Bangalore District Court
Mr. Abdul Rehman vs The New India Assurance Co on 23 April, 2018
BEFORE THE COURT OF VIII ADDITIONAL SMALL
CAUSES JUDGE AND THE MOTOR ACCIDENT CLAIMS
TRIBUNAL (SCCH-5) AT BENGALURU
DATED THIS THE 23RD DAY OF APRIL 2018
PRESENT: SMT. SHARMILA.S. B.COM.,LL.B.,
VIII ADDL. SCJ & XXXIII ACMM
MEMBER - MACT
BENGALURU.
M.V.C No.4210/2016
PETITIONER : Mr. Abdul Rehman
S/o. Abdul Gafoor
Aged about 52 years
Residing at No.38,
7th Main Road,
Padarayanapura,
Mysore Road,
Bangalore-560 026.
(By Sri.Ashok Kumar, Adv.,)
V/s
RESPONDENTS : 1. The New India Assurance Co.,
Ltd.,
T.P.Claims Hub,
Mahalaxmi Chambers,
II Floor, M.G.Road,
Bangalore - 560 001.
(Policy No.67190031150100008243
Period of insurance from
14.10.2015 to 13.10.2016)
(By Sri.N.Basava Reddy, Adv.,)
2. Mr.Mahesh.B.M.
S/o. Muniyappa
Residing at No.530, III Stage,
2 MVC No.4210/2016
SCCH 5
IV Block, Basaveshwaranagar,
Bangalore-560 079.
(By Sri.H.M.Ravishankar, Adv.,)
****
::JUDGMENT::
This petition is filed by the Petitioner under Section 166 of Motor Vehicles Act, 1989, claiming compensation for the injuries sustained in the alleged accident.
2. It is the case of the Petitioner that:
On 23.03.2016 at about 11.45 a.m., the Petitioner was travelling as a rider in his Scooter bearing Reg.No. KA-05-EJ-3594 and proceeding towards Bapujinagar. He was riding his scooter slowly, cautiously and observing all the traffic norms when he came near Gali Anjaneya Temple, at that time, all of a sudden a Car bearing Reg.No.KA-01-C-2104 driven by its driver at a very high speed and in a rash and negligent manner without observing the traffic norms and lost the control over his vehicle and came on wrong lane and dashed against the Petitioner vehicle from right side. Due to that tremendous 3 MVC No.4210/2016 SCCH 5 impact, the Petitioner fell down from the vehicle and sustained grievous injuries to his right leg. Immediately he was shifted to KIMS Hospital for first aid wherein he was treated as an inpatient. Further the Petitioner contends that, he is still bed ridden and under treatment and so far as spent Rs.80,000/- towards the medical, conveyance and nourishment expenses. It is the case of the Petitioner that, he was working as Scrap Business and was earning Rs.15,000/- per month After the said accident, he is unable to lead a normal life as earlier and not able to do his work as before and suffering from huge loss of income. Hence, he has claimed compensation of Rs.10,00,000/- against Respondents No.1 and 2.
3. After service of summons, Respondent No. 1 & 2 appeared through counsel. The 1st Respondent filed its objection statement. Inspite of giving sufficient opportunity, the 2nd Resp ondent not filed written 4 MVC No.4210/2016 SCCH 5 statement. Hence, the objection of Respondent No.2 taken as not filed.
4. Respondent No.1 in its objection statement denied averments of the petition inter-alia contended that, this Respondent has issued a Commercial Vehicle policy in favour of the 2nd Respondent for a period from 14.10.2015 to 13.10.2016 for the vehicle i.e., Car bearing Reg.No.KA-01-C-2014 and the liability of this Respondent, if any is subject to terms and conditions of policy and also subject to validity of R.C, F.C and Permit. The driver of the Car did not possess the valid and effective driving license to drive the same as on the date of accident.
