Bangalore District Court
Prasanna Kumar .G vs Iffco-Tokio General Insurance on 9 October, 2015
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
BANGALORE. (SCCH-11)
DATED THIS 9th DAY OF OCTOBER, 2015
PRESENT: SRI. GANAPATI GURUSIDDA BADAMI, B.A,LL.B(SPL).
I ADDL.SMALL CAUSES JUDGE & XXVII ACMM
M.V.C No.694/2014
PETITIONER: 1. Prasanna Kumar .G
Aged about 44 Years,
S/o Govindappa.
2. Manasa .P.
Aged about 7 Years,
D/o Prasanna Kumar .G.
Both are residing at
No.18, 4th Cross,
L.B.S. Nagar,
Indiranagar 2nd Stage,
Bangalore-560 038.
(Petitioner No.2 is minor
Represented by natural guardian father
Prasanna Kumar .G)
(Sri.K.R. Venkatesha Gowda---- Advocate)
- V/S -
RESPONDENTS: 1. IFFCO-TOKIO GENERAL INSURANCE
CO., LTD.,
No.141, 4th Floor,
(SCCH -11) 2 MVC 694/2014
Sri. Shanthi Towers,
Opp. to CUPA, 3rd Main,
East of NGEF Layout,
Kasthurnagar,
Bangalore-560 043.
(policy No.1-2 DYW87G/P400/85603685
Valid from 30.10.2013 to 29.10.2014)
(Sri. S. Maheswara---- Advocate)
2. Srinivasan .M.
S/o Jayaram,
Major,
No.97, 6th 'A' Main, Tata Silk Farm,
K.R. Road,
Bangalore-560 004.
(Vehicle bearing Regn.No.KA-05-0243-Policy
Holder)
(Sri. M.R.Balakrishna---- Advocate)
3. Shiva .R.
S/o Rudrappa .H.,
Major,
R/at No.11th Cross,
Ramakrishnappa Layout,
Malagala Main Road,
Bangalore-560 091.
(Owner of Vehicle No.KA-05-0243)
(Sri. M.R.Balakrishna-----Advocate)
(SCCH -11) 3 MVC 694/2014
JUDGMENT
Petitioners have filed this claim petition against the respondents claiming the compensation for the death of deceased Prabhavathi.R W/o Prasanna Kumar.G in the road traffic accident.
2) It is averred that, on 16.11.2013 at about 6:45pm, the deceased Prabhavathi.R W/o Prasanna Kumar.G was proceeding on motor cycle bearing No.KA-53-H-3902 as pillion rider on HAL hospital Service Road, near HAL TTI Gate, Bangalore carefully and cautiously by observing movement of traffic rules and regulations. At that time, the driver of tempo bearing KA- 05-0243 has driven the said vehicle in rash and negligent manner endangering human life with high speed and dashed to the motor cycle. Due to the said impact, the deceased fell down and sustained grievous injuries on vital part of the body.
3) Immediately after the accident, the deceased was shifted to HAL Hospital Bangalore and doctors confirmed that, she died on the way to the hospital. The dead body of the deceased was shifted to Bowring and Lady Curzon hospital, Bangalore and after post mortem, the dead body was (SCCH -11) 4 MVC 694/2014 handed over to the petitioners who shifted the dead body to their native village and performed funeral obsequies by spending Rs.1,00,000/-.
4) Prior to the accident, the deceased was hale and healthy and she was aged about 33 years and she was working as manager and earning Rs.17,597/- per month and contributing entire earnings for the maintenance of family. The deceased was only earning member in her family and she was having bright future life in career. Due to the death of the deceased, the petitioners have lost income of the deceased and they are undergoing great mental stress and agony. The petitioner has lost love and affection of her mother and petitioners are undergoing great financial difficulties and hardship for their livelihood. The Air Port Traffic police have registered the case against the driver of offending vehicle in Cr.No.122/2013 for the offences punishable under section 279, 304-A of IPC. Hence, the petitioners have claimed the compensation of Rs.50,00,000/- along with interest and costs.
5) The respondent No.1 has filed written statement and denied the contents of claim petition. It is also admitted that, the respondent No.1 is (SCCH -11) 5 MVC 694/2014 insurer of tempo bearing No. KA-05-0243. But liability of the respondent No.1 is subject to the terms and conditions of insurance policy, valid and effective driving licence, provisions of Motor Vehicles Act, valid registration certificate and fitness certificate and permit and subject to confirmation of section.
6) It is also contended that, the insured is duty bound to submit all vehicular documents, including driving licence as per Section 134(c) of Motor Vehicle Act and the respondent No.3 has violated the provisions of law and contract of insurance. It is mandatory duty of the concerned police station to forward all the relevant documents to the concerned insurer within 30 days from the date of information under Section 158(6) of Motor Vehicle Act. The respondent No1 may be permitted all defence available under Section 170 of Motor Vehicle Act. It is contended that, the driver of Tempo bearing Regn.No.KA-05-0243 was not holding valid and effective driving licence as on the date of accident and he was not qualified as per the requirements of the Rule 3 of the Central Motor Vehicles Rules 1989. The insured knowing fully well that, the driver did not possess valid and effective driving licence and willfully entrusted to such person and violated the terms (SCCH -11) 6 MVC 694/2014 and conditions of insurance policy. The jurisdictional police have filed charge sheet under Section 3(1) R/W. Section 181 of Motor Vehicle Act against the driver of offending vehicle who was not holding valid and effective driving licence. In the event, this Hon'ble Court grants compensation, the rate of interest may be restricted to the interest prevailing in nationalized Banks for fixed deposit of one year and it cannot exceed more than 6% per annum in view of decision of Hon'ble High Court of Karnataka, in Manavalagan V/s A. Krishnamurthy and others in I.L.R 2004 KAR 3268. The compensation claimed by the petitioners is exorbitant. Therefore, it is prayed for dismissal of the claim petition.
