Bangalore District Court
Ayush Kumar vs Ravi.C S/O Chandrappa on 29 April, 2019
BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL
& XV ADDL. JUDGE, Mayo Hall Unit, Bengaluru.
(SCCH- 19)
Dated this the 29th day of April 2019
Present: Sri. DYAVAPPA. S.B.,
B.A., LL.B.,
XV Addl. Small Causes Judge &
XXIII A.C.M.M., Member, M.A.C.T.,
Bengaluru.
MVC No.1305/ 2018
Petitioner : Ayush Kumar
S/o Deepak Sharma,
Aged about 9 years,
Residing at No.18/4,
Near Ganesha Temple,
Myalsandra, Bangalore.
(Since petitioner is minor Rep by
his father and natural guardian
Deepak Sharma
S/o Sri Ram Sevak Sharma,
Aged about 37 years)
(Pleader by Sri.Subramani.M.)
V/s
Respondents: 1. Ravi.C S/o Chandrappa,
No.286, 1st Block,
10th Cross, Vishwapriya Nagara,
Begur Road, Bangalore.
(Owner of the Car bearing
Reg.No.KA-51-D-4743)
(Exparte)
2 SCCH - 19
MVC.No.1305 /2018
2. United India insurance co ltd.,
TP-HUB, No.18, krushibhavan,
6th floor, Nrupathunga road,
Opp. Hudson circle, Bangalore-01.
(Policy No.0718843117P105777457
Valid from 19.07.2017 to 18.07.2018)
(By pleader Sri.R.S.Srikantareddy)
*****
JUDGMENT
The Guardian of the Minor Petitioner has filed this petition under Sec.166 of Motor Vehicles Act 1989 for claiming the compensation amount of Rs.15,00,000/-.
2. The brief facts of the Petitioner's case are as under:
According to the Petitioner that, on 01.01.2018 at about 09.30 P.M the minor petitioner was traveling in a Auto-rickshaw bearing Reg.No.KA-01-AE-5064 along with three elders, the said auto was driven by one Mr.Ravikumar slow and cautiously when they reached near hallo block factory, Hommadevanahalli main road at that time one Toyota Etios Car bearing Reg.No:KA-51/D- 4743 driven by its driver in a rash and negligent manner
3 SCCH - 19 MVC.No.1305 /2018 came from opposite direction to the extreme right side of the road and dashed against the petitioner's auto- rickshaw. As a result of forced impact petitioner and other inmates of the autorickshaw fell down and sustained grievous injuries. Immediately after the accident petitioner was shifted to Vinayaka Hospital for first aid, then shifted to NIMHANS and further referred to VIMS hospital wherein he was treated as inpatient and spent more than Rs.2,00,000 towards medical conveyance, nourishment, food, transport and other charges.
3. It is further stated that, Prior to the date of accident the petitioner was hale, healthy and was aged about 9 years and was 4th standard Preethidhama English Medium school, Begur Road, Bengaluru. Due to the injuries sustained in the said accident he cannot go to school and had lost the classes and he is not able to lead a normal life as earlier and the petitioner is undergoing deep mental shock severe pain and sufferings since the injuries caused are permanent in nature. It is further stated that, the accident occurred due to rash and negligent driving of the driver of the Toyota Etios Car bearing Reg.No:KA-51/D-4743, hence the Hulimavu 4 SCCH - 19 MVC.No.1305 /2018 Traffic police have registered a criminal case in their crime No.1/18, for the offence punishable under section 279 and 338 of IPC. It is further stated that, the Respondent No.1 is the owner and the Respondent No.2 is the Insurer of the Toyota Etios Car bearing Reg.No:KA- 51/D-4743 are jointly and severally liable to pay compensation to the petitioner. Hence, Petitioner prayed to grant compensation.
4. After Service of notice, Respondent No.1 did not appear before the tribunal and hence placed exparte. However the Respondent No.2 appeared through their Counsel and filed Written Statement.
