Bangalore District Court
Nagaraju vs Icici Lomb Gen Ins Co Ltd on 5 February, 2025
KABC020275432019
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
BANGALORE. (SCCH-9)
DATED THIS THE 5th DAY OF FEBRUARY 2025
PRESENT:
Smt.Nirmala.M.C,B.Com.,L.L.B
JUDGE & ACJM, COURT OF SMALL CAUSES.
MVC No.6631/2019
PETITIONER: Sri. Nagaraju,
S/o. Late Thirumale Gowda,
Aged about 52 years,
No.150, Binna Mangala,
Arasinakunte,
Nelamangala Taluk,
Bangalore Rural 562 123.
(By Sri.B.R.Srinath - Adv.)
V/s.
RESPONDENTS: 1. ICICI Lombard General
Insurance Co., Ltd.,
No.121, 9th Floor,
"The Estate Dickenson Road,
M.G.Road,
Bangalore - 560 001. (Insurer)
SCCH-9 2 MVC.No.6631/2019
Policy No.3005/2011525059/00/
0000001929.
Valid from 04.04.2018 to
03.04.2019.
Motor Cycle No.KA-52-R-9237
(By Sri.S.G.Reddeppa gowda - Adv.)
2. G. Venkatesh,
S/o. Eraiah,
No.12, Alanayakana Halli,
Govenahalli, Nelamangala Taluk,
Bangalore Rural - 562 123.
(Insured)
(Exparte)
*******
JUDGMENT
This petition is filed by the petitioner U/s.166 of Motor Vehicle Act, claiming compensation of Rs.5,00,000/- with interest from the date of petition till its realization for the injuries sustained in a Road Traffic Accident.
2. The brief case of the petitioner is as under:-
On 10.08.2019 at about 2.30 pm., when the petitioner was riding his motor cycle bearing reg.No.KA-52-K-3343 SCCH-9 3 MVC.No.6631/2019 towards Sondekoppa By Pass on Tumkur - Bangalore NH 48 service road, opposite to Mathrushree Hospital carefully and cautiously. At that time, all of a sudden, another Motor Cycle bearing reg.No.KA-52-R-9237 being driven by its rider, in a rash and negligent manner, with high speed, came from opposite direction and dashed against the petitioner's motor cycle. As a result, petitioner fell down and sustained grievous injuries on left hand, left leg and other part of the body. Immediately after the accident, he was shifted to V.P.Magnus Hospital, Nelamangala wherein he took treatment as an inpatient from 10.08.2019 to 11.08.2019 and underwent surgery. Petitioner has spent Rs.80,000/- towards treatment, medicines, conveyance and nourishment charges. At the time of accident, petitioner was working as BMTC Driver and earning Rs.35,000/- per month. Therefore petitioner constrained to file a petition and sought for awarding compensation.SCCH-9 4 MVC.No.6631/2019
3. After service of summons, the respondent No.2 has not appeared before the court hence, he has been placed exparte. Respondent No.1 has appeared through his counsel and filed the objections to main petition.
Respondent No.1 - Insurance Company filed its objection that the denying the petition averments. It has contended that, the petition is not maintainable either under law or on facts. It has denied the issuance of policy in respect of the Honda Active bearing reg.No.KA-52-R-9237, if at all issued policy, the liability is limited to the terms and conditions of the policy of insurance issued which is in accordance with the provisions of MV Act. Further contended that, the rider of the motor cycle drove the same without having valid and effective driving licence and also the owner of the said motor cycle willfully entrusted the motor cycle knowing fully well that the rider was not having valid and effective driving to ride the same and also it has SCCH-9 5 MVC.No.6631/2019 mentioned in the charge sheet under Section 181 of MV Act. Respondent denied the nature of accident, involvement of the offending motorcycle, age, income, avocation, amount spent towards treatment etc., Further respondent denied the involvement of the alleged offending motor cycle which implanted in the alleged accident hence, there was delay in lodging the complaint. Further it is the contention of the respondent that, the alleged accident occurred due to sole negligent act of petitioner himself. The compensation claimed is highly exorbitant. For all these, it has prayed for dismissal of the petition.
4. On the basis of above pleadings, my predecessor in office has framed the following issues:
ISSUES
1. Whether the petitioner proves that, he has sustained injuries on account of Road Traffic Accident took place near Tumakur
- Bangalore NH - 48 Service Road, Opp Mathrushree Hospital, Sondekoppa Circle, Nelamangala Town, Bengaluru, due to SCCH-9 6 MVC.No.6631/2019 rash and negligent driving of the driver of Motor Cycle bearing reg.No.Ka-52-R-9237 dated 10.08.2019 at bout 2.30 pm., as alleged in the petition ?
2. Whether the petitioner is entitled for compensation? If so, what is the quantum? from whom?
3. What Order or Award?
5. In order to prove his case, the petitioner himself examined as PW.1 and got marked documents at Ex.P1 to Ex.P10 and closed his side evidence. On behalf of respondent No.1 its Legal Manager has examined as RW.1 and got marked one document as Ex.R.1 and closed its side evidence.
