Bangalore District Court
Sri.A.Kumar @ Guru Kumar. A vs Icici Lombard General Insurance on 11 February, 2015
BEFORE THE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BENGALURU.
(SCCH.13)
DATE: THE 11th DAY OF FEBRUARY 2015.
PRESENT :
SMT.B.PUSHPANJALI, B.A., LL.M.
II Addl. Small Causes Judge &
XXVIII ACMM, Bengaluru.
M.V.C.No.6686 of 2013
PETITIONER: Sri.A.Kumar @ Guru Kumar. A
@ Guru Kumar,
S/o Annaiappa, 48 years,
Presently R/at No. 26/5,
Jos Allukas Cross road,
Dickenson Cross road,
Shivan Chetty Garden Post,
Bengaluru.
Old Resident of
No.26/5, Dickenson Road Cross,
Halasuru, Shivajinagar,
Bengaluru-560 042.
vs.
RESPONDENTS: 1. ICICI Lombard General Insurance
Co.Ltd., 2nd floor,
SVR Complex 89,
Hosur Main road, Madivala,
Koramangala,
Bengaluru-560 068.
(Insurer of the Motor cycle bearing
SCCH.13 2 MVC.6686/2013
Reg.No.KA-03-HS-3005)
2. Lalitha Ebenezer,
S/o M.M.Raju,
24th cross, 1st Main Road,
Near Army Base, Chinnappa
Garden, Benson Town Post,
Bengaluru-560 046.
(RC Owner of the Motor cycle
bearing Reg.No.KA-03-HS-3005)
-o0o-
JUDGMENT
The petitioner has filed this petition under Sec.166 of M.V.Act., claiming compensation of Rs.8,00,000/- on account of injuries sustained by him in the motor vehicle accident.
2. The brief facts of the petitioner's case are that:-
On 11.10.2013, around 2.10 p.m., when he was riding the Scooty bearing Reg.No.KA-01-EF-8622 on St.John's road and when he reached near Cleveland road junction, at that time, the rider of Motor cycle bearing Reg.No.KA-03-HS-3005 drove it in a rash and negligent manner and rammed into his Scooty from behind. Due to which, he fell down and sustained SCCH.13 3 MVC.6686/2013 grievious injuries to his left shoulder, chest and other injuries all over the body. Immediately, he was shifted to Santhosh Hospital, Bengaluru, wherein he took treatment as an inpatient and spent huge amount towards medical, conveyance, nourishment and other incidental charges etc., and in spite of best treatment, he has suffered disability. Hence, he prays to allow the petition.
3. In response to the notices, respondents No.1 and 2 placed their appearance through their counsels, but only 1st Respondent has filed its written statement with the following contentions:-
Respondent No.1/insurance company is disputing that the accident was on account of rash and negligence of the rider of the motor cycle. It has contended that the accident has occurred due to actionable negligence of the petitioner in riding his Scooty and the rider of the offending vehicle had no valid driving licence as on the date of accident. It has admitted that offending vehicle was duly insured with it as on the date of the accident but contended that its SCCH.13 4 MVC.6686/2013 liability if any is subject to terms and conditions of the policy. It has disputed the physical impairment suffered on account of the injuries sustained by the petitioner in the motor vehicle accident. It has also disputed the age, income of the petitioner, reduction of his working capacity and amount spent towards medical treatment. It is also contended that the compensation claimed in the petition is exorbitant, therefore, the instant petition may be dismissed.
4. On the basis of the above pleadings the following issues have been framed:-
1. Whether the petitioner proves that on 11.10.2013 at about 2.10 p.m., when he was proceeding on Scooty bearing Reg.No.KA-01-EF-
8622 as a Rider, on St.John Church Road and Cleveland road junction, Bengaluru, at that time, the driver of the motor cycle bearing Reg. No.KA- 03-HS-3005 drove the vehicle at high speed and in a rash & negligent manner, so as to endanger human life and dashed against the petitioner, due to which, he fell down and sustained grievous injuries ?
2. Whether the petitioner is entitled for the compensation? If so, to what extent & from whom?
SCCH.13 5 MVC.6686/2013
3. What order ?
5. In order to prove the petition claim, the petitioner and two witnesses were examined as PW.1 to 3 and got marked the documents at Ex.P.1 to P.17. 1st Respondent examined its Manager as RW1 and got marked two documents as Exs.R1 and 2.
