Bangalore District Court
Smt.Zareen Taj vs United India Insurance Co. Ltd on 29 July, 2016
Before the VII Addl.Judge, XXXII ACMM
and MACT, Court of Small Causes,
Bangalore
(SCCH-3)
Present: Smt. Gomati Raghavendra,
LL.M., D.I.P.R., D.C.L.,
VII Additional Small Causes Judge
and M.A.C.T., Bengaluru.
Dated this the 29th day of JULY 2016
M.V.C.No.6100/2012
Petitioner Smt.Zareen Taj,
Wife of Late Syed Yousuff,
Aged about 60 years,
No.12, G Street,
B Block, Mominpura,
Mysore Road,
Bengaluru-560 026,
Since dead by LRs.
a) Shri Yakub (Died)
Son of Late Syed Yusuff,
Aged about 36 years,
Residing at No.G-72, G Block,
Mominpura,
Bengaluru-560 026.
b) Smt.Nasima,
2 SCCH-3 MVC 6100/2012
Wife of Aproz Pasha,
Aged about 41 years,
Residing at No.14/13B,
G Cross, Kadaga Sabjam Road,
Padarayanapura,
Bengaluru-560 026.
c) Smt.Nagina Banu,
Wife of Late Sardar Pasha,
Aged about 38 years,
Residing at No.12, Mominapura,
Old Guddadahalli,
Mysore road,
Bengaluru.
(Shri G.Muralidhar, Advocate)
V/s.
Respondents 1. United India Insurance Co. Ltd.,
No.1, 104A,
Peramanur Road,
Salem-636 007,
(Shri H.A.Kumara Swamy,
Advocate)
2. Shri Srinivasa Enterprises
(Deleted)
3. Shri S.Sudhagar,
Son of Subramani,
Aged about 32 years,
No.10, SSS Building,
A.V.Road, Chamrajpet,
Bengaluru-18 (Office address)
3 SCCH-3 MVC 6100/2012
(Exparte)
4. Shri Ravishankar K.S.,
Son of Sanjeevappa,
Major,
No.577, Upper Street,
Kengeri,
Bengaluru-560 060.
(Shri Bhanu H.M., Advocate)
JUDGMENT
This is a claim petition filed by the petitioner against the respondents under Section 166 of Motor Vehicles Act, 1989, seeking compensation of Rs.10,00,000/- for the alleged injuries sustained by her and later succumbed to the injuries in a road traffic accident.
2. The case of the petitioner in brief is as under:
That, on 24.5.2012 at about 8.00 p.m., herself, her daughter and grand son were proceeding in a autorickshaw bearing registration No.KA-05-8240 from Madikeri cross to Chintamani, when they came near Anjaneya Temple of Boorgamakanahalli, at that time one lorry bearing registration No.KA-01-D-7258 came from opposite direction 4 SCCH-3 MVC 6100/2012 in a rash and negligent manner dashed against the autorickshaw. Due to the said impact autorickshaw was crushed and the petitioner sustained grievous injuries. Immediately she was shifted to Chintamani hospital for first aid treatment and thereafter she was shifted to Victoria hospital, Bengaluru and admitted as an inpatient, from there she was taken to Popular hospital and finally she was admitted to St.John Medical College Hospital, wherein she took the treatment as an inpatient from 30.3.2012 to 23.8.2012. In the said hospital her left leg was amputated above the knee.
3. Prior to the accident petitioner was hale and healthy by getting monthly income of Rs.9,000/- from Agrabathi work. The accident in question has taken place on the rash and negligent driving of the driver of the Lorry. Thereby, Chitnamani Rural Police have registered the case against the driver of the lorry in Crime No.122/2012 for the offences punishable u/s 279, 337 and 338 of IPC. 5 SCCH-3 MVC 6100/2012
4.During the pendency of the petition the petitioner died and her LRs. are brought on record as petitioner Nos. 1 (a) to 1(c) and the petitioner 1(a) died on 1.1.2016 and the petitioner Nos. 1 (b) & (c) continued the proceedings.
5. Further the petitioners 1(b) & (c) have filed the amended petition and stated that they are the legal heirs of deceased Zareen Taj. But the LR (a) of the petitioner is died and the same has been reported. It is contended that during the life time of the petitioner, the LRs have spent lot of money for her treatment and they are only the children to the petitioner. They have also taken care and custody of the deceased-petitioner till her death. She died due to sufferance from the said accident only. So, the petitioners are entitled for medical expenses, transportation and consequential expenses, food and nourishment and attendance expenditure with interest. That driver of the autorickshaw has no fault in the accident and the first respondent has impleaded the 4th respondent, but he is a 6 SCCH-3 MVC 6100/2012 formal party. They have contended that respondent Nos.1 & 3, who are jointly and severally liable to pay the compensation. Hence, this petition.
