Bangalore District Court
Isthikar Aalam vs G Sathish Reddy on 22 August, 2024
KABC020094392017
IN THE COURT OF XIII ADDL. SMALL CAUSES AND ACJM
AND ADDL. MACT., BENGALURU, (SCCH-15)
PRESENT: Smt. KUMARI SUJATHA.
B.Com., LL.B.,
XIII Addl. Small Causes Judge,
ACJM, Court of Small Causes
& Member,MACT15, Bengaluru.
MVC No.5028/2017
Dated this the 22nd day of August 2024
Petitioner/s: Isthikar Aalam,
S/o Kusumddin,
Aged about 34 years,
R/at Miyan, Jagdish, Jamo,
Jamobazar, Siwan,
Bihar 841413.
Also at:
No.991, SRY Layout,
Koppa road, Mylasandra,
Vaddarapalya bus stop,
Bengaluru560 068.
(By Sri M.T. Nagaraj, Adv)
V/s
SCCH 15 2 MVC No.5028/2017
Respondent/s: 1. Sri. G. Satish Reddy,
S/o Govinda Reddy,
Post Office Road, Attibele,
Anekal Taluk,
Bengaluru562 106.
(RC owner of private bus bearing
Reg.No.KA51C9879)
(By Sri Mahesh N., Adv)
2. Shriram General Insurance Co. Ltd.,
No.5/4, 3rd floor, S.V. Arcade,
Bilekahalli main road,
Bilekahalli Off B.G. Road,
IIM Post, Bengaluru - 560 076.
(Policy No.418006/31/18/001161
valid from 27.06.2017 to 26.06.2018)
(By Sri K.M. Ravi, Adv)
*****
JUDGMENT:
This Claim Petition is filed by the Petitioner against the Respondents under Section 166 of the Motor Vehicles Act seeking Compensation of ₹25,00,000/ for the injuries sustained in a Road Traffic accident.
SCCH 15 3 MVC No.5028/2017
2. The substance of averments made in the Petition is as under:
That on 27.06.2017 at about 1.20 p.m., when the Petitioner was proceeding as a pedestrian on the extreme left side of the road on Dr. Marigowda road, near Lalbagh main gate, in order to board the BMTC bus bearing Reg.No.KA57F694 which was stopped for boarding the passengers, then, the Private Bus bearing Reg.No.KA51C9879 driven by its driver came from Oorvashi junction towards Dr. Marigowda road in a rash and negligent manner and in order to over take the said stopped BMTC bus from the left side, dashed against the Petitioner and caused the accident. Due to which, the Petitioner fell down and had sustained grievous injuries to all over the body.
3. Immediately after the accident, the Petitioner was taken to Abhaya Hospital, Wilson Garden, Bengaluru, wherein the Petitioner was treated as an inpatient and thereafter he was shifted to Sathya Sai Orthopaedic and Multi Speciality SCCH 15 4 MVC No.5028/2017 Hospital, Bengaluru, wherein he took treatment as an inpatient. The Petitioner had spent more than Rs.4,00,000/ towards medical expenses, conveyance, nourishment and other incidental charges etc.,
4. Prior to the date of accident, the Petitioner was hale and healthy and he was working as Tiles and Granite Layer and was earning Rs.750/ to Rs.1,000/ per day. Due to the injuries sustained by the Petitioner, he could not do his work and he has lost his income from the date of accident. The accidental injuries have caused permanent disability to the Petitioner. The accident has occurred due to the rash and negligent driving of the Private Bus bearing Reg.No.KA51C 9879 by its driver. The Respondent No.1 is the RC owner and Respondent No.2 is the insurer of the offending Private Bus bearing Reg.No.KA51C9879 and therefore, both Respondents are jointly and severally liable to pay compensation to the Petitioner. Hence, this Petition.
SCCH 15 5 MVC No.5028/2017
5. Initially, in this petition the Respondent No.1 did not appear and he was placed exparte. Thereafter, after trial, this Tribunal has passed exparte Judgment and Award dated 03.09.2018 by partly allowing the petition. Thereafter, the Respondent has filed Miscellaneous Petition No.184/2019 praying for setaside the exparte Judgment. After hearing both side, the Miscellaneous Petition No.184/2019 was allowed and the matter was restored.
