Bangalore District Court
Sri Srinivas vs The Oriental Insurance Co.Ltd on 2 April, 2018
BEFORE THE MOTOR ACCIDENTS CLAIMS
TRIBUNAL & V ADDL. JUDGE
Court of Small Causes, Mayo Hall Unit, Bengaluru.
(SCCH.20)
Dated this the 4th day of April, 2018
Present: Smt. A.G.SHILPA, B.A., LL.B.,
V Addl. Small Causes Judge &
XXIV A.C.M.M., Member, M.A.C.T.,
Bengaluru.
MVC. No.236/ 2016
PETITIONER: Sri Srinivas
S/o Late Muniswamy
Aged about 55 years
R/at. No. 42, 3rd Main,
5th Cross, Kallappa Layout,
Basavanagara
Marathahalli Post,
Bangalore - 560037.
(By Pleader Sri.Narayanaswamy)
-V/s-
RESPONDENT : The Oriental Insurance Co.ltd
Regional Office No.44/45,
Leo Complex, M.G.Road,
Bangalore -01.
Policy No.253201/31/2016/1931
Valid from 13-5-2015 to 12-5-2016
2. Sri Pallav Rawat
S/o Laxmichand Singh Rawat,
Aged about 29 years
Airforce M.P.Camp,
SCCH-20 2 MVC No.236/2016
Airman Mess Billet,
Murugeshpalya,
Bangalore (Driver of UK 07 BK 3705)
3. Sri Bhaskar Sundriyal,
S/o Prakash Chanda Sundriyal
Aged major, residing at No.Q 44/4
Raipur, Ordinance Factory Area,
Anshik, Dehradun,
Uttaranchal - 248001.
(RC Owner of UK 07 BK 3705)
(R1 - By pleader Sri AAK)
(R2 - By Pleader Sri V.H, Adv)
(R3 - By pleader VH)
******
JUDGMENT
The Petitioner has filed this petition U/sec.166 of M.V.Act, 1989 claiming compensation for the injuries sustained by his in a road traffic accident.
2. The brief facts of the Petitioner case are as follows:
It is the case of the petitioner that on 29/08/2015 at about 1.30 PM, at Konena Agrahara S S S Arcade opp:
Rajeshwari Bus stop, when the petitioner was standing in the Bus stop, cautiously by observing all traffic rules and regulations, at the time one Motor cycle bearing No: UK-SCCH-20 3 MVC No.236/2016
07-BK-3705 was driven by its driver in a rash and Negligent manner with a high speed so as endangerous to human life, and dashed to him, as a result of the force impact, he sustained Grievous injuries.
It is submitted that, immediately after the accident, the petitioner was shifted to Manipal Hospital, after Bowring Hospital, admitted as a inpatient in the Bowring Hospital, the duty Doctor examined the petitioner clinically and radiological, which revealed that sustained fracture left leg, tibia and fibula and other injuries are treated with conservatively. And operation was done, other injuries as mentioned the wound certificate and discharge summery. For which he will required huge funds for the treatment, medicine etc. Accordingly, the petitioner is till under treatment. The petitioner was forced to spent more than Rs.2,00,000/- towards medical expenses, conveyance, food and transport and other charges. The injuries sustained in the said accident due to the injuries he is completely bed ridden, cannot run, jump, stand cannot do his activities as earlier to the accident under deep mental shock, pain and suffering since the injuries permanent in nature, due to injury he is unable to do his Coolie job till the end of his life. He is the only bread earner in his SCCH-20 4 MVC No.236/2016 family. All family members depend on him for food, clothing and shelter.
It is further submitted that, prior to the date of accident, the petitioner was hale and healthy and aged about 55 years. The petitioner was work a coolie and earning Rs.10,000/- per month. Due to the injuries, he is not able to do coolie job and hence lost his earning . Due to the accident the petitioner is suffering from mental shock and mental agony. The petitioner is also facing great financial difficulties.
It is further submitted that, the accident in question purely due to the rash and negligent manner of the rider of the Motor cycle bearing Reg.No: UK 07BK 3705 against him the Airport Traffic Police have registered a case in Crime No: 90/2015 punishable under section 279, 338 of IPC against the rider of the said motor cycle for causing the accident. Hence, prayed to allow this petition.
