Bangalore District Court
In Smt.Jugunu vs In S/O.Ningappa on 25 November, 2016
BEFORE THE MEMBER PRL.MOTOR ACCIDENT
CLAIMS TRIBUNAL AND CHIEF JUDGE, COURT OF
SMALL CAUSES AT BENGALURU
DATED THIS THE 25th DAY OF NOVEMBER`2016
PRESENT : SRI H.P.SANDESH, B.A.L., LL.B.,
MEMBER, PRL. M.A .C.T.
MVC No.3681/2015 and 3682/2015
Petitioner in Smt.Jugunu,
MVC Aged about 45 years,
No.3681/2015 W/o.Mohammed Rafiq,
# 95, Sharif Nagar Huts,
Yeshwanthpur,
Bangalore - 22.
Petitioner in Rukasna,
MVC Aged about 19 years,
No.3682/2015 D/o.Mohammed Rafiq,
# 95, Sharif Nagar Huts,
Yeshwanthpur,
Bangalore-22.
(By M.Lakshmana, Advocate)
Vs.
Common 1) Hanumantha,
Respondents in S/o.Ningappa,
both the # 72, Maruthi Nagar,
petitions:- Chikka Banavara,
Bangalore 560 090.
(R/o. Owner of Tata Ace bearing
Reg.No.KA.04/D.7497)
2) Tata Aig Insurance Co., Ltd.,
No.69, J.P. & D.J.,
Jambukeshwar Arcade,
3rd Floor, Mellers,
Bangalore-52.
(Insurer of Tata Ace
KA.04/D.7497, Policy
010106369200)
2 MVC No.3681 & 3682/2015
(Respondent No.1 - Exparte
Respondent No.2 by Sri Janardhan
Reddy, Advocate in both the petitions)
COMMON JUDGMENT
Both these petitions are filed by the respective
petitioner's under Section 166 of the Motor Vehicles Act,
1988 claiming compensation of Rs.5 lakhs and Rs.3 lakhs,
respectively for the injuries sustained by them in the road
traffic accident that occurred on 09.06.2015 at about
04.30 pm., at Marappana Palya Bus Stop, NH-4, Tumkur
Road, Bangalore.
2. Both these claim petitions under Section 166 of
the Motor Vehicle Act, 1988 are arising out of the same
motor vehicle accident. Hence they are clubbed together
and disposed off by this common judgment.
3. It is averred in the petition that on 09.06.2015, at
about 04.30 pm., the petitioners of both these petitions,
who are mother and daughter respectively, were walking on
the extreme left side of NH-4, Tumkur Road, Bangalore
observing the traffic rules and regulations and when the
petitioners approached Marappana Palya Bus Stop, at that
time, the Tata Ace bearing registration No.Ka.04/D.7497
3 MVC No.3681 & 3682/2015
belonging to the 1st respondent and insured by 2nd
respondent came on the said road in a very high speed,
recklessly in rash and negligent manner, unmindful of the
pedestrians walking on the road and dashed against the
petitioners and caused the accident.
4. It is the case of the petitioner in MVC
No.3681/2015 that she was initially treated at Columbia
Asia Hospital and thereafter, she was shifted to St.Martha's
Hospital, Bengaluru wherein she was treated as inpatient.
It is her case that she has spent substantial amount for
treatment and in spite of best treatment, she suffered
permanent disability. It is her further case that prior to
the accident, she was doing vegetable vending business
and earning Rs.15,000/- per month. On account of the
accident, she not only suffered loss of income during
treatment, but also suffered permanent disablement,
resulting in loss of earning capacity. On account of the
injuries suffered by her, she is unable to continue her
avocation.
5. It is the case of the petitioner in MVC
No.3682/2015, that she was initially treated at Columbia
Asia Hospital and thereafter, she was shifted to St.Martha's
4 MVC No.3681 & 3682/2015
Hospital, Bengaluru wherein she was treated as inpatient.
