Bangalore District Court
U. Santhi Alias U. Shanthi vs Sinivasa Ganivada on 1 June, 2024
KABC020158552018
IN THE COURT OF THE IV ADDL. SMALL CAUSES
AND ADDL. MACT., BANGALORE, (SCCH-6)
Present: Smt.Chetana S.F.
B.A., L.L.B.,
IV Addl., Small Cause Judge &
ACMM, Court of Small Causes,
BENGALURU.
DATED THIS THE 1st DAY OF JUNE 2024
M.V.C.No.3738 OF 2018
PETITIONERS:
1. U. SANTHI ALIAS U. SHANTHI
W/O LATE U.SEENU
AGED ABOUT 25 YEARS
2. U. JEETHIN ALLIAS U. JETHIN
S/O LATE U.SEENU
AGED ABOUT 8 YEARS
3. KUMARI U.DHIKSHITHA
D/O LATE U.SEENU
AGED ABOUT 6 YEARS
THE PETITIONER NO.2 AND 3
ARE MINORS REPRESENTED
BY PETITIONER NO.1/MOTHER/NATURAL GUARDIAN
4. SRI.U.ESHWARAIAH
S/O U.CHENCHAIAH
AGED ABOUT 68 YEARS
2 MVC NO.3738 OF 2018
6. SMT.U.PENCHALAMMA
W/O U.ESHWARAIAH
AGED ABOUT 64 YEARS
ALL ARE PERMANENT RESIDENTS OF
NO.27/5/101, NEAR THYAGARAJA
KALYANA MANDIRAM, BALAJI NAGAR,
NELLORE, ANDRAPRADESH-524001
PRESENTLY R/AT MUNIYAPPA COMPOUND,
CHANNASANDRA,
BANGALORE-48
VERSUS
OPPONENT:
1. SINIVASA GANIVADA
S/O BHULOKA RAO
MAJOR
R/AT NO.9-5-57/1,
LAKSHMINAGAR,
SIVAJIPALEM ROAD,
ISUKATHOTA,
VISHAKAPATANAM URBAN,
VISAKAPATNAM,
ANDRAPRADESH-530017
2.NEW INDIA ASS CO LTD
MOTOR TP HUB
MAHALAKSMI CHAMBERS
NO.9
2ND FLOOR
M G ROAD
BANGALORE-560001
3.AMMAJI PAPASANI
28-2-1155
3 MVC NO.3738 OF 2018
1ST STREET
ARINIVASA NAGAR
MYPADU ROAD
NELLORE
ANDHRA PRADESH
-----------------------------------------------------------------------------------------
Advocate for Petitioners: T.V. RAMESH
Advocate for Respondent No.1 and 3-Exparte
Advocate for Respondent No.2- Smt.Padma S.Uttur
JUDGMENT
This claim petition is filed by the petitioners under Sec.166 of M.V Act, 1988 seeking compensation for the death of U.Seenu caused in a road traffic accident.
2. The facts leading to the filing of top noted petition are that on 2952018 when U.Seenu was proceeding towards Reniguntta, Andra Pradesh from Bangalore city by driving a lorry bearing reg.No.AP27TT2989 with a loan of waste cloth piece bundles, on the way on 3052018 at about 1.30 a.m. at Kodandaramapuram village, on Puthalapattu Tirupathi highway road, Chandragiri mandal, Chittoor dist, Andra pradesh, the goods loaded in the lorry slide down. The 4 MVC NO.3738 OF 2018 driver U.Seenu stopped the lorry on the extreme left side of the road, after putting indicator lights and keeping safety reflectors on the road and tightening the slided goods in the lorry along with cleaner. At the same time, one private bus bearing No.AP 31TH0345 came from Chittoor side at high speed in a rash and negligent manner came to the wrong side of the road and dashed violently against U.Seenu. Due to heavy impact U.Seenu knocked down and sustained grievous injuries and succumbed to the injuries on the spot.
2. It is further stated that U.Seenu was aged about 35 years and was working as a driver of lorry bearing No.AP27 TT2989 and drawing salary of Rs.20,000/p.m. and the petitioners entirely depending upon the earnings of the deceased U.Seenu and petitioners put to lot of mental agony and untold misery. It is further stated that petitioners spent Rs.50,000/ towards transportation of deadbody and funeral obsequies. Hence prays to award compensation of Rs.50 lakhs from the respondents.