6. The respondent No.2 is subsequent owner deleted at the instance of the petition. Respondent No.3 did not appear before the court inspite of service of summons and remained exparte and respondent Nos. 1 & 4 have appeared through their respective counsel and filed written statement.
7.The respondent No.1 in its written statement has alleged that the claim petition filed by the petitioner is not maintainable either in law or on facts, but he has admitted about issuance of the policy in respect of the lorry and its liability is subject to terms and conditions of the policy and it has contended that the driver of the lorry was not holding valid and effective driving licence, which is in contravention of the policy conditions. Further contended that the driver of the lorry bearing registrationNo.KA-01-D-7258 drove the 7 SCCH-3 MVC 6100/2012 same slowly and cautiously by observing all the traffic rules and regulations and as such he is not responsible for the alleged accident. Further contended that the driver of the autorickshaw was not holding valid and effective driving licence to drive the same and denied the rest of petition averments. Thus, prays to dismiss the petition.
8. Respondent No.4 has filed his written statement and contended that petition filed by the petitioner is false, mischievous and devoid of any merits and this respondent is no way connected to the injuries and the said vehicle was sold before the date of accident and the owner of the autorickshaw is one Madhukumar and the autorickshaw registration Number is KA-05-8240 all transfer of rights of ownership over the said autorickshaw ceased to exist with this respondent on the day he sold to Madhukumar, son of Krishna in the month of October 2011 itself. Therefore, he is not liable to pay the compensation. He has been 8 SCCH-3 MVC 6100/2012 unnecessarily dragged him to the court for no fault of him. Hence, he prays to dismiss the petition.
9. On the basis of the rival contention of the parties the Tribunal has framed the following issues:
1. Whether the petitioners prove that they are the LRs of deceased Smt.Zareen Taj ?
2. Whether the petitioners prove that deceased Smt. Zareen Taj was died in RTA arising out of the accident alleged to have been taken place on 24.5.2012 at about 8.00n p.m. near Boorgamakanahalli, Anjayaneya Temple, Chintamani due to the rash and negligent driving of the driver of the Heavy Lorry bearing registration No.KA-01-D-7258?
2. Whether the petitioners are entitled for any compensation? If so, what amount and from whom?
3. What Order or Award?
10.Before the death of petitioner, petitioner herself was examined as PW1 and got marked the documents as 9 SCCH-3 MVC 6100/2012 Ex.P1 to Ex.P10 and doctor is examined as PW2 and got marked the documents as Ex.P11 and Ex.P12 and after the death of petitioner his legal representative i.e., the petitioner No.1 (b) examined as PW3 and got marked the document as Ex.P13. The respondent No.1 has examined its witness as RW1 and got marked the document as Ex.R1 and Ex.R2.
11. Heard arguments on both side.
12. My finding on the above issues are as under:
Issue No.1: Affirmative
Issue No.2: Affirmative
Issue No.3: Partly affirmative
Issue No.4: As per the final order
for the following.
REASONS
13. Issue No.1:
In the initial stage petitioner being the injured had filed the instant claim petition, but during pendency of the 10 SCCH-3 MVC 6100/2012 petition, the petitioner was died and her legal heirs are brought on record as petitioner Nos. 1(a) to 1(c).
14. Petitioner Smt.Zareena Taj examined as PW1, in her evidence had stated that on 24.5.2012 at about 8.00 p.m. she was proceeding in a autorickshaw bearing registration No.KA-05-8240 along with her daughter and grand son from Madikere cross to Chintamani, when they came near Anjaneya Temple of Boorgamakanahalli at about 8.30 p.m. a lorry bearing No.KA-01-D-7258 driven by its driver came from opposite direction on wrong side in a rash and negligent manner dashed against the autorickshaw. Due to the said impact, she has sustained grievous injuries.
15.After the death of PW1 the petitioner No.1(b) has filed her affidavit as her chief-examination as PW3, in which she has stated that she is the daughter of the deceased-petitioner Zareena and the petitioner No.1 (a) is died and the petitioner No.1(c) is her sister. 11 SCCH-3 MVC 6100/2012
16.The petitioner in support of her oral evidence has produced the documents marked as Ex.P1 to Ex.P10 such as FIR with complaint, panchanama, wound certificate, charge sheet, IMV report, discharge summary, Certificate of Victoria hospital, bills of popular hospital, medical bills and prescriptions.
