Bangalore District Court
Sri.Laik Khan @ Mohammed Laik vs The Regional Manager on 19 November, 2022
SCCH-11 1 MVC.No.5980/2018
KABC020245002018
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
BENGALURU. (SCCH-11)
DATED THIS THE 19th DAY OF NOVEMBER-2022
PRESENT: SRI.RAGHAVENDRA.D, B.COM, L.L.B.
I ADDL.SMALL CAUSES JUDGE & MACT
MVC No.5980/2018
PETITIONER:
Sri.Laik Khan @ Mohammed Laik
S/o.Jalish Khan
Aged about 36 years,
Residing at Bhagwanpur,
Januwa, Sitapur,
Uttar Pradesh-261 201.
(By Sri.Mohammed Sheriff, Adv.)
//Versus//
RESPONDENTS:
1. The Regional Manager,
The National Insurance Co., Ltd.,
Regional Office, No.144, M.G.Road,
Bengaluru -1.
(Policy NO.606011311710001046
SCCH-11 2 MVC.No.5980/2018
Valid from 23.03.2018 to 22.03.2019.
2. Sri.D.Senthil Kumar,
S/o.K.N.Duraisamy,
No.217/3, 3rd Main Road, N.T.Pet,
Bengaluru - 560 002.
(Resp.No.1 - By Sri.S.R.Murthy Adv.)
(Resp.No.2 - Exparte)
JUDGMENT
This petition is filed by the petitioner U/s.166 of Motor Vehicle Act, claiming compensation of ₹.15,00,000/- along with interest from the date of petition till its realization for injuries sustained by the petitioner.
2. The case of the petitioner in brief is that on 09.08.2018 at about 4.30 p.m., when petitioner was working at Endurance Technology Co., in KIADB Narasapura Area, Mindahalli Village, Kolar, within the jurisdiction of Malur Police Station, at that time, the driver of Crane bearing Reg.No.KA- 51-MH-9131 driven by its driver at high speed in a rash and negligent manner and dashed against the petitioner. Due to which, petitioner fell down and sustained grievous injuries. SCCH-11 3 MVC.No.5980/2018 Immediately, he was shifted to nearby Hospital, for first aid treatment and shifted to Hosmat Hospital, Bengaluru, wherein petitioner took treatment as an inpatient. The petitioner has spent Rs.15,00,000/- towards medical, conveyance, nourishment and other incidental charges.
Prior to the accident, he was hale and healthy and was working as a Welder at Endurance Technology Company Limited and earning a sum of Rs.15,000/- per month. Due to the accidental injuries, he became permanent disablement. The accident occurred only due to rash and negligent driving of the Crane by its driver. The respondents being the insurer and owner of offending vehicle are jointly and severally liable to pay compensation to the petitioner.
3. Inspite of service of notice, respondent No.1 appeared through its counsel and filed its written statement. The respondent No.2 did not appear before the tribunal and hence, he has been placed as exparte.
4. The brief contents of written statement of respondent SCCH-11 4 MVC.No.5980/2018 No.1 is as under:
The respondent No.1 has filed counter to petition by denying the petition averments. He has further disputed the manner of accident, age of injured and quantum of compensation claimed under different heads. This respondent has admitted that he has issued Miscellaneous Policy in respect of Crane, bearing Reg.No.KA-51-MH-9131 and the liability if any is subject to terms and conditions of the policy.
Further contended that the 2nd respondent knowing fully well that the driver was not holding valid and effective driving license the respondent No.2 has entrusted the vehicle to drive such class/type of vehicle to him. Further the RTO Jharkhand has given endorsement that DL is not issued by their office, which clearly shows that it is Fake DL produced before the Police Station and thereby violated the terms and conditions of the policy. It has further contended that the alleged accident is caused only due to the negligence of the petitioner himself and not due to the negligence of the driver of Crane.SCCH-11 5 MVC.No.5980/2018
Further the alleged accident occurred due to self negligence of self accident by petitioner. The complaint has been lodged before the police with all malafide intentions, when the inordinate lapse of time after the alleged suffering of the alleged accident. The amount claimed by the petitioner is highly exorbitant. Hence, prayed for dismissal of the petition.
5. On the basis of above pleadings, my learned predecessor in office has framed the following:
ISSUES
1. Whether petitioner proves that, he sustained grievous injuries in the accident that occurred on 09.08.2018 at about 4.30 p.m., while he was going about his work at Endurance Technology Company, KIADB, Narasapura, Industrial Area, Mindahalli Village, Kolar at that time the driver of Crane bearing Regn.No.KA-51-MH-9131 drove the said vehicle at very high speed in a rash and negligent manner?
2. Whether the petitioner is entitled for compensation as prayed in the claim petition? If so, what is the quantum of compensation and from whom?
3. What order or award?SCCH-11 6 MVC.No.5980/2018
6. In order to prove his case, the petitioner has examined himself as PW.1 and Dr.Krishan Prasad examined as PW.2 and got marked documents at Ex.P.1 to Ex.P.15 and closed his side of evidence. On the other hand, the respondent insurance company examined its Administrative Officer as RW.1 and got marked documents at Ex.R.1 to Ex.R.4 and closed his side of evidence.
7. I have heard the arguments from both sides and perused the material available on record. The learned counsel for respondent No.1 has filed written arguments. I have carefully perused the written arguments filed by the respondent No.1.
8. Findings of this tribunal on above issues are as under:-
Issue No.1 : In the Affirmative;
Issue No.2 : Partly in the Affirmative;
Issue No.3 : As per final order for the following:-
SCCH-11 7 MVC.No.5980/2018
-:REASONS:-
9. Issue No.1:- It is the case of petitioner that on 09.08.2018 at about 4.30 p.m., when he was working in Endurance Technology Company, KIADB Narasapura Industrial Area, Mindahalli Village, Kolar, the driver of Crane bearing Regn.No.KA-51-MH-9131 drove the said vehicle at high speed in a rash and negligent manner and dashed to him. Due to which he sustained grievous injuries.
