Bangalore District Court
Smt.Swapna vs The Reliance General Insurance on 28 September, 2020
BEFORE THE CHIEF JUDGE, COURT OF SMALL
CAUSES, MEMBER PRL.MOTOR ACCIDENT CLAIMS
TRIBUNAL AT BENGALURU
(S.C.C.H. - 1)
DATED THIS THE 28th DAY OF SEPTEMBER 2020
PRESENT : Smt. S. MAHALAXMI NERALE,B.A., L.L.B.(Hons.), L.L.M.,
MEMBER, PRL. M.A.C.T.
M.V.C. NO. 2074/2017 C/W.
M.V.C.NO.2075/2017
PETITIONER: Smt.Swapna,
(in MVC W/o. Kumar,
2074/17) Aged about 21 years,
R/o. No.76, Ballekere,
Hosadurga Taluk,
Chitradurga District577 554.
(By Sri . K.N.Paramesha Advocate)
PETITIONER : Kumar,
(in MVC S/o. Rudrappa,
2075/2017) Aged about 34 years,
Residing at No.23,
Ashraya Layout,
Murarji School Road,
Near Majunatha Temple,
Bhavikere,
Chikkamagaluru577 144.
(By Sri . Veerabhadra Gowda ,
SCCH-1 2 MVC No.2074-2075/2017
Advocate)
V/s
Respondents: 1. The Reliance General Insurance
(Common in both Co. Ltd.,
the cases) East Wing, 5th Floor,
28, Centenary Building,
M.G.Road, Bengaluru560 001.
Policy No.6022252340000202
Valid from 07.09.2015 to
08.09.2016.
(By Smt.T.N.Malathi, Advocate)
2. Mr.Yuvaraj. N.,
S/o. Nanjappa,
Sri Shivaganga Travels,
Shiva Ganesha,
No.54, MIG 2nd KHB Extension,
Siragate, Tumkur District.
... Exparte
3. The Manager,
The New India Assurance Co. Ltd.,
Mahalakshmi Chamber, 2nd floor,
M.G.Road, Bengaluru560 001.
PolicyNo.31260031150303000597
Valid from 8.8.2015 to07.08.2016.
(By Sri B.P.Mahendra, Advocate)
SCCH-1 3 MVC No.2074-2075/2017
4. Sri Mohan B.R.,
S/o.Rudrappa. C.,
No.14E, 2nd Main, 9th Cross,
Rajashwarinagar, Laggere,
Bengaluru560 058.
( By Smt.Soumya S., Advocate)
*******
COMMON JUDGMENT
These petitions have arisen out of the same
accident and therefore, they are taken up together for
disposal by this common judgment.
2. The petitioners have filed these petitions
invoking the provisions of Section 166 of the Motor
Vehicles Act, 1989 seeking compensation for the
injuries sustained by them in the road traffic accident.
3. The brief facts of the case are that:
On 29.06.2016 at about 11.00 p.m., the
petitioners were travelling in Maruthi Suzuki Car
bearing No.KA05MQ1435 from Bengaluru to
Tumkur and when they reached near Jindal Flyover,
SCCH-1 4 MVC No.2074-2075/2017
BengaluruTumkur NH4 Express Road, Dasanapura
Hobli, the driver of Bus bearing No.KA06D5715, who
was proceeding in the same direction, drove the bus in
a rash and negligent manner and in a high speed and
stopped the bus suddenly without any indication and
due to the same, the driver of the canter bearing
No.KA51C739 who was also proceeding in the same
direction behind the bus, dashed against the bus and
the driver of Sugama bus bearing No.KA20C6385,
who was also proceeding in the same direction behind
the canter dashed against the canter. In the same way
N.W.K.S.R.T.C. bus bearing No.KA26F946 which
was also proceeding in the same direction behind
Sugama bus dashed against Sugama bus and
Durgamba bus which was also proceeding in the same
direction behind NWKSRTC bus dashed against
NWKSRTC bus and the Maruthi Suzuki Car bearing
No.KA05MQ1435 in which the petitioners were
travelling in the same direction behind Durgamba bus
SCCH-1 5 MVC No.2074-2075/2017
dashed against Durgamba bus and sustained grievous
injuries.
