Bangalore District Court
Sri. Abdul Sahid vs Shri Ram Transport on 23 February, 2022
KABC020232192018
BEFORE THE MEMBER, MOTOR ACCIDENT CLAIMS
TRIBUNAL, XXII ADDITIONAL JUDGE OF SMALL CAUSES
COURT AND A.C.M.M., AT BENGALURU (SCCH24)
DATED THIS THE 23rd DAY OF FEBRUARY 2022
PRESENT: SMT.ASHWINI M. HATTIHOLI
(B.Com., LL.B),
C/c XXII ADDL. SCJ & ACMM
MEMBER - MACT, BENGALURU.
MVC. No.5589/2018
Petitioner/s : Sri. Abdul Sahid,
S/o late Abdulla Choudhuray,
Aged about 22 years,
R/at No.9, 1st main road,
Lakshmi Narayana temple road,
Opp, John Zim, Marathahalli,
Bengaluru37.
Permanent R/at: Kakmara Village,
Banskandi Post, Lakhipur P/S,
Cachar District, Assam State.
(By Sri.G.C Rajesh, Advocate)
v/s
Respondent/s : 1. Shri Ram Transport,
No.395, Sri Vijayalakshmi Complex,
White Field road, Hoodi,
Bangalore48.
(RC owner of Lorry No.KA53B4372)
(By Sri.Sandeep. S.L, Advocate)
SCCH-24 2 MVC No.5589/2018
2. The New India Assurance Co.Ltd.,
Office at No.9, 2nd floor,
Mahalakshmi Chambers,
M.G.road, Bangalore01.
(Policy No.31090031170350005854
Period :26.03.2018 to 25.03.2019).
(By Sri.Venkatesh Kamath.B.R, Advocate)
JUDGMENT
This claim petition is filed under section 166 of the Motor Vehicles Act, claiming compensation for the injuries sustained by the petitioner in a Road Traffic accident.
2. The facts leading to the filing of the instant petition are that on 30.08.2018 at about 6.00 p.m., while the petitioner was cleaning the front side glass of lorry bearing Reg.No.KA53A6378 within the premises of Reliance Petrol Bunk situated near Railway station, Doddaballapura town, the driver of another lorry bearing Reg.No.KA53B4372 drove the said vehicle in a rash and negligent manner in a reverse direction and dashed against petitioner. Due to the severe impact the petitioner sustained grievous injuries all over his body. Immediately after the accident he was rushed to Columbia Clinic. First aid was given to him and then he was referred to Victoria Hospital for further management, wherein he took treatment as an inpatient for the period from 31.08.2018 to 10.09.2018 and also underwent surgery. Even SCCH-24 3 MVC No.5589/2018 now the petitioner is under treatment and has spent more than Rs.4,00,000/ towards medical & other incidental expenses. In fact the said injures have caused permanent disability to him. The first respondent being the RC owner of the the offending Lorry and the second respondent being the insurer thereof are jointly & severally liable to pay the compensation.
3. The respondent No.1 resisted the petition on the ground that the lorry bearing Reg.No.KA53B4372 was duly insured with the 2nd respondent and the policy was in force as on the date of accident. Hence the Insurance Company is liable to pay the compensation amount, if any so awarded. Rest of the averments of the petition are repudiated as false and baseless and it is prayed to dismiss the petition.
4. The respondent No.2 filed written statement admitting the issuance of insurance policy in respect of lorry bearing Reg.No.KA53B4372. However the liability if any is pleaded to be subject to the terms and conditions of the policy. The very involvement of the above vehicle in the alleged accident is denied by the insurance company. It is further contended that the insured vehicle was plied without having permit and FC and the driver thereof did not have valid & effective DL as on the date of accident. On account of SCCH-24 4 MVC No.5589/2018 willful breach of the terms & conditions of the policy the Insurance company is not liable to indemnify the insured. Rest of the petition averments are denied and it is prayed to dismiss the petition with costs.
5. On the basis of the above pleadings the following issues were framed by my learned predecessorinoffice :
ISSUES
1. Whether the petitioner proves that on 30.08.2018 at about 6.00 p.m., inside the Reliance petrol bunk, near Railway station, Doddaballapura town, Bangalore Rural District, he sustained injuries due to the actionable negligence on the part of driver of Lorry bearing Reg.No.KA53B4372 ?