In pursuance of the claim petition, this court issued notice to respondent No.1 to 3. Respondent No.1 to 3 have appeared before this court through pleader and Respondent No: 3 has filed written statement.SCCH-20 5 MVC No.236/2016
3. Brief averments of the written statement of Respondent No: 3 is as follows:
The Respondent No: 3 submits that he is the registered owner of the vehicle bearing No: UK-07-BK-3705 is aRoyal Enfield Motor Cycle has been insured with the 1st Respondent vide Policy No: 253201/31/2016/1931 dated:
13/5/2015 the period of Insurance from 13/5/2015 to 12/5/2016 and the driver of the vehicle that is second respondent has valid driving licence bearing No: UK 1520070005001 issued on 8/6/2007 valid upto 7/6/2027, at the time of the alleged incident.
Further it is submitted that, the injured got the injuries due to the alleged incident. The injuries caused to the petitioner were due to suddenly crossing the road without observing the traffic the Petitioner and not the negligent driving of this Respondent.
It is further submitted that the alleged injuries as stated in column No: 11, 12, 13 and 14 of the petition are all false and this respondent denies the same.
It is further submitted that the allegations made against him by the Petitioner with only intention to claim SCCH-20 6 MVC No.236/2016 compensation to make unlawful gains. The claim made for medical expenses, suffering from mental agony loss of earnings and loss of future earnings and loss of happiness are all false and imaginary and there is no basis to the claim made by the petitioner.
It is further submitted as the vehicle was duly insured with the first respondent. It is the first respondent who has to indemnify the 2nd respondent of all the liabilities and the compensation claimed by the petitioner. The petitioner is vexatious and frivolous so also it is contrary to law and facts of the case. Therefore, the 3rd respondent in the above case prayed to dismiss claim petition.
4. On basis of the Pleadings and materials and materials, my Predecessor has framed the following:
ISSUES
1. Whether the petitioner prove that, on 29.08.2015 at about 1.30 p.m., On old Madras Road, Opp. SNS Arcade, Rajeshwari Theatre, Bangalore City, due to rash and negligent driving of the Motor Cycle bearing Regn.No: UK-07-BK-3705 by its driver?
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?SCCH-20 7 MVC No.236/2016
3. What order or award?
5. In order to prove their case, the Petitioner got examined himself as P.W.1 and examined one witness as PW-2 and got marked documents as Ex.P.1 to Ex.P.14 and closed her side. The Respondent No.1 got examined one witness as RW-1 and not adduced any defendant on his behalf. The respondent No.2 and 3 did not get an opportunity to cross examine RW-1 and remained absent and his evidence was closed.
6. Heard the arguments of both side and perused citations and the records.
7. My findings on the above issues are as follows:
Issue No.1: Partly in the Affirmative,
Issue No.2: Partly in the Affirmative
Issue No.3: As per final order
for the following:
REASONS
8. ISSUE No.1: The PW1 has filed an evidence affidavit reiterating the petition averments and narrated about his personal injuries in the road traffic accident / which took place on 29/08/2015 at about 1.30 PM at Konena Agrahara, S S S Arcade, opp: Rajeswari Bus stop.
SCCH-20 8 MVC No.236/2016It is the case of PW1 that he was standing in the Bus stop mean time, one motor cycle bearing Regn No: UK-07-BK- 3705 came in a rash and Negligent manner, so as endanger to human life and caused grievous injuries to him.
9. To substantiate the same, the PW1 has produced Ex.P.1 FIR, Ex.P.2 First Information Statement respectively. The Airport Traffic Police has registered FIR vide Crime No.90/2015 against Sri Pallav Rawat rider of the motor cycle bearing Reg.No: UK-07-BK-3705 for committing an offence punishable under Section 279 & 338 of IPC, R/w Section 185 of the Motor Vehicles Act., on the basis of the First Information Statement of PW1 daughter. The First Information is received on 29/8/2015 at 16 Hrs. to register the case in Airport Traffic Police Station, immediately after the accident. However, it is settled law that evidence in motor vehicle cases must be assessed independently from criminal proceedings. Therefore, prudence require corroboration.
10. The Ex.P.3 Spot sketch and Ex.P.4 spot mahazar corroborate with place of accident. Likewise Ex.P.5 motor vehicle accident report corroborate the good mechanical condition of the motor cycle and break system SCCH-20 9 MVC No.236/2016 was in order. According to Ex.P.6 Wound certificate, the PW1 was carried to the Manipal Hospital with alleged history of road traffic accident. The Investigation Officer as per Ex.P.7 has charged Mr.Pallav Rawat for committing an offence punishable under section 279, 338 of IPC R/w Section 185 of the Motor Vehicles Act. Therefore, it is clear that the rider of motor cycle was under influence of Alcohol and he chose to ride his motor cycle on a public place indicating an act of rashness and negligence resulting in the accident to PW1.
