Bangalore District Court
N.Ramesh vs Sri. Chandrashekar on 5 March, 2020
IN THE COURT OF THE XI ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-12)
Present: Shri. MOHAMED ARIFULLA C.F.
B.Sc., LL.B.,
XI Addl. Small Causes Judge & ACMM,
Court of Small Causes,
Member, MACT12, Bengaluru.
Dated this the 5th, day of March 2020
MVC. NO.165/2019
PETITIONER : N.Ramesh
S/o Narayanappa
Age about 40 years
Residing at No.43, III Cross,
Kempegowdanagar, Chamarajpet,
Bangalore560090.
(By Sri. Bheema Reddy
Advocate)
V/s
RESPONDENTS: 1. Sri. Chandrashekar
S/o Govindaraju, Major
No.66, N Cross kamaraj Road, Fruit
Street Cross, Bengaluru560001.
(R.C. owner of the Bajaj Pulsar Motor
cycle bearing Reg.No.KA03ER4860)
2. United India Insurance Co. Ltd
T.P. Hub, Regional Office, V & Vi Floors,
Krushi Bhavan Building, Nrupahunga
Road, Hudson Circle, Bangalore.
(Insurer of the Bajaj Pulsar Motor Cycle
bearing Reg.No.KA03ER4860)
(SCCH-12) 2 MVC 165/2019
Policy No.0703003117P112447576
Valid from 01.12.2017 to 30.11.2018.
(R1 Exparte)
R2 By Smt.Pankaja B.C.),
Advocate)
JUDGMENT
This is a claim petition filed by the petitioner claiming compensation of Rs.15,00,000/ on account of accident met by petitioner on 01.01.2018.
2. The brief facts of the case of the petitioner is that, on 01.01.2018 at about 12.30 midnight he was on patrolling duty at Trinity Circle, M.G.Road, Bangalore in front of Sundara Murthy Building, M.G.Road, Halasuru, at that time, a Bajaj Pulsar bearing Reg.No.KA03ER4860 ridden by its rider came with high speed in a rash and negligent manner and dashed against the petitioner and caused accident due to which, the Petitioner fell down and sustained grievous injuries all over the body and immediately he was shifted to Bowring & Lady Curzon Hospital, Bangalore wherein the petitioner took first aid and then he was referred to Hosmat hospital, Bangalore and he took treatment and spent huge money towards medical treatment.
3. The petitioner was hale and healthy and was aged about 40 years and he was working as a Police Constable at Pulikeshinagar Police Station at Bangalore and drawing a (SCCH-12) 3 MVC 165/2019 salary of Rs.40,000/ per month and was maintaining his family. Due to the injury sustained by him, he is suffering every day and he cannot perform his duties as earlier. The Halasuru Traffic Police have registered a criminal case against the rider of the Bajaj Pulsar bearing Reg.No.KA03ER4860 in Crime No.1/2018 for the offences punishable under Section 279 and 337 IPC. Therefore the respondent 1 & 2 are liable to pay the compensation and hence prays to grant compensation of Rs.15,00,000/ with interest.
4. After service of notices the respondent no.1 not appeared before this court, hence he is placed exparte. The respondent no.2 appeared through his counsel and being the insurer of the vehicle filed objection and denied the averments of the petition and contended that the petition filed by the Petitioner is not maintainable either in law or on facts. Further admitted the issuance of policy bearing No.0703003117P112447576. Further contended that the petition is bad for non joinder of necessary and proper parties as such the rider and the owner of the Bajaj Pulsar bearing Reg.No.KA03ER4860 are also necessary parties to the case without impleading the above said parties, the petition is not maintainable and liable to be dismissed. Further stated that the rider of Bajaj Pulsar bearing Reg.No.KA03ER4860 was not having valid and effective driving licence to rider the same at the time of the accident and also was used without having valid stage permit and F.C and the owner by entrusting the (SCCH-12) 4 MVC 165/2019 same to such a person has violated the terms and conditions of the policy issued and therefore it is not liable to pay any compensation to the petitioner. Further seeks protection under section 147 and 149 of M.V.Act, 1988. Further respondent no.2 stated that, the insured has not complied Sec.134(c) of the M.V. Act and the Police authorities have not complied Section 158(6) of M.V.Act. In the event if the insured/Second Respondent fails to contest the petition on merits or colludes with the claimant, it may please be permitted to avail all defence available open to the insured as provided under Sec.170 of the M.V. Act 1988. Further Respondent No.2 contended that the liability of this Respondent if any is subject to limitation and provisions of the Motor Vehicle Act and terms and conditions of the policy of insurance issued to the owner of the vehicle. Further stated that respondent no.2 is not liable to pay compensation and the claim petition of the Petitioner is liable to be dismissed against this respondent no.2.
