Bangalore District Court
Heena Kouser.P @ Heena Kesar vs The Regional Manager on 31 May, 2017
IN THE COURT OF III ADDL. SENIOR CIVIL JUDGE AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, BENGALURU. (SCCH-18)
Dated this 31st day of May 2017.
Present: SRI.VEERANNA SOMASEKHARA
B.Com, LL.B.,
III ADDL. SENIOR CIVIL JUDGE.
COURT OF SMALL CAUSES,
BANGALORE.
M.V.C.No.2985/2016
PETITIONERS: 1.Heena Kouser.P @ Heena Kesar
W/o.Nawaz Baig @ Zawaz Beg,
Aged 24 years,
2. Nawaz Baig @ Zawaz Beg
S/o.Fayaz Baig,
Aged 28 years,
Both are presently R/at. 7th ward,
Maramma Street, Near Water tank,
Kortagere Town,
Kortagere,
Tumkur-572 129.
(By Pleader Sri.RSK)
/Vs./
RESPONDENTS: 1. The Regional Manager,
The Sriram Gen. Insurance Co.Ltd.,
S-5, 2nd Floor,
MVC.No.2985/2016
SCCH-18
Monarch Chambers,
Infantry Road,
Bangalore-560001.
(By pleader Sri.KP)
2. Sri.K.Maruthi,
S/o.K.Thimmappa,
No.1-108. B.C.Colony,
Ramapuram Village,
Kambadur Mandali,
Anantapur District,
Anantapur-515765
ANDHRA PRADESH.
(Exparte)
J U D G M E N T
The petitioners have filed this claim petition against the respondents U/S. 166 of M.V. Act for seeking compensation of Rs.10,00,000/- for the death of their daughter viz.Ruakaya Begum D/o.Nawaz Baig in a road traffic accident.
2. The brief contents of petition are as under:
On 12-4-2016 at about 6.00 P.M. Ruakaya Begum was playing on the foot path in front of her house, near MVC.No.2985/2016 SCCH-18 Sithakallupalya, Madhugiri -Tumkur Road, Kora Hobli, Tumkur District, at that time, the driver of the goods vehicle bearing registration No.AP-02-TC-0867 drive the same in a rash and negligent manner and dashed to the pedestrian/Ruakaya Begum.
As a result of the said accident, Ruakaya Begum fell down on the road and sustained grievous injuries. Thereafter, her parents and the public gathered at the spot have shifted the injured to government hospital, Tumkur, wherein, she has taken first aid and thereafter, she was shifted to T.S.H.hospital, Tumkur, wherein, she succumbed to the said injuries. After the post mortem, the petitioners have received the dead body and conducted the funeral and obsequies ceremonies by spending huge amount.
3. The contention of the petitioners is that, deceased Ruakaya Begum was hale and healthy at the time of accident, aged about 6 years and studying in LKG. Further due to MVC.No.2985/2016 SCCH-18 unexpected death of their daughter, they have suffered lot and lost their lovely daughter and they have suffered mental shock.
4. The contention of the petitioners is that ,the respondent No.1 and 2 are the insurer and the owner of the alleged goods vehicle and the policy was in force as on the date of accident. Further the contention of the petitioners is that, the accident has occurred due to rash and negligent driving of the driver of the alleged vehicle and as such, the respondents are jointly and severally liable to pay the compensation to the petitioners. Contending the above facts, they prays to grant for compensation with interest and cost.
5. In response to the petition notice, the respondent No.1 has appeared before the court through his counsel and filed the objection statement. The respondent No.2 has not appeared before the court. Accordingly, he was placed exparte.
MVC.No.2985/2016 SCCH-18
6. The brief contents of objection statement of respondent no.1 are as under:
The respondent No.1 has admitted the issuance of policy to the alleged vehicle and the liability if any is subject to the terms and conditions mentioned in the policy. Further the respondent No.1 has contended that, the petitioners have not approached this court with clean hands as they have twisted the facts with an intention to get compensation from the Insurance company. Further he contended that, the driver of the alleged vehicle was not having valid and effective driving licence to drive the vehicle and as such, the owner of the vehicle has violated the policy conditions. Hence, the respondent No.1 is not liable to indemnifying the respondent No.2. Further the respondent No.1 has denied the contents of column No.1 to 4, 8 to 19 and 21 of the petition in toto. Further the respondent No.1 has denied the age and status of the deceased and relationship of the petitioners with the deceased. Further he contended that, the MVC.No.2985/2016 SCCH-18 owner of the alleged vehicle and the concerned police have not complied the mandatory provisions of Sec. 134(c) and 158(6) of MV Act. Contending the above facts, he prays to dismiss the petition as against him with cost.