It is her case that she has spent substantial amount for
treatment and in spite of best treatment, she suffered
permanent disability. It is her further case that prior to
accident, she was doing vegetable vending business and
earning Rs.15,000/- per month. On account of the
accident, she not only suffered loss of income during
treatment, but also suffered permanent disablement,
resulting in loss of earning capacity. On account of the
injuries suffered by her, she is unable to continue her
avocation.
6. It is contended by both the petitioners that a case
has been registered against the driver of the vehicle
No.KA.04/D.7497, owned by the respondent No.1 and the
second respondent is the insurer of the same and hence.
Hence, petitioners have claimed Rs.5 lakhs and Rs.3 lakhs
respectively from the respondents jointly and severally.
7. In pursuance of this petition, this Tribunal issued
notice to both the respondents and in response to the
same, the respondent No.1 has remained exparte and the
respondent No.2 appeared before the Court and filed
statement of objections in both the petitions.
5 MVC No.3681 & 3682/2015
8. The sum and substance of the statement of
objections filed by the respondent No.2, which is common
in both the petitions, is that it has contended that the
petitions are not maintainable either in law or on facts.
9. It is contended that the respondent No.2 has
issued the policy of insurance in respect of the vehicle
No.KA.04/D.7497 and the liability if any is subject to
terms and conditions of the policy.
10. The driver of the insured vehicle was not holding
valid and effective driving licence as on the date of the
accident and further, the driver was not qualified for
holding or obtaining such driving licence and further not
satisfied the requirements of Rule 3 of the Central Motor
Vehicles Rules 1989 and the first respondent knowing fully
well that the driver did not possess valid and effective
driving licence to drive the vehicle, willfully entrusted his
vehicle to the said driver, thereby the owner of the vehicle
committed breach of terms and conditions of the policy and
hence, the respondent No.2 is not liable to pay any
compensation to the petitioners.
11. The respondent No.2 has taken the general
defence, in as much as, as provided under Section 134(c) of
6 MVC No.3681 & 3682/2015
the MV Act, the respondent No.1 has not furnished the
particulars of policy, date, time and place of accident,
particulars of injured and the name of the driver and
particulars and his driving licence and thereby violated the
provisions of the said Act.
12. It is further contended that as per Section 158(6)
of the MV Act, it is the mandatory duty of the concerned
Police Station to forward all the relevant documents to the
concerned insurer within 30 days, but the Police having
failed to do so, there is violation of the said Act.
13. The respondent No.2 also denied all the material
averments made out in the claim petition with regard to
the manner in which the accident occurred, nature of
injuries sustained by the petitioners, period of treatment,
expenditure incurred, the avocation of the petitioners, their
income, age, loss of earnings during the period of
treatment, disability said to have been suffered by them
etc., apart from denying the negligence attributed to the
driver of the offending vehicle. The amount of
compensation claimed is excessive and not based on any
norms in both the petitions. For all these reasons, the
7 MVC No.3681 & 3682/2015
respondent No.2 has prayed for dismissal of both the
petitions.
14. Pleadings gave raise to the following common
issues:-
1) Whether the petitioner proves that she sustained
grievous injuries in a motor vehicle accident that
occurred on 09.06.2015 at about 4.30 pm., on
Marappana Palya Bus Stop, NH-4, Tumkur Road,
Bangalore within the jurisdiction of Yeshwanthapura
Traffic Police Station, on account of rash and negligent
driving of the Tata Ace bearing registration
No.KA.04/D.7497 by its driver?
2) Whether the respondent No.2 proves that the accident
occurred on account of negligent act of petitioner?
3) Whether the petitioner is entitled for compensation? If
so, how much and from whom?
4) What order?
15. After framing of the issues, the petitioner in
MVC No.3682/2015 is examined as PW 1 and the
petitioner in MVC No.3681/2015 is examined as PW 2.
The petitioners have also examined two more witnesses as
PW 3 and 4. In all, 35 documents came to be marked on
behalf of the petitioners as Ex.P.1 to P.35. On behalf of the
respondent No.2, 2 witnesses have been examined as RW 1
and 2 and 5 documents came to be marked as Ex.R.1 to
R.5.
