Bangalore District Court
Afsha Nigar vs Icici Lombard General Insurance on 10 August, 2017
BEFORE VII ADDL. JUDGE, MACT & XXXII
ACMM
Court of Small Causes, Bangalore, (SCCH-3)
Dated this the 10th day of August 2017
PRESENT:
Smt.GOMATI RAGHAVENDRA
LL.M, D.I.P.R, D.C.L
VII Addl. Judge & XXXII ACMM,
Court of Small Causes, Bengaluru.
M.V.C.No.5235/2015
Petitioner Afsha Nigar,
Daughter of Fazil Pasha,
Aged about 6 years,
Minor, represented by next friend and
guardian her father Fazil Pasha
residing at No.15, 2nd street,
Gopalapuram, Magadi Road,
Begnaluru-560 023.
And also at No.10, 580C, Hosalaya,
Magadi Taluk,
Ramanagara District.
(Shri Karisidaiah, Advocate)
V/s
Respondents 1.ICICI Lombard General Insurance
Co.Ltd.,
Represented by its Manager,
2nd floor, S.V.R. Complex, No.89,
Hosur Main Road,
Madiwala,
2 SCCH-3 MVC 5235/2015
Bengaluru-560 068.
(Shri L.S.Renukappa, Advocate)
2.Shri Manju R.,
Son of Raju,
No.14, 3rd Main road, N.R.Garden,
Cholurpalya, Magadi Road,
Bengaluru-560 023.
(Exparte)
JUDGMENT
This is a petition filed by the petitioner against the respondents under Section 166 of Motor Vehicles Act, 1989, seeking compensation of Rs.2,50,000/- for the injuries sustained by him in a road traffic accident.
2. The case of the petitioner in brief is as under:
That on 9.6.2015 at about 11.35 a.m., on Gopalapuram road, near Labbe Circle, Bengaluru, she was crossing the road, near shop No.69, at that time motor cycle bearing registration No.KA-02-JA-7536 ridden by its rider in a rash and negligent manner dashed against the petitioner. As a result of the impact, she fell down and sustained grievous injuries. Immediately she was shifted to 3 SCCH-3 MVC 5235/2015 Dhanwanthari clinic, Bengaluru for first aid treatment, thereafter he was shifted to Indiragandhi Institute of Child Health, Bengaluru, wherein she was admitted as inpatient.
3. Prior to the accident the petitioner was hale and healthy, aged about 6 years and studying in Railway Nursing School, M.G.Railway Colony, Bengaluru, due to the accident she lost one academic year of UKG. The accident has taken place due to rash and negligent riding of the rider of the motor cycle. So, the respondents are jointly and severally liable to pay the compensation. Hence, this petition.
4. Interalia inspite of service of notice respondent No.2 failed to appear before the court and placed exparte. Respondent No.1 resisted the petition by filing the written statement stating that there is breach of specific terms and conditions of the policy of insurance. It has specifically pleaded that the rider of the motor cycle had no driving licence as on the date of accident and as such police have 4 SCCH-3 MVC 5235/2015 filed charge sheet against the rider of the motor cycle for the offence punishable U/s 3 (1) R/w Sec. 181 of IMV Act. It admits the issuance of policy in respect of vehicle in question and valid from 26.9.2014 to 25.9.2015 and same is subject to RC and FC. Thus, denying the rest of the petition averments this respondent has sought for dismissal of the petition.
5. On the basis of the aforesaid rival pleadings and materials available on record, Tribunal has framed following:-
ISSUES
1. Whether the petitioner proves that she has sustained grievous injuries in the accident occurred on 9.6.2015 at about 11.35 a.m. on Gopalapura road, near Labbe Circle, Bengaluru, due to rash and negligent riding of the rider of motor cycle bearing registration No.KA-02-JA-7536 as alleged in the petition?5 SCCH-3 MVC 5235/2015
2. Whether the petitioner is entitled for compensation. If so, from whom and at what quantum?
3. What Order or Award?
6. In order to substantiate the petition contents, natural guardian-father of the petitioner examined as PW1 and got marked the documents at Ex.P1 to Ex.P12 and examined doctor as PW2 and got marked documents at Ex.P.13 to P14(a). Company official in respondent No.1 examined as RW1 who got marked the document at Ex.R1 to Ex.R3 and examined I.O. as RW2 and got marked the document at Ex.R4 and Ex.R7.
