Bangalore District Court
Mr.Sumit Kumar vs Icici Lombard General on 4 December, 2015
BEFORE THE MEMBER PRL.MOTOR ACCIDENT
CLAIMS TRIBUNAL AT BANGALORE
(S.C.C.H. - 1)
DATED THIS THE 4th DAY OF DECEMBER 2015
PRESENT : SRI H.P.SANDESH, B.A.L., LL.B,
MEMBER, PRL. M.A.C.T.
M.V.C No.3478/2014
Petitioner: Mr.Sumit Kumar
S/o Yashpal Sharma,
Aged about 34 years,
R/at No.83, 4th cross,
Chinnappanahalli,
Doddanakundi Extension,
Marathahalli,
Bangalore -560 037.
(By Sri. P.P., Advocate.)
-Vs-
Respondents: 1. ICICI Lombard General
Ins.Co.Ltd.,
T.P.Claim Hub, No.89, 2nd floor,
SVR Complex,
Hosur Main Road,
Madiwala,
Bangalore -560 068.
(Policy No.3003/66429454/
02/000
Valid from 04.12.2013 to 03-12-
2014)
(By Sri M.M.R., Advocate )
SCCH-1 2 MVC No.3478/2014
2. Mr.Rajanna M.S.,
R/at Melehalli Village,
Bommasandra Post,
Kora Hobli,
Tumkur Taluk,
Tumkur-572 101.
(By Sri H.N.M., Advocate)
JUDGMENT
The petitioner has filed this petition under Section 166 of the of the Motor Vehicles Act, 1989 seeking compensation of Rs.20,00,000/- for the injuries sustained by him in the road traffic accident.
2. Brief facts of the case are that:-
It is the case of the petitioner that on 20.05.2014 at about 9.30 p.m. when he was riding motor cycle bearing NO.KA-03-EX-9733 along with his friend and when he reached near Singasandra , the driver of Eicher canter bearing No.KA-52-2812 came in a rash and negligent manner and dashed against the motor cycle of the SCCH-1 3 MVC No.3478/2014 petitioner and petitioner fell down and sustained grievous injuries and the motor cycle was severely damaged.
3. Immediately after the accident he was shifted to Live 100 hospital , wherein he took first aid and then shifted to Yashomathi hospital , wherein the petitioner took treatment as inpatient . It is the contention of the petitioner that he was aged 34 years and was working as Operation Manager and earning Rs.50,000/p.m. Due to the accident he has lost all his income and he has suffered permanent disability. The accident was occurred due to the rash and negligent driving of the driver of the offending vehicle bearing No KA-52-2812 . The first respondent is the insurer and second respondent being the owner of the offending vehicle bearing NO. KA-52-2812 are jointly and severally liable to pay the compensation of Rs.20,00,000/-.
4. In pursuance of this claim petition, this Court has issued notice against the respondents. Respondent No.1 appeared through his counsel and filed written SCCH-1 4 MVC No.3478/2014 statement. Respondent NO.2 has not chosen to appear before the Court and he was placed exparte.
Respondent No.1 has filed written statement denying the petition averments. Further contended that accident occurred due to the carelessness of petitioner himself . It has also contended that the eicher canter vehicle bearing No. KA-52-2812 has not at all involved in the accident , the vehicle was falsely implicated in the case. There is a delay of 9 days in lodging the complaint which clearly shows that there is collusion between the petitioner , owner and driver of the offending vehicle.
5. This respondent has admitted the issuance of policy and the policy was valid as on the date of the accident. The driver of the offending vehicle did not possess valid and effective driving licence as on the date of the accident and the liability is subject to terms and conditions of the policy. This respondent has denied the age, avocation, income , medical expenses spent towards treatment, permanent disability suffered by the petitioner etc. It is further contended that the second respondent SCCH-1 5 MVC No.3478/2014 owner has not complied the statutory obligation under section 134(c) of M.V.Act and the concerned police have not complied the provisions of section 158 of M.V.Act. It is also contended that the claim made by the petitioner is exorbitant .
