Bangalore District Court
Smt.Thimmamma vs Shri Umesh on 8 December, 2015
Before the Motor Accident Claims Tribunal at Bangalore
(SCCH-8)
Present: Shri P.J. Somashekar B.A., LL.B.,
XII Additional Small Causes Judge
and Member, M.A.C.T., Bangalore.
Dated this the 8th day of December 2015
M.V.C.No.4974/2013
Petitioner Smt.Thimmamma,
Wife of Shankarappa @ Shankara
Shetty K.S.
Aged about 60 years,
Residing at No.32, 9th Cross,
13th main, Shakambarinagar,
J.P.Nagar 1st phase,
Bengaluru-560 078.
(Shri B.R.Prakash, Advocate)
V/s
Respondents 1. Shri Umesh,
Son of Ramamurthy @
Ramamurthy Shetty,
Major,
Residing at Arikere post,
Arasikere Taluk,
Hassan District.
(RC owner of Tata Magic bearing
registration No.KA-13-A-6580)
(Shri H.T.Jagadeesh, Advocate)
2 SCCH-8 MVC 4974/2013
2. Shriram General Insurance
Co.Ltd.,
S-5, II Floor, Monarch Chambers,
Infantry Road,
Bengaluru.
(Insurer of Tata Magic bearing
No.KA-13-A-6580)
Policy No.10003/31/13/077696
Valid from 7.5.2012 to 6.5.2013
Policy issued at Hassan.
(Shri K.M.Ravi, Advocate)
JUDGMENT
This is a claim petition filed by the petitioner against the respondents under Section 166 of Motor Vehicles Act, 1989, for seeking compensation of Rs.5,00,000/- for the injuries sustained by him in a road traffic accident.
2. The brief facts of the claim petition are as under:
The petitioner in his claim petition has alleged that, on 19.4.2013 at about 1.30 p.m. she was proceeding in a Tata Magic bearing registration No.KA-13-A-6580 along with other inmates. From starting point of the journey the driver of the Tata Magic was driving the same in a rash and negligent manner without following the traffic rules and 3 SCCH-8 MVC 4974/2013 regulations, inspite of repeated request made by her and other passengers to go slow, while proceeding near Maragondanahalli Gate, Javagal Hobli, Arasikere Taluk, due to high speed, the driver lost the control over the vehicle and it went off the road and fell in to the ditch. As a result, herself and other inmates of the vehicle were sustained grievous injuries. So, immediately she was shifted to Jayachamarajendra Hospital, Arasikere, first aid treatment was taken and then she was shifted to Shri Chamarajendra Hospital, Hassan wherein she took the treatment as inpatient and again she was shifted to NIMHANS and took the treatment as inpatient by spending huge amount.
3. Prior to the accident she was hale and healthy and housewife and getting monthly income of Rs.4,500/- per month. Due to the accidental injuries she could not do the work as before. The accident in question was taken place on account of rash and negligent driving of the Tata Magic 4 SCCH-8 MVC 4974/2013 driver. Thereby, the Javagal Police have registered the case against the driver of the Tata Magic in their police station Crime No.59/2013 for the offences punishable u/s 279 and 337 of IPC. The respondent No.1 being the owner and respondent No.2 being the insurer are jointly and severally liable to pay the compensation and prays for allow the claim petition.
4. In response of the notice, the respondents were appeared through their respective counsel and filed their independent written statement.
5.The respondent No.1 being the owner of the offending vehicle has denied the averments made in column Nos. 1 to 15 of the claim petition. But he has admitted that he is the owner of the Tata Magic bearing registration No.KA-13-A-6580 and he has insured the said vehicle with the respondent No.2, so he is not liable to pay any compensation and prays for reject the claim petition. 5 SCCH-8 MVC 4974/2013
6.The respondent No.2 being the insurer of the offending vehicle in its written statement has alleged that the claim petition filed by the petitioner is not maintainable in law or on facts but he has admitted about the issuance of the policy in respect of the offending vehicle infavour of respondent No.1 and as on the date of alleged accident, the driver of the offending vehicle was not holding valid and effective driving license and the respondent No.1 being the owner has entrusted the person who was not having valid and effective driving license. But he has contravened the terms and conditions of the policy and either the owner of the vehicle nor the jurisdictional police have not complied the mandatory provisions under Section 134(C) and 158(6) of the M.V. Act, in furnishing better particulars and offending vehicle was also not having valid permit and fitness certificate and he has denied that the petitioner being the inmate of the Tata Magic was traveling in the offending vehicle from starting point of journey the driver of 6 SCCH-8 MVC 4974/2013 the offending vehicle has drove the same in a rash and negligent manner, inspite of repeated requests to go slow, while proceeding near Maragondanahalli Gate, Javagal hobli, Ararasikere Taluk, lost the control over the vehicle and the vehicle was fell into the ditch the inmates of the car were sustained grievous injuries and she took the treatment by spending huge amount and he has alleged that the offending vehicle was not at all involved in the accident, the petitioner has falsely implicated the vehicle in colluding with the owner of the vehicle and other authorities and prays for reject the claim petition.