5. Brief averments of the written statement of Respondent No.2 as under:
The Petition filed by the Petitioner is not maintainable either in law or on facts of the case and denied the entire averments of the Petition. Further this Respondent while admitting about issuance of Insurance policy in respect of Toyota Etios Car bearing Reg.No:KA- 51/D-4743, restricted its liability to the terms and conditions of the policy. Further stated that, driver of 5 SCCH - 19 MVC.No.1305 /2018 Toyota Etios Car bearing Reg.No.KA-51/D-4743 does not posses valid and effective D.L. and also its owner does not posses valid and effective FC and permit to the said vehicle as on the date of accident. Further taken contention that as on the date of the accident the driver of the offending vehicle was consumed alcohol and hence there is a violation of terms and conditions of the policy.
Further this Respondent has taken specific contention that the driver of the Auto-rickshaw bearing Reg.No.KA- 01-AE-5064 did not posses valid and effective D.L. as on the date of the accident and the accident occurred due to rash and negligent driving of the driver of the said auto rickshaw. Hence the Petition is bad for non joinder of necessary parties. Further, this Respondent has denied the age, loss of education of the petitioner and medical expenses incurred by him and disability caused to him. It is further stated that, claim of the petitioner is excessive and exorbitant. Hence, prayed to dismiss the petition with costs.
6. Based on the above pleadings, this Tribunal has framed the following:
6 SCCH - 19 MVC.No.1305 /2018 ISSUES
1. Whether the Guardian of Minor Petitioner proves that on 01-01-2018 at about 9-30 p.m. when the Petitioner was traveling in a Auto Rickshaw bearing No.KA-01/AE-5064 along with three elders driven by one Mr.Ravikumar slowly and cautiously on Hommadenahalli main road, when they reached near Hallo Block factory, at that time, one Toyota Etios Car bearing Reg.No.KA-51/D-4743 driven by its driver in a rash and negligent manner, so as to endanger human life, came from opposite direction to the extreme right side of the road, and dashed against the Petitioner's Auto rickshaw. As a result of forced impact, the Petitioner fell down and sustained grievous injuries?
2. Whether the petitioner is entitled for compensation? If so, how much and from whom?
3. What order or award?
7. In order to prove the case, petitioner side two witnesses examined as Pw.1 and 2 and produced in all 14 documents marked as Ex.P1 to 14. On the other hand, Respondent No.2 side examined two witness as Rw.1 and 2, they have produced in all three documents marked as Ex.R1 to 3.
7 SCCH - 19 MVC.No.1305 /2018
8. Heard arguments of both side and perused the materials available on hand.
9. For the following reasons, I given the answer to the above Issues as under:-
Issue No.1: In the Affirmative,
Issue No.2: In the Partly Affirmative
Issue No.3: As per final order
for the following:
REASONS
10. ISSUE No.1: It is specific case of the Petitioner
that, on 01-01-2018 at about 9-30 p.m. when the Minor Petitioner was traveling in a Auto Rickshaw bearing No.KA- 01/AE-5064 along with three elders on Hommadenahalli main road, when they reached near Hallo Block factory, at that time, driver of one Toyota Etios Car bearing Reg.No.KA- 51/D-4743 drove the same in a rash and negligent manner, so as to endanger human life, came from opposite direction to the extreme right side of the road and dashed against the Petitioner's Auto rickshaw. As a result of forced impact, the Petitioner fell down and sustained grievous injuries, hence they prays for grant the compensation. In the written statement Respondent No.2 has denied the accident and also taken the contention that driver of Toyota Etios Car bearing Reg.No.KA-51/D-4743 does not posses valid and 8 SCCH - 19 MVC.No.1305 /2018 effective D.L. and also its owner does not posses valid and effective FC and permit to the said vehicle as on the date of accident and also taken contention that as on the date of the accident driver of said offending vehicle was under the influence of alcohol, hence there is a violation of terms and conditions of the policy.
11. The Guardian of the Minor petitioner Sri.Deepak Sharma examined himself as PW.1 and filed the affidavit in lieu of chief examination. In his chief affidavit, he has repeated the averments of the petition and produced the copy of the FIR and Complaint marked as Ex.P.1 and P.2, produced Copy of Spot Mahazar and Copy of Spot sketch marked as Ex.P.3 and P.4, produced Copy of IMV report and Copy of wound certificate marked as Ex.P.5 and P.6, produced copy of Police Notice and Reply marked as Ex.P7 and 8, produced Copy of Charge sheet marked as Ex.P.9, produced Copy of Discharge summary marked as Ex.P.10, produced one Notarized copy of Aadhaar card marked as Ex.P.11, produced one hospital bill marked as Ex.P.12. In the cross examination the Respondent counsel specifically suggesting that the driver of the auto rickshaw was drive 9 SCCH - 19 MVC.No.1305 /2018 the same in a rash and negligent manner with high speed and himself has dashed to the Car, but same is denied.
