Bangalore District Court
Sri.Ashok Yadav vs Sri.Vishnu S on 5 August, 2022
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
Court of Small Causes, Bengaluru
DATED THIS THE 05th DAY OF AUGUST 2022
PRESENT: SMT.SHILPA K.S ( BAL, LLB)
VII Addl. SCJ and ACMM,
Member, MACT3, Bengaluru.
M.V.C.No.313/2021
Petitioner : Sri.Ashok Yadav
S/o Satyavir Singh Yadav,
Aged about 36 years,
SMQP 142, 6th CAMP,
AIR Force Quarters,
Jalahalli East,
Bengaluru560 014.
Permanent Address:
H.No.455, Nangal Sirohi,
Nangal Serohi (104)
Nangal Serohi, Mahendragarh,
Haryana123 028.
(By Sri.Naveen Chandra Shetty,
Advocate)
Vs
Respondents : 01.Sri.Vishnu S.
S/o Suresh H,
No.18, 2nd Cross,
2nd Main,
Chikkadevasandra,
K.R. Puraam,
(SCCH3) 2 MVC.No.313/2021
Bengaluru560 036.
(By Sri.A.John Bosco, Advocate )
02. Legal Manager,
Liberty General Insurance Limited,
No.21/15, 4th Floor,
M.G. Road,
Near Trinity Metro Station,
Bangalore560 001.
(By Sri.Muralidhar Negavar, Advocate)
*******
JUDGMENT
The petitioner has filed this petition claiming compensation of Rs.2,00,00,000/ for the injuries sustained by him in the road traffic accident caused on 07.06.2020.
02. The brief facts are as under: It is submitted that, on 07.06.2020 at about 06.15 a.m when the petitioner was proceeding as pedestrian with his Colleague Vikram Kumar Ray, from 6th Camp Air Force Residential Camp towards Air force station area, at that time the rider of Royal Enfield Motor cycle bearing registration No. KA53HC2008 rode his vehicle in rash and negligent manner and without following traffic rules and (SCCH3) 3 MVC.No.313/2021 regulation dashed to the petitioner. Due to this the petitioner fell down on stone which was lying on road and sustained grievous injuries and become unconscious. The another pedestrian was also injured. Immediately after the accident the petitioner was shifted to Commando Hospital, Air force Bengaluru and admitted as inpatient from 07.06.2020 to 20.06.2020 and also undertaken follow up treatment. The petitioner was admitted again for traumatic closed head injury with fracture zygomatic complex on left eye from 20.07.2020 to 25.07.2020. The petitioner had spent more than Rs.7,975/ towards medical and other expenses. The petitioner prior to accident was hale and healthy and was working as Warrior in Airforce Complex, Jalahalli and earning Rs.60,000/ p.m. Due to the accident the petitioner is not able to work as earlier. The petitioner had lost 18 years of service from Air warrior and promotions. Due to the accident the department have not renewed his work after completion of 20 years of service because of permanent disability. Hence the petitioner has lost his income for 17 years. The accident occurred due to the rash and negligent driving of rider of motorcycle. Even a criminal case is registered against the said (SCCH3) 4 MVC.No.313/2021 motorcycle rider. The respondent No.1 being owner and respondent No.2 being insurer of the said vehicle are jointly and severally liable to pay the compensation. Hence this petition.
03. After service of notice, the respondents have appeared before this Court through their counsel and filed written statement.
04. The averments of the written statement of the respondent No.1 is as under :
That the petition is not maintainable as per law. This respondent denied the manner of accident, age, address, income and loss of income of the petitioner. That on 07.06.2020 at about 06.15 a.m near Airforce station, Jalahalli the petitioner without following the norms of traffic rules was walking on the edge of the footpath without looking that there was a water sideway and lost balance and fill on the vehicle driven by respondent No.1 and caused injury to himself and to the respondent No.1. Hence the petitioner has sustained injuries due to the contributory negligence and this respondent has not caused the accident. The petitioner had the beneficiary treatment at Commando hospital. That the petitioner had filed this petition for formal claim and also filed false complaint. The (SCCH3) 5 MVC.No.313/2021 motorcycle of this respondent is insured with the respondent No.2 which is valid from 22.06.2019 to 21.06.2025. The respondent No.1 is having valid driving license on the alleged date of accident. Hence the respondent No.2 is liable to pay compensation. The accident occurred due to the negligence of the petitioner and hence he is not entitled for the compensation and prays to dismiss the petition with costs.
