Bangalore District Court
Sri. Govindaraju S.V vs Sri. Gopal Rao N on 18 March, 2020
BEFORE THE COURT OF VIII ADDITIONAL SMALL
CAUSES JUDGE AND THE MOTOR ACCIDENT
CLAIMS TRIBUNAL (SCCH5) AT BENGALURU
DATED THIS THE 18TH DAY OF MARCH 2020
PRESENT: SMT. SHARMILA.S. B.COM.,LLB.,
VIII ADDL. SCJ & ACMM,
MEMBER - MACT,
BENGALURU.
M.V.C No.334/2018
PETITIONER : Sri. Govindaraju S.V.
S/o. S.N. Venkatachalapathi
Aged about 24 years
R/o. Sonaganahalli Village & Post,
Gowribidanur Taluk,
Chikkaballapura - 561 210.
(By Sri.Honnappa S. Adv.,)
V/s
RESPONDENTS : 1. Sri. Gopal Rao N.
S/o. Manjunda Rao K.R.
Aged about 59 years
2. Sri. Chethan G.
S/o.Gopal Rao
Aged about 25 years
Both Respondents No.1 & 2
are together residing at
No.153, 5th A Cross,
Kenchenahalli,
Rajarajeshwarinagar,
Bengaluru - 560 098.
(By Sri.T.B.Nataraj, Adv.,)
2 MVC No.334/2018
SCCH 5
3.ICICI Lombard Motor Insurance
ICICI Lombard House
No.414, Veer Savarkar Marg,
Near Siddhi Vinayak Temple,
Prabhadevi,
Mumbai - 400 025.
(By Sri.Janardhan Reddy, Adv.,)
****
::JUDGMENT::
This petition is filed by the Petitioner under Section 166 of Motor Vehicles Act, 1989, seeking compensation of Rs.10,00,000/ for the injuries sustained by him in a road traffic accident.
2. It is the case of the Petitioners that:
On 05.11.2016 at about 11.30 a.m. in the morning, he was riding his Motor Cycle bearing Reg.No.KA51Q 4312 on BengaluruBellary Road, near Jakkur Cross Junction, Western side of the Service Road to Judicial Layout. All of a sudden, Honda Activa Scooter bearing Reg.No.KA41ED7027 came from one way road in 3 MVC No.334/2018 SCCH 5 wrong direction and turned towards right with high speed and crashed against the Petitioner, due to which he fell down along with the vehicle and got injured on his head and other body parts. Immediately after the accident, the Petitioner was shifted to Prolife Multi Speciality Hospital, wherein he took treatment and for which he had incurred expenses of approximately Rs.7,00,000/ towards follow up treatment and other miscellaneous expenses.
3. It is the case of the Petitioner that, he was a Owner/Driver in OLS Cabs Company and he has been serving the said Company from last several years and earning a monthly income of Rs.45,000/ and due to the accidental injuries, he is undergoing severe, immeasurable pain and agony which cannot be measured in terms of money. Hence, he has filed this claim petition seeking compensation of Rs.75,00,000/ from Respondents.
4 MVC No.334/2018
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4. After service of summons, Respondents No.1 to 3 appeared through counsel and filed their respective written statements.
5. Respondents No.1 and 2 in its written statement denied entire averments of the petition. Further they have admitted that, both Respondents are having valid driving licence to drive the vehicle as on the date of the accident and the said vehicle is duly insured with Respondent No.3 as on the date of the accident. Among other grounds prays to dismiss the claim petition filed against them.
6. Respondent No.3 in its written statement admitted issuance of policy bearing No.3005/117602040/00/B00 in favour of Respondent No.1 in respect of Honda Activa bearing Reg.No. KA41 ED7027 and the liability if any, is subject to terms and conditions of the policy. It seeks protection available 5 MVC No.334/2018 SCCH 5 under Sec.134(c) and 158(6) of M.V.Act. It is admitted that, Respondent No.1 has violated terms and conditions of policy since at the time of alleged accident he was entrusted his Honda Activa bearing Reg.No.KA41ED 7027 to his son i.e., Respondent No.2 who has no DL to ride the Scooter but he has only LLR to ride the Scooter but no DL Holder accompanying to him at the time of the accident. Except this all other defences are formal in nature and among other grounds, pray to dismiss the petition.
7. On the basis of the above pleadings, I have framed the following:
::ISSUES::
1.Whether Petitioner proves that, on 05.11.2016 at about 11.30 a.m. while he was riding his Motor Cycle bearing Reg.No.KA51Q4312 when he reached near 6 MVC No.334/2018 SCCH 5 Jakkur Cross Junction, B.B. Road, Yelahanka, Bengaluru, at that time a rider of Honda Activa Scooter bearing Reg.No. KA41ED7027 came from one way road in wrong direction in a rash and negligent manner and dashed against the Petitioner's Bike, as a result of which Petitioner fell down and he sustained grievous injury, as mentioned in claim petition?
2. Whether Petitioner is entitled for compensation as prayed in the petition? If so, from which Respondent?
3. What Order or Award?
8. In order to prove the above Issues for consideration, Petitioner got examined himself as PW1 and got marked documents as Ex.P.1 to Ex.P.14. The Medical Officer (Consultant) at Abhaya Hospital has 7 MVC No.334/2018 SCCH 5 been examined as PW2 and got marked Ex.P.15 to Ex.P.17 document. Per contra, the Legal Manager of the 2nd Respondent examined as RW1 and got marked Ex.R.1 documents.
9. Heard the arguments of learned counsel for the Petitioner and Respondents.
10. My findings on the above Issues are as under::
Issue No.1 : In the Affirmative
Issue No.2 : In the Partly Affirmative
Issue No.3 : As per final order for the
following:
::REASONS::
11. 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.
12. As this claim petition has been filed by the Petitioner under Sec.166 of the M.V. Act, 1989, the burden is on Petitioner to prove that he had sustained 8 MVC No.334/2018 SCCH 5 injury because of the accident which took place, as a result of rash and negligent riding by the rider of Honda Activa Scooter bearing Reg. No.KA41ED7027.
13. In order to prove the same, Petitioner himself examined as PW1 and got marked documents as Ex.P.1 to Ex.P.14 out of which, Ex.P.1 to Ex.P.8 are the Police records which are certified copy of FIR with Complaint, Charge Sheet, Mahazar, Sec.133 Notice and Reply, Wound Certificate, Sketch and IMV Report. On perusal of Ex.P.1 it clearly discloses that, on 05.11.2016 at about 11.30 a.m. in the morning, he was riding his Motor Cycle bearing Reg.No.KA51Q4312 on BengaluruBellary Road, near Jakkur Cross Junction, Western side of the Service Road to Judicial Layout. All of a sudden, Honda Activa Scooter bearing Reg.No.KA41ED7027 came from one way road in wrong direction and turned towards right with high speed and crashed against the Petitioner, 9 MVC No.334/2018 SCCH 5 due to which he fell down along with the vehicle and got injured on his head and other body parts.
14. PW1 has been crossexamined by counsel for Respondent No.3 wherein the Petitioner denied his negligence in the accident and further crossexamination consists of bear suggestions and denials.
15. Further, Spot Mahazar and Charge sheet which are discloses that, this accident had occurred at BengaluruBellary Road, Jakkur Cross, wherein the driver of the Honda Activa came in rash and negligent manner and dashed against the Motor Cycle in which Petitioner was proceeding. This shows the speed in which the rider of the Honda Activa rode the same and because of his fault, Petitioner met with this accident. Further on perusal of IMV Report it was mentioned that, as per the opinion of the IMV Inspector this accident was not due to any mechanical defect. Moreover, though the 1 st and 2nd 10 MVC No.334/2018 SCCH 5 Respondents appeared before the Court and filed their written statement but not come forwarded to adduce any oral and documentary evidence. Per contra, the Legal Manager of the 3rd Respondent examined as RW1 and no documents have been marked.
16. In the crossexamination he deposed that, at the time of the accident policy in respect of vehicle bearing Reg.No.KA41ED7027 was in force. Further he denied that at the time of the accident, the driver of the insured vehicle was possessing valid driving licence
17. The Police records clearly indicate that, the rider of the Honda Activa did not taken any special care indicating the other vehicles. This shows the negligent conduct of the rider of the Honda Activa, who was very much aware that, he was riding the vehicle in a rash and negligent manner and he did not made any attempt to avoid the accident. Moreover, the 1st and 2nd Respondents 11 MVC No.334/2018 SCCH 5 have not produced any documents nor lodged any complaint to disprove the negligence on behalf of the rider of the Honda Activa. Moreover the Police have filed charge sheet against the 2nd Respondent. Hence, an inference can be drawn against the rider of the Honda Activa that this accident took place only due to his negligence.