7) Respondent No.3 filed written statement and denied the contents of the claim petition. The alleged accident taken place due to negligence by the rider of motor cycle bearing No.KA-53-H-3902, who was riding the said vehicle without observing any traffic rules and regulations and dashed to the Tempo bearing Regn.No. KA-05-0243 and accident has not taken place due to negligence of Tempo driver. It is contended that, the Tempo was insured with respondent No.1 under insurance policy No.1- 2DYW87G/P400/85603685 and said policy was valid from 30.10.2013 to (SCCH -11) 7 MVC 694/2014 29.10.2014 and as on the date of accident, insurance policy was inforce. As on the date of accident, one Shiva was having valid and effective driving licence to drive the vehicle. The respondent No.1 is insurer of said vehicle and liable to indemnify the respondent No.3 if this Hon'ble Court comes to conclusion that, the respondent No.3 is liable to pay the compensation to the petitioners. The compensation claimed by the petitioners is highly excessive, exorbitant and exaggerated. Therefore, it is prayed for dismissal of the claim petition with costs.
8) The petitioner himself examined as PW.1 and got marked Ex.P.1 to 43 and closed the evidence. The respondent No.1 examined one Sri. Girish S/o Mahadevappa, Assistant Legal Executive of IFFCO TOKIO General Insurance Company Limited as RW.1 and got marked Ex.R.1 and Ex.R.2 and also examined Sri. Surendra S/o M. Chandrashekar, ARTO, Bangalore West, Rajajinagar, Bangalore as RW.2 and got marked Ex.R.5 and 6. The respondent No.3 himself examined as RW.3 and closed the evidence.
9) Heard the arguments of learned counsel for both the parties and perused the evidence on record.
(SCCH -11) 8 MVC 694/2014
10) On the basis of pleadings, following issues have been framed:
1. Whether petitioners prove that on 16.11.2013 at about 6.45 P.M., near HAL Hospital service road, HAL TTI Gate, Bangalore, when deceased Prabhavathi W/o Prasanna Kumar G. was proceeding on motor cycle No.KA-53-H-3902 as pillion driver, the driver of Tempo bearing No.KA-05-0243 driven the said vehicle with high speed and rash and negligent manner and dashed to the motor cycle by which deceased succumbed to injuries on the way to the hospital?
2. Whether respondent No.1 proves that, as on the date of accident the driver of offending vehicle was not having valid and effective driving licence and there is breach of terms and conditions of policy?
3. Whether petitioners are entitled for the relief of compensation as prayed in the petition? If so, what is the quantum of compensation?
4. What Order?
11) My findings on the above issues are as under:
Issue No.1 : Affirmative;
Issue No.2 Affirmative
Issue No.3 : Partly Affirmative; the petitioners are entitled to
compensation of Rs.25,85,000/- with interest @ of
6% p.a. from the date of petition till complete
realization, from respondent No.3
Issue No.4 : As per final order, for the following :
(SCCH -11) 9 MVC 694/2014
R E A S O N S
12) Issue No.1: PW.1 has stated in his evidence that, on
16.11.2013, his deceased wife Prabhavathi was proceeding as pillion rider on Motor cycle No.KA-53-H-3902 on the left side of HAL Hospital service road, near HAL ITI gate, Bangalore, carefully, slowly and cautiously by observing traffic rules. He has stated that, at that time, the driver of Tempo bearing No.KA-05-0243 has driven the said vehicle in rash and negligent manner, endangering human life with high speed and dashed to the motor cycle. He has stated that, due to the said accident, his wife sustained grievous injuries and succumbed to the injuries on the way to the hospital and the jurisdictional police have filed charge sheet in Crime No.122/2013 for the offences punishable under section 279 and 304(A) of I.P.C.
13) In the cross-examination of PW1, he has stated that, he has lodged complaint about accident. He has admitted that, the accident has taken place due to head on collusion between his vehicle and opposite vehicle. He has denied the suggestion of learned counsel for respondent No1 that, the accident has taken place due to negligence on his part and there is no (SCCH -11) 10 MVC 694/2014 negligence on the part of driver of tempo. In the cross-examination of PW1 by the learned counsel for respondent No2 and 3, he has stated that, he had seen tempo No.KA-05-0243 at the distance of 10-20 feet and road at the place of accident is not so busy road. He has admitted that, alleged time of accident is peak hours. He has admitted that, at the time of alleged accident, it was raining. He has denied the suggestion that, due to heavy rainfall, rain drops were falling on his helmet and vehicles moving on the road were not visible to him and for that reasons, he dashed his motor cycle to the tempo and he was riding motor cycle with high speed and driver of tempo was driving the said vehicle slowly at the speed of 20-30km. He has stated that, distance between his house and place of accident is 18km. He has also denied the suggestion that, since it was raining and his daughter was alone in the house, for that reasons, he was riding his motor cycle hurriedly to reach his house immediately. He has stated that, there was one bike on the left side of his vehicle and he could not take his vehicle on the left side and he does not know number of motor cycle on the left side of his vehicle. He has stated that, road at the place of accident is having 20 feet width. He has admitted that, on 20 feet wide road, two vehicles can move at the same time and said road is narrow road. He has also denied the suggestion that, the (SCCH -11) 11 MVC 694/2014 said road at the place of accident was having ditches and it is narrow road, vehicles cannot be driven at the speed more than 10-15km per hour. He has also denied the suggestion that, tempo having width of 7 feet has to move slowly in the remaining road having width of 13feet. He has admitted that, there was one motor cycle infront of tempo and distance between tempo and said motor cycle was 4-5 feet and said motor cycle has not sustained any damages.
