Bangalore District Court
Gangarapu Rajasekhar vs Siddaraju H.S on 16 February, 2024
KABC020137132022
IN THE COURT OF XXI ADDL.SMALL CAUSE JUDGE AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, BANGALORE.
(SCCH-23)
DATED THIS THE 16th DAY OF FEBRUARY - 2024
PRESENT: Sri. Aalok. A.N
(B.B.A. LL.B),
XXI ADDL. SCJ & ACMM
MEMBER - MACT, BENGALURU.
MVC. No.2310/2022
Petitioner : Sri. Gangarapu Rajashekar,
S/o Gangarapu Gangadhara Rao,
Aged about 40 years.
R/at : No.15-220,
Railway Station Road,
Gollaprolu,
Gollaprolu Mandalam,
East Godavari,
Andhra Pradesh-533445.
(By Advocate: Smt. K.B. Roopa)
v/s
Respondent/s : 1. Sri. Siddaraju. H.S,
S/o Late Srikanth,
Haralahalli village,
SCCH-23 2 MVC-2310/2022
Sosale Hobli,
T.Narasipura Taluk,
Mysore District-571120.
(Exparte)
2. The Manager,
The Oriental Ins.Co.Ltd.,
Leo Shopping Complex,
No.44/45, Residency Road,
Bengaluru-560001.
Policy No.422800/31/2022/5149
Validity 18.08.2021 to 17.08.2026
(By Advocate: Suma)
JUDGMENT
This claim petition is filed under section 166 of the M.V. Act, seeking compensation for the injuries sustained in a road traffic accident.
2. Brief case of the petitioner in the nutshell:
It is the case of the petitioner that, on ill fated day i.e.., on 09.04.2022 at about 8.40 a.m, when the petitioner was walking on the left side road near Garvebhavipalya Bus stop, Hosur Main road, Bengaluru at that time a motorcycle bearing Reg.No.KA-55-EB-6338 which was driven by its rider in rash and negligent manner so as to endanger the human life and dashed to the petitioner and as such the petitioner was knockdown and sustained grievous injuries all over his body and also undergone surgery. He incurred substantial amount towards medical and other incidental expenses. It is further SCCH-23 3 MVC-2310/2022 submitted that the petitioner was hale and healthy and and working as Security guard and earning Rs.25,000/- p.m. and contributed his entire earnings to his family. It is specifically urged that, due to the said accident his face has been disfigured, cannot walk, and due to head injury sustained in the accident he got giddiness and head ache at several times.
Further it is specifically urged that, the accident happened because of rash and negligent rider of the rider of motorcycle. Hence the respondent No.1 and 2 are jointly and severally liable to pay compensation, as such prayed to grant a compensation amount.
3. Notice was duly served to respondent No.1, the respondent No.1 did not appear before this Tribunal. Hence he was placed exparte.
4. After service of notice respondent No.2 spurred in rush to the Court by filing written statement rather objections to the main petition contending that the petition itself is not maintainable either law or on facts. The respondent No.2 denied the issuance of insurance policy in respect of motorcycle bearing Reg.No.KA-55-EB-6338 & same is pending confirmation from the concerned branch. Non-compliance of section's 134(c) and 158(6) of MV Act is pleaded. Negligence on the part of the rider of motorcycle is denied by this respondent. Per contra it is alleged that the accident has taken place due to the negligence of the petitioner himself. Without prejudice to the said SCCH-23 4 MVC-2310/2022 contention it is averred that the rider of the motorcycle did not possess valid & effective DL as on the date of accident. Despite knowing the said fact the owner thereof had handed over its possession to such a rider. Further the police have filed chargesheet against the rider of motorcycle and owner of the motorcycle for the offences punishable u/s 279, 338 of IPC r/w section 181, 3(1), 180 and section 5 of the IMV Act. On account of willful breach of the terms & conditions of the policy by the insured, the insurance company is not liable to indemnify him. Further denied all the allegation made in the petition. Hence prayed to dismiss the petition.
