Partly allowed

Smt. R. Suchitra v. R.T. Shivu

Karnataka HC1 Dec 2020MFA/1619/2011

Case brief

AI extract

What is this about?

The High Court allowed part of the appeal against the dismissal of a motor accident compensation claim. It set aside the Tribunal's findings, finding the appallent credible despite minor procedural lapses. Compensation of Rs. 2,45,000 was awarded to the appellant, liable to be paid by the vehicle owner as the insurer was found to have no valid policy.

What did the court decide?

Impugned judgment and award set aside. Compensation of Rs. 2,45,000 with interest at 6% per annum awarded to the claimant. Owner (Respondent No.1) to pay within one month.

Smt. R. Suchitra Vs R.T. Shivu — Motor Accident Claims | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF DECEMBER 2020

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BEFORE

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THE HON’BLE MR. JUSTICE NATARAJ RANGASWAMY

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MISCELLANEOUS FIRST APPEAL NO.1619 OF 2011 (MV)

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BETWEEN:

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SMT. R. SUCHITRA W/O M.A. SURESHBABU, AGED ABOUT 33 YEARS, R/O DODDY BEEDI, MADDUR TOWN, MANDYA DISTRICT.

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... APPELLANT

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(BY SMT. ASHA B.L., ADVOCATE FOR SRI. G.M. ANANDA, ADVOCATE)

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AND:

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R.T. SHIVU S/O THAMMAIAH, AGED MAJOR, R/O RAJEGOWDANADODDI, MADDUR TALUK, MANDYA DISTRICT.

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THE MANAGER, RELIANCE GEN. INSURANCE CO. LTD., L-36/D, OPP: KSRTC BUS STAND, BANGALORE-NILIGIRI ROAD, MYSORE-1.

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M.A. SURESH BABU, M.L. APPAJI NO.3/157, DODDI BEEDHI, MADDUR TOWN, MADDUR.

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… RESPONDENTS

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(BY SRI. GIRIDHAR, ADVOCATE FOR RESPONDENT NO.1; SRI. H.S.LINGARAJ, ADVOCATE FOR RESPONDENT NO.2, NOTICE TO RESPONDENT NO.3 IS SERVED BUT UNREPRESENTED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 19.04.2010 PASSED IN MVC NO.40/2009 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), AND MACT., MADDUR, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT THROUGH VIDEO CONFERENCE DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is filed by the claimant challenging the Judgment and award passed by the learned Civil Judge (Sr. Dn.), Maddur, and Motor Accident Claims Tribunal (hereinafter referred to as ‘the Tribunal’) in MVC No.40/2009 by which the Tribunal dismissed the claim petition filed by the claimant under Section 166 of the Motor Vehicles Act, 1988.

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The appellant will henceforth be referred to as

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the ‘claimant’. Respondent Nos.1 and 2 will henceforth be referred to as ‘owner’ and ‘insurer’ respectively of the offending vehicle involved in the accident. Respondent No.3 herein is the husband of the appellant - claimant.

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The claim petition discloses that on 24.01.2009

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at about 10:15 p.m., the claimant was riding pillion on a Yamaha motorcycle bearing registration No.KA-02-EF-3045 from Channegowdanadoddi towards Maddur. The motor bike was ridden by her husband on the left side of Mysore – Bengaluru main road and when they reached T.B. circle, another motorcycle bearing registration No.KA-11-S-4008 (henceforth referred to as the ‘offending vehicle’) ridden by its rider in a rash and negligent manner in the wrong direction and dashed against the motorcycle on which the claimant was riding. As a result, both the claimant and her husband fell down and the claimant suffered injuries on her left leg. She was shifted to Government hospital, Maddur, and thereafter, to B.G.S. Apollo hospital where it

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was diagnosed that she had suffered fracture of mid shaft of left femur. She underwent a surgery on 26.01.2009 for fixation of implants. A complaint was lodged by the husband of the claimant with the jurisdictional Police on 27.01.2009 accusing the rider of the offending vehicle of riding the motorcycle rashly and negligently and causing the accident. The Police after investigation, had filed a charge sheet as per Ex.P5. It is contended that the claimant was running a play home at Maddur town and was earning Rs.10,000/- per month. As a result of the injuries sustained in the accident, the claimant was not in a position to look after the play home as she could not tend to the children in the play home. Therefore, she filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation of Rs.7,50,000/-.

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The owner of the offending vehicle though served with the notice of the claim petition did not appear and therefore, he was placed ex parte.

