Bangalore District Court
Appaiah Shamappa H.G vs Harjinder Singh on 26 April, 2016
Before the Motor Accident Claims Tribunal at Bangalore
(SCCH-8)
Present: Shri P.J. Somashekar B.A., LL.B.,
XII Additional Small Causes Judge
and Member, M.A.C.T., Bangalore.
Dated this the 26th day of April 2016
M.V.C.No.729/2015
Petitioner Appaiah Shamappa H.G.,
Son of Govindappa,
Aged about 32 years,
Occ: Ex.Service Engineer,
Shini Plastics Technologies India
Private Limited,
Presently residing at No.1378, 1st
floor, Building 4th main, Gandhinagar,
Yelahanka Old Town, Bengaluru-560
064.
Permanently residing at Hirebidanur,
Kasaba Hobli,
Gowribidanur Taluk.
(Shri A.N.Lokesh Kumar, Advocate)
V/s
Respondents 1. Harjinder Singh,
Son of Mohan Singh,
Aged about 48 years,
Residing at PLD/204,
Mumbra Panvel Road,
Dahisar Mori,
Navi Mumbai,
Office at B-10/15/4, 2 sector-3,
2 SCCH-8 MVC 729/2015
CBD Belapur,
Belapur Nopde V. Thane,
Thane District.
Maharashtra-400 614.
(Exparte)
2. The Manager,
Reliance General Insurance,
Situated at No.570, Rectifier
House Niagaum cross road,
B Wadala (W) Mumbai-400 031.
(Policy No.1110742334000528,
Policy is valid from 6.6.2014 to
5.6.2015)
(Shri V.R.Muralidhar, Advocate)
JUDGMENT
This is a claim petition filed by the petitioner against the respondents under Section 166 of Motor Vehicles Act, 1989, for seeking compensation of Rs.15,00,000/- for the injuries sustained by him in a road traffic accident.
2. The brief facts of the claim petition are as under:
The petitioner in his claim petition has alleged that, on 19.10.2014 at about 7.45 p.m., he was proceeding in a two wheeler bearing No.KA-03-EW-4057 from 3 SCCH-8 MVC 729/2015 Doddaballapuu to Hirebidanur, slowly and cautiously when he was reached near Sugar Factory, Gowribidanur Taluk, the driver of the lorry bearing registration No.MH-43-Y- 3061 has drove the same in a rash and negligent manner came from back side and dashed against the motor cycle, due to the said impact, he was fell down and sustained grievous injuries. So, immediately he was shifted to Government Hospital at Gowribidanur wherein he took the first aid treatment, later on he was shifted to Manasa Hospital, wherein he took the treatment as inpatient for a period of 12 days and he was underwent surgery by spending an amount of Rs.1,50,000/- towards his treatment and after discharge he took the bed rest for a period of six months and he took the follow-up treatment at KKM Hospital, Gowribidanur.
3. Prior to the accident he was hale and healthy working as Executive Service Engineer at Shini Plastics Technologies India Private Limited at Bengaluru and getting 4 SCCH-8 MVC 729/2015 monthly income of Rs.27,081/-, due to the accidental injuries he could not do the work as before. The accident in question was taken place on the rash and negligent driving of the driver of the lorry bearing registration No.MH-43-Y- 3061. Thereby, the Gowribidanur Police have registered the case against the driver of the lorry in their police station Crime No.290/2014 for the offences punishable u/s 279 and 338 of IPC. The respondent Nos. 1 & 2 are jointly and severally liable to pay the compensation and prays for allow the claim petition.
4. In response of the notice, the respondent No.1 did not appear nor file his written statement, as he was placed exparte. The respondent No.2 has appeared through its counsel and filed its written statement in which has alleged that the claim petition filed by the petitioner is not maintainable in law or on facts and alleged that he has issued a policy infavour of the first respondent in respect of offending vehicle prior to the date of accident, the cheque 5 SCCH-8 MVC 729/2015 which was issued by the insured towards of premium amount was dishonoured and he has been duly cancelled the policy for non-compliance of 64-VB of Insurance act 1938. Thus, it is clear that there was no subsistence of the contract of insurance between them and he was not liable to pay any compensation to the petitioner and either the owner of the vehicle nor the jurisdictional police have not complied the mandatory provisions u/s 134(c) and 158(6) of the M.V. Act in furnishing the better particulars and the claim petition is not maintainable for non-joinder of necessary parties since either the owner of the motor cycle nor its insurer are not impleaded as parties to the proceedings. The respondent No.1 has willfully entrusted the vehicle to the person who was not holding the valid and effective driving license to drive the offending vehicle. So, he has violated the terms and conditions of the policy and he has denied the column Nos. 1 to 6, 8 to 14 of the claim petition and he has denied that on 19.10.2014 at about 6 SCCH-8 MVC 729/2015 7.45 p.m. the petitioner was proceeding in a motor cycle bearing registration No.KA-03-EW-4057 from Doddaballapur towards Herebidanur, when he was reached near Sugar factory, the driver the lorry bearing registration No.MH-43-Y-3061 has drove the same in a rash and negligent manner dashed against the two wheeler. Due to the said impact the petitioner was fell down and sustained grievous injuries and took the treatment in a different hospitals by spending huge amount and he has also denied the age, avocation and income of the petitioner and this court has no jurisdiction to adjudicate the matter which is in dispute and prays for reject the claim petition.
