 4 documents as per Exs.R.3 to R.6. SCCH - 25 8 MVC 2313/2020
7. Heard the arguments and perused the materials on record. The counsel for the petitioner has filed following decisions; (i) (2018) 8 SCC 492 (SCFB) : Rani and Ors. Vs. National Ins. Co. Ltd., and Ors., (ii) (2018) 7 SCC 558 (SC) :
Amrit Paul Sing and Anr. Vs. TATA AIG Gen. Ins. Co. Ltd., and Ors. (iii) 2011 (2) RLW 1356 (SC) : United India Ins. Co., Ltd., Vs. K.M.Poonam and Ors., (iv) MFA No.2/2006 :Dr.H.P.Jagadeesh Vs. M/s Kamaiah International Pvt. Ltd., and Anr., (v) (2020) 9 SCC 805 (SC) : Lalan D. alias Lal and Anr. Vs. Oriental Ins. Co. Ltd., (vi) (2019) 7 SCC 217 (SC) :
Parminder Singh Vs. New India Assurance Co., Ltd., and Ors..
8. On hearing and appreciation of the evidence on record this court answers the above issues as follows: Issue No.1: In the affirmative, Issue No.2: Partly in the affirmative, Issue No.3: As per the final order, for the following: SCCH - 25 9 MVC 2313/2020 REASONS
9. Issue No.1: The Petitioner in order to prove that the accident was occurred due to the actionable negligence on the part of the Driver of the Bus bearing Reg.No.TN45H7691 has examined himself as PW.1 and produced 6 documents as per Exs.P.1, 2, 5, 6, 9 and 10. He has specifically stated in his evidence that, on 24.02.2020 at about 11.10 am he was proceeding in the motorcycle bearing Reg.No.KA51EX6497 on Bannerughatta Main Road, Bangalore, when he reached near LPG Gas Bunk, Opp. Sagar Automobiles, at that time, the driver of the Bus bearing No.TN45H7691 came at high speed in a rash and negligent manner and dashed against to his motorcycle and caused the accident. The Respondent No.2 insurer has denied that, the accident was occurred due to the rash and negligent driving of the driver of the offending vehicle and contended that there was sole negligence on the part of the rider of the two wheeler. In the crossexamination of PW.1 nothing worth elicited.
SCCH - 25 10 MVC 2313/2020
10. The respondent No.2 has got examined its official as RW.1 and produced 2 documents Authorization letter and true copy of policy. But the evidence of RW.1 is more focused on the point of absence of permit to the offending bus. Though the respondent No.2 disputed the alleged manner of accident and put several suggestions to the PW.1 but has not lead any evidence to prove the said defence and hence it remained unproved. Further, the documents placed by the Petitioner such as FIR, FIS, spot Panchanama, spot sketch, MVA report and charge sheet as per Exs.P.1 to 10 are all public documents which have got presumptive value under law. The I.O. after detail investigation has filed chargesheet against the driver of the Bus. No contrary evidence is lead to these documents from the side of respondent No.2. As such, there are no reasons to discard or disbelieve the version of the Petitioner/PW.1 and accept the version of the Respondents. The wound certificate produced by the Petitioner as per Ex.P.11 further shows that on account of the accident the Petitioner had sustained grievous and simple injuries. Under SCCH - 25 11 MVC 2313/2020 these circumstances, relying upon the oral evidence of PW.1 coupled with the documents produced which got presumptive value and in absence of contrary evidence this court is of the opinion that the accident occurred due to the rash and negligent driving of the driver of the offending Bus and same has resulted in grievous and simple injuries to the Petitioner. Accordingly, issue No.1 is held in the affirmative.