7. Heard arguments.
8. The learned counsel for the petitioner has relied upon the ruling of Hon'ble High Court of Karnataka in MFA 9308/2011 in between United India Insurance Co. Ltd., Vs. Rathna and others and another 6 SCCH-3 MVC 5235/2015 decision in MFA 5430/2012 in between Smt.Sukanya Vs. Bettegowda and others
9. The counsel for the respondent No.1 has relied upon the decision reported in ILR 2014 KAR 2358 in between Shri Appayachari Vs. K.Vadivel and another. I have gone through the said decisions.
10. My finding on the above issues are as under:
Issue No.1: In the Affirmative
Issue No.2: Partly in the Affirmative
Issue No.3: As per the final order
for the following.
REASONS
11.ISSUE No.1: As per the case of the petitioner on the relevant date, time and place when she was crossing the road, rider of the motor cycle bearing registration No.KA-02-JA-7536 came in a rash and negligent manner with high speed and dashed against the petitioner. Due to which, she fell down and sustained grievous injuries. 7 SCCH-3 MVC 5235/2015
12. In order to substantiate the petition contents, the guardian of the petitioner stepped into the witness box and led evidence as PW.1, who in his affidavit evidence has reiterated similar to petition averments. In addition to his ocular evidence he has relied upon documents at Ex.P1 to Ex.P7 respectively
13. Perusal of complaint at Ex.P1, it discloses that complaint came to be filed by PW1 i.e., father of the petitioner stating that his daughter sustained injuries in the accident caused by the rider of the motor cycle. Based on the complaint, FIR came to be registered by Magadi road traffic police, Bengaluru, for the offences punishable U/s 279, 337 of IPC and Sec.134(B) of IMV Act. Spot mahazar and spot sketch at Ex.P3 and Ex.P4 corroborate the Ex.P1 and Ex.P2. IMV report at Ex.P5 discloses the damages found on the motor vehicle at the time of inspection and motor vehicle inspector has opined that the accident occurred not due to any mechanical defect of the vehicle. 8 SCCH-3 MVC 5235/2015 Wound certificate at Ex.P6 discloses history of RTA at Magadi road at 12 noon on 9.6.2015. After investigation I.O. has filed charge sheet at Ex.P7 against the offending vehicle rider for the offences punishable u/s 279 and 338 of IPC and S.134 (B) R/w S. 187 of IMV Act and S. 3(1) R/w S. 181 of IMV Act.
14. In the case on hand, respondent No.2 placed exparte as he failed to appear before the court. Respondent No.1 led evidence of his company official as RW1, who in his affidavit evidence has reiterated similar to written statement contents and got marked authorization letter, insurance policy and charge sheet at Ex.R1 to Ex.R3 respectively. It has also examined investigation officer as RW2. However, evidence of these two witnesses will not come to the aid of respondent No.1 to substantiate its defence that accident was not caused due to wrongful act of the rider of the offending vehicle. Hence, the tribunal is of the considered opinion that the accident occurred due to 9 SCCH-3 MVC 5235/2015 actionable negligence on the part of the rider of offending motor cycle. Hence, this issue is answered in the Affirmative.
15. Issue No.2:-
a)Pain and Suffering:
In order to prove this issue, PW1 is the guardian of the petitioner in his evidence has stated that his daughter met with an accident that took place on 9.6.2015 at about 1.35 a.m., due to the said impact, she sustained following injuries;
Compound fracture of left tibia and fibula After the accident petitioner was taken to Dhanwanthari Clinic for first aid treatment and thereafter she was shifted to Indira Gandhi Institute of Child Health, Bengaluru, wherein she was admitted as an inpatient from 9.6.2015 to 15.6.2015, wherein POP was applied to fractured area.