5. On the basis of the pleadings of the parties the following issues are framed.
1. Whether the petitioner proves that he has sustained grievous injuries in a road traffic accident on 19.10.2014 at about 7.45 p.m. near Sugar Factory on Doddaballapura-
Gowribidanur Road, Gowribidanur Taluk due 7 SCCH-8 MVC 729/2015 to the rash and negligent driving of the driver of the lorry bearing registration No.MH-43-Y- 3061?
2. Whether petitioner is entitled for any compensation? If so, to what extent and from whom?
3. What Order or Award?
6. The petitioner in order to prove his case has examined himself as PW1 and got marked the documents as Ex.P1 to Ex.P14 and Ex.P16 to Ex.P18 and he has examined one witness on his behalf as PW2 and got marked the documents as Ex.P15. The respondent No.2 being the insurer of the offending vehicle has examined its Manager as RW1 and got marked the documents as Ex.R1 to Ex.R7 and examined one witness in its favour as RW2 and got marked the documents as Ex.R8 and Ex.R9.
7. Heard arguments on the respondent No.2 side and taken as no arguments on the petitioners side. 8 SCCH-8 MVC 729/2015
8. My finding on the above issues are as under:
Issue No.1: Affirmative
Issue No.2: Partly affirmative
Issue No.3: As per the final order
for the following.
REASONS
9. Issue No.1:
The petitioner being said to be the injured has approached this court on the ground that on 19.10.2014 at about 7.45 p.m., he was proceeding in a two wheeler bearing No.KA-03-EW-4057 from Doddaballapur to Heribidanur slowly and cautiously by observing all the traffic rules and regulations, when he was reached near Sugar factory at Gowribidanur the driver of the lorry was came behind the motor cycle with high speed in a rash and negligent manner without observing the traffic rules and regulations dashed against the motor cycle. Due to the said impact he was fell down and sustained grievous 9 SCCH-8 MVC 729/2015 injuries and took the treatment in a different hospital by spending huge amount. Thereby the petitioner has filed the instant claim petition against the respondents.
10. The petitioner in order to prove his case has filed his affidavit as his chief-examination as PW1, in which he has stated that on 19.10.2014 at about 7.45 p.m., he was proceeding in a two wheeler bearing No.KA-03-EW-4057 from Doddaballapuu to Hirebidanur, slowly and cautiously when he was reached near Sugar Factory, Gowribidanur Taluk, the driver of the lorry bearing registration No.MH- 43-Y-3061 has drove the same in a rash and negligent manner came from back side and dashed against the motor cycle, due to the said impact, he was fell down and sustained grievous injuries. So, immediately he was shifted to Government Hospital at Gowribidanur wherein he took the first aid treatment, later on he was shifted to Manasa Hospital, wherein he took the treatment as inpatient for a period of 12 days and he was underwent surgery by 10 SCCH-8 MVC 729/2015 spending an amount of Rs.1,50,000/- towards his treatment and after discharge he took the bed rest for a period of six months and he took the follow-up treatment at KKM Hospital, Gowribidanur. The accident in question was taken place on the rash and negligent driving of the driver of the lorry. Thereby, the Gowribidanur Rural Police have registered the case against the driver of the lorry in their police station Crime No.290/2014 for the offences punishable u/s 279 and 338 of IPC. The PW1 in his cross- examination has admitted that he is the permanent resident of Yelahanka and as on the date of alleged accident he was proceeding in a motor cycle which belongs to him to attend the function, but the policy was not in existence and he was holding driving license to ride the motor cycle and his date of birth is 15.6.1983 and he has not produced documents to show his date of birth and he has denied that he was proceeding in the middle of the road, so on his own negligence the accident was occurred 11 SCCH-8 MVC 729/2015 and the accident was not occurred on the rash and negligent driving of the driver of the lorry.
