Bangalore District Court
Sri.Yogesha vs Sri.M.N.Nanjappa on 15 April, 2023
KABC020139772020
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
Court of Small Causes, Bengaluru.
DATED THIS THE 15th DAY OF APRIL 2023
PRESENT: SMT.SHILPA K.S ( BAL, LLM)
VII Addl. SCJ and ACMM,
Member, MACT3, Bengaluru.
M.V.C.No.3118/2020
Petitioner : Sri.Yogesha,
S/o Puttaswamy,
Aged about 34 years,
R/at No.130, 2nd Cross,
Thotada Road,
Vrushabhavathinagara,
Sannakkibayalu,
Kamakshipalya,
Bangalore - 560 079.
(By Sri.K.P.Shivalingaiah,
Advocate)
Vs
Respondents : 01. Sri.M.N.Nanjappa,
S/o Nanjappa,
(SCCH3) 2 M.V.C.No.3118/20
Aged about Major,
Residing at, Gowri Shankar Nilaya,
No.93, Laggere, FF Layout,
Bangalore - 560 058.
(R.C. Owner of the Car bearing
No.KA02ME2837)
(By Sri.D.L.Somesh, Advocate)
02. The Regional Manager,
ICICI Lombard General Insurance,
Office at No.121, 9th Floor,
The Estate, Dickenson Road,
FM Kariyappa Colony,
Sivanchetti Gardens,
Bangalore - 560 042.
(Insurer to Car bearing
No.KA02ME2837
Vide Policy No.3001/MI08693945/
00/000
Policy period from 15.03.2020 to
14.03.2021)
(By Sri.Manoj Kumar.M.R,
Advocate)
*******
JUDGMENT
The petitioner has filed this petition claiming compensation of Rs.15,00,000/ for the injuries sustained by him in the road traffic accident caused on 22.08.2020.
(SCCH3) 3 M.V.C.No.3118/20
02. The brief facts are as under: It is submitted that, on 22.08.2020 at about 04.15 p.m when the petitioner was proceeding on his Motor Cycle bearing No.KA05KA0565 along with his wife as a pillion rider from Managal to his Village, when they reached near Halasabele Village, Magadi - Huliyurdurga Road, at that time a Car bearing No. KA02ME2837 came from Huliyurdurga, driven by its driver with high speed, in rash and negligent manner and dashed against the petitioner from opposite side. Due to this, the petitioner fell down and he had sustained grievous injuries. Immediately after the accident he was shifted to Sri Dharmasthala Manjunatha hospital, Magadi and then he was shifted to Sanjay Gandhi hospital, Bengaluru and admitted as inpatient and has undergone surgery. The petitioner had spent more than Rs.2,00,000/ towards his medical and other expenses. The petitioner prior to accident was hale and healthy and was working as driver and earning Rs.25,000/ per month. Now he could not do his normal work. Due to the accident he cannot attend his work and suffered loss of earning and put to great financial hardship. The accident occurred due to the rash and negligent driving of Car (SCCH3) 4 M.V.C.No.3118/20 driver. Even a criminal case is registered against the said car driver. The respondent No.1 being the RC owner and the respondent No.2 being the insurer of the said car are jointly and severally liable to pay the compensation. Hence this petition.
03. After service of notice, the respondents No.1 and 2 have appeared before this Court through their counsels and filed written statement.
04. The averments of the written statement of the respondent No.1 is as under:
The accident occurred due to the negligence of petitioner only, but not due to the negligence of their Car driver and the petitioner who was riding the twowheeler without observing traffic rules, he himself fell down due to the sudden skid of his vehicle. The Car bearing No.KA02ME2837 was duly insured with respondent No.2 and the policy was valid as on the date of accident. Due to the negligence of the petitioner himself he had sustained injuries. The petitioner vehicle has not touched to the respondent No.1 car at any point of time. This respondent No.1 had took insurance from the respondent No.2 and it was in force as on the date of accident. Hence the question of paying compensation by this respondent does not arise at all. The claim made by the petitioner is excessive.
(SCCH3) 5 M.V.C.No.3118/20 Hence, this respondent is not liable to pay the compensation and prays to dismiss the petition.