6. Heard the arguments. The counsel for the petitioner has relied upon citation reported in 2014 ACJ 1041.
The Respondent No.1 counsel has also relied upon the following citations:
1.2006 ACJ 1957 (Electrical Engineering Agencies and another
-vs New India Assurance Co.Ltd and another)
2.MFA 1383 C/w.1384/08 dt.24.10.13 (Rajappa -vs- Guddappa and another)
3.Appeal NO.4151/09 DD.16.06.2011
7. My findings to the above issues are as under:-
Issue No.1 : In the affirmative.
Issue No.2: In the affirmative.
Issue No.3: As per final order for the following:-SCCH.13 6 MVC.6686/2013
REASONS
8. Issue No.1 :- It is the case of the petitioner that he has sustained injuries in a motor vehicle accident that occurred on 11.10.2013, around 2.10 p.m., when he was riding the Scooty bearing Reg.No.KA-01-EF-8622 on St.John's road and when he reached near St.John's Church Road and Cleveland Road junction, Bengaluru at that time, the rider of Motor cycle bearing Reg.No.KA-03-HS-3005 drove it in a rash and negligent manner and rammed into his Scooty from behind. In order to prove the case, the petitioner has filed his affidavit in lieu of his oral evidence, he par with the petition averments. Nothing is elicited in his cross-examination to discard his evidence. Besides, he disowns the suggestion that the accident was not on account of the rash and negligent driving of the offending vehicle by its rider.
9. 1st respondent has taken up a specific defence in the written statement that the accident was due to negligence of the petitioner in riding his two-wheeler who suddenly took right turn without indicator in the SCCH.13 7 MVC.6686/2013 junction. Though 1st respondent has taken up a specific defence about cause of the accident, in order to prove the same, he has not examined the rider of its insured vehicle or eye-witnesses to the incident because, they are the better persons to speak about the cause of the accident. The reply notice under Sec.133 MV Act issued to the 2nd respondent who is the owner- rider of the offending vehicle at the time of accident, had given details of his licence that he was holding LLR. at the time of accident. That means to say that he had not possessed valid and effective licence to ride the vehicle. When he was holding LLR., he ought to have accompanied with the instructor or the person who had possessed valid DL, but on this aspect there is nothing on record to show that he was accompanied by the instructor or a valid DL Holder. So, it is clinchingly evidenced that the 2nd respondent who is the owner and rider of the motor cycle was learning to ride the vehicle but he was not eligible to ride the vehicle. On the other hand, the DL extract produced by the petitioner marked at Ex.P.13 discloses that he had possessed licence to ride two-wheeler. Therefore, the contention of the 1st SCCH.13 8 MVC.6686/2013 respondent that the petitioner was negligent in causing the accident does not hold water.
10. On the other hand, the petitioner has produced the copy of FIR at Ex.P.1, which reveals that a case has been registered against 2nd respondent on account of his rash and negligent riding of the two- wheeler. Ex.P.2 is the true copy of the charge sheet, which reveals that during the course of the investigation, the concerned IO have confirmed the rash and negligent riding of the offending vehicle by the 2nd respondent. Ex.P.6 is the wound certificate which reveals that the petitioner had sustained grievous injuries in the motor vehicle accident. Therefore, the evidence of PW.1 coupled with the documents marked as Ex.P.1 to P.6 convince the Tribunal in holding that the accident was on account of the rash and negligent driving of the offending vehicle and in the said accident, the petitioner had sustained grievous injuries. Consequently, Issue No.1 is answered in the affirmative.
11. Issue No.2 :- It is needless to say that the age, income, nature of injuries, its impact on the SCCH.13 9 MVC.6686/2013 working capacity of the claimant and medical expenses incurred towards his treatment are the considering factors to ascertain the quantum of compensation.
In the petition, it is contended that the petitioner was aged about 48 years. The petitioner has produced NC of SSLC Marks Card marked at Ex.P.10 wherein the date of birth of the petitioner is mentioned as 05.07.1964. So, as on the date of accident, the age of the petitioner was 49 years. Therefore, this tribunal could believe the age of the petitioner as 49 years as on the date of the accident.
12. Now coming to the income of the petitioner, in the petition, it is contended that the petitioner was an Astrologer and earning Rs.20,000/- per month. He has produced the Astrology certificate marked at Ex.P.9. Though this certificate reflects that he is an Astrologer by profession, but it does not reflects the actual income of the petitioner. In the absence of any cogent evidence, this Tribunal could not believe that the petitioner was having income of Rs.20,000/- p.m. Therefore taking note of the age and avocation of the petitioner, this SCCH.13 10 MVC.6686/2013 Tribunal feels to take monthly income of the petitioner at Rs.6,000/- p.m.