5 MVC NO.3738 OF 2018
3. Inspite of due service of notice to the respondents, respondent No.1 and 3 remained absent and placed exparte. The respondent No.2 appeared before this Tribunal. The respondent No.2 filed written statement wherein contended that the petition is liable to dismissed for nonjoinder of necessary parties viz., insurer/insured of the lorry bearing No.APTT2989. The first respondent/insured is duty bound under sec 134(c) of MV Act to inform the accident and submit all the vehicle documents including DL and insurance particulars to this respondent to seek indemnification. The first respondent has failed and neglected to perform the statutory obligations to seek the indemnification. Violation of the MV Act in this regard and also violation of the terms and conditions of the insurance contract would disentitle the first respondent to claim the indemnification from this respondent. Hence prays to dismiss the petition.
4. On the basis of the above pleadings the following issues were framed :
6 MVC NO.3738 OF 2018
ISSUES
1. Whether the petitioners prove that Sri.U.Seenu S/o U. Eshwaraiah died due to injuries sustained by him in a motor vehicle accident that was taken place on 3052018 at about 1.50 a.m. near Kodandaramapuram village, Chandragiri mandal, Chittoor dist., Andra Pradesh involving private bus bearing reg.No.AP31TH0345 belonging to respondent No.1 and the said vehicle insured with second respondent?
2. Whether the petitioners prove that the accident has mainly occurred due to rash and negligent driving of the driver of the said vehicle?
3. Whether the petitioners prove that they are the only legal heirs and dependents of deceased?
4. Whether the petitioners are entitled for compensation as prayed for? If so, at what rate from whom?
5. What order or award ?
5. The Petitioner No.1 examined herself as PW.1 and one Eragana SureshCleaner of lorry bearing No.AP27TT2089 got examined as PW2. Ex's.P1 to 14 were marked on behalf of the petitioners. The respondent No.2 got examined one K.Praveen Kumarmotor vehicle inspector got examined as RW1 and got marked ExR1. The respondent No.2 further got examined one 7 MVC NO.3738 OF 2018 Chandana C.S. Assistant as RW2 and he got marked ExR2 to ExR7.
6. Arguments were addressed on both side.
7. Perused the entire materials placed on record. My answers to the above issues are as follows : Issue No.1 : In the Affirmative Issue No.2 : In the Affirmative Issue No.3 : In the affirmative Issue No.4 : Partly in the Affirmative Issue No.5 : As per final order for the following :
REASONS
8. ISSUE NO.1 and 2 : The occurrence of the accident on the relevant date, time and place and the mode of accident is not in dispute. The parties are also not at variance with regard to the factum of the death of the deceased due to the injuries sustained in the said accident. The respondent No.2 has disputed the involvement of the insured vehicle in the accident. The petitioners pleaded that the accident was caused due to the 8 MVC NO.3738 OF 2018 sole negligence of the driver of the bus bearing No.AP31TH 0345. Whereas the respondent No.2 contending that the accident in question occurred because of negligence of the deceased himself.
9. On perusal of the records, it reveals that after lodging of the complaint, by one Suresh S/o.Penchalaiah, Tirupathi Urban, Chandragiri PS registered the FIR in Crime No.161/2018 as per ExP1 and after conducting a through and detailed investigation has filed the charge sheet as per Ex P7 against the respondent No.1 who was the RC owner as well as driver of the Gayathri Travels private bus bearing No.AP31 TH0345 by holding that on 29052018 at about 1.30 p.m. in the afternoon the deceased Uppu Seenu S/o Eshwaraiah, aged 35 years, being the driver of the Lorry bearing No.AP27TT 2989 along with his cleaner E.Suresh loaded the lorry with waste piece bundles in Bengaluru and proceeded to Renuguntavu to unload the goods and when they were proceeding near Kondadaramapuram village on Chittoor 9 MVC NO.3738 OF 2018 Tirupathi highway, Chandragiri mandala the deceased U.Seenu, driver of the lorry observed that the waste cloth bundles were slide down on one side from the lorry. Then he stopped the lorry on the extreme left side of the road after applying parking lights, the deceased U.Seenu and his cleaner E.Suresh (LW1) got down the lorry and tightening the ropes of bundles. At about 0150 p.m., on 30052018, the accused Ch.SrinivasarRao noted above being the driver of Gayathri Travels bus bearing Regn.No.AP31TH0345 proceeding towards Tirupati in a rash and negligent manner at a high speed, without taking due care and caution, lost his control over the bus and dashed the deceased U.Seenu, who was tightening the rope on the right backside of the lorry AP27TT 2989. As a result of which, the deceased U.Seenu sustained severe multiple injuries on his person and died on the spot itself. The accused Ch.Srinivasarao, driver of Gayathri Travels noted above escaped from the scene leaving the crime vehicle. In that accident, the back portion of lorry bearing Regn.No.AP 10 MVC NO.3738 OF 2018 27TT2989 and the front side of Gayathri bus (crime vehicle) AP31TH0345 got damaged.