6. Thereafter, the Respondent No.1 had appeared before the Court and filed his Objection Statement. The Respondent No.1 in his Objection Statement and Additional Objection Statement had denied the age, avocation and income of the Petitioner and also the accident caused by the rash and negligent driving of the driver of the offending vehicle and also the injuries sustained by the Petitioner and the expenses incurred for the treatment. Further he contended that the said accident had occurred due to the negligence of the BMTC bus driver and the Petitioner. Further he contended that his SCCH 15 6 MVC No.5028/2017 vehicle was duly insured with the insurance company ie. Shriram General Insurance Co. Ltd., vide Policy No.418006/31/18/001161 valid from 27.06.2017 to 26.06.2018. Further he contended that the Executive of the Respondent No.2 insurance company had collected Rs.80,231/ vide Cheque No.000006, dated 26.06.2017 for a payment of the said premium amount and the Respondent No.2 assured and informed the issuance of insurance to said vehicle immediately. Further he contended that due to the negligence of Respondent No.2 for renewal of the insurance even after taken premium amount from him, failed to renew the same. Hence, he is not liable to pay compensation to the Petitioner. On these grounds, the Respondent No.1 has prayed to dismiss the Petition against him.
7. During the trial stage, the Respondent No.2 has filed IA No.V to implead the Respondent No.2. In view of the Order on IA No.V dated 18.07.2022, the Respondent No.2 was impleaded in this petition. The Respondent No.2 had appeared SCCH 15 7 MVC No.5028/2017 before the Court through its Counsel and filed its Objection statement to the main Petition.
8. The Respondent No.2 in its Objection Statement denied the age, avocation and income of the Petitioner and the accident caused by the rash and negligent driving of the driver of the offending vehicle and also the injuries sustained by the Petitioner and the expenses incurred for the treatment. Further it contended that it has not issued any policy in respect of the Bus bearing Reg.No.KA51C9879 as on the date and time of the accident. It further contended that it has issued policy in respect of the Bus bearing Reg.No.KA51C 9879 vide policy No.4180006/31/18/001161 from 16.58 hours on 27.06.2017 to midnight of 26.06.2018 and the accident occurred on 27.06.2017 at about 1.20 p.m. Hence, no policy is in existence to the bus bearing Reg.No.KA51C9879 at the time of the accident. Hence, it is not liable to pay compensation to the Petitioner. On these grounds the Respondent No.2 has prayed to dismiss the Petition against it.
SCCH 15 8 MVC No.5028/2017
9. On the rival Pleadings, this Tribunal has framed the following Issues and in view of the Order dated 14.12.2023 the Issue No.1 was deleted and Recasted the Issue No.1 was framed:
ISSUES
1) Deleted
2) Whether the Petitioner is entitled for the compensation as prayed for? If yes, what is the quantum and who is liable to pay ?
3) What Order or Award?
RECASTED ISSUE
1. Whether the Petitioner proves that he had sustained grievous injuries in the Road Traffic Accident that occurred on 27.06.2017 at about 1.20 p.m., on Dr. Marigowda road, near Lalbagh main gate, Bengaluru, due to the rash and negligent driving of the driver of Private Bus bearing Reg.No.KA51C9879?
SCCH 15 9 MVC No.5028/2017
10. In order to prove the case of the Petitioner, the Petitioner got examined himself as P.W.1 and got marked 14 documents at Ex.P.1 to Ex.P.12 and 15 and 16 and he has examined one witness as PW.2 and got marked 2 documents at Ex.P13 and 14 and closed his side evidence. On the other hand, the Respondent No.1 got examined himself as RW.1 and got marked 4 documents at Ex.R1 to 4 and closed his side evidence. The Respondent No.2 has examined its witness as RW.2 and got marked 3 documents at Ex.R5 to 7 and closed its side evidence.