14) Petitioners have produced true copy of FIR and complaint which are marked as Ex.P1 and 2 and as per said documents, on 16.11.2013 at about 6.45 pm, the petitioner No.1 and his deceased wife Prabhavathi.R were proceeding on motor cycle bearing Regn.No.KA-53-H-3902 from Sai Pariyavaran Construction company towards their house and when they reached service road of HAL Hospital, at that time, the driver of Tempo bearing No.KA-05-243 has driven the said vehicle from Jeevanbhimanagar towards HAL in a rash and negligent manner and dashed to the motor cycle. Due to the said impact, deceased sustained injuries on her right shoulder and head and she was taken to the HAL hospital and on examination, doctors told that, she died. The petitioner No.1 filed complaint to the police of (SCCH -11) 12 MVC 694/2014 Airport Traffic police station on the basis of which, the police have registered the Crime No.122/2013 against the driver of tempo for the offences punishable U/s.279, 304(A) of IPC and Sec.134 (a & b) and 187 of M.V.Act.
15) The petitioners have also produced true copy of spot panchanama and hand sketch map, which are marked as Ex.P.3 & 4 and as per the said documents, the petitioner No.1 and his wife were proceeding on motor cycle bearing Regn.No.KA-53-H-3902 towards Jeevanbhimanagar on the left side of HAL Service road, at that time, the driver of tempo bearing Regn.No.KA-05-243 also came in the same direction and dashed to the motor cycle and road at the place of the accident is straight road.
16) The petitioners have also produced true copy of motor vehicle inspection report, which is marked as Ex.P.5 and as per the said document, the right driver side door scratched to the tempo bearing No.KA-05-243 and right side head light mask, right side crash guard, front brake lever and right front peg bent and rear brake lever bent to the motor cycle bearing Regn.No.KA-53-H-3902. On perusal of the said document, the motor cycle was proceeding on the left side of the road and the tempo came from (SCCH -11) 13 MVC 694/2014 opposite direction and dashed to the right side of the motor cycle by which driver side door of tempo and right portion of motor cycle were damaged in the accident. Even on perusal of the hand sketch map, petitioner and his deceased wife were proceeding on the left side of the road and even though, there was sufficient space for the driver of tempo, he came on the right side of his vehicle and dashed to the motor cycle coming from opposite direction.
17) The petitioners have also produced true copy of charge sheet, which is marked as Ex.P.8 and on perusal of the said document, it reveals that, the accident has taken place due to rash and negligent driving by the driver of tempo. On perusal of the oral evidence of PW.1, the road at the place of accident is having 20 feet width, which is accessible for the movement of two vehicles at the same time. On perusal of oral evidence of PW.1, though it is suggested that, due to the rain fall, the rain drops were falling on helmet of the petitioner No.1 and he was unable to observe the movement of other vehicles on the road and his daughter was alone in the house and for that reason, he was riding motor cycle with high speed and dashed to the tempo. But this contention is not at all acceptable. Because, (SCCH -11) 14 MVC 694/2014 the petitioner No.1 and his deceased wife were proceeding on the motor cycle on the left side of the road and the tempo came from opposite direction and dashed to the motor cycle of the petitioner on the wrong side, which is clear from the hand sketch map produced by petitioners. Even on perusal of the damages shown in the motor vehicle inspection report, it is also clear that, the accident has taken place due to rash and negligent driving by the driver of offending vehicle and there is no negligence on the part of the petitioner No.1. So, I hold that, petitioners have proved the rash and negligent driving by the driver of the offending vehicle. So, I answered Issue No.1 in the Affirmative.
18) Issue No.2:- The respondent No.1 taken contention that as on the date of accident, the driver of offending vehicle was not holding valid and effective driving licence and the respondent No.2 & 3 violated the terms and conditions of the insurance policy. The jurisdictional police have filed charge sheet against the driver of the offending vehicle for the offences punishable U/s.279, 304(A) of IPC and Sec.134 (a&b), R/w.Sec.187 of M.V.Act and Sec.3 (1) R/W.Sec.181 of Motor Vehicles Act for not having valid and effective driving licence.
(SCCH -11) 15 MVC 694/2014
19) The respondent Insurance Company has examined RW.1, who has stated that, after through investigation, the jurisdictional police have filed charge sheet U/s.3 (1) R/w.Sec.181 of M.V.Act for not having valid and effective driving licence on the date of accident. He has also stated that, the owner of the vehicle knowing fully well that, the driver of the said vehicle was not holding valid and effective driving licence, entrusted the said vehicle to such person and has violated the terms and conditions of insurance policy. He has also produced true copy of Charge Sheet, which is marked as Ex.R.1.