5. On the basis of the above pleadings, this court has framed the following;
ISSUES
1. Whether the Petitioner proves that, on 01.01.2018 at about 12.30 midnight he was on patrolling duty at Trinity Circle, M.G.Road, Bangalore in front of Sundara Murthy Building, M.G.Road, Halasuru, at that time, a Bajaj Pulsar bearing Reg.No.KA 03ER4860 ridden by its rider came with (SCCH-12) 5 MVC 165/2019 high speed in a rash and negligent manner and dashed against the petitioner and caused accident due to which, the Petitioner fell down and sustained grievous injuries all over the body?
2. Whether the Petitioner is entitled for compensation as sought for? If yes, How much and from whom?
3. What Order or Award?
6. In order to prove the above issues the petitioner got himself examined as P.W.1 and also got marked documents at Ex. P1 to 13. The petitioner also examined the Doctor as P.W.2 and got marked the documents at Ex.P.14 to 17 and closed their side. On the other hand, the respondent No.2 got examined its official as R.W.1 and got marked Ex.R.1 and R2.
7. Heard arguments of both side and perused the entire materials placed on record and my answers to the above issues are as follows: Issue No.1 : In the Affirmative Issue No.2 : In Partly Affirmative Issue No.3 : As per final order for the following REASONS
8. ISSUE NO.1 : It is the case of the petitioner that on 01.01.2018 at about 12.30 midnight he was on patrolling duty at Trinity Circle, M.G.Road, Bangalore in front of Sundara (SCCH-12) 6 MVC 165/2019 Murthy Building, M.G.Road, Halasuru, at that time, a Bajaj Pulsar bearing Reg.No.KA03ER4860 ridden by its rider came with high speed in a rash and negligent manner and dashed against the petitioner and caused accident due to which, the Petitioner fell down and sustained grievous injuries all over the body and immediately he was shifted to Bowring & Lady Curzon Hospital, Bangalore wherein the petitioner took first aid and then he was referred to Hosmat hospital, Bangalore and he took treatment and spent huge money towards medical treatment.
9. In order to prove the above facts in issue, the petitioner got examined himself as P.W.1 and he filed chief examination affidavit by reiterating the averments made in the petition and in support of his oral evidence, he got marked police and medical documentary evidence at Ex.P.1 to P.110 i.e. Ex.P.1Copy of FIR, Ex.P.2 copy of Complaint, Ex.P.3 - Spot mahazar, Ex.P.4 Copy of sketch, Ex.P.5 Wound certificate, Ex.P.6 IMV report, Ex.P.7 Charge Sheet, Ex.P.8 Medical sickness certificate, Ex.P.9 Medical bills, Ex.P.10 Photos, Ex.P.11 C.D, Ex.P.12 Notarized copy of ID card and Ex.P.13 pay slip. Further got examined a doctor as P.W.2 and produced 4 documents at Ex.14 & 15 out patient record, Ex.P.16 Inpatient record and Ex.P.17 Xrays, who treated the petitioner and he has stated about the injuries sustained by the petitioner in motor vehicle accident as per the Ex. P5- Wound certificate.