06. The averments of the written statement of the respondent No.2 is as under:
This respondent has insured the Car bearing No.KA02ME2837 which is valid from 15.03.2020 to 14.03.2021, but liability is subject to terms and conditions of the policy. The car was not involved in this accident. The car driver did not possessed valid driving licence on the date of accident. The accident was not occurred due to the rash and negligent driving of car driver but due to the negligence of petitioner only. The respondent No.1 had not intimated about the accident. This respondent has denied manner of accident, age, avocation, income and expenses incurred by the petitioner. It is false that the petitioner due to the accident could not do any work. The petitioner has played fraud on this court. That in collusion with the police false case is registered. The petitioner had sustained injuries due to skid and fall.
The respondent No.1 has violated the terms of the policy. The accident occurred on account of use of two vehicles. Hence when two vehicles are involved then it must be composite negligence. The petitioner who was riding the motorcycle without holding driving licence (SCCH3) 6 M.V.C.No.3118/20 lost control and sustained injuries. The claim made by the petitioner is excessive. Hence, this respondent is not liable to pay the compensation and prays to dismiss the petition.
06. In order to prove the case, the petitioner, doctor and MRT were got examined as PW.1 to 3 and got marked 35 documents as Ex.P.1 to 35 and closed his side.
07. By way of rebuttal, the Legal Manager of the respondent No.2 got examined herself as RW.1, later the evidence got discarded on 07.12.2022. Again the same RW.1 was reexamined herself, the investigator and Chief Operating Officer got examined as RW.2 to 4 and got marked 4 documents as Ex.R.1 to 4 and closed their side.
08. Heard both sides. The respondent No.2 have filed written arguments.
09. Based on the aforesaid pleadings, the following issues have been framed by my learned predecessor: ISSUES
01.Whether the petitioner proves that he has sustained grievous injuries in the accident occurred on 22.08.2020 at about 04.15 p.m, on Magadi -
(SCCH3) 7 M.V.C.No.3118/20 Huliyurdurga Road, near Halasabele Village, Madbal Hobli, Magadi Taluk, Ramanagara, due to rash and negligent act of the driving of the Car bearing reg. No.KA02ME2837 by its driver as alleged in the petition?
02.Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
03.What Order or Award?
10. My findings on the aforesaid issues are as under: Issue No.1 In Affirmative Issue No.2 In partly affirmative Issue No.3 As per final order for the following:
REASONS
11. Issue No.1: It is the grievance of the petitioner that he had sustained grievous injuries due to the negligent driving of Car driver. Due to the accident he had sustained disability and put into hardship. The same was opposed by the respondents No.1 and 2 and contended that the accident did not took place due to negligent driving of car driver and (SCCH3) 8 M.V.C.No.3118/20 the petitioner had sustained injuries due to fell down due to sudden skid of his vehicle. Hence they are not liable to pay the compensation.
12. In order to prove this, the petitioner himself got examined as PW.1 by reiterating all the averments of the petition in his affidavit. In his crossexamination he has admitted that "On the date of accident I was proceeding from Halasabele towards Huliyurdurga. On that day myself and my wife were proceeding on the motorcycle. The car came from opposite direction. It is a tar road, I saw the car at around 50 feet distance. I was moving on left side of the road. It is true that as per Ex.P.6IMV report my vehicle suffered left front damage and car suffered no damages. I did not notice the car number on the date of accident. I was not knowing who was driving the car. I have not produced receipt of SDM hospital for making payment of bill. I have not produced any documents to show my avocation and income. I have not surrendered the licence saying that I cannot drive". The PW.1 had denied all other suggestions of the respondents No.1 and 2 counsels.
13. The PW.1 in support of the case had got marked entire police records as per Ex.P.1 to 9. On (SCCH3) 9 M.V.C.No.3118/20 perusal of these documents, it is clear that the concerned I.O after investigation has filed Charge sheet against the driver of offending Car for the alleged offences punishable U/s 279, 337, 338 of IPC. Further as per Ex.P.9 the I.O has contended that the petitioner has sustained injuries due to rash and negligent driving of driver of Car only.