5. On the basis of above pleadings the following issues were framed :
ISSUES
1) Whether the petitioner proves that on 09.04.2022 at about 8.40 p.m., while he was walking on the left side of the road near Garvebhavi Palya Bus stop, Hosur Main road, Bengaluru City, at that time, the rider of motorcycle bearing Reg.No.KA-55-EB-6338 drove the same in a rash and negligent manner and dashed to the petitioner, as a result the petitioner fell down and sustained grievous injury ?
2) Whether the petitioner is entitled for compensation as prayed for? If so, at what rate and from whom ?
3) What order or award ?SCCH-23 5 MVC-2310/2022
6. The petitioner examined himself as PW.1. Ex's.P1 to 11 were marked on his behalf. Dr.N. Chaitanya Babu, Dental Surgeon was examined as PW.2. Ex's.P12 & 13 were marked through him. Further Dr.S.A. Somashekara, Orthopedic Surgeon at Lady Curzon hospital was examined as PW.3. Ex's.P14 & 15 were marked through him. The respondent No.2 got examined Assistant Manager of respondent No.2 insurance company as RW.1 and got marked Ex.R.1 & 2 documents.
7. Heard erudite counsel for the petitioner and respondent No.2 counsel on merits. Perused the entire materials placed on record.
8. This tribunal answers to the above issues are as follows :-
Issue No.1 : In the Affirmative Issue No.2 : Partly in the Affirmative Issue No.3 : As per final order for the following :
REASONS
9. ISSUE NO.1: The petitioner has knocked the doors of justice with a relief to grant a compensation of an amount to the tune of Rs.25,00,000/- for the injuries sustained in the RTA. The case of the petitioner lies an narrow compass as to claiming of compensation amount for injuries sustained by him in a Road Traffic Accident. Before dwelling into analyzing the SCCH-23 6 MVC-2310/2022 disputed facts in issue it is relevant to have the birds eye of the case of petitioner in a nutshell.
10. It is the case of petitioner that 09.04.2022 at about 8.40 a.m, when the petitioner was walking on the left side of the road near Garvebhavi Palya bus stop Hosur main road at that time a motorcycle bearing Reg.No.KA-55-EB-6338 which was rided in rash and negligent manner so as to endanger the human life which came from Bommanahalli towards Garvebhavi Palya side and dashed to the petitioner and as such the petitioner was knockdown and sustained grievous injuries all over his body and also she undergone surgery. He incurred huge amount towards medical and other incidental expenses. It is further submitted that the petitioner was hale and healthy and and working as Security Guard in "Believe Solution Service Pvt Ltd" and earning Rs.25,000/- p.m. and contributed his entire earnings to his family. It is specifically urged that, due to the said accident he unable to do his work. Further it is specifically urged that, the accident happened because of rash and negligence of motor cycle rider. The respondent No.1 and 2 are jointly and severally liable to pay compensation, as such prayed to grant a compensation amount.
11. In support of case of petitioner, petitioner himself stepped into the witness box and filed his affidavit-in-lieu of oral examination-in-chief as PW1 and got marked Ex.P1 to Ex.P11 documents. Further more the petitioner also got SCCH-23 7 MVC-2310/2022 examined the dental surgeon who was assessed the disability is examined as PW.2 and through him Ex.P.12 & 13 are marked. Added more the petitioner also got examined the Doctor who was assessed the disability is examined as PW3 and through him Ex.P.14 & 15 are marked. In order to falsify the case of the petitioner and to substantiate the defence of the respondent No.2, their counsel had cross-examined PW1 to PW3 at length.
12. Repelling to the contentions urged by the petitioner, the respondent No.2 had attacked the case of the petitioner on various prisms known to fact and law. The first squirt of defence urged by the respondent No.2 is, the rider of the bike was not having valid DL at the time of accident. It is also urged that the accident happened because of the rash and negligent act of the petitioner himself. Hence prayed to dismiss the petition as against the respondent No.2. In support of these contentions the Assistant Manager of the respondent No.2 company is examined as RW.1 through her Ex.R.1 and 2 were marked.