13. Injury, Pain & suffering:- According to the petitioner, he had sustained grievous injuries in the accident, therefore he has under gone treatment, during which he had suffered injury, pain and suffering. On looking at Ex.P.6 wound certificate, Ex.P.7 Discharge summary, Ex.P11-7 X-rays, Ex.P12-11 CT Scan films, Exs.P15 to P17- Case sheet, 2 X-rays and disability calculation chart, it reveal that the petitioner had sustained fracture of left clavicle, fracture of left ribs of 3rd, 4th, 5th, 6th and 7th with left haemothorax and lung contusion.
14. According to the petitioner, soon after the accident, he was shifted to Santhosh Hospital, Bengaluru, where he was treated as an inpatient from 11.10.2013 till 21.10.2013, for 10 days. During hospitalization, he was treated conservatively for the fracture of left clavicle and thorocostomy was done for the left haemothorax and discharged with advice for regular follow-up treatment.
SCCH.13 11 MVC.6686/2013
15. The petitioner has also examined Dr.R.Kantharaju, Orthopaedic Surgeon, as PW.3 who has deposed about the injuries sustained by the petitioner, treatment undergone and disability suffered by the petitioner. When the petitioner was subjected for his clinical and radiological examination, he found difficulties faced by the petitioner and assessed the disability of the petitioner at 29.63% to the left Upper limb and 10% to the whole body. Hence, having regard to the nature of injuries sustained and treatment undergone by the petitioner, this Tribunal could believe that the petitioner herein has undergone treatment during which he had suffered injury, pain and suffering. Therefore, taking note of this material aspect, the nature of injuries and also the difficulties as faced by the petitioner, this Tribunal feels to award Rs.40,000/- towards injury, pain and suffering.
16. Loss of earnings during the medical treatment:- On account of the injuries the petitioner took treatment as an inpatient for 10 days and he was advised follow-up treatment. Hence, having regard to SCCH.13 12 MVC.6686/2013 the nature of injuries sustained and duration of treatment, this Tribunal feels that atleast 3 months time would have been taken for recovery. Therefore this Tribunal feel to provide Rs.18,000/- (Rs.6,000 x 3 months) under the head loss of earning during treatment period, which is just and fair compensation.
17. Medical expenses:- So far as the medical expenses is concerned, the petitioner has produced 26 medical bills at Ex.P.10 to the tune of Rs.1,05,854/-. On careful perusal of the same, it reveal that the IP bill to the tune of Rs.73,000/- is supported by deposit receipts at Sl.No.1(d) to 1(h). Rest of the bills are pertains to pharmacy bills, x-ray, consultation, dressing, implants and these bills are supported by medical records. Though 1st respondent has disputed the bills at Ex.P.8, no rebuttal evidence is placed. In the absence of any cogent evidence, this Tribunal can not believe that the bills and prescriptions are created by the petitioner to claim more compensation. On the other hand, the medical records do endorse that the petitioner has sustained fracture injuries and he was SCCH.13 13 MVC.6686/2013 treated surgically with implants and definitely, he has spent amount towards treatment. Therefore, this Tribunal feels to provide Rs.1,05,854/- towards the medical expenses, which is the just and fair compensation.
18. Loss of future income due to disability:
Now, I have to ascertain reduction of the working capacity on account of the accident, perhaps permanent disability coming in the way of his future earnings. While the petitioner has filed his affidavit in lieu of his oral evidence he has stated that he is permanently disabled and find difficult to do his normal work and also to walk, write, lift weight, ride two- wheeler, unable to sit for long time and perform astrology business due to frequent chest pain and unable to do any manual work and as such he has lost his earnings. PW.3 Dr.R.Kantharaju, Orthopaedic Surgeon, who has subjected the petitioner to his clinical and radiological examination in ascertaining his physical impairment has come up with the evidence that the petitioner gets pain in the left clavicular region if he lifts heavy weights in left hand also driving vehicle; SCCH.13 14 MVC.6686/2013 left upper limb - shoulder joint is weaker than the right upper limb; gets pain to do normal activities. Basing on the difficulties suffered by the petitioner, PW.3 has opined that the petitioner has suffered disability of 29.63 to the left upper limb and 10% to the whole body.