11. The PW1 was in fact waiting for the bus near the Bus Stop and as seen from the sketch, he was at a distance of 7-8 feet from the bus stop. PW1 also depose that he was at 7-8 feet from the bus stop and not standing on the footpath and he was approximately 8 feet far from the footpath. This evidentially clear that PW1 makes him liable for contributory negligence of 5%. Despite their being bus stop and footpath, he was standing on the road.
12. The rider of the motor cycle did not enter into witness box to explain what happened at the place of accident?. Therefore, adverse inference can be drawn against him. Even otherwise, as seen from the Order dated: 2/2/2018, the 1st Respondent has secretly SCCH-20 10 MVC No.236/2016 observing case proceedings and when case is posted for judgment, he filed application to lead respondent evidence which was allowed by imposing cost of Rs.1,000/- subsequently the Assistant Manager of the Insurance Company was examined as RW1 who did not subject herself to cross examination by Respondent No.2 & Respondent No.3. Therefore, her evidence was discarded. From the police documents and oral evidence it is clear that the rider of the motor cycle bearing Reg No: UK 07BK 3705 was under the influence of Alcohol and caused accident to the PW1. In view of it, I answer Issue No: 1 partly in the AFFIRMATIVE.
13. Issue No: 2 :- In respect to the quantum of compensation is concerned the PW1 as per Ex.P.8 Discharge card he suffered Type II BB Left leg Fracture of both bones of left leg. He was operated implant ORIF with place for fibula and DTLCP by MIPPO Technique for tibia. The PW1 was in the Hospital on 29/08/2015 to 11/9/2015. He was inpatient for 13 days. The PW1 has produced 18 detailed bills and Medical receipts for spending to Rs.27441/-. All these bills are genuine and supported by prescriptions. Therefore, an amount of Rs.27441/- can be granted under the head of Medical expenses.
SCCH-20 11 MVC No.236/201614. The PW2 is an Orthopadeic Surgeon at Bowring and Lady Curzon Hospital, where the petitioner has undergone treatment. The PW2 has assessed disability in the petitioner. He confirm that the petitioner was diagnosed to have Type II Open Fracture of both bones of the left leg. The Doctor has assessed the disability of left lower limb as 52 % and whole body at 26%. But I find 1/3 of 52% is 7.3% which is reasonable to assess the compensation for the disability is suffered by plaintiff. 26% of whole body disability arrived by the Doctor is on higher side. The doctor further deposed that he has diagnosed difficulty in petitioner for squatting, climbing stairs. 26% of injury can malign. Further, he is of opinion he required 30,000/- removal of implants. Nothing material is elicited by PW2 to doubt his competency and expertise in the field of Orthopedic. By analyzing evidence of PW1 and PW2 the petitioner is seen to have suffered both bones fracture and must had acute pain. In view of it is entitled for compensation Rs.50,000/- towards pain and sufferings. He must be in complete bed rest for two months. Since the Doctor has advised another surgery for removal implants cost him Rs.30,000/- whereas the original medical receipts bills issued by the PW1 himself for inpatient for 13 days is costing Rs.27,441/-, it is just SCCH-20 12 MVC No.236/2016 and appropriate to grant an amount of Rs.28,000/- for removal implants.
15. Now, in respect to the quantum of compensation for the loss of future income, the PW1 has certainly suffered functional disability due to the fracture of both bones. The PW1 stated that he is a Coolie and now it is the case that his original bone and muscle strength cannot be restored. He will suffer whole body disability of 17%. He cannot carry out his work as before. The accident took place in the year 2016 and in regard to a Coolie worker, Notional Income of Rs.6000/- is taken. As per Ex.P.8, the petitioner was 58 years old at the time of accident and the proper multiplier for his age is '9'. The calculation is as follows:
6000 x 12 x 9 x 17% = 1,10,160/-
As a whole the petitioner is entitled for just and reasonable compensation as follows :SCCH-20 13 MVC No.236/2016
1. Medical charges Rs. 27,441/-
2. Pain and sufferings Rs. 50,000/-
3 Loss of future income Rs.1,10,160/-
4 Future medical bills Rs. 28,000/-
5 Attendance charges Rs. 10,000/-
6 Conveyance Rs. 10,000/-
Total : Rs.2,35,601/-
In view of petitioners is liable of 5% contributory negligence is entitled for compensation of Rs.2,23,821/-.