14. Further the respondent No.2 in order to disprove the allegation of the petitioner got examined their Legal Manager as RW.1. Later her evidence is discarded and later she gave fresh evidence by filing another affidavit as RW.2 by reiterating all the averments of the written statement in her affidavit. The RW.1 in her cross examination has admitted that " We have not produced any documents before this court to show that the said Mahesh kumar H.L was appointed as investigator. That there is no appointment letter for appointing said Mahesh Kumar H.L. The report is not produced before this court. It is true that Ex.R.2 was not conducted by me. It is true that in the said CD the petitioner has not stated that he has not involved in this accident and not sustained any injuries in this accident. It is true that in Ex.P.8 and 9 the age of R.C owner is mentioned as 66 years. It is true that in (SCCH3) 10 M.V.C.No.3118/20 Ex.P.9 the son of respondent No.1 is arrayed as accused. It is true that in Ex.P.9 the age of son of RC owner is mentioned as 40 years. That based upon our investigator report I am stating that the RC owner has no driving licence and hence his son was charegesheeted as accused. That we have produced CD to show that the RC owner was driving the vehicle on the date of accident. It is true that in the complaint it is stated that the person who had caused the accident had took injured to the hospital. It is true that we have not verified the CD at Government lab as we had tested it in private lab". The RW.2 has denied all suggestions of petitioner counsel and contend that the car was not involved in this accident and even the RC, who was not holding driving licence was driving the vehicle but false chargesheet was filed against the son of RC owner.
15. The RW.1 and 2 had got marked Authentication report, CD, Scientific analyst report, Cover and as per Ex.R.1, 1(a), 2, 2(a) and 2(b). It is true that the Insurance Company have appointed the investigator without any authorization, letter or any documents. It is true that it is their internal investigation. But in order to consider their report it is very much required that the investigator appointed by (SCCH3) 11 M.V.C.No.3118/20 the Insurance Company has to carry out the investigation in accordance with law. Even the Insurance Company have not produced any documents to show that what made to appoint investigator and to record the CD.
16. Further the respondent No.2 got examined its Panel Investigator as RW.3 who had stated that he was entrusted with this investigation. Then he had collected all documents. After collecting documents he had contacted the petitioner. R.C owner and accused. The video conversation of the petitioner and accused were recorded wherein the petitioner had stated that a person aged about 60 years was driving the car and he was the owner of the said car. Then he had submitted the report.
17. In his crossexamination the RW.3 has admitted that "I have not produced any documents to show that I was appointed as investigator in this case. I have not gone through special training for the purpose of conducting the investigation. I have not undergone any training for the purpose of recording video. It is true that I have not produced any documents to show my experience for the purpose of recording video and to conduct investigation. I have no knowledge about (SCCH3) 12 M.V.C.No.3118/20 obtaining permission from IRDA before recording video. We have not obtained prior permission before recording video. It is true that in the said report I had stated that the accident due to the car bearing No.KA02ME2837. It is true that I have not shown the photo of RC owner and driver to the petitioner and suggested him as to who whether they were driving or not. It is true that I have not handed over the video to the Proaxis solution. I had handed over the CD. It is true that the said driver had given information about how accident occurred. It is true that he had also informed about admitting guilt and paying fine to the court. It is true that I had asked the driver to give written statement about the accident but he did not gave written statement. That I have only seen video before giving evidence and I had not heard the audio and not seen the transcription". The RW3 has got marked Authorization letter as per Ex.R.3 which is only with respect of giving evidence before this court.
18. Further the respondent No.2 got examined its Chief Operating Officer as RW.4 who had stated that the scientific analysis is forwarded and accordingly he had submitted the report. The RW4 has (SCCH3) 13 M.V.C.No.3118/20 got marked Audio transcription report and Cover as per Ex.R.4 and 4(a).
19. In his crossexamination the RW.4 has admitted that "It is true that in my affidavit I had stated that that I am working since 07 years. It is true that I had prepared the report. It is true that in Ex.R.2 and 4 audio transcription report it is stated that the report were prepared by one Prasad. It is true that if at all I had prepared the report I had signed to it. The insurance company have not given letter for which purpose the report is to be prepared. It is true that I have not produced any documents to show that we are capable of authentication of CD and transcription".