7. On the basis of above pleadings, the following issues were framed:
1. Whether the petitioners prove that Kum. Ruakaya Begum D/o Nawaz Baig @ Zawaz Beg died due to injuries sustained by her in a motor vehicle accident that was taken place on,12.04.2016 at about 06.00 .P.M., near Sithakallu Palya on Madhugiri - Tumkur Road, Kora Hobali, involving TATA GOODS VEHICLE bearing Reg.No. AP-
02-TC-0867 belonging to Respondent No.2 and the said vehicle insured with 1st respondent?
2. Whether the petitioners prove that the accident has mainly occurred due to the rash and negligent driving of the driver of the said vehicle?
3. Whether the petitioners prove that they are the only legal heirs of the deceased?
MVC.No.2985/2016 SCCH-18
4.Whether the petitioners are entitled for compensation as prayed? if so, at what rate and from whom?
5. What order or award?
8. In order to prove their case, the petitioner No.1 has examined herself as PW-1 and got marked the documents as Ex-P-1 to P-11.
9. To disprove the case of the petitioners and to prove the defence, the respondent No.1-Insurance company has examined the superintendent, RTO Office, Madhugiri as RW-1 and examined its official as RW-2 and got marked the documents as Ex.R.1 to 3 respectively.
10. Heard the arguments on both the sides.
11. My findings on the aforesaid issues are as follows:
Issue No.1 to 3: In the Affirmative Issue No.4: In the partly affirmative As against the respondent No.2 Issue No.5: As per final order For the following:
MVC.No.2985/2016 SCCH-18 REASONS
12. Issue No.1 & 2 : These issues are interconnected to each other. Hence in order to avoid repetition of facts, they are taken together for common consideration.
13. During the course of arguments, the learned counsel for the petitioners argued by reiterating the contents of petition and also evidence put forth by the PW-1. Further he argued that, to prove the rash and negligent driving of the driver of the alleged vehicle, the petitioners have produced the copy of police investigation papers and on perusal of contents of those documents, it reveals that, the alleged accident has occurred due to rash and negligent driving of the driver of the alleged vehicle. Further he argued that, the defence of the respondent No.1 is that, on the alleged date of accident, the driver of the alleged vehicle was not having valid and effective driving licence to drive the vehicle. To prove the said fact, MVC.No.2985/2016 SCCH-18 though, the respondent No.1 has examined the official of RTO Office, Madhugiri as RW-1, but on perusal of evidence of RW-1, it reveals that, the driver of the alleged vehicle is having valid and effective driving licence to drive the alleged vehicle as on the date of accident. Further he argued that, the petitioners have proved their case as contended in the petition by producing oral and documentary evidence. Accordingly, he prays to allow the petition.
14. In support of his arguments, the learned counsel for the petitioners has relied upon the following citations:
1. 2016 ACJ 1808 (National Insurance Co.Ltd., Vs. Gangadhar and another)
2. 2015 ACJ 1508 (Bajaj Allianz Gen.Ins.Co.Ltd., Vs. Sangita and others)
3. 2015 ACJ 1594 (Divisional Manager, New India Assurance Co.Ltd., Vs. Periyappa (deceased) by LRs and others)
4. 2015 ACJ 2663 ( MahendraRai Vs. United India Ins.Co.Ltd., and another)
5. 2015 ACJ 852 (A.Sandhya Sudhakaran and others Vs. Oriental Ins.Co.Ltd., and another) MVC.No.2985/2016 SCCH-18
6. MFA.14889/2007 C/w MFA.12221/2007 (National Ins.Co.Ltd., Vs. Smt.G.C.Ramadevi and others)
7. MFA.1631/2004 C/w MFA.CROB.179/2009 (Mrs.Smitha R.Nair and another Vs. Sri.Shiva Shankar and another)
8. MFA.9924/2007 C/w MFA.6252/2007 (United India Ins.Co.Ltd., Vs. N.Prakash and another)
9. Civil Appeal No.4834/2013 (S.Iyyapan Vs. M/s.United India Ins.Co.Ltd., and another)
10. 2013 ACJ 1944 (S.Iyyapan Vs. M/s.United India Ins.Co.Ltd., and another)
11. 2008 ACJ 721 (National Ins.Co.Ltd., Vs. Annappa Irappa Nesaria and others)
12. 2014 ACJ 2873 (Kulwant Singh and others Vs. Oriental Ins.Co.Ltd., )
13. 2013 ACJ 2594 (Kishan Gopal and another Vs. Lala and others)
14. 2015 ACJ 1728 (Shashi Bala Vs. Sudarshan Kumar and others)
15. 2015 ACJ 2611 (Ram Gopal Vs. Sahib Singh and another).