20) In the cross-examination of RW.1, he has admitted that, as per the driving licence extract, which is marked as Ex.R.3, the driver-cum- owner of offending vehicle has taken driving licence on 28.05.2007 for driving motor cycle with gear, LMV and LMV Goods vehicle. He has denied suggestion that, even though owner-cum-driver was holding driving licence, police have not conducted proper investigation and filed false charge sheet U/s.3(1) of Motor Vehicles Act. He has stated in his cross-examination that, the said driver was not holding transport driving licence. (SCCH -11) 16 MVC 694/2014
21) RW1 has stated in his evidence that, driver of offending vehicle was not holding valid and effective driving licence as on the date of the accident and owner of vehicle knowingly entrusted the said vehicle to such person and thereby violated the terms and conditions of insurance policy. He has also stated that, jurisdictional police have filed charge sheet against the driver of offending vehicle for the offences punishable under section 3(1) R/W.S.181 of Motor Vehicles Act. He has admitted in his cross examination that, as per driving licence extract which is marked as ExR3, owner cum driver of offending vehicle has taken driving licence on 28.5.2007 and he has taken driving licence for motor cycle with gear, LMV and LMV with goods vehicle. He has denied that, driver cum owner was holding driving licence and police have not conducted proper investigation and they have filed false charge sheet against the accused under section 3(1) R/W.S.181 of Motor Vehicles Act, but RW1 has stated in his evidence that, said driver was not holding transport driving licence. He has also admitted that, as per ExR.3, LMV Non-Transport driving licence is valid till 27.5.2027. He has denied the suggestion that, driver of offending vehicle was holding LMV and he was eligible to drive transport vehicle as on the date of the accident. He has (SCCH -11) 17 MVC 694/2014 admitted that, insurance policy has been renewed for the present year and insurance policy is valid from 30.10.2014 to 29.10.2015.
22) He has stated in his cross examination that, marketing department of insurance company will issue renewal policy after going through R.C.Book and marketing department is separate department of insurance company and any doubts will be clarified from the marketing department. He has stated that, whenever requires, they will communicate either orally or through email to the marketing department. He has stated that, since it was not known to TP Department about renewal of insurance policy, they have not informed to the marketing department stating that, the policy should not be renewed and they have not informed to the marketing department not to renew the insurance policy. He has stated that, they inquired to the officers of marketing department about renewal of policy who told that, they renewed the policy after verification of R.C Book. He has admitted that, he has not informed to marketing department about death claim in this case.
23) RW2 who is Assistant Road Traffic Officer has stated in his evidence that, as per ExR.5, the driver is having licence to drive LMV and (SCCH -11) 18 MVC 694/2014 motor cycle and licence for LMV Goods Transport vehicle expired on 27.5.2010. He has stated that, driver Shivakumar is not qualified to drive yellow board vehicle after grace period of 27.5.2010. He has stated that, driver of said vehicle has taken endorsement from RTO to drive transport goods vehicle and on 16.11.2013, the driving licence was not valid.
24) RW3 has stated in his evidence that, at the time of the accident, he was having driving licence to drive motor cycle with gear, light motor vehicle, light motor goods vehicle and he has obtained licence on 28.5.2011 which has been admitted by insurance company. He has also stated that, insurance company has taken wrong contention that, he was not having valid and effective driving licence to drive the said vehicle and said contention is false and there was no breach of policy conditions by him. In the cross examination of RW3 by insurance company, he has admitted that, as per ExR.3, he was having driving licence to drive motor vehicle LMV Goods vehicle as on 27.5.2007 and he was authorized to drive LMV Transport vehicle for the period from 28.5.2007 to 27.5.2010 and he was not authorized to driver commercial vehicle yellow board. He has stated that, he had given his driving licence for renewal after 27.5.2010 and RTO (SCCH -11) 19 MVC 694/2014 authorities have issued endorsement to him. He has admitted that, as per ExR.3, he was not authorized to drive LMV transport vehicle and he had not taken endorsement from RTO to drive yellow board passenger vehicle on 16.11.2013. He has also admitted that, he has submitted an application to the RTO in the year 2015 and he had not submitted his driving licence to the insurance company at the time of renewal of his insurance policy.
25) On perusal of true copy of charge sheet filed by the police against the driver of offending vehicle, they have charge sheeted him for the offences punishable under section 279, 304-A of IPC and Section 3(1) R/W.S.181 of Motor Vehicles Act and section 134(a)(b) R/W.S.187 of Motor Vehicles Act for not having driving licence as on the date of the accident. As per ExR.3, the driver by name Shivakumar S/o Rudrappa was holding driving licence for motor cycle with gear, Light Motor Vehicle, Light Motor Vehicle Goods Vehicle and he was having driving licence Non Transport which was valid till 27.5.2027 and driving licence Transport till 27.5.2010. The accident has taken place on 16.11.2013 and driving licence Transport was valid till 27.5.2010. Learned counsel for respondent No1 has relied upon the judgment of Hon'ble High Court in M.F.A.No.1120/20014 in support of his (SCCH -11) 20 MVC 694/2014 contention. In the said judgment, tribunal absolved the liability of insurance company. In the said case, the insurance company had taken contention that, driver of lorry was not authorized to drive the lorry as he had licence to drive only a non transport light Motor Vehicle and produced copy of driving licence and driving licence extract and as per said documents, the driver was authorized to drive a Light Motor Vehicle Transport till 29.12.2013 and Light Motor Vehicle Non Transport till 21.11.2019. in the said case, Assistant Regional Transport Officer has stated in his evidence that, a specific endorsement was required to drive the Medium Goods Vehicle. In this case also, RW2 has stated in his evidence that, driver has taken endorsement from RTO to drive Transport Goods Vehicle and on 16.11.2013, the driving licence was not valid.