11. The petitioner in support of his oral evidence has produced the documents marked as Ex.P1 to Ex.P15. Ex.P1 is the information and complaint filed by the very petitioner in which has stated that on 19.10.2014 he had been to Doddaballapur for his personal work, after attending the work he was proceeding towards Hirebidanur through his motor cycle bearing registration No.KA-03-EW-4057 at about 7.45 p.m., when he was reached near Sugar Factory, the driver of the lorry bearing registration No.MH-43-Y- 3061 has drove the same in a rash and negligent manner without observing the traffic rules and regulations dashed against the motor cycle. Due to the said impact, he was fell down and sustained grievous injuries. The persons who are proceeding in the said road were shifted him to the Government hospital, through autorickshaw. The accident was occurred on account of rash and negligent driving of 12 SCCH-8 MVC 729/2015 the lorry driver. So, based on the information the Gowribidanur Rural Police have registered the case against the driver of the lorry in their police station Crime No.290/2014 for the offences punishable u/s 279 and 338 of IPC. The learned counsel for the respondent No.2 has cross-examined the PW1, but nothing is elicited to disbelieve his evidence, though he has suggested that he was proceeding in the middle of the road, so on his own negligence the accident was occurred and it was not taken place on account of rash and negligent driving of the lorry driver, for which he has denied the same. If at all the petitioner was proceeding in the middle of the road and the accident was not occurred on account of lorry driver, nothing is prevented to examine the lorry driver to show that the accident in question was taken place on account of rash and negligence riding of the petitioner. But the reasons best known to the respondent has not taken any steps to examine the witnesses who are cited in the charge 13 SCCH-8 MVC 729/2015 sheet to prove that the accident in question was taken place on account of rash and negligent riding of the petitioner. In the absence of the materials on record, it is clear that the accident in question was taken place on account of rash and negligent driving of the driver of the lorry and the petitioner has sustained injuries, so Ex.P1 and Ex.P2 are remained unchallenged. Ex.P3 is the panchanama drawn by the I.O. clearly reflects that accident was occurred on account of rash and negligent driving of the lorry driver. Ex.P6 is the final report clearly reflects that the I.O. after investigation has filed the charge sheet against the offending vehicle driver on the ground that the accident in question was taken place on account of rash and negligent driving of the lorry driver. Ex.P4, Ex.P8 and Ex.P9 are reflects that the petitioner has sustained injuries in a road traffic accident and took the treatment as inpatient and underwent surgery. Ex.P10 to Ex.P12 are reflects that the petitioner has took the treatment in 14 SCCH-8 MVC 729/2015 connection of the injuries sustained by him in a road traffic accident. Ex.P12 and Ex.P13 are reflects that the petitioner has underwent surgery and implants in situ. So, the documents marked as Ex.P1 to Ex.P15 are coupled with the oral evidence of PW1. Though the respondent has examined the Manager as RW1, but his evidence will not help the respondent to disprove the oral and documentary evidence of the petitioner. On the other hand, the petitioner has proved his case through oral and documentary evidence. Hence, I am of the opinion that the issue No.1 is answered as affirmative.
12. Issue No.2:
The PW1 being the injured in his evidence has clearly stated that on 19.10.2014 at about 7.45 p.m. he was proceeding in a two wheeler, the driver of the lorry has drove the same in a rash and negligent manner without observing the traffic rules and regulations dashed against 15 SCCH-8 MVC 729/2015 the motor cycle. Due to the said impact, he has sustained the following injuries;
Type 3 A open fracture of both bones left leg
13. So, immediately he was shifted to Government Hospital, Gowribidanur, wherein he took the first aid treatment, later on he was shifted to Manasa hospital, wherein he took the treatment as an inpatient for a period of 12 days as he has sustained fracture of both the bones of left leg, so he was underwent surgery by spending an amount of Rs1,50,000/- towards his treatment. Inspite of best treatment he could not come to normal position. Still he is under treatment.