11. During the stage of Arguments, the learned counsel for the Respondent No.1 has relied on the following decisions:
1. (2008) 2 Supreme Court Cases 595, between Deddappa and others Vs. Branch Manager, National Insurance Co.Ltd.,
2. MFA No.31894/2012 (MV) between Sudharshan Vs Subash & another SCCH 15 10 MVC No.5028/2017
3. CMA No.852/2017 and CMP (MD) No.9041/2017, between The Manager & Proprietor, Arasu Autos Vs. Gladstone & others.
12. Having heard the arguments of the learned Counsels for both sides and upon perusal of the Written argument filed by the Learned Counsel for the Respondent No.1, depositions, documents exhibited and materials available on record my answer to the above Issues and Recasted issues are as under:
Recasted Issue No.1 : In the Affirmative.
Issue No.2 : Partly in the Affirmative
Issue No.3 : As per the Final Order,
for the following :
REASONS
13. Recasted Issue No.1: It is the case of the Petitioner that, he had sustained grievous injuries in the Road Traffic Accident that occurred due to the rash and negligent driving of the offending Private Bus bearing Reg.No.KA51C9879 by its driver.
SCCH 15 11 MVC No.5028/2017
14. On the other hand, the Respondents denied the accident occurred by the rash and negligent driving of the offending Private Bus bearing Reg.No.KA51C9879 by its driver.
15. In order to prove the case of the Petitioner, he got examined himself as P.W.1 and got marked 14 documents at Ex.P.1 to Ex.P.12 and 15 and 16 and he has reiterated the Petition averments in his Chiefaffidavit. Ex.P.1 to 6 are the True copies of FIR, Complaint, Spot Mahazar, Spot Sketch, IMV report, Wound Certificate and Charge sheet. Ex.P7 to 12 are the Discharge summaries, Medical bills, Passport, Xrays, MRI films and Prescriptions.
16. Upon going through the documents exhibited, Ex.P.1 and 1(a) are the True copies of the FIR and Complaint which shows that on the Complaint lodged by one Sri. Mallappa Ramappa S/o Ramappa, the Wilson Garden Traffic Police have registered the case against the driver of the SCCH 15 12 MVC No.5028/2017 offending Private Bus bearing Reg.No.KA51C9879 for the offences punishable under Sec. 279, 337 of IPC and under section 134(A&B) and 187 of IMV Act. Ex.P.2 & 3 are the True copies of Spot Mahazar with Spot sketch which shows that the concerned police had drawn mahazar and Sketch at the spot in the presence of panchas. Ex.P4 is the IMV report which shows that the accident does not occurred due to any mechanical defects of the vehicles. Ex.P.5 is the Wound certificate of the Petitioner which shows that the Petitioner had sustained simple and grievous injuries. Ex.P6 is the True copy of the Charge sheet which shows that after thorough investigation, the PSI of Wilson Garden Traffic Police Station has submitted Chargesheet against the driver of the offending private bus for the offences punishable under Sec. 279 and 338 of IPC and under sec.134(A&B) and 187 of IMV Act. Ex.P7 to 12 are the Discharge summaries, Medical bills, Passport, X rays, MRI films and Prescriptions.
SCCH 15 13 MVC No.5028/2017
17. PW.1 is subjected for crossexamination, but,
nothing could be elicited to disbelieve the testimony of the Petitioner. Further, P.W.1 has examined Dr. S.A. Somashekara as P.W.2. PW.2 has reiterated the injuries sustained by the Petitioner in RTA. PW.1 has examined the PSI by name Chandrappa as PW.3. In his evidence he has deposed that he investigated the matter and submitted Chargesheet. He further deposed that one Ramappa was the eye witness and on the basis of his Complaint the case was registered in Cr.No.286/2017. In CC No.8161/2017 the Accused Jagadeesh had pleaded guilty before the Court and paid fine. PW.1 has also examined the Record Keeper of Abhaya Hospital by name Venkatesh as PW.4 and got marked two documents at Ex.P17 and 18 i.e., Authorization letter and Case sheet. PW.1 has also examined Dr. Vijay as PW.5 and got marked two documents at Ex.P19 and 20. He deposed that he is one among the team of doctors who conducted the operation to the Petitioner.