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The insurer of the offending vehicle contested

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the claim petition and denied the averments of the claim petition. It also specifically contended that the offending vehicle was not covered by any policy of insurance issued by it and the rider of the offending vehicle was not having valid and effective driving licence as on the date of the accident and therefore, it was not liable to pay the compensation. It contended that if the vehicle was validly insured, then it was liable to pay the compensation only as per the terms and conditions of the policy. The insurer alternatively contended that the accident occurred due to the rash and negligent riding of the motorcycle by the husband of the claimant and that the claimant had not impleaded the owner and insurer of the motorcycle that was ridden by the husband of the claimant.

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Later, respondent No.3, who was the husband

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of the claimant, was impleaded.

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Based on these contentions, the claim petition

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was set down for trial. The claimant was examined as

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PW.1, who marked Exs.P1 to P14 and the Doctor, who treated the claimant was examined as PW.2 / CW.1 who marked Exs.C1 to C5. Neither the insurer nor the owner of the offending vehicle adduced evidence or marked any document.

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The Tribunal disbelieved the accident on

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primarily four grounds:

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(1) That in the affidavit filed by the claimant in lieu of chief examination, she had stated in her chief-examination that she was initially treated at Maddur Government hospital and thereafter, shifted to Apollo Hospital, Mysore but had inserted the word ‘Mandya hospital’ later. Therefore, the Tribunal held that in the absence of any material to show that the claimant had availed treatment at Mandya hospital, case presented by the claimant was doubtful.

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(2) Though the accident occurred on

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24.01.2009, the husband of the claimant lodged a complaint on 27.01.2009 at about 1:15 p.m.

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(3) The medical records in the form of Ex.C1 indicated that the claimant was admitted at Apollo BGS hospital on 25.01.2009 and in the admission slip, “purpose of admission” was shown “RTA with ?”. Therefore, the Tribunal held that the claimant was not aware about the particulars of the offending vehicle. The Tribunal also noticed the case sheet from Apollo BGS hospital where a document styled as “History and Finding on Admission”, it is narrated that the claimant had pain and swelling in the left thigh and right knee and that she was initially treated in Mandya Government

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hospital and then referred for further management. The Tribunal noticed that the claimant was not treated at Government hospital, Mandya while this was in variance with the complaint lodged by the husband of the claimant before the Police wherein he claimed that the claimant was taken to the Government hospital at Maddur.

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(4) That the place of occurrence of the accident was a one way road and that there was no chance of any vehicle coming from the opposite direction; that Ex.P3, which was the IMV report showed that there was no damage to both the vehicles. The Tribunal felt that if there was a head on collision between two vehicles, then there must have been

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some visible damage to either of the vehicles.

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Having regard to the above, the Tribunal dismissed the claim petition.

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Feeling aggrieved by the aforesaid Judgment and Award passed by the Tribunal, the claimant has filed this appeal.

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The claimant would contend that on 24.01.2009, when the accident occurred it was 10:16 p.m. and that she was taken to Maddur Government hospital in a private vehicle where she was administered first aid and

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then taken to District hospital, Mandya, on 24.01.2009 itself. However, she was shifted to Apollo BGS hospital, Mysuru on 25.01.2009 at 2:10 a.m. as per Ex.C1. It is relevant to note that in the records of the Apollo BGS hospital, as per Ex.P10, which is the discharge summary, it is shown that the claimant was admitted at Apollo BGS hospital on 25.01.2009 and the history of illness shown

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therein indicated that she was injured in a road traffic accident, which involved collision between two wheelers on 24.01.2009 at around 10:15 p.m. The husband of the claimant who lodged the complaint on 27.01.2009 indicated in the complaint that there was a collision between two wheelers involving the offending vehicle in question and that the rider of the offending vehicle had assured to settle the dispute amicably and since the driver of the offending vehicle did not settle the dispute even after two days, the husband of the claimant had lodged the complaint.

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It is relevant to note that the owner of the offending vehicle though served with notice of the claim petition did not contest the proceedings before the Tribunal. Before this Court too, when learned counsel for respondent No.1 was questioned as to whether the offending vehicle was covered with a policy of insurance or not, learned counsel submitted that the offending vehicle was not covered by a policy of insurance. It is, therefore,

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understandable that the owner of the offending vehicle could have assured the husband of the claimant that he would settle the dispute amicably. This could possibly be the reason for the delay in lodging the complaint. It is relevant to note that at the earliest point in time i.e., on 25.01.2009, the claimant had indicated that the injuries were sustained in a road traffic accident. Therefore, the rejection of the claim petition on the ground that the complaint was registered after two days from the date of the accident is in itself not sufficient to disbelieve the case of the claimant.

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In so far as the insertion of the words “ªÀÄAqÀå D¸ÀàvÉæ £ÀAvÀgÀ”, in the affidavit of PW.1 in lieu of chief examination, the insertion does not seem to be subsequent to filing of the affidavit before the Tribunal. It is a matter of common sense that Mandya lies between Maddur and Mysuru and when the claimant was shifted from Maddur to Mysuru, she must have been taken to the hospital at Mandya and thereafter, to Apollo BGS hospital in Mysore.

