Bangalore District Court
Sanish Mathew vs Reliance Gen Ins Co Ltd on 29 January, 2024
KABC020209522020
BEFORE THE CHIEF JUDGE, COURT OF SMALL
CAUSES &, MEMBER PRL.MOTOR ACCIDENT CLAIMS
TRIBUNAL AT BENGALURU
(S.C.C.H. - 1)
Dated this the 29th day of January, 2024
PRESENT: Smt. B.V. RENUKA, B.Sc., LL.B.,
Chief Judge
Member, Prl. M.A.C.T., Bengaluru.
M.V.C. No.4399/2020
Petitioner: Sanish Mathew,
S/o. Mathew Joseph,
Age: 22 years,R/at: "Neelluvelil",
Chundakkaunnu P.O.,
Chemperi, Nediyanga,
Kannur Dist., Kerala-670 632.
(Represented by Sri H.R.Jayaram,
Advocate)
-Vs-
Respondents: 1. Reliance General Insurance Co.Ltd.,
No.28, Southern Portion East Wing,
5th floor Centenary building,
M.G.Road, Bengaluru-01.
Policy No.TRG/00047860
Date of Validity from 31.10.2019 to
30.10.2020
Toyota Etios GD bearing No.KA-03-
AH-9811.
SCCH-1 2 MVC No.4399/2020
(Represented by Sri K.M.Ravi,
Advocate) )
2. Mr.Manjunath Yallappa Talawar,
S/o. Yallappa Talawar, Major,
R/at: No.S 6,
10th cross, 7th Main,
Jayanagar, 3rd phase,
J.P. Nagar, Bangalore -560 078.
(Exparte)
JUDGMENT
This claim petition is filed by the petitioner under Section 166 of the Motor Vehicles Act claiming compensation of Rs.25,00,000/- along with interest from the respondents on account of the injuries sustained by him in the road traffic accident.
2. Briefly stated, the case of the petitioner is as follows:
That on 15.08.2020 at about 10.45 P.M. , while the petitioner was riding his motorcycle bearing registration No.KA-50-EC-7339 slowly and cautiously from BDS nagar, K.Narayanapura towards 1st Main road , at that time Toyota SCCH-1 3 MVC No.4399/2020 Etios GD Car bearing registration No.KA-03-AH-9811 came with high speed from opposite direction in a rash and negligent manner and dashed against motorcycle of the petitioner. Due to which the petitioner fell down and sustained grievous injuries. He took treatment in Specialist hospital , Bengaluru. A case was registered in Crime No.0071/2020 against the driver of the Car bearing registration No.KA-03-AH-9811 at BIAL Traffic Police Station. Hence, this petition for compensation.
3. In response to the notice of the petition, the respondent No.2 has not chosen to appear before the Court and he was placed exparte.
The first respondent appeared before the Court through its Advocate and filed the written statement by denying petition averments as false. The issuance of insurance policy in respect of the Toyota Etios GD Car bearing registration No.KA-03-AH-9811 is admitted provided that the respondent No.2 produces the original policy, but the liability is subject to the terms and conditions of the policy. The driver of the car was not SCCH-1 4 MVC No.4399/2020 holding a valid and effective driving licence at the time of accident and the respondent No.2 has knowingly handed over the possession of the vehicle to the driver, who had no driving licence, hence, he has committed breach of the terms and conditions of the policy. The Car had no permit to ply the vehicle in the place of accident which is in violation of the policy condition. The second respondent has not complied with the mandatory requirements of Section 134(c) of M.V.Act and Police have not complied the mandatory requirements of Section 158(6) of M.V.Act. The petition is not maintainable as the owner and insurer of the motorcycle bearing registration No.KA-50-EC-7339 have not been made as parties to the proceedings. The car was driven by its driver slowly, carefully and cautiously on the correct side of the road, but the accident occurred only due to the negligent driving of the petitioner himself. The compensation claimed is without any basis. Hence, prays to dismiss the petition.
4. On the basis of the above pleadings of the parties, this Tribunal has framed the following Issues: SCCH-1 5 MVC No.4399/2020
1. Whether the petitioner proves that on 15.08.2020 at about 10.45 p.m. in BDS Nagara Main road, on 1st Main in K.Narayanapura, Bengaluru, he being the rider of the motorcycle bearing reg. No.KA-50-EC-7339 had met with an accident due to rash and negligent driving of the Toyoto Etios GD vehicle bearing reg. No.KA-03-AH-
9811 by its driver and he sustained injuries in the accident as averred?