SCCH 15 14 MVC No.5028/2017
18. In order to rebut the evidence of the PW.1 the Respondent No.1 got examined himself as RW.1 and he has reiterated his Objection Statements in his chiefaffidavit and he got marked the Certified copy of the Policy at Ex.R1 and Commercial Vehicle Preinspection Report and Copy of Cheque and Ex.R2 and 3 and Statement of Account with Certificate as Ex.R4 & 4(a). In his crossexamination nothing worthwhile come out to disbelieve the version of the Petitioner regarding accident. The Respondent No.2 has examined its Legal Manager by name Prabhakar as RW.2 and he also reiterated the Objection Statement contentions in his chiefaffidavit. In the crossexamination of RW.1 by the Learned Counsel for the Respondent No.2, Ex.R5 to 7 were marked i.e., Copy of Cheque, Copy of Policy and Notice. In the evidence of RW.1 and 2, nothing could be elicited to disbelieve the version of the Petitioner regarding the accident. The Charge sheet is the material document, which is not challenged by the driver of the offending vehicle. Added to it, as per the evidence of I.O SCCH 15 15 MVC No.5028/2017 i.e., PW.3, the driver of the offending vehicle has pleaded guilty and paid fine before the JMFC Court. Hence, this Tribunal is of the opinion that the Petitioner by adducing oral and documentary evidence has proved the rash and negligent driving of the offending Private Bus bearing Reg.No.KA51C 9879 by its driver and in the said accident, he had sustained grievous injuries. Accordingly, I answer Recasted Issue No.1 is in the "Affirmative".
19. Issue No.2: As the petitioner has proved that the accident has occurred due to the rash and negligent driving of the offending Private Bus bearing Reg.No.KA51C9879 by its driver, the Petitioner is entitled for compensation.
20. In the Petition, the Petitioner has shown his age as 34 years. Further, in the Passport i.e., Ex.P9, date of birth of the Petitioner was shown as 05.01.1989. The accident has taken place on 27.06.2017. That means, as on the date of accident, the age of the Petitioner was 28 years, 5 months and SCCH 15 16 MVC No.5028/2017 22 days. Hence, the age of the Petitioner, as on the date of accident was 29 years and the same is to be taken for consideration.
21. Further, the Petitioner has averred that, he was working as a Tiles and Granite Layer and was earning Rs.750/ to Rs.1,000/ per day. But, he has not produced any document in this regard. Therefore, in the absence of income proof, the notional income to be taken at Rs.11,000/ per month for the purpose of assessment of compensation.
22. With this background, the quantum of compensation to which the Petitioner is entitled may be adjudicated. For the sake of convenience, discussion may be had under following heads :
SCCH 15 17 MVC No.5028/2017 I. COMPENSATION TOWARDS PAIN, SHOCK AND SUFFERING:
23. It is stated in the petition that, in the accident, the Petitioner had sustained grievous injuries. Ex.P5 is the Wound certificate which shows the Petitioner had sustained the following injuries:
1. Multiple small abrasions over lower abdominal region with scrotal swelling present.
2. C.T scan pelvis shows - Fracture of right ilium with diastases Right superior and inferior pubic rami Bilateral sacral ala Right lamina of S1 vertebra Left superior articular facet of S1 vertebra.
[[ As per the opinion of the Doctor, injury No.1 is simple and injury No.2 is grievous in nature. Ex.P7 is the Discharge summary of Abhaya hospital which shows that the Petitioner SCCH 15 18 MVC No.5028/2017 has diagnosed for Fracture pelvis with Hypovolemic Shock, Pubic symphysis diastasis with right ileum superior and inferior pubic ram fracture with impaction, Fracture bilateral sacral Ala, Fracture of right lamina of S1 vertebra and Fracture of left superior articular facet of S1 vertebra.
24. Having regard to the nature of injuries sustained by the Petitioner, I am of the opinion that, awarding compensation of Rs.50,000/ under this head would be just and reasonable.