16. Interest:
Hon'ble Supreme Court in Civil Appeal No.3238/2015 (arising out of SLP (C) 1865/2014 (Chanderi Devi and Anr., Vs. Jaspalsingh & Ors.,) and 2013 AIR SCW 5375 (Minu Rout & Ors vs Sathya Pradyumna Mohapatra & Ors), (2011) 4 SCC 481: (AIR 2012 SC 100) (Muncipal council of Delhi Vs Association of Victims of Uphaar Tragidy and Hon'ble High Court in MFA No.2326/2016 (Annapurna & Ors., G.Ashawathraya & Anr.,) have held that rate of interest shall be @9% p.a., from the date of application till the date of payment. Hence, I hold that the petitioner is entitled for interest @9% p.a., from the date of petition till the date of payment. In view of settled rate of interest, 9% is justified and not on higher side. Accordingly the petitioner is entitled to interest @ 9% pa., SCCH-20 14 MVC No.236/2016
17. Liability As seen in the charge sheet the driver Mr.Pallav Rawat was under the influence of Alcohol and rode two wheeler bearing Regn.No:UK 07 BK 3705 on main road. The Airport Traffic Police has charge sheeted him for committing an offence punishable under Section 185 of the Motor Vehicles Act. The accident was not due to any Mechanical defects as per IMV report Ex.P5. Therefore, Mr. Pallav Rawat did not have sufficient cause to dash the petitioner. The 3rd Respondent has registered owner of the vehicle bearing Reg.No: UK 07 BK 3705. The main contention of insurance company is that the company is not liable as rider of motor cycle rode under drunker state, amounts to violation of terms and conditions of the policy by owner.
18. The learned counsel for petitioner has emphasized that any person driving or attempting to drive a motor vehicle must have in blood Alcohol present exceeding 30 mg. per 100 ML blood detected by in the test for breath or blood test only then he has acted in contravention under the Section 185 of Motor Vehicles Act. The respondent No.2 did not establish that consumed Alcohol exceeding 30 mg. per 100 ML. In that respect I find the charge sheet prima facie evidence to show that Mr.Pallav Rawat has acted in SCCH-20 15 MVC No.236/2016 contravention under the Section 185 of Motor Vehicles Act. I have referred to decision as follows:
Hon'ble Andhra High Court, M.A.C.M.A. No.2332 OF 2011 and batch 02-04-2014 (M/s. Bajaj Allianz General Insurance Company Limited, Rep. by its Deputy Manager Vs Smt. Manju Devi, W/o.Late Yogendar Kumar Rai), Held "The main contention of learned standing counsel for the second respondent-Insurance Company is that the Insurance Company is not liable, as driving Car by the driver in a drunken state amounts to violation of terms and conditions of the policy by the owner. In view of our finding in the earlier paragraphs, the second respondent-Insurance Company established that the driver of the Car was in drunken state, at the time of accident. However, it is the duty of this Court to find out whether entrustment of the Car to the driver, who was in drunken state, at the time of accident, amounts to violation of terms and conditions of the policy by the first respondent. Ex.B-1 is the insurance policy containing several conditions. The main condition pertaining to driver is mentioned in Ex.B-1, which is extracted hereunder for better appreciation:
DRIVER : Any person including the insured, Provided that a person driving holds an effective driving license at the time of accident and is not disqualified from holding or obtaining such a license, Provided also that the person holding an effective Learners license may also drive the vehicle and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles rules, 1989.
In view of this condition, a person who is competent to hold and not disqualified from obtaining driving license to drive the Car, at the time of accident, is competent to drive the Car, but the terms and conditions of the policy regarding third party liability contained in Ex.B-1 are as follows:SCCH-20 16 MVC No.236/2016
Subject to the Limits of Liability as laid down in the Schedule hereto, the Company, will indemnify the Insured in the event of an accident caused by or arising out of the Motor Car, against all sums which the Insured shall become legally liable to pay in respect of: a. death of or bodily injury to any person including occupants carried in the Motor Car (provided such occupants are not carried for hire or reward) but except so far as it is necessary to meet the requirements of Motor Vehicles Act the Company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured.