2. Whether the petitioner is entitled to any compensation and if so, what amount and from whom?
3. What order and award?
5. The petitioner is examined himself as PW-1 and two witnesses are examined as PWs 2 and 3 and got marked Exhibits P.1 to P.18. The 1st respondent has not led any evidence.
6. Heard the arguments of both sides.
7. My findings on the above issues are as under:
Issue No.1 Partly in the Affirmative Issue No.2 Partly in the affirmative, awarding
compensation of Rs.3,95,000/- from the respondent Nos.1& 2 Issue No.3 As per final order for the following:-
REASONS
8. Issue No.1:- The petitioner in order to prove this issue, has placed reliance on his oral evidence and documentary evidence as per Exs.P.1 to P.6 such as FIR with complaint, chargesheet, spot sketch, spot SCCH-1 6 MVC No.4399/2020 panchanama, wound certificate and IMV report, PW-1 being the injured in his affidavit evidence has narrated how he met with an accident and the accident was due to the rash and negligent act on the part of the driver of Toyota Etios GD Car bearing registration No.KA-03-AH-9811. The second respondent being the owner of the car in question has remained exparte. The first respondent being the insurance company has filed the written statement by denying the accident and also the negligence aspect. Let us consider the evidence placed on record to decide this issue.
9. FIR with complaint as per Ex.P.1 discloses that on the basis of the complaint lodged by Pramod, a criminal case was registered against the driver of the Toyota Etios GD Car bearing registration No.KA-03-AH-9811. Accident occurred on 15.08.2020, but the complaint was lodged on 16.08.2020. The complainant is an employer of the petitioner and he has lodged the complaint on the next day after coming to know about the accident . Exhibits P.3 and 4 are the spot sketch and panchanama which reveals the state of affairs at the accident spot. As per PW1 when SCCH-1 7 MVC No.4399/2020 he was moving on his motorcycle bearing registration No.KA-50-EC-7339 from BDS Nagar, 1st main road, K. Narayanapura, at that time the driver of the Toyota Etios GD Car bearing registration No.KA-03-AH-9811 who was coming from opposite direction drove his car with high speed and in a rash and negligent manner and dashed against his motorcycle resulting in accident.
10. In Exhibits P.3 and P.4 the place of accident is shown near first main road, BDS Nagar, K.Narayanapura. As per these documents, the said road is a two way road and accident took place in the middle of the said road. In Ex.P.3, the movements of both the vehicles involved in the accident are shown. In Ex.P.3, it is mentioned that the petitioner was proceeding on his motorcycle and he was taking a turn from 6th cross, BDS Nagar, at that time Toyota Etios GD Car bearing registration No.KA-03-AH- 9811 has caused the accident. PW1 in his cross- examination has denied the suggestions made to him regarding his negligence in causing the accident. Ex.P.3 discloses that on the date of accident the petitioner was SCCH-1 8 MVC No.4399/2020 moving from 6th cross, BDS Nagar towards K.Narayanapura. From Ex.P.3, it is evident that the driver of the car in question has driven it in a rash and negligent manner without observing the movement of the motorcycle of the petitioner which was taking right turn in order to go towards K.Narayanapura. Thus, Exhibits P.3 and P.4 supports the case of the petitioner.
11. Ex.P.6 is the IMV report wherein the damages caused to both the vehicles involved in the accident are mentioned. As per Ex.P.6- IMV report, the front bumper and bonnet , front both headlight and indicators assembly, front right side wheel fender and front cross member of the car were damaged and its front windscreen glass was broken. As per Ex.P.6, the front wheel mudguard, front body shape on right side portion, front right side foot board and right side body of the motorcycle were damaged in the accident. By considering these damages, it can be inferred that the driver of the Toyota Etios GD Car bearing registration No.KA-03-AH-9811 has hit the motorcycle of the petitioner to its right side and as such the front right SCCH-1 9 MVC No.4399/2020 side portion of the motorcycle of the petitioner was damaged and front portion of the car was damaged. If the driver of the Etios car in question has taken care and caution while moving on the main road by observing the vehicles entering the main road from the cross road, this accident would have been avoided. Thus, Ex.P.6 also supports the case of the petitioner.