5. Further this Respondent contends that, the permit of the Car has been cancelled prior to accident by the RTO. As on the date of accident, the Car bearing Reg.No.KA-01-C-2104 had no permit. The Byatarayanapura Traffic Police have thoroughly 5 MVC No.4210/2016 SCCH 5 investigated and filed charge sheet against the owner of the Car for the offence punishable U/s. 66 r/w Section 192 of M.V.Act for not possessing the vehicle permit and using the car in a public place without having the permit. The insured/owner has intentionally, knowingly violated the terms and conditions of policy. Hence this Respondent is not liable to indemnify the insured/2nd Respondent. Further this Respondent raised objection available U/s 134(c), 158(6) of M.V.Act. Except this all other defences are formal in nature and accordingly prays to dismiss the claim petition filed against it.
6. On the basis of the above pleadings, my learned predecessor has framed the following:
::ISSUES::
1. Whether Petitioner proves that he sustained injuries in road traffic accident that occurred on 23.03.2016 at about 11.45 a.m., near Gali Anjaneya Temple, Mysore Road, Bengaluru, within the jurisdiction of Byatarayanapura Traffic Police Station, while the Petitioner was riding in his Scooter bearing Reg.No.KA-05 -6 MVC No.4210/2016
SCCH 5 EJ-3594, due to rash and negligent manner of Car driver, vehicle bearing Reg.No.KA-01- C-2104, has resulted in an accident?
2. Whether Petitioner is entitled for compensation as prayed in the petition? If so, from which Respondent?
3. What Order or Award?
7. In order to prove the above Issues for consideration, Petitioner examined himself as PW-1 and got marked Ex.P.1 to Ex.P.22. Dr.Somashekar, Orthopeadic Surgeon, KIMS Hospital has been examined as PW-2 and got marked Ex.P.18 to Ex.P.21. Per contra, N.Rajanna, FDA, RTO, Bangalore examined himself as RW-1 on behalf of Respondent No.1 and got marked Ex.R.1 and Ex.R.2.
8. Heard the arguments of learned counsel for the Petitioner and Respondent No.1.
9. My findings on the above Issues are as under:
Issue No.1 : In the Affirmative
7 MVC No.4210/2016
SCCH 5
Issue No.2 Partly in the affirmative
Issue No.3 : As per final order for the
following:
::REASONS::
10. Issue No.1 and 2: As these two issues are
interlinked with each other, they are taken together for common discussion in order to avoid repetition of facts and evidence.
11. As this petition is filed under Sec.166 of the M.V.Act, the burden is on the Petitioner to prove that the alleged accident took place because of the negligence on the part of driver of the Car bearing Reg.No. KA-01-C-2104. In order to prove the above said issues, Petitioner examined himself as PW-1 and Dr.Somashekar as PW-2 and got marked in all 21 documents.
12. In order to prove this fact, he has produced Police records which are marked as Ex.P.1 to Ex.P.6 i.e., FIR with Complaint, Sketch, Mahazar, IMV Report, Wound Certificate and Charge Sheet. If we peruse the 8 MVC No.4210/2016 SCCH 5 oral and documentary evidence adduced by the Petitioner i.e., Ex.P.1 FIR with Complaint, which clearly discloses 23.03.2016 at about 11.45 a.m., the Petitioner was travelling as a rider in his scooter bearing Reg.No. KA-05-EJ-3594 and proceeding towards Bapujinagar. He was riding his scooter slowly, cautiously and observing all the traffic norms when he came near Gali Anjaneya Temple, at that time, all of a sudden a Car bearing Reg.No.KA-01-C-2104 driven by its driver at a very high speed and in a rash and negligent manner without observing the traffic norms and lost the control over his vehicle and came on wrong lane and dashed against the petitioner vehicle from right side. Due to that tremendous impact, the Petitioner fell down from the vehicle and sustained grievous injuries to his right leg.
13. On perusal of contents of Spot Mahazar and Sketch clearly shows that, at the time of the accident, the driver of the car came on the Deepanjali Bridge from 9 MVC No.4210/2016 SCCH 5 Deepanjalinagar to Bapooji Nagar i.e., from West to East direction in a rash and negligent manner and dashed against the Scooter proceeding in front of the car in which the Petitioner was travelling.