(SCCH-12) 7 MVC 165/201910. On the other hand, respondent no. 2 has stated that the accident did not take place due to the rash and negligent manner of the rider of the offending vehicle and some unknown vehicle hit the petitioner and ran away from the spot, the petitioner being the police official colluding with the investigating officer created documents by stating that the offending vehicle caused accident and however the offending vehicle was not at all involved in the accident. The official of the respondent has also got examined as R.W.1 and he has reiterated written statement averments and stated that the offending vehicle was not at all involved in the accident. Though the respondent no.2 has taken a defense that the offending vehicle was not involved in the accident, but the Ex.P.15 medical record in which the Patient's Information Form discloses that the petitioner was admitted to the hospital on the history of RTA hit by motor cycle bearing No.KA03ER 4860. The Ex.P.1 FIR, Ex.P.2 complaint, Ex.P.3 mahazar, Ex.P.4 Sketch, Ex.P.6 MV report and Ex.P.7 charge sheet also discloses the involvement of the offending vehicle and the police documents are corroborating that of the medical records. There is no any material before the court to say that the offending vehicle was not involved in the accident. The Ex.P.6 MV report also discloses that there were some damages on the front wheel mudguard, head light, speedometer, front fork and right side portion of the crash guard and these damages clearly discloses that the offending vehicle was (SCCH-12) 8 MVC 165/2019 involved in the accident. Merely it cannot be made suspicion on the investigation only because the petitioner is the police constable and it requires much proof, but the respondent no.2 has not placed such proof before this court to reject the investigation conducted by the investigating officer.
11. The learned counsel for the respondent no.2 has vehimently argued that the petitioner was a Police Constable and under the influence of him, the I.O created false documents colluding with the respondent no.1. However, the learned counsel for the respondent no.2 has not at all elicited anything from the mouth of the petitioner. Moreover the respondent no.2 has also not at all produced any material in support of it. After considering all the facts and circumstances of the case, I came to the conclusion that, the petitioner has susta0ined injuries in the accident due to the rash and negligent driving by the rider of offending motor cycle bearing Reg.No.KA03ER4860. Accordingly, I answer issue No.1 in the Affirmative.
12. ISSUE NO.2: As already discussed above, the petitioner has proved that the accident took place due to rash and negligent driving of the rider of offending vehicle and therefore, the petitioner is entitled for compensation. He has sustained Type III B open fracture left leg both bones of tibia and fibula and he was admitted to the Hosmat Hospital, Bengaluru and surgery was conducted in the form of wound (SCCH-12) 9 MVC 165/2019 debridement and IMIL nailing left tibia done on 01.01.2018. P.W.2 has produced Ex.14 & 15 out patient record, Ex.P.16 Inpatient record and Ex.P.17 Xrays and stated that the petitioner has sustained grievous injuries and permanent disability to the whole body.
13. As far as the age of the petitioner is concerned, the petitioner has stated that he was 40 years at the time of accident. To substantiate his contention, petitioner has not submitted any birth certificate. However, the petitioner has produced Ex.P.2 his Job identity card, wherein the date of birth of petitioner is mentioned as 01.01.1977. As such, this Tribunal considers the age of the petitioner as "41"years.
14. The petitioner has stated that he was working as a Police Constable, at Halasuru Police station, Bangalore and was drawing a salary of 40,000/ and was maintaining his family. To substantiate his contention the Petitioner has produced Ex.P.13 pay slips for the month of December 2017, which show that the petitioner was having a gross salary of Rs.31,731/ in the month of December 2017. On considering the age and avocation of the petitioner on the date of accident, this Tribunal considers the income of the petitioner as Rs.31,731/ p.m.
15. The documents Ex. P5 i.e., wound certificate shows that the Petitioner had sustained Type III B open fracture left leg both bones of tibia and fibula and he was admitted to the Hosmat Hospital, Bengaluru and surgery was conducted in the (SCCH-12) 10 MVC 165/2019 form of wound debridement and IMIL nailing left tibia done on 01.01.2018. Further P.W.2 has examined the petitioner recently and opined that the fracture of left leg has united with swelling and excessive bone formation and there was an infenction and there is a large healed transverse wound over the middle third of the left leg. The petitioner has pain, swelling and stiffness of left knee and ankle. The left fibula shows malunion. The petitioner has resumed to work and he has great difficulty in kneeling, squatting, sitting cross legged and climbing stairs and slopes and there is swelling, stiffness and pain in his left knee and left ankle. The P.W.2 has opined that the petitioner has got disability of 44% to left lower limb and 15% to the whole body. He has assessed the disability as per Central Govt. Notification. The P.W.2 has stated that the petitioner is said to be a Police Constable and the said disabilities come in the way of his working. However P.W.2 has not stated the functional disability to the petitioner. As this Tribunal has considered the petitioner as a Police official and also he is working still as Police Constable and therefore the question of functional disability does not arise at all and as such, the petitioner is not entitled for loss of future income.