11. Issue No.2: The Petitioner has further averred that, on account of accident, he has sustained grievous and simple injuries and it has caused him permanent disability and hence he is unable to do his earlier work/occupation. The Petitioner in this regard has entered into witness box and deposed that due to the accidental injuries, he is suffering from permanent disability. Apart from that, he has produced the wound certificate as per Ex.P.11. As per Ex.P.11, the Petitioner has sustained (1) Right upper limb degloving crush injury of forearm and hand exposing muscles and tendons, (2) SCCH - 25 12 MVC 2313/2020 Abrasions over left fore arm, out of these injuries, injury No.1 is grievous in nature and injury No.2 is simple in nature. The petitioner has got examined Mr.Praveena C., Senior Manager, MRD, Sagar Hospital, Bengaluru as PW.3 and produced 4 documents at Exs.P.24 to P.27. Mr.Basavaraj G.S.Record Keeper, MRD, Excel Care Hospital, Bangalore, as PW.4 and produced 2 documents as per Exs.P.28 and P.29 and Mr.Sanjosh, Technician, MRD, St.Philominas Hospital, Bangalore, is examined as PW.5 and produced 2 documents as per Exs.P.30 and P.31. He has also examined Dr.Priyadarshan - Plastic Surgeon as PW.6 and produced 2 documents as per Exs.P.32 and P.33. This court while considering the Issue No.1 has already come to the conclusion that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle. Therefore, the Petitioner is entitled for compensation from the Respondents.
SCCH - 25 13 MVC 2313/2020
Disability:
12. The PW.3 has produced the IP Records, xrays and MLC copy pertaining to the petitioner. The PWs.4 and 5 have produced IP records of the petitioner pertaining to Excelcare hospital and St. Philominas Hospital respectively. The documents produced by the PWs.3 to 5 supports the case of the petitioner and line of treatment taken by the petitioner. The PW.6/Dr.Priyadarshan has deposed that, Mr.Avinash N. aged about 35 years, male had presented to Sagar Hospital, Bangalore, on 24.02.2020 with a history of road traffic accident, on clinical and radiological examination, which showed (1) Right Upper limb degloving and crush injury and (2) Abrasion over right forearm from palm to elbow with loss of 4 fingers and palm and he underwent wound debridement, ORIF with multiple 'K' wiring, reimplantation of right thumb, multiple vessel nerve repairs on 24.02.2020, wound debridement, excision of necrotic tissue and major dressing on 27.02.2020, VAC (VacuumAssisted wound closure) application, he was discharged on 06.03.2020. PW.6 further SCCH - 25 14 MVC 2313/2020 stated that he was readmitted to Sagar hospital on 12.03.2020, undergone wound debridment at day care centre, on same day due to the fell unconscious at the time of discharge, he was admitted, treated with transfusion of 3 units of packed red cells and discharged on 16.03.2020. PW.6 further stated that he was readmitted to EXCEL CARE hospital on 19.03.2020, undergone surgeries of wound debridement and VAC (VacuumAssisted Wound Closure) application under General Anesthesia on 19.03.2020 and discharged on 20.03.2020 and readmitted to EXCELCARE hospital on 26.03.2020, undergone wound debridement with muscle flap fixation, SSG (Sonosalpingography) under general anesthesia on 26.03.2020 and discharged on 20.03.2020, later he was taken treatment at St.Philomenas Hospital on 14.09.2020 at day care center, due to infections in the right hand, undergone right thumb revision amputation and patient is complaining of pain and swelling over right hand with forearm numbness and on recent examination on 10.11.2021 found amputation of right hand at carpal bone SCCH - 25 15 MVC 2313/2020 level, Scars over forearm and wrist, elbow movements restricted by 30%. PW.6 further stated that the petitioner has total permanent disability for right upper limb extremity is 80% and he requires (1) Reconstruction of forearm level (2) Reconstruction of thumb, index finger and middle finger and the approximate cost will be around Rs.15,00,000/. In the crossexamination of PW.6 it is brought out that, he has treated the petitioner, as the injured did not bring the part and as it was crush injury hence there was no chance of rejoining the separated part, as the thumb got infected and dead hence they removed the said thumb by surgery, the petitioner has hand upto one centimeter after the wrist, to the said hand blood circulation is normal but nerve recovery is partial, as per the guidelines upto wrist level the disability comes to 60%, upto elbow 80% and upto should 100% which is with regard to particular limb. It is further elicited in the crossexamination that reconstruction of skin, soft tissues and nerves and for the fingers transfer of toes 2 to 3 in a place of fingers for accommodating some functions of fingers SCCH - 25 16 MVC 2313/2020 and from that some partial utilization of fingers can be done, after the fore arm reconstruction the petitioner can go for hand prosthesis, the petitioner is not in need of further amputation, he has not given any estimation to the said reconstruction surgery, said cost may vary from hospital to hospital. On appreciation of evidence it is clear that the disability assessed by the PW.6 is only the physical disability and he has not mentioned the whole body disability. Admittedly the petitioner facing amputation of right hand at carpal bone level and hence with the said amputation the petitioner is definitely unable to do any job which requires use of hands. I have perused the decisions relied by the counsel for the petitioner at serial numbers 4 to 6 which are referred above and of the opinion that the facts and circumstances of those cases and this case are different as they were case of 100% disability and hence not applicable to the present case. Therefore, considering the evidence on record, having regard to the nature of injury sustained by the petitioner, the period of treatment that he has undergone, his SCCH - 25 17 MVC 2313/2020 age and evidence on record, his functional disability is considered at 40% to the whole body.