4. Immediately after the accident, the petitioner
Swapna in M.V.C.No.2074/2017 was shifted to
Premier Sanjeevini Hospital, Bengaluru for treatment.
Due to the accidental injuries the petitioner who is a
housewife has sustained permanent disability and is
not able to carry out her domestic work.
5. Immediately after the accident, the petitioner
Kumar in M.V.C.No.2075/2017 was also shifted to
Premier Sanjeevini Hospital, Bengaluru for treatment.
Prior to the date of accident the petitioner Kumar was
working as Relationship Officer in PNB Housing
Finance Limited and was earning Rs.22,000/p.m. Due
to the accidental injuries he has sustained permanent
disability and he cannot attend to his work and has
lost his income.
SCCH-1 6 MVC No.2074-2075/2017
6. It is contended by the petitioners in both the
petitions that the accident has occurred due to the
rash and negligent driving of the Bus bearing No.KA
06D5715 by its driver and the respondent No.1 being
the Insurer and the respondent No.2 being the Owner
are jointly and severally liable to pay the compensation
to the petitioners in both the cases.
7. In response to the Court notices issued on
these claim petitions, the respondent No.2 though
served with notice has not chosen to appear before the
Court and hence, he has been placed exparte. The
respondent No.4 though has appeared through his
counsel has not filed his written statement.
8. The respondent No.1insurer of Bus bearing
No.KA06D5715 has appeared through its Counsel
and has filed its written statement denying the petition
averments. It is contended that the alleged accident
was not intimated by the owner of the Bus and the
SCCH-1 7 MVC No.2074-2075/2017
required documents were also not produced by him
and thereby has failed to comply with the
requirements of Section 134 (c) of M.V.Act and the
conditions of the policy. It is contended that the Police
ought to have informed it about the accident as per the
provisions of Section 158(6) of M.V. Act but they have
not complied with the same. It is contended that the
respondent No.2, R.C. Owner of the bus is a
permanent resident of Tumkur District, the petitioners
are permanent residents of Chitradurga District and
the place of the alleged accident and jurisdictional
police station is Nelamangala Circle, Bangalore and as
such, this Court has no jurisdiction and the claim
petitions are liable to be dismissed. It is further
contended that the Bus had no valid permit to ply on
the route/ place of alleged accident, which is a gross
violation of the terms and conditions of the policy. The
owner of the bus has knowingly and willfully entrusted
his vehicle to ply without valid permit and thereby has
SCCH-1 8 MVC No.2074-2075/2017
violated the terms and conditions of the policy and as
such, it is not liable to indemnify the owner. It is
contended that the alleged accident is out of a series of
accident involving multiple vehicles namely three PSV
buses, one Eicher Canter and the Car in which the
petitioners were travelling. The Eicher Canter has
suddenly applied the brake and stopped his vehicle in
the middle of the road resulting in other vehicles
including the car dashing against one another. It is
contended that the alleged accident has occurred due
to rash and negligent driving of the Eicher Canter by
its driver. The Eicher Canter has not at all touched the
bus and the IMV Report shows that the bus had not
sustained any damage and it clearly indicates that the
Bus is not at all involved in the accident. It is
contended that the petitioners in collusion with the
jurisdictional police have falsely fixed the bus. It is
contended that the owner and insurer of the other
vehicles have not been made as parties to the petition
SCCH-1 9 MVC No.2074-2075/2017
and on the ground of nonjoinder of parties itself, the
petitions are liable to be dismissed. Without prejudice
to the contentions taken, the respondent No.1 has
denied the issuance of the insurance policy subject to
confirmation and it is contended that its liability, if any
is subject to the driver of the Bus having valid and
effective driving licence to drive the same. Further, the
respondent No.1 has denied the date, time and mode
of accident, injuries sustained by the petitioners,
amount spent for treatment, their avocation and
income and has contended that the compensation
claimed is excessive and exorbitant. It is further
contended that in the event of the owner of the Bus
failing to contest the case, then it may be permitted to
defend the case on all grounds including negligence as
per Section 170 of M.V. Act and accordingly has
prayed to dismiss the petitions.