14. Prior to the accident he was hale and healthy working as a Executive Service Engineer at Shini Plastics Technologies India Private Limited, Bengaluru and getting monthly income of Rs.27,081/-, due to the accidental injuries he could not do the work as before, as he is unable to do the work as before and unable to ride the bike, 16 SCCH-8 MVC 729/2015 unable to walk without the help of attender, unable to stand continuously or sit properly and his motor cycle has been damaged. So, he got repaired the motor cycle by spending an amount of Rs.9,000/-. PW1 in his cross- examination has denied that he has sustained only simple injuries and has not spent any amount towards his treatment and he has created the medical bills and placed it before the court in order to get the compensation and he has denied that he got reimbursed the amount which was spent towards his treatment and his salary has been remitted to his bank account and he is having bank pass book and he has no impediment for production of the bank pass book before the court and he was doing the supervision of machineries, now he is unable to attend his work due to the accidental injuries and he has denied that after the accident he has been continued in the same company and he has admitted that he has not produced 17 SCCH-8 MVC 729/2015 any documents to show that he got repaired the motor cycle by spending an amount of Rs.9,000/-.
15. The PW2 being the Orthopaedic Surgeon in his evidence has stated that the petitioner has met with an accident said to have been taken place on 19.10.2014, as he has sustained the following injuries;
Type 3 A open fracture of both bones of left leg
16. So, he was underwent wound debridement, primary skin suturing and interlocking nailing of left tibia and he has sustained whole body disability to an extent of 17.7%. PW2 in his cross-examination has admitted that he has personally treated the petitioner and fracture is united, and implants in situ and he has denied that he has not stated disability as per the guidelines of Government of India and 1/3rd has to be taken into consideration as whole body out of the total disability of particular limb and there is a chances of reducing the disability in future. 18 SCCH-8 MVC 729/2015
17. The PW1 being the injured in his evidence has clearly stated that he has sustained fracture of both bones of left leg. So, he was underwent open reduction and internal fixation of left tibia and implants in situ. Inspite of best treatment, he could not come to normal position, still he is facing difficulties.
18. The PW2 being the Orthopaedic Surgeon in his evidence has clearly stated about the injuries sustained by the petitioner and the surgery which was underwent by the petitioner as well as the complaints and disability of the petitioner due to the accidental injuries. So, the evidence of the PW2 corroborate the evidence of the PW1. Ex.P4 is the wound certificate issued by the Government Hospital, Gowribidanur clearly reflects that the petitioner has sustained the following injuries;
1)Fracture of left leg extending till ankle.
2)Chest contusion, lumbosoral sprain, lateral malleolus left leg, 19 SCCH-8 MVC 729/2015
19. So, the above said injuries are grievous in nature. Ex.P9 is the discharge summary issued by the Manasa hospital clearly reflects that the petitioner has sustained the following injuries;
Open Grade III A fracture tibia left leg, lateral malleolus fracture, Haemothorax left ankle, deep friction over medial aspect of left leg.
20. So, he was underwent open reduction and internal fixation in respect of left tibia. Ex.P12 is reflects that the petitioner has took the treatment in connection of injuries sustained by him in a road traffic accident. Ex.P13 is reflects that the petitioner has underwent open reduction and internal fixation and implants in situ. So, considering the injuries sustained by the petitioner in a road traffic accident and the evidence of PW1 and PW2 as well as duration of treatment, it is just and necessary to grant just compensation to the petitioner in the following heads; 20 SCCH-8 MVC 729/2015
a)Pain and suffering.
The PW1 being the injured in his evidence has clearly stated that he has sustained fracture, so he was underwent closed reduction and internal fixation in respect of left tibia and took the treatment as inpatient for a period of 12 days. Inspite of best treatment he could not come to normal position, still he is facing difficulties. PW2 being the Orthopaedic Surgeon in his evidence has clearly stated about the complaints and disability of the petitioner as well as treatment taken by the petitioner as inpatient and outpatient. So considering the evidence of the PW1 and PW2 and the injuries sustained by the petitioner as well as the duration of treatment he would have sustained pain and agony for which, it is just and necessary to award compensation of Rs.50,000/- for the above head, it will meet the ends of justice. Hence, Rs.50,000/- is awarded for the above head.