Monthly income:
13. The Petitioner has deposed in his evidence that, he was doing part time business of wholesale vegetable vending under the name and style M/s Avinash Vegetables and earnings around Rs.25,000/ per month and also working as Sales Executive, Bangalore South at M/s Subhas Enterprises and drawing salary around Rs.34,000/ per month, totally he was earning around Rs.60,000/ per month. In support of this he has examined Mr.Gururaj V. as PW.2 Manager, Accounts, M/s Subhas Enterprises and produced 2 documents as per Exs.P.22 and P.23. And also produced Income Tax Returns for the assessment year 2019 20 and 202021, pay slip (12 in Nos.) from April 2019 to March 2020 as per Exs.P.17 and P.18. The PW.2 has deposed that the petitioner was working in their office as Sales Executive/Marketing Manager and was working with SCCH - 25 18 MVC 2313/2020 them since April 2019 and as on the date of accident the petitioner was drawing salary of Rs.34,000/ per month. In the crossexamination of PW.2 it is elicited that they used to pay salary by cash, 47 employees are there in their company, as per Ex.P.18 no statutory deductions are shown.
Further crossexamination of PW.2 deferred for production of required documents. Later the counsel for the petitioner got discarded the evidence of PW.2 by filing memo which came to be allowed and hence the PW.2's evidence and Ex.P.18/pay slips are not appreciated. The Ex.P.17/IT returns are only for two years and previous years IT returns are not produced. Admittedly the Ex.P.17 IT return for the year 20192020 annual income is mentioned as Rs.3,20,200/ and in the next year IT returns the annual income shown as Rs.4,92,380/ which filed after the accident, there is no evidence as to how immediately there was raise in the income of the petitioner and hence said IT returns also do not support the claim of the petitioner that he used to earn monthly Rs.60,000/. The petitioner has SCCH - 25 19 MVC 2313/2020 not produced his bank account statement or any documents to support that he was getting that much of salary. Therefore, in absence of specific evidence to support his claim that he was earning monthly income of Rs.34,000/ is not acceptable. At the time of accident the Petitioner was aged about 36 years as could be make out from Ex.P.19/Notarized copy of Aadhar card. He was hale and healthy before the accident. The accident took place in the year 2020. Therefore, having regard to the age of the petitioner and also relying the decision of Hon'ble H.C. in the case of Sumangala & Others and Ramanagouda & Anr., in MFA No:202534/2019(MVC) wherein the notified notional income chart of the Karnataka State Legal Services Authority is considered for fixing the notional income and accordingly the monthly notional income of the petitioner is considered as Rs.14,500/ per month. As such, Petitioner is entitled for the following compensation: SCCH - 25 20 MVC 2313/2020
i) PAIN AND SUFFERING: After the accident, the Petitioner was shifted to Sagar Hospital, Bangalore, for treatment wherein in clinical and radiological examinations were carried out and underwent treatment and discharged on 06.03.2020 with an advice. Again he was admitted to Sagar Hospitals on 12.03.2020 for wound debridement, after treatment discharged on 16.03.2020 with advice. Again admitted to EXCELCARE hospital on 19.03.2020, undergone surgeries of wound debridement and VAC application under General Anesthesia on 19.03.2020 and discharged on 20.03.2020 with advice. Again admitted to EXCELCARE hospital on 26.03.2020 undergone surgeries and discharged on 04.04.2020 with advice and again he was admitted to St.Philomenas Hospital on 14.09.2020 admitted due to infections, underwent surgery of right Thumb Revision Amputation and flap advancement under general Anesthesia and discharged on the same day with advice and taking regular follow up treatment. Considering the nature of injuries and duration of treatment he has underwent, the Petitioner is awarded a sum of Rs.1,20,000/ under this head. SCCH - 25 21 MVC 2313/2020
ii) MEDICAL EXPENSES:
The Petitioner has pleaded that he has spent more than a sum of Rs.15,00,000/ towards hospitalization, conveyance, attendant charges, medical treatment, nourishment care and other incidental expenses. In this regard, he has produced 64 medical bills as per Ex.P.15 for a sum of Rs.10,01,467/. There is no contrary evidence to these bills. Therefore, the petitioner is entitled for the above said amount under this head.