12. One witness Sri.Loganathan is the M.R.D of VIMS specialty Hospital examined as PW.2. In his chief exam he has produced one Authorization letter marked and one Inpatient record marked as Ex.P.13 and 14. In the cross examination nothing has been eliciting about the denial of treatment taken as inpatient.
13. The Respondent No.2 side one witness Miss. Savitha the Administration Officer examined as RW.1 and filed the affidavit in lieu of chief examination. In her chief affidavit, she has repeated the averments of the Written statement and produced the copy of one authorization letter, produced Insurance policy and also copy of Charge sheet. In the cross examination admitting that the insurance policy was valid as on the date of the accident to prove the alcohol not produced any lab report.
14. Another one witness Sri.Gurunanjaiah, the A.S.I of Parappana Agrahara Police station examined as Rw.2. He has deposed that after received the intimation they were visited the spot and seized the vehicles and testing the 10 SCCH - 19 MVC.No.1305 /2018 driver of the cab through Alco meter and confirmed that he was under the influence of alcohol, hence issued the notice to the said driver. In the cross examination admitting that after testing in the Alco meter not conducting any medical examination and also admitting that after completion of the investigation the Charge sheet was filed.
15. I have perused the documents produced by the petitioner it appears that the Hulimavu Traffic Police have registered the Criminal Case in Crime No.1/2018 against the driver of the Toyota Etios Car bearing Reg.No.KA-51/D-4743 for the offence punishable U/Sec. 279, 337 of IPC on the basis of the complaint lodged by the father of the Petitioner. After submitting the FIR, the police have conducting the Spot Mahazar and prepared the sketch of the accident took place and also seized the vehicle. After received the IMV report and wound certificate and also after completion of the investigation, the I.O has submitted the charge sheet against the driver of the offending vehicle for the offence published U/sec. 279, 338 of IPC.
11 SCCH - 19 MVC.No.1305 /2018
16. I have perused the mahazar and rough sketch of the accident took place it disclosed that, the Auto rickshaw was proceeding on left side of the road towards Mylasandra and the offending vehicle was also came from opposite side on the left side of the road and the driver was took the vehicle on right side and dashed to the Auto rickshaw. Therefore it is clear that the driver of the offending vehicle was not observed the Auto rickshaw and without controlling his vehicle as dashed the Auto rickshaw. It is pertain to note that respondents have not examined the driver of the offending vehicle, hence an adverse inference can be drawn against the rash and negligent driving of the offending vehicle. Further as per allegations made by the police in the charge sheet that at the time of accident the driver of the offending vehicle was under the influence of alcohol (Intoxication). Therefore it is clear that due to the intoxication the driver could not drive properly and lost control over the offending vehicle and caused the alleged accident. Further the respondent counsel nothing has been eliciting about the contributory negligence of the driver of the Auto Rickshaw. Though the respondent examined two witnesses, but they were admitting that, after completion of the investigation, the I.O has submitted the 12 SCCH - 19 MVC.No.1305 /2018 charge sheet against the driver of the offending vehicle about the rash and negligent driving and caused the accident. The owner or the driver of the offending vehicle have not challenged the charge sheet submitted by the I.O.
17. After perusal of the sketch of the accident took place it disclose that, if the driver of the offending vehicle was drove the Car with carefully by observing the opposite vehicles definitely could be avoid the accident. The offending vehicle has dashed the front side of the Auto Rickshaw on left side of the road, hence it indicates that, there is no any contributory negligence of the driver of the Auto rickshaw. There are no any grounds to believing that there is a contributory negligence of the driver of the Auto rickshaw. Further there are no any contradictions or suspected the police documents. Under such circumstances, it is proved that when the Minor Petitioner along with his mother traveling on Auto rickshaw and proceeding on Hommadevanahalli main road and when reached near Hallow black factory, at that time the driver of the offending vehicle has drove the same in a rash and negligent manner came with high speed and dashed the front side of the Auto rickshaw, as 13 SCCH - 19 MVC.No.1305 /2018 a result, the Petitioner and other inmates were fell down and sustained injuries. Accordingly, I answered Issue No.1 in the Affirmative.