15. Per contra, the learned counsel for the respondent No.1 argued by reiterating the contents of objection statement filed by the respondent No.1 and also evidence put forth by RW-1 and
2. Further he argued that, on perusal of copy of police MVC.No.2985/2016 SCCH-18 investigation papers produced by the petitioners, itself shows that, the alleged accident has occurred due to negligence on the part of the deceased, but not on the part of the driver of the alleged vehicle. Further he argued that, the specific contention of the respondent No.1 is that, on the alleged date of accident, the driver of the alleged vehicle was not having valid and effective driving licence to drive the alleged vehicle. To prove the said fact, the respondent No.1 has examined the official of RTO Office, Madhugiri as RW-1 and on perusal of evidence of RW-1 coupled with documents produced by him, it shows that, on the alleged date of accident, the driver of the alleged vehicle was not having valid and effective driving licence to drive the vehicle. Hence, the respondent No.1-Insurance company is not liable to indemnify the respondent No.2. Further he argued that, the petitioners have failed to prove their case as contended in the petition by producing proper documents. Contending the MVC.No.2985/2016 SCCH-18 above facts, he prays to dismiss the petition as against the respondent No.1 with cost.
16. In support of the argument, the learned counsel for the respondent No.1 has relied upon the following citations:
1. 2009 ACJ 1411 (Oriental Ins.Co.Ltd., Vs. Angad Kol and others)
2. 2008 ACJ 2161 (New India Assurance Co.Ltd., Vs. Roshanben Rahemansha Fakir and another)
3. AIR 2000 Himachal Pradesh 91 (New India Assurance Co.Ltd., Vs. Suraj Parkash and others)
4. 2015 ACJ 2423 (National Ins.Co.Ltd., Vs.Nagamma and others)
5. 2015 ACJ 2306 (Yashodamma and others Vs. RameshaG. and another)
6. MFA.1120/2014 (Dadapeer and another Vs. Shiran Alikhan and another)
7. MFA.4723/2009 (M/s.ICICI Lombard Gen.Ins.Co.Ltd., Vs. Muttaiah Bin Muttiah and another)
8. MFA.5525/2012 (Noor Hussain @ Irfan Vs. Bajaj Allianz Gen.Ins.Co.Ltd., and another)
9. ILR 2015 KAR 2064 (Mohammed @ Mod.Haneef Vs. Mallayya @ Mallappa and another).
MVC.No.2985/2016 SCCH-18
17. On rival contention urged by both the counsel, I, intend to discuss the case on merits.
On perusal of the evidence available on records, it reveals that, to prove their case, the petitioner No.1 has examined herself as PW-1 and she has stated in her evidence by reiterating the contents of petition. Further in support of her evidence, she has produced the documents and the same are marked as Ex.P.1 to Ex.P.11.
18. Thereafter, the counsel for the respondent No.1 has cross-examined the PW-1 at length. In the cross-examination, the PW-1 has clearly stated at page No.5 & 6 that:
"£À£Àß ªÀÄUÀ½UÉ D¬ÄvÉAzÀÄ ºÉüÀĪÀ C¥ÀWÁvÀzÀ ¸ÀݼÀªÀÅ gÀ¸ÉÛAiÀÄ ªÉÄÃ¯É EgÀĪÀÅzÉAzÀgÉ ¸ÀjAiÀÄ®è.