05. The averments of the written statement of the respondent No.2 is as under :
It is true that this respondent had issued policy in the name of the respondent No.1 but liability is subject to terms and conditions of the policy. A false complaint is lodged by twisting the real facts in order to have wrongful gain. The Royal Enfield vehicle rider did not possess valid and effective driving license and hence this respondent is not liable to pay the compensation. The claim of the petitioner is very excessive. This respondent denied the manner of accident, age, address, income and loss of income of the petitioner. Hence, this respondent is not liable to pay the compensation and prays to dismiss the petition.
(SCCH3) 6 MVC.No.313/2021
06. In order to prove the case, the petitioner got examined himself and other two witnesses as Pw.1 to 3 and got marked 28 documents as Ex.P.1 to 28 and closed his side.
07. By way of rebuttal, the legal manager of the respondent No.2 was got examined as Rw.1 and got marked 4 documents as Ex.R.1 to Ex.R.4(a) and closed their side.
08. Heard both sides.
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 07.06.2020 at about 6.15 a.m., on forest road, near Air Force station, Jalahalli, beside Air Force station Jalahalli, Bengaluru, due to rash and negligent act of the riding of the motorcycle bearing registration No. KA53HC2008 by its rider as alleged in the petition?
02. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
(SCCH3) 7 MVC.No.313/2021
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 rash and negligent driving of Royal Enfield rider.
Due to the accident he had sustained disability and put into hardship. The same was opposed by the respondents and contended that the accident did not took place due to the negligence of motor cycle rider, but due to the negligence of petitioner only.
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 on the duty at Abbigere road. Accident occurred when I was on duty. The accident took place on the civil road (SCCH3) 8 MVC.No.313/2021 inside the air force area. I am entrusted with security work to look after boundaries. The offending vehicle came from behind. It is true that there is no cross road towards the left side of the road where the accident took place. It is true that the treatment given at Commando hospital is free of cost. I went to other hospital for getting the second opinion. There was no reference from the commando hospital to got to other hospital. I went to other hospital to clarify myself about the treatment given". The PW.1 had denied his negligence for the accident and other suggestions of the respondents counsel.
13. The Pw.1 in support of the case had got marked entire police records as per Ex.P.1 to 11. On perusal of Ex.P.1 to 11, it is clear that the concerned I.O after investigation has filed Charge sheet against the motor cycle rider for the alleged offences punishable U/s 279, 338 of IPC and U/s 177, 3(1), 181 of IMV Act and U/s 230(A) of Karnataka motor vehicle rules.
14. Further the petitioner in order to prove the accident has got examined one of the witness as PW.2 who had stated that on 07.06.2020 when the petitioner was inspecting the compound wall (SCCH3) 9 MVC.No.313/2021 surrounding Airforce area the rider of the motorcycle came in rash and negligent manner and dashed to the petitioner from back side. Due to this the petitioner fell down and sustained injuries. The petitioner is not able to visualise.
15. In his cross examination the PW.2 has admitted that "I am not the eye witness to the accident. I am aware of the line of treatment given to the petitioner".
16. Per contra legal manager of the respondent No.2 was got examined himself as RW.1 by reiterating all the averments of the written statement in his affidavit. In his cross examination the RW.1 has admitted that "It is true that we have issued policy with respect to vehicle bearing No.KA53HCV2008. It is true that at the time of accident the said policy is valid subject to terms and conditions. It is true that o 07.06.2020 at about 06.50 a.m the aforesaid vehicle had dashed to the petitioner as per the police records. We do not have any document to show that this petition is filed in collusion with the respondent No.1. We have not challenged the chargesheet filed against respondent No.1 as we are not party to it. It is true that the chargesheet is filed against the respondent (SCCH3) 10 MVC.No.313/2021 No.1. I had not produced any document to show that the accident took place on road, but the spot sketch itself shows that the accident took place on road ". The RW.1 had denied all other suggestions of the petitioner counsel.
17. Further the RW.1 has got marked the copy of policy marked as Ex.R.1 which is not under dispute as on the date of accident the policy issued in the name of the respondent No.1 was valid. The Ex.R.2 to 4 are the office copy of notice issued to the respondent No.1, postal receipt and unserved postal cover. The respondent No.1 who had appeared before this court and filed written statement did not object for non service of the notice to him issued by the respondent No.2.
18. Thereby the respondent No.2 is not successful in proving that the accident occurred due to the negligence of the petitioner also or no accident occurred. The respondent No.1 who had contended that there is negligence of the petitioner to the accident in his written statement did not produced any supportive oral and documentary evidence on his behalf.
