Bangalore District Court
Mohammed Aslam vs The Divisional Manager on 15 July, 2015
IN THE COURT OF MOTOR ACCIDENT CLAIMS TRIBUNAL,
XX ADDL.SMALL CAUSES JUDGE, BANGALORE, (SCCH-22)
Dated this the 15th day of July 2015.
Present: Sri. N. Subramanya, M.Com., LLB.,
Member, MACT & XX ASCJ, Bangalore.
M.V.C. No.1817/2012
Petitioner : Mohammed Aslam
S/o Abdul Raheem,
Aged about 33 years,
Residing at
No.35, Chikkaballapur town.
(By S. Dinesh, Adv.)
-vs-
Respondents: 1. The Divisional Manager,
United India Insurance Co. Ltd.,
P.B.16, SBLT Building,
Polytechnic Road,
Chintamani - 563125.
Policy No.071502/31/11/02/00005658
Valid from 5/10/2011 to 4/10/2012.
Insurer of Tractor No.KA-40-The-2601
(By N.Sathyanarayana, Adv.)
2. Sri. Shankarappa,
S/o Muni Hanumaiah,
Adde village, Arkere Post,
2 MVC.No.1817/2012
SCCH-22
Yelahanka,
Bangalore North
RC Owner of Tractor No.KA-40-The-
2601
(By M.R. Shivashankaraiah, Adv)
3. Sri. R. Somashekar Reddy,
S/o Adiyappa, Kottappanahalli village,
Nagaragere Hobl, Gowribidanur taluk,
Karnataka - 561208.
Insurance standing in his name of the
above said vehicle
(Exparte)
4. The Divisional Manager,
The Oriental Insurance Co. Ltd.,
DO 6 Opp Pai Victory Hotel,
Jayanagar 3rd Block,
Bangalore - 560 011.
Policy No.421600/312011/16380
Valid upto 6/1/2012
(Insurer of Ptn. Vehicle No.KA-05-HN-
4153)
(By Udaya Krishna, Adv)
(Respondent No.4 Deleted as per order
dated 08.01.2014)
3 MVC.No.1817/2012
SCCH-22
JUDGMENT
This petition is filed by the petitioner under Sec.166 of the Motor Vehicles Act, 1989, seeking compensation of Rs.5,00,000/- from the Respondents for the injuries sustained by him in a Motor Vehicle Accident.
2. The brief facts of the case are that:
On 9.11.2011 at 1.30 p.m., when the petitioner was going in his motor cycle bearing no. KA-05-H-4153 near Suradhenapura Gate, Doddaballapur-Rajankunte Road, at that time the driver of the Water Tanker Tractor bearing No.KA-04-T-2601 driven by its driver going in front of petitioner's motor cycle took right turn suddenly in a rash and negligent manner without any indication, due to which petitioner motor cycle dashed front portion and it was damaged and the petitioner fell on the road and sustained grievious injuries, immediately he was shifted to nearby Deeksha Hospital and was treated as an inpatient.4 MVC.No.1817/2012
SCCH-22
3. Petitioner has contended that he has taken treatment in Deeksha hospital as an inpatient from 9.11.2011 to 15.11.2011 and has incurred expenses of Rs.1,00,000/- towards medicines, surgery, conveyance etc., Petitioner has contended due to the injuries suffered by him he has lost his job and has become permanently disabled handicap person. He has contended that he was working as a teacher at mosque (shahnaj manzil majid) and earning Rs.10,000/- per month, due to the injuries suffered by him he lost his work and had become permanent disabled person. He and his family members have been put to hardship.
4. Petitioner has contended that the accident in question was caused solely due to the rash and negligent driving of the Water Tanker Tractor bearing No.KA-04-T- 2601 by its driver. As such the 2nd respondent being its owner, the 1st respondent its insurer, 3rd respondent in whose name the insurance policy is insured are jointly and severally liable to pay compensation to the 5 MVC.No.1817/2012 SCCH-22 petitioner. Hence, petitioner has prayed for award of compensation of Rs.5,00,000/- with interest from the date of petition till realisation and such other reliefs as this tribunal deems fit to grant under the circumstances of the case.
5. In pursuance of service of the notice to the Respondents No.1 to 4, 3rd Respondent remained absent and he was placed exparte. 2nd and 4th Respondent appeared through its counsel and filed their written statements.