12. Wound certificate at Ex.P.5 discloses that the petitioner has sustained simple injuries as well as grievous injuries in the accident. Ex.P.2 is the chargesheet filed against the driver of the Etios car in question , but the same has not been challenged by him. This conduct of the driver of the car in question enables the Court to draw an adverse inference against the car driver that as the accident took place due to his negligent act, he has remained silent. The first respondent except denying the case of the petitioner, has not chosen to place any evidence in order prove its contention. Even the first respondent has not chosen to summon the driver of the Etios car in question to prove its contention. As such the entire SCCH-1 10 MVC No.4399/2020 evidence placed by the petitioner remained unrebutted. Hence, by considering all these aspects, I am of the opinion that the petitioner has proved that he met with an accident and sustained injuries due to the rash and negligent act on the part of the driver of the Toyota Etios GD Car bearing registration No.KA-03-AH-9811 . Accordingly, I answer issue No.1 in the affirmative.
13. Issue No.2:
(a). Pain and Agony:
PW-1 has produced the wound Certificate at Ex.P.5, which discloses that the petitioner has sustained (1) Abrasion over right side of face measuring 6 cm x 3 cm (2) Abrasion over the outer aspect of the right elbow joint measuring 4cm x 2 cm (3) Lacerated wound over the outer aspect of the right upper lip measuring 2 cm x 1 cm subcutaneous tissue deep (4) Swelling tenderness with restricted movements over the right thigh region, (5) Swelling tenderness with restricted movements over right leg (6) Swelling with tenderness over the outer and medial aspect of right foot. It is mentioned in wound certificate SCCH-1 11 MVC No.4399/2020 that x-ray of right femur AP/LAT showed comminuted fracture proximal one third shaft of right femur, X-ray of right leg AP/LAT showed comminuted fracture mid shaft of right tibia. As per the opinion of the doctor, the injuries No.1 and 2 are simple in nature and injuries No. 3 to 6 are grievous in nature. Ex.P.7 discharge summary discloses that petitioner has taken treatment in Specialist Hospital from 16.08.2020 to 19.08.2020 and he has undergone interlocking nailing femur +tibia+wound debridement right foot . Exhibits P.7 and case sheet - P.16 discloses that the petitioner has taken treatment for fracture of right femur + compound type II both bones fracture right leg + compound fracture first metatarsal right foot. X-rays at Ex.P.17 and C.T.Scan Film at Ex.P.18 confirms the sustaining of said fractures to the petitioner in the accident. The injuries sustained by the petitioner requires minimum 5 months treatment. During treatment period, the petitioner has suffered lot of pain and agony. So, taking into account the nature of the injuries sustained by the petitioner and number of days of his treatment in the SCCH-1 12 MVC No.4399/2020 hospital, I deem it just and proper to award compensation of Rs.75,000/- under this head.
(b). Medical Expenses (including conveyance, attendant charges and extra nourishment):
PW-1 has deposed that he has spent more than Rs.3,00,000/- towards medicines, conveyance, nourishment and other incidental charges. In support of his evidence he has produced medical bills as per Exs.P.12. Ex.P.12 are amounting to Rs.1,76,418/-. Ex.P.12(9) which is the inpatient bill is amounting to Rs.1,60,000/-. The said bill discloses that the petitioner had paid an amount of Rs.1,60,000/- towards hospital charges. As such he is entitled for the said amount. The other bills are pharmacy bills which do not contain the signature of the person who has issued them and the seal of the shop. Some of the bills are in respect of physiotherapy treatment. Except producing these bills, the petitioner has not produced any other document to show that he has taken physiotherapy treatment for the accidental injuries. Even nowhere in his evidence, he has stated that he has spent the amount SCCH-1 13 MVC No.4399/2020 mentioned in those bills. Therefore, no reliance can be placed on these bills. Pharmacy bills are not supported by prescriptions . Hence, those bills cannot be looked into. However, by considering the nature of the injuries sustained by the petitioner and type of treatment undergone by the petitioner , it can be said that the petitioner has spent some amount towards medicines, conveyance, nourishment and attendant charges. Hence, I deem it just and proper to award compensation of Rs.1,90,000/- under this head.
(c) Loss of income during the treatment period:
PW-1 has deposed that prior to the accident, he was working as a Trainee Service Engineer at Silver Track PVT. Ltd.,Bengaluru and earning a sum of Rs.14,637/p.m. + allowances , but after the accident he has not attended to his duty for 6 months and he was not paid any salary for 6 months and he has sustained loss of income. In support of his oral evidence, PW1 has produced a certificate issued by his employer and salary slips as per Exhibits P.8 and P.9. Except producing Ex.P.8, the petitioner has not SCCH-1 14 MVC No.4399/2020 chosen to summon the person who has issued Ex.P.8 to prove it in accordance with law.