But, in the said condition, the driver of Car in drunken state is not a ground to disown the liability by the Insurance Company, but however, in Section 3 of terms and conditions regarding personal accident cover for the owner driver, there are clauses which enables the second respondent-Insurance Company to avoid its liability, which is extracted hereunder, for better appreciation:
1. The Company undertakes to pay compensation as per the following scale for bodily injury/death sustained by the owner driver of the vehicle, in direct connection with the vehicle insured or whilst driving or mountaining into/dismounting from the vehicle insured or whilst travelling in it as a co-driver, caused by violent accidental external and visible means which independent of any other cause shall within six calendar months of such injury result in:
(i) ..
(ii) ..
(iii) ..
(iv) ..
(a) ..
(b) No compensation shall be payable in respect of death or bodily injury directly or indirectly, wholly or in part arising or resulting from or traceable to (1) Intentional self injury suicide or attempted suicide physical defect or infirmity or (2) an accident happening SCCH-20 17 MVC No.236/2016 whilst such person is under the influence of intoxicating liquor or drugs.
From a bare look at the conditions contained in Ex.B-1 policy, drunk and drive exonerates the second respondent-Insurance Company for personal accident cover of the owner and driver, but not the third parties. The conditions specified under the policy with regard to liability to pay compensation for third party risk and driving the vehicle by the driver of the Car in drunken state would not exonerate the second respondent- Insurance company from payment of compensation. However, Insurance Company is not liable when the vehicle was driven by driver in drunken state, in view of the terms and conditions extracted above, in personal injury claims. Perhaps, the third party is not supposed to know about the intoxicated state of driver, when he was proceeding on the road. Therefore, policy conditions did not exonerate the Insurance Company from payment of compensation to third parties, though the Car was driven by a driver in drunken state. However, the ill-affects of intoxication have to be looked into while driving the vehicle. In one of the decisions of the Apex Court in State, Tr. P.S. Lodhi Colony, New Delhi Vs. Sanjeev Nanda which was popularly known as BMW Car Case, the Apex Court discussed about the ill-affects of drunk and drive in Para 78, which is extracted hereunder, for better appreciation:
Drunken driving has become a menace to our society. Everyday drunken driving results in accidents and several human lives are lost, pedestrians in many of our cities are not safe. Late night parties among urban elite have now become a way of life followed by drunken driving. Alcohol consumption impairs consciousness and vision and it becomes impossible to judge accurately how far away the objects are. When depth perception deteriorates, eye muscles lose their precision causing inability to focus on the objects. Further, in more unfavourable conditions like fog, mist, rain etc., whether it is night or day, it can reduce the visibility of an object to the point of being below the limit of discernibility. In short, alcohol leads to loss of coordination, poor SCCH-20 18 MVC No.236/2016 judgment, slowing down of reflexes and distortion of vision.
The symptoms of acute poisoning or acute intoxication are at first a sense of well-being, self-confidence and exhilaration, flushing of the skin and face, a carefree behaviour and then gradual loss of self-control, garrulousness, argumentativeness, rude behaviour, sentimentality and moroseness or melancholia. These are followed by a state of confusion and dulling of perception, muscular non co-ordination, staggering gait, slurred and incoherent speech, blurred vision and stupor. After a time, recovery may occur accompanied by nausea and vomiting, which are regarded as the early signs of recovery. These may be followed by sleep, severe headache and gastric problems.
If recovery does not occur, the patient gradually passes into a state of unconsciousness, sometimes hypoglycaemia and coma with slow, stertorous breathing and a full rapid pulse which then becomes slow and small. The breath smells of alcohol. The patient may be roused temporarily by a loud noise or a violent shake. The pupils are generally dilated in the early stage, but may be contracted in later stages or while in coma. Their reaction to light is a hopeful sign. There may be positional nystagmus, which changes its direction according to the change in the position of the head. When the jerking movement is in the direction of the gaze and independent of the position of the head, it is known as alcohol gaze nystagmus. This appears at blood levels of 0.03 to 0.05 per cent. The body temperature then becomes sub-normal. Death usually occurs from asphyxia due to respiratory paralysis. Sometimes, convulsions precede death. In some cases, the patient regains his sensibility on account of partial recovery, but a relapse occurs and the patient dies suddenly in a state of coma. He may also die later of hypostatic pneumonia or oedema of the lungs.
Sometimes in a few unstable persons the intake of a small quantity of alcohol results in an immediate markedly abnormal maniacal response. He may be SCCH-20 19 MVC No.236/2016 violent and later on there may be complete loss of memory of the incident. Such people should have no access to alcohol.