10 SCCH-3 MVC 5235/2015
PW2 is Paediatric Orthopaedic at Indira Gandhi Institute of Child Health, Bengaluru has stated in his evidence that petitioner was admitted to their hospital on 9.6.2015 and she took the treatment as inpatient till 15.6.2015. He has produced authorization letter, case sheet and CD at Ex.P13 to Ex.P14(a).
Petitioner has produced wound certificate at Ex.P65, which discloses the following injuries;
Compound fracture left tibia and fibula The doctor is of the opinion that the said injury is grievous in nature. So, considering the evidence of PW1 and PW2 and documents placed before the court and the injuries sustained by the petitioner, he would have suffered pain and agony for which, it is just and necessary to award compensation of Rs.30,000/- for the above head. 11 SCCH-3 MVC 5235/2015
b) Inconvenience caused to the parents during laid up period:
PW1 in his evidence has stated that prior to the accident his daughter was hale and healthy, aged bout 6 years, studying in Railway Nursing School, M.G.Railway Colony, Bengaluru. Due to the accident petitioner lost one academic year of UKG. PW1 has produced medical certificate, which discloses that petitioner was admitted from 9.6.2015 to 15.6.2015 as he has sustained fracture of tibia and fibula left side. Considering the injuries sustained by the petitioner one has to look after the child during the treatment period and after the treatment, till she recovers. Hence, it is just and proper to award compensation of Rs.20,000/- for the above head.
c) Medical expenses;
PW1 being the father of the injured in his evidence has stated that petitioner has sustained grievous injuries in 12 SCCH-3 MVC 5235/2015 a road traffic accident and took the treatment as an inpatient by spending huge amount. On record he has produced the medical bills as per Ex.P8 to the extent of Rs.4,333/- supported with prescriptions at Ex.P9. Therefore, Rs.4,333/- is granted to the petitioner towards medical expenses.
d) Estimated loss of future earning due to permanent disability.
PW1 is the father of the injured in his evidence has stated that he met with an accident and sustained grievous injuries, due to the accident she lost one academic year of UKG and petitioner is having difficulties for sitting, squatting, sit cross legged, running and she has suffered permanent disablement affecting her sports activities etc. Though the PW1 has examined PW2, who is paediatric orthopaedic but he has not assessed any disability and same was admitted by him in his cross-examination. So, from the evidence of PW2 it is clear that petitioner is a 13 SCCH-3 MVC 5235/2015 tender aged, in due course of time the injury may heal, which will not affect her in future otherwise PW2, would have assessed the disability. PW1 in his cross-examination has stated that now his daughter is studying in 2nd standard. From this version it is clear that the petitioner has continued her studies and the said injury is not affecting her day-to-day activities. Hence, the petitioner is not entitled to any compensation under this head.
e) Loss of amenities, conveyance, food and nourishment, attendant charges:
PW1 being the father of the injured in his evidence has stated that the petitioner has sustained grievous injuries and took the treatment as inpatient and outpatient. PW2 being the Paediatric Orthopaedic in his evidence has stated about the treatment taken by the petitioner. So, considering the evidence of PW1 and PW2 and documents placed before the court it is just and proper 14 SCCH-3 MVC 5235/2015 to award compensation of Rs.15,000/-. So, Rs.15,000/- is granted for the above head.
16. Thus the total award stands as follows:
1.Pain and suffering : Rs.30,000-00 : Rs.20,000-00
2.Inconvenience caused to the parents during laid up period : Rs. 4,333-00
3.Medical bills : Nil
4. Estimated loss of future earning due to permanent disability : Rs.15,000-00
5.Loss of amenities, conveyance, food and nourishment, attendant charges etc. :
TOTAL Rs.69,333-00
Thus, the petitioner is entitled for the total
compensation of Rs.69,333/- only.
