Bangalore District Court
Smt.Sharadamma vs United India Insurance Co.Ltd on 15 May, 2015
1 SCCH-1
MVC No.2652/2014
BEFORE THE MEMBER PRL. MOTOR ACCIDENT CLAIMS
TRIBUNAL AT BANGALORE
(S.C.C.H. - 1)
DATED THIS THE 15th DAY OF MAY 2015
PRESENT : SRI H.P.SANDESH, B.A.L, LL.B.,
MEMBER, PRL. M.A.C.T.
MVC No.2652/2014
Petitioners: Smt.Sharadamma,
W/o. Prashanth Hegde,
Aged about 33 years,
NO.77, 1st floor,
1st Main road, Sharada nagar,
Off, Chunchaghatta Main Road,
Doddakallasandra Post,
Bangalore -560 062.
(By Sri.M.S.Manjunath, Advocate)
Vs.
Respondents: 1. United India Insurance Co.Ltd.,
"Prabhu Sankeerna",
College Road, Ankola,
Uttarakannada District,
Pin-581314.
(Policy No.240981/31/12/01/00003915
Valid from 12.3.2013 to 11.3.2014)
(By MS.B.Shashirekha, Advocate)
2. Sri. Ishwar G.
Aged about 42 years,
S/o. Govind Naik,
Kodlagadde, Yallapur,
Uttara Kannade, Karnataka.
(owner of the Vehicle-Lorry bearing
No.KA-31/5087)
(Sri. Sanjeeva Rao, Advocate)
2 SCCH-1
MVC No.2652/2014
3. Divisional Controller,
KSRTC,
Bangalore Central Division,
Depo -1, Shanthinagar,
Bangalore -560 027.
(KSRTC Bus No.KA-40-F-823)
(By Sri. Mahadevaiah, Advocate)
********
JUDGMENT
The petitioner has filed this petition U/s. 166 of the Motor Vehicles Act, 1989 claiming compensation of Rs.10 lakhs from the respondents for the injuries sustained by him in the motor vehicle accident.
2. The brief facts of the case are:
It is the case of the Petitioner that on 29.4.2013, she was travelling along with her husband in KSRTC bus bearing No. KA-40-F-823 from Bangalore to Marga stand, Panaji(Goa).
On 30.4.2013 at about 5.00 a.m. when the bus reached near Sunkanala Heggara village, Ankola taluk, at that time the driver of the lorry bearing Reg. No.KA-31-5087 suddenly came in rash and negligent manner and dashed against the KSRTC
3 SCCH-1 MVC No.2652/2014 bus, as a result petitioner fell down from upper birth of sleeper coach and sustained grievous injuries and other passengers also sustained injuries.
3. Immediately after the accident petitioner was shifted to Kamal hospital, Ankola, wherein first aid treatment was given and then shifted to G.M.C. hospital, Goa for further treatment and she took treatment till 01.05.2013. Later on petitioner took treatment at Apollo hospital, Bangalore for spinal cord injury, fracture of body L1 and L2 verterbra. Petitioner has spent Rs.75,000/- towards treatment, medicine, transportation etc.
4. Petitioner was healthy before the accident and due to the injuries petitioner is not able to work as before. She is put to great hardship, physically and mentally. Petitioner has suffered pain, mental agony and shock due to the accident. The accident was occurred due to the sole negligence of the driver of the lorry bearing No.KA-31-5087. Respondent No.1 being the insurer of the lorry, respondent No.2 being the owner of the lorry and respondent No.3 being the owner of the 4 SCCH-1 MVC No.2652/2014 KSRTC bus are jointly and severally liable to pay the compensation to the petitioner .
5. In pursuance of this claim petition, this Court issued notice against the respondents. Respondent No.1 to 3 have appeared before the Court through their respective counsels and respondent 1 and 3 have filed their written statement separately. Respondent No.2 though appeared through his counsel, has not chosen to file his written statement.
6. The respondent No.1 has filed written statement denying the petition averments. It is contended that this Tribunal has no jurisdiction to try this petition for the reason that the petitioner, 2nd respondent and first respondent are all residentials of Ankola and are carrying their business there. It is also contended that as per section 134(c) of M.V.Act it is mandatory duty of the second respondent to furnish all particulars and it is the duty of the concerned police to furnish the documents u/s.158 (6) of M.V.Act.