In the instant case on hand, according to the evidence of RW.2, expert, coupled with Ex.X-1, at the time of driving the car the driver of the car in this case is in embroiled state and the quantum of alcohol percentage found in his blood samples is 57.5 Mgs, but whereas under
Section 185 of Motor Vehicles Act, the permissible limit is only 30 Mgs, for 100 ML. Driving of vehicle in a drunken state and the percentage of alcohol found in the blood more than permissible limits as contemplated under Section 185 of Motor Vehicles Act, is an offence. It is a common knowledge of a human being about the ill- consequences of such drunken driving but still the driver in embroiled state drove the new Skoda car and caused the accident resulting in the death of Yogender, who was on duty as Traffic Police Constable, after hitting a motorcycle and auto. Causing such extensive damage to the property and persons itself indicates that the driver lost his consciousness and almost his senses were impaired due to intoxication at the time of accident.
In one of the decisions of the Himachal Pradesh High Court in National Insurance Company Vs. Smt. Sanpati and others , when the same question came up for consideration, the High Court of Himachal Pradesh in Para 7 of the judgment while discussing about Issue No.4, concluded that the driver of the vehicle was in such an inebriated condition that he could not control the vehicle, as a result of which, the accident was caused. Further, in Para 8 of the judgment therein, it was further held that finding alcohol contents in the blood samples analyzed by the analyst is more than the permissible limits, but still the High Court of Himachal Pradesh held that the Insurance company cannot avoid its liability to pay compensation. In one of the decisions of this Court in Sri Jayaprakash Agarwal Vs. Mohd. Kaleemulla , stray observations were made in Para 48 of the judgment, but no finding was recorded by this Court in the decision cited supra. In fact, that was not SCCH-20 20 MVC No.236/2016 the case pertaining to drunk and drive. Therefore, the decision cited supra would not come to the aid of either Insurance Company or the claimants.
According to the material available on record, the second respondent-Insurance Company by examining RW.2 and marking Exs.X-1 and X-2 established that the driver of the Car was in inebriated state, at the time of accident, lost his control over the Car, on account of his intoxication, which is more than the permissible limit under Section 185 of Motor Vehicles Act; thereby, caused the accident. But, when we advert to the conditions of the policy, drunk and drive only exonerates the Insurance Company from payment of compensation in claims made by the owner or driver etc., but coming to third parties to the policy, as defined under Section 145G of Motor Vehicles Act, third party includes the Government within the definition of third party which is an inclusive definition. However, a person who was the Police Constable attending to duty at the time of accident is certainly a third party. Therefore, the deceased Yongender is not supposed to know whether the driver is in fit condition to drive the vehicle or drive the vehicle in an inebriated state. Even if there is any condition, that driving of a vehicle in intoxicated condition is violation of terms and conditions of the policy, still the Insurance Company is liable for payment of compensation. Undoubtedly, the policy contains clauses regarding eligibility to drive the vehicle by the driver, but the fit state of mind was not included in the eligibility of the driver, in the policy. Undoubtedly, when the driver is in inebriated state, certainly, his consciousness and senses will be impaired besides other ill-affects referred in Para 78 of State, Tr. P.S. (4th supra). Thus, the driver became unfit to drive the Car in such an inebriated state, but the Insurance Company is not liable to be exonerated from payment of compensation. Even otherwise, the inebriated state of driving of the car is not within the knowledge of the insured. Hence, handing over car to driver, who was in drunken state, does not arise. After amendment of Section 149 of Motor Vehicles Act, the Insurance SCCH-20 21 MVC No.236/2016 Company cannot avoid its liability to pay compensation to third party.
Strangely, in the terms and conditions of the policy, marked as Ex.B-1, a specific term was included which permits the Insurance Company to pay and recover the compensation and the important note mentioned in the first page of the policy, is extracted hereunder for better appreciation:
IMPORTANT NOTICE: The insured is not indemnified if the vehicle is used or driven otherwise than in accordance with this Schedule. Any payment made by the Company by reason of wider terms appearing in the Certificate in order to comply with the Motor Vehicle Act, 1988 is recoverable from the insured.
The Insurance Company itself reserved its right to pay and recover the compensation in view of wider terms appearing in the certificate of Insurance, even if there is any violation of terms and conditions of the policy.