7. On the basis of the pleadings of the parties the following issues are framed.
1. Whether the petitioner proves that she has sustained grievous injuries as mentioned in column No.11 in a road traffic accident on 19.4.2013 at about 1.30 p.m. near Maragondanahalli gate, Javagal Hobli, Arasikere taluk, due to the rash and negligent 7 SCCH-8 MVC 4974/2013 driving of the driver of the Tata Magic bearing registration No.KA-13-A-6580?
2. Whether petitioner is entitled for any compensation? If so, to what extent and from whom?
3. What Order or Award?
8. The petitioner in order to prove the claim petition has examined herself as PW1 and got marked the documents as Ex.P1 to Ex.P24 and she has not examined any witness on her behalf. The respondent No.2 has examined the legal officer as RW1 and got marked the document as Ex.R1 and two documents are marked with consent of the learned counsel for the petitioner as Ex. R2 & Ex.R3.
9. Heard arguments on both side.
10. My finding on the above issues are as under:
Issue No.1: Affirmative
8 SCCH-8 MVC 4974/2013
Issue No.2: Partly affirmative
Issue No.3: As per the final order
for the following.
REASONS
11. Issue No.1:
The petitioner being said to be the injured has approached this court on the ground that, on 19.4.2013 at about 1.30 p.m. she was proceeding in a Tata Magic bearing registration No.KA-13-A-6580 along with other inmates. From starting point of the journey the driver of the Tata Magic was driving the same in a rash and negligent manner without following the traffic rules and regulations, in spite of repeated requests made by her and other passengers to go slow, while proceeding near Maragondanahalli Gate, Javagal Hobli, Arasikere Taluk, due to high speed, the driver lost the control over the vehicle and it went off the road and fell in to the ditch. As a result, herself and other inmates of the vehicle were 9 SCCH-8 MVC 4974/2013 sustained grievous injuries. So, immediately she was shifted to Jayachamarajendra Hospital, Arasikere, first aid treatment was taken and then she was shifted to Shri Chamarajendra Hospital, Hassan wherein she took the treatment as inpatient and again she was shifted to NIMHANS and took the treatment as inpatient by spending huge amount. Thereby, she has filed the instant claim petition against the respondents.
12. The petitioner in order to prove her case has filed her affidavit as her chief-examination as PW1, in which she has stated that on 19.4.2013 at about 1.30 p.m. she was proceeding in a Tata Magic bearing registration No.KA-13- A-6580 along with other inmates. From starting point of the journey the driver of the Tata Magic was driving the same in a rash and negligent manner without following the traffic rules and regulations, in spite of repeated request made by her and other passengers to go slow, while proceeding near Maragondanahalli Gate, Javagal Hobli, Arasikere Taluk, 10 SCCH-8 MVC 4974/2013 due to high speed, the driver lost the control over the vehicle and it went off the road and fell in to the ditch. As a result, herself and other inmates of the vehicle were sustained grievous injuries. So, immediately she was shifted to Jayachamarajendra Hospital, Arasikere, first aid treatment was taken and then she was shifted to Shri Chamarajendra Hospital, Hassan wherein she took the treatment as inpatient and again she was shifted to NIMHANS and took the treatment as inpatient by spending huge amount. The accident in question was taken place on the rash and negligent driving of the driver of the Tata Magic. Thereby, the Javagal Police have registered the case against driver of the Tata magic in their police station Crime No.59/2013 for the offences punishable u/s 279 and 337 of IPC. The PW1 in his cross-examination has admitted that as on the date of alleged accident she was traveling in the offending vehicle along with other inmates and she has sustained only simple injuries and she has denied that as 11 SCCH-8 MVC 4974/2013 on the date of alleged accident the offending vehicle driver has not drove the same in a rash and negligent manner and the accident was not occurred on account of rash and negligent driving of the offending vehicle driver.