iii) LOSS OF INCOME DURING LAID UP PERIOD: As mentioned above the petitioner has sustained grievous and simple injuries, amputation done and treated readmitting in the hospital in the said above hospitals. Therefore, considering the nature of injuries and the duration of treatment it can be said that the Petitioner had required at least one year period for recovering from the injuries sustained by him. Hence, he is entitled for a sum of Rs.1,74,000/ under this head.
iv) LOSS OF FUTURE INCOME: In so far as age of the Petitioner is concerned, the Ex.P.19 is got marked. As per this document his age was 36 years and the SCCH - 25 22 MVC 2313/2020 accident was occurred on 24.02.2020. Therefore, as on the date of the accident the Petitioner's age is considered as 36 years. As per the dictum laid down in Sarala Verma's case the appropriate multiplier applicable to her age is 15. Therefore, the Petitioner is entitled for a sum of Rs.10,44,000/ (Rs.14,500/ x 12 x 15 x 40%= Rs.10,44,000/) under this head.
(v) LOSS OF FUTURE AMENITIES AND
HAPPINESS:
The Petitioner was aged about 36 years at the time of accident. He has sustained grievous and simple injury, amputation was done and as per consideration of this Tribunal, he is suffering from 40% permanent disability. The Petitioner has to suffer this disability throughout his life. Because of this he will have to loose some 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 SCCH - 25 23 MVC 2313/2020 said hospitals for more than 28 days, admitted as an inpatient from 24.02.2020 to 06.03.2020, 12.03.2020 to 16.03.2020, 19.03.2020 to 20.03.2020, 26.03.2020 to 04.04.2020 and 14.09.2020 to 14.09.2020 discharged with advise. Though the petitioner claimed that he has visited the hospital around 35 to 40 times by spending Rs.2,500/ per visit towards conveyance, consultation charges, medical and other incidental expenses but not lead any evidence. However, during this period he must have spent considerable amount on his conveyance expenses.
Therefore, the Petitioner is entitled for a sum of Rs.80,000/ under this head.
(vii) FUTURE MEDICAL EXPENSES:
As per the version of the PW.6, the Petitioner requires (1) Reconstruction of forearm level (2) Reconstruction of thumb, index finger and middle finger, the approximate cost will be around Rs.15,00,000/. But there is no estimation bill produced by the Petitioner or PW.6 and therefore considering the nature of the injury and the earlier cost, the petitioner is entitled an amount of Rs.2,00,000/ under this head. SCCH - 25 24 MVC 2313/2020
14. The Petitioner is entitled compensation under the following heads:
1. Pain & suffering Rs.1,20,000/
2. Medical expenses Rs.10,01,467/
3. Loss of income during laid up period Rs.1,74,000/
4. Loss of future income Rs.10,44,000/
5. Loss of future amenities and happiness Rs.20,000/
6. Attendant, conveyance, food and Rs.80,000/ nourishment charges
7. Future Medical Expenses Rs.2,00,000/-
TOTAL Rs.26,39,467/ If it is rounded off it comes around Rs.26,39,500/ and same is awarded under different heads to the Petitioner.
15. The Respondent No.2 contended that as on the date of accident the vehicle had no valid permit and FC which is evident from police records and chargesheet. In support of the said defence the respondent No.2 has lead evidence of its official as RW.1 who has deposed in support of said defence.