14. The only contention of the Respondent No.2 is that, he has issued the permit for the offending vehicle on dated 02.03.2009. He has issued the permit from 02.03.2009 to 01.03.2014 for 5 years. Thereafter the owner has applied for renewal of permit on dated 17.03.2014. Then they have renewed the permit till 01.03.2009. They have renewed the permit with a condition that the permitted to be deem to be invalid unless the vehicle is replaced on or before 03.01.2016. Since the owner has not replaced the vehicle on or before 03.01.2016, the permit becomes invalid. RW-1 has been cross-examined by the Petitioner's counsel wherein he deposed that 10 MVC No.4210/2016 SCCH 5 " F ªÁºÀ£PÀ ÉÌ CzÀÄ £ÉÆÃAzÀtô DzÀ ¢£ÁAPÀ¢AzÀ 9 ªÀµÀð DzÀ £ÀAvÀgÀ CzÀPÉÌ ¤ÃrzÀ ¥À«Äðmï vÀ£ÀßAvÁ£Éà E£ïªÁå°qï DUÀÄvÀz Û É JAzÀgÉ ¥À«Äðmï PÁå£Àì¯ï DVgÀĪÀÅ¢®è. DzÀgÉ E£ïªÁå°qï DVgÀÄvÀÛzÉ JAzÀgÉ ¸Àj. ¤±Á£É Dgï 2gÀ°è ¥À«Äðmï E£ïªÁå°qï JAzÀÄ §gÉ¢zɺÉà ºÉÆgÀvÀÄ PÁå£À¯ï JAzÀÄ §gÉ¢gÀĪÀÅ¢®è. £Á£ÀÄ ºÉýzÀ ¥ÀæPÁgÀ PÉJ.01.¹.2104 ªÁºÀ£ÀPÉÌ ¢£ÁAPÀ 23.03.2016gÀªÀgÉUÉ ¥À«Äðmï ZÁ°ÛAiÀÄ®¥À¦èvÀÄÛ JAzÀgÉ ¸Àj".
15. The Respondent No.1 has taken contention that, as on the date of the accident, the driver of the offending vehicle was not having permit and fitness certificate and the Respondent No.2 has violated the terms and conditions of insurance policy, but this contention of the Respondent No.1 is not at all acceptable. Because, the Respondent No.2 has adduced the evidence of First Division Assistant of Licencing Authority and he has produced the copy of the Permit pertaining to vehicle bearing Reg.No.KA-01-C-2104 wherein the permit is renewed for further five years from 02.03.2014 to 01.03.2019. The RW-1 admitted in his 11 MVC No.4210/2016 SCCH 5 evidence that, as on the date of accident the permit was in force but it was invalid. The jurisdictional Police have registered the case and after investigation they have filed charge sheet for the offences punishable under Section 279, 338 of IPC 134(b) and 66 r/w 192 of M.V.Act and they have not filed charge sheet against the driver of the offending vehicle for the offences punishable U/s.3 R/w 181 of Motor Vehicle Act for not having permit and fitness certificate. So I hold that, the Respondent No.1 has failed to prove the said contention regarding driving license, permit and fitness certificate. So, the contention of the Respondent No.1 is not acceptable. Accordingly, Respondents No.1 being the insurer and Respondent No.2 is the insured are jointly and severally liable to pay compensation to the Petitioner.
16. Coming to the question of quantum of compensation to be assessed, according to the Petitioner, he was aged 52 years at the time of the accident. In order 12 MVC No.4210/2016 SCCH 5 to prove his age, the Petitioner has produced Ex.P.11 i.e., Notarized copy of Aadhaar Card wherein his birth year was mentioned as 1964, he has also produced Ex.P.17 Driving licence wherein his date of birth mentioned as 25.12.2962 and the accident took place on 23.3.2016. Hence, on the basis of the above said records it is considered that, Petitioner was aged between 52 to 54 years as on the date of the accident. As per the Sarla Varma's Case, the proper multiplier applicable to the age group of 51 to 55 is 11.
