Bangalore District Court
Wazeer Rehaman vs Iffco Tokio General Insurance Co. Ltd on 26 March, 2015
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
COURT OF SMALL CAUSES,
AT BENGALURU.
PRESENT: Smt. HREMATH SHOBHARANI
BABAYYA.
B.Com.LL.B.
(Spl.)
XXII Additional Small Causes Judge
& Member MACT, Bengaluru.
DATED: This the 26th day of March, 2015.
M.V.C.No.5540/2011
Petitioner: Wazeer Rehaman,
Son of Ajam Sab,
# 389, Gundurao,
(Telecom) layout,
Bangalore-45.
(Represented By Sri. B.V. Sudhakar-
Advocate-Bengaluru).
-Versus-
Respondents 1. Iffco Tokio General Insurance Co. Ltd.,
: Next to Mandovi Motors,
Cristu Complex, Lavelli road,
Bangalore.
2. Govindaraj,
Rachenahalli (V),
Arabic College, K.R. Puram,
2 SCCH-24
M.V.C.5540/2011
Bangalore-45.
(R.C. Owner of vehicle
No.-40-T-6272)
3. Sri. C.N. Mahesh,
Son of Narayanaswamy,
Chowdasandra (V),
Sidlagbatta Taluk,
Chikballapur District.
(Res. No.1 : By Sri. B. Anjaneyalu-
Advocate-Bengaluru).
Res.No.2 : Ex-parte
Res.No.3 : Ex-parte).
XXII ASCJ & MEMBER,
MACT-Bengaluru.
3 SCCH-24
M.V.C.5540/2011
JUDGEMENT
The petitioner has filed this petition under Section 166 of the Motor Vehicles Act claiming the compensation on account of the injuries sustained by him in the Motor Vehicles Accident.
2. The brief facts projected by the petitioner is as here under:
That on 13.03.2011 at about 2.15 p.m., the petitioner was riding the Pulsar Motor Cycle bearing Reg.No. KA-05-EQ-9034 carefully on the left side of Bellalli Cross towards Hegdenagar infront of Hegdenagar Dhanavantri Hospital, at that time, the Water Tanker bearing Reg.No. KA-40-T-7262 came from Hegdenagar side with high speed and in a rash and negligent manner and dashed against the petitioner's motor cycle. Due to impact the petitioner sustained grievous injuries.
4 SCCH-24 M.V.C.5540/2011
3. It is alleged that, immediately after the accident the petitioner was shifted to Baptist Hospital, wherein he took treatment and spent a sum of Rs.1,50,000/- towards medicine, treatment and another sum of Rs.1,00,000/- towards conveyance, food and nourishment and attendant charges.
4. It is alleged that, prior to the accident the petitioner was doing Carpenter work and earning a sum of Rs.12,000/- per month. Due to the accidental injuries he was put to mental shock and agony and financial loss. The petitioner cannot do the carpenter work due to the permanent disability. Hence, he has lost the income during the treatment period and also future income. It is alleged that, the accident occurred solely due to the rash and negligent driving of the Water Tank Tractor by its driver. The Chikkajala Traffic police have registered the case in Crime No.33/2011 under Section 279 and 337 of 5 SCCH-24 M.V.C.5540/2011 Indian Penal Code. For all these reasons, prayed to award the compensation with interest and cost.
5. In response to the notice, the respondent No.1 has appeared through its Counsel before the Tribunal and filed the detailed written statement. Inspite of service of the notice, respondent No.2 and respondent No.3 have remained absent and they have been placed as exparte.
6. The respondent No.1 has contended that, the insurance company has not issued the alleged insurance policy No.3B MM 10 in respect of Water Tanker Tractor bearing Reg.No.KA-40-T-7262 in favour of respondent No.2 or respondent No.3. On search and verification the 1st respondent could not find the alleged insurance policy in it's records. The alleged insurance policy is a fake document, created for the purpose of filing the false claim petition and to have wrongful gain. This respondent is not a necessary party to the petition and the petition is bad for misjoinder of party.