Taking note of the injuries sustained by the petitioner and treatment undergone and his avocation, the disability assessed by the doctor appears to be reasonable. Therefore, looking to the nature of avocation and age of the petitioner, this Tribunal feels to take the physical impairment of the petitioner at 10% to the whole body. As I have already taken the income of the petitioner at Rs.6,000/- p.m. and his age as 49 years, loss of future earnings has to be assessed. Taking note of the multiplier which is directed to be used by the Tribunals as per the law laid down by the Hon'ble Supreme Court in case of Smt. Sarla Verma Vs. Delhi Transport Corporation- 2009 ACJ 1298 (SC) the multiplier suggested to the age group 46 to 50 years would be '13, the loss of future earnings can be assessed as follows: Rs.6,000 x 12 x 13 x 10/100 = Rs.93,600/-
SCCH.13 15 MVC.6686/2013
19. Loss of amenities:- On looking to the wound certificate and disability certificate, the petitioner had sustained fracture of left clavicle, fracture of left ribs of 3rd, 4th, 5th, 6th and 7th with left haemothorax and lung contusion and due to said injuries, he has not completely recovered and he has suffered permanent disability. PW.3 Dr.Kantharaju, Orthopedics Surgeon, who has subjected the petitioner to his clinical and radiological examination in ascertaining his physical impairment has come up with the evidence that the petitioner finds it difficult to do work as there is restriction of joints movements. Basing on the difficulties suffered by the petitioner, PW.3 has opined that the petitioner has suffered disability of 10% to the whole body. Therefore, this tribunal has no hesitation to award Rs.15,000/- towards the loss of amenities. The said amount is awarded keeping in mind regarding the age of the petitioner as 49 years, he had a long future and loss of enjoyment in his future life.
20. Conveyance, Nourishment, food and attending charges:- Petitioner has undergone treatment as inpatient at Santhosh Hospital for about SCCH.13 16 MVC.6686/2013 10 days and he has taken regular follow-up treatment atleast for three months and the treated doctor has also endorsed about the course of treatment during hospitalisation. Though there is no definite evidence on record regarding the amount spent towards nourishment, conveyance, food & attendant charges, having regard to the duration of the treatment, this tribunal feel to provide Rs.10,000/- (Rs.1000 per day x 10 days) which is the just and fair compensation.
Hence, the following calculation:-
1. Injury pain & sufferings: Rs. 40,000/-
2. Loss of earning during laid up 18,000/-
period:
3. Medical expenses: 1,05,854/-
4. Loss of future earnings 93,600/-
5. Loss of amenities: 15,000/-
6. Conveyance, Nourishment, 10,000/-
Food and attending charges:
Total: Rs.2,82,454/-
Hence, this tribunal that feel it is just and proper to award the compensation of Rs.2,82,454/- which is the just and fair compensation.
21. As far as interest is concerned, as per Sec.171 of Motor Vehicle Act tribunal is empowered to SCCH.13 17 MVC.6686/2013 grant interest from date of claim at simple interest at such rate as it deems reasonable. The Division Bench ruling of the Karnataka High Court in Managing Director, Karnataka Power Corporation Limited Vs. Geeta and the Division Bench ruling in P.Rama Devi Vs. C.B. Sai Krishna and others are of the view that the rate of interest to be awarded should be at the rate of 6%. In AIR 1994 Kar.8, it was observed that "Compensation is an amount paid in advance for any loss of life or loss of dependency or loss of earnings. It is not a debt. Therefore, the interest to be awarded under Section 110-CCC of the Motor Vehicles Act could only be at 6% per annum." Therefore, the petitioner is entitled for the interest at 6% per annum on the said amount from the date of the petition till deposit of the entire compensation amount.
22. As far as liability is concerned, the policy issued in respect of offending vehicle, in favour of the 2nd respondent and its validity on the date of accident is not in dispute. 1st respondent-insurance company has disputed its liability on the ground that the owner has authorized a person who has not possessed valid and SCCH.13 18 MVC.6686/2013 effective licence to ride the offending vehicle. Since the owner of the offending vehicle has violated the terms & conditions of the policy, it can not indemnify the risk. In order to substantiate its specific assertion, 1st respondent has relied upon the charge sheet marked at Ex.R.2. A careful perusal of this charge sheet marked at Ex.R.2, it reveal that the Investigating Officer has filed charge sheet against the rider of the offending vehicle for the offences punishable under Sec.3(i) 181 of IMV Act under Ex.R.2. It is specifically alleged that on the date of accident, the rider of the offending vehicle had possessed the LLr. only. Hence, 1st respondent requested to dismiss the claim petition against the insurance company. 1st respondent has also relied upon the decisions reported in:
i) 2006 ACJ 1957 - Electrical Engineering Agencies & anr. vs. New India Assurance Co.Ltd.,
ii) MFA 1383/2008 c/w1384/2008 of Hon'ble High Court of Karnataka, Dharawada Bench.