8 MVC No.3681 & 3682/2015
16. Heard the arguments of the counsel for petitioners
as well as respondent No.2.
17. The Counsel for the petitioner's has relied upon
the following unreported judgments:
1) ACJ 2014 381
2) ACJ 497 2015
3) MFA No.22798/2010
4) TAC 2014 V-4 Page 676
18. The Counsel for the respondent No.2 has relied
upon the following Judgments:
1) MFA No.4716/2011
2) MFA No.30299/2010
3) MFA No.7949/2011
4) MFA No./3960/2009
5) MFA No.21079/2009
6) MFA No.30903/2009
7) 2009 ACJ 1411
8) 2008 AIR SCW
9) 2009 AIR SCW 2865
19. I have given my anxious consideration to the
principles laid down in the above judgments.
9 MVC No.3681 & 3682/2015
20. My findings to the above issues in both the
petitions are as under:
Issue No.1: In the affirmative.
Issue No.2: In the negative,
Issue No.3: Partly in the affirmative,
Issue No.4: As per final order for the following:-
REASONS
21. Issue No.1 and 2 in both the petitions:- Since
issue No.1 and 2 in both the petitions are with regard to
the negligence and since the evidence is likely to overlap,
both these issues are taken up for discussion together.
22. The Petitioners, not only in their petition but also in
their evidence as PW.1, stated that when they were
crossing the NH 4-Tumkur Road, Bangalore near
Marappana Palya Bus Stop carefully and cautiously, at
that time TATA Ace bearing registration No.KA.04/D.7497
suddenly came on the said road from behind in rash and
negligent manner and dashed against them and in the
accident, both of them suffered injuries. Thus, it is the
contention of both the petitioners that the accident has
occurred solely due to the negligence of the driver of TATA
Ace No.KA.04/D.7497 and in the accident, both of them
suffered injuries.
10 MVC No.3681 & 3682/2015
23. On the other hand, the respondent No.2, the
Insurance Company, in the statement of objections, denied
the case of the petitioners.
24. Petitioners, in order to prove their case,
examined the petitioner in MVC No.3682/2015 as PW 1
and petitioner in MVC No.3681/2015 as PW 2, who have
reiterated the averments of the petition in their evidence
also. Apart from their oral evidence, PW 1 has got marked
the documents such as FIR which is marked as Ex.P.2,
perusal of which reveals that the same was lodged on the
same day of accident, in which the complainant alleges
negligence on the part of the driver of the TATA Ace vehicle
for the accident. Ex.P.2 is the Charge Sheet filed by the
jurisdictional police against the driver of the offending
vehicle after investigation. Ex.P.3 is the Spot Sketch and
Ex.P.4 is the Spot Panchanama, Ex.P.5 is the IMV Report
in respect of the vehicle. The petitioners have been cross-
examined by the counsel for the respondent No.2, wherein,
it is elicited that they were proceeding from their residence
to Ullas Theater and that they were crossing the road. It is
suggested to them that they were at the middle of the road
and the said suggestion has been denied by them. It is
11 MVC No.3681 & 3682/2015
elicited from them that the offending vehicle came from
Tumkur side. They admit that Ex.P.3 sketch is correctly
drawn and that there is no any Zebra cross. It is suggested
to them that they proceeded in a zig-zag manner and
hence, the accident occurred on account of their negligence
and the said suggestion has been denied by them.
25. As against the same, though the respondent
No.2 has examined two witness, both of them deposed
regarding the driving licence held by the driver of the
offending vehicle at the time of accident, but their evidence
is silent regarding the manner in which the accident
occurred or the negligence.
26. Now, let me appreciate both oral and
documentary evidence available before the Court.