18. Issue No.2:- The Petitioner claiming compensation amount of Rs.15,00,000/- with respect to road traffic accident and sustained injuries including pain and suffering. Further stated that, due to accident the minor Petitioner sustained grievous injuries and also taken treatment in the hospital as inpatient and he cannot do his activities as earlier to the accident and also underwent deep mental shock pain and suffering. Hence, he prayed to award compensation amount.
19. The Guardian of the minor Petitioner has produced wound certificate and discharge summary issued by VIMS Specialty Hospital, which are marked as Ex.P6 and P10. Further they have produced medical bills in support of treatment taken in the hospital. The counsel for the Respondent nothing has been elicited to deny the injuries sustained by the petitioner in a road traffic accident and also not disputed about wound certificate issued by above said Hospital. I have perused the Wound certificate 14 SCCH - 19 MVC.No.1305 /2018 it disclosed that the Petitioner sustained following injury:-
1. Head injury,
2. Deglove injury of scalp cerebral edeme,
3. Multiple abrasions,
4. Fracture distal radius (Right).
The doctor has given opinion that, above said injuries are grievous in nature. Therefore, taking all these opinion and treatment given by said Hospital it discloses that, the Petitioner was sustained grievous injury in the said road traffic accident. In support of said treatment the guardian of the Minor Petitioner has not adduced the evidence of the doctor who has given treatment to the Petitioner. Therefore, taking all these facts and nature of injury of Petitioner, I am of the opinion that, Petitioner is entitled for compensation amount of Rs.1,00,000/- as reasonable compensation under the head of pain and suffering.
20. The Petitioner has produced one Cash billing details which is marked at Ex.P12. Further for the purpose of denying of said bill, the Respondent nothing has been elicited in the mouth of the Petitioner, hence under such circumstances, amount available in the said bill had to 15 SCCH - 19 MVC.No.1305 /2018 be compensated. Therefore, by considering the nature of injuries sustained by the Petitioner, this tribunal has award reasonable compensation of Rs.1,24,550/- under the head Medical expenses.
21. The Petitioner has not produced document for the expenditure of food and other charges. As per Ex.P-10 discharge summary issued by VIMS Specialty Hospital the Petitioner took treatment as an inpatient from 02-01- 2018 to 07-01-2018 i.e. for about 6 days. Therefore, after considering the nature of injury and period of treatment taken in the hospital, this tribunal has award reasonable transportation and conveyance charge of Rs.5,000/- as compensation amount under the head Transportation and conveyance charges.
22. The Guardian of the Minor Petitioner stated in his petition that at the time of accident the Petitioner was studying in a 4th standard at and due to injuries sustained in the accident he was not attended the school and hence lost the classes and he is not able to lead normal life as earlier. Further in the examination in chief affidavit the Pw.1 has deposed that, his son face was become disfigured which is affecting his self confidence.
16 SCCH - 19 MVC.No.1305 /2018 But they have not adduced the evidence of the doctor who treated the Petitioner. Hence the Petitioner is not entitled for any compensation under the head of loss of future income on account of disability.
23. The guardian of the minor Petitioner has stated that, due to accidental injuries the Petitioner has not attended his classes hence he has lost academic year. in support of their contention the guardian of the Petitioner has not produced any documents to prove that the Petitioner has lost academic year. In the Petition the guardian of the minor Petitioner has stated that his son i.e., Petitioner was studying in 4th standard in Preethidhama English medium school at the time of accident. But in the cross examination the Pw.1 has clearly admitted that, now the Petitioner is studying in 5th standard. So it clearly disclose that there is no loss of academic year due to accidental injuries. Hence the Petitioner is not entitled for any compensation under the head loss of academic year.
24. Since the Petitioner has sustained grievous injury as stated in the wound certificate and also took treatment as an inpatient for about 6 days. Therefore 17 SCCH - 19 MVC.No.1305 /2018 after considering the nature of injury this tribunal has award the amount of Rs.20,000/- as reasonable compensation under the head of loss of amenities.
