Bangalore District Court
Bhanupriya.R vs Oriental Insurance Co Ltd on 2 August, 2024
KABC020287372022
IN THE COURT OF XXI ADDL.SMALL CAUSE JUDGE AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, BANGALORE.
(SCCH-23)
DATED THIS THE 2nd DAY OF AUGUST - 2024
PRESENT: Sri. Aalok. A.N
B.B.A. LL.B,
XXI ADDL. SCJ & ACJM
MEMBER - MACT, BENGALURU.
MVC. No.5241/2022
Petitioner : Kum. Bhanupriya. R,
D/o N. Ravi,
Aged about 19 years,
R/at No.506, 5th Main road,
Venkatareddynagar,
Jayanagar 1st Block,
Bengaluru-560011.
(By Advocate: Sri.B.K. Kumar)
v/s
Respondent/s : 1. The Manager,
Oriental Insurance Co. Ltd.,
Regional Office, No.44/45,
4th Floor, Leo Shopping Complex,
Residency Road,
Bengaluru - 560 025.
Insurer of offending motorcycle bearing
Reg.No.KA-05-LF-6263)
(By Advocate: Sri. B.H. Shamanna)
SCCH-23 2 MVC-5241/2022
2. Sri. Darshan. S.R,
S/o Rangaswamy,
Major,
R/at No.25/1, 2nd A Cross,
Parimalanagar,
Bengaluru-560096.
(RC owner of offending motorcycle
bearing Reg.No.KA-05-LF-6263)
(Exparte)
JUDGMENT
This claim petition is filed under section 166 of the M.V. Act, seeking compensation for the injuries sustained in a road traffic accident.
Brief case of the petitioner in the nutshell:
2. It is the case of the petitioner that on ill fated day i.e.., on 10.08.2022 at about 11.30 to 11.45 a.m, when the petitioner was proceeding as a pillion rider on a motorcycle bearing Reg.No.KA-05-LF-6263, when she reached near Peenya Flyover down ramp, situated on NH-4, Bengaluru City, the rider of the said motorcycle drove it in a rash & negligent manner endangering human life with high speed and due to excessive speed the rider has dashed against the tractor which was parked on the left side of the road and further proceeded and he lost control over the same dashed to the flyover barricade wall and caused the accident. Due to the terrific impact the petitioner fell down and sustained grievous injuries. It is further urged that, the petitioner was shifted to Abhaya Vasishta SCCH-23 3 MVC-5241/2022 Hospital, wherein she was treated as inpatient and further referred to Sanjay Gandhi Hospital, wherein she was treated as inpatient and also underwent surgery and was discharged with an advice to take complete bed rest and follow up treatment. It is stoutly pleaded that, petitioner has spent substantial amount towards medical, conveyance, nourishment and other incidental charges. It is further submitted that, the petitioner was hale and healthy and was a 1st year B.Com student, she was very active and brilliant student in all previous exams and also she is not in a position to move/sit/stand on her own. She is unable to attend college and also she could not participate in co-
curricular and sports activities. Further it is specifically urged that, the accident happened because of rash and negligent riding of the rider of the motorcycle. The respondent No.1 and 2 are jointly and severally liable to pay compensation, as such prayed to grant a compensation amount.
3. Notice was duly served to respondent No.2, the respondent No.2 did not appear before this Tribunal. Hence, he was placed exparte.
4. After service of notice, respondent No.1 spurred in rush to the Court by filing written statement rather objections to the main petition contending that the petition itself is not maintainable either law or on facts. The respondent No.1 has admitted the issuance of insurance policy (Blended policy) in SCCH-23 4 MVC-5241/2022 respect of Motor Cycle bearing Reg.No.KA-05-LF-6263. However the liability if any is pleaded to be subject to the terms & conditions of the policy. Non-compliance of section's 134(c) and 158(6), 3(1) r/w 181, 5(1) and 180 of MV Act is pleaded. It is also urged that there is inordinate delay of 8 days in lodging the complaint that itself vibrantly discloses that the case is foisted so as to wangle the compensation amount from the insurance company. Hence, the offending vehicle has been falsely implicated by the petitioner in collusion with the owner of the motorcycle and police authorities. This respondent specifically and empathically denied the occurrence, mode and manner of accident and also involvement of the vehicle in the accident. Further it is contended that as on the date of alleged accident one Karthik. A was riding the motorcycle who is aged about 19 years was riding the alleged motorcycle without having DL. The IO has issued notice u/s 133 of MV Act to the Darshan. S.R / owner of the motorcycle and was submitted his reply wherein he admitted that the rider Karthik was not having any DL as on the date of accident. Despite knowing the said fact the owner thereof had handed over its possession to such a rider. Further the police have filed chargesheet against the rider and owner of motorcycle for the offences punishable u/s 279, 338 of IPC and Sec.3(1) r/w 181, 5(1) r/w 180 of MV Act. On account of willful breach of the terms & conditions of the policy by the insured, the insurance company is not liable to indemnify him. Further SCCH-23 5 MVC-5241/2022 denied all the allegation made in the petition. Hence prayed to dismiss the petition.