SCCH-1 10 MVC No.2074-2075/2017
9. The respondent No.3Insurer of Maruthi
Suzuki Car bearing No.KA05MQ1435 has filed its
written statement contending that the petitions are to
be dismissed for nonjoinder of necessary and proper
parties. It is contended that the claim petitions are not
in compliance with Rule 232(3)(a) and (b) of Karnataka
Motor Vehicles Rules, whereunder it is mandatory to
produce Medical Certificate and FIR in respect of the
alleged accident and as such, insurer is not liable to
pay interest on the award amount. It is contended that
the alleged accident was not intimated by the
insured/owner and the required documents were also
not produced by him and thereby has failed to comply
with the requirements of Section 134 (c) of M.V. Act
and the conditions of the policy. Further it is
contended that as per Section 158(6) of M.V. Act, it is
the 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
SCCH-1 11 MVC No.2074-2075/2017
but they have failed to comply with the same. It is
contended that the driver of the car had no valid and
effective driving licence to drive the said class of
vehicle and the owner has entrusted his car to a
person who did not possess driving licence to drive the
same and has violated the terms and conditions of the
policy. It is contended that the Car had no valid permit
and F.C. on the date of accident and is contended that
the compensation claimed is excessive and exorbitant.
It is further contended that in the event of the owner
failing to contest the case, then it may be permitted to
defend the case on all grounds including negligence as
per Section 170 of M.V. Act and accordingly has
prayed to dismiss the petitions.
10. Based on the pleadings, the learned
PredecessorinOffice has framed the following
common Issues in both the cases:
Common Issues
SCCH-1 12 MVC No.2074-2075/2017
1. Whether the Petitioner proves that she/he
sustained grievous injuries in a Motor
Vehicle Accident that occurred on 2906
2016 at about 11.00 p.m, at Bengaluru
Tumkur NH4 Express Road, Jindal Flyover,
Dasanapura Hobli, Bengaluru North Taluk,
within the jurisdiction of
Madanayakanahalli Police Station on
account of rash and negligent driving of the
Bus bearing No.KA06D5715 by its
driver?
2. Whether the Petitioner is entitled for
compensation? If so, how much and from whom?
3. What order?
11. On 20.12.2018, this Tribunal has framed the
following Additional Issue:
Additional Issue
1. Whether the Respondent No.3 proves that the
accident has occurred on account of negligent
act of driver of the bus?
SCCH-1 13 MVC No.2074-2075/2017
12. In order to prove their case, the respective
petitioners have examined themselves as PW 1 and 2
and have got marked 18 documents at Ex.P.1 to 18.
The respondent No.1 has examined its official working
in its Legal Department and the Superintendent, RTO,
Tumkur as RW1 and 2 and has got marked 8
documents at Ex.R.1 to R.8.
13. Heard the arguments of the learned Counsels
for Petitioners, the respondent No.1 and 3 and
perused the records.
14. On the basis of the arguments addressed, the
pleadings and the evidence available on record, my
findings on the above Issues are as under:
Issue No.1( in both the cases )... In the Affirmative,
Addl. Issue No.1(in both the cases)...In the Affirmative
Issue No.2 (in both the cases)...Partly in the Affirmative,
Issue No.3( in both the cases )...As per final order
for the following:
SCCH-1 14 MVC No.2074-2075/2017
REASONS
15. Issue No.1 and Addl. Issue No.1 (in both the
cases): These two issues are interconnected to each
other and hence, they are taken up together for
discussion in order to avoid repetition of facts and
evidence.