According to the settled law laid down by the Apex Court in Oriental Insurance Company Limited Vs. Nanjappan and others and in Swaran Singh (2nd supra), when the Insurance company pleaded that the terms and conditions of the policy are violated by the insured, the initial onus of proof is on the Insurance Company to prove such violation of terms and conditions of the policy, which amounts to fundamental breach of terms and conditions of the policy.
In Nanjappan and others (7th supra), the Apex Court held as follows:
When there is a violation of terms and conditions of the policy, insurance company is held to be not liable, but insurance company has to pay the awarded compensation and recover the same from the insured by initiating the proceedings before the executing Court to protect and safeguard the interests of insurance company.
Even if there is any violation of terms and conditions of the policy, the Insurance company is under an SCCH-20 22 MVC No.236/2016 obligation to satisfy the claim of third parties; since the liability of the Insurance Company during subsistence of the liability under the policy is statutory in nature and at best, the Insurance Company has to satisfy the compensation and recover the same from the insured.
If the position referred above is applied to the present facts of the case, in view of important note mentioned in first page of Ex.B-1 extracted above, the Insurance company is liable to pay compensation and recover the amount from the insured, but Insurance Company cannot avoid its liability totally on account of drunk and driving of the driver of new Skoda car bearing No.AP 09 BN T/R 5591. Hence, in view of the terms and conditions of the policy and in view of law laid down by the Apex Court consistently, we find that drunk and driving is not a ground to avoid liability to exonerate the Insurance Company from payment of compensation".
19. I am also referred decision of 2003 SCC OnLine Bom 1193 :
(2004) 106 (2) Bom LR 265 J1 In the High Court of Judicature, Bombay [Nagpur Bench] (Oriental Insurance Co. Ltd., through Divisional Manager Vs Mandabai Wd/o. Bhaurao Natkar & Ors). Held "The next contention of the learned Counsel for the Insurance Company is that the offending vehicle was being driven by respondent No. 4 after consuming alcohol and the evidence of Dr. Tikait would also show that the driver was in a state of drunkenness at the time of his medical examination and, therefore, there was breach of terms and conditions of the insurance policy. This contention also cannot be accepted for the simple reason that there is no specific condition mentioned in the original insurance policy produced on record by the Insurance Company and secondly there is no evidence to show that the respondent No. 3.owner of the motor vehicle had placed the vehicle in the possession of the driver who was drunk before the accident. There is no evidence to show that the owner had a remote knowledge that the driver was driving the vehicle under the influence of alcohol. Hence, it is not SCCH-20 23 MVC No.236/2016 possible to accept that there was breach of terms of conditions of insurance policy.
In United India Insurance Co. Ltd. v. Gian Chand1, (cited supra), the Supreme Court observed as under:
"Even apart from these judgments, which do not improve the case of the respondents, strong reliance was placed on two other judgments of this Court by the learned Counsel for the appellant. As noted earlier they represent the first line of cases. In Kashiram Yadav v. Oriental Fire and General Insurance Co.2, a Bench of two learned Judges of this Court, speaking through Jagannatha Shetty, J. distinguished the decision in Skandia Insurance Co. Ltd. v. Kokilaben Chandravandan1, and took the view that when the insured had handed over the vehicle to an unlicensed driver, the Insurance Company would get exonerated from its liability to meet the claims to third party who might have suffered on account of vehicular accident caused by such unlicensed driver. In view of the aforesaid two sets of decisions of this Court, which deal with different fact situations, it cannot be said that the decisions rendered by this Court in Skandia Insurance Co. Ltd. v. Kokilaben Chandravandan1, and the decision of the Bench of 3 learned Judges in (1996) 5 SCC 21 : 1996 AIR S.C.W 3271 (supra) in any way conflict with the decisions rendered by this Court in the case of New India Assurance Company Ltd. v. Mandar Madhav Tambe2, and Kashiram Yadav v. Oriental Fire and General Insurance Co.3."
Mr. Khapre, learned Counsel for the claimants, rightly contended that the ratio laid down by the Supreme Court in the aforesaid decision would be useful to arrive at the conclusion as to whether the Insurance Company is liable to pay the compensation. It is true that evidence has been brought on record that the respondent No. 4 was driving the vehicle on the relevant date and time and subsequently when he was medically examined the doctor found that he had consumed alcohol and he was under the influence of alcohol. But then that does not mean that the driver had consumed the alcohol prior to driving of the vehicle or during the course of the driving SCCH-20 24 MVC No.236/2016 or after finishing the driving. However, even if it is presumed that the driver had consumed the alcohol and was driving the offending vehicle under the influence of alcohol, that per se would not be sufficient to show that the owner of the motor vehicle knowing full well that the driver was drunk, placed the vehicle in possession of respondent No. 4 for the purpose of driving. In such circumstances, it is not possible to accept that there was breach of the terms and conditions of the insurance policy because the driver had no nexus with the terms and conditions of the insurance policy".