Complaint is lodged by one Zabiulla, the brother of PW 1
and son of PW 2, who has attributed negligence to the
driver of the TATA Ace vehicle. The Police after
investigation filed charge sheet against the driver of the
said vehicle for causing the accident. Added to that, Ex.P.3
Spot Sketch and Ex.P.4 Spot Mahazar make it abundantly
clear that the petitioners, when the offending vehicle
dashed against them, were standing at a distance of 5 feet
12 MVC No.3681 & 3682/2015
from the edge of the road, which is of the width of 48 feet
with median. That means, the driver of the offending
vehicle had sufficient space to avoid the accident. The
sketch Ex.P.3 further shows that the petitioners were
standing at the time of accident and not crossing the road.
The contents of Ex.P.3 Sketch, Ex.P.4 Mahazar and the
Charge Sheet Ex.P.2 are not denied or disputed by the
respondent No.2. Thus, it can be said that when the
petitioners were standing at the edge of the road, the
offending vehicle came and dashed against them and
hence, no negligence can be attributed to them. Hence, I
answer issue No.1 in the affirmative and issue No.2 in the
negative.
27. Issue No.3 in MVC No.3681/2015:- MVC
No.3681/2015 is filed by Smt.Jugugu, who has been
examined as PW 2. The evidence of PW 2 would go to show
that she was aged 45 years and doing vegetable vending
and earning Rs.15,000/- per month prior to the accident
and in the said accident, she sustained grievous injuries
which resulted in permanent disablement, on account of
which, she is unable to work any more and hence, claimed
compensation.
13 MVC No.3681 & 3682/2015
28. The petitioner, apart from her oral evidence,
has produced Ex.P.6 Wound Certificate issued by
St.Martha's Hospital, Bangalore, wherein the following
injuries are shown:-
1. Lacerated wound present over the
forehead - right eye brow - irregular
5cmx5cmxbone deep.
2. Multiple contusion with abrasions
present over face, both foot.
3. Lacerated wound present over nose,
columnar ala junction extending to
vertibule of nose.
4. Fracture of the right clavicle and 4th
and 8th ribs - right.
5. Head injury with (a) subarchanoid
haemorhage - left parieto temporal
region.
6. Fracture of nasal septum and
depressed fracture of nasal bone
29. Apart from that, the petitioner has also
produced Discharge Summary marked as Ex.P.13, medical
bills for Rs.65,633/- marked as Ex.P.16.
30. Now, let me appreciate both oral and
documentary evidence available before the Court with
regard to the injuries, treatment, medical expenses,
amount to be awarded for loss of income during treatment,
loss of income on account of disability if an, loss of
amenities in life etc.
14 MVC No.3681 & 3682/2015
31. The petitioner has relied upon Ex.P.12 - Wound
Certificate, which shows that the petitioner has suffered
" 1) Lacerated wound present over the forehead - right eye
brow - irregular 5cmx5cmxbone deep. 2) Multiple
contusion with abrasions present over face, both foot. 3)
Lacerated wound present over nose, columnar ala junction
extending to vertibule of nose. 4) Fracture of the right
clavicle and 4th and 8th ribs - right. 5) Head injury with (a)
subarchanoid haemorhage - left parieto temporal region. 6)
Fracture of nasal septum and depressed fracture of nasal
bone". Injury No.1, 2 and 3 are shown to be simple in
nature and injury No.4, 5 and 6 are shown as grievous in
nature. The petitioner has also relied upon the Discharge
Summary as per Ex.P.13, which reveal that the petitioner
was inpatient from 09.06.2015 to 15.06.2015. The
petitioner was admitted with the above complaints under
neurosurgery in SICU. ENT opinion taken in view of nasal
bone fracture and orders followed. Orthopedics II opinion
taken in view of clavicular bone fracture, rib fractures and
orders followed. Plastic surgery opinion taken in view of
facial injuries - facial lacerations sutured. Medicine III
opinion taken in view of uncontrolled sugars and orders
15 MVC No.3681 & 3682/2015
followed. Repeat CT brain - no intracranial bleed or
clavarial fracture. During the stay in the hospital, patient
improved symptomatically and patient has been discharged
in stable condition and thus, in all the petitioner was
inpatient for 8 days.
