Bangalore District Court
Madan vs Reliance General Insurance on 26 March, 2015
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
BANGALORE. (SCCH-11)
DATED THIS 26th DAY OF MARCH 2015
PRESENT: SRI. GANAPATI GURUSIDDA BADAMI,
B.A,LL.B(SPL).
I ADDL.SMALL CAUSES JUDGE & XXVII ACMM
M.V.C No.801/2014
PETITIONER: Madan,
S/o. Chandru,
Aged about 24 years,
Residing at No.77/1,
4th main, 3rd Cross,
Sampige Layout,
Vijayanagar,
Bangalore - 560 079.
(By pleader - Sri.S.M.Dayanand
Patil.....Advocate)
- V/S -
RESPONDENTS: 1. Reliance General Insurance
Company Ltd.,
Branch Office at
Balaji Enclave,
No.782, above Bata Showroom,
16th Main, 2nd Stage,
Bangalore - 560 075.
(By pleader - Sri.Ashok
N.Patil....Advocate)
2. M/s. Shreesh Prefabs,
Sy.No.123, Golla Village,
SCCH - 11 2 MVC No.801/2014
Nettigere Gate,
Kanakapura,
Bangalore - 560 062.
(Exparte)
JUDGMENT
Petitioner has filed this claim petition against the respondents claiming the compensation for the injuries sustained in the road traffic accident.
2) It is averred in the claim petition that, on 23.12.2013 at about 10:15am, the petitioner was riding his motor cycle bearing No. KA-41-Y-4181 carefully, slowly and cautiously by observing traffic rules and regulations on the extreme left side of the Bangalore-Kanakapura Road. When he reached near Thalaghattapur bus stop, at that time, the driver of EICHER Goods Vehicle bearing No.KA-05-AB-3079 ridden the said vehicle in rash and negligent manner endangering human life with high speed and suddenly overtook from left side and dashed to the motor cycle of the petitioner. Due to the said impact, the petitioner fell down and sustained grievous injuries all over the body.
SCCH - 11 3 MVC No.801/2014
3) Immediately after the accident, the petitioner was
shifted to Sri.Sai Ram hospital Kanakapura Main Road, Bangalore wherein he taken treatment as inpatient from 23.12.2013 to 28.01.2014. During the course of treatment, X-rays were taken which revealed that, petitioner sustained degloving injury, fracture comminuted Grade III+lower end Tibia/Fibula, 50% degloving skin/crushed muscles/tendens exposed/pos Tibia lower 1/3rd and intact and other grievous injuries all over the body. The petitioner underwent surgeries i.e under C & SA fracture fixation with external fixation application of left tibia +Fibula on 23.12.2013 and wound debridement of degloving and crush injury to left leg under SAB left leg wound debridement done on 2.1.2014 under GA left degloving injury with exposed fracture bone. On 6.1.2014, gastronomics flap was done and on 7.1.2014, SA wound debridement and dressing done and SA VAC dressing (Vaccum assisted closer ) was done on 17.1.2014. After necessary treatment, the petitioner was discharged with an advice for follow-up treatment, restricted fracture movements and not to involve in any strength activities and complete bed rest. As per advice of the doctors, the SCCH - 11 4 MVC No.801/2014 petitioner is still undergoing follow-up treatment by hiring vehicle and so far, he has spent Rs.8,00,000/- towards medical, conveyance, nourishment and other incidental charges and doctors have also advised to the petitioner undergo some operations in near future by incurring huge expenses.
4) The injuries sustained by the petitioner are not united and still he is completely bed ridden and due to the accidental injuries, he is unable to sit, walk, stand, squat on the floor, cannot use Indian toilet, cannot carry weight, cannot ride any vehicle and he is undergoing deep mental shock and sufferings. The injuries have caused permanent disability. Prior to the accident, the petitioner was hale and healthy and he was working as Marketing Executive at M/s. Fortune Elevators and Escalators Pvt. Ltd and earning Rs.28,000/- per month and he was maintaining his family members and he was only earning member in his family. Due to the accidental injuries, he cannot attend his work which resulted in loss of earning and earning capacity and he has been put to great financial hardship.
SCCH - 11 5 MVC No.801/2014
5) The accident taken place due to rash and negligent driving by the driver of offending vehicle and jurisdictional Thalaghattapur police have registered Cr.No.800/2013 against the rider of said vehicle for the offences punishable under Section 279 and 337 of IPC. The respondent No.1 is insurer of offending vehicle and respondent No.2 is owner of the offending vehicle and both are jointly and severally liable to pay the compensation to the petitioner. Hence the petitioner has claimed the compensation of Rs.30,00,000/- along with interest and costs.
6) Though notice is served upon the respondent no2 by affixture, he has not appeared and contested the claim petition. Hence the respondent No.2 has been placed exparte.