20. The petitioner further in order to prove his case has got examined the MRT as PW.3 who had produced the Police intimation, MLC extract and Admission record issued by/of Sri.Dharmasthala Manjunatha hospital, Magadi, Ramanagara District and got marked as per Ex.P.33 to 35 which states that the one Yogesha, the petitioner and his wife Shivamma were treated in their hospital for history of RTA between Car and twowheeler on 22.08.2020 near Halikatte at about 4.00 p.m. to 4.30 p.m. It is also stated that the injuries sustained by the petitioner and (SCCH3) 14 M.V.C.No.3118/20 he was treated for the said injuries as inpatient from 22.08.2020 to 27.08.2020.
21. Hence eventhough the respondent No.2 got examined RW.2 to 4 but their report and CD are not taken as proved beyond doubt. It is true that the said investigation or recording of audio/video is not in accordance with the rules of evidence. Simply producing the CD and transcription itself does not mean that it has to be considered. There is no document on behalf of the respondent No.2 to show that the RC owner without holding driving licence was driving the vehicle on the date of accident and not his son. Even the so called statement of the petitioner saying about the age of the person who had caused the accident is not proper. It is true that by seeing physical condition of any person his age cannot be determined.
22. The Ex.R.1 to 4 has to be corroborated with the police and medical records. There is no such documents on behalf of the respondents. The Ex.R.1 to 4 eventhough got marked cannot be taken as gospel truth against the petitioner to believe that the RC owner himself was driving the vehicle and caused the accident. The concerned I.O after due investigation has filed chargesheet against the son of the RC owner.
(SCCH3) 15 M.V.C.No.3118/20
23. So on perusal of these documents it is clear that the petitioner has sustained injuries due to hit by car. The respondent No.2 is not successful in proving their defence even after examining their officials. As per settled principle of law no conclusion can be arrived based upon one sentence or one document. So by taking consideration of all police and medical records the petitioner is successful in proving that he had sustained injuries only due the rash and negligent driving of driver of Car only i.e the son of the offending R.C owner. There is no supportive documents to show that the accident did not took place or it was not caused by the offending car driver but by the R.C owner himself.
24. Even the petitioner has marked mahazar as per Ex.P.4 and on perusal of these documents it is true that the accident took place on Magadi - Huliyurdurga Road near Kitturu Rani Chennamma Residential School. Even there are no documents on behalf of the respondent No.2 to show that the accident did not occurred. The Ex.P.6 IMV report shows no damages found to the offending Car and front left side corner body scratch to the petitioner's Motor Cycle. The respondent No.1 even after service of notice appeared before this court and filed written statement but kept (SCCH3) 16 M.V.C.No.3118/20 silent. Without challenging the chargesheet and not producing any cogent documents the respondents cannot contend that the concerned I.O have filed wrong chargesheet. Hence with the available documents on record and in absence of rebuttal evidence by the respondents, I am of opinion that the petitioner has proved that he had sustained injuries only due to the rash and negligent driving of Car driver. Hence I answered issue No.1 in affirmative.
25. Issue No.2: Further the petitioner has stated that due to the accident he is not able to do his earlier work and lost income. Further he has got examined Orthopaedic Surgeon as PW.2 who had got marked the OPD card, Xray along with report and Clinical notes as per Ex.P.29 to 31.
26. Further the PW.2 has stated that he had examined the petitioner and found diagnosed for right posterior wall acatabulum fracture, symphysis fracture and right zygomatic fractrure and condylar fracture mandible and he had underwent surgeries. The petitioner is having difficulty in walking, climbing stairs, C/o pain and difficulty in chewing hard good, H/o inability to squat and sit crossleg, H/o inability to drive Taxi. That on examination it is noticed that the (SCCH3) 17 M.V.C.No.3118/20 petitioner puffiness of right side of face and cheek is seen, walks with pain and limping, wasting of right lower limb is seen and surgical scars are seen over posterior aspect of right hip. The recent Xray shows united fracture posterior wall of right acetabulum with implants in situ and united fractures of maxilla and mandible with implants in situ.