13. RW1 being the legal officer of the respondent No.2 in his evidence has stated that the accident was not occurred on account of rash and negligent driving of the offending vehicle driver and as on the date of alleged accident the offending vehicle was not having valid permit and fitness certificate. The respondent No.1 being the owner has entrusted the vehicle to the person, who was not holding valid and effective driving license. RW1 in his cross-examination has admitted that as on the date of alleged accident the policy was in existence and he has admitted that they have appointed the I.O. to conduct investigation, but he did not produce the same before the court.
12 SCCH-8 MVC 4974/2013
14.The petitioner in support of her oral evidence has produced the documents marked as Ex.P1 to Ex.P24. Ex.P2 is the information filed by one Hema @ Hemavathi, in which has stated that on 18.4.2013 she had been to her sister's house and on 19.4.2013 she was proceeding towards her village through Tata Magic bearing registration No.KA-13-A-6580 along with other inmates, the driver of the said vehicle has drove the same in a rash and negligent manner and lost the control over the vehicle and the vehicle was went off to the road and fell into the ditch. As a result, herself and inmates of the vehicle were sustained injuries. So, they were shifted to Government hospital, Arasikere through 108 ambulance. So, based on the information Javagal police have registered the case against the offending vehicle driver in their police station Cr.No.59/2013 for the offences punishable u/s 279 and 337 of IPC and R/w S. 187 of IMV Act. The learned counsel for the respondent has cross-examined the PW1 13 SCCH-8 MVC 4974/2013 nothing is elicited to disbelieve her evidence, though he has suggested the PW1 that the accident was not taken place on account of rash and negligent driving of the driver of the Tata Magic, for which she has denied the same. If at all the accident was not occurred on account of rash and negligent driving of the driver of the offending vehicle nothing is prevented to the respondent to examine the offending vehicle driver to show that accident was not taken place on his own negligence. In the absence of the materials from the respondent side it is clear that the accident was occurred on account of rash and negligent driving of the Tata Magic driver. That is the reason why the respondent did not examine the offending vehicle driver nor witnesses who are cited in the charge sheet. On the other hand, Ex.P1 & Ex.P2 are clear that the accident was occurred on account of rash and negligent driving of the offending vehicle driver. Ex.P3 is the panchanama and sketch drawn by the I.O. clearly reflects that the accident 14 SCCH-8 MVC 4974/2013 in question was taken place on account of rash and negligent driving of the offending vehicle driver. Ex.P4 and Ex.P5 are reflects that the petitioner has sustained injuries in connection of the injuries sustained by her in a road traffic accident said to have been taken place on 19.4.2013. Ex.P6 is reflects about the rash and negligent driving of the offending vehicle. If at all, the accident was not taken place on account of rash and negligent driving of the offending vehicle, question of damages as appeared in Ex.P6 does not arise. So, the damages as appeared in Ex.P6 corroborate the evidence of PW1. Ex.P10 to Ex.P17 are reflects that the accident in question was taken place on account of rash and negligent driving of the offending vehicle driver. Ex.P15 is reflects that the petitioner has took the treatment in connection of the injuries sustained by her in a road traffic accident. Ex.P19 to Ex.P24 are reflects that the petitioner has took the treatment as inpatient and CT scan was taken place in connection of the 15 SCCH-8 MVC 4974/2013 injuries sustained by her in a road traffic accident. So, the documents marked as ex.p1 to Ex.P24 are coupled with the oral evidence of PW1, though the respondent No.2 has examined its legal officer as RW1, but his evidence will not help the respondent to disprove the oral and documentary evidence of the petitioner. On the other hand, the petitioner has proved her case through oral and documentary evidence that the accident in question was taken place on the rash and negligent driving of the driver of the Tata Magic. Hence, I answer this issue in the affirmative.