17. With regard to the liability:- While discussing previous issue, this tribunal has reached to the conclusion that accident in question has taken place due to rash and 15 SCCH-3 MVC 5235/2015 negligent riding of the rider of the motor cycle bearing registration No.KA-02-JA-7536.
18. Respondent No.1 Insurance company admits issuance of policy in respect of offending vehicle car bearing No.KA-53-B-9160 infavour of respondent No.2 in respect of offending vehicle, but its liability subject to terms and conditions of the insurance policy. It is the specific defence of respondent No.1 that at the time of accident rider of the motor cycle did not possess driving licence and as such respondent No.2 has violated the terms and conditions of the policy. In order to substantiate such defence, respondent No.1 examined its company official i.e., Legal retainer as RW1, who has corroborate the version of respondent No.1. Respondent No.1 has also examined investigation officer as RW2. RW2 in the course of his evidence got marked 133 notice issued to RC owner and reply notice at Ex.R4 and Ex.R5 respectively. The said witness has stated that offending vehicle was being ridden 16 SCCH-3 MVC 5235/2015 by one Manju who is also owner of the said motor cycle and that he has issued 133 notice to RC owner of which RW1 owner has replied to the said notice stating that he has not possessed driving licence and the same is reflected at Ex.R5. Again this witness has issued one more notice to the owner asking him to produce driving licence to which the owner has replied and the said documents are marked at Ex.R6 and Ex.R7 and after investigation this witness i.e., I.O. has filed charge sheet against the offending vehicle rider for the offence punishable U/s 279, 337 and 338 of IPC and S. R/w S 181 and 187 of IMV Act. Ex.R3 is charge sheet, which is also produced by the petitioner herein marked at Ex.P7. Perusal of Ex.R4 133 notice issued to respondent No.2 asking him to furnish driving licence to ride the offending vehicle and Ex.R5 is reply given by respondent No.2 i.e., owner stating that no driving licence.
The aforesaid documentary evidence coupled with evidence of RW1 and RW2 makes it clear that respondent No.2 who 17 SCCH-3 MVC 5235/2015 was also rider of the offending vehicle and did not possess driving licence to ride the vehicle in question at the time of accident.
19. At this juncture counsel for the petitioner relied upon judgement of Hon'ble High Court, in MFA 9308/2011 in between United India Insurance Co.Ltd., Vs. Smt. Rathna and another in which it is held that "driver of the insured vehicle had no driving licence as on the date of accident, there must be clear evidence on record of the case to that effect and that police charge sheet is no evidence to hold that driver of the insured vehicle had no driving licence as on the date of accident."
20. With due respect to the order of the Hon'ble High Court no doubt, charge sheet is not evidence to arrive conclusion that the driver of the insured vehicle had no driving licence as on the date of accident, but it is only report of investigation officer and unless it is corroborated by supporting material, it is of no value. 18 SCCH-3 MVC 5235/2015
21. In the case on hand, besides relying on charge sheet, Investigation officer is also examined who has corroborated the version of non-possessing of driving licence by the driver of the offending vehicle.
22. In the case on hand respondent No.2 inspite of service of notice failed to appear before the court and placed exparte. If at all, he had any grievance nothing prevented him to appear before the court and to contest the petition, but for the reasons best known to him, he has not done so, which in turn leads to adverse inference against him.
23. The counsel for the petitioner has drawn the court attention on the judgement of Hon'ble High Court in MFA No.5430/2012 in between Smt.Sukanya Vs. Bettegowda and others in which it is relied that "if at all there is any breach of policy conditions by the insured by virtue of Sec.149 of the Act, at the first instance, the insurer has to satisfy the award amount and 19 SCCH-3 MVC 5235/2015 thereafter recover the same with interest from the insured under the principle of pay and recovery".