ªÀÄÄRå«ZÁgÀuÉAiÀÄ RArPÉ 2 gÀ°è PÁtô¹zÀAvÉ C¥ÀWÁvÀªÀÅ UÀÆqïì ªÁºÀ£ÀzÀ ZÁ®PÀ£À vÀ¦à¤AzÀ DUÀzÉÃ, £Á£ÀÄ ªÀÄUÀĪÀ£ÀÄß ¸ÀÆPÀÛªÁV £ÉÆÃrPÉƼÀîzÉà gÀ¸ÉÛAiÀÄ ªÀÉÄÃ¯É DqÀ®Ä ©lÖ PÁgÀt, £À£Àß ¤®ðPÀëvÀ£À¢AzÀ C¥ÀWÁvÀ ªÁVgÀĪÀÅzÉAzÀgÉ ¸ÀjAiÀÄ®è. ¤ÃªÀÅ MVC.No.2985/2016 SCCH-18 ªÀÄUÀĪÀ£ÀÄß gÀ¸ÉÛAiÀÄ ªÉÄÃ¯É DlªÁqÀ®Ä ©qÀzÉà EzÀÝ°è, C¥ÀWÁvÀªÁUÀÄwÛgÀ°®èªÉAzÀÄ ¸ÀÆa¸À¯ÁV, £À£Àß ªÀÄUÀÄ gÀ¸ÉÛAiÀÄ°è DlªÁqÀzÉÃ, gÀ¸ÉÛAiÀÄ ¥ÀPÀÌzÀ°ègÀĪÀ ¥sÀÅmï¥Ávï ªÉÄÃ¯É DlªÁqÀÄwÛvÉAzÀÄ ¸ÁQë ºÉüÀÄvÁÛgÉ."
On perusal of the above evidence of PW-1, it reveals that, the defence of the respondent No.1 is that, the alleged accident has not occurred due to rash and negligent driving of the driver of the alleged vehicle, on the other hand, the accident has occurred due to sole negligence on the part of the pedestrian/deceased Ruakaya Begum.
19. To prove the said fact, the respondent No.1 has examined its official as RW-2. But on perusal of evidence RW-2, it reveals that, he is not an eyewitness to the alleged accident and as such, the evidence of RW-2 is not much helpful to disbelieve the version of the petitioners regarding the rash and negligent driving of the driver of the alleged vehicle.
MVC.No.2985/2016 SCCH-18
20. Further to prove the rash and negligent driving of the driver of the alleged vehicle, in support of oral evidence, the petitioners have relied upon the copy of police investigation papers and the same are marked as Ex-P-1 to 7. On perusal of Ex-P-1 and 7 i.e., copy of FIR with complaint and charge sheet, it reveals that, Tumkur Rural police have registered a case against the driver of the alleged vehicle and after completion of investigation, the concerned police have filed the charge sheet against the driver of the alleged vehicle.
21. Considering the above facts and on perusal of evidence of PW-1 coupled with documents and for the above reason, I am of the opinion that, the petitioners have proved that, the alleged accident has occurred due to sole negligence on the part of the driver of the alleged vehicle as contended in the petition by producing oral and documentary evidence.
MVC.No.2985/2016 SCCH-18
22. Further on perusal of Ex.P.5 and 6 i.e., copy of inquest panchanama and PM Report, it reveals that, Ruakaya Begum has sustained grievous injuries in the above said accident and succumbed to the said injuries.
23. Considering the above facts and circumstances of the case and on appreciation of evidence of PW-1 coupled with documents and for the above reasons, I am of the opinion that, the petitioners have proved these issues by producing proper documents. Accordingly, I answer these issues in the affirmative.
24. Issue No.3:- The specific contention of the petitioners is that, they are the parents of deceased Ruakaya Begum and due to unexpected death of Ruakaya Begum, they have suffered lot and lost their lovely daughter.
On the other hand, the respondents have disputed the relationship of the petitioners with the deceased.
MVC.No.2985/2016 SCCH-18
25. To prove the relationship, the petitioners have relied upon the notarized copy of birth certificate standing in the name of deceased Ruakaya Begum and also relied upon the copy of Aadhaar card standing in the name of petitioner No.1 and 2 and the same are marked as Ex-P-8 to 10. On perusal of the contents of those documents, it reveals that, the petitioners are the parents of deceased Ruakaya Begum.
26. Considering the above facts and on perusal of evidence of PW-1 coupled with documents and for the above reasons, I am of the opinion that, the petitioners have proved that they are the legal representatives of deceased Ruakaya Begum by producing proper documents. Accordingly, I answer this issue in the affirmative.