7) The respondent no1 has filed Written Statement and denied the contents of claim petition. The respondent no1 admitted that, policy bearing No.1409532334000276 is issued in the name of the respondent no2 valid for the SCCH - 11 6 MVC No.801/2014 period from 30.4.2013 to 29.4.2014. But the liability of the respondent no1 is subject to the terms and conditions of insurance policy. The claim petition is liable to be dismissed for non joinder of owner and insurer of motor cycle bearing No.KA-41-Y-4181. The respondent no2 is duty bound under Section 134 of Motor Vehicle Act to inform the accident and submit all vehicular documents including driving licence and insurance particulars to the respondent no1 to seek indemnification. But the respondent no2 has failed to perform statutory obligations and he has violated provisions of Motor Vehicle Act and terms and conditions of insurance policy which would disentitle him from claiming indemnification from the respondent no1. the accident taken place due to negligence of rider of motor cycle bearing No.KA-41-Y-4181 and Eicher vehicle bearing No.KA-05-AB- 3079 is not having valid and effective fitness certificate as on the date of the accident and insured has violated the terms and conditions of insurance policy. The said Eicheer vehicle is registered as MGV Goods Carriage Vehicle as on the date of the accident and said vehicle is not having valid and effective permit as on the date of the accident. The SCCH - 11 7 MVC No.801/2014 driver of the said vehicle was not holding valid and effective driving licence as on the date of the alleged accident and he was not qualified to specified class of vehicles. The accident taken place within limits of Thalaghattapur Police Station limits of Ramanagar district and this Hon'ble court has no territorial jurisdiction to try this claim petition. The respondent no1 may be permitted to take all defences available to the insured under Section 170 of Motor Vehicle Act. In the event, this tribunal comes to conclusion that the respondent no1 is liable to pay the compensation, then rate of interest shall not be more than 6% per annum and petitioner shall be entitled for interest on pecuniary loss sustained and no interest shall be awarded in respect of non pecuniary damages. The compensation claimed by the petitioner is excessive, exorbitant and have no nexus to the age, avocation, injury and alleged earnings of the petitioner. Therefore it is prayed for dismissal of the claim petition with costs.
8) Petitioner himself examined as PW-1 and also examined Dr.B.S.Venkatesh S/o B.N.S.Rao as PW-2 and Prasad .B.T. S/o B.K.Thimmaiah as PW-3 and got marked SCCH - 11 8 MVC No.801/2014 ExP-1 to 34 and closed his evidence. Respondent no1 examined one Sri.Guruprasad S/o Basavaraj as RW1 and got marked ExR1 to 3 and closed the evidence.
9) Heard the arguments of learned counsel for petitioner and learned counsel for respondent no1 and perused the evidence on record.
10) On the basis of the pleadings of the parties, following issues have been framed:
1. Whether petitioners prove that on 23.12.2013 at about 10:15am, when he was riding his motor cycle bearing No. KA-41-Y-4181 on the extreme left side on Bangalore-Kanakapura Road and when he reached at Thalaghattapura Bus Stop, the driver of EICHER Goods vehicle bearing Reg.No.KA-05-
AB-3079 driven the said vehicle in a rash and negligent manner and dashed to the motor cycle of the petitioner by which he sustained grievous injuries?
2. Whether petition is bad for non joinder of necessary parties?
3. Whether respondent No1 proves that as on the date of the accident, the respondent No2 was not having valid and effective driving licence as on the date of the accident?
SCCH - 11 9 MVC No.801/2014
4. Whether petitioner is entitled for
compensation? If so, what amount and from whom?
5. To what order or award?
11) My findings on the above issues are as under:
Issue No1: In the Affirmative;
Issue No2: In the Negative;
Issue No3: In the Negative;
Issue No4: Partly affirmative, the petitioner is entitled to compensation of Rs.15,65,550/- with interest @ 6% p.a. from the date of petition till complete realisation, from respondent No.1;
Issue No5: As per final order for the following:
REASONS
12) ISSUE NO.1: PW-1 has stated in his evidence that, on 23.12.2013 at about 10:15am, when he was riding his motor cycle bearing No. KA-41-Y-4181 on the extreme left side on Bangalore-Kanakapura Road and when he reached at Thalaghattapura Bus Stop, the driver of EICHER Goods vehicle bearing Reg.No.KA-05-AB-3079 driven the said vehicle in a rash and negligent manner and dashed to SCCH - 11 10 MVC No.801/2014 his motor cycle by which he sustained grievous injuries. He has also stated that, the accident taken place due to rash and negligent driving by the driver of offending vehicle.
13) Learned counsel for petitioner has contended in his arguments that, on 23.12.2013 at about 10:15am, the petitioner was proceeding on his motor cycle, at that time, driver of EICHER vehicle driven the said vehicle in rash and negligent manner endangering human life with high speed and dashed to the petitioner and caused grievous injuries.
14) Learned counsel for respondent no1 has contended in her arguments that, on the date of the accident, the petitioner was riding his motor cycle and accident taken place due to rash and negligent riding of motor cycle by the petitioner himself and he is solely responsible for the accident. She has also submitted that, some of the documents are issued by the public authorities and some documents produced by the petitioner are issued by the private authorities, but when ExR3 is produced which has been issued by the public authorities, it was disputed by the SCCH - 11 11 MVC No.801/2014 petitioner and when the petitioner has produced private certificates like salary certificate, appointment letter and salary vouchers and said documents have to be proved by the petitioner beyond doubt. She has also contended that, the attendance register extract does not disclose that it is belonged to company where petitioner was working. She has also urged that, PW-1 has admitted in his cross examination that, he went under back wheel of insured vehicle and in case of rash and negligent driving, the accident taken place on the front side and due to the negligence of the petitioner, the accident has taken place and this fact is admitted by the petitioner himself in his cross examination and said aspect may be taken into consideration.
15) She has also submitted in her arguments that, petitioner has produced documents issued by his employer and in the cross examination of PW-3, he has admitted that, sometimes they used to pay salary by way of cash and sometimes by cash and PW-1 has stated in his evidence that, he will produce his Bank statement of account, but he SCCH - 11 12 MVC No.801/2014 has not produced the said documents before this court. She has also argued that, PW-1 and 3 have admitted in their cross examination that, petitioner has not been terminated from service and when there is an appointment letter, there should be termination letter. It is her contention that, PW- 3 has produced attendance register extract and there is no name and seal of the company in which petitioner is alleging to have worked.