6. Heard the arguments of both side.
The learned counsel for respondent No.1 has submitted citation reported in:
1) MFA No.3297/2019 (Smt.Adilakshmamma & others Vs. ICICI Lombard General Insurance Co., Ltd.,) SCCH-9 7 MVC.No.6631/2019
7. My answer to the above issues are as under:-
Issue No.1 : In the Affirmative;
Issue No.2 : Partly in the Affirmative; Issue No.3 : As per final order for the following:
-:R E A S O N S:-
8. Issue No.1:- In order to prove the actionable negligence, the petitioner has got examined himself as PW.1 and got marked 10 documents as Ex-P1 to Ex-P10. He has reiterated the averments of the petition in his affidavit filed for his examination- in-chief.
9. It is relevant to note that the respondent No.1 has specifically contended that rider of the insured vehicle was not having valid and effective driving licence to rider the same and at chargesheet filed under Section 181 of MV Act. Therefore, the burden is on the petitioner to prove that the alleged accident occurred due to the negligence of rider of Offending motor cycle.
SCCH-9 8 MVC.No.6631/2019
10. PW.1 has deposed that, on 10.08.2019 at about 2.30 pm., when he was riding his motor cycle bearing reg.No.KA-52-K-3343 towards Sondekoppa By Pass on Tumkur - Bangalore NH 48 service road, opposite to Mathrushree Hospital carefully and cautiously. At that time, all of a sudden, another Motor Cycle bearing reg.No.KA-52- R-9237 being driven by its rider, in a rash and negligent manner, with high speed, came from opposite direction and dashed against his motor cycle. As a result, he fell down and sustained grievous injuries.
11. PW.1 in support of his version, he has produced the certified copy of FIR, complaint, spot mahazar, IMV reports, charge sheet, wound certificate, discharge summary, Aadhar card and medical bills which are marked at Ex.P.1 to 10.
12. I have perused Ex.P.1 to 6. From these documents it is clear that the accident took place on SCCH-9 9 MVC.No.6631/2019 10.08.2019 at about 2.30 p.m. and the FIR at Ex.P.1 in crime No.0363/2019 came to be registered on 03.09.2019 at around 12.30, at Nelamangala Police Station for the offences punishable u/s 279, 337 of IPC. Ex.P.2 - complaint was lodged by petitioner himself on 03.09.2019 whereas accident occurred on 10.08.2019, Ex.P.3 - spot panchanama reveals the scene of offence. Ex.P.4 - IMV report reveals the condition of the vehicle bearing reg.No.KA-52-K-3343 as left side rear view mirror and rear left side indicator damaged. It also reveals I.O opined that the accident was not due to any mechanical defects of the said motor vehicle. Ex.P.5 - IMV report reveals the condition of the offending vehicle bearing reg.No.KA-52-R-9237 as no damages noticed at the time of inspection. Further the records reveal that police conducted investigation and filed charge-sheet at Ex.P.6 against the rider of offending Motor Cycle bearing reg.No.KA-52-R-9237 for the offences punishable u/s 279, 338, 181, 187 of IPC. SCCH-9 10 MVC.No.6631/2019
13. The learned counsel for the respondent No.1 has examined its legal Manager as RW.1 and got marked Ex.R.1 - Insurance policy. He has contended that, owner of the offending motor cycle entrusted the said vehicle knowingfully well that the rider was not having valid and effective driving licence to ride the motor cycle, hence, it is a clear violation of the policy terms and conditions. On perusal of Ex.P.6 - charge sheet discloses that charges for the offence punishable under Section 181 on the rider of the offending motor cycle. But the respondent No.1 has not made any legal effort to prove that rider was not holding valid and effective driving licence. Further respondent has not elicited anything from the mouth of PW-1 to disbelieve his version. There is nothing on record to show that the charge-sheet filed by the police is defective or collusive. Moreover, it is settled law that the term "rashness and negligence" has to be construed lightly while deciding a SCCH-9 11 MVC.No.6631/2019 petition for claim of compensation under the MV Act as compare to the word "rashness and negligence" as finds mention in the Indian Penal Code. This is because the provisions of M.V.Act dealing with compensation are benevolent legislation and not a penal one. Therefore, on over all appreciation of evidence, I am of the opinion that the accident occurred due to the sole negligence of rider of the offending motor cycle which belongs to the respondent No.2. Accordingly, I answer issue No.1 in the Affirmative.
14. Issue No.2: This petition is filed for seeking compensation of Rs.5,00,000/- for the injuries sustained by the petitioner in the RTA. As already discussed above the petitioner has proved that the accident was occurred due to the negligence on the part of rider of offending motor cycle. As per Ex.P7/wound certificate the petitioner sustained fracture middle phalynk of left index finger with subtotal amputation with compound fracture dislocation of left 3 rd toe SCCH-9 12 MVC.No.6631/2019 and doctor opined injury is grievous in nature.