27. Issue No.4:- The specific contention of the petitioners is that, deceased Ruakaya Begum was hale and healthy at the time of accident, aged about 6 years, studying in MVC.No.2985/2016 SCCH-18 LKG and she is a brilliant student. Further the contention of the petitioners is that, due to unexpected death of their lovely daughter, they have suffered great mental agony and shock.
On the other hand, the respondents have disputed the age and status of the deceased.
28. To prove the educational status of the deceased, the petitioners have relied upon the document at Ex-P-11 i.e., letter issued by Head Master, SNN Government Primary School, Koratagere. On perusal of the contents of the said document, it reveals that, at the time of accident, deceased Ruakaya Begum was studying in UKG at SNN Government School Koratagere. Further on perusal of copy PM report, wherein, the age of the deceased is shown as 5 years as on the date of the accident. Considering the above facts and looking to the contents of documents, it is clear that, as on the date of accident, deceased Ruakaya was aged about 5 years and she was not an earning MVC.No.2985/2016 SCCH-18 member. Hence, to assess the loss of dependency, if the income of the deceased is considered as Rs.25,000/- P.A. certainly it would meet the ends of justice.
29. Further the petitioner No.1 is the mother of deceased. Further on perusal of the copy of Aadhaar card (Ex-P-9) standing in the name of petitioner No.1, wherein, the date of the birth of the mother of deceased is mentioned is for the year 1992 and the same is considered as date of birth of the mother of deceased, then it is clear that, as on the date of accident, the petitioner No.1 was aged about 25 years. Considering the above facts, I am of the opinion that, to assess the loss of dependency, if younger parent age is considered for applying the multiplier, then the proper multiplier applicable to the case on hand is 18.
30. The income of the deceased is considered as Rs.25,000/- P.A. and the multiplier 18 is applied, then it comes MVC.No.2985/2016 SCCH-18 to Rs.4,50,000/-. Considering the above facts and for the above reason, I am of the opinion that, the petitioners are entitled for an amount of Rs.4,50,000/- under the head of loss of dependency.
31. Further the petitioners are the parents of deceased and as such, they are entitled for compensation of Rs.25,000/- under the head loss of love and affection and an amount of Rs.25,000/-under the head of transportation of dead body, funeral and obsequies ceremony expenses.
Considering the above facts and for the above reason, I am of the opinion that the petitioners are entitled for total compensation of Rs.5,00,000/- under the following heads.
Compensation heads Compensation amount Towards loss of dependency Rs. 4,50,000/- Towards loss of love and affection Rs. 25,000/- Towards transportation of dead body, Rs. 25,000/- funeral & obsequies ceremony expenses Total Rs. 5,00,000/-
MVC.No.2985/2016 SCCH-18
32. LIABILITY: On perusal of the contents of petition and contents of objection statement, it reveals that, the respondent No.2 is the owner and the respondent No.1 is the insurer of the alleged goods vehicle. Further on perusal of Ex-R-3 i.e, copy of policy, it shows that, the policy was in force as on the date of accident.
33. The specific contention of the respondent No.1 is that, on the alleged date of accident, the driver of the alleged vehicle was not having valid and effective driving licence to drive the alleged vehicle and as such, the owner of the alleged vehicle has violated the policy conditions. Hence, the respondent No.1 is not liable to indemnifying the respondent No.2.
34. To prove the said contention, the respondent No.1 has examined the Superintendent, RTO Office, Madhugiri as RW-1, who has stated in his evidence that, as per the direction of this court, he has produced the copy of driving licence extract MVC.No.2985/2016 SCCH-18 standing in the name of Dasari Bhaskar S/o Dasari Prakash and the same is marked as Ex-R-2. Further he has stated that, on perusal of the contents of Ex-R-2, it shows that, Dasari Bhaskar, who is the driver of the alleged vehicle is having driving licence to drive the LMV-NT vehicle and he was not having driving licence to drive the transport vehicle.