15. Issue No.2:
The PW1 being said to be the injured in her evidence has clearly stated that on 19.4.2013 at about 1.30 p.m. she was travelling in a Tata Magic, the driver of the said Tata magic has drove the same in a rash and negligent manner without observing the traffic rules and regulations, inspite of repeated requests made by her and other inmates to go 16 SCCH-8 MVC 4974/2013 slow, when the vehicle was reached Maragondanahalli Gate, Javagal Hobli, the driver has lost the control over the vehicle and it was fell into the ditch, as a result, he has sustained the following injuries;
1) Abrasion over the left forehead,
2) Abrasion over left eye
16. So, immediately she was shifted to Sri Jayachamarajendra Hospital, Hassan, wherein she took the first aid treatment later on she was shifted to Chamarajendra Hospital and took the treatment as an inpatient and x-rays were taken and again she was shifted to NIMHANS and took the treatment as inpatient, wherein also she took conservative treatment and discharged with an advice to take complete bed rest, continue medicines and to take follow-up treatment. So, she has spent Rs.50,000/- towards her treatment, medicines, conveyance and other incidental charges. Inspite of best treatment she could not come to normal position, still she is suffering 17 SCCH-8 MVC 4974/2013 with permanent disability. Due to severe head injury she is suffering from severe headache, giddiness often and often, and her memory power is also reduced due to accidental injuries. PW1 in her cross-examination has admitted that after the accident she took the treatment at Hassan as inpatient, thereafter she has been shifted to NIMHANS and took the treatment and after healing the injuries she has been discharged from the hospital and she has denied that she is not facing any difficulties due to the injuries sustained by her in a road traffic accident and she has created the medical bills and placed it before the court in order to get the compensation.
17.The PW1 being the injured in her evidence has stated that she has sustained grievous injuries and took the conservative treatment. But inspite of best treatment she could not do the work as before. But the reasons best known to her has not examined the treated doctor nor placed any materials to show that she has sustained any 18 SCCH-8 MVC 4974/2013 permanent disability due to the accidental injuries. However, she has produced the wound certificate issued by the Chamarajendra hospital, Hassan in which it is clear that the petitioner has sustained the following injuries;
Abrasion over the left forehead Abrasion over the left eye
18.So, the above said injuries are grievous in nature. Ex.P18 are the medical bills reflects that the petitioner has took the treatment in connection of the injuries sustained by her in a road traffic accident by spending an amount of Rs.6,282/-. Ex.P19 is the discharge summary in which it is clear that the petitioner soon after the accident got admitted to the Jayachamarajendra hospital and took the treatment till 21.4.2013 as she has sustained the grievous injuries and took the treatment as inpatient for a period of three days. Though the petitioner has stated that she has sustained grievous injuries, but she did not take any steps to examine the treated doctor nor placed any materials to 19 SCCH-8 MVC 4974/2013 show that she has sustained permanent disability due to the accidental injuries. So, it is just and necessary to grant just compensation to the petitioner in the following heads;
a)Pain and suffering;
The PW1 being the injured in her evidence has clearly stated that she has sustained grievous injuries in a road traffic accident said to have been taken place on 19.4.2013 and took the treatment as an inpatient for a period of 3 days. Inspite of best treatment she could not come to normal position. Ex.P4 and Ex.P5 are reflects that the petitioner has sustained grievous injuries. Ex.P19 is reflects that the petitioner has took the treatment in connection of the injuries sustained by her in a road traffic accident and took the treatment as inpatient for a period of three days. So, considering the evidence of the PW1 and the injuries sustained by the petitioner as well as the duration of treatment she would have sustained pain and agony for which, it is just and necessary to award 20 SCCH-8 MVC 4974/2013 compensation of Rs.30,000/- for the above head, it will meet the ends of justice. Hence, Rs.30,000/- is awarded for the above head.
b) Loss of income during laid up period:
The PW1 being the injured in her evidence has stated that prior to the accident she was hale and healthy and house wife by getting monthly income of Rs.4,500/-. Due to the accidental injuries she could not do the work as before. So, considering the oral and documentary evidence she might have lost the income for a period of two months due to the accidental injuries as she has sustained fracture of forehead frontal bone. So, she might have lost the income for a period of two months. So, two months income comes to Rs.9,000/-. Thus, Rs.9,000/- is granted for the above head.