In the crossexamination of RW.1 it is only elicited that they have not produced the notice issued to the insured and except this nothing worth is elicited to disprove his evidence. The respondent No.2 has also examined RW.2 official of Bengaluru Regional Transport Officer, who has produced SCCH - 25 25 MVC 2313/2020 Exs.R.3 to R.6 which are authorization letter, true copies of endorsement of replacement, endorsement of replacement and renewal of permit and Form No.41 and has deposed that as per the said documents original permit was issued by them to vehicle bearing No:KA010A6768 valid from 31.10.2012 to 09.05.2017 and it was got replaced to vehicle bearing No:TN45H7691 on 31.10.2012 and there was no any permit issued or renewed from their office to the replacement vehicle and they have also not received any information to their office to that effect. In his cross examination nothing worth is elicited to disbelieve his evidence with regard to nonexistence of permit to the offending vehicle. The Ex.P.10/chargesheet also proves that the offending vehicle had no valid FC and permit as on the date of accident. The burden of proving that the offending vehicle had valid permit as on the date of accident is cast on the respondent No.1 owner of the offending vehicle, who remained absent and has not lead any evidence to this effect and failed to prove that the insured offending vehicle had SCCH - 25 26 MVC 2313/2020 valid permit as on the date of accident. Therefore, by leading evidence the respondent No.2 has proved its defence that there was breach of policy conditions by the respondent NO.1 as the offending vehicle had not permit and FC as on the date of accident.
16. As discussed above the respondent No.2 has proved its defence about breach of policy conditions and on that basis the counsel for the respondent No.2 contends that they are exonerated from payment of compensation to the petitioner and no principles of pay and recovery can also be applied. The counsel for the petitioners submitted that in order to avoid sufferance by the petitioner who is a third party the principles of pay and recovery needs to be applied to meet the ends of justice.
17. Section 149 makes it clear that when third party risks are involved or when the victim of the accident is a third party, such risk being compulsorily covered under sub section (1) of Section 147, any exclusion in the policy must SCCH - 25 27 MVC 2313/2020 be suitably interpreted having regard to the main purpose for which an insurance contract is entered into. In Swaran Singh the Hon'ble Supreme Court has enumerated the aforementioned twin tests in the above context. It is only when both the tests are satisfied that the insurer could be permitted to pay and recover from the insured as per the proviso to subsection (4) of Section 147 otherwise, no pay and recovery order could be made and the insurer has to satisfy the award. In regard to third party rights, the insurer can defeat such rights under Section 149(2)(a) by proving a breach of the condition of the policy and further, proving that the same is a fundamental breach. In such an event, the insurer can only mitigate its liability and the insured would be liable to satisfy the judgement visavis the insurer who would have satisfied the claim of the third party in the first instance. Therefore, the insurer cannot defeat a third party claim by any exclusion in the policy having regard to the four corners of Section 149(2)(a). It can only mitigate its liability by seeking recovery from the insured on proof of the SCCH - 25 28 MVC 2313/2020 exclusion clause as per the twin tests enumerated by the Hon'ble Supreme Court. This is the object of Section 149(4) and the proviso thereto which contemplates pay and recovery order to be made against the insurer who has been notified in a claim proceeding instituted by a third party under Section 149(1) of the Act.
18. To the above, the another shade is, What would be the position when the insurer is able to prove a breach of the policy, but the said breach is not a fundamental breach or the breach did not contribute to the cause of the accident but what could be termed as an innocent breach and not an intentional one. In such a case also, the Insurance Company must pay to the third party and recover form the insured. This could be illustrated with reference to the vehicle not being covered by a permit to ply for hire or reward. The Hon'ble Supreme Court in the case of Amrit Paul Singh Vs. TATA AIG General Insurance Co. Ltd [AIR 2018 SC 2662], held that the vehicle not having a permit at SCCH - 25 29 MVC 2313/2020 all and being used for hire or reward is a case of fundamental breach and hence, the insurer though absolved of its liability had to pay the compensation and recovery order was made in the said case permitting recovery from the insured. Also, when a vehicle had a permit to ply within a particular area or on a route deviated from the said area or route and was plying in another area or route and an accident occurred, then it is not a case of fundamental breach although, there is a violation of the terms of the policy. In such an event also, the pay and recovery order has been made in the case of Rani & Others vs. National Insurance Company Ltd. [(2018) 8 SCC 492], by the Hon'ble Supreme Court.