26) The Learned counsel for respondent insurance company has relied upon one more judgment of Hon'ble High Court in M.F.A.No.30903//2009. In the said decision, Hon'ble High Court has relied upon decision of Hon'ble Supreme Court reported in New India Assurance Company Ltd V/s Roshanben R.Fakir IV (2008) ACC 759 (SC) in which it is held that, section 3 of Motor Vehicles Act requires that a person holding an effective (SCCH -11) 21 MVC 694/2014 driving licence to drive motor vehicle shall not, however drive a transport vehicle unless his driving licence specifically entitles him to do so.
27) It is also held that a 'transport vehicle' is defined Under Section 2 (47) of the M.V.Act, to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. In terms of sub- section (4) of Section 41 of the M.V.Act, that in addition to the particulars to be included in the certificate of registration of a vehicle, which shall also specify the type of the motor vehicle having regard to the design, construction and use of the motor vehicle as notified by the Central Government in the Official Gazette.
28) The Hon'ble High Court of Karnataka also referred decision of Hon'ble Supreme Court of India reported in National Insurance Company Ltd V/s. Vidhyadhar Mahariwala and others, (2008) 12 SCC 701 and in that case, the accident taken place on 11.06.2004 and the driver's license was initially valid for a period from 15.12.1997 to 14.12.2000 and thereafter from 29.12.2000 to 14.12.2003 and thereafter, it was again renewed from 16.05.2005 to 15.5.2008. The tribunal held that, though the driver was not valid and effective driving licence as on the date of accident, the driver was (SCCH -11) 22 MVC 694/2014 not incompetent or disqualified to drive the vehicle and turned down the plea of the insurer and in Appeal, the Hon'ble High Court had confirmed the said judgment by relying on the Judgments of the Apex Court in National Insurance Company Limited V/s. Swaran Singh, (2004) 3 SCC 297, National Insurance Company V/s. Kusum Rai, (2006) 4 SCC 250 and Oriental Insurance Company Limited V/s. Nanjappan, (2004) 13 SCC 224, wherein it was held that an interval in the renewal of the licence from time to time, would not absolve the insurance company of its liability. Further held that where a holder of a driving licence for a light motor vehicle is found to be driving a vehicle, for which he has no valid and effective driving licence, in each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing a licence for one type of vehicle, but found driving another type of vehicle, was the main or contributory cause for the accident. If on facts, it is found that the accident was caused because of some other unforeseen or intervening causes like mechanical failure and similar other causes, having no nexus with the driver not possessing the requisite type of licence, the insurer would not be allowed to avoid its liability, merely on account of a technical breach of (SCCH -11) 23 MVC 694/2014 the condition pertaining to the driver of the vehicle possessing a valid driving licence.
29) The Hon'ble Supreme Court also referred the decision reported in Ishwar Chandra V/s. Oriental Insurance Company Limited (2007)10 SCC 650, wherein it is held that, the insurance company would have no liability in this nature and the said view was upheld, notwithstanding. In the above decision reported in Apex Court in National Insurance Company Limited V/s. Swaran Singh, (2204), 3 SCC 297, National Insurance Company Limited V/s. Kusum Rai, (2006) 4 SCC 250 and Oriental Insurance Company Limited V/s. Nanjappan, (2204) 13 SC 224, wherein it is held that an interval in the renewal of the licence from time to time, would not absolve the insurance company of its liability. In the above decision reported in Ashok Gangadhar Maratha V/s. Oriental Insurance Company Limited, (1999) 6 SCC 620, the Hon'ble Supreme Court has held that, wherein it is held that to reiterate, since a vehicle cannot be used as transport vehicle on a public road unless there is a permit issued by the Regional Transport Authority for that purpose, and since in the instant case there is neither a pleading to that effect by any party nor is there any (SCCH -11) 24 MVC 694/2014 permit on record, the vehicle in question would remain a light motor vehicle. The respondent also does not say that any permit was granted to the appellant for plying the vehicle as a transport vehicle under section 66 of the Act. Moreover, on the date of accident, the vehicle was not carrying any goods and though it could be said to have been designed to be used as a transport vehicle or goods carrier, it cannot be so held on account of the statutory prohibition contained in Section 66 of the Act.