5. On the basis of above pleadings the following issues were framed :
ISSUES
1. Whether the petitioner proves that on 10.08.2022 at about 11.30 to 11.45 p.m., while the petitioner was proceeding on a KTM 200 Duke motorcycle bearing reg.No.KA-05-LF-
6263 as a pillion rider and the same was ridden by its rider and when she reached near Peenya Flyover down ramp situated on NH-4, Bengaluru City, at that time, the rider of of the said motorcycle drove the same in a rash and negligent manner and dashed to tractor which was parked on the road and then the rider hit against the fly over barricade wall. Due to which the petitioner sustained grievous injury ?
2. Whether the petitioner is entitled for compensation as prayed for? If so, at what rate and from whom?
3. What order or award?
6. The petitioner examined herself as PW.1. Ex's.P1 to 17 were marked on her behalf. The MRO of Vasista Hospital was examined as PW.2. Ex.P.18 to 21 were marked through him. Dr.Avinash Parthasarathy, Orthopedic Surgeon at Sanjay Gandhi Hospital was examined as PW.3. Ex's.P22 to 25 were SCCH-23 6 MVC-5241/2022 marked through him. In order to prove the defence, the respondent No.1 got examined Assistant Manager of respondent No.1 insurance company as RW.1 and through him Ex.R.1 to 7 documents were marked.
7. Heard erudite counsel for the petitioner and respondent No.1 counsel on merits. Perused the entire materials placed on record.
8. This tribunal 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
9. ISSUE NO.1: The petitioner has knocked the doors of justice with a relief to grant a compensation of an amount to the tune of Rs.15,00,000/- together. The case of the petitioner lies an narrow compass as to claiming of compensation amount for injuries sustained by her in a Road Traffic Accident. Before dwelling into analyzing the disputed facts in issue it is relevant to have the birds eye of the case of petitioner in a nutshell.
10. It is the case of petitioner that, on 10.08.2022 at about 11.30 to 11.45 a.m, when the petitioner was proceeding as a pillion rider on a motorcycle bearing Reg.No.KA-05-LF-6263, when she reached near Peenya Flyover down ramp, situated on SCCH-23 7 MVC-5241/2022 NH-4, Bengaluru City, the rider of the said motorcycle drove it in a rash & negligent manner endangering human life with high speed and due to excessive speed the rider has dashed against the tractor which was parked on the left side of the road and further proceeded and he lost control over the same dashed to the flyover barricade wall and caused the accident. Due to the terrific impact the petitioner fell down and sustained grievous injuries. It is further urged that, the petitioner was shifted to Abhaya Varishta Hospital, wherein she was treated as inpatient and further referred to Sanjay Gandhi Hospital, wherein she was treated as inpatient and also underwent surgery and was discharged with an advice to take complete bed rest and follow up treatment. It is stoutly pleaded that, petitioner has spent substantial amount towards medical, conveyance, nourishment and other incidental charges. It is further submitted that, the petitioner was hale and healthy and was a 1 st year B.Com student, she was very active and brilliant student in all previous exams and also she is not in a position to move/sit/stand on her own. She is unable to attend college and also she could not participate in co-curricular and sports activities. Further it is specifically urged that, the accident happened because of rash and negligent riding of the rider of the motorcycle. The respondent No.1 and 2 are jointly and severally liable to pay compensation, as such prayed to grant a compensation amount.
SCCH-23 8 MVC-5241/202211. In support of case of petitioner, petitioner herself stepped into the witness box and filed her affidavit-in-lieu of oral examination-in-chief as PW1 and got marked Ex's.P1 to 17 were marked on her behalf. The MRO of Abhaya Vasishta Hospital was examined as PW.2 and through him Ex.P.18 to 21 were marked. The doctor who assessed the disability is examined as PW.3 and through him Ex.P.22 to 25 were marked. In order to falsify the case of the petitioner and to substantiate the defence of the respondent No.1, their counsel had cross- examined PW1 to 3 at length.
12. Repelling to the contentions urged by the petitioner, the respondent No.2 had attacked the case of the petitioner on various prisms known to fact and law. The first and foremost contention urged by the respondent No.1 is that, there is delay of 8 days in setting criminal law into motion that itself vibrantly discloses that the case is foisted so as to wangle the compensation amount from the insurance company. The next squirt of the defence urged by the respondent No.1 is that, the rider of the respondent No.2 vehicle was not having valid driving licence as on the date of the accident, respondent No.1 cannot indemnify the respondent No.2. Hence prayed to dismiss the petition as against the respondent No.1.
13. In support of these contentions the respondent No.1 has examined its Assistant Manager as RW.1 and got marked Ex.R.1 to 7 documents. In order to falsify the defence of the SCCH-23 9 MVC-5241/2022 respondent No.1 and to substantiate the case of the petitioner, the petitioner counsel cross examined the RW.1 at length.
14. On marshaling of factual matrix, on dissection of evidence placed on record and after hearing on erudite counsel appearing for combating parties, this Tribunal opines that this issue is pregmented with inner issues such as :
1) Whether the petitioner demonstrates that the offending motorcycle involved in the accident?
2) Whether the delay of 8 days in setting criminal law in motion is fatal for the case of the petitioner ?
3) Whether there is a rash and negligent act on the part of rider of the insured vehicle ?