10. Apart from this, on perusal of the ExP2 sketch that the accident has been taken place on the left side of the five feet margin road on the ChittoorTirupathi national highway. Moreover, the road being the national highway and one way road there was sufficient space for the respondent No.1 driver of the bus to proceed on the road. Moreover though accident has been taken place at about 1.50 a.m. but as per PW2 and other police documents, lorry parked on the extreme left side of the road and parking lights were tightening bundles. Such being the facts, it clearly establishes that the accident has been taken place wholly due to the rash and negligence of the respondent No.1. Moreover the respondent No.1 is a material eye witness to state about what are the circumstances under which the accident has been taken place, but respondent No.1 has remained exparte and has not challenged and disproved the evidence of the PW1 with respect to the rash and negligent 11 MVC NO.3738 OF 2018 driving of the respondent No.1. Though counsel for the respondent No.2 has cross examined the PW1 at length, but as PW1 is not an eye witness, the evidence of the PW1 with regard to the rash and negligence cannot be relied on.
11. Further petitioner has examined the material eye witness cleaner of the lorry Suresha as PW2 who has clearly deposed that the respondent No.1 came to the wrong side i.e., extreme left side of the road and dashed against the lorry. Even though the learned counsel for the respondent no.2 has crossexamined the PW2 at length, but the counsel for the respondent No.2 has not at all denied the rash and negligent driving of the respondent No.1 at least by way of putting any single suggestion as such the evidence of the PW2 with regard to the portion of the evidence given by the PW2 that the driver of the bus came in high speed in negligent manner to wrong side of the road and dashed while against the lorry remained unchallenged. 12 MVC NO.3738 OF 2018
12. Apart from this the Thirupathi Urban Police after through investigation filed the charge sheet against the respondent No.1 U/SEc.279, 304 (a) of IPC and 134 (b) of M.V.Act. holding that the accident has been taken place due to the rash and negligent driving of the bus by the respondent No.1. Even the respondent has not disputed all these document and also not examined the driver of the said bus to disprove the same. It is for the driver of the bus to state the facts and circumstances as to why he drove his vehicle to the extreme edge of the road. Even during crossexamination, PW.1 was suggested that the accident took place due to negligence of the deceased, which was out rightly denied.
13. Apart from this, on perusal of IMV report marked at ExP3, it reveals that on that day the accident has not caused due to the any mechanical defect of the above said vehicles. Under such circumstances, the evidence of PW.1 and PW2 which is supported by police documents has to be accepted. Consequently I hold that the accident is proved to have been 13 MVC NO.3738 OF 2018 caused due to the rash and negligent driving of the driver of the bus bearing reg.No.AP31TH0345. As such, I answer issue No.1 and 2 in the Affirmative.
14. ISSUES NO.3 & 4: The petitioner No.1 filed affidavit in lieu of her chiefexamination and deposed that she is the wife of U.Seenu, petitioner No.2 and 3 are her children, petitioner No.4 and 5 are her in laws (Parents of the deceased). The documents which are exhibited at Ex.P8 to 13 reveals the aforesaid relationship of the claimants with the deceased. It is pertinent to note that this relationship of the petitioners with the deceased has not been disputed by the respondent No.2 as it is evident from the tenor of crossexamination of PW.1. Be that as it may, since the evidence led by PW.1 is satisfactory and also taking into consideration the fact that there are no rival claimants, I hold that the petitioners are the legal representatives of the deceased.
14 MVC NO.3738 OF 2018
15. But the respondent No.2 has disputed that the petitioner No.4 & 5 parents residing in the separate house and were not dependent on the deceased but the same is not proved by the respondent No.2. As such the petitioner No.4 & 5 being the age old parents of the deceased certainly dependent on the deceased as contended by the petitioners.