17. Petitioner has contended that, he was working as Scrap business and earning Rs.15,000/- per month. In order to prove his avocation and income, the petitioner has not produced any document. Without any documents it cannot be considered that the Petitioner is doing Scrap business and earning Rs.15,000/-. As this accident is of the year 2016, it is just and proper to consider notional income of the Petitioner as Rs.7,000/-. 13 MVC No.4210/2016
SCCH 5
18. Petitioner had sustained complete ACL ligament tear with articular surface fracture for which he under gone arthroscopic ACL reconstruction with bone patellar tendon bone grafting and fixed with Inter perential screws to right knee. This fact is corroborated by the contents of Ex.P.5 and Ex.P.7 & Ex.P.8 i.e., Wound Certificate and Discharge Summaries issued by KIMS Hospital, wherein he took treatment as inpatient from 23.03.2016 to 13.04.2016. He has also produced medical bills to the tune of Rs.56,608/- marked as Ex.P.14 and Ex.P.12 are the Prescriptions, Ex.P.13 Advance Bills, Ex.P.15 X-Rays, Ex.P.16 MRI films. Further the Petitioner admits that, he has not produced bill in respect of purchase of implant under Ex.P.22. The name of the Petitioner was not mentioned. Hence, it cannot be considered.
19. PW-3 is Dr.Somashekar, Orthopaedic Surgeon at KIMS Hospital, Bangalore who has filed his affidavit in 14 MVC No.4210/2016 SCCH 5 lieu of chief-examination and got marked Ex.P.18 to 21 i.e., OPD card, IP records and X-ray. PW-3 is one of the team doctor who treated this Petitioner. He conducted surgery on the Petitioner. He assessed disability of the Petitioner to an extent of 13.21% to the whole body. He has assessed disability after one year from the date of the accident. Admittedly Petitioner had suffered only single fracture for articular surface fracture in his cross- examination, it has been elicited that fractures are united with no mal union. Ankle and hip joints are normal but there is a moderate restriction in Knee. Since PW-3 is not a treated Doctor, the whole body disability is considered as 10% to the whole body instead of 13%.
20. The Petitioner is entitled for compensation under the following heads:-
Sl.No. Head of Compensation Amount in Rs.
I. PECUNIARY DAMAGES
(Special Damages)
1. Expenses relating to:
15 MVC No.4210/2016
SCCH 5
a) to treatment, hospitalization, 57 000-00
medicines, transportation
(Rs.56,608/- rounded off
Rs.57,000/-)
b)nourishing food and 15,000-00
miscellaneous expenditure
2. Loss of earnings which the -
injured would have made had he
not been injured, comprising:
a) Loss of earnings during period -
of treatment
b) Loss of future earnings on 93,000-00
account of permanent disability
(Rs.7,000/-x12x11x10%=
Rs.92,400/- rounded of
Rs.93,000/-)
3. Future medical expenses -
II. NON-PECUNIARY DAMAGES
(General Damages)
4. Damages for pain, suffering and 25,000-00
trauma as a consequence of the
injuries
5. Loss of amenities ( and/or loss 10,000-00
of prospects of marriage)
6. Loss of expectation of life -
(shortening of normal longevity) Total Rs.2,00,000-00
21. Accordingly, I hold that Petitioner is entitled for total compensation of Rs.2,00,000/- with interest at 16 MVC No.4210/2016 SCCH 5 the rate of 9% p.a. from the date of petition till its realization.