17. Ex.P1 is the FIR, which reveals that Chintamani Rural police have registered the case against the driver of the lorry Cr.No.122/2012 for the offences punishable U/s 279 337 and 338 of IPC, and the complaint was given by one Irfan son of Sardar. Ex.P2 is the panchanama clearly reflects that the accident in question has taken place on the rash and negligent driving of the driver of the lorry. Ex.P3 is the wound certificate clearly reflects that the petitioner has sustained grievous injuries in a road traffic accident. Ex.P4 is the charge sheet filed by the I.O., in which it is clear that the I.O., after conducting the investigation has charge sheeted against the driver of the 12 SCCH-3 MVC 6100/2012 lorry for the offences punishable under Section 279, 337 and 338 of IPC. Ex.P5 is the IMV report discloses that the accident occurred not due to any mechanical defect of the vehicle. Ex.P6 is the discharge summary, Ex.P7 is the Feed back of referred cases, Ex.P8 to Ex.P10 are the medical bills of different hospitals. So, the documents marked as Ex.P1 to Ex.P10 are coupled with the oral evidence of PW1. At the instance of the respondent No.1, respondent No.4 (Autorickshaw owner) was impleaded. According to the respondent No.1, it was negligent and wrongful act of the autorickshaw driver due to which the present accident took place. Though, the respondent No.1 has contended so, but he has not led any convincing rebuttal evidence to disprove the oral and documentary evidence of the petitioner. On the other hand, the petitioners have proved their case through oral and documentary evidence that the accident in question has 13 SCCH-3 MVC 6100/2012 taken place on the rash and negligent driving of the driver of the lorry. Hence, I answer this issue in the affirmative.
18. Issue No.2:
The Petitioner No.1(b) alleged daughter of deceased Zareen Taj has examined herself as PW3. In her evidence she has stated that, her mother has met with an accident on 24.5.2012 at about 8.00 p.m. and due to the said impact she sustained the following injuries;
1)Fracture of legs,
2)Dislocation of her right elbow fracture
3)Dislocation of left hip and pelvis and other injuries on her face, forehead, knees and other parts of her body.
19. Immediately she was shifted to Chintamani hospital for first aid treatment, later on, she was shifted to Victoria hospital, Bengaluru, and then shifted to Popular hospital, later on she was shifted to St.John hospital, wherein she took the treatment from 30.5.2012 to 14 SCCH-3 MVC 6100/2012 23.8.2012. She underwent surgery and her left leg was amputated above the knee, fixation of left femur tibia was done. They have spent huge amount towards medical expenses.
20. It is evident that the petitioners have filed the petition only for medical expenses, transportation, nourishment and attendant charges. There is no proof about the nexus between the injuries and the death of the deceased-petitioner, as the petitioner and that is the reason why present petitioners are claiming compensation under the above heads. Under such circumstances, when the injured died during the pendency of the petition, the petitioners are entitled only for medical expenses and loss of income during treatment period.
21. At this juncture, this court drawn its attention on the decision reported in 2010 KAR MAC 557 in between Somavva and others Vs. Vijaya Kumar and others. In the said decision the injured was died during the pendency 15 SCCH-3 MVC 6100/2012 of the petition and his legal heirs were brought on record and his lordship held that, the legal heirs are entitled for medical expenses and loss of income during the period of treatment. So, by virtue of the above said decision, if injured died during the pendency of the claim petition, then her legal heirs are entitled for compensation towards medical expenses and loss of income during treatment period.
22. PW3 in her evidence has stated that prior to the accident her mother was hale and healthy and doing Agarbathi making work and getting monthly income of Rs.9,000/- and she was contributing her entire income to the maintenance of the family. But she has not produced any documents to show that her mother was making Agarabathi by earning a sum of Rs.9,000/- per month. In the absence of the materials on record, it is very difficult to believe the avocation and income of the deceased as alleged in the claim petition. So considering the age and present 16 SCCH-3 MVC 6100/2012 life condition and the injuries sustained by the petitioner the notional income of the injured is considered as Rs.7,000/- per month. Ex.P6 clearly reflects that, the petitioner got admitted to the hospital from 30.5.2012 to 23.8.2012 for a period of 84 days and her leg was amputated above the knee. She might have lost her income for a period of five months. So, five months income comes to Rs.35,000/- is entitled by the petitioners.