32. The petitioner has stated in the petition that she
was working vegetable vendor and earning Rs.15,000/- per
month. But having stated so, no evidence is forthcoming
in support of the same. She admits that she has not
obtained any licence to do the business and further admits
that she is not having any document to show that she was
earning Rs.15,000/- per month. Thus, the Court has to do
guess work to assess the income of the petitioner in the
absence of any proof in that regard. The petitioner claims
that she was aged 45 years at the time of accident, but the
Identity Card issued by Election Commission of India and
marked as Ex.P.18 show the year of birth of petitioner as
1965 and the accident having occurred on 9.6.2015, it can
be said that she was running 50 years at the time of
accident and thus, considering the age of the petitioner as
shown in the Election Identity Card Ex.P.18, I deem it just
and proper to take her income as Rs.6,000/- per month.
16 MVC No.3681 & 3682/2015
33. As discussed above, the petitioner was inpatient for
8 days during the period from 09.06.2015 to 16.06.2015 as
discussed above. Having regard to the nature and gravity of
injuries and the treatment, some one must have attended
to the needs of the petitioner during the said period.
Added to that, the petitioner must have incurred some
amount for conveyance.
34. As discussed above, the petitioner has suffered
" 1) Lacerated wound present over the forehead - right eye
brow - irregular 5cmx5cmxbone deep. 2) Multiple
contusion with abrasions present over face, both foot. 3)
Lacerated wound present over nose, columnar ala junction
extending to vertibule of nose. 4) Fracture of the right
clavicle and 4th and 8th ribs - right. 5) Head injury with (a)
subarchanoid haemorhage - left parieto temporal region. 6)
Fracture of nasal septum and depressed fracture of nasal
bone". The petitioner has not examined the doctor who
treated her to show that the said injuries resulted in
disability. Even though the petitioner has examined PW 3
- D'Souza and PW 4 - Dr.R.Shashikanth, but the evidence
of PW 3 and 4 is only for the production of medical records
and their evidence, do not speak either regarding the
17 MVC No.3681 & 3682/2015
injuries, nature of treatment or the disability. Though in
the cross-examination, it is elicited that now she is not
working, but in the absence evidence as to the nature and
gravity of disability, it is not possible to assess the extent of
disability. Hence, I deem it just and proper to award
compensation under the head loss of amenities in life.
35. Thus, considering the nature of injuries ie.,
fracture of right clavicle and 4th, 7th and 8th ribs right,
fracture of nasal septum and depressed fracture of nasal
bones, apart from 3 other injuries, period and nature of
treatment, amount spent for conveyance, attendance,
medicines, loss of income suffered during treatment, loss of
amenities in life on account of the injuries, I deem it just
and proper to award compensation of Rs.1,25,000/- under
the above said heads.
36. The petitioner claims that she spent Rs.1,00,000/-
towards medical expenses, which the respondent No.2
denies. In support of his contention, the petitioner has
produced 55 bills marked as Ex.P.16, amounting to
Rs.65,634/- issued by Columbia Asia Hospital, St.Martha's
Hospital and other medical shops. I have gone through
these bills and verified the same meticulously. There is
18 MVC No.3681 & 3682/2015
nothing to discard or disbelieve the same. Hence, I award
Rs.65,634/- under the head medical expenses.
37. In her evidence, PW 2 though claims that she has to
spend for future treatment, which may cost Rs.1,00,000/-,
but the petitioner has not disclosed the nature of future
treatment nor PW 3 and 4 deposed about the same.
Hence, for want of evidence, the petitioner is not entitled to
compensation for future treatment.
38. Thus the Petitioner in MVC No.3681/2015 has been
awarded compensation under the various heads as under:
Sl.No. Head of Compensation Amount/Rs
1. Injury, pain and suffering, 1,25,000.00
attendant charges,
conveyance and other
incidental expenses, Loss of
income during treatment, Loss
of amenities in life
2. Medical expenses 65,634.00
Tota 1,90,634.00
39. Issue No.3 in MVC No.3682/2015:- MVC
No.3682/2015 is filed by Ruksana, who been examined as
PW 1. The evidence of PW 1 would go to show that in the
said accident, she sustained grievous injuries. To
substantiate the same, she has produced Ex.P.6 - Wound
Certificate issued by St.Martha's Hospital which reveals
that in the accident, she suffered:
19 MVC No.3681 & 3682/2015
1) Head injury
2) Soft tissue injuries of the left foot and left side of
chest - mid axillary line.