30) The Hon'ble Supreme Court held that the driver only drive the light motor vehicle is not entitled to drive the transport vehicle without a endorsement to that effect as required under section 3 of the M.V.Act. The Hon'ble High Court has referred decision of Hon'ble Supreme Court reported in Oriental Insurance Company Limited V/s. Angod Kol and Others reported in 2009 ACJ 1411, wherein it is held that taking notice of change in law relating to issuance of licence for light motor vehicle, Medium Goods Vehicle and Heavy Goods Vehicle which came into effect from 28.03.2011 and was held that for the purpose of issuance of driving licence a distinction has been made between a light motor vehicle transport and light motor vehicle (non-transport) with effect from 28.03.2001. (SCCH -11) 25 MVC 694/2014
31) The learned counsel for respondent insurance company has also relied upon judgment of Hon'ble High Court of Karnataka in M.F.A No.2057/2011 (MV) between Bajaj Allianz General Insurance Company Limited V/s. Moogappa, S/o.Channegowda and others. In the said decision, the accident taken place on 13.02.2007 at about 9.00 a.m., and as per the driving licence extract, the driver had licence to drive the LMV (non-transport), which was valid and effective driving licence up to 18.08.2026. In the said decision, Hon'ble High Court relied upon the judgment of Supreme Court reported in Oriental Insurance Company Limited V/s. Angod Kol and Others reported in 2009 ACJ 1411, wherein it is held that taking notice of change in law relating to issuance of licence for Light Motor Vehicle, Medium Goods Vehicle and Heavy Goods Vehicle which came into effect from 28.03.2011 and was held that for the purpose of issuance of driving licence a distinction has been made between a light motor vehicle transport and light motor vehicle (non-transport) with effect from 28.03.2001.
32) The Hon'ble High Court of Karnataka relied upon the said Judgment and set aside with award passed by the tribunal placing reliance on (SCCH -11) 26 MVC 694/2014 the decision reported in 2008 (3) TAC 20 (SC) and exonerated the liability of the insurance company to pay the compensation.
33) In the Judgment relied by the learned counsel for respondent insurance company in M.F.A.No.7594/2008, it is held that, the driver of offending vehicle was not holding valid and effective driving licence to drive the said clause of vehicle involved in the accident and terms and conditions of the insurance policy and insurer cannot be held liable to indemnify the insured. He has also relied upon the Judgment of Hon'ble High Court of Karnataka in M.F.A.No.4182/2009 in support of the contention. In the said decision also, the driving licence extract was produced before the tribunal and the driver of car was not holding valid and effective driving licence to drive the transport vehicle and a Hon'ble High Court exonerated the liability of the insurance company.
34) Even in the decision relied by the learned counsel for respondent insurance company reported in 2006 ACJ 1336 between National Insurance Company Limited V/s. Kusum Rai and others, wherein it is held that the driver could not possess a valid licence to drive commercial vehicle, (SCCH -11) 27 MVC 694/2014 the insurance company may recover the amount paid from the owner by initiating proceedings before the executing court.
35) In one more decision relied by the learned counsel for respondent insurance company in 2008 (3) TAC 20 (SC) between New India Assurance Company Ltd V/s. Roshanben Rahemansha Fakir and Another, wherein it is held that, the driver being not holder of a legal, valid and effective driving licence and necessary in terms and conditions of the insurance policy and definition of light motor vehicle would not include a light motor vehicle and accordingly the said authority, award passed by the Hon'ble High Court of Karnataka.
36) In the light of the principles laid down in above said decisions and as RW.3, who is the driver of the offending vehicle has admitted in the cross-examination that, as per Ex.R.3, he was having driving licence to drive LMV Transport Vehicle as on 27.05.2007 and he was authorized to drive LMV Transport vehicle for the period from 28.05.2007 to 27.05.2010 and he was authorized to drive LMV transport vehicle and he has not taken endorsement from RTO to drive yellow board vehicle on 16.11.2013. I hold that, the driver of the said vehicle was not holding valid and effective (SCCH -11) 28 MVC 694/2014 driving licence as on the date of accident. So, I hold that the respondents have also examined RTO authorities as RW.2, who has clearly stated that, the driver of the said vehicle was not qualified to drive yellow board vehicle after grace period of 27.05.2010. The Regional authority of licence will not authorize him to drive the vehicle without renewal. The accident taken place on 16.11.2013 and driving licence has been renewed in the year 2015 and in between the said period, the driving licence was not renewed. So, I hold that, the contention taken by the respondent No.2 & 3 is not acceptable. So, I hold that, as on the date of accident, the driver was not holding valid and effective driving licence to drive the offending vehicle. So, I answered Issue No.2 in Affirmative.
37) Issue No.3:- PW.1 has stated in his evidence that, after the accident, the deceased was taken to the Bowring and Lady Curzon Hospital, Bangalore and doctors have conducted postmortem and handed over the dead body to the petitioners and they took dead body to their native place and they performed the funeral obsequies ceremony and they have spent a sum of Rs.1,00,000/- towards transportation of the body and also the funeral and last rites. Considering this fact and also by following principles laid down by (SCCH -11) 29 MVC 694/2014 the decision reported in Rajesh and others V/s Rajbir Singh and others), 2013 ACJ 1403, I hold that, petitioners are entitled for compensation of Rs.25,000/- towards the head of funeral obsequies and transportation of dead body. Hence, the petitioners are awarded for compensation of Rs.25,000/- towards the head of funeral obsequies and transportation of dead body.
38) The petitioner No.1 has lost his loving wife at his young age and petitioner No.2 has lost his loving mother at her young age and they have lost the love and affection of deceased and due to the untimely death of deceased, petitioners would have been put to mental agony. Considering this fact, I hold that, petitioners are entitled for compensation of Rs.30,000/- under the head of loss of love and affection. Hence, the petitioners are awarded for compensation of Rs.30,000/- under the head of Loss of love and affection.