16) She has also argued that, in the cross examination of PW-2, he has stated that, petitioner suffered whole body disability at 18% and he has admitted in his cross examination that, there is calculation error in his chief affidavit and instead of 11% disability to the whole body, it is mentioned as 18%. It is also contended by her that, the medical records are created by the petitioner for the purpose of claiming the compensation. She has also submitted that, owner of vehicle was summoned and said summons is returned unserved as left address and the respondent no1 filed an application under Order 11 Rule 14 of C.P.C and this court directed to the respondent no2 to SCCH - 11 13 MVC No.801/2014 produce the documents and he has not complied the said order and the respondent no2 is having knowledge of proceedings and he is not possessing valid vehicular documents and later on, the respondent no1 filed an application and produced permit extract which is marked as ExR3 which has been issued by Government authority and there is seal and signature of appropriate authority and said document is public document and it is admissible and reliable as per section 79 of Evidence Act and said document has got presumptive value in the eyes of law and question of proving the said document does not arise at all and there is burden upon the respondent no1 to disprove the contents of said documents.
17) She has also contended that section 66 of Motor Vehicle Act deals with necessity of permit and there are some exceptions under the said provision only in respect of State Government, Central Government and vehicles of Army, Navy and Air force and offending vehicle was having valid permit for the period from 18.9.2009 to 16.3.2013 and accident taken place on 23.12.2013 and there was no valid SCCH - 11 14 MVC No.801/2014 and effective permit as on the date of the accident. She has also submitted that, PW-2 has clearly admitted in his cross examination that, he has paid salary to the petitioner through Bank for the period of three months and petitioner has not produced Bank statements which goes to show that, PW-1 and 2 have produced created documents.
18) PW-3 who is treated doctor has stated that, he has assessed disability at 54% to the particular limb and 18% to the whole body and in the cross examination, he has admitted that, he has wrongly calculated and disability will be 11% instead of 18% by which it is clear that, entire affidavit of the PW-3 is wrong medical terms and wrong calculations and PW-3 is an interested witness who has appeared on behalf of petitioner and assessed the disability on higher side without any calculation and he has admitted in his cross examination that, he has not provided detailed calculation in his affidavit.
19) She has also contended that, the respondent no2
has not complied the direction of this tribunal for
SCCH - 11 15 MVC No.801/2014
production of documents and court may draw adverse inference that, the respondent no2 is having knowledge of the proceedings and he has appeared through his counsel before this court which shows that, he has not possessed valid vehicular documents like fitness certificate and permit and he has failed to prove that, he has got valid vehicular documents. She has also submitted that, the respondent no2 violated the terms and conditions of insurance policy.
She has also submitted that as per section 66 of Motor Vehicle Act, no owner of motor cycle shall use or permit the use of vehicle as transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods in accordance with conditions of permit granted or counter signed by a regional or state transport authority or any prescribed authority. She has also contended that, as per section 66(3)(i) of Motor Vehicle Act, any goods vehicle the gross vehicle weight of which does not exceed 3000kg, the said vehicle is exempted from holding the permit. It is also her contention that, in this case, insured vehicle weight is 11950kg and there is clear violation of section 66 of Motor Vehicle Act by the insurer of SCCH - 11 16 MVC No.801/2014 the offending vehicle and there is violation of the terms and conditions of insurance policy. As per the contention of the respondent no1 counsel, there is statutory defence to the insurer under Section 149(2) (a) (c) deals with non use of the vehicle for the purpose other than permit and there is statutory defence under Section 149 of Motor Vehicle Act to the insurer and there is violation of section 149(2)(a)(c) of Motor Vehicle Act and respondent no1 is not liable to indemnify the present claim petition.
20) She has relied upon the decision of Hon'ble Supreme Court reported in National Insurance Company V/s Challa Bharathamma and others ACJ2004 2094 in support of her contention about violation of permit conditions. She has also relied upon unreported judgment of Hon'ble High Court in Kempamma V/s Ramesh in MFA No.7723/2011 and National Insurance Company V/s Sri.S.Siddaiah and others in MFA No.9791/2010. She has also relied upon the decision of Hon'ble High Court reported in New India Assurance Company Ltd.V/s M.Sureshappa and another ACJ 2013 1306 in respect of SCCH - 11 17 MVC No.801/2014 her contention about violation of terms and conditions of permit. She has also contended that, insurance company is not responsible for ply of vehicle outside radius limits of permit and on that aspect, she has also relied upon the decision of Hon'ble High Court reported in B.T.Venkatesh and Jagadish Kumar and another ILR 2012 KAR 6065. She has also submitted that, the driver and accused are one and same and question of establishing the breach of conditions by the insurance company does not arise at all as the respondent no1 has proved that, it is not in the possession of valid and effective permit and fitness certificate at the time of alleged accident.
21) She has referred Article 142 of Indian Constitution about enforcement of decrees and orders of Hon'ble Supreme Court and submitted that, Hon'ble Supreme Court has power to pass an order to pay and recover and neither Hon'ble High Court nor tribunal have such powers and they are bound to implement the orders of Hon'ble Supreme Court. She has submitted that in the decision of Hon'ble High Court in the case reported in Oriental Insurance SCCH - 11 18 MVC No.801/2014 Company Ltd V/s K.C.Subramanyam in which it is held that, only Hon'ble Supreme Court has got inherent powers under Article 142 of Indian constitution. She has also relied upon decision reported in New India Assurance Company V/s Darshana Devi and others in support of her contention regarding the jurisdiction of this court to pass an order of pay and recover.