2. Whether the petitioner is entitled for compensation ? If so, to what extent and from whom ?
3. What Order ?
6. The petitioner got himself examined as PW.1. Ex's.P1 to P25 were marked on his behalf. Dr. Girish s/o Govind. A.H, Assistant Professor, Department of Facio Maxillary Surgery at Sanjay Gandhi Institute of Trauma & Orthopaedics, Bengaluru was examined as PW.2. Ex's.P26 & 27 were marked through this witness. In order to prove its defence, the Respondent No.2/Insurance company got SCCH-24 5 MVC No.5589/2018 examined its Administrative Officer as RW.1. Ex's.R.1 to 6 were marked.
7. Oral arguments were addressed on both sides. Perused the entire materials placed on record. My answers to the above issues are as follows: : Issue No.1 : In the Affirmative.
Issue No.2 : Partly in the affirmative.
Issue No.3 : As per final order for the following :
REASONS
8. ISSUE NO.1 : The petitioner has adduced both oral & documentary evidence to substantiate his case. From the FIR (Ex.P.1) it is evident that based on the complaint lodged by one Ravindra S. Bakale, the Doddaballapura Town police registered a case against the driver of Eicher lorry bearing Reg.No.KA53B4372 in Crime No.187/2018 for the offences punishable u/s's 279 and 337 of IPC. During the course of investigation they seized the said Lorry and got it examined by the IMV Inspector. The IMV Report (Ex.P.4) shows that damages were found on both the vehicles involved in the accident. Be that as it may, the IMV inspector has mentioned that he tested said vehicles on road and found that their brake systems were in order. He has thereby opined that the accident was not due to any mechanical defects of the SCCH-24 6 MVC No.5589/2018 vehicles. Therefore the driver of offending lorry did not have sufficient reason to cause the accident. The fact that yet he went and dashed against the petitioner who was cleaning the glass of lorry bearing Reg.No.KA53A6378, leads to drawing of an inference that he was driving his vehicle rashly & negligently. The Wound certificate (Ex.P.5) reveals that the petitioner has sustained injuries in a Road Traffic Accident. From the Spot Mahazar it is forthcoming that the accident had occurred inside Reliance Petrol Bunk, near Railway station, Doddaballapura town, Bengaluru Rural District. The evidence of PW.1 is fortified by the above documents. Hence jurisdictional police have also filed Chargesheet against the driver of offending vehicle as per Ex.P.6 for the offences punishable U/s 279 & 338 of I.P.C.
9. During the course of crossexamination, nothing worthwhile could be elicited from PW.1's mouth by the learned counsel appearing for the Insurance Company in order to prove that the accident involving the insured vehicle had not occurred and its driver was not at fault. Only suggestions were putforth to the effect that the accident occurred on account of the negligence of the petitioner himself, which were outrightly denied. Mere suggestions do not prove or disprove a contention. Anyhow, the insurer could have summoned the driver of offending Lorry and examined SCCH-24 7 MVC No.5589/2018 him to prove that the accident did not occur due to his negligence. In fact he was the best witness to depose about the accident. Nonexamination of this material witness is fatal to the case of the respondent No.2. Though the Administrative officer of the respondent No.2 was examined as RW.1, but his evidence is no way helpful to prove the defence of Insurance Company. Because he is not an eye witness to the accident. No independent witness was either produced by the insurer to displace the version of the accident as deposed by the injured/ claimant in this case.
10. On the other hand the respondent No.1 did not enter the witness box. Thereby he has impliedly admitted the petition averments. An adverse inference could be drawn against him accordingly. The learned counsel for respondent No.2 drew the attention of this Court as to the delay in lodging the complaint. Indeed there is delay of one day in lodging the complaint. But in view of the ratio laid down in the decision reported in (2011) 4 SCC 693, delay in lodging the first information cannot be a ground to deny justice to the victim.
11. In addenda, in a claim for compensation u/s 166 of M.V Act, 1988, the claimant has to prove the incident only on preponderance of probabilities and proof beyond reasonable SCCH-24 8 MVC No.5589/2018 doubt is not required as held by the Hon'ble Apex Court in 'MANGALA RAM VS. ORIENTAL INSURANCE COMPANY reported in (2018) 5 SCC 656. With this observation issue No.1 is answered in the Affirmative.