18. It is the only contention of the 3 rd Respondent that, the rider of the Honda Activa was not having valid DL but he has only LLR to ride the Scooter. As per Sec.3 of Central Motor Vehicles Act, it is very clear that, if the rider has LLR at the time of riding the vehicle, the DL Holder has to be accompanied to him but in the instant case, at the time of the accident the 2 nd Respondent was alone riding the Scooter and met with an accident. In order to substantiate its contention, except examining the RW1, the Respondents have not adduced any 12 MVC No.334/2018 SCCH 5 evidence to show that the 2nd Respondent has no DL at the time of the accident. The Police have not filed any charge sheet against the 2nd Respondent for not having DL at the time of the accident.
19. At this stage it is useful to refer a decision of our Hon'ble High Court of Karnataka decided on dated August 21st, 2019 b/w the Sr. Divisional Manager, National Insurance Co. Ltd., V/s. Sri.Jyothiba Appaji Shigate wherein Hon'ble High Court of Karnataka held that, "LL issued by a competent authority is a valid licence and a rider or learner need not accompany any instructor for a Motor Cycle as is required in case of a Car"
20. Hence from the above decision it is clear that, the person who was having LL need not be accompanied by any instructor to ride a Motor Cycle. From the 13 MVC No.334/2018 SCCH 5 observations made by the above decision, this Court is of the opinion that, a LLR is also a valid driving licence and the rider of the Motor Cycle was having valid and effective driving licence as on the date of the accident.
21. Coming to the question of fixing of liability is concerned, Respondent No.1 who was the R.C.Owner of the offending vehicle and the 3 rd Respondent has issued policy in respect of offending vehicle are jointly and severally liable to pay the compensation to the Petitioner.
22. Coming to the question of quantum of compensation to be assessed, according to the Petitioner, he was aged 24 years at the time of the accident. In order to prove his age, he has produced Driving Licence and Aadhar Card which are marked as Ex.P.13 and Ex.P.14., wherein date of birth of the Petitioner is mentioned as 06.08.1993. The alleged accident was occurred on 05.11.2016. Hence, based on the above document, it is 14 MVC No.334/2018 SCCH 5 considered that the Petitioner was aged 23 years as on the date of the accident.
23. Petitioner has contended that, he was Owner/Driver in OLA Cabs Company and earning monthly income of Rs.45,000/. In order to prove his income and employment he has produced Bank Statement marked as Ex.P.10 and Ex.P.11 is 'B' Extract. Only based on that documents it cannot be come to the conclusion that, the Petitioner was earning Rs.45,000/ p.m.
24. Petitioner had sustained severe head injury right fronto parietal acute SDH with temporal bone fracture, for which, he was treated conservatively. In order to prove injury and treatment taken, he has produced Ex.P.6 Wound Certificate issued by Prolife Hospital and Ex.P.12 Discharge Summary issued by Abhaya Hospital wherein he took treatment from 15 MVC No.334/2018 SCCH 5 06.11.2016 to 21.11.2016. The Petitioner has also produced Medical Bills for Rs.2,93,607/ marked at Ex.P.9.
25. Coming to the question of assessment of disability, the Petitioner has adduced the evidence of Medical Officer (Consultant) by name one Dr.S.R.Jagannath, at Abhaya Hospital as PW2 and got marked Ex.P.15 to Ex.P.17 i.e., Inpatient Case File, Xray and CTScan Reports. In the course of crossexamination PW2 deposed that, he know the contents of the documents and his name is not mentioned in the case sheet but it was mentioned in the Discharge Summary and his signature is in the clinical notes and case sheet. Except this nothing worth has been elicited by PW2 in order to deny his contentions.
26. Though the PW2 is a Medical Officer but he has not assessed disability. Anyhow Petitioner has 16 MVC No.334/2018 SCCH 5 suffered the injuries mentioned in the wound certificate which are grievous in nature. Considering the nature of the injuries, Petitioner is entitled for compensation under the head loss on account of disability of Rs.25,000/.
27. As per the Discharge Summary, the Petitioner was hospitalized for a period of 15 days, if one month income is awarded under the head of loss of earning during laid up period and rest period certainly it would meet the ends of justice. Considering the above facts, I deem it just and reasonable to grant compensation of Rs.7,000/ under the head of loss of income during the laid up period under rest period.