6 SCCH-24 M.V.C.5540/2011
7. The 1st respondent has denied the entire allegations made in the claim petition and put the petitioner to strict proof of the same. The 1 st respondent has contended that, the compensation claimed by the petitioner is highly excessive, imaginary and unreasonable. The 1st respondent has denied that, the accident took place due to the rash and negligent driving of the Water Tanker Tractor. It is the contention of the respondent No.1 that, the accident if any, was due to the negligence of the petitioner himself, who was unmindful of the traffic rules and regulations, without following lane discipline and giving way to other vehicles, dashed against the water tanker tractor. The 1 st respondent has contended that, the tractor driver had no valid driving licence authorizing him to drive the tractor at the time of accident.
8. The 1st respondent has contended that, if either the petitioner or the owner of the alleged tractor furnish 7 SCCH-24 M.V.C.5540/2011 the correct insurance policy particulars and the same is found to be valid and in force, the liability of this respondent is subject to the terms and conditions of the policy, the driving licence of the driver of the vehicles involved in the accident, the registration and fitness certificate and permit of the vehicle. The 1 st respondent has contended that, the petition is bad for non-joinder of necessary parties. For all these reasons, prayed to dismiss the petition.
9. On the basis of the pleadings and rival contentions of both the parties the following issues were framed.
ISSUES
1. Whether the petitioner proves that he sustained grievous injuries in a road traffic accident on 13.02.2011 at about 2.15 p.m., infront of Dhanavantri hospital, Hegdenagar, on account of rash and negligent driving of the Water Tanker Tractor bearing Reg.No.KA-40-T- 7762 by its driver?
8 SCCH-24 M.V.C.5540/2011
2. Whether the petitioner is entitled to claim compensation? If so, from whom?
3. What Order or Award?
10. In order to substantiate the case made out by the petitioner, the petitioner got himself examined as P.W.1 and got marked Ex.P.1 to Ex.P.19. Thereafter, the petitioner closed his side evidence.
11. In order to rebut the evidence so placed on record by the petitioner, the Respondent No.1 has examined one witness as R.W.1 and got marked Ex.R.1 to Ex.R.3. Thereafter, Respondents side evidence closed.
12. Heard the arguments. Perused the materials placed on record.
13. My findings on the above issues are as here under:
Issue No.1 : In the Affirmative.
Issue No.2 : Partly in the Affirmative.
The petitioner is entitled
for a total compensation
of Rs.32,154/- with
9 SCCH-24
M.V.C.5540/2011
interest at 6% per
annum.
From Respondent No.2
and 3.
Issue No.3 : As per final order,
for the following:-
REASONS
Issue No.1:
14. It is the case of the petitioner that, on 13.03.2011 at about 2.15 p.m., the petitioner was riding the Pulsar Motor Cycle bearing Reg.No.KA-05-EQ-9034 carefully on the left side of Bellalli Cross towards Hegdenagar infront of Hegdenagar Dhanavantri hospital, at that time, the Water Tanker bearing Reg.No. KA-40-T-
7262 came from Hegdenagar side with high speed and in a rash and negligent manner and dashed against the petitioner's motor cycle. Due to impact the petitioner sustained grievous injuries.
10 SCCH-24 M.V.C.5540/2011
15. In order to prove the actionable negligence, the petitioner himself entered into witness box and filed his affidavit in lieu of examination-in-chief and got examined as P.W.1. He reiterates the averments and the allegations made in the petition. He has deposed that, the accident took place solely due to the rash and negligence of the driver of the Water Tanker Tractor bearing Reg.No. KA-40-T-7262. During the course of cross-examination, nothing worthwhile material has been elicited from the mouth of this witness to discredit his version in the examination-in-chief.
16. The petitioner has relied upon various police documents produced at Ex.P.1 to Ex.P.7. Out of these documents, Ex.P.1 is the copy of the First Information Report, Ex.P.2 is the copy of the Complaint, Ex.P.3 is the copy of the Spot Sketch, Ex.P.4 is the copy of the Mahazar, Ex.P.5 is the copy of the IMV Report, Ex.P.6 is the copy of the Wound Certificate and Ex.P.7 is the copy 11 SCCH-24 M.V.C.5540/2011 of the Charge Sheet. Ex.P.1, i.e. the copy of First Information Report discloses that the criminal case has been registered against the driver of the Water Tanker Tractor bearing Reg.No. KA-40-T-7262 for the offences punishable under Sec.279 and 337 of the Indian Penal Code. After thorough investigation, the police have filed the charge sheet against the driver of the Water Tanker Tractor bearing Reg.No. KA-40-T-7262 for the offences punishable under Sec.279 and 338 of Indian Penal Code. Thus, the contents Ex.P.1 to Ex.P.7 prima-facie establishes the rash or negligence on the part of the driver of the Water Tanker Tractor bearing Reg.No.KA-40- T-7262.