19. The counsel for the petitioner has also relied above first three decisions which are referred above in support of his submission that pay and recovery be ordered and same are also applicable to the present case. Therefore, relying on the above decisions, this Tribunal is of the view SCCH - 25 30 MVC 2313/2020 that even though the respondent No.2 in this case has proved its defence of breach of policy conditions, then also is to satisfy the award under the principles of pay and recovery. Therefore, even though the respondent No.1/owner is solely liable to pay the compensation to the Petitioners. However, under the principles of pay and recovery the respondent No.2/Insurance company is directed to satisfy the award and deposit the compensation to the petitioner at the first instance and later to recover it from the insured first respondent by filing execution petition as per law. The Petitioner has claimed for a sum of Rs.1,00,00,000/ but he is entitled only for a sum of Rs.26,39,500/ with interest @ 6% per annum. Therefore, the petition needs to be allowed in part. Accordingly Issue No.2 is held partly in the affirmative.
20. Issue No.3: For the reasons and discussions made above and findings to the above issues this Tribunal proceeds to pass the following: SCCH - 25 31 MVC 2313/2020 ORDER The petition is allowed in part with cost. The Petitioner is entitled for compensation of Rs.26,39,500/ (Rupees Twenty Six Lakhs Thirty Nine Thousand and Five Hundred only) from the Respondent No.1/owner of the offending vehicle along with interest @ 6% p.a. from the date of petition till the date of depositing the amount. The respondent No.1 solely liable to pay the said compensation to the petitioner.
However, 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 at the first instance and later to recover it from the respondent No.1/owner by filing execution petition as per law.
On deposit of compensation and interest, 25% shall be deposited in the name of the petitioner in SCCH - 25 32 MVC 2313/2020 any N/S Bank for a period of three years and remaining amount shall be released in favour of the Petitioner on proper identification and due acknowledgment as per rules.
Advocate fee is fixed at Rs.1,000/.
Draw decree accordingly.
(Dictated to the stenographer on line, revised, corrected and then pronounced in the open court this the 30th day of January 2023) (Miss. B.T.ANNAPOORNESHWARI) Addl.C.M.M.& Member MACT, Bengaluru.
ANNEXURE List of Witnesses examined for Petitioner:
PW.1 Mr. Avinash N. PW.2 Mr.Gururaj V. PW.3 Mr.Praveena C. PW.4 Mr.Basavaraj G.S. PW.5 Mr.Sanjosh PW.6 Dr.Priyadarshan
List of Documents marked for Petitioner:
Ex.P.1 True copy of FIR
SCCH - 25 33 MVC 2313/2020
Ex.P.2 True copy of FIS
Ex.P.3 True copy of statement witness
Ex.P.4 True copy of police intimation
Ex.P.5 True copy of Spot Panchanama
Ex.P.6 True copy of Spot sketch
Ex.P.7 True copy of police notice
Ex.P.8 True copy of reply to police notice
Ex.P.9 True copy of MVA report
Ex.P.10 True copy of charge sheet
Ex.P.11 True copy of Wound certificate
Ex.P.12 Discharge summary ( 5 in Nos.)
Ex.P.13 Out patient records (22 in Nos.)
Ex.P.14 Medical reports and prescriptions (61 in
Nos.)
Ex.P.15 Medical bills (64 in Nos.) for Rs.10,01,467/
Ex.P.16 Ten photograph with CD
Ex.P.17 Income Tax returns ( 2 in Nos.) for the
assessment year 201920 and 202021
Ex.P.18 Pay slip (12 in Nos.)
Ex.P.19 Notarized copies of Aadhar Cards of
petitioner (Compared with original and original is returned) Ex.P.20 Notarized copies of DL of petitioner (Compared with original and original is returned) Ex.P.21 Xrays 3 in Nos.