16. But, before proceeding further on these
Issues as the respondent No.1 has taken a contention
that as the respondent No.2, R.C. Owner of the bus is
a permanent resident of Tumkur District; the
petitioners are permanent residents of Chitradurga
District and the accident has occurred within
Nelamangala Circle, this Court has no jurisdiction to
try the claim petitions, the said contention is taken up
for discussion.
17. It is no doubt true that the respondent No.2
owner of the offending bus is a resident of Tumkur and
the petitioners are residents of Chitradurga District as
SCCH-1 15 MVC No.2074-2075/2017
per the cause title of the petition and the accident has
taken place within Dasanapua Hobli, Bengaluru North
Taluk, but, it is relevant to note that the respondent
No.1Insurance Company is carrying on its business in
the cause title address at Bengaluru. In Malathi
Sardar Vs. National Insurance Company Ltd and
Others reported in 2006 ACJ 542, the Hon'ble Apex
Court has held that the provision of territorial
jurisdiction has to be interpreted consistent with the
object of facilitating remedies for the victims of
accidents and that hyper technical approach in such
matters can hardly be appreciated and that there is no
bar to a claim petition being filed at a place where
Insurance Company which is the main contesting
party in such cases has its business. In the case on
hand, as the respondent No.1Insurance Company is
carrying on its business at Bengaluru, the contention
SCCH-1 16 MVC No.2074-2075/2017
of the respondent No.1 that this Tribunal has no
jurisdiction over the claim petitions is rejected.
18. Now, coming to the discussion on Issue No.1
and Additional Issue No.2, it is the case of the
petitioners in both the cases that the accident has
occurred involving multiple vehicles viz., three
Passenger Carrying Buses, one Eicher Canter and their
Maruthi Suzuki Car bearing No.KA05MQ1435 when
they were travelling in their car on BengaluruTumkur
Express Highway NH4.
19. On the other hand, it is the contention of the
respondent No.1/insurer of the bus that the accident
has occurred due to the Eicher Canter driver suddenly
applying the brakes of his vehicle and stopping it in
the middle of the road resulting in other vehicles
including the car of the petitioners dashing against one
another.
SCCH-1 17 MVC No.2074-2075/2017
20. The petitioners in order to prove their case,
have examined themselves as PW1 and 2 and in their
respective affidavit evidence filed in lieu of their
examinationinchief, they have reiterated the
averments of the petition. Apart from their oral
evidence, PW2 has produced the documentary
evidence namely, the copy of FIR and Complaint, Spot
Mahazar, Seizure Mahazar, IMV reports and the
Chargesheet at Ex.P 6, Ex.P 8 to P.12.
21. On perusal of Ex.P.6 F.I.R. and complaint, it
seen that the accident has occurred on 29.06.2016 at
about 11.00 p.m. and the complaint has been lodged
by the driver of Canter bearing No.KA51C739 on
30.06.2016 at 3.30 a.m. alleging that he is the driver
of Canter vehicle and after loading the parcels in his
Canter vehicle in Gandhinagar, Bengaluru, he was
proceeding on BengaluruTumkur NH4 Express
Highway and when he was so proceeding on Jindhal
Flyover, the driver of the bus who was proceeding in
SCCH-1 18 MVC No.2074-2075/2017
front of him, all of a sudden without giving any
indication stopped his bus and though he slowed down
his canter vehicle, Sugama Bus which was coming
behind his canter vehicle dashed against his canter
vehicle, N.W.K.S.R.T.C. bus which was coming behind
Sugama Bus dashed against Sugama Bus, Durgamba
bus which was coming behind N.W.K.S.R.T.C. bus
dashed against N.W.K.S.R.T.C. bus and Maruthi
Suzuki Car which was coming behind Durgamba bus
dashed against Durgamba bus.