17. The respondent No.1 has taken specific defence that, the alleged accident took place due to the rash and negligence of the petitioner himself. R.W.1 is the Assistant Manager of the respondent No.1 Company. R.W.1 in her affidavit evidence has not deposed anything 12 SCCH-24 M.V.C.5540/2011 with regard to the negligence on the part of the petitioner. Respondent No.2 and respondent No.3 being the owners of the said Car have not appeared before this Tribunal as they have been placed exparte. They have not contested the case. Under these circumstances, the evidence of P.W.1, coupled with the contents of the police documents, establishes that, the accident has caused solely due to the rash or negligent driving of the Water Tanker Tractor bearing Reg.No.KA-40-T-6272 by its driver. Ex.P.6 i.e., the Wound Certificate discloses that, the petitioner had sustained injuries in the said accident. Accordingly, issue No.1 is answered in the Affirmative. Issue No.2:
18. The petitioner has sustained injuries in the said accident. He has relied upon Ex.P.6, i.e. the Wound Certificate issued by Bangalore Baptist Hospital, Bengaluru. Ex.P.6 shows that the petitioner had sustained following injuries.
13 SCCH-24 M.V.C.5540/2011
1. Injury to the right shoulder.
2. Head Injury with right bone fracture. Acute contusion, Fracture of Lumina payracea of right on vital wall and frontal vital wall. Laceration over Forehead.
3. Abrasion and laceration of lip. There is no much dispute with regard to the injuries sustained by the petitioner in the accident. In view of my findings recorded on issue No.1, the petitioner has suffered these injuries because of the actionable negligence on the part of the driver of the Water Tanker Tractor bearing Reg.No.KA-4-T-7262. Hence, the petitioner is entitled for the compensation.
19. It is stated in the petition as well as in the evidence that, immediately after the accident the petitioner was shifted to Baptist Hospital and took treatment. Taking into consideration of the nature of the injuries and treatment, I am of the considered opinion that the petitioner has suffered severely due to the said 14 SCCH-24 M.V.C.5540/2011 accidental injuries. Hence, the petitioner is entitled for a sum of Rs.15,000/- towards pain and suffering.
20. It is stated in the petition as well as in the evidence of P.W.1 that, he has spent Rs.2,50,000/- towards hospital and medicine expenses, transportation, food, nourishment and conveyance. The petitioner has produced Ex.P.8 i.e., the prescription, Ex.P.9 i.e., the Inpatient Pharmacy Cash Receipt amounting to Rs.3,375/- and Ex.P.10 to Ex.P.19 i.e., the 10 medical bills amounting to Rs.9,329/-. Out of which the bill at Ex.P.14 is the Ambulance service bill amounting to Rs.550/- and Ex.P.19 is the IP Advance Receipt amounting to Rs.5,000/- and it is mentioned in Ex.P.10 final bill. Hence, the bills at Ex.P.14 and Ex.P.19 are not considered. Taking all these facts into consideration and actual bills amount, the petitioner is entitled for a sum of Rs.12,154/- towards medical expenses.
15 SCCH-24 M.V.C.5540/2011
21. It is the evidence of the P.W.1 that, immediately after the accident he was shifted to Baptist hospital and after discharge he took follow-up treatment. Ex.P.10 final bills issued by Bangalore Baptist Hospital, Bangalore shows that, the petitioner took treatment as an inpatient from 13.03.2011 to 14.03.2011 for a period of 2 days. During the said period the petitioner must have spent money for food and nourishment, attendant and conveyance. In this regard the petitioner has not produced any material evidence. Ex.P.14 shows that, the petitioner has spent Rs.550/- towards ambulance service charges. In the absence of documentary evidence and having regard to all these aspect, I am of the considered opinion that, the petitioner is entitled for a sum of Rs.5,000/- towards Food and Nourishment expenses, attendant and conveyance charges.