II. COMPENSATION TOWARDS LOSS OF AMENITIES :
25. Bearing in mind the nature of the injuries sustained by the Petitioner, I am of the opinion that awarding compensation of Rs.30,000/ under this head would be just and reasonable.
SCCH 15 19 MVC No.5028/2017 III. COMPENSATION TOWARDS LOSS OF INCOME DURING THE LAID-UP PERIOD:
26. The Petitioner deposed in his evidence that he has taken treatment as an inpatient at Abhaya Hospital and Sathya Sai Orthopaedic and Multi Speciality hospital. Ex.P.7 is two Discharge summaries of Abhaya Hospital and Sathya Sai Othopaedic and Multi Speciality hospital. It shows that the Petitioner was admitted as an inpatient in the said hospital from 27.06.2017 to 29.06.2017 and 29.06.2017 to 07.07.2017. Therefore, while calculating the total period of which the Petitioner was admitted as an inpatient, it comes to 12 days.
27. Having regard to the nature of injuries sustained by the Petitioner, I am of the opinion that the laid up period may be considered as three months. Hence, the Petitioner is entitled for compensation of Rs.33,000/ under this head (@ Rs.11,000/ per month ).
SCCH 15 20 MVC No.5028/2017
IV. COMPENSATION TOWARDS ATTENDANT'S
CHARGES, EXTRA DIET & NOURISHMENT AND
CONVEYANCE :
28. Admittedly, the Petitioner has sustained injuries and during the laid up period, the Petitioner might have engaged an attendant and also he might have spent some amount towards extra diet and nourishment and for his conveyance. In the facts and circumstances of the case, awarding compensation of Rs.9,000/ (@ Rs.100/ per day) towards attendants charges, Rs.9,000/ towards extra diet and nourishment and Rs.9,000/ towards conveyance would be just and reasonable. In all, the Petitioner is entitled for compensation of Rs.27,000/ under this head.
V. COMPENSATION TOWARDS MEDICAL EXPENCES :
29. The Petitioner has deposed that he has spent Rs.10,00,000/ towards medical expenses and other incidental charges. In order to prove this fact, he has produced Medical SCCH 15 21 MVC No.5028/2017 bills and hospital bills totally amounting to Rs.2,28,976/ which is marked at Ex.P.8. I have gone through the medical bills and the same are acceptable. Hence, by rounding off the same is taken to Rs.2,29,000/. Hence, I am of the opinion that the Petitioner is entitled for Rs.2,29,000/ under this head.
VI. COMPENSATION TOWARDS LOSS OF FUTURE EARNINGS / COMPENSATION TOWARDS PERMANENT DISABILITY:
30. The Petitioner has stated that due to the injuries sustained by him in the accident, he has suffered permanent disablement and he is not able to do his work as he used to do earlier. Even in his evidence, P.W.1 has deposed to that effect.
31. Further the Petitioner has examined the doctor by name Dr. S.A. Somashekara as P.W.2 who has deposed regarding the injuries sustained by the Petitioner in a Road Traffic Accident and the treatment taken by the Petitioner.
SCCH 15 22 MVC No.5028/2017 Further, he assessed the disability of the Petitioner towards pelvis and lower limb at 33% and whole body disability at 17%. Further, PW.2 got marked OPD and Xray at Ex.P13 & 14. In the crossexamination, PW.2 admitted that he has not treated the Petitioner. He further admitted that the fracture of the Petitioner is united. But, he voluntarily said that pelvic fracture is mal united. Further, he deposed that he does not know the avocation of the Petitioner. He denied the other suggestions. It is to be noted here that PW.3 is not the treated doctor and he does not know the avocation of the Petitioner. He has not assessed the functional disability of the Petitioner. Hence, by considering the nature of the injuries sustained by the Petitioner and the evidence of the PW.3, I am of the opinion that considering the disability of the Petitioner with respect to the whole body at 10% would be just and proper.