(SCCH3) 11 MVC.No.313/2021
19. Therefore as per the said chargesheet the concerned I.O had filed case against the respondent No.1 for the reason that the accident caused due to his negligence and even the rider of the motorcycle did not hold valid driving license on the date of accident.
20. Therefore from the above findings and with the available documents on record it is clear that the petitioner has proved that he had sustained injuries only due to the rash and negligent driving of rider of motorcycle. The respondents are not successful in proving that the accident occurred due to the negligence of the petitioner. Hence, I answered issue No.1 in affirmative.
21. Issue No.2: Further the petitioner has stated that due to the accident he is not able to do work as earlier and sustained disability. In this regard he has got examined the doctor as PW.3 who had stated that on examination of the petitioner he had left ecchymosis around left eye ball with swollen left eye lid with small laceration over forehead and blood in both nostril. NCCT brain and cervical spine shown left orbital bone and zygomatic bone fracture with left eye lid swelling. The petitioner was evaluated by Ophthalmologist and found to have subconjunctival (SCCH3) 12 MVC.No.313/2021 haemorrhage left eye and initial distant vision in left eye 6/36 and right eye 6/6 with RAPD grade II, diagnosed as traumatic optic neuropathy left eye.
22. In his cross examination the PW.3 has admitted that " I have consulted the treated doctor before issuance of disability certificate. I had obtained oral opinion from the treated doctor. The petitioner is having Gloscow coma scale is 14/15. It is true that normally the infra orbital parasthesia is nerve injury. In the discharge summary the nerve injury is not mentioned. But the treated doctor has mentioned it in the case sheet of the petitioner. The petitioner has sustained super facial nerve injury and there is no specific treatment for this injury. The injury might be recovered later. I do not have any record to show that there was impact on the occupation of the petitioner".
23. The PW.2 had got marked the admission form, MLC extract, health declaration form, case sheet and discharge summary of the petitioner as per Ex.P.24 to 28.
24. So as per the Ex.P.24 to 28 and oral evidence of PW.3 it is true that no nerve injury is sustained by the petitioner but he had sustained injury over his left eye. During discharge of the (SCCH3) 13 MVC.No.313/2021 petitioner the PW.3 had assessed the vision of left eye 6/18 (improved) and right eye 6/6. The vision is improved with distant vision left eye. Even the clinical assessment report discloses that there is review/recat and offers no fresh complaints. So it shows that there is improvement in the vision of the petitioner.
25. The petitioner has blurred vision and sub conjunctival haemorrhage left eye which is also termed as SCH which is a condition of eye by the collection of the blood. It is commonly associated with acute redness of eyes and is painless without any signs of acute inflammation of conjunctive.
26. Further the PW.1 had relied upon Ex.P.19 manual of Medical Examinations and Medical Boards which says that for extension of service of any army officer will be brought before medical board and the documentation shall be carried out. The said Medical board will certify the fitness to perform duties of his trade with restrictions specified by the Medical Board. Hence relying upon Ex.P.19 the PW.1 is stating that he had lost 17 years service as his term will not be extended with the present disability. It is true that the Ex.P.19 are the norms followed for extension of service of the petitioner. But as per the oral evidence of PW.3 (SCCH3) 14 MVC.No.313/2021 and Ex.P.24 to 28 it is also true that the condition of the petitioner are improving. So the extension of service of the petitioner which will be made in the year 2023 cannot be presumed as not extended at this stage. Hence the petitioner is not successful in proving that his service will not be extended after 2023 as per Ex.P.19. Hence from these documents it cannot be considered that there is total and permanent disability and the condition of the petitioner will be improved in future. Hence under these circumstances, I just feel it proper to fix 10% disability for the petitioner. Hence the petitioner is entitled for the compensation under the following heads: a. Towards loss of future income Further the salary slip for the month of February 2021 is marked as Ex.P.16 which is not under dispute. Therefore the gross pay of the petitioner as per Ex.P.16 is Rs.62,478/ p.m. The petitioner has not produced any documents to show his age. Hence I just feel it proper to consider the age mentioned in the discharge summary marked at Ex.P.13. As per Ex.P.13 the age of the petitioner as on the date of accident was 36 years. Hence the applicable multiplier is '15'. Thereby the (SCCH3) 15 MVC.No.313/2021 petitioner is entitled for Rs.62,478 x 12 x 15 x 10/100 = Rs.11,24,604/ under this head.