ISSUE NO.2 :
12. AGE, AVOCATION AND INCOME: The petitioner has exhibited his DL at Ex.P.25 wherein his date of birth is shown as 01.12.1994. This means that the petitioner was aged 23 years on the date of accident.
13. The petitioner has deposed that prior to the accident he was working as a driver thereby earning Rs.30,000/ p.m. However no documents have been produced by the petitioner to establish his avocation and income. In the absence of proof, taking into consideration the date of accident, age of the petitioner and his nature of work, if the income of the petitioner is assessed at Rs.9,000/ p.m, it would meet the ends of justice.
14. As per the medical records petitioner has sustained the following injury : Moderate head injury with facial bone fracture. It is needless to say that the said injury is grievous in nature.
SCCH-24 9 MVC No.5589/201815. The Discharge summary issued by Victoria Hospital, Bengaluru which is marked at Ex.P.7 indicates that the petitioner was treated as an inpatient in the said hospital for the period from 31.08.2018 to 10.09.2018 (11 days in total). During the course of treatment he underwent emergency tracheostomy on 31.08.2018 and was managed conservatively.
16. It is the specific case of the petitioner that owing to accidental injuries he became disabled and lost his earning capacity. Therefore he got examined PW.2-Dr.Girish, Associate Professor, Department of Facio Maxillary surgery at Sanjay Gandhi Institute of Trauma & Orthopaedics, Bengaluru, who stated that on clinical examination conducted by him he found that the petitioner has (i) Pain over left and right side of the Zygomatic buttress (ii) Step deformity over right inferior orbital region (iii) Paresthesia over right and left Infraorbital region (iv) depressed cheek region and Reduced mouth opening (18 mm). The PNS Xray and PA Skull Xray shows (i) Malunited fracture (ii) depressed right buttress region. As per the clinical examination conducted by him, based on the guidelines of Medico Legal Issues for Surgeons by George Paul. S, he found that petitioner had sustained total permanent disability at 13%. However, a careful scrutiny of the medical records indicates SCCH-24 10 MVC No.5589/2018 that the doctor/ PW.2 has assessed the disability on the higher side.
17. Be that as it may, the law is well settled that it is the impact of the Physical disability on the particular avocation of the petitioner which is relevant for the purpose of assessment of compensation under the head of loss of future income as held by the Hon'ble Apex Court in Rajkumar's case reported in (2011) 1 SCC 343. Considering the nature of injuries, line of treatment and on appreciation of the clinical findings noted by the Doctor/ PW.2, the possibility of the fact that PW.1 may be having economical or functional disability to the extent of 9%, cannot be ruled out. Therefore I consider the functional disability of PW.1 at 9%. In this backdrop the just & reasonable compensation is awarded to the petitioner under the following heads :
18. ATTENDANT CHARGES, EXTRA NUTRITIOUS FOOD & CONVEYANCE CHARGES: The period of hospitalization of 11 days is proved. As such during his stay in the Hospital, the petitioner would have incurred expenses towards attendant charges, as some family member/s of the petitioner would have accompanied him to the hospital to take his care, by leaving his/her duties. During the aforesaid period the petitioner might have also spent a considerable SCCH-24 11 MVC No.5589/2018 amount towards special diet, transportation and nutrition. Accordingly considering the rate of inflation and rise in the price index as well as Ex.P.21Lodging bills, Rs.15,000/ is awarded under this head.
19. PAIN & SUFFERINGS: Admittedly petitioner had suffered grievous injuries for which he underwent emergency tracheostomy and was managed conservatively. As such, necessarily he had undergone pain & mental agony. Thus this Tribunal awards a sum of Rs.50,000/ under this head.
20. LOSS OF INCOME DURING LAIDUP PERIOD: As referred above, considering the nature of injuries, treatment given & duration of his stay in the hospital, it is quite natural that petitioner could not have carried out his avocation for atleast 5 months. Thus by taking into account the notional income of the petitioner, this Tribunal awards Rs.45,000/ (9,000 X 5) under this head.
21. MEDICAL EXPENSES: Petitioner has produced medical bills at Ex.P.20. As per that he has spent Rs.54,090/ towards medical expenses. Nothing worthwhile was elicited during the crossexamination of PW.1, so as to doubt the genuineness of these bills. Hence the petitioner is SCCH-24 12 MVC No.5589/2018 entitled for Rs.54,090/ which is rounded off to Rs.55,000/ towards medical expenses.
22. LOSS OF FUTURE INCOME DUE TO DISABILITY:
As per Sarla Verma's case, the appropriate multiplier applicable is '18'. This Tribunal has already assessed the notional income of the petitioner at Rs.9,000/ p.m. Hence a sum of Rs.1,74,960/ (Rs.9,000 X 12 X 18 X 9/100) which is rounded off to Rs.1,75,000/ is awarded under this head.
23. LOSS OF FUTURE AMENITIES AND HAPPINESS:
The disability referred above would have necessarily caused physical deformity with which the petitioner has to live the rest of his life. Thereby the petitioner would obviously face disappointment and frustration & also suffer discomfort in enjoying the normal pleasures and joys of human life. Hence a sum of Rs.50,000/ is awarded under this head.
24. FUTURE MEDICAL EXPENSES: In his examination inchief filed by way of affidavit, PW.2 stated that the petitioner has to undergo one more surgery for the correction of malunited fracture and to improve the mouth opening. No estimation is produced to show the future medical expenses. But undisputedly petitioner has to undergo surgery as advised by the doctor, for which he has to necessarily bear SCCH-24 13 MVC No.5589/2018 certain expenses. Thus he is entitled to Rs.40,000/ towards future medical and other incidental expenses.
25. The calculation table stands as follows :
1 Attendant charges, extra : 15,00000 nutritious food & conveyance charges:
2 Pain & sufferings : 50,00000 3 Loss of income during : 45,00000 laidup period 4 Medical expenses : 55,00000 5 Loss of future income due : 1,75,00000 to disability 6 Loss of future amenities & : 50,00000 happiness 7 Future medical expenses : 40,00000 Total 4,30,00000
26. INTEREST & LIABILITY: Having regard to the nature of the claim and current bank rate of interest, this Tribunal of the view of the if interest at the rate of 6% p.a, is awarded, it would meet the ends of justice.
27. There is no dispute with regard to the issuance of insurance policy and its validity as on the date of accident. However there is a controversy with regard to the liability of the Insurance Company in the matter of indemnification of the insured on the ground that he knowing fully well that the SCCH-24 14 MVC No.5589/2018 driver of the Lorry in question had no valid and effective driving licence to drive the vehicle, entrusted it to the said driver in violation of the policy conditions and provisions of M.V. Act.
28. To substantiate its defence, the respondent No.2 got examined its Administrative officer as RW.1. Ex.R.4 is the letter dated 28.01.2020 vide which the DTO Thoubal, Manipur has informed that DL No.MN042044204113 is not alloted in their office as per the records maintained by them. Ex.R.3 is the investigation report filed by the branch investigator appointed by the Insurance Company as per which it is opined that the DL of Sri. Jahangir Choudhury (driver of offending vehicle) is not genuine as per the official records. The letter addressed to the respondent No.1 by the Insurance Company calling upon him to produce the vehicular documents pertaining to lorry bearing Reg.No.KA 53B4372 is exhibited at Ex.R.5. The postal acknowledgment depicting the due service of said letter upon the respondent No.1 is marked at Ex.R.6. Despite due service the respondent No.1 has failed to produce the DL of the driver of the offending vehicle and other vehicular documents. Though the petitioner produced the notarized copy of the DL of the driver of offending vehicle who is none other than his brother, it does not serve any purpose. Because mere production of a SCCH-24 15 MVC No.5589/2018 document does not dispense with its proof. More so when the concerned official authority has clearly given an endorsement to the effect that 'Driving Licence No.MN042044204113 is not alloted in this office as per record maintained by this office', no evidentiary value can be attached to the DL produced by the petitioner. Another point that merits consideration is that the petitioner did not make any efforts to examine his very own brother in order to prove the veracity of the DL produced by him. It appears that a fake DL is produced in order to enable respondent No.1 to escape from the liability. Be that as it may, during crossexamination the learned counsel for the petitioner could not elicit anything worthwhile to discredit the testimony of RW.1.
29. In the light of the discussion made supra, the respondent No.2 has successfully established that the driver of the offending vehicle did not possess a DL at the time of accident. It is relevant to note that the Insurance Company can be fastened with the liability on the basis of a valid Insurance Policy only after the basic facts are pleaded and established by the owner of the offending vehicle that the said vehicle was not only duly insured but was also driven by an authorized person having a valid DL. Under such circumstances the burden of proof was upon owner to prove that his driver had a valid DL at the time of accident. But in SCCH-24 16 MVC No.5589/2018 the instant case, for the best reasons known to him the owner of the offending vehicle did not enter into the witness box. As such, an adverse inference is drawn against respondent No.1 that he has consciously violated the terms & conditions of the Insurance policy with regard to the driver's license. Hence, the respondent No.2/Insurance company is not liable to indemnify the said insured under the contract of insurance.
30. Now the next question that arises, whether this Tribunal can direct the respondent No.2/Insurance company to pay the award amount together with interest and then recover the same from the insured/respondent No.1. It is relevant to note that the Doctrine of 'Pay and Recover' was considered by the Hon'ble Apex Court in a decision reported in (2004) 3 SCC 297 between National Insurance Company V/s Swaran Singh, wherein the liability of the Insurance company was examined in cases of breach of policy condition due to disqualifications of the driver or invalid driving license of the driver and held that in case of third party risks, the insurer has to indemnify the award amount to the third party and recover the same from the insurer. Hence it is clear that the statutory liability is on the Insurance company as per Sec.149 of IMV Act, to pay the compensation first to the SCCH-24 17 MVC No.5589/2018 claimant and thereafter the insurance company may recover the same from the owner of offending vehicle.
31. The Hon'ble Supreme Court in the case of Shamanna & another V/s Divisional Manager, Oriental Insurance Co.Ltd & others, reported in 2018 ACJ 2163 held that the Tribunal can issue direction of 'Pay and Recover' to the Insurance Company. Our own Hon'ble High Court in C.BalaKrishna V/s C.Muniraju & another reported in 2017 ACJ 1168 has held that Insurance company is required to establish breach of policy conditions by evidence and even where it succeeds in proving that the driver did not have a valid driving license, it is still liable to pay compensation amount and the only right which can be bestowed upon the Insurance company is the right of recovery and hence the Insurance company was directed to pay compensation and then recover the same. In the recent decision reported in 2018 ACJ 690 (Pappu & others V/s Vinod Kumar Lamba & another) also the Hon'ble Supreme Court held that the mere fact that the vehicle was duly insured would not perse make the Insurance company liable. However the Apex Court directed the Insurance Company to pay the compensation amount and recover the same from owner of the vehicle.
SCCH-24 18 MVC No.5589/201832. Therefore following the ratio laid down in the decisions cited supra, I feel it just and proper to direct the insurer i.e., Respondent No.2 to pay the amount together with interest @ 6% p.a, from the date of claim petition till realization of entire award amount to the petitioner herein. However the respondent No.2 is at liberty to recover the award amount together with the interest so paid, from the insured/Respondent No.1 in appropriate execution proceedings as held in Oriental Insurance Co.Ltd V/s Nanjappan & others, reported in (2004) 13 SCC 224. With this observation, issue No.2 is answered as 'Partly in the affirmative'.
33. ISSUE NO.3 : In view of the discussion made supra, this Tribunal proceeds to pass the following :
ORDER The petition filed under Section 166 of M.V Act 1988, is hereby partly allowed with costs.
The petitioner is entitled for compensation of Rs.4,30,000/ (Rupees Four Lakhs Thirty Thousand only) with interest at the rate of 6% p.a. (excluding future medical expenses) from the date of claim petition till realization of the entire award amount.SCCH-24 19 MVC No.5589/2018
The respondent No.2 is hereby directed to pay the aforesaid award amount together with interest to the petitioner within 30 days from the date of this order, with liberty to recover the same from the insured/respondent No.1 in appropriate execution proceedings as held by the Hon'ble Apex Court in Oriental Insurance Company Ltd V/s Nanjappan & others reported in (2004) 13 SCC
224.
Out of the said compensation amount awarded, 25% of the compensation amount with proportionate interest shall be deposited in the name of petitioner in any Nationalized Bank/Scheduled Bank for a period of 3 years (without any encumbrance or premature withdrawal) with liberty to draw the accrued interest periodically and the remaining 75% amount with proportionate interest shall be released to him through Epayment on proper identification and verification.