20. As in this case though respondent No.2 and 3 are silent does not imply respondent No.3 consent. Though, from charge sheet it is brought on record that respondent No.2 was driving the vehicle that he had consumed Alcohol, it is not established by respondent insurance company by examining concerned witness to show that respondent No.2 was intoxicated and was inebriated state at the time of accident. According to the two decisions aforesaid that even when driver has found to have consumed alcohol during course of driving, it can not be presumed that owner of motor cycle was knowingly well driver was drunk and placed the vehicle in the possession of respondent No.2 for the purpose of riding. In such circumstances, when insurance policy was in force as on the date of accident and rider was having valid and effective driving license, there is no breach of terms and conditions of the insurance policy by respondent No.3. The respondent No.2 had no nexus that the terms and conditions of insurance policy.
SCCH-20 25 MVC No.236/2016Ultimately, respondent No.2 if found guilty will be convicted U/s 185 of M.V.Act. The insurance company would still remain liable to innocent third parties otherwise award obtained by the respondents in this case will only remain paper award. The RW-1 who is employee of insurance company did not subject to cross examine and it is elicited that he is not eye witness to the accident. He does not know the quantum of alcohol detected in Mr.Pallav Rawat respondent No.2. In that respect they have written letter to respondent No.3 the same is not forth coming in evidence. RW-1 does not produce insurance policy terms and conditions, communications and letter written to respondent No.3. It is not established that alcohol present in the respondent No.2 exceeded 30 gm/ 100 ml in blood. Even if respondent No.2 had consumed alcohol it is not established by respondent No.2 that the respondent No.3 knowingly well that respondent No.2 was drunk placed the vehicle in the possession of respondent No.2 for the purpose of riding. Therefore, it is not possible to except there was breach of terms and conditions of the insurance policy. In view of it, respondent No.1 and 3 are jointly and severally liable to pay compensation, interest and cost to the petitioner. Therefore, I answer the issue No.2 in the partly in the Affirmative.
SCCH-20 26 MVC No.236/201621. Issue No.3: After having answered issue No.1 & 2 as supra I hold that, the petition filed by the petitioners is fit to be allowed in Part, in the result, I proceed to pass the following:-
ORDER The claim petition filed under Section 166 of the Motor Vehicles Act is allowed in part with cost as hereunder.
The petitioner is entitled for compensation of Rs.2,23,821/-with interest at 9% pa., from the date of petition till its realization (excluding future medical expenses).
The 1st Respondent shall pay the compensation together with 9% interest within a month from the date of this order.
After deposit, the entire compensation amount with interest shall be released in favour of the petitioner with proper identification.
Advocate fee is fixed at Rs.1,000/-.SCCH-20 27 MVC No.236/2016
Draw the Award accordingly.
(Dictated to the Stenographer, transcribed by him, corrected by me and then pronounced in open court on this the 4th day of April 2018) (A.G.SHILPA,) V ASCJ & Member, MACT, Court of Small Causes, Mayo Hall Unit, Bengaluru.
A N N E X U R E:
Witnesses examined for petitioners:
P.W.1 : Srinivas
P.W.2 : Dr.S.A.Somashekara
Documents marked for petitioners:
Ex.P.1 : Copy of the FIR,
Ex.P.2 : Copy of the Complaint
Ex.P.3 : Copy of the Spot sketch
Ex.P.4 : Copy of the spot panchaname,
Ex.P.5 : IMV report,
Ex.P.6 : Wound Certificate,
Ex.P7 : Charge sheet,
Ex.P8 : Discharge certificate
Ex.P9 : Medical bills
Ex.P10 : X-Ray
Ex.P.11 : OPD card
Ex.P.12 : X-Ray
Ex.P.13 : Case sheet
SCCH-20 28 MVC No.236/2016
Ex.P.14 : X-ray
Witnesses examined for respondents: NIL Documents marked for respondents: NIL (A.G.SHILPA,) V ASCJ & Member, MACT, Court of Small Causes, Mayo Hall Unit, Bengaluru.