5 SCCH-1 MVC No.2652/2014
7. It is further contended that, the driver of the alleged vehicle had no effective driving license to drive the particular type of vehicle HGV at the time of alleged accident and the liability if any is subject to the terms and conditions of the policy. The first respondent is not liable to indemnify the 2nd respondent since he has entrusted the vehicle to a person who did not possess a valid and effective driving license as on the date of the accident. The compensation claimed by the petitioner is excessive and exorbitant and prayed this Court to dismiss the claim petition.
8. The respondent No.3 has filed written statement denying the petition averments. The accident occurred due to the rash and negligent driving of the driver of the lorry bearing No. KA-31-5087. The occurrence of the accident, sustaining of injury by the petitioner, amount spent for medical expenses, avocation and income of the petitioner are all denied.
9. It is contended that on 29/30/4/2013 the KSRTC bus bearing No.KA-40-F-823 was proceeding from Bangalore to Goa slowly and cautiously and when the bus reached near 6 SCCH-1 MVC No.2652/2014 Heggara, the driver of a lorry bearing No. KA-31-5087 came in a rash and negligent manner without following traffic rules and regulations came from opposite side with wrong side and dashed against the KSRTC bus. Due to the impact one passenger of the bus died in the spot and some of them injured. This accident was occurred purely on the part of the driver of the lorry and the driver of the KSRTC bus was not responsible for the accident. This respondent is only a formal party and hence, petition against him is liable to be dismissed. Hence, prayed this Court to dismiss the petition filed against him.
10. Based on the pleadings, this Court has framed the following:-
ISSUES
1. Whether the petitioner proves that, she sustained grievous injuries in a Motor Vehicle Accident that occurred on 30.04.2013 at about 05.00 a.m. at NH-63, Heggar, Uttarkannada, within the jurisdiction of Ankola Police Station on account of rash and negligent driving of the Lorry bearing Reg.No. KA-31/5087 by its driver?
2. Whether the petitioner proves that, she sustained grievous injuries in a Motor Vehicle Accident that occurred on 30.04.2013 at about 05.00 a.m. when she was traveling in the KSRTC bus at NH-63, Heggar, Uttarkannada, within the jurisdiction of 7 SCCH-1 MVC No.2652/2014 Ankola Police Station on account of rash and negligent driving of the Lorry bearing Reg.No. KA-
31/5087 by its driver?
3. Whether the Petitioner is entitled for compensation? If so, how much and from whom?
4. What order or Award?
11. In pursuance of this claim petition, this Court issued notice against both the respondents. The petitioner in order to prove her case has examined herself as PW.1 and got marked the documents Ex.P1 to Ex.P11. On the other hand, respondent No.3 has examined the driver as RW.1 and he got marked the document Ex.R1. Also the respondent No.1 has examined its Administrative Officer as RW.2 and he got marked the documents Ex.R2 to 5.
12. Based on the pleadings and the evidence available on record, I record my findings on the above issues as under:-
1. Issue No.1 & 2: In the Affirmative
2. Issue No.3 : Partly in the Affirmative
3. Issue No.4 : As per final order for the following:
8 SCCH-1 MVC No.2652/2014 REASONS
13. Issue No.1 & 2: These two issues are interconnected to each other, hence they are taken up together for discussion in order to avoid repetitions.
14. It is the case of the Petitioner that, she has sustained the injuries in a motor vehicle accident which took place on 30.04.2013 at about 05.00 a.m., when she was traveling in the KSRTC bus and when it reached near Sukanala, Heggara village, Ankola at N.H.63, at that time, the accident occurred on account of rash and negligent driving of the driver of the lorry bearing Reg.No.KA-31/5087.
15. The respondent No.3 has contended that, the accident was due to the rash and negligence on the part of the driver of the offending lorry. On the other hand the respondent No.1 has contended that, there was no valid and effective driving license with the driver to drive the particular type of vehicle HGV and there is a breach of terms and conditions of the policy.
9 SCCH-1 MVC No.2652/2014
16. The petitioner in order to prove her case, she has filed an affidavit reiterating the averments of the Petition and also got marked the documents such as F.I.R., Sketch, Mahazar, IMV report, Charge sheet, as Ex.P1 to Ex.P4 and 6.