13. Both the parties are at loggerheads with regard to the factum of negligence. According to the version of the petitioner, it is on the negligence on the part of the motor cycle rider the accident had happened. On the other hand, respondent.No.2 imputes negligence on the part of petitioner himself. The SCCH-23 8 MVC-2310/2022 negligence has to be proved in MACT cases as the any other fact in issue.
14. Before dwelling into analyzing the factum of alleged negligence it is relevant to have the conceptual aspects pertaining to factum of negligence. There are four basic elements that a person has to fulfill in order to do a negligent act. These elements are as follows:
Duty: For committing a negligent act, there must be some duty on the part of the defendant. Here it is important to understand whether the defendant has taken legal duty of care towards the plaintiff.
Breach of Duty: After fulfilling the first criteria the plaintiff must prove that the defendant has breached the legal duty imposed on him/her. It talks about the breach of duty on the part of the defendant which he/ she is expected to do as he/ she has some legal duty towards the plaintiff.
The action of causing something: It means that the damage caused to the plaintiff is due to the act of the defendant. Here the defendant may do an act which is not expected from him/her or the defendant may be negligent in not doing an act which was expected from him/ her.
Damages: At last what matters is, there must be some damage/injury that is caused to the plaintiff and this damages should be the direct consequence of the defendant's act.SCCH-23 9 MVC-2310/2022
Negligence means a breach of duty caused by omission to do something which has reasonable man guide by those consideration which ordinarily regulated conduct of human affairs would do which a prudent man would not do. In common prevalence negligence connoted to the want of proper care and the rashness conveys the idea of recklessness or the doing of an act without due consideration.
15. Now let me test the factual matrix in the light of settled principle of law. In order to prove the factum of negligence the petitioner has mainly relied on Ex.P.3 spot mahazar. On close perusal of said documents it is clearly forthcoming that motor cycle had dashed the petitioner who was crossing the road to east to west. This court will also does not loose sight of the fact that even the chargesheet as per Ex.P.4 was also filed as against the rider of the motorcycle. This factums itself speaks volumes as to the rash and negligent act of the rider of the vehicle.
16. It is necessary to reassert that in a claim for compensation filed under Section 166 of Motor Vehicles Act, 1988, the claimant is expected to prove the incident on basis of principle of preponderance of probabilities and the view taken by this Court is fortified by the decision rendered by the Hon'ble Supreme Court in Kusum and others V/s Satbir and others which is reported in 2011 SAR (CIVIL) 319. Further the Hon'ble Supreme Court in case of SCCH-23 10 MVC-2310/2022 Bimla Devi and others v. Himachal Road Transport Corporation and others reported in (2009) 13 SCC 530 has observed that, it is necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants are merely required to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. Further the Hon'ble High Court of Karnataka in National Insurance Co. Ltd. Vs. Krishnappa and another reported in 2001 ACJ 1105, where the Hon'ble High Court of Karnataka considering the fact that the rider of the offending vehicle was not examined to prove any contributory negligence on the part of scooterist held that the accident had occurred due to rash or negligent driving by the rider of the offending van. Even here in this case the driver of the motor cycle is not examined to show that there was no negligence on his part and even otherwise the IO, as already observed, has clearly opined that the accident occurred only due to the fault of the rider of the motor cycle and he was charge sheeted.
17. Though PW.1 was cross examined at length by respondent No.2 counsel but nothing fatal was elicited so as to distrust the petitioner's version in his chief-examination. Even the chargesheet as per Ex.P.4 is also filed as against the rider of the motor cycle. When such the case absolutely there is no impediment in considering the version of the petitioner herein. The petitioner has successfully demonstrated there is a negligence on the part of the rider of the motor cycle.
SCCH-23 11 MVC-2310/2022Consequently this tribunal hold that the accident is proved to have been caused due to the actionable negligence of the rider of the motor cycle. On assessing entire evidence the light of oral and documentary proof, the preponderance of probability tilts infavour of petitioner herein. Hence, this Tribunal answers Issue No.1 'In the Affirmative'.