6. It is also contended that there was no rashness or negligent on the part of the driver of the eicher canter bearing NO. KA-52-2812 but the unfortunate accident was due to the carelessness on the part of the rider of the motor cycle. It is further contended that the second respondent reserves his right to amend its statement of objection and also to take over the defence of the insured in the event of the owner does not contest the proceedings under section 170 of M.V.Act. Hence, prays to dismiss the petition.
7. Based on the pleadings this Court has framed the following:-
ISSUES SCCH-1 6 MVC No.3478/2014
1. Whether the petitioner proves that he sustained grievous injuries in a Motor Vehicle Accident that occurred on 20.05.2014 at about 09.30 p.m. near Singasandra, Hosur road, Bangalore , within the jurisdiction of electronic city Traffic Police station on account of rash and negligent driving of the eicher canter bearing registration No. KA-52-2812 by its driver?
2. Whether the respondent NO.1 proves that the accident occurred on account of negligence act of the petitioner ?
3. Whether the Petitioner is entitled for compensation? If so, how much and from whom?
4. What order?
8. The petitioner in order to prove his case, he examined himself examined as PW1 and has examined three witnesses as PW2 to 4 and they have got marked the documents at Ex.P.1 to 23. The respondents have examined one witness as RW-1 and have got marked documents Ex.R.1 and 2 .
9. Heard the arguments of petitioner counsel and . Respondent counsel .
SCCH-1 7 MVC No.3478/2014
10. Having perused the arguments based on the pleadings and the evidence available on record, I record my findings on the above issues as under:-
1) Issue No.1 ... In the Affirmative,
2) Issue No.2 ... In the negative
3) Issue No.3 ... Partly in the Affirmative,
4) Issue No.4 ... As per final order
for the following:-
REASONS
11. Issue No.1 and 2: These two issues are inter- connected to each other and they are taken up together for discussion in order to avoid repetition.
12. It is the case of the petitioner that on 20.05.2014 at about 9.30 p.m. when he was riding motor cycle bearing NO.KA-03-EX-9733 along with his friend and when he reached near Singasandra , the driver of Eicher canter bearing No.KA-52-2812 came in a rash and negligent manner and dashed against the motor cycle of the petitioner and he fell down and sustained grievous injuries and his motor cycle was severely damaged. SCCH-1 8 MVC No.3478/2014
13. On the other hand, the respondent has denied the accident and contended that accident occurred on account of negligence on the part of the petitioner himself as the unfortunate accident was occurred due to the carelessness on the part of the rider of the motor cycle.
14. The petitioner in order to prove his case he examined himself as PW-1 and he reiterated the averment of the petition in his affidavit and also he has got marked copy of FIR, charge sheet, sketch ,mahazar, IMV report , wound certificate as Ex.P.1 to 6. He was subjected to cross-examination. In the cross- examination, it is elicited that he was riding the motor cycle 30 to 40 kms speed per hour and prior to the accident he was moving after the traffic signal and almost proceeded half a kilometer from the place of signal. The pillion rider one Asha was his colleague and when she shouted at that time he saw the vehicle was coming from his rear side and he himself and his friend were proceeding in the same direction at that time his friend shouted since the truck came near their vehicle. Ex.P.3 SCCH-1 9 MVC No.3478/2014 sketch correctly drawn by the police. It is suggested that the accident was occurred in the middle of the road and same was denied. The truck came in contact with his vehicle near the petrol tank and ahead of it and the truck has not dashed the back portion of his vehicle. The offending vehicle driver stopped the vehicle and at that time himself and his friend saw the vehicle number and the driver also accompanied them to Live 100 hospital since the truck driver's key was with his friend pillion rider and he managed to obtain the key and he left the place and also he reveled how the accident was taken place when he went to hospital . It is suggested that on the date of the accident his motor cycle skidded and hence, he fell down due to his negligence and truck was not involved in the accident and the said suggestion was denied. It is further suggested that truck was implicated in the case only to get compensation though it was not involved in the accident and the said suggestion was denied.