27. The PW.2 has stated that the petitioner has total disability of pelvis and facio maxillary area at 42% and total disability to whole body at 21%. The PW.2 in his cross examination has admitted that " It is true that I had assess the disability based on wound certificate and discharge summary. It is true that at the time of examination the petitioner was subjected to radiological treatment as per Ex.P.30. As per the report of radiologist the fractures are united".
28. Hence, from the evidence of PW.2 and from Ex.P.29 to 31, the petitioner has sustained disability due to the accident but not as stated by the PW.2. The PW.2 has not considered the whole body disability into three which comes to 14%. Hence by looking into the recovery condition of the petitioner, I just feel it proper to consider the disability for the petitioner at 12%.
(SCCH3) 18 M.V.C.No.3118/20
29. Therefore, the petitioner is entitled for the compensation under the following heads:
a). Loss of future income: The PW.1 has not stated that he is working as car driver and earning Rs.25,000/ p.m. But to prove this the petitioner has not produced any income documents before this court. Hence under these circumstances it is just and proper to consider notional income. The accident took place in the year 2020 and the notional incomes comes to Rs.14,500/ per month.
Further the petitioner has stated that he was aged about 34 years at the time of accident. In this regard the PW.1 has got marked his Driving licence (02 in Nos.) and Aadhaar card as per Ex.P.26 to 28 which reveals that the PW.1 was born in the year 1986. Hence as per the said documents it is just and proper to consider the age of the petitioner as 34 years at the time of accident. Thereby proper multiplier comes to "16". Therefore, the petitioner is entitled for loss of future income as Rs.14,500 x 12 x 16 x 12/100 = Rs.3,34,080/ under this head.
b). Pain and sufferings during treatment period: The petitioner has stated that he was admitted in hospital as inpatient. In this regard he had (SCCH3) 19 M.V.C.No.3118/20 got marked the Discharge summaries of Sri Dharmasthala Manjunatha hospital and Sanjay Gandhi hospital as per Ex.P.10 to 12 which shows that the petitioner was admitted as inpatient from 22.08.2020 to 27.08.2020, from 27.08.2020 to 18.09.2020 and from 15.12.2020 to 19.12.2020. Hence under these circumstances, I just feel it proper to award Rs.30,000/ under this head.
c). Towards medical expenses: The petitioner has got marked prescriptions, entire medical bills and advance receipts as per Ex.P.14, 24 and 25 which amounts to Rs.71,584/. On perusal of Medical bills, it is noticed that the Sl.No.1 to 5 are the transportation charges bills for a sum of Rs.18,000/ which is with respect to treatment obtained for the accident. Hence it can be awarded. That the Sl.No.28 the amount is taken as Rs.975/ instead of Rs.475/, hence the difference amount of Rs.500/ has to be deducted. There is no serious dispute with regard to other medical bills produced and marked by the petitioner. Hence after deducting said amount, the petitioner is entitled for Rs.71,084/ under this head.
d). Loss of income during laid up period:-
Admittedly the PW.1 as per available records could not (SCCH3) 20 M.V.C.No.3118/20 do any work for more than 30 days after the accident. Hence, he is entitled for Rs.14,000/ under this head.
e). Loss of amenities and nutrition food:-
The PW.1 had not produced any documents to show that he had incurred amount towards amenities and nutritious food. But looking into the period of treatment and the nature of injuries, I just feel it proper to award a sum of Rs.10,000/ under this head.
f). Towards attendent charges and conveyance: The PW.1 was admitted as inpatient for nearly 31 days. In these days the petitioner has to look after by some body. Hence under these circumstances I just feel it proper to award a sum of Rs.31,000/ under this head.
g). Towards future medical expenses: The PW.2 had stated that the petitioner needs surgery for removal of implant with cost of Rs.30,000/. But in this regard no supportive documents were produced.
Hence under these circumstances I just feel it proper to award a sum of Rs.15,000/ under this head.
30. Therefore, the petitioner is entitled for total compensation of Rs.5,05,164/ (Five lakhs five thousand one hundred and sixty four only).
(SCCH3) 21 M.V.C.No.3118/20
31. Regarding liability: The petitioner has proved that he had sustained injuries only due to the rash and negligent driving of Car. The respondent No.2 has admitted issuance of policy to the said Car and its validity. The said vehicle is owned by the respondent No.1 and it is duly insured with the respondent No.2. Hence, both the respondents No.1 and 2 are jointly and severally liable to pay compensation to the petitioner. Hence, issue No.2 is answered in partly affirmative.