22) On perusal of cross-examination of PW.1, he has stated that, his two wheeler and Eicher vehicle were going in the same direction and driver of Eicher vehicle taken turn towards right side and at that time, other vehicles were coming from other side and also taken his vehicle to the right side and wheel of his vehicle got down in the back wheel of the Eicher vehicle. The accident has taken place in the middle of the road and there was 2 feet distance in between his vehicle and Eicher vehicle. In the further cross- examination, he has submitted that, Eicher vehicle has not come to the wrong side. The petitioner has produced true copy of F.I.R, complaint which are marked at Ex.P.1 and 2. As per the said documents, on 23.12.2013 at about 10.15 SCCH - 11 19 MVC No.801/2014 am, when the petitioner was proceeding on his motor cycle bearing No.KA-41-Y-4181 at Thalaghattapura bus stop on Bangalore-Kanakapura road, at that time, the Eicher goods vehicle bearing Regn.No.KA-05-AB-3079 driven by its driver in rash and negligent manner and dashed to the petitioner. The Thalaghattapura police have registered crime No.800/2013 against the driver of vehicle for the offences punishable under section 279 and 337 of I.P.C on the basis of the complaint. The petitioner has also produced true copy of spot panchanama which is marked at Ex.P.3. He has also produced true copy of his statement and he has stated in his statement that, the accident taken due to rash and negligent driving by driver of the Eicher Goods Vehicle bearing Regn.No.KA-05-AB-3079. The petitioner has produced charge sheet which is marked at Ex.P.5 and IMV report which is marked at Ex.P.7. On perusal of the IMV report, no damages were caused to the Eicher goods vehicle bearing Regn.No.KA-05-AB-3079 and break and gear lever damaged, front left shock absorber damaged, crush guard bent on left side, tank dented and pressed inwards on left side to the motor cycle. The Police, after investigation have SCCH - 11 20 MVC No.801/2014 filed charge sheet against driver of said vehicle for rash and negligent driving. The driver of the said vehicle has not challenged the charge sheet filed by the police. The rash and negligent act can be revealed from the police documents and oral evidence of PW.1 is supported by documentary evidence about the rash and negligent driving. Though the learned counsel for respondent No.1 has contended that, there is negligence on the part of the petitioner himself , her contention is not acceptable. Because, the driver of offending vehicle was not examined and contributory negligence on the part of the petitioner is not proved. Even the charge sheet and enclosures reveals that, the accident caused by the driver of offending vehicle. So, the contention regarding rash and negligent act on the part of petitioner taken by the respondent No.1 is not acceptable. So, I answer issue No.1 in affirmative.
23) ISSUE NO.2: The respondent No.1 has taken contention that, the petition is bad for non joinder of necessary parties. But this contention of the respondent No.1 is not at all acceptable. Because, police have registered SCCH - 11 21 MVC No.801/2014 the case against driver of Eicher Goods vehicle bearing Regn.No.KA-05-AB-3079 and after investigation, they have filed charge sheet against driver of said vehicle and insurer and owner of motor cycle are not at all necessary for adjudication of this claim petition and their presence is not required in deciding rash and negligent driving. So, I hold that, contention taken by respondent No.1 is not acceptable and the petition is not bad for non-joinder of necessary parties. So, I answer issue No.2 in Negative.
24) ISSUE NO.3: On perusal of the written arguments and the contention raised by the respondent No.1, it is first and foremost ground of defence taken by respondent No.1 that, the said Eicher Goods vehicle bearing Regn.No.KA-05-AB-3079 was not having valid permit. The said contention will be discussed subsequently. Though respondent No.1 taken contention that, as the date of accident, the driver of offending vehicle was not holding valid and effective driving licence, this contention is not acceptable. Because, the police have filed charge sheet against driver of the vehicle for the offences punishable SCCH - 11 22 MVC No.801/2014 under section 279, 338 of I.P.C and they have not filed charge sheet for the offences punishable under section 3, 181 of Motor Vehicle Act. So, this contention of respondent No.1 is not acceptable. So, I answer issue No.3 in Negative.
25) ISSUE NO.4: The learned counsel for respondent No.1 taken contention that, as on the date of accident, the Eicher Goods vehicle bearing Regn.No.KA-05-AB-3079 was not having valid and effective permit and there is clear violation of section 66 of Motor Vehicle Act. It is also the contention of the learned counsel for respondent No.1 that, the said vehicle was plied on road without permit and the said vehicle was having only permit for the period from 18.9.2008 to 17.3.2013 and accident taken place on 23.12.2013 and to that effect, the respondent No.1 has produced Ex.R.3 issued by Karnataka State Transport Authorities, Shanthinagar, Bangalore which is public document issued by appropriate authority and said document is admissible as per section 79 of Evidence Act. Since Ex.R.3 issued by competent authority and it is public document within meaning of evidence Act and said SCCH - 11 23 MVC No.801/2014 document cannot be disbelieved. As per the said document, permit was valid from 18.9.2008 to 17.3.2013 and alleged accident taken place on 23.12.2013. In a decision reported in (National Insurance Co. Ltd., Vs. Challa Bharathamma and others) 2004 ACJ 2094 relied upon both parties, the Hon'ble Supreme Court has held as under -
"Motor Vehicles Act, 1988, sections 149(2)
(a) (i) (a) and 149 (4) read with section 66 - Motor insurance - Permit - Defences available to insurance company - Autorickshaw met with accident resulting in death of two persons vehicle - Whether insurance company is liable -
Held: no; however, insurance company directed to deposit the amount and recover the same from the insured by initiating proceedings before the executing court, need not filed a separate suit". In the said decision, the Hon'ble Supreme Court has held that, plying of a vehicle without a permit is an infraction. Therefore, in terms of section 149(2) defence is available to the insurer on that aspect. The acceptability of the stand is matter of adjudication. The question of policy being operative had not relevance for the issue regarding liability of insurer. But in the said decision itself, the Hon'ble Supreme Court has laid down procedure for recovery of awarding amount which is as under -
SCCH - 11 24 MVC No.801/2014 "The residual question is what would be the appropriate direction. Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned executing court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the offending vehicle shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the executing court shall take assistance of the concerned Regional Transport Authority. The executing court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the executing court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, i.e., the insured. In the instant case considering the quantum involved we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured".