23. Ex.P8 are the medical bills produced by the petitioner in which it reveals that they have spent Rs.3,03,718/- towards the treatment of the injured. Though the respondents have disputed the medical bills produced by the petitioner. But nothing is placed to show that the medical bills produced by the petitioner are not relating to the treatment taken by the deceased-petitioner. In the absence of the materials on record, it is clear that the petitioners have spent Rs.3,03,718/- towards medical expenses. In total Rs.3,03,718/-+ 35,000/- towards loss of 17 SCCH-3 MVC 6100/2012 income during treatment period the petitioners are entitled for Rs.3,38,718/-.
24. Respondent No.1 in his written statement has contended that the driver of the autorickshaw bearing No.KA-05-8240 is not having valid permit to run at Kolar district and there was no driving licence for the driver of the autorickshaw and the permit has been given by the authority only for BBMP limits and the liability has been fixed to the owner of the autorickshaw. In this regard he has examined RW1. RW1 has reiterated the averments as alleged in the written statement. So before considering the violation relating to permit it is necessary to know the procedure for issue of permit relating to the contract carriage as Ex.R1 clearly reflects that respondent No.4 being the owner of the autorickshaw has permit of contract carriage to ply the autorickshaw. So, this court has drawn 18 SCCH-3 MVC 6100/2012 its attention on Section 73 of Motor Vehicles Act 1988 reads like thus;
73. Application for contract carriage permit; An application for a permit in respect of a contract carriage shall contain the following particulars, namely:-
a) the type and seating capacity of the vehicle;
b) the area for which the permit is required;
c)any other particulars which may be prescribed
25.The above provision is clear that the person who intends to obtain the contract carriage has to file an application for permit in respect of contract carriage by furnishing the particulars viz., type of vehicle, seating capacity of the vehicle area for which the permit is required, in other particulars which may be prescribed. But counsel for the respondent No.4 has not taken steps to examine the RTO, Bengaluru for obtaining permit to ply the autorickshaw in the place of accident and more over the 19 SCCH-3 MVC 6100/2012 respondent No.4 has not stepped into the witness box to substantiate his contention. So, one thing is clear that the respondent No.4 has not furnished any of documents to show that the he has obtained the permit relating to the area where the accident has taken place. So, the evidence of RW1 and Ex.R1 clearly reflects that the respondent No.4 has violated the permit conditions. Therefore, this court has drawn its attention on the decision reported in 2011 AAC 3034 (KAR) in between New India Assurance Co.
Ltd., Vs. M. Sureshappa and another in which it is held that;
"(B) Motor Vehicles Act (59 of 1988), Section 149 - Liability of insurer - Breach of permit conditions - Vehicle involved plied beyond permitted limits - Owners has also not obtained fitness certificate to ply vehicle -
Owner having committed violation of conditions of permit - Insurer cannot be fastened with liability to indemnify the claimant."
26. In the above said decision the insurance company has challenged the award passed by the Tribunal and his 20 SCCH-3 MVC 6100/2012 lordship held that owner has committed breach of permit conditions as the autorickshaw involved in the accident has been plied beyond the limits permitted under the permit as the insurer has examined the RTO of Haveri in his evidence clearly reveals the vehicle involved in the accident had been permitted to ply in Guttal Village and within 10 kms. The said Guttal village and the radius of 10 kms. comes within the Ranebennur Taluk of Haveri District and the accident was taken place at Mylar village in Hoovinahadagali Taluk of Bellary District and the permit conditions did not allow the owner to ply outside the district. The above decision is clear that the autorickshaw owner has violated the permit conditions. Therefore, his lordship held that the insurance company is not liable to pay the compensation.
27.In the instant case also the respondent No.4 has violated the permit conditions. Though he has appeared through his counsel and stated that he has sold autorickshaw to one Madhukumar in the month of October 21 SCCH-3 MVC 6100/2012 2011 itself. But he has not stepped into the witness box nor placed any records to show that he has sold his autoirickshaw to one Madhukumar and he had permit to ply the autorickshaw within Kolar District as Ex.R1 discloses that permit type is 'contract carriage permit' and route shows within Bruhat Bengaluru Mahanagara Palike. In the absence of the materials, I am of the opinion that the respondent No.4 has violated the policy conditions and if 10% contributory negligence is fixed on the respondent No.4, who is the owner of the autorickshaw it will meet the ends of justice.