15. Now let me unfurl each of the contentions urged by the combating parties with respect to involvement of the motorcycle in the accident. It is vociferously urged by the respondent No.1 that, the said motorcycle is not at all involved in the accident. According to the version of respondent No.1, that the offending motorcycle is falsely implicated in this case so as to deceive the insurance company and wangle the compensation amount. The whole defence of the respondent No.1 is that the insured vehicle was not at all involved in the accident. In order to controvert the said contention the petitioner has produced the Police intimation and MLC extract SCCH-23 10 MVC-5241/2022 through MRO of Abhaya Vasishta Hospital who is examined as PW.2. His chief-examination was attacked by the respondent No.2 counsel on the ground that he does not have any personal knowledge about the accident. The custody of MRO is a proper custody of medical records. On close perusal of above said document, it reflects as here under :"A/H/o RTA on 10.08.2022 at 11.30 a.m, near Parle-G Factory". On conspectus reading of the above said MLC extract and Police intimation one thing is clear that the petitioner fell from the two wheeler. The petition averments discloses that due to the negligent riding of the motorcycle she sustained injuries. Furthermore the medical records discloses that the accident happened because of negligent riding of the motorcycle by its rider. When such being the case, the accident happened while she was proceeding as a pillion rider it can be easily in the absence of other material placed on record can be concluded that it is a there is a involvement of the offending motorcycle in the accident. Another important aspect which needs consideration is Ex.P.2 being the complaint which is also filed within 8 days from the date of accident. The MLC discloses that on the date of accident itself the said MLC was entered. The said document also came from proper custody. Having regard to the attending circumstances and such other circumstances surround in the case it can be easily conclude that the involvement of the motorcycle in the accident.
SCCH-23 11 MVC-5241/202216. The next seminal question to be considered whether delay of 8 days in setting criminal law into motion is fatal to the case of the petitioner. It is the specific contention of the petitioners that, she had sustained grievous injuries in the RTA on 10.08.2022 at about 11.30 a.m. The Criminal law was set into motion on 17.08.2022 at about 2.10 p.m, which is reflected in Ex.P.2 FIS. It could be borne out from the FIS itself that, injured person were taken to Abhay Vasishta Hospital for treatment and thereafter to Sanjay Gandhi Hospital, Bengaluru as such there was a delay of 8 days in lodging FIS. It could be borne out from the FIS itself that injured was taken to hospitals for treatment as such there was a delay in lodging FIS for 8 days. It could be borne out from the medical records itself discloses that injured was very severely injured in RTA. When the petitioner is fighting for her life, the relatives of the petitioner cannot be expected to set criminal law in motion. The predominant responsibility of the family of the injured will be saving the kith and kin's life rather fighting for justice. When such being the case this court cannot found fault with the mere delay of 8 days in lodging FIR. In the presence of this document the delay of 8 days is not at all fatal to the case of the petitioner. The medical records discloses that the petitioner was badly injured in the accident. In view of contents in Ex.P.9 wound certificate the delay of 8 days is self explanatory. There is a delay of 8 days and that delay is well explained by the SCCH-23 12 MVC-5241/2022 petitioner. In this regard it is relevant to rely on the decision in Ravi v. Badrinarayan and others reported in AIR 2011 SC 1226, wherein the Hon'ble Apex Court has observed as hereunder :
"The purpose of lodging the FIR in motor accident cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquillity of mind and are composed to lodge it, even if there is delay, the same deserve to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons.
If the court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground."SCCH-23 13 MVC-5241/2022
(Emphasis supplied by me).
Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing so; the contents of the FIR should also be scrutinized more carefully. If court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground. The ratio decidendi laid down by Hon'ble Apex Court is aptly applicable to the facts of the instant case. The petitioner had explained the delay caused. The petitioner clearly demonstrated as to the involvement of the insured vehicle in the accident.
17. The next aspect to be considered with regard to the factum of negligence. The negligence has to be proved in MACT cases as the any other fact in issue. Before dwelling into analyzing the factum of alleged negligence it is relevant to have the conceptual aspects pertaining to factum of negligence. There are four basic elements that a person has to fulfill in order to do a negligent act. These elements are as follows:
SCCH-23 14 MVC-5241/2022Duty: For committing a negligent act, there must be some duty on the part of the defendant. Here it is important to understand whether the defendant has taken legal duty of care towards the plaintiff.
Breach of Duty: After fulfilling the first criteria the plaintiff must prove that the defendant has breached the legal duty imposed on him/her. It talks about the breach of duty on the part of the defendant which he/ she is expected to do as he/ she has some legal duty towards the plaintiff.
The action of causing something: It means that the damage caused to the plaintiff is due to the act of the defendant. Here the defendant may do an act which is not expected from him/her or the defendant may be negligent in not doing an act which was expected from him/ her.
Damages: At last what matters is, there must be some damage/injury that is caused to the plaintiff and this damages should be the direct consequence of the defendant's act.