b). Pain and sufferings during treatment period : The petitioner was got admitted to the hospital as inpatient from 20.07.2020 to 25.07.2020, 07.06.2020 to 20.06.2020, 20.07.2020 to 25.07.2020, 25.07.2020 to 25.07.2020. Apart from the discharge summary the petitioner had not produced any other documents. Therefore as per Ex.P.12 to 14 i just feel it proper to award Rs.35,000/ under this head.
c). Towards medical expenses : The petitioner got marked entire medical bills as per Ex.P.15. The respondent No.2 has not disputed in this regard. It is true that in the Commando hospital free treatment was given but in order to get second opinion the petitioner had took treatment in another hospital. Hence the petitioner is entitled for Rs.14,376/ under this head.
d). Loss of income during laid up period:-
Admittedly the Pw.1 as per available records the petitioner was admitted to hospital as inpatient for nearly one month. Eventhough he had applied for leave but there is no salary deduction. Hence I just feel (SCCH3) 16 MVC.No.313/2021 it proper to award a sum of Rs.30,000/ 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.25,000/ under this head.
f). Towards attendant charges and conveyance: The Pw.1 has not produced any documents to show that he had appointed an
attendent to look after him in the hospital. But looking into the period of hospitalisation I just feel it proper to award a sum of Rs.30,000/ under this head.
g). Towards future medical expenses - The PW.2 and 3 have not stated anything with regard to future medical treatment and hence I found no ground to award any amount under this head.
27. Therefore, the petitioner is entitled for total compensation of Rs.12,58,980/ (Twelve lakhs fifty eight thousand nine hundred and eighty only).
28. Regarding liability: The respondents failed to prove their defence. The respondent No.2 has admit (SCCH3) 17 MVC.No.313/2021 the policy and it is in force on the date of accident. But as per the oral evidence of Rw.1 and police records it is clear that the rider of the insured vehicle which caused the accident has no valid driving licence. Hence the respondent No.1 being the RC owner had violated the terms of the policy. But this is not a ground to exonerate the liability fastened on the respondent No.2.
29. The counsel for petitioner has relied upon decisions reported in a. (2018) 9 SCC 650 - Shamanna V/s Divisional Manager, Oriental Insurance company Ltd., It is observed that when the victim is third party then the insurer has to fulfill the award and then can recover it from the owner.
b. Civil appeal No. 6902/21 - Kurvan Ansari V/s Shyam Kishore Murmu - It is observed that the entire compensation shall be paid to the claimants as it is open for the insurance company to recover it from the owner when the driver not possessed valid driving licence.
c. MFA.8422/2018 - Tulasi Ramesh V/s Regional Manager, United India Insurance company (SCCH3) 18 MVC.No.313/2021 Ltd., It is observed that insure is liable to indemnify the owner of the offending vehicle.
30. The counsel for respondent No.2 has relied upon decisions reported in a. MFA.No.100226/16 - It is observed that the owner is liable to pay the compensation.
b. Civil appeal No.72207221/21 - Beli ram V/s Rajinder kumar - It is observed that the tribunal can direct the insurer to pay and then to recover.
c. 2018(1) KLJ 249 - The Oriental insurance company Ltd., V/s Annemma It is observed that when there is clear breach of term of contract with the insurer, no order can be passed against the insurance company to satisfy the third party.
d. MFA.No.30931/13 - Sanjeev V/s Raju - It is observed that when the petitioner had not produced any documents to establish termination of service/reduction of salary then he is not entitled for loss of future earning.
e. ILR 2010 Kar 2439 - Subhash V/s New India Assurance Company Ltd., It is observed that the tribunal was grossly erred in awarding compensation towards loss of future income when the petitioner continued in service.
(SCCH3) 19 MVC.No.313/2021
f. MFA.No.2854/2000 - United India
Insurance company Ltd., V/s D.C.Rajanna - It is observed that there must be evidence to show that due to the accident there is loss of income or reduction of income.
31. It is pertinent to note that the counsel for respondent No.2 have reproduced the citations reported in MFA.4716/11 and MFA.No.1929/2005 which states that when the driver is charges U/s 3 of IMV Act it has to be presumed that the driver has no D.L ( But not produced the hard copies before this court).