22. On the basis of the complaint lodged by the
driver of the Canter vehicle, the jurisdictional police
have registered a criminal case against the driver of
the Bus and have conducted the Spot Mahazar as per
Ex.P.8 and Seizure Mahazar as per Ex.P.9. The Seizure
Mahazar discloses that three Buses, one Eicher Canter
and one Maruthi Suzuki Car have been seized by the
police from the spot. Ex.P.11 is the IMV report of the
offending bus and it discloses that no damage was
SCCH-1 19 MVC No.2074-2075/2017
sustained by the said bus. Ex.P.10 is the IMV report of
the other vehicles involved in the accident and it
discloses the damage caused to the said vehicles. The
IMV Reports further disclose that the accident has not
occurred due to any mechanical defects of the vehicles
as the brake systems of the vehicles were found in
order. Ex.P.12 is the charge sheet and it discloses that
the Police after investigation have found the driver of
the Bus responsible for the accident and have charge
sheeted him for the offences punishable under
Sections 279 and 337 of IPC and Section 187 of M.V.
Act.
23. During the course of arguments, the learned
counsel for the respondent No.1 vehemently contended
that the IMV Report of the bus discloses that the said
bus had not sustained any damage in the accident.
The accident has occurred due to the rash and
negligent driving of the Canter vehicle by its driver but
the bus has been falsely implicated in the case.
SCCH-1 20 MVC No.2074-2075/2017
24. No doubt, the IMV Report of the bus at
Ex.P.11 discloses that the bus had not sustained any
damage. However, it is pertinent to note that as the
driver of the said bus, who was proceeding in front of
Canter vehicle has stopped his bus suddenly without
giving any indication, the Canter vehicle driver has
slowed down his vehicle and due to that, the other
vehicles who were following him, having no clue of the
Canter vehicle slowing down, have dashed against one
another. Had the driver of the bus stopped his bus
giving indication, the Canter vehicle driver would have
given indication to the other vehicles following him and
it would have averted the vehicles following the Canter
vehicle from dashing against one another. It is because
of the rash and negligent driving of the bus by its
driver that the accident has occurred. If the accident
has not occurred in the manner stated in the police
papers, then the respondent No.1 should have
examined the driver of the Bus or any independent
SCCH-1 21 MVC No.2074-2075/2017
eyewitness to prove that the accident has not
occurred in the manner stated in the police papers but
has occurred due to the rash and negligent driving of
the Canter vehicle by its driver. But the respondent
No.1 has not examined the Bus driver or any
independent eyewitness. Hence, there is no rebuttal
evidence. In the absence of rebuttal evidence, the oral
evidence of PW1 & 2 and the documentary evidence
clearly prove that the accident has occurred due to the
rash and negligent driving of the Bus bearing No.KA
06D5715 by its driver and as a result of the said
accident, the petitioners who were travelling in their
car have sustained injuries. Hence, Issue No.1 and
Addl. Issue No.1 in both the cases are answered in the
affirmative.
25. Issue No.2 in M.V.C. No.2074/2017 : It is
the case of the petitioner Swapna that at the time of
accident, she was aged 21 years and a house wife, in
the accident she sustained grievous injuries and spent
SCCH-1 22 MVC No.2074-2075/2017
more than Rs.50,000/ towards medical treatment.
Now due to the injuries sustained by her in the
accident, she has suffered permanent disability, she is
not in a position to do house hold work and has lost
her income.
26. In order to prove the above said case, the
petitioner has produced the Wound Certificate and the
Discharge Summary of Premier Sanjeevini Hospital at
Ex.P.1 and P.2, the C.T. Scan Brain Report at Ex.P.3,
Lab Reports at Ex.P.4 and the inpatient bill at Ex.P.5.