39) PW.1 has stated that in his evidence that, deceased was working as a Front Office Executive in Sai Paryavanan and earning sum of Rs.13,468/- per month and she was only earning member in his family and they were depending upon the income of the deceased. Due to the untimely death of (SCCH -11) 30 MVC 694/2014 deceased, the petitioners would have lost some income. The petitioners have also produced the Wage slip of the deceased, which goes to show that, she was also earning member and working in Sai Paryavaran Constructions Pvt Ltd and getting salary. Due to the death of deceased in the road traffic accident, the petitioners have lost income of the deceased. Considering this fact, I hold that, petitioners are entitled for compensation of Rs.30,000/- towards the head of loss of estate. Hence, the petitioners are awarded compensation of Rs.30,000/- under the head of Loss of estate.
40) Petitioner No.2, who is younger girl has lost her loving mother, who was care taker of petitioner No.2 and due to the death of deceased, she has lost her care taker. In the light of principles laid down in the decision reported in (Rajesh V/s Rajbir Singh) 2013 ACJ 1403, it is just and proper to award the compensation of Rs.1,00,000/- under the head of loss of care and guidance for minor children. Hence, the petitioners are awarded the compensation of Rs.1,00,000/- under the head of loss of care and guidance for minor children.
41) PW.1 has stated in his evidence that, deceased wife was working as a Front Office Executive on Sai Paryavanan and earning a sum of (SCCH -11) 31 MVC 694/2014 Rs.13,468/- per month and she was also earning member in his family and they were entirely depending upon the income of the deceased.
42) In the cross-examination of PW.1, he has stated that, he was working in Sai Paryavanan Constructions Private Limited and getting salary of Rs.9,500/- and he has produced salary certificate. This goes to show that the petitioner No.1 is also earning member and he was not depending on the salary of the deceased. However, deceased Prabhavathi and petitioner No.1 were residing together and they were living in their life and even though, the deceased was attending work, she was contributing her income towards the maintenance of the family along with the petitioner No.1. This goes to shows that, both of them were contributing towards the maintenance of the family, but the petitioner No.1 is working and he is also having earning and he was not totally dependent upon the income of the deceased.
43) In the cross-examination of PW.1, the learned counsel for respondent No.2 & 3, he has admitted that, his deceased wife was getting salary of Rs.8,608/- as per Ex.P.13 and Rs.7,796/- as per Ex.P.14. He has stated that, his deceased wife served 8-9 years as on the date of death and she was not having group insurance policy. The petitioners have produced pay (SCCH -11) 32 MVC 694/2014 slip for the month of April 2012 and as per the said document, the deceased was getting net salary of Rs.11,381/-. As per Ex.P.11, she was getting salary of Rs.22,862/- for the month of May 2012. She has also got some amount for the month of July 2012. As per Ex.P.12, she was getting salary of Rs.8,608/- for the month of July 2012. On perusal of the Ex.P.10, 11, 12 & Ex.P.13, there is difference in the salary depending upon the number of working days. Because in the month of April 2012, the deceased has availed C.L. of one day and she worked for 29 days and in the month of May 2012, deceased availed C.L. of 2 days and worked for 29 days and in the month of June 2012, the deceased availed C.L. of 2 days and worked for 28 days. But in the month of July 2012, deceased availed C.L. of 11 days and worked for 21 days and she got less salary of Rs.8,608/-. The deceased received net salary of Rs.7,796/- for the month of August 2012 as per Ex.P.14 and she got salary of Rs.9,381/- for the month of September 2012. As per Ex.P.16, deceased received gross salary of Rs.12,900/- for the month of October 2012 and net salary of Rs.9,774/-. She got gross salary of Rs.12,500/- for the month of November 2012 and net salary of Rs.9,381/-. There is also variation in the gross and net salary of deceased for the month of December 2012, January 2013, February 2013, March 2013, April 2013, May 2013, June 2013, July (SCCH -11) 33 MVC 694/2014 2013, August 2013 and September 2013. As per the pay slip for the month of September 2013, her gross salary was Rs.17,597/- and after deductions, her net salary was Rs.13,468/-.
44) On perusal of the Wage Slips and pay slips produced by the petitioners, there are variations in the salary of the deceased in the month of September 2013, deceased got bonus of Rs.6,250/-. However, if salary of the deceased for the month of July and August 2013 is considered, the gross salary of deceased at Rs.12,500/- is to be taken into consideration for assessment of loss of dependency. The petitioners have produced Educational records of the deceased and as per the true copy of SSLC Marks Card of the deceased, she was born on 21.11.1979 and as on the date of accident date of death, she was aged about 34 years. As per decision reported in AIR 2009 SC 3104 (Sarla Verma's case), the multiplier applicable to the facts of the case is 16. Since, the deceased is below the age of 50 years, if 50% is added towards future prospectus to the gross salary of the deceased, it will be Rs.18,750/- as per decision reported in (Rajesh and others Vs. Rajbeer Singh and others) 2013 ACJ 1403. Then the gross salary of the deceased will be at Rs.18,750/-. As per the recent decision reported in (Yerramma & Ors, Vs. (SCCH -11) 34 MVC 694/2014 G.Krishnamurthy & anr,) A.I.R 2015 SC 1145, it is held that, the gross income of deceased is to be considered for computing loss of dependency. In the light of above said decision, the gross income of deceased is taken into consideration for computing loss of dependency. If 1/3rd is deducted towards personal expenses of the deceased, the net income of the deceased will be at Rs.12,500/-. The loss of dependency of the petitioners is calculated as under:
Rs.12,500/- X 12 X 16 = Rs.24,00,000/ Therefore, the petitioners are entitled for compensation of Rs.24,00,000/- under the head of loss of dependency.