18. ISSUE NO.2 : As already held herein above, the petitioner proved that he has sustained injuries in RTA which is caused by the vehicle belonging to respondent No.1 and insured with the respondent no.2. Hence the petitioner is entitle for compensation. This Court has already held Issue No.I in the affirmative which makes it more than obvious that the petitioner is entitled for compensation. Needless to state the quantum of compensation which is awarded has to be proportionate to the nature of the injuries and the compensation has to be awarded by keeping in mind the pecuniary damages and non-pecuniary damages suffered by the injured-claimant. By pecuniary damages this Court is referring to the actual loss sustained by the petitioner, which can be determined in terms of money, by taking into account the oral or documentary evidence. Whereas for non-pecuniary damages this Court is referring to the losses that the claimant has though suffered, but will not be able to prove for the reason that it can neither be calculated in terms of the money nor can it be proved leading documentary evidence. Perhaps the non-
SCCH-23 12 MVC-2310/2022pecuniary damages can be figured out by looking into the facts of each case by taking into account the nature of injuries and the aftermath. It is required to be reminded to oneself that compensation in a case arising out of injury can never be granted on mathematical precision and invariably a good amount of guesswork is involved while determining the compensation in such cases.
19. Perhaps unlike in a fatal case, in a case involving bodily injury the victim is left to suffer throughout his life; and hence it becomes the bounden duty of the tribunal to award compensation to a victim of permanent disability so as to bring in sustainability and also to ensure that victim is not pushed to poverty.
20. This issues revolves round the sphere and ambit as to the quantum of compensation. The petitioner has exhibited his Aadhar card at Ex.P8 wherein his date of birth is reflected as 29.05.1982. This indicates that he was aged 40 years on the date of accident. No documents have been produced to establish the avocation and income of the petitioner as alleged in his evidence affidavit.
21. It is specifically urged by the petitioner that, he was working as Security Guard in "Believe Solution Service Pvt Ltd"
and earning Rs.25,000/- p.m.. In order to substantiate the above said fact absolutely no string of evidence is produced SCCH-23 13 MVC-2310/2022 before this court. When such being the case mere self serving and self proclaimed statement given by the petitioner without any string of either documentary or oral evidence cannot be trusted as to gospel truth. It is trite law that, when the petitioner has failed to prove the income, the income of the petitioner has to be taken into consideration as notional income. The next moot question to be considered is as to how the notional income has to be considered in the eye of law.
22. It is relevant to rely on a decision of Hon'ble High Court of Karnataka rendered on Division Bench in the case of Ananda v/s Arjun and another in MFA.No.101144/2020 (MV) dated.05.07.2023. Wherein the Hon'ble High Court of Karnataka has laid down the following principles in para No.8(b) are as here under :
"(b) The accident is of the year 2017. The Tribunal has assessed the income of the deceased at Rs.7,000/- per month as against the claim of Rs.2,50,000/- per annum. To substantiate the said claim, the injured claimant has not placed any material on record, it is for the Courts and Tribunals to assess the income notionally. The notional income fixed by the Karnataka State Legal Services Authority for the accident of the year 2017 is Rs.10,250/-. In the absence of any material produced by the claimant to prove his income, it is appropriate to assess the notional income of the injured claimant at Rs.10,250/- per month, and the same is assessed as the monthly income of the injured claimant"SCCH-23 14 MVC-2310/2022
As such this court is taking the notional income as prescribed by the Karnataka Legal Service Authority, Bengaluru. Therefore in view of the above decision, the accident was occurred on 09.04.2022. Therefore, Rs.15,500/- has to be taken into consideration as monthly income of the petitioner.