40. The petitioner has also produced the Discharge
Summary marked as Ex.P.7 issued by St.Martha's
Hospital, Bengaluru, wherein it is shown that the
petitioner has suffered "Soft tissue injury of left foot and left
chest". The above injuries are shown to be simple in
nature. The petitioner was inpatient from 12.06.2015 to
16.06.2015 which is clear from Ex.P.7 - Discharge
Summary. During the said period, the petitioner was
treated conservatively.
41. It is the case of petitioner that she was running
19 years at the time of accident and doing vegetable
vending business and earning Rs.12,000/- per month and
on account of the injuries suffered by her in the accident,
she not only suffered loss of income during treatment but
also suffered permanent disability, which rendered her
incapable to continue her work and thereby she has
suffered loss of future income. But, as discussed above,
since the petitioner has suffered only simple injuries,
question of consideration of permanent disability, if any,
20 MVC No.3681 & 3682/2015
suffered by petitioner cannot be considered nor
compensation can be awarded under the above head.
Hence, considering the nature and gravity of injuries and
the period of treatment, the petitioner has been awarded
Rs.30,000/- under the head pain and suffering, attendant
conveyance and other miscellaneous expenses, loss of
income during treatment, loss of amenities in life.
42. So far as medical expenditure is concerned, the
petitioner has produced bills marked as Ex.P.10 for
Rs.8,037/-. I have gone through the above bills and found
to be genuine. Hence, she is entitled to compensation of
Rs.8,037/- under the head medical expenses.
43. Thus the Petitioner in MVC No.5309/2014 has
been awarded compensation under the various heads as
under:
Sl.No. Head of Compensation Amount/Rs
1. Injury, pain and suffering, 30,000-00
conveyance, attendant and
other incidental expenses, loss
of income during treatment,
Loss of amenities in life
2. Medical expenses, 8,037-00
Total 38,037-00
44. So far as the liability to pay compensation
amount is concerned, it is the contention of the respondent
21 MVC No.3681 & 3682/2015
No.2 that the driver of the insured vehicle was driving the
vehicle without possessing valid and effective driving
licence. The jurisdictional Police have filed charge sheet
against the driver of the insured vehicle under Section 3(1)
read with Section 181 of MV Act as he had no valid and
effective driving licence and the Police have also filed
charge sheet against the respondent No.1 for knowingly
entrusted the vehicle to the driver, who had no valid and
effective driving licence. The further case of the respondent
No.2 is that the said fact has been discovered during the
course of investigation conducted by their investigator, as
against the same. In order to substantiate the same, the
respondent No.2, not only examined one of its officials as
RW 2, but also examined an official from the office of the
RTO, Arishinakunte, Nelamangala as RW 1 and both of
them deposed that the person who was driving the
offending vehicle at the time of accident, had no driving
licence to drive the offending vehicle in as much as, the
offending vehicle being a transport vehicle, Ex.R.4 - driving
licence held by the driver, had no endorsement in that
regard.
22 MVC No.3681 & 3682/2015
45. The counsel appearing for the petitioner in his
arguments, by relying upon the unreported judgment in
MFA 865/2011 (Iffco Tokio General Insurance Co., Ltd.,
Vs. K.Prabhakara Reddy) decided on 19.09.2013,
vehemently contended that the respondent No.2 has not
proved that the driver of the offending was not possessing
a valid licence and the said plea remained as such, without
proof and hence, prayed to direct the respondent No.2 to
indemnify the respondent No.1 and pay the compensation
amount.
46. The Counsel for the respondent No.2, in his
arguments, contended that the insurance company is not
liable to pay the compensation for the reason that the
person who is having the driving licence to drive the LMV is
not having any validity to drive the LMV transport vehicle.