The learned counsel for respondent No.1 has also relied upon an unreported judgment of MFA No.7723/2011 and MFA No.9791/2010 of Hon'ble High Court. In the judgment SCCH - 11 25 MVC No.801/2014 of Hon'ble High Court in MFA No.7723/2011, the Hon'ble High Court also referred the judgment of Hon'ble Supreme Court reported in (National Insurance Company Limited Vs. Challa Bharathamma and others) 2004 ACJ 2094 and held that, "the plying of vehicle without a permit is an infraction. Therefore, in terms of section 149(2) defence is available to the insurer on that aspect".
In para 13 of said decision, the Hon'ble Supreme Court has held that "Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned executing court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer".
SCCH - 11 26 MVC No.801/2014 In one more decision of Hon'ble Supreme Court reported in (Oriental Insurance Co. Ltd., Vs. Rakesh Kumar and others) 2012 ACJ 1268, the Hon'ble Supreme Court has held that, "even otherwise insurance company is under obligation to indemnify the liability towards third parties with right to recover the same from the owner".
In one more decision reported in (Rangappa Vs. Jayaramaiah and another) 2014 AAC 1246 (KAR), the Hon'ble Supreme Court has held that " Liability of insurer, determination, fitness certificate of offending vehicle had expired prior to date of accident, Insurance company should not have insured vehicle which was not having fitness certificate, insurer liable to pay compensation". Even in decision reported in (National Insurance Co. Ltd., Vs. Swaran Singh and others) 2004 ACJ 1 page 1 para wherein it is held that " Motor Vehicles Act, 1988, section 149 (1) and (2)- Motor Insurance Defences available to insurance company - Liability of insurance company - whether the insurance company is liable to satisfy the award in favour of third party at the first instance and then to SCCH - 11 27 MVC No.801/2014 recover the awarded amount from the owner of driver of the vehicle even where the insurance company could establish breach of terms of policy on the part of the owner of the vehicle - Held: yes; this position is holding the filed for a long time; doctrine of stare decisis persuades not to deviate".
It is also held as under "Motor Vehicles Act, 1988, section 149 (2) (a) (ii) - Motor insurance policy - Breach of - Driving licence - Burden of proof - whether the burden to establish ' breach' on the part of owner of vehicle lies on the insurance company - Held: yes".
"Motor Vehicles Act, 1988, section 149 (2) (a) (ii) Motor insurance - Driving licence - Defences available to insurance company - Driver possessing licence for one type of vehicle but found driving another type of vehicle - Whether liability of insurance company would depend upon the fact that driver not possessing requisite type of licence was the maintainable or contributory cause of accident or not - Held: yes; insurer will not be allowed to avoid its liability merely on technical breach of conditions concerning driving licence".
SCCH - 11 28 MVC No.801/2014 "Motor Vehicles Act, 1988, section 149 (2) (a) (ii) - Motor Insurance Policy - Breach of - Driving licence - Insurance Company established breach on the part of insured concerning policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period but the breach was not so fundamental as found to have contributed to the cause of accident - Whether the insurance company exempted from liability - Held: no;
Tribunals in interpreting the policy conditions would apply 'the rule of maintainable purpose' and the concept of 'fundamental breach' to allow defences available to the insurer under section 149(2) of the Act".
In the said decisions, the Hon'ble Supreme Court has also discussed the word ''third party right'' means third party claim in respect of accidents involving the death of or bodily injury or damage to property of a third party arising out of the use of motor vehicle. Though there is violation of policy conditions by the respondent No.2, it will not be absolve the liability of the respondent No.1 and it is not a ground to deny the 3rd party claim for compensation.
SCCH - 11 29 MVC No.801/2014 In Challa bharathamma and others case, the Hon'ble Supreme Court has held that "Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing court concerned as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the offending vehicle shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the executing court shall take assistance of the Regional Transport Authority concerned. The executing court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the executing court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle i.e. the insured. In the instant case, considering the quantum involved it is in the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured".
The one more contention taken by the learned counsel for respondent No.1 regarding medium good vehicle. But in SCCH - 11 30 MVC No.801/2014 decision reported in (National Insurance Co. Ltd., Vs. Annappa Irappa Nesaria and others) 2008 ACJ 721 wherein Hon'ble Supreme Court in para 16 of the decision, Hon'ble Supreme Court has held that -
" Motor Vehicles Act, 1988, sections 149(2)
(a) (ii), 2(21), 2(47) and 3 and Central Motor Vehicles Rules, 1989, rule 14 - Motor insurance -
Driving licence - Liability of insurance company - Driver had licence to drive 'light motor vehicle' but he was driving a van which had a goods carriage permit - Insurance company seeks to avoid its liability on the ground that driver did not possess an effective licence to drive a transport vehicle- Tribunal held that driver was authorized to drive the vehicle as the unladen weight of the vehicle is less than 7500 kg - High Court did not accept the contention of insurance company that it has no liability on the ground that there is violation of terms and conditions of policy. Contention that High Court failed to consider that 'light motor vehicle; cannot be a 'transport vehicle; - Transport vehicle' has now been substituted for 'medium goods vehicle' and 'heavy goods vehicle' in Form 4 but 'light motor vehicle' continued to cover both, light passenger carriage vehicle and light goods carriage vehicle - Whether a driver who had valid licence to drive a light motor vehicle was authorized to drive a light goods vehicle as well - Held; yes; insurance company is liable".