On the other hand, learned counsel for the petitioner vehemently argued that the driver who holds LLr. is valid DL as per the provisions of MV Act and SCCH.13 19 MVC.6686/2013 therefore, the 1st respondent being the insurance company can not avoid its liability on this ground. Elaborating the arguments on this point, the learned counsel for the petitioner relied upon the decisions reported in:
i) 2014 ACJ 1041 - National Insurance Co.Ltd.
vs. Subramani & ors;
ii) 2004 ACJ 1 - National Insurance Co.Ltd., vs. Swaran Singh & ors.
iii) 2010 ACJ 1120 - Shivpal Singh vs. Lalchand & ors.
iv) 2008 AIR SCW 3251 -Oriental Ins.Co.Ltd., vs. Zaharulnisha & ors.
v) 2010 AIR SCW 3742- B.T.Krishnappa vs. United India Insurance Co.Ltd.
vi) ILR 2008 Kar. 2399- Subodh Subhash Kakade vs. Appasabad Jinnappa Chougule & anr.
23. The Tribunal has gone through the decisions relied upon by both the parties. As could be seen from the records, it is an admitted fact that the rider of the offending vehicle had possessed Learner's licence at the time of accident. On careful scrutiny of the documents relied upon by both the parties, there is no evidence to show that the owner or the rider of the offending vehicle SCCH.13 20 MVC.6686/2013 had complied the conditions of the Learner's licence i.e., LLr.licence holder accompanied by instructor or the effective DL holder at the time of accident. Besides, the very charge sheet filed by the Investigating Officer do endorse that the rider had only the Learner's licence and there is no reference in the charge sheet that the he had accompanied by the instructor or the effective DL holder. So, the 2nd respondent who is the owner and rider of the offending vehicle had violated the provisions of Sec.149(2)(a)(ii) of MV Act read with Rule 3 of Central Motor vehicles Rules, 1989, Since the 2nd respondent has violated the said provisions of law, 1st respondent being the insurance company cannot be made liable to pay compensation. In view of these reasons, respondent No.2 alone, who is the owner of the offending vehicle is liable to pay compensation and she shall deposit compensation amount in the court with interest at 6% p.a. Hence, I answer Issue No.2 accordingly.
24. Issue No.3:- In view of my findings on issue Nos.1 and 2, I proceed to pass the following:- SCCH.13 21 MVC.6686/2013
ORDER The petition filed by the petitioner under Sec.166 of M.V. Act is partly allowed.
The respondents No.2 is liable to pay the compensation of Rs.2,82,454/- to the petitioner with interest at the rate of Rs.6% P.A., from the date of the petition till the date of deposit in court and she shall deposit the entire compensation amount within two months from today.
Claim petition against respondent No.1- insurance company is dismissed.
On deposit of the entire compensation amount, 40% of the amount shall be invested in the name of petitioner for three years in any Nationalised or Scheduled bank of his choice with liberty to withdraw accrued interest and the balance amount shall be paid to the petitioner through the cheque under proper identification.
Advocate fee is fixed at Rs.500/-. SCCH.13 22 MVC.6686/2013 Draw award accordingly.
(Dictated to the Stenographer directly on computer, corrected, signed & pronounced in open court on 11th February 2015.) (B.PUSHPANJALI) II Addl. Small Causes Judge & XXVIII ACMM, Bengaluru.
ANNEXURE List of witnesses examined for petitioner :
PW.1 : Sri.A.Kumar @ Guru Kumar A. @ Guru Kumar PW.2 : Kumar Singh Kishan PW.3 : Dr.R.Kantharaju List of documents marked for petitioner :
Ex.P.1 : CC of FIR with complaint Ex.P.2 : Charge sheet Ex.P.3 : Sketch Ex.P.4 : Mahazar Ex.P.5 : IMV report Ex.P.6 : Wound certificate Ex.P.7 : Discharge summery Ex.P.8 : 26 Medical Bills for Rs.1,05,854/- Ex.P.9 : NC of Astrology certificate (4 in Nos.) (Compared
with original and returned back to the witness) Ex.P.10 : NC of SSLC (Compared with original and returned back to the witness) Ex.P.11 : 7 X-rays Ex.P.12 : 11 CT Scan films Ex.P.13 : NC of DL Compared with original and returned back to the witness) Ex.P.14 : Authorisation letter Ex.P.15 : Case sheet SCCH.13 23 MVC.6686/2013 Ex.P.16 : 2 X-rays Ex.P.17 : Disability calculation chart List of witnesses & documents for respondents :
RW.1 : Chidananda P
Ex.R.1 : Copy of Policy
Ex.R.2 : Charge sheet
(B.PUSHPANJALI)
II Addl.Small Causes Judge &
XXVIII ACMM, Bengaluru.