24. At this juncture this court has drawn its attention on the decision reported in AIR 2012 KAR HR 305 in between the Oriental Insurance Company Ltd., vs. K.C. Subramanyam and another which reads like thus;
(E) Constitution of India, Arts. 141, 142 - Motor Vehicles Act (59 of 1988), S. 149 - Binding precedent
- Accident compensation - Pay and recovery - Supreme Court after holding that insurer had no obligation to pay, but still has directed insurer to pay and recover from insured - Such a direction is issued by virtue of power conferred on Supreme Court under Art. 142 of Constitution, which power neither High Court nor the Tribunal can exercise - Therefore, it is not law laid down by Supreme Court under Art. 141 of Constitution that when insurer is not liable to pay still he can be directed to pay and recover.
25. On careful perusal of the said decision, in the said decision their lordship held that either the High Court nor the Tribunal have no power to direct the insurance 20 SCCH-3 MVC 5235/2015 company to pay the compensation and to recover the same from the owner in case of violation of the policy conditions. Therefore, the above said decision is directly applicable to the case on hand. In view of the said decision and on perusal of terms and conditions of the policy, it is not just and proper to fasten liability on the insurance company and it on the part of respondent No.2 viz., owner and rider of the offending vehicle is liable to pay the compensation with interest at 8% p.a. from the date of petition till its realisation. Hence, issue No.2 is answered partly in the Affirmative.
26. Issue No.3: In view of my finding on Issue Nos.1 & 2, I proceed to pass the following:
ORDER Petition filed by the petitioner under Sec. 166 of the M.V. Act, 1989 as against the respondent No.1 Insurance Company is hereby dismissed.21 SCCH-3 MVC 5235/2015
Petition filed by the petitioner under Sec. 166 of the M.V. Act, 1989 as against the respondent No.2 owner of the vehicle is hereby allowed in part.
Petitioner is entitled for compensation of Rs.69,333/- with costs and future interest at 8% p.a. from the date of petition till its realisation.
Respondent No.2 is liable to pay the compensation with interest at the rate of 8% p.a. from the date of the petition till its realisation within two months from the date of this order.
On deposit of the compensation amount together with interest, medical expenses shall be released to the guardian of the petitioner and remaining amount shall be deposited in the name of the petitioner in any Nationalised bank or Scheduled Bank till he attains age of majority. After attaining majority the entire amount shall be released to the petitioner by means of A/c payee cheque on proper identification without any further proceedings. 22 SCCH-3 MVC 5235/2015
Advocate fee is fixed at Rs.1000/-.
Draw award accordingly.
(Dictated to the stenographer online, corrected by me and then pronounced in the open court on this the 10th day of August 2017) (GOMATI RAGHAVENDRA) VII Addl. Judge & XXXII ACMM, Bengaluru.
ANNEXURE List of the witnesses examined on behalf of petitioner:
PW1 Shri Fazil Pasha PW2 Dr.Naveen
List of the documents exhibited on behalf of petitioner:
Ex.P1 : Copy of Complaint
Ex.P2 : Copy of FIR
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 charge sheet
Ex.P8 : Medical bills
Ex.P9 : Prescriptions
Ex.P10 : Medical certificate
Ex.P11 : X-ray film
Ex.P12 : Progress report of LKG
Ex.P13 : Authorisation letter
Ex.P14 : Case sheet
23 SCCH-3 MVC 5235/2015
Ex.P14(a): CD
sList of the witnesses examined on behalf of respondents:
RW1 Shri Thrinethra M.H. RW2 Shri Y.T. Venkateshaiah
List of the documents marked on behalf of respondents:
Ex.R1 Authorisation letter
Ex.R2 True copy of insurance policy
Ex.R3 Copy of charge sheet
Ex.R4 133 notice
Ex.R5 Reply
Ex.R6 Notice
Ex.R7 Reply
(GOMATI RAGHAVENDRA)
VII Addl. Judge & XXXII ACMM,
Bengaluru.