So, the decisions raised regarding permit and valid driving licence by the learned counsel for respondent No.1 are not at all acceptable in the light of principle laid down in the above referred decisions supra.
SCCH - 11 31 MVC No.801/2014
26) PW.1 has stated in his evidence that, he has spent more than Rs.8,00,000/- towards medicines, conveyance and other incidental charges and doctors have advised to undergo some more operations in near future, incurring huge expenses. He has stated that, he was admitted in Sri Sairam Hospital from 23.12.2013 to 28.01.2014 where X-rays were taken and sustained fracture injuries and also undergone various surgeries. He has stated that, he again admitted to Hospital from 5.5.2014 to 7.5.2014 and undergone realignment of the external fixation for old degloving injury left leg and took required treatment as per the advice of the doctor and incurred many expenditure and doctors have advised for further follow up treatment. The petitioner has produced the medical bills and as per the said documents, the petitioner has spent Rs.6,57,230.29 ps. So, I hold the petitioner is entitled for compensation of Rs.6,57,230/- under the head of medical expenses. Hence, the petitioner is awarded compensation of Rs.6,57,230/- under the head of medical expenses.
SCCH - 11 32 MVC No.801/2014
27) The petitioner has stated in his evidence that, he
has taken treatment in Sri Sairam Hospital from 23.12.2013 to 28.01.2014 and also from 5.5.2014 to 7.5.2014. Due to the accidental injuries, he has taken 38 days treatment as inpatient and during the period of hospitalization, he would have spent some amount towards food, nourishment and attendant charges and his family members also attended him and also would have spent some amount towards food and other miscellaneous expenses. Considering the long period of hospitalization, I hold the petitioner is entitled for compensation of Rs.30,000/- under the head of food, nourishment and attendant charges. Hence, the petitioner is awarded compensation of Rs.30,000/- under the head of food, nourishment and attendant charges.
28) The petitioner was admitted in Sri Sairam Hospital for 38 days and during the period of hospitalization, he would have lost some income and family members who attended him would have lost their income. As per the evidence of PW.3, the petitioner was working in M/s.Fortuner Elevators and Escalators Private limited, SCCH - 11 33 MVC No.801/2014 Bangalore and earning salary of Rs.28,000/- per month. Due to the accident, petitioner would have lost his income and his family members would have also lost their income. Considering the long period of treatment, I hold the petitioner is entitled for compensation of Rs.40,000/- under the head of loss of income. Hence, the petitioner is awarded compensation of Rs.40,000/- under the head of loss of income.
29) The petitioner sustained left leg degloving injury, fracture comminuted Grade-III + Lower end tibia/fibula, 50% degloving skin/crushed muscles/tendens exposed/Pos Tibia exposed lower 1/3rd and intact and other grievous injuries all over the body. The petitioner underwent surgeries for fracture fixation with external fixation application of left tibia + fibula fracture on 23.12.2013, debridement of the degloving and crush injury to left leg, SAB left leg wound debridement done on 2.1.2014, GA left leg degloving injury with exposed fracture bone debridement gastronomies flap done on 6.1.2014, SA wound debridement and wet dressing done on 7.1.2014, SA VAC dressing on SCCH - 11 34 MVC No.801/2014 13.1.2014. SAB wound debridement and skin grafting of left PTRA was done on 17.1.2014. He has also undergone treatment for external fixation during the period of hospitalization from 5.5.2014 to 7.5.2014. Due to the accidental injuries, petitioner would have suffered physically and mentally and he has to face difficulties through out his life. As per the decision of Hon'ble Supreme Court reported in (Syed Sadiq Etc., Vs. Divisional Manager, United India Insurance Co.,) 2014(1) T.A.C 369 (S.C.), the Hon'ble Supreme Court awarded the compensation of Rs.75,000/- under the head of pain and sufferings. In the said decision injured was vegetable vendor who sustained fracture to lower end of right femur, right leg amputated and he sustained injuries over his left upper arm. In the said decision, the claimant was aged about 22 years and he sustained fracture on middle 1/3rd of right cumerous and comminuted fracture at junction of upper 1/3rd and middle 1/3rd of right tibia. The Hon'ble Supreme Court has awarded the compensation of Rs.75,000/- under the head of pain and sufferings. So, I hold that petitioner entitled for compensation of Rs.75,000/- under the pain and sufferings.
SCCH - 11 35 MVC No.801/2014 Hence, the petitioner is awarded for compensation of Rs.75,000/- under the pain and sufferings.