45) The calculation table stands as follows:-
1) Loss of dependency Rs. 24,00,000/-
2) Funeral obsequies and Rs. 25,000/-
transportation of dead body
3) Loss of love and affection Rs. 30,000/-
4) Loss of estate Rs. 30,000/-
5) Loss of care and guidance Rs. 1,00,000/-
for minor children
Total Rs. 25,85,000/-
(SCCH -11) 35 MVC 694/2014
46) Therefore, in total, the petitioners are entitled to compensation of Rs.25,85,000/- with simple interest @ 6% p.a. from the date of petition till complete realization.
47) The respondent No.1 is the insurer of the offending vehicle and respondent No.3 is the owner of the offending vehicle, as on the date of accident. The driver of offending vehicle was not holding valid and effective driving licence, which has been discussed in detailed in Issue No.2. Even in the Issue No.2, it is also discussed above absolving the liability of insurance company for violation of terms and conditions of insurance policy. In the light of the principles laid down, which are referred above, I hold that, insurance company is not liable to pay compensation to the petitioners and respondent No.3 being the owner of the offending vehicle is liable to pay compensation to the petitioners.
So, I hold that, the respondent No.3 is liable to pay compensation of Rs.25,85,000/- to the petitioners along with interest at 6% p.a. from the date of petition till complete realization from respondent No.3. Accordingly, I answer this Issue No.3 in the Partly Affirmative.
48) Issue No.4: In view of answers to issues No.1, 2 and 3, I proceed to pass the following:
(SCCH -11) 36 MVC 694/2014
O R D E R The petition filed under Section 166 of M.V. Act is allowed with costs.
The petitioners are entitled for compensation of Rs.25,85,000/- with interest at the rate of 6% p.a. from the date of petition till complete realization.
The respondent No.3, is hereby directed to deposit the entire awarded amount with accrued interest, within one month, from the date of this award.
Out of the awarded compensation amount, Rs.1,85,000/-
is apportioned to the share of petitioner No.1 and Rs.24,00,000/- is apportioned to the share of petitioner No.2 .
In case of deposit of the awarded compensation amount by respondent No.3, the entire apportioned amount of Rs.1,85,000/- along with accrued interest on the award amount shall be realised to the petitioner No.1 by means of account payee crossed cheque on proper identification.
Entire apportioned amount of Rs.24,00,000/- to the petitioner No.2 shall be deposited in her name in any nationalised or scheduled bank for the period of 5 years or till minor petitioner No.2 attains age of majority whichever is earlier, failing to furnish the particulars, the same shall be (SCCH -11) 37 MVC 694/2014 deposited in Karnataka Bank, City Civil Court Branch, Bangalore. The minor guardian is entitled to receive accrued interest on the deposited amount periodically.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed by her, corrected and pronounced by me in open court on this 9th day of October, 2015.) (GANAPATHI GURUSIDDA BADAMI) I ADDL.SMALL CAUSES JUDGE & XXVII ACMM ANNEXURE WITNESSES EXAMINED FOR PETITIONERS:
PW.1 - Prasannakumar .G DOCUMENTS MARKED FOR PETITIONERS: Ex.P.1 - True copy of F.I.R Ex.P.2 - True copy of Complaint Ex.P.3 - True copy of Panchanama Ex.P.4 - True copy of Hand sketch map Ex.P.5 - True copy of IMV report Ex.P.6 - True copy of PM report Ex.P.7 - True copy of Inquest panchanama (SCCH -11) 38 MVC 694/2014 Ex.P.8 - True copy of Charge sheet Ex.P.9 - Death certificate Ex.P.10-27 - Salary slips Ex.P.28 - Notarized copy of Aadhaar card Ex.P.29 - Notarized copy of driving licence Ex.P.30 - Notarized copy of Aadhaar card Ex.P.31 - Notarized copy of Election identity card Ex.P.32 - Notarized copy of Aadhaar card Ex.P.33 - Notarized copy of ration card Ex.P.34 - Notarized copy of SSLC marks card Ex.P.35 - Notarized copy of PUC marks card Ex.P.36 - Notarized copy of diploma first year marks card Ex.P.37 - Notarized copy of diploma first year marks card (Supplementary) Ex.P.38 - Notarized copy of diploma second year marks Card (Supplementary) Ex.P.39 - Notarized copy of diploma second year marks card Ex.P.40 - Notarized copy of diploma second year marks Card Ex.P.41&42 - Notarized copy of diploma third year marks card Ex.P.43 - Notarized Copy of Original Provisional Degree Certificate WITNESSES EXAMINED FOR RESPONDENTS : RW.1 - Girish RW.2 - Surendra RW.3 - Shiva (SCCH -11) 39 MVC 694/2014 DOCUMENTS MARKED FOR RESPONDENTS : Ex.R.1 - True copy of Charge sheet Ex.R.2 - True copy of insurance policy Ex.R.3 - Driving licence extract Ex.R.4 - True copy of insurance policy Ex.R.5 - Driving licence extract Ex.R.6 - Application for renewal of licence I ADDL.SCJ. & MACT.