PW1 in his cross-examination has deposed that he took medical leave for a period of 6 months during the accident and during the leave period he did not get any salary and he has produced document in this regard. Ex.P.8 is the document referred by PW1. PW1 has deposed that there is no impediment for him to examine the concerned person who has issued certificate -Ex.P.8. But the petitioner has not chosen to examine the person who has issued Ex.P.8. In Ex.P.8, it is mentioned that the petitioner was on leave from 16.08.2020 to 14.02.2021 on account of the accident and the employer has given 15 days additional salary in the month of August 2020 as arrears of his service and other than this , they have not paid any salary during this period.
The petitioner has produced his salary slip for the month of August 2020 as per Ex.P.11. In Ex.P.11, the number of days on which petitioner worked is shown as 16 and 15 days was treated as loss of pay. But in Ex.P.8 it is SCCH-1 15 MVC No.4399/2020 mentioned that the employer of the petitioner has given additional 15 days salary in the month of August 2020 to the petitioner as arrears of his service, Thus, there is no satisfactory evidence before the Court to prove that the petitioner has suffered loss of earnings for 6 months due to the accident. Merely, on the basis of Ex.P.11, it is not possible to believe that the petitioner was not paid salary for 6 months by his employer on account of accidental injuries. When Ex.P.8 is not proved in accordance with law, I am of the opinion that no reliance can be placed on Ex.P.8 to believe that the petitioner has suffered loss of earnings for 6 months. As such, I am of the opinion that the petitioner do not suffer from any loss of income during the treatment period. Hence, no amount is awarded under this head.
(d) Future loss of earning capacity:
PW-1 has deposed that due to the accidental injuries, he is getting shooting pain in his injured parts and he cannot walk properly, sit , squat , climb stairs, sleep comfortably , cannot lift heavy weights and he is unable to SCCH-1 16 MVC No.4399/2020 lead normal life and he cannot do day today activities and he is suffering from permanent disability. In order to prove the disability, petitioner has examined the Doctor as PW2 and he has deposed about the injuries sustained by the petitioner and type of treatment undergone by the petitioner. PW2 has deposed that the petitioner has suffered from physical disability of 40% to right lower limb which is 20% to the whole body. Whether the disability assessed by PW-2 is to be accepted or not has to be scrutinized cautiously.
As per the versions of PW-2, he is not the treated Doctor and he has not seen the initial treatment documents. PW2 admits that now the fractures are well united. As per PW2, the petitioner can do desk job by sitting. Whether the disability assessed by PW2 amounts to functional disability or not is the point to be considered now. PW1 in his cross-examination has deposed that even now he is working in Silver Track Pvt. Ltd., Bengaluru and he is drawing salary of Rs.30,000/p.m. That means the petitioner after following the advise of the doctor has SCCH-1 17 MVC No.4399/2020 continued his job in the same company and he is drawing salary of Rs.30,000/p.m. In Exhibits P.9 and P.10 which are the salary slips of the petitioner for the months of June and July 2020, the gross salary of the petitioner is shown as Rs.19,175/-. That means, the petitioner is getting more salary than the one which he was getting at the time of accident. As such, the permanent disability stated by PW2 will not amount to functional disability. As the petitioner has continued his job, utmost the disability stated by PW- 2 may cause unhappiness to the petitioner while doing his normal activities and also while doing his avocation. As such, no amount is awarded under this head.
(e) Future Medical Expenses:
PW-1 has deposed that he require future medical expenses as the doctor has advised him to undergo one more surgery for removal of implants. PW2 has deposed that the petitioner needs one more surgery for removal of implants. The medical records disclose that the petitioner has undergone treatment by fixation of implants and those implants have to be removed in future. As such, I deem it SCCH-1 18 MVC No.4399/2020 just and proper to award Rs.30,000/- under the head future medical expenses which shall not carry any interest.
(f) Towards unhappiness and loss of amenities:
PW-1 has deposed that due to the accidental injuries, he is getting shooting pain in his injured parts and he cannot walk properly, sit , squat , climb stairs, sleep comfortably, cannot lift heavy weights and he is unable to lead normal life and he cannot do day today activities and he is suffering from permanent disability. Further PW1 has deposed that he is unmarried and due to the accidental injuries his marriage prospects will be affected. PW2 has deposed that there is restriction of joint movements in right knee and right ankle of the petitioner and as such the petitioner finds it difficult to squat on floor, climb stairs, walk on slope, kneel and sit in crossed leg , stand on affected limb and the petitioner suffer from permanent physical disability of 40% to the right lower limb and 20% to the whole body. These difficulties stated by PWs 1 and 2 SCCH-1 19 MVC No.4399/2020 will affect the marriage prospects of the petitioner and it can be safely held that the petitioner suffers from unhappiness and discomfort to some extent while doing his normal activities and his avocation. Hence, I deem it just and proper to award Rs.1,00,000/- under this head.