32. As per Sarla Verma's Case (2009 ACJ 1298 SC), the multiplier applicable to the Petitioner is 17. With multiplier SCCH 15 23 MVC No.5028/2017 of 17, income of Rs.11,000/ per month and disability of the Petitioner with respect to his whole body at 10%, the loss of future income comes to ₹2,24,400/ (Rs.11,000/ x 12 = 1,32,000/, Rs.1,32,000/x 17 x 10/100 = 2,24,400/). Hence, the Petitioner is entitled for compensation of ₹2,24,400/ under this head.
TOTAL COMPENSATION TO WHICH THE PETITIONER IS ENTITLED:
33. To sum up, the Petitioner is entitled for compensation under the following heads :
1. Pain, shock & Suffering Rs. 50,000/
2. Loss of amenities Rs. 30,000/
3. Loss of income during the Rs. 33,000/ laid up period
4. Attendant's charges, Extra Rs. 27,000/ diet, and conveyance
5. Medical expenses Rs.2,29,000/ SCCH 15 24 MVC No.5028/2017
6. Loss of Future Income Rs. 2,24,400/ Total Rs.5,93,400/
34. Thus, totally the Petitioner is awarded compensation of Rs.5,93,400/ with costs and simple interest at 6% p.a. from the date of this petition till the date of realization.
35. Regarding Liability: This Court has arrived at the conclusion that the accident has been occurred by the rash and negligent driving on the part of the driver of the offending Private Bus bearing Reg.No.KA51C9879. The Respondent No.1 is the owner and the Respondent No.2 is alleged to be the insurer of the offending vehicle as on the date of accident.
36. It is the main contention of the Respondent No.1 that his vehicle got inspected by the Respondent No.2 Executive by name Muralikrishna on 26.06.2017 and he collected a sum of Rs.80,231/ as a premium vide Cheque bearing No.000006 dated 26.06.2017 for a payment of the said premium amount SCCH 15 25 MVC No.5028/2017 and the Respondent No.2 has assured and informed the issuance of insurance immediately to the said vehicle. Hence, he is not liable to pay compensation to the Petitioner. On the other hand, the Respondent No.2 is liable to pay compensation to the Petitioner.
37. The Respondent No.2 has disputed the said fact and contended that it has not issued any policy in respect of the bus bearing Reg.No.KA51C9879 as on the date and time of the accident. It has issued policy to the offending bus in vide policy No.418006/31/18/001161 from 16.58 on 27.06.2017 to midnight of 26.06.2018 and the accident has occurred on 27.06.2017 at about 1.20 p.m., Hence, there is no policy is in existence to the offending bus at the time of the accident. Hence, it is not liable to pay compensation to the Petitioner.
38. In this regard, both Respondent No.1 and 2 have led their evidence. The Respondent No.1 got examined himself as RW.1 and he has reiterated his Objection Statement in his chiefaffidavit and he also got marked copy of Policy at Ex.R1 SCCH 15 26 MVC No.5028/2017 and Commercial Vehicle Preinspection Report at Ex.R2 and copy of Cheque at Ex.R3 and Statement of Account and Certificate at Ex.R4 and 4(a). On the other hand, the Respondent No.2 has examined its Legal Manager by name Prabhakar as RW.2. Further the Learned Counsel for Respondent No.2 got marked Ex.R5 to 7 in the cross examination of RW.1.