Negligence means a breach of duty caused by omission to do something which has reasonable man guide by those consideration which ordinarily regulated conduct of human affairs would do which a prudent man would not do. In common prevalence negligence connoted to the want of proper care and the rashness conveys the idea of recklessness or the doing of an act without due consideration.SCCH-23 15 MVC-5241/2022
18. The petitioners in order to prove the factum of negligence have mainly relied on Ex.P.3 Crime Details Form (Spot Mahazar and Sketch). This court gave anxious consideration to this document with astuteness. The Ex.P.3 Crime details Form reflects that the rider of the vehicle because of his rash and negligent act had dashed to the hind side of the unknown numbered tractor and then further dashed to the flyover wall and fell on the road. This itself reflects that, there is negligence on the part of the rider of the motorcycle. Further more even the chargesheet was also filed as against the rider of the motorcycle which is well reflected in Ex.P.12. In the presence of these documents it could be easily held that there is negligence on the part of the rider of offending vehicle. Added more the contents of the Ex.P.3 is fortified by the Ex.P.7 IMV Report, wherein the front side head light broken, left side gear, left hand side handle damaged. If the rider of the offending motorcycle was coming in a normal speed then he would certainly avoided the accident. Above all even the chargesheet was also filed as against the rider of motorcycle for the offences punishable u/s 279 and 338 of IPC and 3(1) r/w 181, 5(1) r/w 180 of IMV Act. This court is aware of the fact that chargesheet is not a conclusive proof to come to conclusion with regard to rash and negligent act.
19. It is pertinent to note that though PW.1 has produced Ex.P.11 being order sheet in CC.No.11780/2022 was marked.
SCCH-23 16 MVC-5241/2022On conspectus reading of the said order sheet which reflects the chargesheet is filed as against the rider of the motorcycle. As the said rider admitted guilt by pleading guilt before the Hon'ble Metropolitan Magistrate Traffic Court-III, Benglauru City and he had paid the fine as imposed by the said Court. It is the rider of the motorcycle who himself had pleaded guilty before the criminal court and rider of the motorcycle may guilty conscious of causing the accident to the petitioner and deposed before this court with regard to the accident. No prudent man will come from the criminal court so as to support the unknown person and plead guilty for the offence which he himself has not at all committed during his lifetime. There is no qualm in the preposition of law that an chargesheet is not a sole document on which the factum of negligence has to be decided. But having regard to the Ex.P.3 which was read in consonance with the Ex.P.12 Chargesheet it is crystal clear that there is an rash and negligent act of the rider of the vehicle.
20. No doubt the respondent No.1 has examined its official as RW.1 has produced Notice u/s 133 of IMV Act as per Ex.R.6 and the said notice was replied as per Ex.R.7 given by the owner of the insured motorcycle. On careful perusal of Ex.R.7 wherein the owner of the offending motorcycle has admitted the involvement of the vehicle. It is also forthcoming from Ex.R7 reply to 133 notice that the rider of the vehicle was not having SCCH-23 17 MVC-5241/2022 valid DL at the time of accident. Be that as it may, the liability will be discussed in the later part of this judgment.
21. It is necessary to reassert that in a claim for compensation filed under Section 166 of Motor Vehicles Act, 1988, the claimant is expected to prove the incident on basis of principle of preponderance of probabilities and the view taken by this Court is fortified by the decision rendered by the Hon'ble Supreme Court in Kusum and others V/s Satbir and others which is reported in 2011 SAR (CIVIL) 319. Further the Hon'ble Supreme Court in case of Bimla Devi and others v. Himachal Road Transport Corporation and others reported in (2009) 13 SCC 530 has observed that, it is necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants are merely required to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. Further the Hon'ble High Court of Karnataka in National Insurance Co. Ltd. Vs. Krishnappa and another reported in 2001 ACJ 1105, where the Hon'ble High Court of Karnataka considering the fact that the rider of the offending vehicle was not examined to prove any contributory negligence on the part of scooterist held that the accident had occurred due to rash or negligent driving by the rider of the offending van. Even here in this case the rider of motorcycle is not examined to show that there was no negligence on his part and even otherwise the IO, as already observed, SCCH-23 18 MVC-5241/2022 has clearly opined that the accident occurred only due to the fault of the rider of motorcycle and he was charge sheeted.
22. Though PW.1 cross-examined at length by the respondent No.1 but they withstood the rigour of cross- examination. This court is aware of the fact the chargesheet cannot be trusted as a holy document to come to the conclusion of the negligence. But in the instant case having regard to the other materials placed on record and other surrounding circumstances it is it is clearly forthcoming that the negligence on the part of the rider of the motorcycle. Consequently this tribunal hold that the accident is proved to have been caused due to the actionable negligence of the rider of the motorcycle. With this observation issue No.1 is answered as 'In the Affirmative'.
23. ISSUE NO.2 : As already held herein above, the petitioner proved that she has sustained injuries in RTA which is caused by the vehicle belonging to respondent No.2 and insured with the respondent no.1. Hence the petitioner is entitle for compensation. This Court has already held Issue No.1 in the affirmative which makes it more than obvious that the petitioner is entitled for compensation. Needless to state the quantum of compensation which is awarded has to be proportionate to the nature of the injuries and the compensation has to be awarded by keeping in mind the SCCH-23 19 MVC-5241/2022 pecuniary damages and non-pecuniary damages suffered by the injured-claimant. By pecuniary damages this Court is referring to the actual loss sustained by the petitioner, which can be determined in terms of money, by taking into account the oral or documentary evidence. Whereas for non-pecuniary damages this Court is referring to the losses that the claimant has though suffered, but will not be able to prove for the reason that it can neither be calculated in terms of the money nor can it be proved leading documentary evidence. Perhaps the non- pecuniary damages can be figured out by looking into the facts of each case by taking into account the nature of injuries and the aftermath. It is required to be reminded to oneself that compensation in a case arising out of injury can never be granted on mathematical precision and invariably a good amount of guesswork is involved while determining the compensation in such cases.