22. The case of the petitioner is that, at the time of accident, he was doing Carpenter work and earning a 16 SCCH-24 M.V.C.5540/2011 sum of Rs.12,000/- per month. Due to the accidental injuries, he is not able to do any work and facing lot of mental shock and financial loss. Except the self testimony of P.W.1, no documents are produced to show about his avocation and earnings. The petitioner has not produced any documents or examined the treated doctor to show that, he has taken follow up treatment. So under these circumstances, it appears that, the petitioner has not suffered any loss during the treatment period. Hence, in the considered view of this Tribunal, the petitioner is not entitled for the compensation towards loss of income during treatment period, loss of future earning and loss of amenities. Thus, I am of the considered opinion that, it would be both fair and justifiable to award the compensation under the following heads :
1. Pain and suffering. : Rs.
15,000=00
2. Medical expenses. : Rs.
17 SCCH-24 M.V.C.5540/2011 12,154=00
3. Food and Nourishment : Rs.
expenses, attendant and 5,000=00 conveyance charges.
Total Rs.
32,154=00
So, the petitioner is entitled for a total compensation of Rs.32,154/- (Rupees Thirty Two Thousand One Hundred and Fifty Four only) with interest at the rate of 6% per annum from the date of petition, till the date of realisation.
23. It is held supra by this Tribunal that the accident has occurred due to the rash and negligent driving of the Water Tanker Tractor bearing Reg.No.KA- 40-T-7262 by its driver. The respondent No.1 is the insurer, respondent No.2 is the present R.C. owner and respondent No.3 is the previous owner of the Water Tanker Tractor bearing Reg.No.KA-40-T-7262. The 1 st respondent has taken specific defence that, the insurance 18 SCCH-24 M.V.C.5540/2011 company has not issued the alleged insurance policy No.3B MM 10 in respect of Water Tanker Tractor bearing Reg.No.KA-40-T-7262 in favour of respondent No.2 or respondent No.3. On search and verification the 1 st respondent could not find the alleged insurance policy in it's records. The alleged insurance policy is a fake document, created for the purpose of filing the false claim petition and to have wrongful gain.
24. In order to substantiate the above said contention, the 1st respondent has examined Assistant Manager as R.W.1. R.W.1 in her affidavit evidence has corroborated the contents of written statement. R.W.1 has deposed that, all the insurance policies issued by the 1st respondent company is with prefix or single digit '1' before hypen and it has not issued any insurance policy with prefix '3B' before hypen. The standard description of tractor mentioned in the insurance policy issued by the company would read as "ICV D Tractor GT 6 HP" and not 19 SCCH-24 M.V.C.5540/2011 "Tafe Ltd., MF Tractor 1035 dl Diesel" as found in the copy of insurance policy relied upon by the petitioner. R.W.1 has stated that, the round seal at the bottom of the insurance policy relied upon by the petitioner differs and the respondent No.1 insurance company seal reads as "Iffco Tokio General Insurance Co., Ltd., CSC, Bangalore". But in the copy of insurance policy relied upon by the petitioner reads as "IFCO TOKYO GIC Ltd., Bangalore". R.W.1 has further deposed that, there are various discrepancies in the usual format of Insurance Policy issued by the 1st respondent insurance company and the Xerox copy of the insurance policy relied upon by the petitioner. R.W.1 has further deposed that, they have got issued legal notice dated:16.08.2012 calling upon the 2 nd respondent Sri. Govindaraj to furnish the original insurance policy, the vehicle documents of the Tractor and the driving licence of the driver on the wheels at the time of the alleged accident. The said registered notice 20 SCCH-24 M.V.C.5540/2011 has returned unserved due to "Insufficient address". R.W.1 has produced copy of legal notice issue to the owner of the Tractor bearing Reg.No.KA-40-T-7262 as Ex.R.1, unserved notice as Ex.R.2, postal cover as Ex.R.2(a). Ex.R.1 is the legal notice issued by the 1 st respondent to the 2nd respondent, i.e., the owner of the Water Tanker Tractor bearing Reg.No.KA-40-T-7262. The contents of Ex.R.1 and Ex.2 are one and the same and they clearly shows that, the 1 st respondent has called upon the 2nd respondent to furnish the insurance policy and other documents along with the driving licence of the driver the of the Water Tanker Tractor. Ex.R.2(a) clearly shows that, the said notice was unserved due to insufficient address.