39. Upon going through Ex.R1 i.e., the Certified copy of Policy bearing No.418006/31/18/001161 stands in the name of the Respondent No.1 and the period of insurance is from 16.58 on 27.06.2017 to midnight of 26.06.2018. Admittedly, the said accident has occurred on 27.06.2017 at 1.20 p.m. Ex.R2 is the Commercial vehicle Preinspection Report which shows the offending vehicle got inspected on 26.06.2017 at 5.15 p.m. The said document also shows REQ date 27.06.2017 and REQ Time 3.30 p.m. and the Executive Code is 3819. However, Ex.R1 also shows the Preinspection of the offending vehicle on 26.06.2017 Ex.R3 is the Copy of Cheque bearing SCCH 15 27 MVC No.5028/2017 No.000006 dated 26.06.2017 for Rs.80,231/ issued by the Respondent No.1 in favour of the Respondent No.2 in respect of the payment of premium for the the policy relating to the offending vehicle. It is pertinent to note here that, in the cross examination of RW.1 he admitted that the Policy he obtained to the offending bus for the period of 20162017 was expired on 31.03.2017 as the Cheque i.e., Ex.R5 issued for the payment of premium for the policy was bounced and the said policy was canceled. He further admitted that since from 31.03.2017 to 27.06.2017 he did not take any other policy to the offending bus. Further he admitted that as per Ex.R1 the Policy coverage starts from 16.58 on 27.06.2017 to mid night of 26.06.2018. He also admitted the Copy of Cheque dated 18.03.2017 which got marked at Ex.R5 and the Copy of Policy i.e., Ex.R6 which was canceled due to the bouncing of Ex.R5 - Cheque. Hence, it is crystal clear that the policy of the offending bus was canceled on 31.03.2017. As per the evidence of RW.1, it is also clear that from 31.03.2017 to SCCH 15 28 MVC No.5028/2017 27.06.2017 he did not take any other policy to the offending bus. In the crossexamination, RW.1 has admitted that he does not know when the Cheque was presented for encashment. He also admitted that he had only Rs.4,423/ in his account when the said Cheque was presented for encashment. He also admitted that when he issued the said Cheque to the Respondent No.2, he does not hold sufficient balance in his account.
40. The Learned Counsel for the Respondent No.1 has relied on the decision reported in (2008) 2 Supreme Court Cases 595, between Deddappa and others Vs. Branch Manager, National Insurance Co.Ltd., and another Judgment in MFA No.31894/2012 (MV) between Sudharshan Vs Subash & another.
41. I have gone through the said decision and Judgment. In (2008) 2 Supreme Court Cases 595, between Deddappa and others Vs. Branch Manager, National Insurance SCCH 15 29 MVC No.5028/2017 Co.Ltd., the Hon'ble Apex Court has pleased to exercised its extraordinary jurisdiction under Article 142 of the Constitution of India and directed the Respondent No.1 Insurance company to pay the amount of claim to the Appellants and recover the same from the owner of the vehicle i.e., Respondent No.2.
42. Further in the Judgment in MFA No.31894/2012 (MV) between Sudharshan Vs Subash & another, the Hon'ble High Court of Karnataka has pleased to discussed that "the owner has paid the premium during office hours soon after commencement of office hours at morning 10.30 a.m. and therefore it can be safely held that the insurance company had received premium, before the time of accident on 07.05.2008 and therefore upon analyzing the entire facts and circumstances involved into the case coupled with the legal provisions enshrined under Sections 65VB of the Act and Principle of Law laid down by the Hon'ble Apex Court (Supra) after payment of premium is made, thereafter, the accident was caused and therefore the insurance company is liable to SCCH 15 30 MVC No.5028/2017 indemnify the owner as per the contract of insurance between them." Accordingly, the Hon'ble High Court of Karnataka has pleased to modified the said Judgment and Award made by the Tribunal.
43. But, in the instant case, Ex.R3 is the Cheque dated 26.06.2017 for Rs.80,231/ alleged to be issued for the payment of the premium towards the policy. Ex.R4 is the Statement of Account of the Respondent No.1 which shows as on 27.06.2017 the balance amount in the Account of the Respondent No.1 is Rs.4,273.09/. Hence, it is clear that as on 27.06.2017 the Respondent No.1 does not had sufficient balance in his Account to pay the premium amount through Cheque i.e., Ex.R3 towards the policy. Further, RW.1 has also admitted the said fact in his evidence. Added to it, RW.2 in his crossexamination by the Learned Counsel for the Respondent No.1 deposed that they issue midnight to midnight policy if the policy is in force and if there is a breaking policy, they will issue policy 15 minutes after collecting the premium. In this SCCH 15 31 MVC No.5028/2017 case, the evidence of RW.1 as well as the documentary evidence i.e., Ex.R4 clearly shows that there is no sufficient balance in the Account of the Respondent No.1 in respect of the premium amount towards the policy. Moreover, the policy i.e., Ex.R1 also clearly shows the period from 16.58 on 27.06.2017 till midnight of 26.06.2018. The alleged accident has taken place on 27.06.2017 at about 1.20 p.m. Hence, it is crystal clear that as on the date and time of the accident the policy is not in force in respect of the offending bus. Therefore, the above stated decisions not applicable to the present case in hand and as per the detailed discussions made above this Tribunal is of the opinion that the Respondent No.1 is liable to pay compensation to the Petitioner. On the other hand, the Respondent No.2 is not liable to pay the compensation to the Petitioner. Accordingly, I answer Issue No.2 is "Partly in the Affirmative".