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The Tribunal could not have made a mountain out of a mole hill and could not have rejected the claim based on such innocuous statement.

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It is no doubt true that the claimant had not placed on record any material to show that she had availed treatment at Maddur or at Mandya, but the wound certificate as per Ex.P4 - wound certificate indicates that she was first examined at Maddur. Therefore, the assumption of the Trial Court that the claimant could not have availed treatment at Mandya is absolutely nonsensical and calls for interference by this Court.

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It is apt to note that the claim petitions under Section 166 of the Motor Vehicles Act, 1988 are to be determined on preponderance of probabilities and not proof beyond doubt. In the present case, if respondent No.1 has not chosen to contest the proceedings despite being put on notice and if the documents indicate involvement of the offending vehicle, the Tribunal could not have detained itself and must not have ventured on an

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endless voyage to find out whether the claim petition filed by the claimant is genuine or not. Yet another factor to be considered is if the claimant had any intention of fixing a vehicle for the purpose of claiming compensation, he would have done it more meticulously by framing a vehicle, which was covered by insurance policy so that the recovery of compensation would be easy. In the present case, there is a natural sequence of events and there are corresponding documents which indicate that the claimant was indeed treated at Apollo BGS hospital, Mysuru on 25.01.2009. Therefore, the claimant has proved that the offending vehicle was responsible for the accident.

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In so far as the other ground on which the claim petition is rejected, namely, that there could be no vehicle passing on a one-way road from the opposite direction, it is now common knowledge that on BengaluruMysuru road, there is no strict following of the traffic rules. It is not uncommon that vehicles move on both sides in a one way. The sketch placed on record depicts this. Thus,

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the Tribunal has turned a blind eye to the realities and had tried to decide the case in an utopian state of affairs. The impugned Judgment and Award of the Tribunal is, therefore, liable to be set aside.

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In so far as the claim for compensation is concerned, the claimant has brought on record the wound certificate in the form of Ex.P4 and the discharge summary (Ex.P10) from Apollo BGS hospital which indicates that the claimant had suffered a fracture to mid shaft of the left femur and other injuries. PW.2, who is the Doctor, deposed before the Tribunal that the claimant was an inpatient at BGS Apollo hospital and had suffered permanent physical disability at 30% in her left lower limb and that she had to undergo one more surgery for removal of nails. This evidence of PW.2 that the claimant had to undergo further surgery was not disputed by the owner or insurer of the offending vehicle.

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Hence, it is appropriate that disability suffered by the claimant is considered at 10% to the whole body.

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The accident occurred in the year 2009. The claimant had not placed on record any material in proof of her earning a sum of Rs.10,000/- per month. However, this Court has accepted a sum of Rs.5,000/- as the notional income of persons who died or are injured in road accidents in the year 2009 and it would be appropriate to consider the same for the purpose of determining the notional income of the claimant. Considering the above, the claimant is entitled to the following compensation:

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Heads under which compensation is awarded	Amount (in Rupees)
Towardspain and suffering	25,000/-
Towards loss of income due to disability	96,000/-
(Rs.5000 x 12 x 16 x 10%)
Loss of income during the period of treatment of 3 months	15,000/-
Medical expenses	69,000/-
Future medical expenses	15,000/-
Attendant charges, conveyance, nourishment,food charges	15,000/-
Loss of amenities	10,000/-
TOTAL	2,45,000/-

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The impugned judgment and award passed by

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the Tribunal dismissing the claim petition is liable to be set aside. The claimant is entitled to compensation of Rs.2,45,000/-.

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In so far as the liability to pay the compensation is concerned, learned counsel for respondent No.1 herein accepted that as on the date of the accident, the offending vehicle was not covered by a policy of insurance. In the circumstances, the insurer of the offending vehicle is exonerated from the liability to pay the compensation. The owner of the offending vehicle - respondent No.1 herein, is therefore, liable to pay the compensation.

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In view of the above, the appeal is allowed in part. The impugned Judgment and Award passed by the Tribunal is set aside and a sum of Rs.2,45,000/- is awarded as compensation to the claimant. The owner of offending vehicle / respondent No.1 herein shall pay the compensation awarded by this Court along with interest at

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6% per annum from the date of the claim petition till the date of realization to the claimant. Respondent No.1 shall deposit the compensation with interest as stated above within one month from the date of receipt of certified copy of this Judgment.

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Sd/JUDGE

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sma

Smt. R. Suchitra v. R.T. Shivu

Case brief

What is this about?

What did the court decide?

Smt. R. Suchitra v. R.T. Shivu

Case brief

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