SCCH-1 10 MVC No.3478/2014
15. The respondents have examined the Manager- Legal Department as RW-1 and in the affidavit he has contended that there is delay in lodging the complaint and it clearly goes to prove the discrepancies in regard to involvement of the insured eicher vehicle as well implant of insured eicher No. KA-52-2812 for unlawful gain by colluding with respondent NO.2 and the accused driver of the vehicle was falsely implicated. The respondent relied upon Ex.R.1 and R.2 . In the cross-examination he admits that he has not witnessed the accident and he is giving evidence based on the records. It is suggested that immediately after the accident he went to Live 100 hospital and MLC was registered in the said hospital and witness says he does not know the same. It is suggested that he filed false affidavit before the Court to absolve their liability and said suggestion was denied.
16. Now, let me appreciate both oral and documentary evidence on record. Admittedly RW-1 is not an eye witness and the respondents have not examined the driver of the canter (truck) who was the right person SCCH-1 11 MVC No.3478/2014 to speak about the negligence of the petitioner . Hence, this Court has to rely upon the injured evidence and documentary evidence . PW-1 in his complaint he made specific allegations against the driver of the eicher canter alleging that the driver was driving the vehicle in a rash and negligent manner and hit his motor cycle , as a result he fell down and sustained injuries and public who gathered there shifted him to hospital . Based on the complaint FIR was registered and it is marked at Ex.P.1 and after investigation police have filed charge sheet against the driver of the offending vehicle, Ex.P.3 sketch discloses that the rider of the motor cycle was proceeding towards Bangalore and the truck also came in the same direction. Ex.P.3 sketch depicts the driver of the canter went towards the motor cycle and caused the accident as deposed by PW-1 since his friend shouted he saw the vehicle was coming from their rear side . PW-1 categorically says that Ex.P.3 is correctly drawn by the police and the driver of the truck instead of going left side of the road he took the vehicle towards right side and SCCH-1 12 MVC No.3478/2014 accident is on account of the negligent act of the petitioner. The respondent ought to have examined the driver of the truck and they have not examined him only contention was taken that motor cycle skidded and hence, petitioner fell down due to his negligence and truck was not involved in the accident and in order to substantiate the same no cogent evidence is placed. IMV report discloses that the motor cycle sustained head light assembly damaged, handle bar , fuel tank, crash guard was damaged. If the offending vehicle was not involved in the accident the respondent ought to have taken proper steps and admittedly charge sheet has been filed against the driver of the offending vehicle and the same has not been challenged. In the absence of contra and cogent evidence, this Court has to accept the evidence of PW-1 and RW-1 is not an eye witness and his evidence cannot be accepted. After considering both the oral and documentary evidence petitioner has proved the negligence of the driver of the offending canter vehicle bearing No. KA-52-2812 . In order to consider the SCCH-1 13 MVC No.3478/2014 contributory negligence there must be cogent evidence as held in the judgment reported in (2014 Kant.M.A.C. 330 (SC) ( Meera Devi and another )-No cogent evidence to prove plea of contributory negligence, doctrine of common law cannot be applied - compensation awarded by this Tribunal just and proper. Hence, I answer issue No.1 in the affirmative and issue No.2 in the negative.
17. ISSUE No.3: It is the case of the petitioner that on account of the accident he has sustained grievous injuries . In order to substantiate his contention, he has got marked wound certificate and discharge summary at Ex.P.6 and 7 which discloses that the petitioner has suffered grievous injury i.e., silencer burns (II degree) over the posterior aspect of right ankle with multiple abrasions over back and lower limbs and he was inpatient from 21.5.2014 to 24.5.2014. Wound certificate also discloses history of multiple abrasions and wound certificate also not specific regarding nature of the injuries only it is opined injuries SCCH-1 14 MVC No.3478/2014 are grievous in nature. Petitioner was subject to excisional debridement (Tangeatial excision) +split thickness skin grafting , POP application was done . He was inpatient for 3 days. The petitioner also produced discharge summary of Apolo hospital which discloses petitioner was inpatient from 30.7.2014 to 02.8.2014 , he was inpatient for 3 days. He was subjected to surgery of left knee arthroscopic ACL reconstruction under CSE. The petitioner also produced his appointment letter as per Ex.P.8 . The petitioner also relied upon the evidence of PW-2 and 3 apart from Ex.P.9 to 15, case sheet of Apollo hospital and Yashomathi hospital is at Ex.P.19 and 21. The petitioner also examined Senior Asst. Record incharge of Apollo hospital as PW-3. The evidence of PW-2 and 3 is not important only production of documents they have been examined.