SCCH 15 32 MVC No.5028/2017
44. Issue No.3: In view of my findings on Issues No. 1 and 2, I proceed to pass the following:
ORDER The Claim Petition filed by the Petitioner against the Respondent No.1 U/S 166 of M.V. Act is hereby allowed in part with costs.
The Claim Petition filed by the Petitioner against the Respondent No.2 is hereby dismissed.
The Petitioner is entitled for Compensation of Rs.5,93,400/ along with interest at the rate of 6% per annum from the date of the Petition till the date of deposit of Award amount.
The Respondent No.1 is liable to pay the compensation amount to the Petitioner.
The Respondent No.1 being the owner, is directed to deposit the Award amount and SCCH 15 33 MVC No.5028/2017 interest within 60 days from the date of the Award.
Out of the compensation amount awarded to the Petitioner, 75% of the award amount with accrued interest shall be released to the Petitioner by way of E payment and after proper identification. The remaining 25% award amount shall be deposited as F.D. in the name of the Petitioner in any Nationalized or Scheduled bank for a period of three years.
The Advocate fee is fixed at ₹1,000/.
Draw Award accordingly.
(Dictated to the stenographer directly on the computer, print out taken by her, corrected, signed and then pronounced by me in the open Court on this the 22nd day of August, 2024) (Smt. Kumari Sujatha.) XIII Addl. Small Causes Judge, ACJM,Court of Small Causes & Member, MACT15, Bengaluru.
SCCH 15 34 MVC No.5028/2017
Annexure
LIST OF WITNESSES EXAMINED ON BEHALF OF PETITIONER:
PW1: Isthikar Aalam PW2: Dr. S.A. Somashekara PW3: Sri. Chandrappa PW4: Sri. Venkatesh PW5: Dr. Vijay
Documents marked as Exhibits for the PETITIONER:
Ex.P1 Copy of FIR Ex.P.1(a) Copy of Complaint Ex.P2 : Copy of Mahazar Ex.P3 : Copy of sketch Ex.P4 : Copy of IMV report Ex.P5 : Wound certificate Ex.P6 : Charge sheet Ex.P7 2 Discharge summaries Ex.P8 Medical bills Ex.P9 Copy of Passport Ex.P10 4 Xrays Ex.P11 3 MRI films Ex.P12 5 prescriptions Ex.P.13 OPD Ex.P.14 Xray Ex.P.15 Certified copy of Order sheet Ex.P.16 Certified copy of Plea Ex.P.17 Authorization letter Ex.P.18 Case sheet Ex.P.19 Authorization letter SCCH 15 35 MVC No.5028/2017 Ex.P.20 Inpatient record
Witnesses examined on behalf of the Respondents:
RW.1 : Sri. Sathish G Reddy RW.2 : Sri. Prabhakar Naik
Documents marked as Exhibits for the Respondents:
Ex.R1 : Copy of Policy Ex.R2 : Commercial vehicle PreInspection Report Ex.R3 : Copy of Cheque
Ex.R4 & 4(a) : Statement of Account and Certificate Ex.R5 : Cheque Ex.R6 : Copy of Policy Ex.R7 : Copy of Notice ( Smt. Kumari Sujatha.) XIII Addl. Small Causes Judge, ACJM,Court of Small Causes & Member, MACT15, Bengaluru.