6. 2nd Respondent, in its written statement has denied all the averments made by the petitioner in his petition, except admitting of the fact that the Water Tanker Tractor and Tanker bearing No.KA-04-T-2601- 2602 was insured with the 1st Respondent and the liability if any is subject to the terms and conditions mentioned in the policy. He has contended that the accident in question has occurred solely due to the rash 6 MVC.No.1817/2012 SCCH-22 and negligent driving of the motor cycle bearing No. KA- 05-H-4153 by its rider who was going on a high speed and unable to control his vehicle dashed against the back side of the Tanker bearing no. KA-40-T-2602. As such, he is not liable to pay any compensation. As he had validly insured his Tractor and Tanker with the 1st respondent, he is liable to indemnify the 2nd respondent in the event any award is passed against him. Hence, on these grounds he has prayed to dismiss the claim petition.
. 7. The 4th Respondent in his written statement has contended that the petition of the petitioner against it is neither maintainable in law or on facts as the petitioner is not a 3rd party for claiming compensation against 4th respondent in this case or he is a necessary or proper party for adjudication of the matter. Since, the 4th respondent is the insurer of the motor cycle bearing no.KA-05-H-4153, the petitioner cannot claim compensation from the 4th respondent as the accident in 7 MVC.No.1817/2012 SCCH-22 question had occurred due to the Water Tanker Tractor bearing No.KA-04-T-2601 by its driver. He has denied all the other averments of the petition and has contended that the driver of the tractor and rider of the motor cycle was not holding valid and effective driving license at the time of the accident and has denied all the averments of the petitioner. The compensation claimed by the petitioner is excessive, exorbitant and without any legal basis. On these grounds, he has prayed to dismiss the claim petition against this respondent.
8. On the basis of the above pleadings, following Issues have been framed:
1. Whether the petitioner proves that he sustained injuries in TRA that occurred on
09.11.2011 at about 1.30 p.m. near Suradhenapura Gate, Doddaballapura- Rajanakunte road, Bangalore, was due to rash and negligent driving of Tractor bearing No.KA-40-T-2601 by its driver and in the said accident, petitioner sustained injuries? 8 MVC.No.1817/2012
SCCH-22
2. Whether the petitioner is entitled for compensation? If so, how much and from whom?
3. What order or award?
9. Petitioner to prove the above said issues, has got examined himself as PW1 and got marked 14 documents as Exs.P1 to P14 and closed his side. 1st Respondent, has examined its official as RW1 and has got marked Ex.R.1 to R.3 and side closed.
10. Heard the arguments of the learned counsels for the petitioner and Respondent.
11. My answer the above Issues are as under:
Issue No.1 : In the Affirmative
Issue No.2 : Yes, to the extent as shown in the final
order, from Respondent No.3.
Issue No.3 : As per final order for the following
REASONS
12. Issue No.1:
Petitioner (Injured) Sri. Mohammed Aslam got examined himself as PW1 and has filed his affidavit 9 MVC.No.1817/2012 SCCH-22 evidence, narrating the accident that occurred on 9.11.2011, at 1.30 p.m., when the petitioner was going in his motor cycle bearing no. KA-05-H-4153 near Suradhenapura Gate, Doddaballapur-Rajankunte Road, at that time the Water Tanker Tractor bearing No.KA-04- T-2601 driven by its driver going in front of petitioner's motor cycle took right turn suddenly in a rash and negligent manner without any indication, due to which petitioner fell down and sustained grievous injuries, immediately he was shifted to nearby Deeksha Hospital by means of 108 Ambulance van as an inpatient.
13. Petitioner to substantiate the said facts, has produced True copies of FIR, Complaint, Wound Certificate, Motor Vehicles Accident report and Charge sheet pertaining to Crime No.192/2011 of Rajankunte Police Station, marked as Exs.P1 to P4 and P10 respectively. On going through the above documents and the Charge sheet-Ex.P10, it reveals the police on the complaint of the complainant, after investigation, have 10 MVC.No.1817/2012 SCCH-22 placed charge sheet against the driver of the Water Tanker Tractor bearing No.KA-04-T-2601 for having caused the accident due to his rash and negligent driving and the petitioner has sustained grievous injury.
14. The 2nd respondent has taken contention as per para 7 at written statement that the petitioner has not followed traffic rules and regulation. He has driven the motor cycle in a rash and negligent manner and driving his vehicle in over speed and unable to control his vehicle and dashed against the Tanker bearing reg. No.KA-40-T-2602 in back side. Due to his negligent act he himself has fell down and accident took place. The counsel for 2nd respondent submitted that as per IMV report at Ex.P.4 there are no damages to the tractor, but the damages to the two wheeler to the head light and front indication and handle. The petitioner himself dashed the tractor and there is no negligence by the tractor. 1st respondent suggested to PW-1 that he has tried to overtake the tractor and due to his negligence 11 MVC.No.1817/2012 SCCH-22 accident has taken place. Further PW-1 admits that tractor was coming on his left side; speed of the tractor will be lessor than the speed of the two wheeler. The petitioner has not maintained sufficient distance and he was in speed and it is also contributory to the accident. The petitioner also not produced any DL to ride the two- wheeler. Hence, contributory negligence at 25% has to taken. As per the decision reported in MFA No.30284 of 2008 dated 05.12.2012, the HHCK has held that:
"if the claimant did not possess DL to drive the vehicle negligence is attributable at 25% to the claimant."