The Counsel for the respondent No.2 placed reliance upon
the unreported judgment of High Court in MFA
No.7949/2011 (MV) decided on 2nd day of June'2015. In
the said judgment, High Court making reference to the
judgment in 2008 AIR SCW 906 ( National Insurance co.,
Ltd., Vs. Annappa Irappa Nesarai and others), contended
that mere holding of driving licence in respect light motor
23 MVC No.3681 & 3682/2015
vehicle is not sufficient to drive goods vehicle. In the said
judgment, the High Court has also discussed the judgment
reported in 2009 ACJ 1411 ( Oriental Insurance Co., Ltd.,
Vs Angad Kol and others) in which the distinction between
LMV and transport vehicle has been made and held that:
2009 ACJ 1411 (Oriental Insurance Co., Ltd., Vs. Angad
Kol and others) "Motor Insurance - Driving licence - -
Liability of insurance company - Delivery auto - a goods
vehicle, dashed against a person and she sustained fatal
injuries - Insurance Company seek 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
bring 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 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".
47. Relying on the principles laid down in the above
judgment, the Counsel for the respondent No.2 vehemently
contended that, the offending vehicle being a transport
vehicle, admittedly the driver was holding licence to drive
LMV only and therefore, there being breach of policy
conditions, there is no liability on the insurance company
to pay the compensation amount to the petitioners.
24 MVC No.3681 & 3682/2015
48. Now, coming to the point of holding of effective
driving licence by the driver of the offending vehicle at the
time of accident, as stated above, as per Ex.R.1 -
Insurance Policy shows that the offending vehicle is a good
carrying vehicle. The police after investigation filed charge
sheet against the driver of the offending vehicle under
Section 187, 3(1), and Section 5(1) of the MV Act apart
from Sections 279, 337 and 338 of the IPC and this fact is
not disputed by the petitioners. As per Ex.R.3, the driver
of the offending vehicle had licence to drive LMV and
MCWG. The petitioners Counsel vehemently contended
that the driver of the offending vehicle was holding licence
to drive LMV, the insurance company may be directed to
pay the compensation amount.
49. On the other, the Counsel for the respondent
No.2 vehemently contended that though the driver had
licence to drive LMV, there being clear distinction between
a 'LMV' and a transport vehicle as laiddown in the
judgment reported in 2009 ACJ 1411, in the similar set of
circumstances, exonerated the insurance company from its
liability and hence, prayed to dismiss the petition as
against the insurance company.
25 MVC No.3681 & 3682/2015
50. As discussed above, as per Ex.R.4, the driver of
the offending vehicle was possessing licence to drive
MCWG and LMV. As discussed above, in the judgment
reported in 2009 ACJ 1411, the Supreme Court held that
there is distinction between LMV and transport vehicle,
mere possessing licence to drive LMV non-transport, is not
sufficient to hold that such person can drive transport
vehicle also and hence, exonerated the insurance company
from its liability. Further, in the case reported in ILR 2015
KAR 2064 (Mohammed @ Mohd Haneef Vs Mallayya @
Mallapaji and another), it is held that "if a person has
authority to drive the commercial transport vehicle, he must
have a licence as contemplated under the Rules amended,
which came into force from 28.03.20011. If he does not have
such a licence, there would be contravention of the Act. He
does not have competency to drive such vehicle and thereby
there would be breach of conditions of the policy, for which
the insurance has to be exempted from the liability. It is only
the Apex Court, which has got authority to direct the insurer
by exercising powers under Article 142 of the Constitution
and such powers are not available to this Court or any other
Courts". Since the facts of the said case being similar to
26 MVC No.3681 & 3682/2015
the case on hand, it is held that there being breach of
policy conditions, in as much as, the driver of the offending
vehicle was not holding valid and effective driving licence to
drive the class of vehicle involved in the accident, the
petition as against the respondent No.2 -Insurance
Company is liable to be dismissed and it is only the
respondent No.1, the owner of the vehicle, who is
responsible to pay the compensation amount to the
petitioners. Hence, this issue is answered accordingly.