27. On perusal of these documents, it is seen that
as per the Wound Certificate, the petitioner had
sustained the following injuries which as per the
opinion of the Doctor are simple in nature:
1. Head injury with contusion over the occipital area
2. Laceration over the left chin
3. Abrasion over the left knee
The Discharge Summary also discloses that the
petitioner had been diagnosed with head injury, chin
and leg and was treated as an inpatient from
SCCH-1 23 MVC No.2074-2075/2017
30.06.2017 to 01.07.2017. Further though the
petitioner has contended that the accidental injuries
suffered by her has resulted in permanent disability, it
is relevant to note that the petitioner had sustained
only simple injuries and the C.T. Scan Brain Report
shows that no obvious post traumatic
neuroparenchymal abnormality was found at the time
of examination of the petitioner and further, the
petitioner has also not examined the doctor who has
treated her or any other Orthopedic doctor to show
that she has sustained permanent disability. Her
evidence in the crossexamination reveals that she had
sustained only simple injuries and she had not been
subjected to any surgery and was treated
conservatively. Further in regard to the medical
expenses incurred, though the petitioner has claimed
that she has spent more than Rs.50,000/ towards
medication, but the only piece of document produced
by her is the inpatient bill which shows that the
SCCH-1 24 MVC No.2074-2075/2017
petitioner has spent Rs.29,000/ for one day inpatient
treatment. This inpatient bill is also supported by the
payment receipts. Hence, considering the nature and
gravity of injuries suffered by the petitioner, period of
treatment, amount spent for treatment and her age, it
just and proper to award a global compensation of
Rs.50,000/ towards pain and suffering, medical bills,
conveyance, attendant, food and nourishment charges,
loss of income and loss of amenities. Hence, Issue
No.2 in MVC No.2074/2017 is answered partly in the
affirmative.
28. Issue No.2 in M.V.C. No.2075/2017 : It is
the case of the petitioner Kumar that at the time of
accident, he was aged 34 years and was working as
Relationship Officer at PNB Housing Finance Limited
and earning Rs.22,000/p.m. In the accident he
sustained grievous injuries and for his treatment and
ambulance charges, he has spent more than
SCCH-1 25 MVC No.2074-2075/2017
Rs.50,000/ and that on account of the grievous
injuries sustained by him in the accident, he is unable
to do his work and at present he is suffering from
permanent disability.
29. In order to prove the above said case, the
petitioner Kumar has produced the Wound Certificate
and the Discharge Summary of Premier Sanjeevini
Hospital at Ex.P.7 and P.14, the C.T. Scan Brain
Report at Ex.P.15, Lab Reports at Ex.P.16, 5 medical
bills at Ex.P.17 and 3 prescriptions at Ex.P.18.
30. On perusal of these documents, it is seen that
as per the Wound Certificate, the petitioner had
sustained the following injuries which as per the
opinion of the Doctor are simple in nature:
1. Blunt injury over the chest with pain
2. Contusion over the forehead with mild swelling
and pain.
The Discharge Summary also discloses that the
petitioner had been diagnosed with head injury and
blunt injury to chest and was treated as an inpatient
SCCH-1 26 MVC No.2074-2075/2017
on 30.06.2017 only. Though the petitioner claims that
presently he is suffering from permanent disability but
he has not examined the doctor who has treated him
or has examined any other Orthopedic doctor. The C.T.
Scan Brain Report shows that the petitioner was found
to have no obvious post traumatic neuroparenchymal
abnormality. The crossexamination part of his
evidence discloses that he had sustained simple
injuries, he had not been subjected to any surgery and
had been treated conservatively. Further the 5 medical
bills produced by him shows that for his inpatient
treatment on 30.6.2016, he has spent Rs.8,000/ and
for purchase of medicines and consumables, he has
spent Rs.698/. Hence, considering the nature and
gravity of injuries suffered by the petitioner, period of
treatment, amount spent for treatment and his age, it
just and proper to award a global compensation of
Rs.20,000/ towards pain and suffering, medical bills,
SCCH-1 27 MVC No.2074-2075/2017
conveyance, attendant, food and nourishment charges,
loss of income and loss of amenities. Hence, Issue
No.2 in MVC No.2075/2017 is answered partly in the
affirmative.
31. In so far as awarding of interest on the
compensation amount is concerned, in MFA
No.103557/2016 (Sriram General Ins. Co. Ltd Vs
Smt. Lakshmi & Others) (DD.20032018) the
Hon'ble High Court of Karnataka has held that as per
Sec. 34 of CPC, the rate of interest that can be
awarded on judgments cannot be more than 6% and
that since Sec. 149 of the Motor Vehicles Act provides
for interest on judgments, the interest to be awarded in
claim petitions has to be 6% per annum and not more
than that. Hence, in the case on hand, interest at the
rate of 6% per annum is awarded.