14. In view of the reasons stated above, in all the petitioner is entitled to the compensation as under:
Sl. Head of Compensation Amount
No.
a. Pain and Agony Rs. 75,000-00
b. Medical Expenses, conveyance, Rs. 1,90,000-00
nourishment and attendant
charges
c. Future Medical Expenses Rs. 30,000-00
d. Unhappiness and loss of Rs. 1,00,000-00
amenities
TOTAL Rs. 3,95,000-00
Thus, the petitioner is entitled for a sum of Rs.3,95,000/- with interest at the rate of 6% p.a. excluding Rs.30,000/- awarded under the head future medical expenses from the date of the petition till deposit in Court.
SCCH-1 20 MVC No.4399/2020
15. So far as the liability is concerned, according to the petitioner, the first respondent is the insurer and the second respondent is the owner of the Toyota Etios GD Car bearing registration No.KA-03-AH-9811 . The second respondent has remained exparte. The first respondent in its written statement has admitted that it has issued the policy in respect of Toyota Etios GD Car bearing registration No.KA-03-AH-9811 . When the first respondent has not disputed the issuance of policy, it can be said that the policy was valid as on the date of accident. As discussed in Issue No. 1, this Court has come to the conclusion that the petitioner met with an accident due to the rash and negligent act on the part of the driver of the Toyota Etios GD Car bearing registration No.KA-03-AH- 9811 . Therefore, the respondents No.1 and 2 are jointly and severally liable to pay the compensation amount of Rs.3,95,000/- along with interest at 6% p.a. excluding Rs.30,000/- awarded under the head future medical expenses from the date of the petition till deposit in Court. Accordingly, I answer issue No.2 partly in the affirmative. SCCH-1 21 MVC No.4399/2020
16. Issue No.3 : In view of my findings on Issue Nos.1 and 2 and for the reasons stated therein , I proceed to pass the following: -
ORDER The claim petition filed by the petitioner is allowed in part with costs against the respondents No.1 and 2, awarding compensation of Rs.3,95,000/- (Rupees Three lakhs Ninety Five Thousand only) with interest at 6% p.a., excluding Rs.30,000/- awarded under the future medical expenses from the date of petition till the date of deposit in Court.
The respondents No.1 and 2 are jointly and severally liable to pay the compensation amount with interest to the petitioner. However, the respondent No.1, being the Insurance Company is directed to deposit the compensation amount in Court within 3 months from the date of this order.
After deposit of the compensation amount, 30% with proportionate interest shall be deposited in the name of the petitioner in any of the nationalized or scheduled bank SCCH-1 22 MVC No.4399/2020 for a period of 3 years. Remaining 70% with proportionate interest is ordered to be released to the petitioner.
Advocate's fee is fixed at Rs.1,000/- .
Draw an Award accordingly.
(Dictated to the Stenographer, transcribed by her, corrected, signed and then pronounced by me in the Open Court on this the 29 th day of January 2024) (Smt.B.V.RENUKA) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bengaluru.
ANNEXURES Witnesses examined on behalf of the petitioners:
P.W.1 : Sanish Mathew P.W.2 : Dr.B.Ramesh P.W.3 : Sundar Raj
Documents marked on behalf of the petitioners:
Ex.P-1 Certified copy of FIR with complaint Ex.P.2 Certified copy of chargesheet Ex.P.3 Certified copy of Spot Sketch Ex.P.4 Certified copy of Spot panchanama Ex.P.5 Certified copy of wound certificate Ex.P.6 Certified copy of IMV report Ex.P.7 Discharge summary Ex.P.8 Certificate dated 22.01.2022 issued by the employer Exs.P.9 to Salary slips for the month of July to P.11 August 2020 Ex.P.12 Medical bills (30) SCCH-1 23 MVC No.4399/2020 Ex.P.13 O.P.Slip Ex.P.14 X-ray Ex.P.15 Authorization letter Ex.P.16 Case sheet Ex.P.17 X-rays (7) Ex.P.18 C.T.Film (7) Witnesses examined on behalf of the respondents :
-Nil-
Documents marked on behalf of the respondents:
-Nil-
(Smt.B.V.RENUKA) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bengaluru.