23. As per the wound certificate / medical records the petitioner has sustained the following injuries : (i) Peri orbital hematoma present over left eye (ii) Abrasions 18x12 cms present over inner part of left thigh (iii) Abrasion 8x1 cms present over inner part of left leg (iv) CT Scan shows small hemorrhagic contusion in the left supra orbital ftontal lobe (v) Segmental fractures involving all the wall of left maxillary sinus and left orgit, left maxillary herosinus and small pneumo-orbit noted, (vi) Fracture left nasal bone, zygomatic arch and (vii) Small wedge compression fracture of D11 vetrebra. During the course of treatment he had undergone surgery in the form of :
ORIF of fracture left zygoma. It is needless to say that the the injury No.1 to 3 are simple and 4 to 7 are grievous in nature. The discharge summary issued by Kauvery Hospital, Bengaluru indicate that the petitioner was treated as an inpatient in the said hospital for the period from 09.04.2022 to 14.04.2022 (6 days in total).
24. It is the specific case of the petitioner that, owing to the accidental injuries he has become disabled and has thereby lost his earning capacity. Therefore he got examined Dr.N. SCCH-23 15 MVC-2310/2022 Chaitanya Babu, Dental surgeon as PW.2 who stated that on clinical examination conducted by him, he found that petitioner has sustained total disability of 20% to displaced fracture of left zygoma and 20% disability to the whole body on the basis of Dr. Bagi Titled Medico Legal Jurisprudence and Forensic Odontology and forensic logy. Further he stated that the petitioner has sustained permanent disability in respect of Maxilla (upper jaw), the function of jaws is basically to hold the teeth which in turn will help bit food(Chew) and for aesthetics (appearance). Further on the basis of treatment the petitioner will be able to look normal that is his aesthetic function will become normal but his ability to bite hard food will be restricted 50% only. During the litmus course of his cross examination he stated that the petitioner was operated on maxillary zygomatic and the screws and plates have been ingrained. Further the face of the petitioner there is only one surgery with regard to maxillary zygoma. Further he stated that the petitioner with some difficulties and restrictions he can take food and there is no teeth loss to the petitioner. Within 6 weeks the jaws fractures will unit. The petitioner's jaw fracture got united.
25. Further the petitioner got examined Dr.S.A. Somashekara as PW.3 who stated that on clinical examination conducted by him, he found that petitioner has complains of low back ache persisting history of inability to bend normal and lift weight and assessed total disability to the spine at 20% and SCCH-23 16 MVC-2310/2022 it is permanent. It is elicited during the course of cross examination PW.3 admitted that he assessed disability only with regard to fracture of vertebra. Vertebra D11 is with regard to spine. Further he pleaded ignorance with regard to the production of connected documents to substantiate the above said injury. He further admitted that the petitioner without support with paind and difficulty can walk. Be that as it may, the law is well settled that it is the impact of the physical disability on the particular avocation of the petitioner which is relevant for the purpose of assessment of compensation under the head of loss of future income as held by the Hon'ble Apex Court in (2011) 1 SCC 343 between Rajkumar V/s. Ajaykumar and another, wherein the Hon'ble Supreme Court held as follows;
Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement,
(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person.SCCH-23 17 MVC-2310/2022
If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.
For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not SCCH-23 18 MVC-2310/2022 result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of `loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity.
26. By applying the said precedent to the present case on hand, from the petition averments it could be culled out that petitioner is working as a Security Guard. Which means to say it involves lot of physical work. When such is the case with a injuries sustained by the petitioner he cannot do his work effectively, as such his efficiency in work will decrease and it indirectly affect his income. Considering the nature of injuries, line of treatment and on appreciation of the clinical findings noted by the doctor, the possibility of the fact that the petitioner may be having economical or functional disability to the extent of 25%, cannot be ruled out. Therefore, this Tribunal consider SCCH-23 19 MVC-2310/2022 the functional disability of the petitioner at 25%. As already discussed above the petitioner has proved that the accident took place due to the actionable negligence of the rider of the motorcycle. Therefore he is entitled for compensation under the following heads :
27. ATTENDANT CHARGES, EXTRA NUTRITIOUS FOOD & CONVEYANCE CHARGES : The period of hospitalization of 6 days is proved. During his stay in the hospital the petitioner would have incurred expenses towards attendant charges as some family member of the petitioner would have accompanied him to the hospital to take his care by leaving their duties. During the aforesaid period the petitioner might have also spent a considerable amount towards special diet, transportation and nutrition. Considering the rate of inflation and rise in the price index, the same is quantified at Rs.1,500/- per day and a sum of Rs.9,000/- (1,500 X 6) is awarded under this head..