21 SCCH-8 MVC 729/2015
b) Loss of income during laid up period:
The PW1 being the injured in his evidence has stated that prior to the accident he was hale and healthy working as a Executive Service Engineer at Shini Plastics Technologies India Private Limited, Bengaluru by getting monthly income of Rs.27,081/-. Due to the accidental injuries he could not do the work as before. Though the petitioner has produced pay slip marked as Ex.P11. But the reasons best known to him has not examined the author of Ex.Ex.P11. So, mere production of documents does not mean that the petitioner was drawing salary of Rs.27,081/- per month as alleged in the claim petition. If at all, he was drawing monthly salary of Rs.27,081/- nothing is prevented to him to examine the owner under whom he was working as a Executive Engineer. In the absence of the materials on record, it is very difficult to believe the income of the petitioner as alleged in the claim petition. So, considering the documents as Ex.P16 to 22 SCCH-8 MVC 729/2015 Ex.P18, age and skill of the petitioner and the present life condition, it is just and necessary to consider the monthly notional income of Rs.8,000/- it will meet the ends of justice. Ex.P4 and Ex.P9 are clearly reflects that the petitioner has sustained grievous injuries and took the treatment as inpatient from 19.10.2014 to 31.10.2014 almost for a period of 12 days and underwent surgery. So, he might have lost the income for a period of three months. So, three months loss of income comes to Rs.24,000/-. So, Rs.24,000/- is granted for the above head.
c) Medical expenses The PW1 being the injured in his evidence has stated that he has sustained the injuries in a road traffic accident and took the treatment as an inpatient by spending huge amount of Rs.1,50,000/-. PW1 in his cross-examination has denied that he has created the medical bills in order to get the compensation. But whereas Ex.P12 are the medical bills reflects that reflects that the petitioner has spent 23 SCCH-8 MVC 729/2015 Rs.1,34,559/- towards medical expenses. Though the respondent has disputed the medical bills produced by the petitioner on the ground that the medical bills are created and fabricated in order to get the compensation. But nothing is placed on record to show that the medical bills produced by the petitioner are created nor fabricated in order to get the compensation. In the absence of the materials on record it is clear that the medical bills produced by the petitioner are relating to the treatment taken by the petitioner in connection of the injuries sustained by him in a road traffic accident. Therefore, Rs.1,34,559/- is granted for the above head.
d) Loss of future earning:
The PW1 being the injured in his evidence has clearly stated that he has sustained fracture of both the bones of left leg and underwent surgery and implants in situ. Inspite of best treatment he could not come to normal position. The PW2 being the Orthopaedic Surgeon in his 24 SCCH-8 MVC 729/2015 evidence has clearly stated about the complaints and disability of the petitioner after the accident. According to him, the petitioner has sustained whole body disability to the extent of 17.7%. The PW2 in his cross-examination has admitted that the fracture is united. So, considering the oral and documentary evidence of the PW1 and PW2, it is just and necessary to consider the disability of 10% of the whole body instead of 17.7%, it will meet the ends of justice. So, his income is already considered as Rs.8,000/- per month. Ex.P16 is the SSLC marks card reflects that the date of birth of the petitioner has been shown as 15.6.1983 and the accident was occurred on 19.10.2014. So, as on the date of alleged accident the petitioner was aged about 31 years. So, by virtue of the Sarlaverma Vs. Delhi Transport Corporation Ltd., in 2009 ACJ 1298 the multiplier applicable is 16. So, the loss of future earning is works out as under;
Rs.8,000X12X16X10/100=Rs.1,53,600/-. 25 SCCH-8 MVC 729/2015 Hence, the petitioner is entitled for Rs.1,53,600/- for the above head.
e) Loss of amenities, conveyance, food and nourishment, attendant charges:
The PW1 being the injured in his evidence has clearly stated that he has sustained the injuries in a road traffic accident said to have been taken place on 19.10.2014 and took the treatment as an inpatient for a period of 12 days and he has also took the treatment as an outpatient and underwent surgery. The PW2 being the Orthopaedic Surgeon in his evidence has clearly stated about the complaints and disability of the petitioner due to the accidental injuries and surgery which was underwent by the petitioner in connection of the injuries sustained by him in a road traffic accident and he has also stated about the treatment taken by the petitioner as inpatient and outpatient. So, considering the oral and documentary evidence of PW1 and PW2 and duration of treatment as well 26 SCCH-8 MVC 729/2015 as the complaints and disability of the petitioner after the accident, it is just and necessary to grant Rs.40,000/- for the above head, it will meet the ends of justice. So, Rs.40,000/- is granted for the above head.
f) Future medical expenses:
The PW1 being the injured in his evidence has clearly stated that he has sustained grievous injuries and underwent surgery and implants are in situ. The PW2 being the Orthopaedic Surgeon in his evidence has stated that the petitioner has sustained grievous injuries and underwent surgery and implants in situ. So, one more surgery is required for removal of implants. So, considering the injuries sustained by him in a road traffic accident and the evidence of the PW1 and PW2, it is just and necessary to grant Rs.15,000/- for the above head, it will meet the ends of justice. So, Rs.15,000/- is granted for the above head.27 SCCH-8 MVC 729/2015
21. Thus the total award stands as follows:
1.Pain and suffering Rs. 50,000-00
2.Loss of income during laid Rs. 24,000-00 up period
3.Medical bills Rs.1,34,559-00
4.Loss of future earning Rs.1,53,600-00
5.Loss of amenities, Rs. 40,000-00 conveyance, food and nourishment, attendant charges etc.