15. PW.1 deposed that, immediately after the accident, he was shifted to V.P.Magnus Hospital for treatment. X-rays confirms fracture medial phalynx of left index with subtotal amputation with compound fracture dislocation of left 3rd toe. He underwent closed reduction internal fixation with K-wire fixation with reimplantation of 3rd toe with K-wire. He was in the hospital as an inpatient from 10.08.209 to 11.08.2019 and spent Rs.2,50,000/- towards treatment, medicines, conveyance and nourishment charges. On perusal of document, he has not examined the doctor and also not produced any disability certificate to show that he is having physical disability. Therefore, in view of non production of disability certificate and non examining of doctor regarding disability, it cannot be considered as the petitioner is having physical disability due to the accidental injuries. Petitioner has produced 23 medical bills of SCCH-9 13 MVC.No.6631/2019 Rs.24,087/- marked at Ex.P.10. Respondent argued that, medical bills of Rs.24,087/- has reimbursed from his Department. Petitioner has deposed that, he has requested to his department to Rs.2,50,000/- towards medical expenses by submitting an application, but no amount has remitted. Rather than the contention respondent has not taken any defense to disprove the medical bills amounting to Rs.24,087/-.
16. PW.1 has deposed that, he was working as a BMTC Driver and earning Rs.35,000/- per month. Due to accident, he was unable to do the said job for 2 months. So he lost that leave. During cross examination he has deposed that he will produce the document to prove the same. But he has not produced any single document to prove loss of income.
17. It is the contention of the respondent No.1 that, the Honda Active bearing No.KA-52-R-9237, knowing SCCH-9 14 MVC.No.6631/2019 fully well that the rider was not having valid and effective driving licence and also mentioned in the charge sheet under Section 181 of IMV Act, since the rider was not having any valid and effective driving licence to ride the motor cycle and thereby it is clear violation of the terms and condition of the policy and as so Motor Vehicle Act. In addition to the same respondent No.1 has relied on citation reported in MFA No.3297/2019 (MV-D) (Smt.Adilakshmamma and others Vs.The Manger, ICICI Lombard General Insurance Co., Ltd.,) to fasten the liability to Owner. On perusal of said citation, notice has been sent to the owner of the offending vehicle under Section 133 of the M.V.Act to produce the driving licence and other relevant documents. But at the present case on hand, rather than contention and rather than production of Ex.R.1 - insurance policy, he has not chose to contest the matter properly by sending any notice to the owner of the offending vehicle. During cross examination it SCCH-9 15 MVC.No.6631/2019 has came to know that, he may not sent any notice to the owner of the offending vehicle. Therefore, the said citation is not helpful to the respondent No.1. Hence, by considering the injuries sustained and treatment taken by him, it is just and proper to award the Global Compensation including medical expenses. Hence, I am of the opinion that petitioner is entitled for Global Compensation of Rs.50,000/-.
18. Regarding Liability: As discussed at issue No.1 regarding the negligence of rider of the offending motor cycle bearing reg.No.KA-52-R-9237. Therefore, the respondent No.1 and 2 being insurer and owner of the offending vehicle are jointly and severally liable to pay the compensation to the petitioner. As the policy was in force therefore, the respondent No.1 being the insurer of offending vehicle is primarily liable to pay the compensation of Rs.50,000/- with interest @ 6% p.a. from the date of petition till its realization. Accordingly, I answered Issue SCCH-9 16 MVC.No.6631/2019 No.2 Partly in the Affirmative.
19. Issue No.3: In view of the findings given on the above said issues, the tribunal proceed to pass the following:
ORDER The claim petition filed by the petitioner Under Section 166 of Motor Vehicles Act is hereby partly allowed with cost.
The petitioner is entitled for total compensation amount of Rs.50,000/- (Rupees Fifty thousand Only) with interest @ 6% p.a., from the date of petition till realization.
The respondent No.1 & 2 are jointly and severally liable to pay the compensation to the petitioner. The respondent No.1 being the insurer is primarily liable to deposit the said compensation amount within a period of one month from the date of award.
In the event of deposit of the said compensation, entire amount shall be released SCCH-9 17 MVC.No.6631/2019 in favour of petitioner on proper identification and verification through e-payment.
Advocate fee is fixed at ₹.1,000/-. Draw up award accordingly.
(Dictated to the stenographer directly on computer, corrected and pronounced by me in open court on this 5th day of February, 2025.) (Nirmala.M.C) Court of Small Causes, Judge & ACJM, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER:
PW.1 Sri. Nagaraju
DOCUMENTS MARKED FOR PETITIONER:
Ex.P1 FIR
Ex.P2 Complaint
Ex.P3 Spot panchanama
Ex.P4&5 IMV reports
Ex.P6 Chargesheet
SCCH-9 18 MVC.No.6631/2019
Ex.P7 Wound certificate
Ex.P8 Discharge summary
Ex.P9 Aadhar card
Ex.P.10 23 Medical bills
LIST OF WITNESSES ON BEHALF OF RESPONDENTS:
RW.1 Sri. Vinay Prasad.G
LIST OF DOCUMENTS ON BEHALF OF
RESPONDENTS:
Ex.R.1 Insurance policy
(Nirmala.M.C)
Court of Small Causes,
Judge & ACJM, Bengaluru.