16. LOSS OF DEPENDENCY INCLUDING FUTURE PROSPECTS: In the DL Ex.P.14, the date of birth of deceased Seenu U is shown as 0171983, which indicates that he was aged 35 years as on the date of accident. Therefore the appropriate multiplier as per Sarla Verma's case for the said age group is '16'.
17. According to PW.1, the deceased was working as Driver and earning Rs.20,000/p.m. The petitioners have examined one Sri.Eragana Sureshcleaner under B.Subramanyam in his lorry bearing No.AP27TT2989 as PW 2 who has stated in his affidavit that deceased Uppu Sheenu 15 MVC NO.3738 OF 2018 was the driver. The petitioners have not produced any document to prove the avocation and income of deceased. In the absence of proof, this Court has to consider the income notionally for calculating the compensation. As the accident took place in the year 2018, the notional income of the deceased is taken as Rs.12,500/ p.m. Needless to mention, also taking into consideration the age of the deceased, nature of his work as well as the present cost of living.
18. In a decision reported in 2018 ACJ 5 (Hem raj V/s Oriental Insurance Company Ltd & others), the Hon'ble Apex Court held that addition on account of future prospects is admissible where minimum income is determined on guesswork in the absence of proof of income. As per Sarala Verma's case towards his future prospectus if 40% of the salary is added it would be around Rs.17,500/ (12,500 + 5000). The deceased was married and having four dependents. Hence 1/4th of his income needs to be deducted towards personal & living 16 MVC NO.3738 OF 2018 expenses. 1/4 of Rs.17,500/ works out to Rs.4,375/. Income for consideration is Rs.13,125/ (17,500 - 4,375). Annual income works out to Rs.1,57,500/ (13,125 X 12). Appropriate multiplier is '16'. Thus loss of dependency works out to Rs.25,20,000/ (1,57,500 X 16).
19. LOSS OF CONSORTIUM: In view of the ratio laid by the Hon'ble Apex Court in (2021) 11 SCC 780 between United India Insurance Company Limited V/s. Satinder Kaur alias Satwinder Kaur and others, each of the claimants are entitled to a sum of Rs.48,400/ (in view of the Pranay Sethi case, 10% of Rs.40,000/ has to be enhanced for every 3 years from 2017) on account of loss of spousal consortium, parental consortium, filial consortium and loss of love & affection.
20. LOSS OF ESTATE: Petitioners are entitled for Rs.18,150/ ( in view of the Pranay Sethi case, 10% of 17 MVC NO.3738 OF 2018 Rs.15,000/ has to be enhanced for every 3 years from 2017) towards loss of estate.
21. FUNERAL EXPENSES: Petitioners are entitled for Rs.18,150/ ( in view of the Pranay Sethi case, 10% of Rs.15,000/ has to be enhanced for every 3 years from 2017) towards funeral expenses.
22. The calculation table stands as follows :
1 Loss of Dependency : Rs.25,20,00000 2 Loss of Consortium : 2,42,00000 3 Loss of Estate : 18,15000 4 Funeral Expenses : 18,15000 Total Rs. 27,98,300=00 Hence, petitioners are entitle for compensation of Rs.27,98,300=00.
23. INTEREST & LIABILITY: Having regard to the nature of the claim and current bank rate of interest, this Tribunal is of the view that if interest at the rate of 6% p.a, is awarded it would meet the ends of justice.
18 MVC NO.3738 OF 2018
24. There is no dispute with regard to the issuance of insurance policy and its validity as on the date of accident. Counsel for the respondent No.2 argued that the respondent No.1 who was driving the offending vehicle was not having the valid driving licence to drive the bus bearing No.AP31TH 0345 and thereby committed the breach of terms of the policy and as such respondent No.2 is not liable to pay the compensation amount. Further it was argued that the offending vehicle was not having the permit to ply on the said road.
25. With regard to the permit respondent got examined the motor vehicle inspector of the Vishakapattanam by name K.Praveen Kumar as RW1 and got marked the permit details of the offending vehicle permit No.AP005/7925/TPCC/2023 as per ExR1. Further RW1 clearly deposed that the special permit was valid from 2452018 to 262018 vide permit No.AP031/5821/PTOV/2018. The route of permit was given from Vishakha pattanam to Arunachalam via TirupathiPileru. 19 MVC NO.3738 OF 2018 The accident was occurred at Chandragiri Mandalam which is lying between Tirupati and Pileru. As per ExR1 there was a valid permit for the offending vehicle to run on the said road on the date of the accident.