c) Medical expenses The PW1 being the injured in her evidence has stated that she has sustained the grievous injuries in a road 21 SCCH-8 MVC 4974/2013 traffic accident and took the treatment as an inpatient by spending huge amount. But on record the petitioner has produced the medical bills worth of Rs.6,282/-. Though the learned counsel for the respondent has disputed the medical bills produced by the petitioner, but nothing is placed on record to show that the medical bills produced by the petitioner are created nor fabricated in order to get the compensation. So, in the absence of the materials on record, it is clear that the petitioner has took the treatment in connection of the injuries sustained by her in a road traffic accident. Therefore, Rs.6,282/- is granted for the above head.
d) Loss of future earning:
The PW1 being the injured in her evidence has clearly stated that she has sustained grievous injuries inspite of best treatment she could not come to normal position. But whereas PW1 has not examined either the treated doctor nor placed any materials to show that she has sustained 22 SCCH-8 MVC 4974/2013 permanent disability due to the accidental injuries. In the absence of the materials on record, the question of awarding the compensation under this head does not arise. So, no amount is granted for the above head.
e) Loss of amenities, conveyance, food and nourishment, attendant charges:
The PW1 being the injured in her evidence has clearly stated that she has sustained the injuries in a road traffic accident said to have been taken place on 19.4.2013 and took the treatment as an inpatient for a period of 3 days and she has also took the treatment as an outpatient. So, considering the evidence of PW1 and duration of treatment, it is just and necessary to grant Rs.15,000/- for the above head, it will meet the ends of justice. So, Rs.15,000/- is granted for the above head.23 SCCH-8 MVC 4974/2013
19. Thus the total award stands as follows:
1.Pain and suffering Rs.30,000-00
2.Loss of income during laid Rs. 9,000-00 up period
3.Medical bills Rs. 6,282-00
4.Loss of future earning Nil
5.Loss of amenities, Rs.15,000-00 conveyance, food and nourishment, attendant charges etc. Total Rs.60,282-00
20. The respondent No.1 being the owner of the offending vehicle in his written statement has stated that he has insured the offending vehicle with the respondent No.2. the respondent No.2 in his written statement has admitted about the issuance of the policy infavour of the respondent No.1. But the reasons best known to him has not stated either the policy number or its validity. But whereas the petitioner has shown the policy number and its validity from 7.5.2012 to 6.5.2013 in the cause title of the claim petition. But the respondent No.2 has not denied the same. However, he has produced the policy marked as 24 SCCH-8 MVC 4974/2013 Ex.R1 in which it is clear that the policy was in existence from 7.5.2012 to 6.5.2013. The accident was occurred on 19.4.2013. So, one thing is clear from the oral and documentary evidence on record that the policy was in existence as on the date of accident.
21.The respondent No.1 has taken up the contention that as on the date of alleged accident the driver of the offending vehicle was not holding valid and effective driving license to drive the same and the vehicle was not having permit to ply the vehicle in the public road. Ex.R2 is the driving license of Nataraj as appeared in the charge sheet marked as Ex.P7 who is the driver of the offending vehicle was holding driving license to drive the light motor vehicle. Ex.R3 is the permit reflects that as on the date of alleged accident the offending vehicle was having valid permit.
22.The learned counsel for the respondent while canvassing his arguments has submitted that the vehicle 25 SCCH-8 MVC 4974/2013 involved in the accident is Tata magic and the driver was not holding valid and effective driving license for which the learned counsel for the respondent No.1 has submitted that the driver of the offending vehicle was holding driving license of light motor vehicle and he was authorized to drive the offending vehicle and the said counsel has drawn the Court attention on the judgement of the Hon'ble Supreme Court passed in Civil Appeal Nos. 29128-29129/14 in between Kulwant Singh Vs. Oriental Insurance Company Limited. On careful perusal of the said judgement, in the said judgement the legal heirs of the deceased filed the claim petition for seeking compensation on the ground that while driving the tempo which was hit by Tempo(tata-407). The Tribunal held that the death was caused due to the negligence of the Tempo driver and the claimants were entitled for compensation and the Insurance Company is liable to pay the compensation. So, the Insurance Company has preferred an appeal before the Hon'ble High Court on 26 SCCH-8 MVC 4974/2013 the ground that the offending vehicle driver was holding driving license to drive 'light motor vehicle', it cannot be equated 'light goods vehicle' and the Hon'ble High Court held that the driving license of the driver was for driving a light motor vehicle. In no manner it can be said that a light motor vehicle can be equated with a light goods vehicle. So, it is clear that there was a breach of the policy condition and the driver of the vehicle did not have a valid and effective driving license at the time of accident. So, recovery of rights have been granted against the owner. So, the award passed by the Tribunal was modified and the recovery of rights has been granted to the Insurance Company. Thus, aggrieved by the judgement of the Hon'ble High Court, owner of the vehicle has filed the appeal before the Hon'ble Supreme Court, Hon'ble Supreme Court held that the driver was holding valid and effective driving license to drive light motor vehicle. There is no dispute that the motor vehicle in question by which the accident 27 SCCH-8 MVC 4974/2013 took place, was Mahindra Maxi Cab, merely because the driver did not get any endorsement in driving license to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed in holding the insurance company is not liable to pay the compensation, because, the driver was not holding license to drive light motor vehicle. Thus, appeal was came to be allowed and the judgement of the Hon'ble High Court was came to be set aside and restore the Tribunal order.