16. The learned counsel for the petitioner has canvassed judgment of Hon'ble High Court of Karnataka reported in ILR 2015 KAR 167 between Dr.Yeshwanth Dongre Vs Salman Rashid and others. In the above reported judgment the Hon'ble High Court made a proposition of law that, even a (SCCH-12) 11 MVC 165/2019 person continues to work with difficulty and gets same salary but reduction in work force and therefore a suitable sum has to be awarded by way of damages having regard to his disabilities. In the present case on hand, though, the petitioner is still working in the Police department but, due to the fracture and difficulties he has suffered a lot and also there are deformities and also he is suffering from deformities and difficulties and sustained permanent physical disability and due to which he cannot perform his police job efficiently and therefore, considering all these aspects as well as avocation of the petitioner. Hence, this Tribunal awards Rs.1,00,000/ under the head of pain and sufferings.
17. The petitioner sustained Type III B open fracture left leg both bones of tibia and fibula and he was admitted to the Hosmat Hospital, Bengaluru and surgery was conducted in the form of wound debridement and IMIL nailing left tibia done on 01.01.2018. The petitioner has stated that he took treatment and also took rest and in this regard he took E.L and sick leave. As such considering the avocation of the petitioner and injuries sustained by him, he might have required rest for three months and he took earned leave and sick leaves for the recovery of injuries sustained by him in the accident. Therefore, the total period for treatment is considered to be as three months. This Tribunal awards Rs.31,731/ X 3 months= Rs.95,193/ under the head of Loss of income during the period of treatment.
(SCCH-12) 12 MVC 165/201918. The petitioner has produced the medical bills and prescriptions towards the treatment taken by him worth Rs.5,075/. However the petitioner has claimed reimbursement and hence he is not entitled for medical, conveyance, nutrition and attendant charges.
19. As already discussed above, the petitioner has sustained Type III tibia fracture with malunion and the age of the petitioner is 41 years and he has to suffer a lot in his future. Though he is getting salary, but he has to face several difficulties both mentally and physically due to disability sustained by him. This tribunal awards Rs.1,00,000/ under the head of Loss of future happiness and amenities.
20. The P.W.2 has also stated that, the petitioner needs one more surgery for removal of implants as he has a history of bone infection and he has a chance of developing recurrence of infection which may required further procedures and he has stated that the cost of surgery for removal of implants will be Rs.50,000/ approximately. However, the cost of surgery for removal of implants shown by the P.W.2 appears to be exorbitant. On considering all this aspects, this tribunal deems fit to award Rs.25,000/ under the head of future medical expenses.
(SCCH-12) 13 MVC 165/2019The calculation table stands as follows;
01 Pain and sufferings : Rs.1,00,000=00
02 Loss of income during : Rs. 95,193=00
treatment period
04 Loss of future : Rs. 1,00,000=00
happiness and
amenities
05 Future medical Rs 25,000=00
expenses
Total Rs. 3,20,193=00
21. As already discussed in the issue no.1 the accident took place due to the negligence of the rider of offending motor cycle and the investigating officer has also filed charge sheet by alleging that the rider of the offending motor cycle committed offences punishable under section 279, 338 of IPC and 3 R/w 181 of M.V.Act for non possessing D.L. The respondent no.1 being the owner of the vehicle has not at all appeared before the court and not contested the case inspite of service of notice.
22. The learned counsel for the petitioner has canvassed judgment of Supreme Court reported in (2018)9 SCC 650 between Shamanna and another Vs The Divisional Manager, Oriental Insurance Co. Ltd and another, wherein it is held that;
Motor Vehicles Act, 1988 Section 149 and 147 third party victim of motor vehicles accidents award passed against insured owner duty of insurer (SCCH-12) 14 MVC 165/2019 to satisfy the award in case of principle of pay and recover law summarized.
23. In the above reported judgment the Hon'ble Supreme Court has made a proposition of law that if no document has been produced from the concerned RTO and no effort has been made by the insurance company to lead evidence to substantiate its defense and failed to discharge its burden cast upon it and in such circumstances, the insurer is bound to satisfy the award to the third party in case of principle of pay and recover.