Advocate fee is fixed at Rs.1,000/.
SCCH-24 20 MVC No.5589/2018Draw an award accordingly.
(Dictated to the Stenographer directly on computer and printout taken by him, then corrected and pronounced by me in the open court on this the 23rd day of February 2022).
(Ashwini M.Hattiholi) C/c XXII Addl. Small Causes Judge & ACMM, Bengaluru.
ANNEXURES List of witnesses examined for the petitioner/s:
P.W.1 : Sri Abdul Sahid. P.W.2 : Dr. Girish. G.
List of documents got marked for the petitioner/s:
Ex.P.1 : True copy of FIR. Ex.P.2 : True copy of Complaint. Ex.P.3 : True copy of Spot Mahazar. Ex P.4 : True copy of IMV report. Ex.P.5 : True copy of Wound certificate. Ex.P.6 : True copy of Chargesheet. Ex.P.7 : Laminated copy of Discharge summary. Ex.P.8 : Emergency case record of Nimhans Hospital.
Ex.P.9 to : OPD cards of Victoria Hospital (4 in no's).
P12 Ex.P.13 : OPD card of Minto Hospital. Ex.P.14 : CT scan of Orbits. Ex.P.15 : Audiological evolution sheet. Ex.P.16 : OPD card of Vittal International Hospital issued
by Dr.Krishna with enclosures in 3 papers.
Ex.P.17 : OPD card of Prabha eye Clinic.
SCCH-24 21 MVC No.5589/2018
Ex.P.18 : Pure Tone Audiometry (PTA) report.
Ex.P.19 : Rahaman Hospital Document in relating to
Neuro and ENT.
Ex.P.20 : Medical bills of Rs.54,090/ (52 in no's).
Ex.P.21 : Lodging bill of Rs.5,800/ (2 in no's)
Ex.P.22 : Prescriptions (10 in no's).
Ex.P.23 : Radiography film (3 in no's).
Ex.P.24 & : Photo with CD (3 in no's).
P24(a)
Ex.P.25 : Notarized copy of DL.
Ex.P.26 : OPD file.
Ex.P.27 : Xray films (2 in no's)
List of witnesses examined for the respondent/s:
R.W.1 : Sri Bikram Singh Rana.
List of documents marked for the respondent/s:
Ex.R.1 : Authorization letter.
Ex.R.2 : True copy of Policy.
Ex.R.3 : Correspondence dt.30.02.2020.
Ex.R.4 : Letter issued by District Transport Authority
Thoubal, Manipur dt 28.01.2020.
Ex.R.5 : Letter addressed to the insured.
Ex.R.6 : Postal Acknowledgment.
(Ashwini M.Hattiholi)
C/c XXII Addl. Small Causes Judge
& ACMM, Bengaluru.
SCCH-24 22 MVC No.5589/2018
23.02.2022
Judgment pronounced in open Court
(vide separate Order)
ORDER
The petition filed under Section 166 of M.V Act 1988, is hereby partly allowed with costs.
The petitioner is entitled for compensation of Rs.4,30,000/ (Rupees Four Lakhs Thirty Thousand only) with interest at the rate of 6% p.a. (excluding future medical expenses) from the date of claim petition till realization of the entire award amount.
The respondent No.2 is hereby directed to pay the aforesaid award amount together with interest to the petitioner within 30 days from the date of this order, with liberty to recover the same from the insured/respondent No.1 in appropriate execution proceedings as held by the Hon'ble Apex Court in Oriental Insurance Company Ltd V/s Nanjappan & others reported in (2004) 13 SCC
224. SCCH-24 23 MVC No.5589/2018
Out of the said compensation amount awarded, 25% of the compensation amount with proportionate interest shall be deposited in the name of petitioner in any Nationalized Bank/Scheduled Bank for a period of 3 years (without any encumbrance or premature withdrawal) with liberty to draw the accrued interest periodically and the remaining 75% amount with proportionate interest shall be released to him through Epayment on proper identification and verification.
Advocate fee is fixed at Rs.1,000/.
Draw an award accordingly.
(Ashwini M.Hattiholi) C/c XXII Addl. Small Causes Judge & ACMM, Bengaluru.
SCCH-24 24 MVC No.5589/2018