15. Since, petitioner has not produced DL, an adverse inference has to be drawn against him. Hence, it can be held that the accident was caused due to the negligence of the petitioner to have contributed his negligence for the accident. Hence, from the material placed on record, it could be held that the accident in question has occurred due to the rash and negligent 12 MVC.No.1817/2012 SCCH-22 driving of the Tanker bearing reg. No.KA-40-T-2602 by its driver and also contributory negligence of petitioner and as per Ex.P.3-Wound certificate has sustained grievous injuries. Hence, I answer Issue No.1 in the Partly Affirmative.
16. Issue No.2:
PAIN AND SUFFERINGS:-
This issue pertains to award of compensation. Petitioner has sustained injuries in the RTA. Petitioner in his evidence has deposed contents of petition and produced relevant documents to prove the injury. Petitioner was admitted to Deeksha hospital, he has produced Ex.P.3 - Wound certificate from the said hospital and he has sustained following injuries:-
1. Compound fracture of both bones of left forearm Above injury is grievous in nature. Hence, a sum of Rs.40,000/- is awarded under the head "Pain and sufferings".13 MVC.No.1817/2012
SCCH-22
17. MEDICAL EXPENSES:-
The petitioner has produced Ex.P.6 - medical bills from Deeksha hospital for a sum of Rs.75,000/- which are supported by original and genuine bills. Hence, a sum of Rs.75,000/- is awarded under this head.
18. LOSS OF INCOME DURING LAID UP PERIOD:-
The petitioner stated that he was working as a teacher and earning a sum of Rs.10,000/- p.m. and there are no documents to show the occupation and proof of income. Hence, a notional income of the petitioner is taken at Rs.7,000/- per month. Petitioner was inpatient for seven days. Due to fracture petitioner must be under bed rest atleast for 3 months. Hence, a sum of Rs.20,000/- is awarded under this head.
19. FOOD, NOURISHMENT, ATTENDANT AND TRANSPORTATION CHARGES:-
In the petition as well as in the evidence, PW1 deposed that he has spent a sum of Rs.1,00,000/-.14 MVC.No.1817/2012
SCCH-22 Hence, petitioner is awarded a sum of Rs.20,000/-
under this head.
20. LOSS OF AMENITIES IN LIFE:-
The petitioner has sustained compound fracture of both bones of left forearm. Looking to the nature and gravity of the injuries sustained by him petitioner is awarded a sum of Rs.20,000/- under the head, Loss of Amenities in Life.
21. There are no further materials to show that the injuries would affect the life expectancy of the petitioner. There is no evidence for awarding any compensation under other heads. Hence, the petitioner is awarded compensation under the following heads:
1. Pain and sufferings Rs. 40,000-00
2. Medical expenses Rs. 75,000-00
3. Loss of income during laid up period Rs. 20,000-00
4. Food, nourishment, attendant & Rs. 20,000-00 Transportation
5. Loss of amenities in life Rs. 20,000-00 Total Rs.1,75,000-00 15 MVC.No.1817/2012 SCCH-22
22. Thus, in all, petitioner is entitled for compensation of Rs.1,75,000/-. It is just, fair and adequate under the facts and circumstances of the case. Since, petitioner was held for contributory negligence at 25%, he is entitled for 75% of above compensation for Rs.1,31,250/- rounded off to Rs.1,35,000/- (Rupees One Lakh Thirty Five Thousand only).
23. With regard to Liability: The 1st respondent has taken contention as there was no valid driving licence to the offending vehicle. He has deposed in para 4 as follows:-
"I further submit that when a tractor is attached with tanker it becomes a goods vehicle and the driver of such vehicle should possess a driving licence to drive a goods vehicle. However in the instant case the 2nd respondent has allowed a driver to drive the said tractor with tanker knowing fully well that the driver possessed only LMV licence to drive the said tractor with tanker as such there is violation of policy 16 MVC.No.1817/2012 SCCH-22 condition, since the driver of the said vehicle was having only LMV licence without any specific endorsement for driving a goods vehicle."
On the other hand, counsel for 2nd respondent submitted that tractor is a LMV and as per section 2 (21) of the MV Act and further as per section 2 (44) tanker can be attached and there is no violation and person holding LMV DL can drive the tractor and argued that insurance company is liable to pay the compensation.