32. Issue No.3: In view of my findings on issues No.1 and 2 as above and with regard to awarding the interest is concerned, the petitioner is entitled for simple interest at the rate of 6% per annum from the date of petition till deposit. As such I proceed to pass the following: ORDER The claim petition filed by the petitioner U/Sec 166 of the M.V. Act is hereby allowed in part, with costs.
The petitioner is entitled for Rs.5,05,164/ (Five lakhs five thousand one hundred and sixty four only) as compensation with interest at 6% p.a. (the (SCCH3) 22 M.V.C.No.3118/20 interest awarded is not applicable to future medical expenses of Rs.15,000/) from the date of petition till the date of deposit.
The respondents No.1 and 2 are jointly and severally liable to pay the compensation to the petitioner. However, in view of valid insurance policy, respondent No.2 Insurance Company is directed to pay the total awarded amount and shall deposit the same within time stipulated under section 168(3) of M.V. Act.
Out of the share amount along with interest accrued, the entire amount shall be released to the petitioner through Epayment on proper identification without any further proceedings.
The advocate's fee is fixed at Rs.1,000/.
Draw award accordingly.
(Dictated to the Stenographer directly on computer, got typed by him, then corrected and pronounced by me in open court, on this the 15th day of April 2023).
(SHILPA.K.S) VII Addl. Judge and ACMM, Bengaluru.
(SCCH3) 23 M.V.C.No.3118/20
ANNEXURE
List of witnesses examined for the petitioner:
P.W.1 Yogesha
P.W.2 Dr.S.A.Somashekara
P.W.3 Shivaswamy.G.K
List of documents marked on behalf of the
petitioner:
Ex.P.1 Copy of FIR
Ex.P2 Copy of Complaint
Ex.P.3 Statement of PW.1
Ex.P.4 Copy of Spot Mahazar
Ex.P.5 Copy of Wound certificate
Ex.P.6 Copy of IMV report
Ex.P.7 133 Notice
Ex.P.8 Reply to 133 notice
Ex.P.9 Copy of Charge sheet
Ex.P.10 Discharge summary issued by Manjunath
hospital
Ex.P.11 Discharge summaries issued by Sanjay
& 12 Gandhi hospital (02 in Nos.)
Ex.P.13 One Outpatient record
Ex.P.14 Prescriptions (02 in Nos.)
Ex.P.15 One Outpatient record
Ex.P.16 ICMR record form
Ex.P.17 Outpatient records (03 in Nos.)
Ex.P.18 Referral letter issued by Manjunatha
hospital
Ex.P.19 Prescriptions of SDM hospital
Ex.P.20 Hematology report
Ex.P.21 Biochemistry report
Ex.P.22 CT brain report
Ex.P.23 CT pelvis report
Ex.P.24 Medical bills (42 in Nos.) for Rs.71,584/
(SCCH3) 24 M.V.C.No.3118/20
Ex.P.25 Advance receipts (02 in Nos.)
Ex.P.26 Notarised copy of driving license of PW1 (02
& 27 in Nos.)
Ex.P.28 Notarised copy of Aadhaar card of PW.1
Ex.P.29 OPD card
Ex.P.30 Xray along with report
Ex.P.31 Clinical notes
Ex.P.32 Authorization letter
Ex.P.33 Copy of Police intimation
Ex.P.34 Copy of MLC extract
Ex.P.35 Admission record
List of witnesses examined for the Respondents:
R.W.1 Ashwini.J (discarded)
R.W.2 Ashwini.J
R.W.3 Mahesh Kumar.H.L
R.W.4 Senthil Kumar.C.S
List of documents marked on behalf of the
Respondents:
Ex.R.1 Authentication report
Ex.R.1(a) CD
Ex.R.2 Scientific analyst report
Ex.R.2(a) Cover
Ex.R.2(b) CD
Ex.R.3 Authorization letter
Ex.R.4 Audio transcription report
Ex.R.4(a) Cover
(SHILPA.K.S)
VII Addl. Judge and ACMM,
Bengaluru.