30) PW.1 has stated his difficulties in para 5 in his chief affidavit. He has stated that, he has unable to walk, sit, stand, squat on floor, cannot use Indian type toilet, cannot lift or carry weight, cannot ride any vehicle and undergoing deep mental shock, pain and sufferings. As per the evidence of PW.2, the petitioner has got severe pain and discharging multiple wound over the left leg and cannot bear weight, loss of muscle mass in the leg and has got no movement in the ankle and cannot carry out the duties. In the decision report in Syed Sadiq Vs. Divisional Manager, United India Insurance Co., the Hon'ble Supreme Court awarded the compensation of Rs.75,000/- under the head of loss of amenities. So, in the light of principles laid down in the said decision, I hold that, petitioner is entitled for compensation of Rs.75,000/- under the head of loss of amenities. Hence, the petitioner is awarded compensation of Rs.75,000/- under the head of loss of amenities.
SCCH - 11 36 MVC No.801/2014
31) In the cross-examination of PW.1, he has stated
that, he was working as Marketing Executive at
M/s.Fortune Elevators and Escalators Private Limited, Bangalore and said company is doing business of sale of Elevators goods. He has admitted in the cross-examination that, he has not produced any documents about his appointment in M/s.Fortune Elevators and Escalators Private Limited, Bangalore and original documents have been submitted by him to the company and company issued identity card to him and he signed to the documents about terms and conditions of the company and he has not produced documents about terms and conditions of the company. He has stated that, some times, his salary was being credited to his account maintained in the Bank and some times, his salary was being paid through cash. There was no package system in the company where he was working and his salary was depending upon his work. In the further cross-examination, he has stated that, he has not been removed from service by said private limited company and his company has not reimbursed his medical bills and there is no medi-claim facility in his company. In SCCH - 11 37 MVC No.801/2014 the evidence of PW.3, he has stated that, the petitioner was working as Sales Executive from January 2013 in M/s.Fortuner Elevators and Escalators Private limited and earning Rs.28,000/- per month including incentives and excluding travel allowances. He has stated that, due to the said accident, he is not able to attend work from 23.12.2013 to till date and due to the accident, he is not able to work in company as a Sales Executive. He has produced Ex.P.21 which is the salary slip for the month of October 2013. As per the said document, petitioner was drawing salary of Rs.28,000/- per month and he has also produced salary slip for the month of November 2013 which is marked at Ex.P.22. He has also produced attendance register extract for the month of September 2013 to November 2013 which are marked at Ex.P.23 to 26 and as per said documents, he remained absent for the period from 24.12.2013 onwards. The petitioner has produced his pay slip from October to November 2013 and as per the said documents, he was drawing salary of Rs.28,000/- per month. The learned counsel for respondent No.1 has contended that, Ex.P.23 the attendance register extract is not bearing seal and SCCH - 11 38 MVC No.801/2014 signature of Fortune Elevators and Escalators Pvt. Ltd. This contention is not at all acceptable, because there is seal of Fortune Elevators and Escalators Pvt. Ltd., signed by its Director and at the time of recording the evidence, original of said document was produced and said attendance register is in prescribed format which is being maintained in offices and companies. Hence, this contention of learned counsel for respondent No.1 is not at all acceptable. Even the PW.3 who is employer of petitioner has been examined to prove the contents of Ex.P.21 to 26. The attendance register extract discloses the absence of petitioner to his duty from 24.12.2013 onwards, which goes to show that after accidental injuries, he is not attending his duties. Even on perusal of evidence of PW.3, nothing has been elicited to disbelieve his evidence regarding employment of petitioner in his company and payment of salary. In the cross-examination of PW.3 he has admitted that, there are no documents about appointment of petitioner in his company and in the month of January 2013, there was no existence of M/s.Fortune Elevators and Escalators Pvt. Ltd., But he has stated that, the Delta Elevators Company SCCH - 11 39 MVC No.801/2014 attendance register continued after formation of M/s. Fortune Elevators and Escalators Pvt. Ltd., and in the said document, it is no where mentioned that, said attendance register is belonged to the Delta Elevators and M/s. Fortune Elevators and Escalators Pvt. Ltd., But in the further cross- examination, it is suggested to PW.3 that, petitioner was selling 5 to 6 elevators per month. On the one hand respondent No.1 is disputing the identity and existence of M/s. Fortune Elevators and Escalators Pvt. Ltd., and on the other hand, it is suggested to the PW.3 that, the petitioner was selling 5 to 6 elevators per month. It is also disputed in the cross-examination of PW.3 that, he is Director of M/s. Fortune Elevators and Escalators Pvt. Ltd., But PW.1 has produced certificate of incorporation which is marked Ex.P.22 which has been registered by Registrar of Company and PW.3 is shown as one of the Directors in the certificate of incorporation in Form No.1 which is marked Ex.P.28. This goes to show that PW.3 is the employer of petitioner.
32) The petitioner has adduced the evidence of employer and produced salary certificate and proved that he SCCH - 11 40 MVC No.801/2014 was drawing salary of Rs.28,000/- per month. As per evidence of PW.2, petitioner sustained whole body disability at 18%, but he has admitted in this cross-examination that, he wrongly calculated the disability to the whole body and actual disability is 11%. The age of the petitioner is shown as 24% in medical records. He has not produced any other documents about his age. If the age of the petitioner is taken in between 21-25 years, the multiplier applicable to the facts of the case is 17. As per the decision of Hon'ble Supreme Court reported in Syed Sadiq and others Vs. Divisional Manager, United India Insurance Company Limited, the 50% is to be added towards future prospectus of income. If the income of the petitioner is taken at Rs.28,000/- and if 50% is added towards loss of future income, it will be Rs.42,000/-. If 1/3rd amount is deducted towards personal expenses, the actual loss of income will be Rs.28,000/-. If the income of the petitioner is taken at Rs.28,000/- per month, the loss of income will be calculated as under -
Rs,28,000/- X 12 X 11 X 17/100 = Rs.6,28,320/-
SCCH - 11 41 MVC No.801/2014 So I hold that the petitioner is entitled for compensation of Rs.6,28,320/- under of head of loss of future income.