26. With regard to the driving licence of the respondent No.1 counsel for the respondent No.2 has examined one ChandanAssistant of New Indian Insurance company as RW2 and got marked ExR2 to ExR7 documents and contended that respondent No.1 was not having the valid licence to drive the offending vehicle bus. The learned counsel for the respondent No.2 argued that, as per Ex.R.3 the respondent No.1 has the driving license to drive the transport vehicle of LMV cab only from 16072015 to 15072018 and since the offending vehicle is public service vehicle which comes under the heavy motor vehicle and having the gross vehicle weight of 9300 Kg especially endorsement TRANS is required in view of the directions issued by the Hon'ble Apex Court in Mukundevgan V/s. Oriental Insurance Co.Ltd., 20 MVC NO.3738 OF 2018
27. In support of their contention, learned counsel for the respondent No.2 has produced the copy of the Gazette notification No.RT11021/44/2017MVL dt.1642018 issued by the Govt., of India Ministry of road transport and highways with regard to the compliance of the judgment of the Hon'ble Supreme Court in Mukundevgan V/s. Oriental Insurance Co.Ltd., The counsel for the respondent No.2 pressing on the para No.3 of the Gazette Notification argued that, special endorsement is required in respect of the medium or heavy goods and passenger vehicles and in the present case, as per Ex.R.3 there is no endorsement to drive the medium and heavy goods vehicle and the passenger vehicle at the time of accident as such the respondent no.1 was not having the valid driving license to drive the offending vehicle at the time of accident. Further the counsel for the respondent No.2 argued that, the respondent No.1 driver of the offending vehicle has obtained the driving license to drive the transport vehicle in respect of the class of vehicle with special endorsement Transport from 31 21 MVC NO.3738 OF 2018 052021 to 30052026 and as per Ex.R.4 the respondent No.1 was having license to drive the transport vehicle of medium,o heavy goods and passenger vehicles only from 31052021. But the accident taken place on 2952018, the respondent No.2 argued that the respondent No.2 is not liable to pay the compensation.
28. On the other hand, the learned counsel for the petitioner argued that, the driver of the respondent No.1 was having valid Driving licence and as per Ex.P.14 respondent No.1 was having valid DL to drive the P.S.V. bus and relying on the rulings Mukund Devan V/s Oriental insurance company Limited argued that, after the amendment motor vehicle Act (date of amendment) there are only two types of Vehicles one is transport and one is light motor vehicle and only two types DL's were issued. One is for LMV vehicle and other is transport vehicle. Further argued that, to drive the transport vehicle includes license to drive heavy motor vehicles and also medium motor vehicles. Hence, the respondent No.1 was having the 22 MVC NO.3738 OF 2018 DL to drive the transport vehicle, he can certainly drive heavy motor vehicles having the gross vehicle weights more than 7500 kgs and the offending vehicle is a public service vehicle.
29. In the line of the arguments canvassed by the both the parties documents and materials placed on records are considered as per Ex.R.3 the respondent no.1 was having the driving license to drive the transport vehicle of class of vehicle of LMV Cab only from 16072015 to 15072018.
30. At this stage it is worth to know what are the types of vehicle come under the definition under the LMV CAB.
As per Section LMV vehicle includes definition. Light motor vehicle means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or roadroller the unladen weight of any of which, does not exceed 7500 kilograms.
But in the present case the offending vehicle is a contract 23 MVC NO.3738 OF 2018 carriage which comes under definition Sec.2(35) of the Public service vehicle having the gross vehicle weight of 9300 Kgs. as per Ex.R.8. Further the the said public service vehicle comes under the definition Sec.2(47) of the Motor vehicle Act. Thus it is clear that the offending vehicle does not come within the definition of the LMV vehicle. therefore the offending vehicle does not come under the class of LMV cab vehicle.