23.In the instance case also the learned counsel for the respondent No.2 has submitted that the vehicle involved in the accident is Tata Magic and the driver of the offending vehicle was not holding valid and effective driving license. But Ex.R2 is reflects that the offending vehicle driver was holding driving license to drive light motor vehicle. Thus, the principles laid down in the above decision is directly applicable to the case on hand. So, one thing is clear from the oral and documentary evidence that 28 SCCH-8 MVC 4974/2013 the policy was in existence and the offending vehicle driver was holding valid and effective driving license and offending vehicle was also having permit. So, the respondent Nos.1 and 2 are jointly and severally liable to pay the compensation. But in view of the valid insurance policy the respondent No.2 is alone liable to pay the compensation to the petitioner with interest at the rate of 8% p.a. from the date of petition till its realization. In the result, the issue No.2 is answered as partly in the affirmative.
24. Issue No.3:
In view of my finding on issue Nos.1 & 2, I proceed to pass the following:
ORDER The petition filed by the petitioner under section 166 of M.V. Act is partly allowed, with costs. The petitioner is entitled for compensation of Rs.60,282/- together with interest at the rate of 8% p.a. from the date of the claim petition till its realisation.29 SCCH-8 MVC 4974/2013
The respondents are jointly and severally liable to pay the compensation. In view of the valid insurance policy the respondent No.2 being the insurer shall pay the compensation amount with interest at the rate of 8% p.a. from the date of the claim petition till its realisation within a period of 30 days from the date of this order.
On deposit of the compensation amount together with interest, by considering the age of the petitioner, the entire amount shall be released to her by means of A/c payee cheque on proper identification without any further proceedings.
Advocate fee is fixed at Rs.1,000/-. Draw award accordingly.
Dictated to the stenographer, transcript thereof, corrected by me and then pronounced in the open court on this the 8th day of December 2015.
(P.J. Somashekar), XII Addl. Judge-Member, MACT, Bangalore.30 SCCH-8 MVC 4974/2013
ANNEXURE List of the witnesses examined on behalf of petitioner:
PW1 Smt.Thimmamma 27.8.2014 List of the documents exhibited on behalf of petitioner:
Ex.P1 True copy of FIR
Ex.P2 True copy of complaint
Ex.P3 True copy of Spot Mahazar
Ex.P4 True copy of wound certificate
Ex.P5 True copy of wound certificate
Ex.P6 True copy of IMV report
Ex.P7 True copy of charge sheet
Ex.P8 Notice
Ex.P9 Indemnity bond
Ex.P10 Statement of witnesses
to
Ex.P17
Ex.P18 Medical bills
Ex.P19 Discharge summary
Ex.P20 Scan report
Ex.P21 Reference letter
Ex.P22 Medical bills
31 SCCH-8 MVC 4974/2013
Ex.P23 Outpatient record
Ex.P24 CT scan report
List of the witnesses examined on behalf of respondents:
RW1 Shri Yellappa B.P. 27.11.2015 List of the documents marked on behalf of respondents:
Ex.R1 Policy copy
Ex.R2 Driving license
Ex.R3 Permit
(P.J. Somashekar),
XII Addl. Judge-Member, MACT,
Bangalore.