28. PAIN & SUFFERINGS : On account of the accidental injuries the petitioner would have had undergone pain and mental agony. The documents discloses that petitioner had sustained traumatic head injury and displaced fracture of left zygoma. As such he would have had undergone pain and mental agony. Thus this Tribunal awards a sum of Rs.70,000/- under this head.
29. LOSS OF INCOME DURING LAID-UP PERIOD:
Considering the nature of injuries, treatment given and SCCH-23 20 MVC-2310/2022 duration of his stay in the hospital, it is quite natural that petitioner could not have carried out his avocation for atleast 4 months. Thus by taking into account the notional income of the petitioner, this Tribunal awards a sum of Rs.62,000/- (15,500 X
4) under this head.
30. MEDICAL EXPENSES : As per the bills marked at Ex.P9 the petitioner has spent Rs.2,40,845/- towards medical expenses. Nothing worthwhile was elicited during the course of his cross-examination, so as to doubt the genuineness of these bills. Hence the petitioner is entitled for Rs.2,40,845/- which is rounded off to Rs.2,41,000/- towards medical expenses.
31. LOSS OF FUTURE INCOME DUE TO DISABILITY: As per Sarla Verma's case, the appropriate multiplier applicable is '15'. This Tribunal has already assessed the notional income of the petitioner at Rs.15,500/- p.m. Hence a sum of Rs.6,97,500/- (Rs.15,500 X 12 X 15 X 25/100) which is is awarded under this head.
32. LOSS OF FUTURE AMENITIES AND HAPPINESS: The disability referred above would have necessarily caused physical deformity with which the petitioner has to live the rest of his life. Hence a sum of Rs.60,000/- is awarded under this head.
33. FUTURE MEDICAL EXPENSES AND OTHER INCIDENTAL EXPENSES : No evidence is brought on record to demonstrate the requirement for further treatment and the SCCH-23 21 MVC-2310/2022 medical & incidental expenses to be incurred therefrom. In the absence of proof no amount is awarded under this head.
34. The calculation table stands as follows :
1 Attendant charges, extra nutritious : 9,000-00 food & conveyance charges 2 Pain & sufferings : 70,000-00 3 Loss of income during laid-up period : 62,000-00 4 Medical expenses : 2,41,000-00 5 Loss of future income due to : 6,97,500-00 disability 6 Loss of future amenities & happiness : 60,000-00 7 Future medical and other incidental : - Nil -
expenses Total 11,39,500-00
35. REGARDING 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% per annum is awarded it would meet the ends of justice.