25. It is pertinent to note that, as per the cause title the 2nd respondent is the R.C. owner of the Water Tanker Tractor bearing Reg.No.KA-40-T-6272. Inspite of service of notice the 2nd respondent has not appeared 21 SCCH-24 M.V.C.5540/2011 before the court and contested the case. The 2 nd respondent has also not replied to the notice issued by the 1st respondent with regard to production of policy and vehicle documents for the purpose of this case. Petitioner has also not produced the insurance policy in respect of the Water Tanker Tractor. R.W.1 has also not been cross- examined by the petitioner to discredit her version in the examination-in-chief. Whatever spoken by the R.W.1 has remained intact. Thus, the oral evidence of R.W.1 coupled with the documents produced at Ex.R.1 and Ex.R.2, Ex.R.2(a) clearly shows that, the 2 nd respondent has failed to furnish the original policy in respect of Water Tanker Tractor bearing Reg.No.KA-40-T-7262. Hence, the oral and documentary evidence placed on record by the respondent No.1 discloses that, there was no insurance coverage in respect of the Water Tanker Tractor bearing Reg.No.KA-40-T-7262 as on the date of the accident. Hence, respondent No.1 is not liable to indemnify the 22 SCCH-24 M.V.C.5540/2011 respondent No.2 and respondent No.3 and also not liable to pay the compensation to the petitioner. Thus, the respondent No.2 and respondent No.3 being the owner of the Water Tanker Tractor bearing Reg.No.KA-40-T-7262 are only liable to pay the compensation to the petitioner. Accordingly, issue No.2 is answered partly in the Affirmative.
Issue No.3:
26. For the foregoing reasons and the discussions as stated above, the petition filed by the petitioner deserves to be allowed in part with costs.
In result, I proceed to pass the following:
ORDER Petition filed under Section 166 of Motor Vehicles Act by the petitioner is hereby allowed in part with costs. Petition against respondent No.1 is dismissed.
23 SCCH-24 M.V.C.5540/2011 The petitioner is awarded a total compensation of Rs.32,154/- (Rupees Thirty Two Thousand One Hundred and Fifty Four only) with interest at the rate of 6% per annum from the date of petition, till deposit.
The Respondent No.2 and 3 are jointly and severally liable to pay the compensation awarded in this case to the petitioner.
Respondent No.2 and 3 shall deposit the said compensation amount with interest into the Tribunal within 30 days from the date of the order.
After such deposit the petitioner is at liberty to withdraw the entire compensation amount.
Advocate's fee is fixed at Rs.1,000/-. Draw Award Accordingly.
(Dictated to the stenographer on Computer, typed by her, corrected by me and then pronounced in the open court on this the 26th day of March, 2015).
(HIREMATH SHOBHARANI BABAYYA ) XXII ASCJ & MEMBER, MACT-Bengaluru.
ANNEXURE 24 SCCH-24 M.V.C.5540/2011 Witnesses examined on behalf of the Petitioner :
P.W.1 - Wazeer.
Witnesses examined on behalf of the Respondents:
R.W.1 - Ramya.
Documents marked on behalf of the Petitioner:
Ex.P.1 - Copy of First Information Report.
Ex.P.2 - Copy of Complaint. Ex.P.3 - Copy of Rough Sketch. Ex.P.4 - Copy of Mahazar. Ex.P.5 - Copy of IMV Reports. Ex.P.6 - Copy of Wound Certificate. Ex.P.7 - Copy of Charge Sheet. Ex.P.8 - Prescription. Ex.P.9 - Inpatient Pharmacy Cash Receipt. Ex.P.10 - 10 Medical Bills. to 19
Documents marked on behalf of the Respondents:
Ex.R.1 - Copy of Legal Notice issued to the 2nd respondent by the 1st respondent.
Ex.R.2 - Unserved Legal Notice issued to the 2nd respondent by the 1st respondent.