24. Perhaps unlike in a fatal case, in a case involving bodily injury the victim is left to suffer throughout her life ; and hence it becomes the bounden duty of the tribunal to award compensation to a victim of permanent disability so as to bring in sustainability and also to ensure that victim is not pushed to poverty.
25. This issues revolves round the sphere and ambit as to the quantum of compensation. The petitioner has got exhibited her Aadhar card at Ex.P13 wherein her date of birth is reflected SCCH-23 20 MVC-5241/2022 as 19.05.2003. The accident occurred on 10.08.2022. This indicates that she was aged 19 years 2 months 22 days on the date of accident.
26. In order to demonstrate the pecuniary loss suffered by the she herself is examined as PW.1 and she deposed that immediately after the accident, she was shifted to Abhaya Vasishta Hospital, wherein she was treated as inpatient and further referred to Sanjay Gandhi Hospital, wherein she was treated as inpatient and also underwent surgery and was discharged with an advice to take complete bed rest and follow up treatment. The petitioner has supported the said contention by producing Ex.P8 and 9 being Discharge summaries and the wound certificate and got examined MRO at Abhaya Vasishta Hospital, Bengaluru, as PW.2 who has clearly deposed that indeed the petitioner underwent treatment from 10.08.2022 to 11.08.2022 as stated by the PW.1 and she has produced authorization letter, Police Intimation, MLC extract and Discharge summary at Ex.P.18 to Ex.P.21. Further the learned counsel for the petitioner has asserted that the petitioner has spent substantial amount towards the treatment and incidental charges and has produced medical bills in support of the same. Further in the wound certificate, it is clearly mentioned that the injuries sustained by the petitioner are grievous in nature. By keeping these facts in mind the compensation has to be determined.
SCCH-23 21 MVC-5241/202227. While determining the compensation this court has to look into the pain and sufferings, medical expenses, diet, food, nourishment, attendant and conveyance charges and loss of amenities and enjoyment of life that the minor petitioner has suffered, which are discussed herein below :
28. TOWARDS PERMANENT DISABILITY: The petitioner has alleged that due to injuries sustained in the accident she has become permanently disabled and she is not in a position to do the activities which she used to do prior to the accident. In order to establish that petitioner has suffered physical disability, the petitioner has got examined Dr. Avinash Parthasarathy, Professor of Orthopedic as PW.3. He deposed that the petitioner has sustained following injuries :
a) Right Proximal Humerus fracture
b) Right anterior and medial aspect of diatal thigh CLW 10x2 cm For the above said injuries she was taken treatment at a local hospital and later she was referred to Sanjay Gandi Hospital, wherein she took treatment as inpatient on 11.08.2022 and underwent surgeries. On Examination PW.3 who stated that on clinical examination conducted by him, he found that petitioner has sustained total permanent physical disability of 50% to the upper limb and 17% disability to the whole body. It could be borne in cross examination that he has treated the petitioner.SCCH-23 22 MVC-5241/2022
Further he admitted that the condition of the petitioner was stable at the time of discharge from their hospital. The petitioner has responded reasonably well to their treatment. Further he admitted that the petitioner has restrictions of movements of because of injuries sustained in RTA. Further he admitted that the fractures are united. In her chief- examination itself she has deposed that she was studying in 1 st Year B.Com, at Vijaya College. Though she has urged that she is a Basketball player but in order to substantiate the same she has not produced any documents.
29. The compensation awarded should enable the child to acquire something or to develop life style which will offset to some extent, the inconvenience or discomfort arising out of the disability. At this point, this Tribunal would like to rely on the following judgment reported in (2011) 1 SCC 343 in the case of Rajkumar V/s. Ajaykumar and another, wherein the Hon'ble Supreme Court held as follows;
Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement,
(iii) if the disablement percentage is expressed with reference to any specific limb, SCCH-23 23 MVC-5241/2022 then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.
SCCH-23 24 MVC-5241/2022For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of `loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity.
By applying the said precedent to the present case on hand, in this case the petitioner sustained injuries. The discussion made supra makes it crystal clear that, at the time of the accident the petitioner was pursuing 1st Year B.Com. There are no SCCH-23 25 MVC-5241/2022 documents placed before the court with regard to discontinuity of studies. When such being the case, it can be concluded that, the petitioner did not suffer that disability as stated by PW3. No doubt having regard to the injuries sustained and the treatment given to the petitioner she has sustained disability to some extent. The age of the petitioner also bears importance having regard to the facts of the instant case on hand. The petitioner is young aged than the recovery rate will be higher. Considering the nature of injuries, line of treatment and on appreciation of the clinical findings noted by the doctor, the possibility of the fact that the petitioner may be having economical or functional disability to the extent of 15%, cannot be ruled out. Hence, this court is of the opinion that the disability has to be taken upto 15% by considering the avocation and age of the petitioner.