25. Considering oral evidence coupled with documentary evidence, it is just and proper to grant compensation as follows:
Sl.
Particulars Amount
No.
1. Pain and sufferings Rs. 1,00,000-00
2. Medical expenses Rs. 1,24,550-00
3. Transportation, Nourishment, 5,000-00
Conveyance and attendant charges Rs.
4. Towards loss of amenities of life Rs. 20,000-00
Total Rs. 2,49,550-00
The Petitioner is entitled for total compensation of Rs.2,49,550/-. It is rounded off to Rs.2,50,000/-.
26. Interest:
Hon'ble Supreme Court in Civil Appeal No.3238/2015 (arising out of SLP (C) 1865/2014 (Chanderi Devi and Anr., Vs. Jaspalsingh & Ors.,) and 2013 AIR SCW 5375 (Minu Rout & Ors vs Sathya Pradyumna Mohapatra & Ors), (2011) 4 SCC 481: (AIR 2012 SC 100) (Muncipal council of Delhi Vs Association 18 SCCH - 19 MVC.No.1305 /2018 of Victims of Uphaar Tragidy and Hon'ble High Court in MFA No.2326/2016 (Annapurna & Ors., G.Ashawathraya & Anr.,) have held that rate of interest shall be @9% p.a., from the date of application till the date of payment.
Hence, I hold that the petitioner is entitled for interest @9% p.a., from the date of petition till the date of payment. In view of settled rate of interest, 9% is justified and not on higher side. Accordingly the petitioner is entitled to interest @ 9% pa.,
27. Liability:-
As per the Petition, the Respondent No.1 is the Owner and Respondent No.2 is the Insurer of the Toyota Etios Car bearing Reg.No:KA-51/D-4743. As discussed in the issue no.1 it is clearly proved that the accident was occurred due to rash and negligent driving driver of the offending vehicle The counsel of the Respondent no.2 submit at the time of the accident the driver of the offending vehicle was consumed the alcohol, there by owner of the vehicle has violated the terms and conditions of the insurance policy, hence the insurance company is not liable to pay the compensation.
19 SCCH - 19 MVC.No.1305 /2018
28. As discussed in the issue no.1 it is clearly proved that the accident was occurred due to rash and negligent driving driver of the offending vehicle. Though the driver of the offending vehicle was consumed the alcohol but, the insurance policy of the offending vehicle is package policy and the third party is entitled to claim the compensation. Mere the driver of the offending vehicle was drunk and driven is not a ground to violation of the terms and conditions of the insurance policy by the owner of the vehicle. The drunk and driven is an offence, but it is not a ground to discharge the liability of the insurance company. In this regard Petitioner counsel has relied one judgment of Hon'ble High court of Andhra Pradesh reported in 2015 ACJ 627, in the case of Bajaj Aallianz General Insurance co. ltd., V/s Manjula Devi and others., wherein it is held that, Motor vehicle Act,1988, section 147(1), 149 and 185-motor insurance-policy-Drunken driving-liability of insurance company- insurance company disputes its liability on the ground that driver of the offending car was in inebriated state at the time of accident, lost control over the vehicle on account of his intoxication, which was more than the permissible limit under section 185, thereby caused the accident killing a traffic constable on duty- policy exempts insurance company from 20 SCCH - 19 MVC.No.1305 /2018 liability towards owner or driver in case of drunk and drive under personal accident cover but deceased was a third party-policy contains clauses regarding eligibility to drive the vehicle by the driver but fit state of mind was not included in the eligibility clause-Consciousness and senses of the driver in inebriated state was impaired, he became unfit to drive but insurance company is not entitled to be exonerated from payment of compensation- Inebriated state of driver was not within the knowledge of the insured - Whether drunk and driving is a ground to exonerate insurance company from liability - Held:
29. Another one Judgment of Hon'ble High court of Kerala, reported in 2017 ACJ 114, in the case of Oriental Insurance co. ltd., V/s Vineetha Nair and others., where in it is held that, Motor vehicle Act, 1988, Sections 149(2) and 185 - Motor insurance- Drunken driving-
Doctrine of volenti non fit injuria-Liability of insurance company- Car hit a lorry from behind resulting in death of driver of car and passenger traveling in it- Tribunal awarded compensation and fastened liability on insurance company of Car - Contention that driver of car was in inebriated state at the time of accident and passenger entered the vehicle knowing well that driver had consumed alcohol, therefore principle of volent non fit injuria comes into play and claimants are not entitled to compensation and insurance company should be absolved 21 SCCH - 19 MVC.No.1305 /2018 from liability-Post -mortem report states that stomach of driver contained clear fluid having alcoholic smell and only because there is alcoholic smell it cannot be held that driver was under the influence of alcohol-Even in prosecution under section 185 there should be clear allegation to the effect that alcohol content is 30mg per 100ml of blood - No evidence that owner of vehicle permitted or gave consent to driver to drive in such state - Whether insurance company could establish that driver of car was under the influence of alcohol at the time of accident and doctrine of volenti non fit injuria is applicable - Held: no; moreover mere consumption of alcohol is not a defence available to insurance company under section 149(2).