28. 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:
17 MVC No.334/2018
SCCH 5
a) to treatment, hospitalization, 2,94,00000 medicines, transportation (Rs.2,93,607/ rounded off to Rs.2,94,000/)
b)nourishing food and 10,00000 miscellaneous expenditure
2. Loss of earnings which the injured would have made had he not been injured, comprising:
a) Loss of earnings during period 7,00000 of treatment
b) Loss on account of disability 25,00000
3. Future medical expenses II. NONPECUNIARY DAMAGES (General Damages)
4. Damages for pain, suffering and 25,00000 trauma as a consequence of the injuries
5. Loss of amenities ( and/or loss 30,00000 of prospects of marriage)
6. Loss of expectation of life (shortening of normal longevity) Total 3,91,00000
29. Accordingly, I hold that Petitioner is entitled for total compensation of Rs.3,91,000/ with interest at 18 MVC No.334/2018 SCCH 5 the rate of 9% p.a. from the date of petition till its realization.
30. As far as awarding of interest on the compensation amount is concerned, in a recent decision reported in 2018 ACJ 1300 between Mangla Ram V/s. Oriental Insurance Co., Ltd., and others (in CA Nos.2499 of 2018 arising out of SLP(C) Nos.2814142 of 2017 decided on 06.04.2018) wherein the Hon'ble Supreme Court with regard to interest at the rate of 9% p.a. on the compensation amount, in para No.28 of the judgment held that, 'The appellant would also be entitled to interest on the total amount of compensation at the rate of 9 per cent per annum on the compensation from the date of filing of the claim petition till date of realization" and also by following the principles laid down in (2018) ACJ 1020 in 19 MVC No.334/2018 SCCH 5 between ICICI Lombard General Insurance Co., Ltd., V/s. Ajay Kumar Mohanty and another decided on 6.3.2018 (in CA Nos.7181 of 2015 and 1879 of 2016) at para No.1 and 12 Hon'ble Supreme Court held that:
"QuantumInterestTribunal allowed interest at the rate of 7.5 per cent which was reduced by High Court to 7 per centApex Court allowed interest at 9 per cent per annum from the date of filing of claim application". 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 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. 20 MVC No.334/2018 SCCH 5
31. Coming to the question of fixing the liability to pay the compensation to the Petitioner, Respondent No.3 being the Insurance Company had issued policy infavour of Respondent No.1 in respect of Honda Activa bearing Reg.No.KA41ED7027 which is valid and effective as on the date of accident. Accordingly, the Respondent No.3 being the insurer and Respondent No.1 being the RC owner of the offending vehicle are jointly and severally liable to pay compensation to the petitioner. However, the 3rd Respondent has to indemnify the 1 st Respondent. Accordingly, Issue No.1 is answered in affirmative and Issue No.2 in partly affirmative.
32. Issue No.3: On the basis of discussions made on Issue Nos.1 and 2, I proceed to pass the following:
::ORDER::
The petition filed under Sec.166 of the M.V. Act, 1989 is partly allowed with cost.21 MVC No.334/2018
SCCH 5 Petitioner is entitled for compensation of Rs.3,91,000/ (Rupees Three Lakhs Ninety One Thousand Only) with interest at the rate of 9% p.a. from the date of petition till its realization.
The Respondent No.3 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 his favour through epayment directly to the Petitioner's account by obtaining the Bank A/c details, on proper identification.
Fee of counsel for Petitioner is fixed at Rs.1,000/.