32. As regards the liability is concerned, it is the
contention of the respondent No.1Insurance Company
SCCH-1 28 MVC No.2074-2075/2017
that the Bus bearing No.KA06D5715 did not have
valid permit to ply on the route on which the accident
has occurred and it is a gross violation of the terms
and conditions of the policy and as such, it is not
liable to indemnify the respondent No.2.
33. In support of its contention, the respondent
No.1 has examined its official working in its Legal
Department as RW1. RW1 has filed his affidavit
evidence in lieu of his examinationinchief reiterating
the said contention. He has further stated that the
offending bus is a habitual offender and it has caused
a number of accidents by plying on the said route
without holding a valid permit. In support of his
contention, RW1 has produced the certified copy of the
deposition in MVC No.4487/2016, certified copy of the
Charge sheet in C.C.No.1022/2016, certified copy of
the endorsement, certified copy of the permit and the
copy of policy with terms and conditions at Ex.R.2 to
SCCH-1 29 MVC No.2074-2075/2017
R.5. In the crossexamination by the learned Counsel
for the petitioner, RW1 has stated that the Police have
not invoked any penal provision for 'no permit' and he
has not produced any document to show that there
was no permit for the particular route.
34. The respondent No.1 has also summoned
and examined the Superintendent, R.T.O., Tumkur as
RW2. In his evidence before the Court, RW2 has
stated that there was no permit for the bus to ply on
Jindal Flyover and the permit issued was to ply from
Huliyur to Tumkur and back and produced the permit
endorsement of lease agreement along with xerox copy
of the permit at Ex.R7 and the B Register Extract of
the Bus at Ex.R8. In the crossexamination by the
learned Counsel for the petitioner, RW2 has denied
that Ex.R7 and Ex.R8 have been created and
produced.
SCCH-1 30 MVC No.2074-2075/2017
35. On perusal of Ex.R1 and Ex.R2, the certified
copy of the deposition in MVC No.4487/2016 and the
certified copy of the Charge sheet in
C.C.No.1022/2016, it is seen that the offending bus of
this case was involved in an accident that had taken
place on TumkurBengaluru NH4 for which route, it
did not have permit. The certified copy of the
replacement and endorsement on lease agreement and
the certified copy of the permit produced at Ex.R.3 and
R.4, (which are the same as Ex.R.7 and R.8) reveal
that the offending bus had permit to ply on the route
'Huliyur to Tumkur' and 'back' but, it did not have
permit to ply on Jindal Flyover i.e., on the road on
which the accident has occurred.
36. Therefore, though the offending bus did not
have permit to ply on the road on which the accident
has occurred, but it is relevant to note that under
Section 149(2)(a)(i)(c) of the Motor Vehicles Act, the
SCCH-1 31 MVC No.2074-2075/2017
insurer has the defence of avoiding its liability to
indemnify the insured if the vehicle insured had been
used for a purpose not allowed by the permit. In this
regard, our Hon'ble High Court of Karnataka in the
case of Durgamma Vs. S.G.Naresh and Others (MFA
No. 1201/2011 DD: 07.11.2016) has clearly held so.
In the case on hand, the offending bus had not been
used for a purpose not allowed by the permit. It had
the permit for carrying passengers from Huliyur to
Tumkur and back and when the bus was being used
for the said purpose, the accident has occurred but
outside the permitted route. Therefore, though there is
violation of permit conditions by the respondent No.2
in plying the bus outside the permitted route but the
same has not resulted in violation/breach of insurance
policy conditions. Hence, the respondent No.1 is liable
to indemnify the respondent No.2. While answering
Issue No.1, it is held that the driver of the bus is
SCCH-1 32 MVC No.2074-2075/2017
responsible for the accident. The respondent No.2 is
the owner and the respondent No.1 is the insurer of
the bus. Therefore, both the respondent No.1 and 2 are
jointly and severally liable to pay the compensation
amount with interest to the petitioners. However, the
primary liability to pay the compensation amount is
fixed on the respondent No.1Insurance Company.