33) PW.2 has stated in his evidence that, the petitioner requires treatment for removal of fixation and interlocking nail with bone grafting of tibia which will cost Rs.1,50,000/-, but the cost of future medical expenses stated by PW.2 is highly excessive. Even he has not submitted estimation about actual medical expenditure. However, considering the facts that, still implants in situ and there is external fixator and removal of implants and external fixators requires future medical expenses. So, I feel it just and proper to award the compensation of Rs.60,000/- under the head of future medical expenses which shall not carry any interest.
34) Though the learned counsel for respondent No.1 has contended that, there is clear violation of terms and conditions of the insurance policy, the said contention is not acceptable in view of discussion made above. Though learned counsel for Respondent No.1 has taken contention SCCH - 11 42 MVC No.801/2014 that, as per article 142 of Indian Constitution, the Hon'ble Supreme Court has got inherent powers to order for pay and recovery, the said contention is not acceptable. Because, the judgments of Hon'ble High Courts and Hon'ble Supreme Court are having binding effect upon the lower courts and the decisions of Hon'ble Supreme Court and Hon'ble High Court are the laws of the land which are to be followed by the lower courts. When the Hon'ble Supreme Court has laid down the procedure for recovery of award amount in case of violation of terms and conditions of insurance policy, this court is bound to comply it and insurance company is also to liable to pay the compensation to the 3rd party and recover the same by filing execution petition as per procedure laid down by the Hon'ble Supreme Court in a decision reported in 2012 ACJ 1268; 2004 ACJ 2094 relied upon by the both parties. So, I hold that, the respondent No.1 being insurer of offending vehicle is liable to pay the compensation to the petitioner and then recover the same from the respondent No.2 by filing an Execution Petition.
SCCH - 11 43 MVC No.801/2014
35) The Calculation table stands as follows:
1) Medical expenses Rs.6,57,230/-
2) Food, medicine, Conveyance Rs. 30,000/-
and attendant charges
3) Loss of income during laid up
period Rs. 40,000/-
4) Pain and sufferings Rs. 75,000/-
5) Loss of future income Rs.6,28,320/-
6) Future medical expense Rs. 60,000/-
7) Loss of amenities in life Rs. 75,000/-
Total Rs. Rs.15,65,550/-
36) ISSUE No.5: In view of answers to issues No.1 to
4, I proceed to pass the following:
ORDER
The petition filed under Section 166 of M.V. Act is partly allowed with costs.
The petitioner is entitled to compensation of Rs.15,65,550/- along with interest at the rate of 6% p.a. from the date of petition till complete realisation from respondent No.1.
SCCH - 11 44 MVC No.801/2014 The respondent No.1 is hereby directed to deposit the entire amount with accrued interest, within one month, from the date of this award.
In case of deposit of the awarded compensation by the respondent No.1, the amount of Rs.5,00,000/- shall be deposited in F.D in the name of petitioner in any nationalized or scheduled bank for the period of 5 years, on failing to furnish the particulars, the same shall be deposited in Karnataka Bank, City Civil Court Branch, Bangalore Remaining amount of Rs.10,65,550/- shall be released to the petitioner through account payee crossed cheque, on proper identification and verification.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Typed to my dictation on online by the Stenographer, corrected and pronounced by me in open court on this 26th day of March, 2015.) (GANAPATHI GURUSIDDA BADAMI) I ADDL.SCJ & XXVII ACMM SCCH - 11 45 MVC No.801/2014 ANNEXURE WITNESSES EXAMINED FOR PETITIONERS:
PW.1 - Madan
PW.2 - Dr.B.S.Venkatesh
PW.3 - Prasad.B.T
DOCUMENTS MARKED FOR PETITIONERS:
Ex.P.1 - CC of FIR
Ex.P.2 - CC of complaint
Ex.P.3 - CC of panchanama
Ex.P.4 - CC of statement
Ex.P.5 - Certified copy of charge sheet
Ex.P.6 - Wound certificate
Ex.P.7 - MVI report
Ex.P.8&9 - 2 Discharge summaries
Ex.P.10-12- 3 salary certificates
Ex.P.13 - Laboratory report
Ex.P.14 - ECG test report
Ex.P.15 - 5 X-rays
Ex.P.16 - 101 medical bills & prescriptions
Ex.P.17 - 10 Ambulance bills
Ex.P.18 - 2 inpatient bills
Ex.P.17&18 2 case sheets
Ex.P.19 - 2 X-rays
Ex.P. 20 - disability assessment report
Ex.P.21&22 Salary slips
SCCH - 11 46 MVC No.801/2014
Ex.P.23-26- Original attendance register & its attested
copies
Ex.P.27 - 11 medical bills
Ex.P.28 - 2 medical prescriptions
Ex.P.29-31- 3 photos
Ex.P.32 - CD
Ex.P.33 - X-ray along with report
Ex.P.27 - CC of incorporation certificate
Ex.P.28 - CC of application & declaration form
Ex.P.29 - CC of memorandum of association
Ex.P.30 - CC of articles of association
Ex.P.31-34- 4 payment vouchers
WITNESSES EXAMINED FOR RESPONDENTS :
RW.1 - Guruprasad.B
DOCUMENTS MARKED FOR RESPONDENTS :
Ex.R.1 - Authorization letter
Ex.R.2 - Copy of insurance policy
Ex.R.3 - CC of goods carrier permit
I ADDL.SCJ. & MACT.