17. The PW.1 was subjected to cross examination and in the cross examination it is elicited that, she was traveling in the sleeper coach bus to Goa. She admits that, she was sleeping at the time of the accident and she cannot tell how the accident was occurred. She also admits that, she has not given the complaint. It is suggested that, the accident was not occurred due to negligence of the driver of the lorry and the accident was occurred due to the negligence of the driver of the bus and the same was denied.
18. The counsel appearing for the respondent No.3 also got examined this witness and got elicited that, she does not know the number of the bus and she was sleeping at the time of the accident. She came to know that, the accident was occurred due to negligence on the part of the driver of the lorry. She also admits that, the police have filed the Charge sheet against the driver of the lorry. She says that, she 10 SCCH-1 MVC No.2652/2014 cannot say that the accident was occurred due to sole negligence on the part of the driver of the lorry and or the part of the driver of the bus.
19. The Respondent No.3 has examined the driver of the KSRTC bus and in his affidavit he says that, he was driving the KSRTC bus and when it reached bear NH-63 at Heggara village, at that time, the driver of the lorry drove the same in a rash and negligent manner and came from opposite direction towards wrong side and dashed against his bus. Due to the impact some passengers were injured. He was driving the bus fully on the left side of the road. The accident was occurred purely on the rash and negligence of the driver of the said lorry. He is not at all responsible for the accident. This witness was subjected to cross examination by the respondent No.1 counsel. It is elicited that, there were two drivers. At the time of the accident, he was driving the bus at
3.a.m. It is suggested that, the accident was occurred due to his negligence since he was in sleepy mood and the same was denied. It is suggested that, in order to absolve the liability of KSRTC, he is giving false evidence before the court and the 11 SCCH-1 MVC No.2652/2014 same was denied. The petitioner counsel also cross examined the witness. In the cross examination a suggestion was made that, he was not driving the bus on the left side of the road and the same was denied. It is suggested that, he has driven the bus in the middle of the road in a high speed and he did not see the lorry which was coming in the opposite direction and the same was denied. He admits that, the vehicle has to be driven in a slow manner when there is a curve. It is suggested that, he was in a sleepy mood and hence the accident was occurred due to his negligence and the same was denied.
20. Now let me appreciate the oral and documentary evidence available before the court regarding negligence is concerned. On perusal of the petition there is an allegation against the driver of the lorry and no any allegation against the driver of the bus. A specific allegation was made that, the driver of the lorry drove the same in a rash and negligence manner as to endangering the human life and hit to the KSRTC bus. No doubt in the cross examination of RW.1 a suggestion was made that, he was in a sleepy mood and 12 SCCH-1 MVC No.2652/2014 hence the accident was occurred and there is no pleading. It is important to note that, the driver of the lorry has not been examined before the court. The main contention of the respondent No.1 that, the driver of the lorry was not having valid and effective driving license at the time of the accident and the owner of the lorry, though represented through counsel, he did not examine the driver. In the cross examination of PW.1 it is elicited that, she was sleeping at the time of the accident and she cannot tell how the accident was occurred. Hence it is clear that, at the time of the accident, petitioner was sleeping. On perusal of the FIR which is marked as Ex.P.1, it discloses that, the police have registered the case against the driver of the lorry. Also sketch which is marked as Ex.P2 discloses that, the lorry went towards the right side of the road, and hit the bus which was proceeding in the left side of the road towards Ankola and the lorry which proceeding in the opposite direction has hit the bus. The sketch is not been disputed by the respondent no.2 counsel. The IMV report which is marked as Ex.P4 clearly discloses that, the lorry and the bus was damaged and both the vehicles front portions were damaged and hence it is a head 13 SCCH-1 MVC No.2652/2014 on collusion. I have already pointed out that, Ex.P2 discloses that the driver of the bus was proceeding in the right direction on the left side of the road. The police have also filed Charge Sheet against the driver of the lorry in terms of Ex.P6 and the driver of the lorry was not having valid effective driving license and hence the police have also invoked the penal provision of Sec.3 R/w.181 of MV Act, 1954. For having taken note of the evidence of PW.1 and documentary evidence and in the absence of evidence of the driver of the lorry who is a right person to speak about the negligence on the part of the driver of the bus, and RW.1 has also examined the driver of the bus before the court, and he categorically says that, there is no negligence on the part of the driver of the bus and his evidence is also supported by the documentary evidence i.e.Ex.P2, though the suggestions are made against him that, he was in a sleepy mood, nothing is elicited from the mouth of RW.1 and he categorically admits that, there were two bus drivers and he was driving the bus from 3.a.m. In the absence of any oral or documentary evidence, this court has to accept the evidence of PW.1 as well 14 SCCH-1 MVC No.2652/2014 as RW.1 and documentary evidence. Hence issue No.1 & 2 are answered in the Affirmative.