SCCH - 25 34 MVC 2313/2020
Ex.P.22 Authorization letter Ex.P.23 Notarized copy of Employee ID of PW.2
(Compared with original and original is returned) Ex.P.24 Authorization letter Ex.P.25 Two IP records Ex.P.26 Three Xrays Ex.P.27 True copy of MLC Extract (Compared with original and original is returned) (Two pages) Ex.P.28 Authorization letter Ex.P.29 Two IP records Ex.P.30 Authorization letter Ex.P.31 One IP record Ex.P.32 OPD record (one page) Ex.P.33 One OPD file List of Witnesses examined for Respondent/s:
RW.1 Mr.Jayashankar M.U. RW.2 Mr.Suresh Y. Sudi
List of documents exhibited for Respondent:
Ex.R.1: Authorization letter Ex.R.2: True copy of Policy Ex.R.3: Authorization letter Ex.R.4: True copy of Endorsement of replacement SCCH - 25 35 MVC 2313/2020 Ex.R.5: True copy of endorsement of replacement and renewal of permit Ex.R.6: True copy of Form No.41 pertaining to Sri.Manukumar (Miss.B.T.ANNAPOORNESHWARI) XXI A. C.M.M.,& XXIII ASCJ Bengaluru. SCCH - 25 36 MVC 2313/2020 30.01.2023 For Judgment
Pronounced vide separate judgment with following operative portion:
ORDER The petition is allowed in part with cost. The Petitioner is entitled for compensation of Rs.26,39,500/ (Rupees Twenty Six Lakhs Thirty Nine Thousand and Five Hundred only) from the Respondent No.1/owner of the offending vehicle along with interest @ 6% p.a. from the date of petition till the date of depositing the amount. The respondent No.1 solely liable to pay the said compensation to the petitioner.SCCH - 25 37 MVC 2313/2020
However, 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 at the first instance and later to recover it from the respondent No.1/owner by filing execution petition as per law.
On deposit of compensation and interest, 25% shall be deposited in the name of the petitioner in any N/S Bank for a period of three years and remaining amount shall be released in favour of the Petitioner on proper identification and due acknowledgment as per rules.
Advocate fee is fixed at Rs.1,000/. Draw decree accordingly.
(Miss.B.T.ANNAPOORNESHWARI) XXI A. C.M.M.,& XXIII ASCJ Bengaluru.SCCH - 25 38 MVC 2313/2020
AWARD BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA & XXI ACMM : BANGALORE CITY MVC No.2313/2020 PETITIONER: Mr. Avinash N. S/o. Sri. Nagaraju T., Aged about 35 years, R/at #1002, Opp. Andra Bank, 1st Block, 4th Stage, Devarachikkanahalli, Bilekahalli, Bangalore - 560 047.
(By Sri.S.J.Krishnaji Rao, Advocate/s.) V/S RESPONDENTS: 1. Mr.Saravanan P. Aged about 42 years, S/o Paramasivam M., R/at No.1241, 6th & 7th Cross, Gottigere Weavers Colony, Main Road, Right Side, Bangalore - 560 083.
(RC owner of Bus No.TN45 H7691) (ExParte)
2. united India Ins. Co.
Ltd., Regional Office, SCCH - 25 39 MVC 2313/2020 #18, 6th Floor, Krishi Bhavana, Nrupathunga Road, Hudson Circle, Bangalore - 560 001.
Rep. By the Manager.
(Insurer of bus No.TN45H7691) Policy No.0704033119P112829647 valid period 05.01.2020 to 06.01.2021 (By Sri.V.R.Muralidhara, Advocate.) ..........
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 Only) for the injuries sustained by the Petitioner/Death of in a Motor Accident by Vehicle No. WHEREAS, this claim petition coming up before Miss.B.T.Annapoorneshwari, XXIII Addl.Judge, Member, Bangalore, in the presence of Sri/Smt. SCCH - 25 40 MVC 2313/2020 Advocate for Petitioner/s and of Sri/Smt. Advocate for Respondent.
ORDER The petition is allowed in part with cost. The Petitioner is entitled for compensation of Rs.26,39,500/ (Rupees Twenty Six Lakhs Thirty Nine Thousand and Five Hundred only) from the Respondent No.1/owner of the offending vehicle along with interest @ 6% p.a. from the date of petition till the date of depositing the amount. The respondent No.1 solely liable to pay the said compensation to the petitioner.
However, 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 at the first instance and later to recover it from the respondent No.1/owner by filing execution petition as per law.
SCCH - 25 41 MVC 2313/2020
On deposit of compensation and interest, 25% shall be deposited in the name of the petitioner in any N/S Bank for a period of three years and remaining amount shall be released in favour of the Petitioner on proper identification and due acknowledgment as per rules.
Advocate fee is fixed at Rs.1,000/.
Given under my hand and seal of the Court this day of 2023.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA BANGALORE.
SCCH - 25 42 MVC 2313/2020MEMORANDUM OF COST _____________________________________________________________________ By the Petitioner/s Respondent _____________________________________________________________________ __ Court fee paid on petition 1000 Court fee paid on Powers 0000 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