35. Thereafter, the counsel for the petitioners has cross- examined the RW-1 at length. In the cross-examination, the RW-1 has clearly stated at page No.2 and 3 that:-
"¤.Dgï.2 JAzÀÄ UÀÄgÀÄw¹zÀ zÁR¯ÉAiÀÄAvÉ, CzÀgÀ°è PÁtĪÀ ¨sÁ¸ÀÌgï EªÀjUÉ ¢.12.4.2016 gÀAzÀÄ J¯ïJA« UÀÆqïì ªÁºÀ£À ZÀ¯Á¬Ä¸ÀĪÀ rJ¯ï EvÀÄÛ JAzÀÄ ¸ÀÆa¸À¯ÁV, UÀÆqïì ªÁºÀ£ª À ÀÅ mÁæ£ïì¥ÉÇÃmïð ªÁºÀ£« À zÀÄÝ, CzÀjAzÀ ¨sÁ¸ÀÌgï EªÀjUÉ UÀÆqïì ªÁºÀ£À ZÀ¯Á¬Ä¸ÀĪÀ rJ¯ï EgÀzÉà EgÀĪÀÅzÀÄ ¤.Dgï.2 JAzÀÄ UÀÄgÀÄw¹zÀ zÁR¯É¬ÄAzÀ PÀAqÀÄ §gÀĪÀÅzÀÉAzÀÄ ¸ÁQë ºÉüÀÄvÁÛgÉ. ¤.Dgï.2 JAzÀÄ UÀÄgÀÄw¹zÀ zÁR¯ÉAiÀÄ°è PÁtĪÀ ¨sÁ¸ÀÌgï EªÀgÀÄ UÀÆqïì ªÁºÀ£À ZÀ¯Á¬Ä¸À®Ä KPÉ MVC.No.2985/2016 SCCH-18 CºÀð£À®ª è ÉAzÀÄ PÉüÀ¯ÁV, DvÀ£ÀÄ UÀÆqïì ªÁºÀ£À ZÀ¯Á¬Ä¸ÀĪÁUÀ, CzÀPÉÌ ¸ÀA§A¢ü¹zÀAvÉ rJ¯ï£ÉÆA¢UÉ ¥ÀævÉåÃPÀ ¨ÁåqïÓ ¥ÀqÉAiÀĨÉÃPÁUÀĪÀÅzÉAzÀÄ ¸ÁQë ºÉüÀÄvÁÛgÉ."
On perusal of the above evidence, it reveals that, though the counsel for the petitioners has cross-examined the RW-1 at length, but nothing has been elicited from him to disbelieve his version that, the driver of the alleged vehicle is not having driving licence to drive the transport vehicle.
36. Further on perusal of Ex-R-2 i.e., copy of driving licence standing in the name of Dasari Bhaskar, it shows that, he is having driving licence to drive the LMV (Non-Transport) and the same was valid from 12-02-2016 to 11-02-2036.
37. Further on perusal of Ex-R-3 i.e., copy of policy, it shows that, the respondent No.1 has issued the policy to the alleged vehicle and the said policy was in force as on the date of accident. Further on perusal of Ex-R-3 i.e., copy of Policy, it MVC.No.2985/2016 SCCH-18 shows that, the alleged vehicle is a goods carriage commercial vehicle. Hence, the said vehicle is a transport vehicle. Further as stated above that, the driver of the alleged vehicle is not having driving licence to drive the transport vehicle. Hence, the owner of the alleged vehicle has violated the policy conditions.
38. At this stage, I have gone through the citation relied upon by the counsel for the petitioners reported in 2016 ACJ 1808, wherein, the Hon'ble High Court of Karnataka observed as under:-
"Motor Vehicles Act, 1988, Sec 149(2) (a)
(ii)-Motor Insurance-Driving licence-Liability of Insurance Company-Pay and recovery order-Whether driver of offending vehicle possessing licence to drive light motor vehicle (Non-Transport) but driving light or medium or heavy goods vehicle or passenger carrying commercial vehicle would attract liability of insurance company-Held: no.
MVC.No.2985/2016 SCCH-18 On going through the above judgment, the above observation of the Hon'ble High Court is aptly applicable to the case on hand.
39. Further, I have gone through the citation relied upon by the counsel for the respondent No.1 reported in 2009 ACJ Page 1411, wherein, the Hon'ble Supreme Court observed as under:-
"Motor Vehicle Act,1988, Sec.149(2) (a) (ii) read with Sec. 2 (21) and 14 (2)-Motor Insurance-Driving licence-Liability of insurance company-Delivery auto, a goods vehicle, dashed against a person and she sustained fatal injuries-Insurance Company seeks to avoid its liability on the ground that driver did not possess a valid and effective driving licence-Driver had licence to drive 'LMV' whereas he was driving a goods transport vehicle-Definition of 'LMV' brings within its umbrage both 'transport vehicle' or 'omnibus' but a distinction between an effective licence granted for transport vehicle and passenger motor vehicle exists-Distinction between a 'LMV' and a 'transport vehicle' is evident-Licence MVC.No.2985/2016 SCCH-18 to the driver was granted for 20 years, a presumption arises that it was meant for the purpose of a vehicle other than a transport vehicle-Had the licence been granted for transport vehicle, the tenure thereof could not have exceeded 3 years-Whether the driver had a valid and effective licence and insurance company is liable-Held: No. On going through the above judgment, the above observation of the Hon'ble Apex Court is aptly applicable to the case on hand.