24. The learned counsel for the petitioner has canvassed judgment of Hon'ble High Court of Karnataka in MFA NO.9308/2011 (MV) between United India Insurance Co. Ltd., Vs. Rathna and others. In the above judgment the Hon'ble High Court has made a proposition of law that if the driver of the insured vehicle has no driving licence there must be clear evidence on record to that effect and police charge sheet is no evidence to hold that the driver of the insured vehicle had no driving licence. He has also canvassed judgment of Hon'ble High Court of Karnataka reported in 2004 ACJ 677 between Oriental Insurance company ltd Vs Ramesh.B.Jain and others, wherein, it is held that;
Motor Vehicles Act,1988, Section 149(2)
(a)(ii) Motor insuranceDriving licence Defences avaialble to insurance company Insurance company disputed its liability (SCCH-12) 15 MVC 165/2019 on the plea that driver of the offending vehicle did not have a valid and effective driving licence on the date of accident Insurance company examined investigating officer in criminal case in which driver was charge sheeted for not possessing licence but his evidence does not finally establish that driver had no licence insurance company examined its officer to prove that notices were sent to driver and owner of the vehicle calling upon them to produce the licence but there was no evidence of service of letters to the addressesWhether the insurance company has substantiated its contention in order to escape from liabilityHeld: no.
25. As already discussed above the Hon'ble Supreme Court has made a proposition of law that, if a insurer fails to discharge its burden regarding the possessing of the valid driving license by the driver of the insured vehicle it has to adopt the principle of pay and recover and such being the case, the propostiiton of law laid down by the Hon'ble High Court of Karnataka in supra judgments does not come to the help of the petitioner.
26. In view of the above discussion, I come to the conclusion that the Petitioners are entitled for compensation of Rs.3,20,193/ along with interest at the rate of 6% p.a., from the date of filing of petition till realization. The respondent No.1 is liable to pay compensation and whereas, the (SCCH-12) 16 MVC 165/2019 respondent no.2 insurance company is liable to satisfy the award and then recover the amount from the respondent No.1. Hence I answer the Issue no.2 in the Partly Affirmative.
27. ISSUE NO.3: In view of the above discussion on Issue no.1 and 2, I proceed to pass the following;
ORDER The petition filed by the petitioner U/Sec. 166 of M.V Act is hereby partly allowed with cost.
The petitioner is entitled to get compensation of Rs.3,20,193/ with interest at the rate of 6% p.a. from the date of petition till its deposit. The liability of respondents No.1 and 2 is joint and several in nature.
Respondent No.2 is directed to deposit the compensation amount within a period of two months from the date of award.
Out of the award amount, 50% shall be deposited in the name of petitioner in any Nationalized Bank/Scheduled Bank for a period of 3 years and remaining 50% shall be paid to the petitioner.
(SCCH-12) 17 MVC 165/2019Advocate fee is fixed at Rs.1,000/.
Draw an award accordingly.
(Dictated to the Stenographer directly on computer and printout taken by her, then corrected and pronounced by me in the open court on this the 5 th day of October, 2020) (Mohamed Arifulla C.F) XI Addl. Small Causes Judge & ACMM, Bengaluru.
ANNEXURES List of witnesses examined for the petitioners:
P.W.1 : N.Ramesh P.W.2 : Dr.Krishnan Prasad
List of documents got marked for the petitioners:
Ex.P.1 : Copy of FIR Ex.P.2 : Copy of Complaint Ex P.3 : Copy of Spot Mahazar Ex.P.4 : Copy of Sketch Ex.P.5 : Copy of wound certificate Ex.P.6 : Copy of MV report Ex.P.7 : Copy of charge sheet Ex.P.8 : Medical sickness certificate Ex.P.9 : Medical bills (6 nos) Ex.P.10 : Photos ( 3 nos) Ex.P.11 : CD Ex.P.12 : Notarized copyof ID card Ex.P.13 : Pay slip Ex.P.14 & 15 : Out patient record Ex.P.16 : Inaptient record Ex.P.17 : Xray ( 2 nos) with report
List of witnesses examined for the respondents:
R.W.1 : Navakumr