18. Now , let me see the evidence of PW1. PW-1 has reiterated the nature of the injuries and period of treatment he took. He was subjected to cross- examination. In the cross-examination he admits that SCCH-1 15 MVC No.3478/2014 immediately, he was shifted to Live 100 hospital thereafter he took treatment at Yashomathi hospital as inpatient . It is suggested that there is no mention in the wound certificate as regards to burn injury but they have mentioned injury is grievous in nature and plastic surgery and the same is admitted. He says he was getting salary of Rs.50,000/- at the time of the accident and now also he is working in the same company and getting salary of Rs.50,000/-p.m. He admits that he has not produced the final settlement bill and the Ex.P.13 serial No. 1 discloses about the payment made by him to the tune of Rs.6,787/- he has not produced any leave certificate before the Court. It is suggested that he has not sustained any bony fracture and hence, there was no need to take the rest for a period of two months after the discharge and the said suggestion was denied.
19. Now , let me appreciate the evidence of PW-4 . PW-4 is the doctor . He in his evidence says that the petitioner has suffered complete ACL tear left and under went ACL reconstruction and he says the disability 14% SCCH-1 16 MVC No.3478/2014 of left lower limb and 7% to whole body. In the cross- examination , he admits that he has not treated the patient. Further he admits that as per wound certificate Ex.P.6 it is mentioned as he has suffered multiple abrasions and also admits in the discharge summary there is no any reference about ACL tear left knee. In the discharge summary of Apollo hospital , it is mentioned about the earlier accident and also history of falling down suddenly in certain positions. He further admits that the injury of ACL tear left knee was not diagnosed at the first instance when the patient went to Yashomathi hospital . Further admits that the injury of ACL tear on left knee may occur in case of falling down suddenly in certain positions. He also admits that he has not assessed the disability with regard to the first injury. He does not know about the ACL tear of left knee was not occurred due to the accidental injury.
20. Now , let me appreciate both the oral and documentary evidence available before the Court. On perusal of the evidence of PW-1 , he says on account of SCCH-1 17 MVC No.3478/2014 the accidental injuries he has suffered multiple abrasions and also he took treatment at the first instance for a period of 4 days and he was subjected to excisional debridement and other treatment. Again he was admitted to hospital and he took treatment as inpatient for 4 days and diagnosed complete left ACL tear of left leg and re-construction was done. It is also his case that he had spent Rs.1,00,000/- towards medication and earning gross salary of Rs.57,088/- and net salary of Rs.49,344/. He has suffered both mentally and physical disablement.