32. At this juncture I would like to rely upon decisions reported in a. 2019 ACJ 713 - Gurmail singh V/s Bajaj Allianz General insurance Co., Ltd., It is observed that the insurance company has to satisfy the award and then to recover the same from the owner.
b. National insurance company V/s Swaran Singh - (2004) 3 SCC 297 - It is observed that when there is no valid driving licence in order to protect the rights of the claimants it is just and proper to ask the insurance company to deposit the amount. The (SCCH3) 20 MVC.No.313/2021 recovery of the same from the owner of the vehicle. ( This is also relied by the counsel for petitioner) c. Pappu V/s Vinod kumar lamba (2018) 3 SCC 208 - It is observed that when there is no driving licence the insurer has to pay compensation to claimants with liberty to recover it from the owner. ( This is also relied by the counsel for petitioner) d. New India Assurance company V/s Yallavva 2020(2) KCCR 1405 - It is observed that the insurer is liable to pay to the third party and recover from the insured even if there is breach of any conditions.
33. So in my opinion the decisions relied by this court are the decisions rendered by the larger bench and hence the decisions relied by this court will have more binding. Therefore under these circumstances I just feel it proper for the fault committed by the rider of the motorcycle by riding it in rash and negligent manner and caused injuries without holding driving licence the petitioner cannot be made to suffer. As this is a beneficial legislation I am of opinion that as on the date of accident as the policy was valid the respondent No.2 shall pay the compensation to the petitioner and then to recover it from the respondent No.1. Hence in the instant case looking into the facts and (SCCH3) 21 MVC.No.313/2021 circumstances of case the insurance company is liable to pay the compensation eventhough there the rider of motorcycle did not possessed valid driving licence. But the insurance company i.e respondent No.2 has to pay the compensation to the petitioner and then to recover the same from the respondent No.1. Hence I answered the issue No.2 in partly affirmative.
34. 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.12,58,980/ (Twelve lakhs fifty eight thousand nine hundred and eighty only) as compensation with interest at 6% p.a from the date of petition till the date of deposit.
(SCCH3) 22 MVC.No.313/2021
Respondent No.1 is 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 and thereafter recover it from respondent No.1.
On deposit of the compensation amount together with interest, 40% of the amount shall be deposited in the name of petitioner in any nationalized or schedule bank of his choice for a period of three years and the remaining 60% amount shall be released to him through Epayment on proper identification without any further proceedings. However, he is at liberty to withdraw the periodical interest accrued on his deposit amount from time to time.
The advocate's fee is fixed at Rs.1,00000.
Draw award accordingly.
(Dictated to the Stenographer directly on computer, got typed by her, then corrected and pronounced by me in open court, on this the 05th day of August 2022).
(SHILPA.K.S) VII Addl. Judge and ACMM, Bengaluru.
(SCCH3) 23 MVC.No.313/2021
ANNEXURE
List of witnesses examined for the petitioner:
P.W.1 Ashok Yadav
P.W.2 Anil Kumar
P.W.3 Surgeon Lieutenant Commander Ajin
Anto AK
List of documents marked on behalf of the petitioner :
Ex.P.1 Copy of FIR
Ex.P.2 Cop of MLC report
Ex.P.3 Copy of Charge sheet
Ex.P.4 Statement of Vikram Kumar
Ex.P.5 Statement of PW1
Ex.P.6 133 notice
Ex.P.7 Reply to 133 notice
Ex.P.8 Copy of Wound certificate
Ex.P.9 Copy of IMV report
Ex.P.10 Copy of spot mahzar
Ex.P.11 Copy of spot sketch
Ex.P.12 Discharge slip
Ex.P.13 Discharge summary issued of Command
Hospital, Air Force, Bengaluru
Ex.P.14 SMC discharge slip
Ex.P.15 Medical bills
Ex.P.16 Salary Slip for the month of February 2021
Ex.P.17 Medical case sheet
Ex.P.18 Employment certificate
Ex.P.19 Manual of Medical examination
Ex.P.20 Xray
Ex.P.21 Photographs along with CD
Ex.P.22 Prescriptions
Ex.P.23 Clinical assessment
Ex.P.24 Admission form
Ex.P.25 MLC extract from Commando Hospital
(SCCH3) 24 MVC.No.313/2021
Ex.P.26 Health declaration form
Ex.P.27 Case sheet
Ex.P.28 Discharge summaries
List of witnesses examined for the Respondents:
RW.1 Sandeep S.K. List of documents marked on behalf of the Respondents:
Ex.R.1 Copy of policy
Ex.R.2 Office copy of legal notice dated
26.11.2020
Ex.R.3 Postal receipt
Ex.R.4 Copy of legal notice
Ex.R.4(a) Unserved postal cover
(SHILPA.K.S)
VII Addl. Judge and ACMM,
Bengaluru.