Draw award accordingly. (Dictated to the stenographer directly on the computer, typed by her thereof is corrected and then pronounced by me in the Open Court on this the 18th day of March, 2020) (SHARMILA.S) VIII ADDL. SCJ & ACMM, MEMBER, MACT, BENGALURU.22 MVC No.334/2018
SCCH 5 ::A N N E X U R E::
LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER: PW1 : Sri. Govindaraju S.V. PW2 : DR. S.R. Jagannath LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONER: Ex.P.1 : Copy of FIR with Complaint Ex.P.2 : Copy of Charge Sheet Ex.P.3 : Copy of Mahazar Ex.P.4 & : Copy of Sec.133 Notice and Reply Ex.P.5 Ex.P.6 : Copy of Wound Certificate Ex.P.7 : Copy of Sketch Ex.P.8 : Copy of IMV Report Ex.P.9 : Medical Bills (65 in Nos.) for Rs.2,93,607/ Ex.P.10 : Bank Statement Ex.P.11 : 'B' Extract Ex.P.12 : Discharge Summary Ex.P.13 : Notarized copy of Driving Licence Ex.P.14 : Notarized copy of Aadhar Card Ex.P.15 : Inpatient Case File Ex.P.16 : Xray (5 in Nos.) Ex.P.17 : CTScan Reports (4 in Nos.) 23 MVC No.334/2018 SCCH 5 LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENTS: RW1 : Sri. T.D.Nitin LIST OF DOCUMENTS MARKED ON BEHALF OF THE RESPONDENTS: NIL (SHARMILA.S) VIII ADDL. SCJ & ACMM, MEMBER, MACT, BENGALURU.24 MVC No.334/2018
SCCH 5 AWARD BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA: BANGALORE CITY M.V.C No.334/2018 PETITIONER : Sri. Govindaraju S.V. S/o. S.N. Venkatachalapathi Aged about 24 years R/o. Sonaganahalli Village & Post, Gowribidanur Taluk, Chikkaballapura - 561 210.
(By Sri.Honnappa S. Adv.,) V/s RESPONDENTS : 1. Sri. Gopal Rao N. S/o. Manjunda Rao K.R. Aged about 59 years
2. Sri. Chethan G. S/o.Gopal Rao Aged about 25 years Both Respondents No.1 & 2 are together residing at No.153, 5th A Cross, Kenchenahalli, Rajarajeshwarinagar, Bengaluru - 560 098.
(By Sri.T.B.Nataraj, Adv.,)
3.ICICI Lombard Motor Insurance ICICI Lombard House No.414, Veer Savarkar Marg, Near Siddhi Vinayak Temple, Prabhadevi, Mumbai - 400 025.
(By Sri.Janardhan Reddy, Adv.,) 25 MVC No.334/2018 SCCH 5 WHEREAS, this petition filed on by the petitioner/s above named U/s.166 of the M.V.C. Act praying for the compensation of Rs. (Rupees ) for the injuries sustained by the petitioner/Death of in a Motor Accident by Vehicle No. WHEREAS, this claim petition coming up before Smt.Sharmila S., VIII Addl. Judge, Member, Bengaluru, in the presence of Sri/Smt. Advocate for Petitioner/s and of Sri/Smt. Advocate for Respondent.
ORDER The petition filed under Sec.166 of the M.V. Act, 1989 is partly allowed with cost.
Petitioner is entitled for compensation of Rs.3,91,000/ (Rupees Three Lakhs Ninety One Thousand Only) with interest at the rate of 9% p.a. from the date of petition till its realization.
The Respondent No.3 is liable to pay the compensation to the Petitioner and shall deposit the said amount within 60 days from the date of this order.
26 MVC No.334/2018
SCCH 5 On deposit of compensation amount, entire amount to be released in his favour through epayment directly to the Petitioner's account by obtaining the Bank A/c details, on proper identification.
Fee of counsel for Petitioner is fixed at Rs.1,000/.
Given under my hand and seal of the court this day
of 2020.
MEMBER
MACT BANGALORE.
By the
________________________
Petitioner/s Respondents
No.1 No.2
Court fee paid on Petition
Court fee paid on Powers
Court fee paid on I.A.
Process
Pleaders Fee
___________________________ Total Rs. ___________________________ Decree Drafted Scrutinised by Decree Clerk SHERISTEDAR MEMBER M.A.C.T METROPOLITAN AREA 27 MVC No.334/2018 SCCH 5 11.03.2020 (Judgment pronounced in the Open Court vide separate) ORDER The petition filed under Sec.166 of the M.V. Act, 1989 is partly allowed with cost.
Petitioner is entitled for compensation of Rs.3,91,000/ (Rupees Three Lakhs Ninety One Thousand Only) with interest at the rate of 9% p.a. from the date of petition till its realization.
The Respondent No.3 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 his favour through epayment directly to the Petitioner's account by obtaining the Bank A/c details, on proper identification.
Fee of counsel for Petitioner is fixed at Rs.1,000/.
Draw award accordingly.
(SHARMILA S.) VIII ADDL. SCJ & ACMM, MEMBER, MACT, BENGALURU.
28 MVC No.334/2018SCCH 5