24. As per the decision reported in 2012 ACJ 1408 between National Insurance Company Ltd. vs. Maruthi and others wherein it was held that in para 29 of page 2012:-
"As per the Table agricultural tractor and power tiller are shown in the non-transport classification, but power tiller and tractors using public roads are shown as transport vehicle. The tractor-tiller is a non- transporting vehicle but when used on roads, is considered as a transport vehicle from the gist of the judgments referred to above. It is crystal clear when the tractor - tiller combined would constitute a goods 17 MVC.No.1817/2012 SCCH-22 carriage, therefore permits are necessary for its use on the roads. Under the Motor vehicles Act, by sections 2(44) and 2 (46) the definitions of tractor-tanker would definitely indicate when the tanker drawn or intended to be drawn by a motor vehicle, it becomes a goods vehicle."
As per the above decision, in the present case the tractor and tanker is involved in the accident and it becomes a goods vehicle and a specific endorsement is to be issued for the Driving Licence to drive such type of vehicles. But, in the present case as per the extract at Ex.R.2 and also as per the contentions of 2nd respondent the driver is having Driving Licence for only LMV. From the entire materials on record and contentions of 2nd respondent, it is clear that as per Ex.R.2 which is the main document to be considered for the purpose of proving the particular type of DL. According to Ex.R.2 the driver of the offending vehicle was not having DL to drive the tractor and tanker which is a goods vehicle. He was having only DL for LMV only. As per policy at Ex.R.1 it is issued for tractor and trailer only. But, in 18 MVC.No.1817/2012 SCCH-22 this case tanker is attached to the tractor which is the violation of policy conditions. In Ex.R.1 - Policy condition it has been specifically mentioned that:-
"Use only for agricultural and
forestry purposes"
"insured is not indemnified if the vehicle is used or driven otherwise than in accordance with this schedule."
Hence, 1st respondent is not liable to pay the compensation.
25. The 2nd respondent is the RC owner from 11.11.2011. The 3rd respondent was the RC owner and insured of the vehicle as on the date of accident is alone liable to pay the compensation to the petitioner with interest at 8% p.a. from the date of petition till realization as per the citations reported in:-
1. ILR 2009 KAR 385 between Smt. Nasreen Banu and others vs. The Divisional Manager and another.19 MVC.No.1817/2012
SCCH-22
2. 2005 ACJ 644 between M.V.Chowdappa vs. Mohan Breweries and Distilleries Ltd. and another.
Hence, I answer Issue No.2 in the affirmative accordingly.
26. Issue No.3: In view of my finding on Issue Nos. 1 and 2, I proceed to pass the following:
ORDER The claim petition filed by the petitioner under Sec.166 of M.V. Act, is hereby allowed in part, with cost.
The claim petitions against
respondent No.1 and 2 are hereby
dismissed.
The petitioner is entitled for
compensation in a sum of
Rs.1,35,000/- (Rupees One Lakh
Thirty Five Thousand only) and shall carry interest at 8% p.a. from the date of petition till realisation of the amount.
Respondents No.3 alone is held
liable to pay the above said
20 MVC.No.1817/2012
SCCH-22
compensation amount to the petitioner and directed to deposit the compensation amount within 30 days from the date of this order.
Entire compensation amount with interest shall be paid to the petitioner on deposit as it is a meager amount.
Advocate's fee is fixed at
Rs.1000/-.
Draw award accordingly.
(Dictated to the Stenographer through dictation, transcribed thereof is corrected and then pronounced by me in the Open Court on this the 15th day of July 2015).
(N.SUBRAMANYA) Member MACT & XX ASCJ., Bangalore.21 MVC.No.1817/2012
SCCH-22 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER:
PW1 Mr. Mohamed Aslam LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONER Ex.P1 Copy of FIR Ex.P2 Copy of Complaint Ex.P3 Copy of Wound Certificate Ex.P4 Copy of MVA Report Ex.P5 Discharge summary Ex.P6 22 Medical bills Ex.P7 10 Medical prescriptions Ex.P8 Notarised copy of Election identity card Ex.P9 Notarised copy of DL Ex.P10 True copy of Chargesheet Ex.P11 True copy of Mahazar Ex.P12 True copy of Rough Sketch Ex.P13 & 14 Two x-ray films LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENTS;
RW1 K.S.Ravindra LIST OF DOCUMENTS MARKED ON BEHALF OF RESPONDENTS:
Ex.R1 True copy of policy
Ex.R2 DL extract
Ex.R3 Policy
Member, MACT & XX ASCJ,
Bangalore.
**