Ex.R.2(a - Postal Cover.
)
Ex.R.3 - Authorization Letter.
25 SCCH-24
M.V.C.5540/2011
(HIREMATH SHOBHARANI BABAYYA ) XXII ASCJ & MEMBER, MACT-Bengaluru.
AWARD BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA & XXII A.S.C.J, BENGALURU CITY M.V.C.No.5540/2011 Petitioner: Wazeer Rehaman, Son of Ajam Sab, # 389, Gundurao, (Telecom) layout, Bangalore-45.
(Represented By Sri. B.V. Sudhakar-
Advocate-Bengaluru). 26 SCCH-24 M.V.C.5540/2011
-Versus-
Respondents 1. Iffco Tokio General Insurance Co. Ltd., : Next to Mandovi Motors, Cristu Complex, Lavelli road, Bangalore.
2. Govindaraj, Rachenahalli (V), Arabic College, K.R. Puram, Bangalore-45.
(R.C. Owner of vehicle No.-40-T-6272)
3. Sri. C.N. Mahesh, Son of Narayanaswamy, Chowdasandra (V), Sidlagbatta Taluk, Chikballapur District.
(Res. No.1 : By Sri. B. Anjaneyalu-
Advocate-Bengaluru).
Res.No.2 : Ex-parte Res.No.3 : Ex-parte).
WHEREAS, this petition filed on by the Claimant/s above named U/sec.166 of the M.V.Act, praying for the compensation of Rs.
(Rupees Only) for the injuries sustained by the Claimant/Death of In a Motor Accident by Vehicle NO.
27 SCCH-24 M.V.C.5540/2011 WHEREAS, this claim petition coming up before Smt. HIREMATH SHOBARANI BABAYYA XXII A.S.C.J, Member, MACT, Bengaluru in the presence of Sri/Smt. Advocate for Claimant/s and of Sri.Smt. Advocate for respondent.
ORDER Petition filed under Section 166 of Motor Vehicles Act by the petitioner is hereby allowed in part with costs. Petition against respondent No.1 is dismissed.
The petitioner is awarded a total compensation of Rs.32,154/- (Rupees Thirty Two Thousand One Hundred and Fifty Four only) with interest at the rate of 6% per annum from the date of petition, till deposit.
The Respondent No.2 and 3 are jointly and severally liable to pay the compensation awarded in this case to the petitioner.
Respondent No.2 and 3 shall deposit the said compensation amount with interest into the Tribunal within 30 days from the date of the order.
28 SCCH-24 M.V.C.5540/2011 After such deposit the petitioner is at liberty to withdraw the entire compensation amount.
Advocate's fee is fixed at Rs.1,000/-. Draw Award Accordingly.
Given under my hand and seal of the Court this day of 2015.
MEMBER MOTOR ACCIDENT CLAIMSTRIBUNAL, METROPOLITAN AREA BENGALURU.
By the
Claimant /s Respondent
Court fee paid on 10.00
petition
Court fee paid on 00.00
process
Pleaders Fee
Total RS.
Decree Drafted Scrutinised by MEMBER
MACT,METROPOLITAN AREA
BENGALURU.
29 SCCH-24
M.V.C.5540/2011
Decree Clerk SHERISTEDAR
30 SCCH-24
M.V.C.5540/2011
26.03.2015
Judgment pronounced in open court (Vide separate Judgment) ORDER Petition filed under Section 166 of Motor Vehicles Act by the petitioner is hereby allowed in part with costs. Petition against respondent No.1 is dismissed.
The petitioner is awarded a total compensation of Rs.32,154/- (Rupees Thirty Two Thousand One Hundred and Fifty Four only) with interest at the rate of 6% per annum from the date of petition, till deposit.
The Respondent No.2 and 3 are jointly and severally liable to pay the compensation awarded in this case to the petitioner.
Respondent No.2 and 3 shall deposit the said compensation amount with interest into the Tribunal within 30 days from the date of the order.
After such deposit the petitioner is at liberty to withdraw the entire compensation amount.
Advocate's fee is fixed at Rs.1,000/-. Draw Award Accordingly.
31 SCCH-24 M.V.C.5540/2011 XXII ASCJ & MEMBER, MACT-Bengaluru.