21. Issue No.3: It is the case of the Petitioner that, on account of the accident, she has suffered the injuries to upper back bone and all over the body. Immediately she was taken to Kamal hospital at Ankola and thereafter she was shifted to GMC hospital at Goa and thereafter she was admitted as an inpatient at Goa Medical college and hospital and also she has undergone treatment at Apollo hospital, Bangalore. She has suffered upper spinal cord injury, back pain and other injuries. The petitioner in support of her contention has produced the Wound Certificate which is marked as Ex.P5. On perusal of Ex.P5 it discloses that, she has suffered the fracture of L1 and L2 vertebra and contusion over the left side lower part of chest. The petitioner also produced the Ex.7 Discharge summary and it discloses that, she was admitted to hospital on 30.04.2013 and got discharged on 01.05.2013. The record also discloses that, she has taken conservative treatment and no surgery was done.
15 SCCH-1 MVC No.2652/2014
22. In the cross examination of PW.1 it is elicited that, she took the treatment at Goa for a day. The said hospital authority have not given any reference letter but they told her that, if any vomiting or severe headache to take the treatment, hence she went and took treatment at Apollo hospital and the doctor of the said hospital has not referred her to go to Jayanagar hospital. It is suggested that, in order to get compensation, she has created the Apollo hospital records and Jayanagar hospital records and the same was denied. Regarding income is concerned, she says she was working as Office Assistant at Pharma point and she has not produced the appointment letter before the court. She claims that, she has not produced the Salary certificate and she was getting salary by cash. It is suggested that, she was not getting any salary of Rs.15,000/- and also was not working in Pharma point as Office Assistant and the same was denied. She also says that, the doctor who gave the treatment has refused to come and give evidence before the court. It is suggested that, she is not having any permanent disability and the same was denied. She admits that, she was admitted as an inpatient at Goa hospital. It is suggested that, she has 16 SCCH-1 MVC No.2652/2014 not spent an amount of Rs.75,000/- towards medical expenses and the same was denied. She claims that, she has informed her employer orally that, she is not able to discharge the duties on account of the accident.
23. Now let me let me appreciate both oral and documentary evidences available before the court. It has to be noted that, she claims that she has suffered fracture of L1 and L2 Vertebral and the petitioner has not examined the Doctor before court. She claims that, she was working as Office Assistant to prove that, she has not examined the employer nor produced any other document before the court. On perusal of Wound Certificate it discloses that, she has suffered the fracture of body of L1 and L2 vertebral. The Discharge summary discloses that, she was an inpatient only for 2 days, though she claims that, she took treatment at Apollo hospital, she has not produced any Discharge summary of the said hospital. She has produced the medical bills to the tune of Rs.42,814/-. These bills are in respect of KLE Society's Dr.Kamal Hospital, Ankola. She has produced the Apollo hospital bill and it discloses that, the MRI Scan 17 SCCH-1 MVC No.2652/2014 was done and its cost was about 8,940/- and other additional bills. On verification of the bills, it includes Cab bills amounting to Rs.3,000/-, Rs.13,000/- and Rs.2,950/- and these bills are not proved by examining the person who has issued the receipts. The patient was shifted to Apollo hospital, Bangalore through Taxi. I have already pointed out that, there is no any inpatient bill.
24. For having taken note with regard to the petitioner's employment, though she claims that, she was working as Office Assistant, she has not produced any documentary proof and also that, she has taken the treatment in the hospital only for 2 days at Goa. I have already pointed out that, there is no documentary proof that, she has taken treatment at Apollo hospital and the only document reveals that, she was subjected to MRI and screening. After considering the materials on record and for having taken note of the nature of injury and the conservative treatment she has taken as outpatient and in the absence of doctor's evidence, I am of the opinion that, it is a fit case to award a global compensation of Rs.1,00,000/- including the 18 SCCH-1 MVC No.2652/2014 pain and sufferings, medical expenses, loss of income and other incidental expenses. Hence, I award Rs.1,00,000/- as Global Compensation.