21. He admits that there is no mention in the wound certificate as regards to burn injury but he claims that they have mentioned nature of injury as grievous in nature and plastic surgery. For having taken note of the Ex.P.6 wound certificate , it is only mentioned as multiple abrasion and subjected to plastic surgery. On perusal of Ex.P.7 also , it is clear that he has suffered silencer burns (II degree) over the posterior aspect of right ankle with multiple abrasions over back and lower limbs and he was subjected to excisional debridement SCCH-1 18 MVC No.3478/2014 (Tangeatial excision)+ aplit thickness skin grafting +POP application done on 22.5.2014 . On perusal of the Ex.P.6 and 7 there is no any proof regarding the fact that the petitioner has suffered ACL tear and also it is important to note that the petitioner has relied upon discharge summary of Apollo hospital wherein he was admitted on 30.7.2014 and discharged on 02.08.2014 and reconstruction was done. In the discharge summary it is mentioned history of falling down suddenly in certain positions and this history is mentioned and petitioner was admitted by PW-2 doctor. In the cross-examination of PW-2 when a question was suggested to him that the injury is not on account of accidental injury he says he does not know the same. For having considered the documentary proof and oral evidence of PW-1 and 4 and wound certificate , discharge summary , there is no proof regarding he has suffered ACL tear injury and in view of the entry found in discharge summary that history of falling down suddenly in certain position has not been explained by PW-1 and from the evidence of the PW-4 SCCH-1 19 MVC No.3478/2014 also it is clear that there is no any reference about ACL tear and the discharge summary and in the discharge summary of Apollo hospital , it is mentioned that earlier history of falling down suddenly in certain positions. ACL tear was not diagnosed at the first instance and when the patient went to Yashomathi hospital it was diagnosed. Hence, it is clear that ACL tear is not on account of the accident . Even though Doctor is examined as PW-4 same will not come to the aid of petitioner . Hence, the disability assessed by the doctor cannot be accepted. In view of this Court has to come to the conclusion that ACL tear is not an accidental injury and the citation given by the respondent in ILR 2000 Kar 3443, 2003 ACJ 332 , ILR 2010 Kar. 2439 is not applicable to the case on hand.
22. It is also the evidence of PW-1 in the cross- examination that he continued the very same job and now he is getting gross salary of Rs.57,088/- and net salary of Rs.49,344/. Hence, question of awarding SCCH-1 20 MVC No.3478/2014 compensation under the head of loss of income does not arise at all.
23. For having considered the nature of the injury found in wound certificate and the treatment which provided to the petitioner in terms of Ex.P.7 discharge summary , he was subjected to excisional debridement (tangeatial excision) + split thickness skin grafting +POP application done . He was inpatient from 21.5.2014 to 24.5.2014 and no documentary proof is there to show that petitioner has suffered disability on account of the accidental injuries. Hence, it is a fit case to award a global compensation of Rs.75,000/- including pain and sufferings, incidental expenses such as conveyance, food and nourishment , loss of income during the period of treatment , loss of amenities and other expenses.
24. The petitioner has produced medical bills to the tune of Rs.27,366/- and in the cross-examination, he admits that he has not produced the final bill but he admits Ex.P.13 sl.No.1 discloses about the payment made by him to the tune of Rs.6,787/- and also he has SCCH-1 21 MVC No.3478/2014 not produced any leave certificate before the Court to show that he was on leave . On perusal of Ex.P.13 final bill issued by Yashomathi hospital , petitioner is entitled for compensation of Rs.7446/- which is rounded off to Rs.7,500/-. The remaining amount in respect of medical bills was received from the insurance company . Hence, I award Rs.7,500/- towards medical bills.
25. The details of compensation, I propose to award are as under:
Sl. Head of Compensation Amount
No.
1. Global compensation Rs. 75,000-00
2. Medical expenses Rs. 7,500-00
Total Rs. 82,500-00
26. Relying upon a judgment of the Apex Court reported in 2013 AIR SCW 5375 (Minu Rout and others Vs. Satya Pradyumna Mohapatra and others), with regard to interest at the rate of 9% p.a. on the compensation amount, in para 13 of the judgment, the SCCH-1 22 MVC No.3478/2014 Apex Court held that Insurance Company is also liable to pay interest at the rate of 9% p.a. from the date of application till the date of payment and also by following the principles laid down in (2011) 4 SCC 481: (AIR 2012 SC 100) (Municipal Council of Delhi Vs. Association of Victims of Uphaar Tragedy). In view of the above judgments with regard to the rate of interest, and also it is settled law that while awarding interest on the compensation amount, the Court has to take into account the rate of interest of the nationalized bank and the rate of interest at 9% cannot said to be on the higher side. Accordingly, the petitioner is entitled to interest at the rate of 9% p.a.