22. Relying upon a judgment of the Hon'ble Apex Court reported in 2013 AIR SCW 5375 in between Minu Rout and ors. V/s. Satya Pradyumna Mohapatra and ors., with regard to interest at the rate of 9% p.a. on the compensation amount, in para No.13 of the judgment, Hon'ble Apex Court held that, 'Insurance Company is also liable to pay interest at the rate of 9% p.a. from the date application till the date of payment' and also by following the principles laid down in (2011) 4 SCC 481: AIR 2012 SC 100 in between Municipal Council of Delhi V/s. Association of Victims of Uphaar Tragedy. In view of the above judgments with regard to the rate of interest and also it is settled principles of law that, while awarding interest on the compensation amount, the Court has to take into account the rate of interest on the Nationalized Bank and 17 MVC No.4210/2016 SCCH 5 the rate of interest at the rate of 9% p.a. cannot said to be on the higher side. Accordingly, the Petitioner is entitled to interest at the rate of 9% p.a.
23. Coming to the question of fixing the liability to pay the compensation to the Petitioner, Respondent No.1 being the Insurance Company had issued policy infavour of Respondent No.2 in respect of Car bearing Reg.No. KA-01-C-2104 and it is valid and effective on the date of accident. Accordingly, the Respondent No.1 being the insurer and Respondent No.2 being the owner of the offending vehicle are jointly and severally liable to pay compensation to the Petitioner. However, Respondent No.1 has to indemnify Respondent No.2. Accordingly, Issue No.1 is answered in affirmative and Issue No.2 in partly affirmative.
24. Issue No.3: On the basis of discussions made on Issues Nos.1 and 2, I proceed to pass the following: 18 MVC No.4210/2016
SCCH 5 ::ORDER::
Petition filed by the Petitioner under Sec.166 of MV Act, 1989 is allowed in part.
Petitioner is entitled for total compensation of Rs.2,00,000/- (Rupees Two Lakhs Only) with interest at the rate of 9% p.a. from the date of petition till the date of realization.
The Respondent No.1 is liable to pay the compensation to the Petitioner and shall deposit the said amount within 60 days from the date of this order.
On deposit of compensation amount, entire amount to be released in favour of Petitioner by way of crossed cheque on proper identification.
The Advocate`s fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Dictated to the stenographer directly on the computer, thereof is corrected and then pronounced by me in the Open Court on this the 23rd day of April 2018) (SHARMILA.S) VIII ADDL. SCJ & XXXIII ACMM, MEMBER, MACT, BENGALURU.19 MVC No.4210/2016
SCCH 5 ::A N N E X U R E::
LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER:-
PW-1 : Sri. Abdul Rehman PW-2 : Dr. Somashekar
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONER:-
Ex.P.1 : Copy of FIR with Complaint Ex.P.2 : Copy of Sketch Ex.P.3 : Copy of Mahazar Ex.P.4 : Copy of IMV Report Ex.P.5 : Copy of Wound Certificate Ex.P.6 : Copy of Charge Sheet
Ex.P.7 & : Discharge Summaries (2 in Nos.) Ex.P.8 Ex.P.9 & : Outpatient Cards (2 in Nos.) Ex.P.10 Ex.P.11 : Notarized copy of Aadhaar Card Ex.P.12 : Prescriptions (Sl.No.1 to 19) Ex.P.13 : Advance Bills (Sl.No.1 to 13) Ex.P.14 : Medical Bills (Sl.No.1 to 41) of Rs.56,608/-
Ex.P.15 : X-rays (Sl.No.1 to 3) Ex.P.16 : MRI Films (Sl.No.1 to 3) Ex.P.17 : Notarized copy of Driving Licence Ex.P.18 : OPD Card Ex.P.19 & : 2 IP Records Ex.P.20 Ex.P.21 : X-ray Ex.P.22 : Invoice regarding purchase of implant LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENTS:-
RW-1 : Sri. R. Rajanna
20 MVC No.4210/2016
SCCH 5
LIST OF DOCUMENTS MARKED ON BEHALF OF THE RESPONDENTS:-
Ex.R.1 : Authorization Letter Ex.R.2 : Copy of Permit pertaining to Luxury Taxi bearing Reg.No.KA-01-C-2104 (SHARMILA S.) VIII ADDL. SCJ & XXXIII ACMM, MEMBER, MACT, BENGALURU.