28. Respondent No.1 being the insurer of the offending vehicle in his written statement has admitted about the issuance of policy in respect of the offending vehicle, but he has not stated about the validity of policy. He has produced Ex.R1 which discloses the period of policy from 30.9.2011 to 29.9.2012 and the accident was 22 SCCH-3 MVC 6100/2012 occurred on 24.5.2012. So, as on the date of accident the policy was in existence.
29. Respondent No.1 has contended that as on the date of the accident the driver of the offending vehicle was not holding valid and effective driving licence to drive the same. But for the reasons best known to the respondent No.1, he has not placed any materials on record to show that as on the date of the accident the offending vehicle driver was not holding valid and effective driving licence and Ex.P4 is the charge sheet filed by the I.O., Perusal of which nowhere discloses that the offending vehicle driver was not holding valid and effective driving licence as on the date of accident. If at all the driver of the offending vehicle was not holding the valid and effective driving licence the I.O., would have charge sheeted against the offending vehicle driver for the offence punishable under Section 181 of MV Act. So on record there is no material to show that the offending vehicle driver was not holding valid and 23 SCCH-3 MVC 6100/2012 effective driving licence as on the date of the alleged accident. So, one thing is clear that, as on the date of the alleged accident the policy was in existence and the offending vehicle driver was holding valid and effective driving licence. So, the respondent Nos.1 and 3 are jointly and severally liable to pay the compensation. But in view of the valid insurance policy the respondent No.1 alone is liable to pay the compensation to the petitioner with interest at the rate of 8% p.a. from the date of petition till its realization to the extent of 90% and remaining 10% is fixed on the respondent No.4 who is the owner of the autorickshaw with interest at 8% p.a.. In the result, the issue No.2 is answered as partly in the affirmative.
30. Issue No.3:
In view of my finding on issue Nos.1 & 2, I proceed to pass the following:24 SCCH-3 MVC 6100/2012
ORDER The petition filed by the petitioners under section 166 of M.V. Act is partly allowed, with costs. The petitioners are entitled for compensation of Rs.3,38,718/- together with interest at the rate of 8% p.a. from the date of the claim petition till its realisation.
The respondent Nos.1 & 3 are jointly and severally liable to pay the compensation. In view of the valid insurance policy the respondent No.1 being the insurer of the offending vehicle shall pay the compensation amount with interest at the rate of 8% p.a. from the date of the claim petition till its realization to the extent of 90% and the remaining 10% is fixed on the respondent No.4 who is the owner of the autorickshaw with interest at 8% p.a. within 30 days from the date of this order. 25 SCCH-3 MVC 6100/2012
On deposit of the compensation amount together with interest, 50% each is allotted to petitioner Nos. 1(b) and 1(c).
Out of the said amount, the entire amount shall be released to them by means of a/c payee cheque on proper identification as the amount awarded towards medical expenses and loss of income during treatment period.
Advocate fee is fixed at Rs.1000/-. Draw award accordingly.
Dictated to the stenographer, transcript thereof, corrected by me and then pronounced in the open court on this the 29th day of July 2016.
(GOMATI RAGHAVENDRA) VII Addl. Judge & XXXII ACMM, Bengaluru.
ANNEXURE List of the witnesses examined on behalf of petitioners:
PW1 Smt.Zareen Taj 19.7.2014
PW2 Dr.Mahadev Kumar P. 12.9.2014
26 SCCH-3 MVC 6100/2012
PW3 Smt.Nasima 22.3.2016
List of the documents exhibited on behalf of petitioners:
Ex.P1 Copy of FIR with complaint Ex.P2 Copy of Panchanam Ex.P3 Copy of wound certificate Ex.P4 Copy of charge sheet Ex.P5 Copy of IMV report Ex.P6 Discharge summary Ex.P7 Certificate of Victoria hospital Ex.P8 Bill of popular hospital Ex.P9 Medical bills Ex.P10 Prescriptions Ex.P11 Outpatient and inpatient record Ex.P12 X-ray Ex.P13 Notarized Copy of Ration Card List of the witnesses examined on behalf of respondents: RW1 Smt.Vijayalakshmi 18.7.2016
List of the documents marked on behalf of respondents:
Ex.R1 Permit details of R4
27 SCCH-3 MVC 6100/2012
Ex.R2 Copy of policy
(GOMATI RAGHAVENDRA)
VII Addl. Judge & XXXII ACMM,
Bengaluru.