36. While answering the issue No.1 this Tribunal comes to the conclusion that, accident occurred due to the negligence of the rider of motorcycle bearing registration No.KA-55-EB-6338. The petitioner contended that the respondent No.1 is the owner and the respondent No.2 is the insurer of the said vehicle hence both are jointly and severally liable to compensation. The respondent No.2 admitted the issuance of policy in respect of the offending vehicle. The respondent No.2 contended that at the time of the accident the rider of the motorcycle bearing registration No.KA-55-EB-6338 was not holding driving license, SCCH-23 22 MVC-2310/2022 hence it is violation of terms and conditions of the policy as such they are not liable to pay compensation to the petitioner. In support of this contention the official of the respondent No.2 company official is examined as RW.1. In her examination in chief she deposed as per contentions taken by them. She got marked the authorization letter as per Ex.R1 and policy copy as per Ex.R2. In the cross examination she deposed that she is giving evidence based on the police documents and she admitted the issuance of insurance policy and same is valid. The chargesheet has been filed as against the rider of the vehicle. She denied that the respondent No.1 has not violated the any terms and conditions of the policy and she denied that she is deposing falsely. By perusing the charges sheet marked as per Ex.P4 it is clear that the charge sheet is filed against the minor for the offense punishable U/Sec. 279,338 of IPC and U/ Sec 3(1), 181, 5, 180 of M.V.Act. The charges are leveled against the owner of the motorcycle i.e., respondent No.1. The respondent No.1 is the owner of the motorcycle and the said motorcycle was driven by the rider who does not have DL and he caused this accident. Hence it is clear that the respondent No.1 has violated the terms and conditions of the policy. Further it is clear that the respondent No.1 knowing well that the rider of the motorcycle was not holding driving license permitted the minor to rider the motorcycle. Hence it is also clear that the respondent No.1 has violated the policy condition. The learned counsel for the petitioner relied on the judgment of SCCH-23 23 MVC-2310/2022 Hon'ble High Court of Karnataka reported in 2020 ACJ 2560 in the case of New India Assurance Co.Ltd V/s Yallavva and another and also in 2017 ACJ 646 in the case of United India Insurance Co.Ltd V/s Rathna and others and contended that even though there is violation of terms and conditions of the policy the insurance company is liable to pay compensation to the petitioner. But the facts and circumstances stated in the said cases and present case on hand are entirely different. In the above said judgments it is held that in case of fake/invalid driving license the insurance company has to prove that the owner of the motor vehicle need to establish that the owner was aware of fact that license was fake/invalid and still permitted the driver to drive the vehicle, in that circumstances the insurance company is not liable to pay compensation, if the insurance company failed to prove that even the owner of the vehicle knowing that the driver vehicle was having fake/invalid driving license permitted the driver to drive the vehicle them insurance company is liable to pay compensation to the petitioner. But in the present case on hand the rider without DL was riding the motorcycle and caused this accident and it is not the case of fake/invalid driving license. Hence with due respect to the above said judgment same are not applicable to the present case on hand.
SCCH-23 24 MVC-2310/202237. On the other had the learned counsel for the respondent No.2 relied on the judgment of Hon'ble High Court of Karnataka in M.F.A.No.3297/2019 in the case of Smt.Adilakshmamma and Others Vs., Sri. Raju and other and contended that when the owner knowing that rider of the motorcycle was not holding driving license and handed over his motorcycle to the rider who is not having driving license then the owner is liable to pay compensation to the petitioner. In this case on hand also the respondent No.1 is the owner of the motorcycle and he is knowing well that the rider is not having driving license and permitted the rider to ride his motorcycle and the rider caused this accident, hence the respondent No.2 is not liable to pay compensation to the petitioner, but the respondent No.1 who is the owner of the motorcycle is liable to pay compensation to the petitioner. The said authority relied by the learned counsel for the respondent No.2 is applicable to the present case on hand.
38. Further on the same point of law it is also relevant to rely on the judgment in MFA-6154/2019 in the case of Smt. Hemalatha @ Hema @ Hemavathi and others v/s Bajaj Allianz Gen.Ins.Co.Ltd, wherein the Hon'ble High Court of Karnataka after considering the judgment of the Apex Court in (I) Pappu V/s Vinod Kumar Lamba, (ii) Bishan Devi v. Surbakshi Singh
(iii) Shamanna V/s Oriental Ins.Co.Ltd., (iv) Iffco Tokio Gen.Ins.Co.Ltd V/s Geeta Devi (v) National Ins.Co.Ltd., V/s SCCH-23 25 MVC-2310/2022 Swarna Singh it clearly distinguished the factum of no DL and fake DL and observed as hereunder :
27. Learned Counsel for the appellants relied on the judgment of the Hon'ble Supreme Court in the case of Swaran Singh's, Pappu's, and Shamanna'scases referred to supra, to contend that, even if there is no driving license the insurer is liable to pay the damages to the claimants and recover the same from the owner of the vehicle. Those judgments referred to the principle of pay and recovery in case of breach of policy condition for disqualification of the driver to hold the license or holding of an invalid driving license. They did not relate to a case of no driving license at all.