31. Further with regard to the arguments canvassed by the learned counsel for the petitioner that, the transport driving licence to drive LMV CAB of the class of LMV CAB permits the holder of the license to drive the all heavy motor vehicles goods and medium goods vehicle and the passenger vehicle, the Hon'ble Apex Court in the Mukundevgan Case relied by the petitioner himself in para No.59 held Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such 24 MVC NO.3738 OF 2018 vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre amended position as well the post amended position of Form 4 as amended on 2832001. Any other interpretation would be repugnant to the definition of light motor vehicle in section 2(21) and the provisions of Section 10 (2) (d), Rule 8 of the 1989 Rules, other provisions and also the forms which are in tune with the provisions. Even otherwise the forms never intended to exclude transport vehicles from the category of light motor vehicles an for light motor vehicle, the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in Section 10(2) (e) of the Act Transport Vehicle would include medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle which earlier found place in Sections 10(2) (e) to (h) and our conclusion is fortified by the syllabus and rules which we have discussed.
32. Thus, we answer the questions which are referred to us thus:
60.1. "Light motor vehicle" as defined in Section 2(21) of the Act would include a transport vehicle as per the weight prescribed in Section 2(21) read with Sections 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of 25 MVC NO.3738 OF 2018 Amendment Act 54 of 1994.
60.2. A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg would be a light motor vehicle and also motor car or tractor or a roadroller, "unladen weight" of which does not exceed 7500 kg and holder of a driving licence to drive class of 5"light motor vehicle" as provided in Section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg or a motor car or tractor or roadroller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under Section 10(2)(d) continues to be valid after Amendment Act 54 of 1994 and 2832001 in the form.
60.3. The effect of the amendment made by virtue of Act 54 of 1994 w.e.f. 14111994 while substituting clauses (e) to (h) of Section 10(2) which contained "medium goods vehicle" in Section 10(2)(e), "medium passenger motor vehicle" in Section 10(2)(f), "heavy goods vehicle"
in Section 10(2)(g) and "heavy passenger motor vehicle" in Section 10(2)(h) with expression "transport vehicle" as substituted in Section 10(2)
(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of Section 10(2)(d) and Section 2(41) of the Act i.e. light motor vehicle.
60.4. The effect of amendment of Form 4 by 26 MVC NO.3738 OF 2018 insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect."
33. Thus in view of the ratio held by the Hon'ble Apex Court in the aforesaid judgment relied by the petitioner himself the offending vehicle does not come under the light motor vehicle as per Ex.R.8. Further as per Ex.R.3 the respondent No.1 was having the driving license in respect of transport vehicle of class LMV CAB only and he can certainly drive only the transport vehicle of the class which comes under Light Motor vehicles only. Since in the present case the offending vehicle is contract carriage comes under the class of Public service vehicle a separate endorsement to drive the transport vehicle of such class is required. therefore, the respondent No.2 27 MVC NO.3738 OF 2018 has clearly established that the respondent No.1 was not having valid driving licence to drive the offending vehicle as on the date of the accident and thereby respondent No.1 himself being the RC owner and the driver of the offending vehicle has violated the terms and conditions of the insurance policy.
34. In this regard counsel for the petitioners has relied on decision reported in (2018) 3 Supreme Court cases 208 between Pappu Vs Vinod Kumar wherein the Hon'ble Apex court in para No.17 to 20 held that This issue has been answered in National insurance co., Ltd., In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and /or the driver of the vehicle. However, this court held that even if the insurer succeeds in establishing its defence, the Tribunal or the court can direct the insurance company to pay the award amount to the claimant(s) and in turn, recover the same from the owner of the vehicle. 28 MVC NO.3738 OF 2018 The three Judge Bench after analyzing the earlier decisions on the point, held that there was no reason to deviate from the said well settled principle.
35. In the case of third party risks, as per the decision in National Insurance Company Ltd. v. Swaran Singh the insurer had to indemnify the compensation amount payable to the third party and the insurance company may recover the same from the insured. Doctrine of "pay and recover" was considered by the Supreme Court in Swaran Singh case wherein the Supreme Court examined the liability of the insurance company in cases of breach of policy condition due to disqualifications of the driver or invalid driving licence of the driver and held that in case of third party risks, the insurer has to indemnify the compensation amount to the third party and the insurance company may recover the same from the insured.
36. In ILR 2020 KAR 2239 New India Assurance Company Ltd Bijapuar by its Divisonal Manager / Yallavva and another where in also similar observation is made and 29 MVC NO.3738 OF 2018 held that " the insurer is liable to pay the third party and recover from the insured even if there is breach of any condition recognized under section 149(2), even if it is a fundamental breach and the insure proves the said breach I view of the mandate under section 149(1) of the Act. But no such order can be passed against the insurer, if on the facts and circumstances of the case, a findings is given by the court that the third party ( injured or deceased ) had played any fraud or was in collusion with the insured individually or collectively for a wrongful gain to themselves or cause wrongful loss to the insurer.