Hence as held by the Hon'ble High Court Even other wise, the inebriated state of driver of the car is not within knowledge of the insured. Hence, handing over the car to driver, who was in drunken state, does not arise. After amendment of section 149 of IMV Act the insurance company cannot avoid its liability to pay compensation to the climate. Therefore, the Respondent No.1 being the owner and Respondent No.2 being Insurer of the offending vehicle are jointly and severally liable to pay compensation to the Petitioner. Respondent No.2 being Insurer of the offending vehicle is primarily held liable to 22 SCCH - 19 MVC.No.1305 /2018 pay the compensation amount with interest to the Petitioner. Accordingly, I answer Issue No.2 Partly in the Affirmative.
30. Issue No.3: for the foregoing reasons, I proceed to pass the following:-
ORDER The claim petition filed under Section 166 of the Motor Vehicles Act is hereby Partly allowed with cost as hereunder.
The Petitioner is entitled for compensation of Rs.2,50,000/- with interest @ 9% p.a., from the date of petition till its realization.
The Respondent No.1 & 2 jointly and severally liable to pay compensation to the Petitioner. Further, Respondent No.2 being insurer of the offending vehicle is directed to deposit the compensation together with 9% interest within Sixty days, from the date of this order.
23 SCCH - 19 MVC.No.1305 /2018 After deposit, out of total compensation amount a sum of Rs.1,50,000/- shall be released in favour of the Guardian of the Minor Petitioner (as the Guardian of the Minor Petitioner has incurred huge amount towards medical expenses.) with proper identification and the remaining amount with interest shall be deposited in F.D. (in the name of minor Petitioner) in any nationalized bank at choice the Guardian of the Minor Petitioner, till the Minor Petitioner attains the age of majority.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Dictated to the Stenographer directly on computer then corrected by me and pronounced in open court on this the 29th day of April 2019) (DYAVAPPA. S.B.) XV ASCJ & Member, MACT, Court of Small Causes, Mayo Hall Unit, Bengaluru.
A N N E X U R E:
List of witnesses examined for Petitioner:
Pw.1 : Sri. Deepak Sharma
Pw.2 : Sri. Loganathan
24 SCCH - 19
MVC.No.1305 /2018
List of documents marked for Petitioner:
Ex.P1 : Copy of F.I.R Ex.P2 : Copy of Complaint Ex.P3 : Copy of Spot Mahazar Ex.P4 : Copy of Spot sketch Ex.P5 : Copy of IMV report Ex.P6 : Copy of wound certificate Ex.P7 : Copy of notice U/sec.133 of IMV Act Ex.P8 : Copy of Reply to the notice U/sec.133 of IMV Act Ex.P9 : Copy of Charge sheet Ex.P10 : Discharge summary Ex.P11 : Notarized copy of Adhaar card Ex.P12 : One hospital bill Ex.P13 : Authorization letter Ex.P14 : Inpatient record
List of Witnesses examined for Respondent:
Rw.1 : Smt.Savitha Rw.2 : Sri. Gurunanjaiah
List of Documents marked for Respondent:
Ex.R1 : Authorization letter
Ex.R2 : Copy of policy
Ex.R3 : Copy of charge sheet
(DYAVAPPA. S.B.)
XV ASCJ & Member, MACT,
Court of Small Causes,
Mayo Hall Unit, Bengaluru.