28. Learned counsel for the appellants/claimants relied on Bishan Devi's case referred to supra to contend that even in case of no license also, the insurer is liable.
Plain reading of the said judgment shows that in that case it was held that the insurer had failed to prove its defence that vehicle was driven by a person without license. In the present case the defence of the insurer that the offending vehicle was driven by a person having no license and the same is proved. Therefore, the said judgment is not applicable to the facts of the present case.
39. Reverting back to the factual matrix, respondent.No.1 the owner of the vehicle neither contested the petition by filing written statement nor adduced any evidence claiming that he did not consciously permit the rider to ride the vehicle. The said act of the respondent.No.1 is a clear breach of fundamental breach of policy condition within the meaning of Sec149(2)(a)(ii) of MV Act. The respondent No.1 being the owner of the motorcycle bearing registration No.KA-55-EB-6338 is liable to pay compensation to the petitioner with interest at the rate of 6% p.a from the date of petition. Under such circumstances the insurance company cannot fastened with a liability of pay and recover that there is clear breach of conditions. The respondent SCCH-23 26 MVC-2310/2022 No.1 is stated to be the owner of the offending vehicle is vicariously liable to pay the compensation awarded by this Tribunal. Accordingly, I answer the issue No.2 in partly in the affirmative.
40. ISSUE NO.3 : In view of the discussion made supra, this Tribunal proceeds to pass the following :
ORDER The petition filed under Section 166 of M.V. Act 1988, is hereby partly allowed with costs in the following terms :
The petitioner is entitled for compensation of Rs.11,39,500/- with interest at the rate of 6% p.a., from the date of claim petition till realization of the entire award amount.
The respondent No.1 / owner of motorcycle bearing Reg.No.KA-55-EB-6338 is liable to pay and directed to deposit the compensation amount within a period of one month from the date of award.
Out of the above said compensation amount awarded to the petitioner, 80% of the award amount with accrued interest shall be paid to him through NEFT/RTGS by way of E-payment on proper identification and due verification and further 20% of the award amount shall be kept in FD in favour of SCCH-23 27 MVC-2310/2022 petitioner in any Nationalized or Scheduled bank for a period of 3 years.
The petition is dismissed against respondent No.2/ Oriental Insurance Company Limited.
Advocate fee is fixed at Rs.1,000/-. Draw award accordingly.
(Dictated to the Stenographer directly on computer and printout taken by him, then corrected and pronounced by me in the open court on this the 16th day of February - 2024) (Aalok. A.N) XXI Addl. Small Causes Judge & ACMM, Bengaluru.
ANNEXURES List of witnesses examined for the petitioner/s: PW.1 : Sri. Gangarapu Rajashekar, PW.2 : Dr.N.Chaitanya Babu PW.3 : Dr.S.A. Somashekara List of documents got marked for the petitioner/s:
Ex.P.1 True copy of FIR Ex.P.2 True copy of Complaint Ex.P.3 True copy of Spot Mahazar Ex.P.4 True copy of Charge Sheet Ex.P.5 True copy of IMV Report Ex.P.6 True copy of Wound Certificate Ex.P.7 Discharge Summary Ex.P.8 Notarized copy of the Aadhaar card of petitioner
after comparing with the original found correct SCCH-23 28 MVC-2310/2022 Ex.P.9 11 Medical bills total amounting to Rs.2,40,845/- Ex.P.10 Advance receipts (6 in Nos.) Ex.P.11 X-ray sheet (2 in Nos.) Ex.P.12 OPG Radiograph Ex.P.13 Clinical Notes Ex.P.14 OP card Ex.P.15 X-ray sheet List of witnesses examined for the respondent/s:
RW.1 : Smt. Shaifali Srivastava List of documents marked for the respondent/s:
Ex.R.1 Authorization letter
Ex.R.2 True copy of insurance policy
(Aalok. A.N)
XXI Addl. Small Causes Judge
& ACMM, Bengaluru.