30. The reason why the proof of disability and extent of disability is crucial while determining the compensation payable to petitioner is, the petitioner herein is a minor and as per the principle of law laid down in Mallikarjun v. Divisional Manager, National Insurance Company Limited and another reported in (2014) 14 SCC 396 while assessing the compensation for pain and sufferings, mental and physical shock, hardship, inconvenience and discomforts, etc. and loss of amenities in life on account of permanent disability and other heads. The Hon'ble Supreme Court at para No.12 of the said Judgment has held as under:
SCCH-23 26 MVC-5241/2022"Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc. should be, if the disability is above 10% and up to 30% to the whole body, Rs.3 lakhs; up to 60%, Rs.4 lakhs; up to 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability up to 10%, it should be Rs.1 lakh, unless there are exceptional circumstances to take a different yardstick."
As already observed, the petitioner has examined PW.3 who has assessed disability of the petitioner as 17%, but this court considers the disability could be 15% which when compared to the avocation i.e., the petitioner being the student need to carryout her day-to-day activities and other sports. Hence, the disability is considered at 15%. In the result she is entitled for the compensation of Rs.3,00,000/- under this head.
31. TOWARDS MEDICAL EXPENSES: The petitioner has produced 39 medical bills marked at Ex.P15 the PW.1 has said to have spent Rs.71,801/-. Further nothing worthwhile was elicited during the course of her cross-examination, so as to doubt the genuineness of these bills. Hence the petitioner is entitled for Rs.71,801/- which is rounded off to Rs.71,800/- towards medical expenses.
SCCH-23 27 MVC-5241/202232. TOWARDS DISCOMFORT, INCONVENIENCE AND LOSS OF EARNINGS TO THE PARENTS DURING THE PERIOD OF HOSPITALISATION : Looking into the nature of the injuries suffered by the petitioner, a maximum of 4 months would have been required for recovery. Hence the petitioner's parents could not have attended their work for those long period of 4 months. Therefore this Tribunal deems it expedient to take note of loss of income of parents during the course of treatment and rest of the petitioner. The same is quantified at Rs.10,000/- p.m. and a sum of Rs.40,000/- (10,000 X 4) is awarded as compensation for discomfort, inconvenience and loss of income to the parents during the period of hospitalization of the minor petitioner.
33. ATTENDANT CHARGES, FOOD, NOURISHMENT & TRAVELLING EXPENSES: The period of hospitalization of 38 (2+8+20+8) days is proved with the help of Ex.P.8 Discharge summary (4 in no's) she has taken treatment from 10.08.2022 to 11.08.2022, 11.08.2022 to 18.08.2022, 01.09.2022 to 20.09.2022 and from 27.10.2022 to 03.11.2022. Thus having regard to the age of the petitioner and also the nature of injuries sustained by her, she unavoidably required the service of an attendant for nursing and care. She must also have been given diet food as suggested by the doctor. For that the petitioner's family members might have spent some amount towards SCCH-23 28 MVC-5241/2022 attendant charges, food, nourishment & traveling expenses. Accordingly considering the rate of inflation and rise in the price index, the same is quantified at Rs.2,000/- per day. Hence Rs.76,000/- (38 X 2,000) is awarded under this head.
34. FUTURE MEDICAL AND OTHER INCIDENTAL EXPENSES : The doctor witness stated that the petitioner has to undergo one more surgery for removal of implants for which she may require Rs.15,000/-. No estimation is produced to show the future medical expenses. But undisputedly petitioner has to undergo surgery for removal of implants, for which she has to necessarily bear certain expenses. Thus she is entitled to Rs.15,000/- towards future medical and other incidental expenses.
35. The calculation table stands follows :
1 Permanent disability : 3,00,000-00 2 Medical expenses : 71,800-00 3 Discomfort, inconvenience & : 40,000-00 loss of income to the parents during the period of hospitalization 4 Attendant charges, food, : 76,000-00 nourishment & travelling expenses 5 Future medical and other : 15,000- incidental expenses 00
Total 5,02,800-00 SCCH-23 29 MVC-5241/2022
36. REGARDING INTEREST & LIABILITY: Having regard to the nature of the claim and current bank rate of interest, this Tribunal is of the view that if interest at the rate of 6% per annum is awarded it would meet the ends of justice.
37. While answering the issue No.1 this Tribunal comes to the conclusion that, accident occurred due to the negligence of the rider of motorcycle bearing registration No.KA-05-LF-6263.
The respondent No.1 admitted the issuance of policy in respect of the offending vehicle. The respondent No.1 contended that at the time of the accident the rider of the motorcycle bearing registration No.KA-05-LF-6263 was not holding driving license, hence it is violation of terms and conditions of the policy as such they are not liable to pay compensation to the petitioners. In support of this contention the official of the respondent No.1 company is examined as RW.1. In his examination-in-chief he deposed as per contentions taken by them during the course of written statement. In the cross examination he deposed that he is giving evidence based on the police documents and he admitted the issuance of insurance policy and same is valid. He denied the suggestion that the respondent No.2 has not violated the any terms and conditions of the policy and he denied that he is deposing falsely. By perusing the chargesheet marked as per Ex.P12 it is clear that the charge sheet is filed against the rider for the offense punishable U/Sec.279, 338 and U/Sec 3(1), 181, 5(1), 180 of M.V.Act. The charges are leveled SCCH-23 30 MVC-5241/2022 against the owner of the motorcycle i.e., respondent No.2. The respondent No.2 is the owner of the motorcycle and the said motorcycle was driven by the rider who does not have DL and he caused this accident. Hence it is clear that the respondent No.2 has violated the terms and conditions of the policy. Further it is clear that the respondent No.2 knowing well that the rider of the motorcycle was not holding driving license permitted Karthik. A to ride the motorcycle. Hence it is also clear that the respondent No.2 has violated the policy condition.