37. Applying the ratio laid down in the aforesaid ruling to the facts of the present case, admittedly petitioner is a third party to the contract between respondent No.1 and 2. In further respondent No.1 himself was the driver of the offending vehicle of which he is the owner. In further it is not the case of the respondent No.2 and it is not even proved that there is a fraud played by the petitioner in collusion with respondent 30 MVC NO.3738 OF 2018 No.1 owner and the driver of the offending vehicle in order to get wrongful gain to themselves and wrongful loss to the insurer. Under the given circumstances this court finds it just to order the respondent No.2 has to pay the compensation amount to the petitioners and then to recover the said amount from the respondent No.1 under pay and recovery theory. Hence by fastening liability on the respondent No.2, this court directs the respondent No.2 to pay compensation to the petitioner along with interest at 6 % per annum from the date of accident till the date of deposit of entire amount and then to recover the said amount from the respondent No.1. Hence issue No.3 is answered in the Affirmative and issue No.4 answered partly in the Affirmative.
38. ISSUE NO.5: In view of the discussion made supra, this Tribunal proceeds to pass the following :
O R D E R The petition filed under Section 166 of M.V Act 1988, is hereby partly allowed with costs in the following terms :31 MVC NO.3738 OF 2018
The petitioners are entitled for compensation of Rs.27,98,300/ with interest at the rate of 6% p.a., from the date of petition till its realization.
The respondent No.2 is hereby directed to pay the aforesaid award amount together with interest to the petitioners within 30 days from the date of this order, with liberty to recover the same from the insured/respondent No.1 in appropriate execution proceedings as held by the Hon'ble Apex Court in Oriental Insurance Company Ltd V/s Nanjappan & others reported in (2004) 13 SCC 224.
On deposit of the award amount together with interest, the claimants are entitled for the compensation amount by way of apportionment as follows :
Petitioner No.1 30%
Petitioner No.2 20%
Petitioner No.3 20%
Petitioner No.4 10%
Petitioner No.5 20%
Out of the share amount of Petitioner No.1 a sum equal to 40% shall be deposited in her name in any Nationalized or Scheduled Bank of her choice for a period of 3 years and the remaining 60% shall be released to her through E 32 MVC NO.3738 OF 2018 payment on proper identification and verification. However the said petitioner No.1 is at liberty to withdraw the periodical interest accrued on her deposit amount from time to time.
The share amount apportioned in the name of minor petitioner No.2 and 3 is ordered to be deposited in their respective names vide Fixed Deposit till they attains the age of majority, at any Nationalized/Scheduled Bank as per the choice of the natural guardian of the said minor petitioners.
After deposit, the entire compensation amount together with interest shall be released to the petitioners No.3 & 4 through Epayment on proper identification and verification.
Advocate fee is fixed at Rs.1,000/.
Draw an award accordingly.
(Dictated to stenographer directly on computer, typed by her, corrected, signed and then pronounced by me in open court on this 1st day of June 2024).
(Chetana S.F.) IV Addl., Small Cause Judge & ACMM, Court of Small Causes, BENGALURU.33 MVC NO.3738 OF 2018
ANNEXURES List of witnesses examined for the petitioner/s:
PW.1 : U.Santhi @ U.Shanthi PW.2 : Eragana Suresh
List of documents got marked for the petitioner/s:
Ex.P1 : FIR Ex.P1(a) Translated copy of FIR Ex.P2 : Sketch Ex.P3 : IMV report Ex.P4 : Accident report Ex P5 : Inquest report Ex.P5(a) : Translated copy of inquest report Ex.P6 : PM report Ex.P7 : Charge sheet Ex.P8 to 13 : Adhaar cards Ex.P14 : Driving Licence
List of witnesses examined for the respondent/s:
RW1 K.Praveen Kumar RW2 Chandana C.S.
List of documents marked for the respondent/s:
Ex.R1 Temporary permit details
Ex.R2 Authorization letter
Ex.R3 and 4 DL
Ex.R5 Insurance policy
34 MVC NO.3738 OF 2018
Ex.R6 and 7 Letter sent to 1st respondent and postal receipts (Chetana S.F.) IV Addl., Small Cause Judge & ACMM, Court of Small Causes, BENGALURU.35 MVC NO.3738 OF 2018