40. Further as stated above that, the alleged accident has occurred due to rash and negligent driving of the driver of the alleged vehicle. Further as stated above that, the owner of the vehicle has violated the policy conditions. Hence, the respondent No.1-Insurance Company is not liable to indemnifying the owner of the alleged vehicle. However the respondent No.2 being the owner of the alleged vehicle is liable to pay compensation of Rs.5,00,000/- with interest at 9% p.a. to the petitioners from MVC.No.2985/2016 SCCH-18 the date of petition till the date of deposit. Hence, I answer the issue No.4 in the partly affirmative as against the respondent No.2.
41. ISSUE NO.5: In view of my findings on issue No.1 to 4, I proceed to pass the following;
ORDER The claim petition filed by the petitioners U/S 166 of M.V.Act is hereby partly allowed with cost as against the respondent No.2 i.e. owner of the vehicle.
The claim petition filed by the petitioners as against the respondent No.1-insurance company is hereby dismissed without cost.
The petitioners are entitled for compensation of Rs.5,00,000/- with interest @ 9% p.a. from the date of petition till the date of deposit.
The respondent No.2 being the owner of the vehicle is liable to pay the above compensation amount to the petitioners and directed him to MVC.No.2985/2016 SCCH-18 deposit the said compensation amount in this tribunal within 30 days from the date of this order.
Out of the above compensation amount, the petitioner No.1 is entitled for compensation amount of Rs.3,00,000/- and the petitioner No.2 is entitled for compensation amount of Rs.2,00,000/-.
Out of the entitlement of compensation amount awarded to the petitioner No.1 and 2, an amount of Rs.1,00,000/- and Rs.75,000/- shall be kept in FD in the name of petitioner no.1 and 2 respectively in any nationalized / schedule bank of their choice, for a period of 3 years and remaining amount with accrued interest shall be paid to them through account payee cheques after proper identification.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Dictated to the stenographer, transcribed by her, corrected, signed and then pronounced by me in open court on this 31st day of May 2017).
(VEERANNA SOMASEKHARA) III ADDL. SMALL CAUSES JUDGE & XXIX ACMM BENGALURU.
MVC.No.2985/2016 SCCH-18 APPENDIX OF EVIDENCE List of witnesses examined on petitioner's side:
P.W.1. Smt. Heena Kouser P. @ Heena Kesar List of documents exhibited on petitioner's side:
Ex-P1 True copy of FIR and Complaint Ex-P2 True copy of Panchanama Ex-P3 True copy of Spot sketch Ex-P4 True copy of IMV report Ex-P5 True copy of inquest report Ex-P6 True copy of PM Report Ex-P7 True copy of Charge Sheet Ex-P8 Notarized copy birth Certificate of Kum.Ruakaya Ex-P9 Notarized copy of Aadhar card of Heena Kouser .P @ Heena Kesar Ex-P10 Notarized copy of Aadhar card of Nawaz Baig @ Zawaz Beg Ex.P11 Study Certificate of Kum.Ruakaya List of witnesses examined on respondent's side:
R.W.1 Sri. Shashidhar Murthy R.W.2 Sri. Chaitresh D. Habbu
List of documents exhibited on respondent`s side:
Ex-R1 Letter of ARTO
Ex-R2 Copy of DL Extract
Ex-R3 Copy of Policy
III ADDL.SMALL CAUSES JUDGE
& XXIX ACMM.
MVC.No.2985/2016
SCCH-18
SCCH-18
AWARD
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA: BANGALORE CITY M.V.C.No.2985/2016 PETITIONERS: 1.Heena Kouser.P @ Heena Kesar W/o.Nawaz Baig @ Zawaz Beg, Aged 24 years,
3. Nawaz Baig @ Zawaz Beg S/o.Fayaz Baig, Aged 28 years, Both are presently R/at. 7th ward, Maramma Street, Near Water tank, Kortagere Town, Kortagere, Tumkur-572 129.