27. The counsel appearing for the respondent has contended that the offending vehicle had no fitness certificate as on the date of the accident and hence, insurance company is not liable to pay the compensation amount and the counsel appearing for the petitioner has relied upon the unreported judgment passed in M.F.A. No.6621/2006 (MV) ( The New India Assurance Co.Ltd. SCCH-1 23 MVC No.3478/2014 Vs. Sri N.Srinivasa Murthy and others) and in this judgment Hon'ble High Court of Karnataka held:
" the liability of the insurance company cannot be denied on account of the fitness certificate of the lorry was not in force" . The counsel also relied upon the unreported judgment in M.F.A. No.10009/2013 C/w M.F.A. NO.s.10010/2013, 10011 to 10013/2013 and 1336/2014. In this judgment Hon'ble High Court of Karnataka held:
" the insurance company at the time of issuing the policy had not verified the date on which fitness certificate would expire. The insurer having issued the policy without verification of fitness certificate cannot disown its liability".
The counsel also relied upon 1992 ACJ 148 (Alam Yasin Mirzza Vs. V.K.Makwana and others) . In this judgment also Hon'ble High Court of Karnataka held : SCCH-1 24 MVC No.3478/2014
" that the insurance company cannot seek exemption of liability on the ground of no fitness certificate" .
For having considered the principles laid down in the judgments referred supra , I am of the opinion that the insurance company is liable to pay the compensation amount to the petitioner. Admittedly the respondent No.1 is the insurer and respondent No.2 is the owner of eicher canter (truck) bearing No. KA-52-2812, hence, both respondents are jointly and severally liable to pay compensation to the petitioner. However, primary liability is fixed on respondent No.1 insurance company has to satisfy the award. Hence, this issue is answered accordingly.
28. Issue No.4: In the result, I proceed to pass the following: -
ORDER The petition filed by the petitioner is allowed in part against the respondents.SCCH-1 25 MVC No.3478/2014
The petitioner is entitled for total compensation of Rs.82,500/- with interest at the rate of 9% per annum from the date of petition till realization .
The respondents No.1 and 2 are jointly and severally liable to pay the compensation amount with interest. However, the primary liability to pay the compensation amount is fixed on the respondent No.1 - Insurance Company and he is directed to pay the compensation amount within two months from the date of this order.
As the compensation amount is meager , the same along with interest accrued thereon is ordered to be released to the petitioner .
Advocate's fee is fixed at Rs.1000/-. Draw award accordingly.
(Dictated to the Stenographer, transcribed by her, corrected, signed and then pronounced by me in the open Court on this the 4th day of December 2015) (H.P.SANDESH,) Member, Prl. M.A.C.T. Bangalore.SCCH-1 26 MVC No.3478/2014
ANNEXURES:
Witnesses examined on behalf of the petitioners:
P.W.1 : Sumit Kumar P.W.2 : Rajashekar S. P.W.3 : Devaraj P.W.4 : Dr.B.Ramesh
Documents marked on behalf of the petitioners:
Ex.P-1 : Copy of FIR
Ex.P-2 : Copy of charge sheet
Ex.P-3 : Copy of sketch
Ex.P-4 : Copy of mahazar
Ex.P-5 : Copy of IMV report
Ex.P-6 : Copy of wound certificate
Ex.P-7 : Discharge summaries(2)
Ex.P-8 : Appointment letter
Ex.P-9 : Notarised copy of PAN card (original
compared)
Ex.P-10 : Notarised copy of driving licence
card (original compared)
Ex.P-11 : Notarised copy of passport(original
compared)
Ex.P-12 : Notarised copy of company identity
card (original compared)
Ex.P.13 Medical bills (23)
Ex.P.14 X-ray report and lab reports with
prescriptions
Ex.P.15 Two photos with C.D.
Ex.P.16 Salary slip
SCCH-1 27 MVC No.3478/2014
Ex.P.17 Income tax returns (2 in No.)
Ex.P.18 Authorisation letter
Ex.P.19 Case sheet
Ex.P.20 Authorisation letter
Ex.P.21 Case sheet
Ex.P.22 OPD card
Ex.P.23 X-ray
Witnesses examined on behalf of the respondents :
RW-1 Samantha Carey Documents marked on behalf of the respondents:
Ex.R.1 Authorisation letter
Ex.R.2 copy of policy
(H.P.SANDESH)
Member, Prl., M.A .C.T. Bangalore