6.Future medical expenses Rs. 15,000-00 Total Rs.4,17,159-00
22. Though the notice was served on the respondent No.1, but he did not appear nor file his written statement as he was placed exparte. The respondent No.2 being the insurer of the offending vehicle in its written statement has alleged that he is not liable to pay the compensation as he has issued the police infavour of the respondent No.1 in respect of lorry bearing No.HM-43-Y-3061 has been cancelled prior to the date of accident, since cheque which was issued by the respondent No.1 towards payment of premium amount was dishonoured. Thus, he has been cancelled the policy for non-compliance of 64-VB of the 28 SCCH-8 MVC 729/2015 Insurance Act, 1938. So, there was no subsistence of the contract in between them.
23. RW1 being the Manager of the respondent No.2 company in his evidence has admitted about the issuance of the policy infavour of the respondent No.1 in respect of lorry bearing No.HM-43-Y-3061 but he has stated that the policy which was issued infavour of the respondent No.1 has been cancelled since the cheque which was issued by the respondent No.1 for payment of premium amount was dishonoured. Thereby, the policy has been cancelled and the company has sent a letter dated 17.6.2014 to the insured with regard to dishonour of cheque and cancellation of the policy. So, the Company is not liable to pay the compensation. RW1 in his cross-examination has denied that they have not cancelled the policy, but they have cancelled only cover note and cover not number and policy are entirely different and the owner of the offending vehicle has not issued cheque directly to the company and 29 SCCH-8 MVC 729/2015 agent has issued cheque to the company towards payment of premium and he has denied that the company has received the premium and issued policy and they have not issued notice in respect of the cancellation of the policy nor dishonour of the cheque either to the owner of the offending vehicle nor to the RTO and he has denied that as on the date of alleged accident the policy was in existence and it was not cancelled.
24. RW2 being the Law Officer of Oriental Bank of Commerce in his evidence has stated that Ex.R8 is belongs to the owner of the offending vehicle and as per Ex.R8 on 7.6.2014 he was holding Rs.69.28 in his account and on 9.6.2014 he was also holding Rs.1,569/- in his account. But the reasons best known to the petitioner has not cross- examined the RW1. So, the evidence of RW1 remained unchallenged. So, one thing is clear from the evidence of RW1 that the offending vehicle owner has issued cheque infavour of the company towards premium. But the said 30 SCCH-8 MVC 729/2015 cheque was dishonoured and same was intimated to the respondent for cancellation of the policy and for dishonour of cheque through speed post. Ex.R2 is the notice copy clearly reflects that second respondent though he has insured the policy infavour of the first respondent in respect of offending vehicle and the first respondent has issued cheque infavour of the company as per Ex.R6. But the said cheque was dishonoured for want of funds in the insured account as per Ex.R7. Thereby company has issued Ex.R2 through speed post as per Ex.R4 on 17.6.2014 i.e., prior to the accident as the accident was taken place on 19.10.2014.
25. The learned counsel for the respondent while canvassing his arguments has submitted that thought he respondent No.1 has issued cheque towards payment of premium and the company has issued policy subject to realisation of the cheque amount, but on presentation the cheque was dishonoured for want of sufficient funds in the 31 SCCH-8 MVC 729/2015 insured account. Thereby the company has cancelled the policy and intimated to the respondent No.1 and RTO through speed post. If at all the notice which was sent by the company through speed post was not served on the respondent No.1 he would have appeared in response of the notice and resisted the claim of the petitioner. But inspite of notice did not appear nor chosen to file the written statement. That itself is clear that the notice for cancellation of the policy and for dishonour of the cheque has been served on the respondent No.1 and the said counsel has drawn the court attention on the judgement of the Hon'ble Supreme Court reported in 2011 Cr.L.J . 705, which reads like thus;
(E) General Clauses Act (10 of 1897),
S.27---Presumption of service---Letter
sent by registered A.D.---Complainant
denied receipt of same---It was
responsibility of complainant to prove by 32 SCCH-8 MVC 729/2015 adducing evidence of official of Post Office, that the said letter had not been delivered to him.