(By Pleader Sri.RSK) /Vs./ RESPONDENTS: 1. The Regional Manager, The Sriram Gen. Insurance Co.Ltd., S-5, 2nd Floor, Monarch Chambers, Infantry Road, Bangalore-560001.
(By pleader Sri.KP) MVC.No.2985/2016 SCCH-18
2. Sri.K.Maruthi, S/o.K.Thimmappa, No.1-108. B.C.Colony, Ramapuram Village, Kambadur Mandali, Anantapur District, Anantapur-515765 ANDHRA PRADESH.
(Exparte) WHEREAS, this petition filed on by the petitioner/s above named U/s.110-A/166 of the M.V.Act praying for the compensation of Rs. (Rupees ) for the injuries sustained by the petitioner/ Death of in a Motor Accident by Vehicle No. WHEREAS, this claim petition coming up before Sri.Veeranna Somasekhara, III Addl. Sr.Civil Judge, Member, Bangalore, in the presence of Sri./Smt. Advocate for petitioner/s and of Sri./Smt. Advocate for respondent.
ORDER The claim petition filed by the petitioners U/S 166 of M.V.Act is hereby partly allowed with MVC.No.2985/2016 SCCH-18 cost as against the respondent No.2 i.e. owner of the vehicle.
The claim petition filed by the petitioners as against the respondent No.1-insurance company is hereby dismissed without cost.
The petitioners are entitled for compensation of Rs.5,00,000/- with interest @ 9% p.a. from the date of petition till the date of deposit.
The respondent No.2 being the owner of the vehicle is liable to pay the above compensation amount to the petitioners and directed him to deposit the said compensation amount in this tribunal within 30 days from the date of this order.
Out of the above compensation amount, the petitioner No.1 is entitled for compensation amount of Rs.3,00,000/- and the petitioner No.2 is entitled for compensation amount of Rs.2,00,000/-.
Out of the entitlement of compensation amount awarded to the petitioner No.1 and 2, an amount of Rs.1,00,000/- and Rs.75,000/- shall be kept in FD in the name of petitioner no.1 and 2 respectively in any MVC.No.2985/2016 SCCH-18 nationalized / schedule bank of their choice, for a period of 3 years and remaining amount with accrued interest shall be paid to them through account payee cheques after proper identification.
Advocate fee is fixed at Rs.1,000/-.
Given under my hand and seal of the Court this day
of 2017.
MEMBER
MOTOR ACCIDENT CLAIMS TRIBUNAL
METROPOLITAN AREA: BANGALORE.
_____________________________
By the
Petitioner/s Respondent/s
No.1 No.2
Court fee paid on
Petition
Court fee paid on
Power
Court fee paid on I.A.,
Process
Pleaders Fee
Total Rs.
Decree Drafted Scrutinized by
Decree Clerk SHERISTEDAR MEMBER, M.A.C.T
METROPOLITAN AREA:BANGALORE.
MVC.No.2985/2016
SCCH-18
ORDER
The claim petition filed by the petitioners U/S 166 of M.V.Act is hereby partly allowed with cost as against the respondent No.2 i.e. owner of the vehicle.
The claim petition filed by the petitioners as against the respondent No.1-insurance company is hereby dismissed without cost.
The petitioners are entitled for compensation of Rs.5,00,000/- with interest @ 9% p.a. from the date of petition till the date of deposit.
The respondent No.2 being the owner of the vehicle is liable to pay the above compensation amount to the petitioners and directed him to MVC.No.2985/2016 SCCH-18 deposit the said compensation amount in this tribunal within 30 days from the date of this order.
Out of the above compensation amount, the petitioner No.1 is entitled for compensation amount of Rs.3,00,000/- and the petitioner No.2 is entitled for compensation amount of Rs.2,00,000/-.
Out of the entitlement of compensation amount awarded to the petitioner No.1 and 2, an amount of Rs.1,00,000/- and Rs.75,000/- shall be kept in FD in the name of petitioner no.1 and 2 respectively in any nationalized / schedule bank of their choice, for a period of 3 years and remaining amount with accrued interest shall be paid to them through account payee cheques after proper identification.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
III ADDL.SMALL CAUSES JUDGE & XXIX ACMM.
MVC.No.2985/2016 SCCH-18