38. The learned counsel for Respondent No.1 has relied on the Citation No.FAO-1081-2024 (O & M) in the case of Universal Sompo Gen.Ins.Co.Ltd. V/s Anuj Rani and other with respect to amendment of sec.150 and stated that the tribunal directed the appellant / Insurance company to pay the award amount to claimants and then to recover from driver / owner. Further it is to be noted that in the said case that the accident took place on 27.05.2022 and the amendment to Motor Vehicles Act came into force w.e.f 01.04.2022.
39. Reverting back to the factual matrix, this court also does not loose sight of the fact that, the accident had happened on 10.08.2022. The amendment to the MV Act, came into force on 01.04.2022. The amendment to Sec.150 of MV Act makes it crystal clear that, if a person drives a vehicle without DL, than there is no question of making insurance company liable.
SCCH-23 31 MVC-5241/2022Further the provision makes it clear that, there is no question of even pay and recovery also. This accident is subsequent to that of the amendment to the IMV Act. When such being the case, the Respondent No.1 cannot be made liable.
40. Further, the petitioners counsel has relied on a decision reported in (2018) 3 SCC 208 in the case of Pappu V/s Vinod Kumar Lamba, (2018) 9 SCC 650 in the case of Shamanna V/s Oriental Ins.Co.Ltd and contended that even though there is violation of terms and conditions of the policy the insurance company is liable to pay compensation to the petitioner. But the facts and circumstances stated in the said cases and present case on hand are entirely different. In the above said judgments it is held that in case of fake/invalid driving license the insurance company has to prove that the owner of the motor vehicle need to establish that the owner was aware of fact that license was fake/invalid and still permitted the driver to drive the vehicle, in that circumstances the insurance company is not liable to pay compensation, if the insurance company failed to prove that even the owner of the vehicle knowing that the driver vehicle was having fake/invalid driving license permitted the driver to drive the vehicle them insurance company is liable to pay compensation to the petitioner. But in the present case on hand the rider without DL was riding the motorcycle and caused this accident and it is not the case of fake/invalid driving license. Hence with due respect SCCH-23 32 MVC-5241/2022 to the above said judgment same are not applicable to the present case on hand. Added more, those decisions were rendered prior to the amendment to Sec.150 of the MV Act. When such being the case, the ratio laid down therein cannot be made applicable to the instant case on hand.
41. Further respondent No.1 has relied on the judgment of M.F.A.No.3297/2019 in the case of Smt.Adilakshmamma and Others Vs., Sri. Raju and other and contended that when the owner knowing that rider of the motorcycle was not holding driving license and handed over his motorcycle to the rider who is not having driving license then the owner is liable to pay compensation to the petitioner. In this case on hand also the respondent No.1 is the owner of the motorcycle and he is knowing well that the rider is not having driving license and permitted the rider to ride his motorcycle and the rider caused this accident, hence the respondent No.2 is not liable to pay compensation to the petitioner, but the respondent No.1 who is the owner of the motorcycle is liable to pay compensation to the petitioner. The said authority relied by the learned counsel for the respondent No.2 is applicable to the present case on hand.
42. Further on the same point of law the learned counsel for respondent no.1 has relied on the judgment in MFA- 6154/2019 in the case of Smt. Hemalatha @ Hema @ Hemavathi and others v/s Bajaj Allianz Gen.Ins.Co.Ltd, wherein the Hon'ble High Court of Karnataka after considering SCCH-23 33 MVC-5241/2022 the judgment of the Apex Court in (i) Pappu V/s Vinod Kumar Lamba, (ii) Bishan Devi v. Surbakshi Singh (iii) Shamanna V/s Oriental Ins.Co.Ltd., (iv) Iffco Tokio Gen.Ins.Co.Ltd V/s Geeta Devi (v) National Ins.Co.Ltd., V/s Swarna Singh it clearly distinguished the factum of no DL and fake DL and observed as hereunder :
27. Learned Counsel for the appellants relied on the judgment of the Hon'ble Supreme Court in the case of Swaran Singh's, Pappu's, and Shamanna'scases referred to supra, to contend that, even if there is no driving license the insurer is liable to pay the damages to the claimants and recover the same from the owner of the vehicle. Those judgments referred to the principle of pay and recovery in case of breach of policy condition for disqualification of the driver to hold the license or holding of an invalid driving license. They did not relate to a case of no driving license at all.
28. Learned counsel for the appellants/claimants relied on Bishan Devi's case referred to supra to contend that even in case of no license also, the insurer is liable. Plain reading of the said judgment shows that in that case it was held that the insurer had failed to prove its defence that vehicle was driven SCCH-23 34 MVC-5241/2022 by a person without license. In the present case the defence of the insurer that the offending vehicle was driven by a person having no license and the same is proved. Therefore, the said judgment is not applicable to the facts of the present case.