51. As far as awarding of interest on the
compensation amount is concerned, the Hon'ble Supreme
Court in a case reported in (2011) 4 SCC 481 : (AIR 2012
SC 100) (Municipal Council of Delhi Vs. Association of
Victims of Uphaar Tragedy) held that it is settled law that
while awarding interest on the compensation amount, the
Court has to take into account the rate of interest of the
nationalized bank and the rate of interest at 9% cannot
said to be on the higher side. Hence, I deem it just and
proper to award 9% interest on the compensation amount.
Accordingly, Issue No. 3 is answered. In the result I pass
the following:
27 MVC No.3681 & 3682/2015
ORDER
MVC No.3681/2015 is partly allowed with cost. Petitioner has been awarded compensation of Rs.1,90,634/- from the Respondent No.1 together with interest at the rate of 9% p.a., from the date of petition till realization. The respondent No.1 shall deposit the amount within 2 months from the date of this order.
In the event of deposit, 50% of the compensation amount with proportionate interest is ordered to be deposited in FD in any of the nationalised bank or scheduled bank of the choice of petitioner for a period of 3 years. Balance amount with proportionate interest is ordered to be released to the petitioner. Interest on FD is payable on maturity.
MVC No.3682/2015 is partly allowed with cost. Petitioner has been awarded compensation of Rs.38,,037/- from the Respondent No.1 together with interest at the rate of 9% p.a., from the date of petition till realization. The respondent No.1 shall deposit the amount within 2 months from the date of this order. 28 MVC No.3681 & 3682/2015
Upon deposit, entire compensation amount with interest accrued thereon is ordered to be released to the petitioner.
Both the petitions as against respondent No.2 are dismissed.
Advocate's fee is fixed at Rs.1,000/- in each of the petition.
Original judgment shall be kept in MVC No.3681/2015 and a copy thereof in other case.
Draw an award accordingly.
(Dictated to the Judgment Writer directly on computer, corrected, revised, signed and then pronounced by me in the open court on 25.11.2016) (H.P.SANDESH) Member, Prl. M.A.C.T. Bangalore ANNEXURE Witnesses examined on behalf of the petitioners:
P.W.1 : Ruksana
P.W.2 : Smt.Jugunu
P.W.3 : D'Souza
P.W.4 : Dr.Shashikanth
Witnesses examined on behalf of the respondents :
RW 1: : Karthik M.,
RW 2: : B.S.Kusumavathi
Documents marked on behalf of the petitioners:
Ex.P-1 : Certified copy of FIR Ex.P-2 : Charge Sheet Ex.P-3 : Sketch 29 MVC No.3681 & 3682/2015 Ex.P-4 : Mahazar Ex.P-5 : IMV Report Ex.P-6 : Wound Certificate Ex.P-7 : Discharge Summary Ex.P-8 : Prescriptions Ex.P-9 : Registration Card Ex.P.10: Medical Bills Ex.P.11: X-ray Ex.P.12: Wound Certificate Ex.P.13: Discharge Summary Ex.P.14: Lab Reports Ex.P.15: Prescriptions Ex.P.16: Medical Bills Ex.P.17: Photos with CD Ex.P.18 Election ID Card &19:
Ex.P.20: MRI Flims Ex.P.21: Medical Bills Ex.P.22: Photos with CD Ex.P.23: MLC Extract Ex.P.24: Police Intimation Ex.P.25: X-ray Ex.P.26 & OP & IP Record P.27 Ex.P.28 & MLC & Police Intimation P.29 Ex.P.30 X-ray Ex.P.31 OP Record Ex.P.32 IP Record Ex.P.33 & MLC & Police Intimation P.34 Ex.P.35 X-rays Documents marked on behalf of the respondents.
Ex.R.1: Policy Copy Ex.R.2: Letter with postal receipt Ex.R.3: DL Extract Ex.R.4: Authorisation Letter Ex.R.5: DL Extract (H.P.SANDESH) Member, PRL.M.A.C.T.