26.In the said decision their lordship held that the complainant denied the receipt of letter on 3.4.1985written by the appellant No.2 to the father of the deceased. The appellant have produced the correspondence with the post office and proved the postal stamp to show that the said letter had been sent by registered A.D. to Ramkishan Gupta. So, there is a presumption of service of letter sent under registered cover and no doubt the presumption is rebuttable and it is open to the either party to place evidence before the court to rebut the presumption by showing that the address mentioned on the cover was incorrect or postal authorities never tendered the registered letter to him.
33 SCCH-8 MVC 729/2015
27. In the instant case, admittedly the address shown in the Ex.R2 and the address as shown in Ex.R4 are one and the same and the speed post was sent to the respondent No.1 and regional transport through speed post. So, presumption arises notice which was sent through speed post was served on the respondent No.1 that is the reason why, the respondent No.1 did not appear in response of notice nor placed any materials to rebut the presumption. So, the decision relied by the learned counsel for the respondent No.2 is directly applicable to the case on hand.
28. The learned counsel for the respondent No.2 has drawn the court attention on the judgement of the Hon'ble High Court of Karnataka passed in MFA 9795/2010 in between TATA AIG General Insurance Co.Ltd., Vs. Balaguruvaiah and others. In the said judgement the insurance company has filed the appeal contending that the policy which was issued by the company had been 34 SCCH-8 MVC 729/2015 cancelled as cheque issued by the company towards premium and same was intimated to the insured and concerned Regional Transport Office in terms of S. 64 VB of Insurance Act, 1938 and the Tribunal referring the judgement of the Hon'ble Supreme Court reported in 2008 AIR SCW 3251 held that the insurance company is liable to pay the compensation, thereby the insurance company has filed the appeal before the Hon'ble High Court and the Hon'ble High Court is held that in case of cheque was dishonoured and the company has given intimation to the insured for dishonour of the cheque and for cancellation of the policy and insurance company is not liable to pay the compensation. So, the appeal was came to be allowed and judgement was modified and held that the insurance company is not liable to pay the compensation in terms of impugned award and claim against the insurance company is came to be dismissed.
35 SCCH-8 MVC 729/2015
29. In the instant case, Ex.P6 clearly reflects that the respondent No.1 has issued cheque infavour of the insurance company towards payment of premium. But on presentation cheque was dishonoured and bank has issued memo stating that the cheque was dishonoured for want of sufficient funds in the insured account. Ex.P4 is reflects that the insurance company has got issued notice to the insured in respect of cancellation of the policy and dishonour of the cheque along with Regional Transport Officer. So, the decision which relied by the learned counsel for the respondent is directly applicable to the case on hand.
30. The learned counsel for the petitioner while canvassing his arguments has submitted that there is no contract in between the insurer and the insured after cancellation of the policy and after intimation given to the insured for the cancellation of the policy and dishonour of the cheque and the said counsel has drawn the court 36 SCCH-8 MVC 729/2015 attention on the judgement of the Hon'ble High Court reported in 2012 (1) Kar. 65 in between National Insurance Co.ltd., Bengaluru Vs. Srinivasa Subbanna and another, which reads like thus;
Motor Vehicles Act S. 147--
Compensation -Liability of Insurer---
Cheque issued by insured towards
payment of premium was dishonoured---
Insured/owner was duly served with
notice about cancellation of policy on
account thereof, much before the
accident occurred---No privity of contract between owner and insurer---Insurer not liable to pay the compensation and recover the same from owner.
31. In the above said decision, his lordship held that the cheque has been issued by the insured towards 37 SCCH-8 MVC 729/2015 payment of premium was dishonoured and notice has been served to the insured about the cancellation of the policy, much prior to the accident and no privity of contract between owner and insurer. So, insurance company is liable to pay the compensation.
32. In the instant case Ex.P4 reflects that the notice has been issued for cancellation of the policy through speed post on 17.2.2014 and the accident was occurred on 19.10.2014. So, prior to the accident the notice has been issued as well as Regional Transport office for cancellation of the policy and dishonour of the cheque. Therefore, the decision which relied by the learned counsel for the respondent No.2 is directly applicable to the case on hand.