Reverting back to the factual matrix, respondent.No.2 the owner of the vehicle neither contested the petition by filing written statement nor adduced any evidence claiming that he did not consciously permit the rider to ride the vehicle. The said act of the respondent No.2 is a clear breach of fundamental breach of policy condition within the meaning of Sec149(2)(a)(ii) of MV Act. The respondent No.2 being the owner of the motorcycle bearing registration No.KA-05-LF-6263 is liable to pay compensation to the petitioners with interest at the rate of 6% p.a from the date of petition.
43. Further on the same point of law the respondent No.1 had also relied on decision of the Hon'ble High Court of Karnataka in M.F.A.No.187/2017 in the case of Manager, Bajaj Allianz Gen.Ins.Co.Ltd., V/s Chandrakala and others decided on 18.02.2023 wherein it was held that if owner failed to appear before the court, inspite of notice and failed to take reasonable care while entrusting the vehicle then there is a gross negligence on the part of owner. Hence the insurance company cannot be fastened with the liability. Further the SCCH-23 35 MVC-5241/2022 respondent No.1 has also relied on decision of Hon'ble High Court of Karnataka in M.F.A.No.100226/2016 in the case of Padma and others Vs., Ramanjali Naidu and others wherein it was held when the owner failed to take reasonable steps to verify the DL of the driver and the owner did not step into the witness box to prove the DL the adverse inference has to be taken against the owner. This makes it clear as a cloud less sky that respondent No.2 consciously had handed over the offending vehicle to a person who do not have DL. This is the fundamental breach of policy conditions. The golden thread which gives strength to the defence of respondent No.1 is the accident had happened after the amendment to M.V.Act which came into effect on 01.04.2022. when such being the case, there is no question of pay and recovery, respondent No.2 is solely liable to pay compensation to the petitioner. Under such circumstances the insurance company cannot fastened with a liability of pay and recover that there is clear breach of conditions. The respondent No.2 who is the owner of the offending vehicle is liable to pay the compensation awarded by this Tribunal. Hence this issue is answered as 'Partly in the Affirmative'.
44. ISSUE NO.3 : In view of the discussion made supra, this Tribunal proceeds to pass the following :
ORDER SCCH-23 36 MVC-5241/2022 The petition filed under Section 166 of M.V. Act 1988, is hereby partly allowed with costs in the following terms :
The petitioner is entitled for compensation of Rs.5,02,800/- 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 i.e., the RC owner of the Motorcycle bearing No.KA-05-LF-6263 is liable to pay and directed to deposit the compensation amount within a period of two months from the date of award.
Out of the above said compensation amount awarded to the petitioner, 80% of the award amount with accrued interest shall be paid to him through NEFT/RTGS by way of E-payment on proper identification and due verification and further 20% of the award amount shall be kept in FD in favour of petitioner in any Nationalized or Scheduled bank for a period of 3 years.
The petition is dismissed against respondent No.1 i.e., The Oriental Insurance Co. Ltd.
Advocate fee is fixed at Rs.1,000/-.SCCH-23 37 MVC-5241/2022
Draw 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 2nd day of August - 2024) (Aalok. A.N) XXI Addl. Small Causes Judge & ACJM, Bengaluru.
ANNEXURES List of witnesses examined for the petitioner/s:
PW.1 : Miss. Bhanupriya. R PW.2 : Sri. Kashinath Talwar PW.3 : Dr. Avinash Parthasarathy
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 Sketch which was drawn at the time
of Spot Mahazar
Ex.P.5 True copy of notice which was issued U/Sec.133 of
IMV Act
Ex.P.6 True copy of reply to the above said notice
Ex.P.7 True copy of IMV Report
Ex.P.8 Discharge Summary (4 in Nos.)
Ex.P.9 True copy of Wound Certificate
Ex.P.10 True copy of Police Intimation
Ex.P.11 True copy of order-sheet in CC 11780/2022
Ex.P.12 True copy of Charge Sheet
Ex.P.13 Notarized copy of the Aadhaar card of petitioner
SCCH-23 38 MVC-5241/2022
after comparing with the original found correct Ex.P.14 Outpatient records (8 in Nos.) Ex.P.15 39 Medical bills amounting to Rs.71,801/- Ex.P.16 Medical Prescriptions (8 in Nos.) Ex.P.17 X-ray sheets (4 in Nos.) Ex.P.18 Authorization letter Ex.P.19 Police intimation after comparing with originals found correct Ex.P.20 MLC extract after comparing with originals found correct Ex.P.21 Discharge summary Ex.P.22 Case sheets 3 in nos Ex.P.23 Clinical notes Ex.P.24 Disability assessment proforma Ex.P.25 One X-ray film List of witnesses examined for the respondent/s: RW.1 : Smt. Veera Gonsalves List of documents marked for the respondent/s:
Ex.R.1 Authorization letter Ex.R.2 True copy of Insurance policy Ex.R.3 Letter issued to the insured Ex.R.4 Postal receipt for sending Ex.R3 Ex.R.5 Returned RPAD cover opened in the open court, compared with Ex.R3 found correct. The said notice is marked as Ex.R5 and the RPAD cover is marked as Ex.R5(a) SCCH-23 39 MVC-5241/2022 Ex.R.6 True copy of notice which was issued U/Sec.133 of IMV Act Ex.R.7 True copy of reply to the above said notice (Aalok. A.N) XXI Addl. Small Causes Judge & ACJM, Bengaluru.