Accordingly, Issue No.2 is answered partly in the
affirmative.
37. Issue No.3: In view of the discussion made
above, I proceed to pass the following:
ORDER
M.V.C. No.2074/2017 The petition filed by the petitioner is allowed in part against the respondent No.1 and 2.
The petition filed by the petitioner is dismissed against respondent No.3 and 4.
SCCH-1 33 MVC No.2074-2075/2017
The petitioner is entitled for a total compensation of Rs. 50,000/ with interest at the rate of 6% per annum from the date of petition till realisation. However, the primary liability to pay the compensation amount is fixed on the respondent No.1 Insurance Company and it is directed to pay the compensation amount within two months from the date of this order.
As the compensation amount is very meager, the entire compensation amount with interest is ordered to be released to the petitioner.
M.V.C. No.2075/2017 The petition filed by the petitioner is allowed in part against the respondent No.1 and 2.
The petition filed by the petitioner is dismissed against respondent No. 3 and 4.
The petitioner is entitled for a total compensation of Rs.20,000/ with interest at the rate of 6% per annu with interest. However, the primary liability to SCCH-1 34 MVC No.2074-2075/2017 pay the compensation amount is fixed on the respondent No.2 Insurance Company and it is directed to pay the compensation amount within two months from the date of this order.
As the compensation amount is very meager, the entire compensation amount with interest is ordered to be released to the petitioner.
Advocate's fee is fixed at Rs.1,000/ in each case. Original judgment shall be kept in MVC No.2074/2017 and its copy in another case.
Draw Award accordingly.
(Dictated to the Stenographer, transcribed by her, corrected, signed and then pronounced by me in the Open Court on this the 28th day of September 2020) ( S. MAHALAXMI NERALE) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore.
SCCH-1 35 MVC No.2074-2075/2017ANNEXURES Witnesses examined on behalf of the petitioners:
P.W.1 : Smt.Swapna B.P P.W.2 : Kumar
Documents marked on behalf of the petitioners:
Ex.P1 : Copy of Wound Certificate (M.V.C.No.2074/17) Ex.P2 : Discharge Summary Ex.P3 C.T.Scan Report Ex.P.4 Lab Reports (4) Ex.P5 : Medical bill (M.V.C.No.2074/17) Ex.P6 Copy of FIR Ex.P.7 Copy of Wound Certificate (M.V.C.No.2075/17) Ex.P.8 Copy of Spot Mahazar Ex.P.9 Copy of Seizure Mahazar Ex.P.10 Copy of IMV Reports (2) & 11 Ex.P.12 Copy of Charge Sheet Ex.P13 Notarized copy of Aadhar card of Kumar (original compared) Ex.P.14 Discharge Summary Ex.P.15 C.T.Scan of brain Ex.P.16 Lab Reports Ex.P.17 Medical bills (M.V.C.No.2075/17) Ex.P.18 Prescriptions (3) SCCH-1 36 MVC No.2074-2075/2017 Ex.P.19 Notarized copy of Aadhar card of Swapna (original compared) Witnesses examined on behalf of the respondents :
RW1 Pradeep D.S. RW2 S.G.Devaraj
Documents marked on behalf of the respondents:
Ex.R.1 Certified copy of deposition in MVC No.4487/2016 Ex.R.2 Certified copy of Charge sheet in CC No.1022/2016 Ex.R.3 Certified copy of endorsement Ex.R.4 Certified copy of permit Ex.R.5 Copy of policy with terms and conditions Ex.R.6 Authorization letter Ex.R.7 Permit endorsement of lease along with xerox copy of permit Ex.R.8 B Register Extract ( S. MAHALAXMI NERALE) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore.