Bangalore District Court
Sri Janardhana Raju vs The Icici Lombard General on 14 August, 2017
BEFORE THE PRL. MOTOR ACCIDENT CLAIMS TRIBUNAL,
COURT OF SMALL CAUSES AT BANGALORE
DATED THIS THE 14th DAY OF AUGUST'2017
PRESENT : SRI H.P.SANDESH B.A.L., LL.B.,
MEMBER, PRL. M.A.C.T.
MVC No.7455/2008
Petitioner: Sri Janardhana Raju,
S/o.Rangaraju,
Aged about 45 years,
No.618, Jayaramareddy Layout,
Belekahalli,
Bannerghatta Road,
Bangalore.
(By Yogesh G.K., Advocate)
Vs.
Respondents: 1. The ICICI Lombard General
Insurance Co., Ltd., 1st Floor,
Prestige Korniko,
Richmond Road,
Bangalore.
2. Sri K.S.Venkatesh,
S/o.L.Srinivas,
Vijayalaxmi Colony,
Adugodi,
Bangalore-30.
(Previous R.C.Owner of the
Vehicle TATA 407 Tempo
(Maxi Cab)
Policy
No.3004/A.53233404/00/000
From 02.01.2008 to
01.01.2009.
3. N.Ashwath Kumar,
S/o.Late K.V.Nagaraju,
No.673, Netaji Road,
New Extension, Kadugodi,
Bangalore 560 067.
(Previous R.C. Owner of the
2 MVC No.7455/2008
Vehicle TATA 407 Tempo
(Maxi Cab)
Reg.No.KA.07/2516.
4. Sri K.M.Nataraj,
Aged about 40 years,
S/o.Muniyappa,
Residing at Behind Sunitha
Agency, Opp:Bache Gowda
House, Bazaz Street,
Kadugodi, Bangalore.
(Respondent No.1 by Sri
B.C.Shivannegowda, Advocate
Respondent No.2 Exparte,
Respondent No.3 by Sri
Reeyazulla Sharief, Advocate,
Respondent No.4 by sri
Adinarayan, Advocate)
JUDGMENT
This petition was earlier filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation of Rs.5,00,000/- from the respondents No.1 to 3 jointly and severally on account of the injuries sustained by him in a motor vehicle accident, on the contention that on 16.05.2008, while the petitioner was travelling in Tata 407 Tempo (Maxi Cab) bearing registration No. KA-07/2516 as passenger. At about 03.45 pm., and when the said vehicle came in front of ITPL, White Field Road, at that time, the driver of the Maxi Cab No.KA.07/2516 drove the same in a high speed and in a rash and negligent manner dashed against an electric pole, due to the impact, the petitioner sustained grievous injuries. He was shifted to 3 MVC No.7455/2008 Govt.Hospital, Hoskote and from there to Parimala Hospital, Belekahalli, Bangalore. The petitioner has spent substantial amount for treatment. He suffered not only loss of income during the period of treatment, but also suffered disability. For all these reasons, the petitioner has claimed a compensation of Rs.5 lakhs from the respondents.
2. In response to the notice, Respondent No.2 and 3 the present and past owner of Tata 407 Temp (Maxicab) remained absent, they were placed exparte.
3. The Respondent No.1 insurance company in its reply has denied all the material averments made out in the petition such as the manner in which the accident occurred, the nature of the injuries suffered by the Petitioner, the period of hospitalization, the expenditure incurred, his avocation and monthly income etc. etc., apart from denying the negligence attributed to the driver of the Maxicab. However the 1st Respondent has admitted of having issued policy of insurance. It is further contended that the driver of the Maxicab had no valid and effective D.L. as on the date of the accident. It is further contended that there is breach of policy conditions in as much as, the vehicle was registered as passenger vehicle for contract carriage, but the same was used as stage carriage at the time of accident and therefore, the respondent No.1 is not liable to 4 MVC No.7455/2008 indemnify the insured. For all these reasons the 1st Respondent has sought for dismissal of the petition.
4. Based on the above pleadings, the following issues were framed.
ISSUES
1. Does the petitioner proves that he has sustained grievous injuries and permanent disability in an accident arising out of rashness or negligent driving of the driver of the Tata 407 Tempo bearing No.KA.07/2516 as alleged?
2. Whether the Petitioner is entitled for compensation? If so, how much and from whom?
3. What order or Award?
5. In order to prove the claim, the petitioner got himself examined as PW.1 and got marked 7 documents, which are at Ex.P-1 to P.7. On behalf of the Respondent No.1, one K.L.Venu, Manager Legal, has been examined as RW 1 and Exhibits R.1 to R.3 have been marked.
6. After hearing the arguments and based on the material on record, this Court, while answering the Issue No.1 in the affirmative and Issue No.2 partly in the affirmative, has passed the final order on 17.09.2011 as under:-
"ORDER Petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1988 is partly allowed with cost. Petitioner has been awarded compensation of Rs.1,47,153/- from the 5 MVC No.7455/2008 respondent No.2 and 3 jointly and severally together with interest at the rate of 6% p.a from the date of petition till realization.
The respondent No.1 Insurance Company shall deposit the amount within two months from the date of this order failing which it is liable to pay interest at the rate of 9% p.a., and recover the same from the respondent No.2 and 3, the owners of the vehicle.
In the event of deposit, an amount of Rs.75,000/- shall be deposited in the name of the Petitioner in any Nationalized bank/scheduled bank of his choice for a period of 3 years and the balance amount together with interest shall be released to the Petitioner.
Advocate fee is fixed at Rs.1000/-."
7. Pursuant thereto, the respondent No.1 Insurance Company, in compliance of the above said order deposited the compensation amount and even the compensation amount has also been disbursed to the petitioner in terms of the above order. Thereafter, on 06.08.2016, the respondent No.3 - N.Ashwath Kumar, being aggrieved by the said order, had filed Misc.No.248/2015 before this court, contending that he being the RC owner of the Tempo, the respondent No.1 is the insurer and the respondent No.2 is the previous owner of the same and the insurance policy stands in his name and the order in MVC No.7455/2008 has been passed without proper service of notice on him and keeping him exparte and further contended that prior to the accident which occurred on 16.05.2008, he sold the vehicle to the 4th respondent on 12.05.2008 itself and the respondent 6 MVC No.7455/2008 No.3 by misrepresentation has obtained the above order and hence, prayed to set aside the exparte order passed against him in MVC 7455/2008. After hearing the petitioner and perusing the documents produced in the said Misc.No.248/2015, this Court passed the order, which reads thus:-
"ORDER The Misc.Petition filed under Order IX Rule 13 of CPC is hereby allowed, consequently, impugned order passed in MVC No.7455/2008 is set aside and the MVC No.7455/2008 is restored to its file for fresh disposal in accordance with law.
Office is directed to put up the MVC No.7455/2008 before the court. The petitioner and respondent No.1 and 3 are directed to appear before the Court on 16.11.2016 without expecting separate notice and order of this Court itself is a notice."
8. Pursuant to the above said order passed by this Court setting aside the earlier judgment and order dated 17.09.2011 restoring MVC No.7455/2008 to its file, as above, petitioner, respondent No.1 and 3 appeared through their Counsel and the respondent No.3 filed his statement of objections and respondent No.2, remained absent and hence, he was placed exparte. On 01.03.2017, the counsel for the respondent No.3 filed I.A under Order 1 Rule 10(A) of CPC seeking to implead the respondent No.4, contending that the vehicle has been transferred to him prior to the accident and he is a necessary party and upon hearing both sides, the said application was allowed and the 7 MVC No.7455/2008 respondent No.4 was impleaded and upon entering appearance, the respondent No.4 filed his statement of objections. Even though sufficient opportunity was given to both sides, none of the parties lead further evidence and the Counsel for the petitioner submitted that the compensation amount is already paid and the conflict of interest is between the Owner and the Insurance Company and hence, there is no need to cross-examine PW 1 and hence, recording the above submission made by the counsel for the petitioner, the matter was posted for respondents' evidence and the Investigating Officer ie., the Inspector of K.R.Puram Police Station has been examined as RW 2 and Exhibits Ex.R.4 and R.5 are marked and he was subjected to cross-examination. Thereafter, the respondent No.4 has been examined as RW 3 and the respondent No.3 has been examined as RW 4 and Exhibits R.6 to 8 were marked and after hearing the arguments, the matter is now posted for judgment, afresh. The counsel for the respondent No.3 has relied upon 3 reported and unreported judgments ie., MFA No.1201/2011, MFA 4647/2007 and ILR 2000 KAR 1302 and I have given my anxious consideration to the principles laid down in the above judgments. Since no fresh grounds are urged to frame additional issues and hence, the issues already framed holds good. Thus, in the above background of the case, as the earlier judgment and order is set 8 MVC No.7455/2008 aside thereby requiring this Court to give findings on the issues afresh, I am answering the above issues as under:-
Issue No.1 : In the affirmative
Issue No.2 : Partly in the affirmative
Issue No.3 : As per final order, for the following;
REASONS
9. Issue No.1: The petitioner, in the petition has stated and in his evidence as PW 1 has testified to the effect that while he was traveling in the maxi cab, on account of rash and negligent driving, it went and dashed against an electric pole, causing grievous injuries to the inmates of the vehicle, including the petitioner. The very fact that the Maxi Cab went and dashed against an electric pole by the side of the road, itself speaks that it is a case of 'res ipsa loquitor'. Therefore, it is for the driver of the Maxi Cab to explain that the accident was not due to his negligence. But, he failed to step into the witness box. Moreover, the testimony of the petitioner, who has been examined as PW 1, as to the negligence attributed to the driver of the Maxi Cab is supported by the police documents. Further, the petitioner has produced Ex.P.1, the FIR for having registered a case against the driver of the Maxi Cab by the K.R.Puram Traffic Police for offence under Section 279, 337 and 134(A) & (B) of the MV Act. Ex.P.2 is the Spot Panchanama, Ex.P.3 is the Sketch of the Spot of the accident, which clearly shows that the Maxi Cab 9 MVC No.7455/2008 went and dashed against the roadside electric pole. Ex.P.4 is the Wound Certificate issued by the Community Health Center, Hoskote, which shows that in the accident, the petitioner has suffered 3 grievous injuries. Ex.P.5 is the charge sheet filed against the driver of the Maxi Cab under Section 279, 337 and 338 of the IPC. Though, the petitioner has been cross examined by the counsel for the insurance company, there is nothing in the cross examination so as to challenge the evidence of the Petitioner regarding the negligence attributed to the driver of the Maxi Cab. As against the oral and documentary evidence placed on record by the Petitioner, there is no rebuttal evidence. The driver of the offending Maxi Cab has not been examined by the Respondents. Thus in the absence of examination of the driver of the Maxi Cab, the evidence placed on record by the Petitioner is sufficient to hold that the accident and the resultant injuries sustained by the Petitioner are on account of rash and negligent driving of the Maxi Cab by its driver. Accordingly Issue No.1 is answered in affirmative.
10. Issue No.2:- Coming to the determination of quantum of compensation, the petitioner has claimed a total compensation of Rs.5,00,000/- on account of injuries sustained by him. He has stated that in the accident he sustained grievous injuries. Immediately he was shifted to Government Hospital, Hoskote and 10 MVC No.7455/2008 after first aid, he was shifted to Parimala Hospital, Bangalore, where he was treated as inpatient from 16.05.2008 to 05.06.2008. The petitioner has produced. Ex.P-4 - Wound Certificate issued by Community Health Center, Hoskote. The petitioner has also produced Ex.P.6 Discharge Summary issued by Parimala Hospital, Bangalore, perusal of which shows that the petitioner has suffered the following injuries:-
1. Crush injury of the right great toe. Features of gangrene present.
2. Swelling, deformity, tenderness and abnormal mobility of the left forearm present.
3. Swelling of the right leg upper third and right ankle present.
11. Regarding treatment, Ex.P.6 Discharge Summary shows that the petitioner was treated with amputation of the right great toe under spinal anesthesia on 17.05.2008, open reduction internal fixation with DCP plate and screws for radius and ulna on 20.05.2008 under brachial block and an above knee plaster cast was applied for the right leg. He was discharged with instructions to come for followup treatment and to continue the plaster for 4 weeks. Therefore having regard to the nature of injuries, period of hospitalisation and the nature of treatment given to him, he has been awarded a sum of Rs.50,000/- under the head injury, pain and sufferings.11 MVC No.7455/2008
12. So far as medical expenditure is concerned, the petitioner has produced the Medical bills as per Ex.P-7 for Rs.68,153/-. I have perused the bills and found nothing to discard of disbelieve them. So, the petitioner has been awarded an amount of Rs.68,153/- is awarded under the head medical expenses.
13. After the accident, the petitioner was taken to Community Health Center, Hoskote and from there to Parimala Hospital, Bangalore and that he had fracture of both bones of left forearm, crush injury of right great toe and fracture upper third of right fibula. The condition of the petitioner was precarious and that service of an attendant was indispensable during the period of treatment and even during the period of rest. As such, I deem it just and proper to award Rs.2,000/- under the head conveyance charges and Rs.9,000/- under the head attendant charges for a period of 3 months at the rate of Rs.100/- per day.
14. The Petitioner has stated in his petition that he was aged 45 years and working as loader in wholesale liquor shop and earning Rs.5,000/- per month, but no documents are produced to show the avocation or the income of the petitioner.
In the absence of proof regarding avocation and income, having regard to the age of the petitioner as 45 years as shown in the medical records and that his family is depending upon him, I am 12 MVC No.7455/2008 inclined to take his income as Rs.4,500/- per month, considering the cost of living during the year 2008.
15. Since the petitioner had fracture of both bones of left forearm, crush injury of right great toe and fracture upper third of right fibula, he must have been incapacitated from attending to his work at least for a period of 4 months and thereby, he lost earning for that period and accordingly, the petitioner has been awarded Rs.18,000/- under the head loss of income during the period of treatment at the rate of Rs.4,500/- per month.
16. The Petitioner has stated that he suffered disability on account of the injuries sustained by him in the accident inspite of best treatment. But no evidence is forthcoming nor the doctor, who treated him has been examined to substantiate the same. In the absence of medical evidence, it is not just and proper to award any amount under the head disability. Accordingly, it is held that the petitioner is not entitled any compensation under the head disability.
17. Thus the Petitioner has been awarded compensation under the following heads:-
Sl. No. Head of compensation Amount/Rs
1 Injury, Pain and suffering 50,000-00
2 Medical expenses 68,153-00
3 Conveyance charges 2,000-00
13 MVC No.7455/2008
4 Attendant charges 9,000-00
5 Loss of earning during the period 18,000-00
of treatment
Total 1,47,153-00
Accordingly, the petitioner has been awarded compensation of Rs.1,47,153.00 together with interest at 6% p.a. from the date of petition till realization.
18. Now, coming to the liability to pay compensation. The first Respondent/insurance company, while admitting the issuance policy of insurance in respect of the Maxi Cab, which was valid as on the date of the accident, it is contended that the Maxi Cab was registered as contract carriage vehicle, whereas the respondent 2 and 3 were using it as stage carriage in contravention of the policy conditions and also violating the permit rules and therefore, the respondent No.1 is absolved from indemnifying the respondents 2 and 3. In support of the said contention, one of the Officers of respondent No.1 viz., Sri K.L.Venu deposed as RW 1 reiterating the said conditions and produced copy of the Insurance Policy as well as the cover containing the notice sent to the respondent No.2.
19. The respondent No.2, in whose name, the insurance policy of the vehicle was issued has remained absent and placed exparte.
14 MVC No.7455/2008
20. The respondent No.3, who was placed exparte in the earlier proceedings and thereafter filed Misc.No.248/2015 and got the Judgment and Decree passed earlier in MVC No.7455/2008 restored to its file, has filed statement of objections, contending that he has sold the Tempo No.KA.07/2516 on 12.05.2008 to the 4th respondent and the accident has occurred on 16.05.2008 and as on the date of the accident, the said vehicle was in the custody of the respondent No.4 and the respondent No.4 got released the said vehicle from the K.R.Puram Traffic Police Station and the driver of the vehicle was enlarged on bail on the surety of 4th respondent and this fact shows that the 4th respondent was the owner of the vehicle and hence, sought to reject the petition as against him.
21. The respondent No.4, who was brought on record after restoration of the above petition, has filed his statement of objections contending that at no point of time, the respondent No.4 has purchased the vehicle from the respondent No.3 nor he executed the delivery note to the 3rd respondent and the signature found on delivery note does not belong to him and hence, prayed the Court to reject the petition as against him.
22. The respondent No.3, to prove his allegation that he has sold the vehicle to respondent No.4, has examined RW 2 - K.Singegowda, who was working as Sub Inspector at K.R.Puram 15 MVC No.7455/2008 Police Station and conducted the investigation into the matter and in his evidence, he has stated that he has registered Crime No.256/2008 and investigated the case and filed charge sheet against the driver of the maxi cab bearing No.KA.07/2516. He further says that on 20.05.2008, he has given Section 133 Notice to the insured and the insured has given reply and copy of the Section 133 Notice and Reply given by insured are marked as Ex.R.4 and 5. In his cross-examination by the Counsel for the respondent No.3, he admits that he has not obtained the indemnity bond while releasing the vehicle in favour of the insured. It is suggested to him that Ashwath Kumar has sold the vehicle infavour of Nagaraj 13 days prior to the accident and the said Nagaraj, by impersonation has signed the Section 133 Notice and got released the vehicle and the said suggestion has been denied by him. It is suggested to him that himself and his staff have colluded with the said Nagaraj and forged the signature of Ashwath Kumar and released the vehicle in favour of Nagaraj and the same has been denied by him.
23. In the cross-examination by the counsel for the respondent No.4, RW 2 says that the RC was standing in the name of Ashwath Kumar and that he released the vehicle infavour of Ashwath Kumar and in the cross-examination by the 16 MVC No.7455/2008 counsel for the respondent No.4, he says that the RC was standing in the name of Ashwath Kumar.
24. Now, let me appreciate both oral and documentary evidence with regard to the liability and also the ownership of the vehicle is concerned.
25. During the course of arguments, the Counsel for the respondent No.1 - Insurer contended that the maxi cab has been registered as a passenger vehicle and as per the permit, the vehicle should be used only for contract carriage, but the same has been used for stage carriage and hence, there is violation of permit granted and also the Motor Vehicles Act and hence, sought to reject the petition as against the respondent No.1 and saddle the responsibility on the owner.
26. Countering the same, the Counsel for the respondent No.3, while contending that the vehicle has been sold by him to the respondent No.4 on 12.05.2008 and the respondent No.4 has executed a Delivery Note on 12.05.2008 for having taken the delivery of the vehicle and the accident having occurred on 16.05.2008 and there, the respondent No.4 and the insurer of the vehicle are liable to satisfy the award. Further contended that merely because the petitioner admitted that he has paid the fare, cannot be construed as an admission on the part of the owner 17 MVC No.7455/2008 that the vehicle was used as a stage carrier and in support of his contention, has relied upon the following unreported and reported judgments:-
1) MFA No.1201/2011 (MV) (Durgamma Vs Naresh and others)
2) MFA No.4647/2007 (MV) (New India Assurance Co., Ltd., Vs Smt.Mahadevamma and others)
3) ILR 2000 KAR 1302 (United India Insurance Co., Ltd., Vs. Chandamma and others)
27. I have meticulously perused the principles laid down in the above judgments. It is true that the petitioner has admitted in his cross-examination that he was traveling in the tempo traveler from Saibaba Bus Stop towards K.R.Puram and he has paid Rs.20/- towards fare. In the background of such an admission, now it has to be seen whether the same results in breach of policy conditions disentitling the insurance company from paying the compensation to the petitioner.
28. In this regard, if the principles laid down in the case relied upon by the counsel for the respondent No.3 in ILR 2000 KAR 1302 (United India Insurance Co., Ltd., Vs Chandamma and others) coupled with the principles laid down in MFA No.1201/2011 (MV) (Durgamma Vs Naresh and others) and 18 MVC No.7455/2008 ILR 2000 KAR 1302 (United India Insurance Co., Ltd., Vs. Chandamma and others) are taken into consideration, it is laid down in the said judgments that "Using the offending vehicle in breach of a permit conditions does not absolve the Insurer from paying compensation awarded; nor such a "plea" is available to the Insurer under Section 149(2)". The High Court, before laying down such a principle, has meticulously gone through the principles laid down in ILR 1991 KAR 4127 (K.V.Thimmegowda Vs Kamalamma), 2005 AIR KANT R 1678 ( New India Assurance Co., Ltd., Vs Papaiah and others), 2010 ACJ 1406 ( National Insurance Co., Ltd., Vs Smt.Laxmavva and others), 2015(2) AKR 827 ( Reliance Genral Insurance Co., Ltd., Vs Devibai and another), 2004 AIR SCW 5301 (National Insurance Co., Ltd., Vs Challa Bharathamma and others), 2003(2) SCC 223 (New India Assurance Co., Ltd., Vs Asha Rani and others). Therefore, when there is an authoritative pronouncement of the High Court to the effect that "An Insurance Company is liable to pay compensation in respect of the injury or death of a third party, caused by a motor accident by a motor vehicle, which is a stage carriage while plying or being used lawfully otherwise than as a stage carriage, at a public place, even if such public place does not lie on the route in respect of which it is permitted to operate as a stage carriage", the Insurer cannot disown its liability of indemnifying 19 MVC No.7455/2008 the insurer. Accordingly, the respondent No.1 being the insurer of the vehicle is liable to indemnify the insured and pay the compensation amount.
29. Now, coming to the ownership of the vehicle is concerned, the respondent No.3 has made a feeble attempt to show that he has sold the vehicle to the respondent No.4 on 12.05.2008 itself whereas the accident has occurred on 16.05.2008. But in this regard, except producing the Delivery Note, the respondent No.3 has not produced any other document such as endorsement issued by the RTO for having transferred the vehicle from the respondent No.3 to the name of the respondent No.4. The contention of the respondent No.3 that the respondent No.4, after the accident, in collusion with the Police Officials, by impersonation, has got the vehicle released in his favour, is falsified by the evidence of RW 2 the Investigating Officer, wherein he specifically says that the vehicle was released in favour of the respondent No.3 only and to substantiate his contention, RW 2 has produced Ex.R.4 Section 133 Notice and Ex.R.5 Reply to the said Notice. Under such circumstances, the respondent No.1 being the Insurer, the respondent No.2 and 3, being the Insurance Policy Holder and the respondent No.3, being the RC Owner of the vehicle, are jointly and severally liable to pay the compensation amount to the petitioner and the 20 MVC No.7455/2008 respondent No.1 being the Insurer shall indemnify the respondent No.2 and 3 and the petition as against the respondent No.4 deserves to be dismissed. Accordingly issue No.2 is answered partly in the affirmative.
30. In the result I pass the following:-
ORDER Petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1988 is partly allowed with cost. Petitioner has been awarded compensation of Rs.1,47,153/- from the respondent No.1 to 3 jointly and severally together with interest at the rate of 6% p.a., from the date of petition till realization.
The respondent No.1 Insurance Company has already deposited the amount and in view of the finding of this Court that the Insurance Company is liable to indemnify the owner of the vehicle, the question of recovery does not arise.
Petition as against the respondent No.4 is dismissed. Advocate fee is fixed at Rs.1000/-.
Draw an award accordingly.
(Dictated to the Judgment Writer directly on computer, corrected, signed and then pronounced by me in the open court dated this the 14th day of August'2017) (H.P.SANDESH) Member, Prl. M.A.C.T. Bangalore ANNEXURE Witnesses examined on behalf of the petitioner:
PW.1 : Janardhana Raju 21 MVC No.7455/2008 Witnesses examined on behalf of the respondents:
RW.1 : K.L.Venu
RW.2 : K.Singegowda
RW.3 : K.M.Nagaraj
RW .4 : N.Ashwath Kumar
Documents marked on behalf of the petitioner:
Ex.P.1 : FIR
Ex.P.2 : Mahazar
Ex.P.3 : Sketch
Ex.P.4 : Wound Certificate
Ex.P.5 : Charge Sheet
Ex.P.6 : Discharge Summary
Ex.P.7 : Medical Bills
Documents marked on behalf of the respondents.
Ex.R.1 : Policy Copy
Ex.R.2 : Returned Cover
Ex.R.3 : Judgment and Decree in MVC 4558/2008
Ex.R.4&5 : Section 133 Notice and Reply
Ex.R.6 : Delivery Note
Ex.R.7 : Signature verification certificate
Ex.R.8 : Notarised copy of Driving Licence
(H.P.SANDESH)
Member, Prl. M.A.C.T. Bangalore