33.The learned counsel for the respondent No.2 has drawn the court attention on the judgement of 2001 (3) SCC 151 in between National Insurance Co.Ltd., Vs. Seema Malhotra and Others, On careful perusal of the said 38 SCCH-8 MVC 729/2015 decision in the said decision their lordship held that where the premium remains unpaid because cheque of the insured is returned dishonoured, held, contract of insurance is void. So, the principles laid down in the said decision are applicable to the case on hand. So, one thing is clear from the oral and documentary evidence that the respondent No.1 being the owner has issued a cheque infavour of the respondent No.2 towards payment of premium and insurance company has issued policy copy subject to realisation of cheque which was issued by the respondent No.1. So, on presentation the cheque was dishnoured for want of sufficient funds in the account of the respondent No.1. Thereby the insurance company has cancelled the policy copy and got issued notice to the respondent No.1 and the Regional Transport Office for cancellation of the policy and dishonour of the cheque through speed post prior to the accident. So, as on the date of alleged accident the policy was not in existence. 39 SCCH-8 MVC 729/2015 Thereby the claim petition is deserves for dismissal against the respondent No.2.
34.The respondent No.1 being the owner of the offending vehicle though the notice was served on him but he did not appear nor chosen to file the written statement. So, the driver who caused the accident is none other than the servant of the respondent No.1. Thus, vicarious liability is on the respondent No.1 to pay the compensation. Thus, the respondent No.1 is liable to pay the compensation to the petitioner with interest at the rate of 8% p.a. from the date of petition till its realization. In the result, the issue No.2 is answered as partly in the affirmative.
35. Issue No.3:
In view of my finding on issue Nos.1 & 2, I proceed to pass the following:
ORDER The petition filed by the petitioner u/s 166 of the M.V. Act as against the respondent No.2 is hereby dismissed. 40 SCCH-8 MVC 729/2015
The petition filed by the petitioner under section 166 of M.V. Act as against the respondent No.1 is partly allowed, with costs. The petitioner is entitled for compensation of Rs.4,17,159/- together with interest at the rate of 8% p.a. from the date of the claim petition till its realisation.
The respondent No.1 being the owner is liable to pay the compensation with interest at the rate of 8% p.a. from the date of the claim petition till its realisation within a period of 30 days from the date of this order.
On deposit of the compensation amount together with interest, 40% of the amount shall be deposited in the name of the petitioner in any nationalised or scheduled bank of his choice for a period of three years and the remaining 60% shall be released to him by means of A/c payee cheque on proper identification. The petitioner is at liberty to withdraw the periodical interest accrued on his deposit amount from time to time.41 SCCH-8 MVC 729/2015
The expenses to be incurred for future medication shall not carry any interest.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
Dictated to the stenographer, transcript thereof, corrected by me and then pronounced in the open court on this the 26th day of April 2016.
(P.J. Somashekar), XII Addl. Judge-Member, MACT, Bangalore.
ANNEXURE List of the witnesses examined on behalf of petitioner:
PW1 Shir Appaiah Shamappa H.G. 26.11.2015 PW2 Dr.N.S.Virupaksha 31.12.2015
List of the documents exhibited on behalf of petitioner:
Ex.P1 True copy of Complaint
Ex.P2 True copy of FIR
Ex.P3 True copy of Mahazar
Ex.P4 Copy of wound certificate
Ex.P5 Copy of IMV report
Ex.P6 Copy of charge sheet
42 SCCH-8 MVC 729/2015
Ex.P7 Outpatient record
Ex.P8 Case sheet
Ex.P9 Discharge summary
Ex.P10 Appointment letter
Ex.P11 Pay slip
Ex.P12 Medical bills
Ex.P13 X-ray films
Ex.P14 Driving license
Ex.P15 Case sheet
Ex.P16 SSLC marks card
Ex.P17 PUC marks card
Ex.P18 ITI Certificate
List of the witnesses examined on behalf of respondents:
RW1 H.B.Guruprasad 4.2.2016 RW2 Prabhanshu 15.3.2016
List of the documents marked on behalf of respondents:
Ex.R1 Document pertains to bank
Ex.R2 Notice issued to owner
Ex.R3 Notice issued to RTO
Ex.R4 Notice sent by speed post to owner and the
43 SCCH-8 MVC 729/2015
RTO
Ex.R5 Cancelled policy copy
Ex.R6 Dishonour of cheque
Ex.R7 Bank memo
Ex.R8 Bank statement
Ex.R9 Attested I.D. Card
(P.J. Somashekar),
XII Addl. Judge-Member, MACT,
Bangalore.