25. Relying upon a judgment of the Apex Court reported in 2013 AIR SCW 5375 (Minu Rout and others Vs. Satya Pradyumna Mohapatra and others), with regard to interest at the rate of 9% p.a. on the compensation amount, in para 13 of the judgment, the Apex Court held that Insurance Company is also liable to pay interest at the rate of 9% p.a. from the date of application till the date of payment and also by following the principles laid down in (2011) 4 SCC 481 : (AIR 2012 SC 100) (Municipal Council of Delhi Vs. Association of Victims of Uphaar Tragedy). In view of the above judgments with regard to the rate of interest and also it is settled law that while awarding interest on the compensation amount, the Court has to take into account the rate of interest of the nationalized bank and the rate of interest at 9% cannot said to be on the higher side. Accordingly, the petitioner is entitled to interest at the rate of 9% p.a. 19 SCCH-1 MVC No.2652/2014
26. As regards the liability to be fixed on the respondents, the RW.2 has produced the Ex.R5 policy and it was in force as on the date of the accident i.e. from 13.03.2013 to 11.03.2014 and the accident was taken place on 30.04.2013. However, it is contended by the respondent No.1 that, the driver of the lorry was not having valid and effective driving license to drive the same. On perusal of the Charge Sheet it is clear that, driver of the lorry was not having valid and effective driving license and the Charge sheet was marked as Ex.P6. While filing the Charge Sheet the police have invoked Sec.3, R/w.181 of MV Act. Hence it is clear that, the driver of the offending lorry was not having valid driving license. The counsel for Respondent No.1 has relied upon the judgment reported in 2013 (3) T.A.C.29(S.C). In the Judgment it is held that, "When it is found that, offending vehicle was driven by driver who was either holding on license or a fake license, then it amounts to violation of terms and conditions of policy and no liability can be fastened upon Insurance Company."
20 SCCH-1 MVC No.2652/2014
27. In view of principles laid down in the judgment and also the respondent has not examined the driver of the offending lorry before the court, though the respondent No.2 appeared through counsel, he did not participate in the proceedings and not made any efforts to show before the court that, the driver was having valid license. Under such circumstances, the liability cannot be fixed on the respondent No.1. The owner has allowed the driver to drive the offending vehicle without valid driving license. Hence the respondent No.2 who is the owner of the offending lorry bearing Reg. No.KA-31/5087 is liable to pay the compensation amount. Hence, this issue is answered accordingly.
28. Issue No.4: In the result, I proceed to pass the following:
ORDER The petition is partly allowed with costs against respondent No.2.
Petition against the respondent Nos.1 & 3 is dismissed.
21 SCCH-1 MVC No.2652/2014 The petitioner is awarded compensation of Rs.1,00,000/- with interest at the rate of 9% per annum from the date of petition till realization.
The respondent 2 is liable to pay the compensation along with interest to the petitioner within 2 months from the date of this order.
Entire compensation amount with interest is ordered to be released to the petitioner.
Advocate's fee is fixed at Rs.1,000/-.
Draw an award accordingly.
(Dictated to the Stenographer, transcribed by her, corrected, signed and then pronounced by me in the open court dated this the 15th day of May 2015) (H.P.SANDESH) Member, Prl. M.A.C.T., Court of Small Causes ,Bangalore.
************* 22 SCCH-1 MVC No.2652/2014 ANNEXURES Witnesses examined on behalf of the petitioners:
PW.1 : Smt.Sharadamma Witnesses examined on behalf of the respondents :
RW-1 : Firozkhan Abdul Sab Kadival RW-2 : Smt.Vijayalakshmi R.
Documents marked on behalf of the petitioners:
Ex.P-1 : FIR Ex.P.2 : Sketch Ex.P-3 : Mahazar Ex.P-4 : IMV report Ex.P-5 : Copy of wound certificate Ex.P-6 : Copy of charge sheet Ex.P-7 : Discharge summary Ex.P-8 : Medical bills (22) Ex.P-9 : Prescriptions (3) Ex.P-10 : MRI report Ex.P-11 : Notarised copy of Aadhaar card
Documents marked on behalf of the respondents:
Ex.R.1 Notarised copy of driving license Ex.R.2 Authorisation letter Ex.R.3 Letter sent to insured Ex.R.4 Another letter dated 29.11.2014 Ex.R.5 Copy of policy (H.P.SANDESH) Member, Prl. M.A.C.T., Court of Small Causes ,Bangalore.