10. In order to prove rash and negligent driving of Crane bearing Regn.No.KA-51-MH-9131 by its driver, the petitioner himself stepped into the witness box and filed an affidavit in lieu of chief examination and examined as PW.1. In his chief examination he has deposed that due to rash and negligent driving of Crane by its driver the accident occurred. Even on perusal of cross-examination of PW.1, he has deposed that only due to negligence on the part of driver of crane the accident occurred. In addition to his oral evidence, he has produced Ex.P.2 first information given by petitioner himself in SCCH-11 8 MVC.No.5980/2018 hospital before the police. As per Ex.P.2, the police recorded his statement on 14.08.2018 and the accident occurred on 09.08.2018. On the basis of Ex.P.2, the police registered FIR as per Ex.P.1 for the offence punishable U/s.279 & 337 of IPC. So, on perusal of Ex.P1 & P2, there was delay in lodging first information with the police, but the petitioner has given his statement to the police while he was taking treatment. The petitioner produced Ex.P.2 first information and Ex.P.7 Discharge Summary. On perusal of both the documents, the petitioner admitted to hospital on 09.08.2018 for treatment with history of occupational injury to left foot while he was working at construction site when a vehicle ran over his left foot at SS industries, Nersarapure Kolar on 09.08.2018. So, on perusal of hospital documents, it shows that petitioner admitted to hospital on the date of accident itself. Only on the ground that there was delay in lodging first information, the entire case of petitioner cannot be doubted. The Hon'ble Supreme Court of India in Ravi Vs. Badrinaraya in (2011) 4 SCCH-11 9 MVC.No.5980/2018 SCC 693, held that delay in lodging a FIR cannot be a ground to doubt the claimants case. Hence, the ratio and dictum laid down by the Hon'ble Supreme Court of India is aptly applicable to the case on hand.
The learned counsel for respondent insurance company vehemently argued that as per police documents, the petitioner only sustained occupational injuries and he has not sustained any injuries due to accident. On perusal of Ex.P.7 Discharge Summary produced by petitioner, the hospital authorities have written as following complains of pain and bleed left foot, alleged history of occupational injury to left foot, patient working at construction site when a vehicle ran over his left foot at SS industries, Nersarapure Kolar on 09.08.2018. So, on perusal of Ex.P.7, the doctor clearly narrated that the petitioner sustained injuries due to vehicle ran over his left foot. Hence, it shows that petitioner sustained injuries due to motor vehicle accident. Hence, the arguments canvassed by the learned counsel for respondent SCCH-11 10 MVC.No.5980/2018 insurance company is not tenable.
After registering the case, police went near the place of accident and drew up mahazar as per Ex.P.4 by narrating that the accident occurred in Endurance Technology Company Limited and accident occurred on cement road. After completion of investigation, the police have filed charge sheet as per Ex.P.6 against the driver of crane for the offence punishable U/s.279 & 338 of IPC. The respondent insurance company examined its Administrative Officer as RW.1. Except oral evidence of RW.1, there is no evidence before the tribunal to show that there was no negligence on the part of driver of crane. Even the respondents nothing elicited from the mouth of PW.1 to disprove the negligence on the part of driver of crane. So, on meticulous perusal of oral and documentary evidence placed by petitioner, it clearly shows that due to rash and negligent driving of crane the accident occurred. RW.1 in his further chief examination, he has deposed that the alleged accident occurred in private place and not in SCCH-11 11 MVC.No.5980/2018 the public place, as such the petition in not maintainable. In order to prove the accident occurred in private place and not in public place, the respondent insurance company did not place any materials except their oral evidence. The police conducted spot mahazar as per Ex.P.4, wherein the police have narrated that the accident occurred in Endurance Technology Company Limited, when petitioner was working. Further in Ex.P.4 narrated, the accident occurred on cement road. PW.1 deposed that at the time of incident one Naseeruddin was also present. On perusal of police papers and oral oral evidence of petitioner, the accident occurred in Endurance Technology Company Limited.
11. The respondent insurance company relied upon decision of our Hon'ble High Court of Karnataka in MFA.No.6055 of 2015 (MV-D) dated: 26.08.2021 in between The New India Assurance Co., Ltd., Vs. Smt.Sunandamma and others, wherein the Hon'ble High Court of Karnataka at Para.8 held as follows:- SCCH-11 12 MVC.No.5980/2018
"In the instant case, admittedly, the offending vehicle was carrying out borewell drilling activity was being carried out at the filed of the defendant at 1AM in the mid night. It is pertinent to note that at the time of the drilling as per the evidence of PW.2, only the deceased and he were present on the spot for supervising the drilling work. The field of the deceased cannot by any stretch be considered to be a place for which the public would have access. No evidence has been brought on record to show that the filed of the deceased was thrown open to the public access for any purpose. Therefore, an inference can safely be drawn that the offending vehicle was not being used in a public place on perusal of Ex.R.1 Insurance copy, it is evident that the insurance issued in respect of the offending vehicle is an 'Act only' policy which covers the risk of liability to third parties as restricted by Section 147 of the Act. Therefore, the Tribunal erred in fastening the liability to pay the compensation on the Insurance Company, when it is clear that the policy covers liability only in respect of any liability arising from the use of the offending vehicle in a public place. Accordingly, the finding of the Tribunal in this regard it set aside and it is held that the Insurance Company is not liable to pay the compensation in respect of the death of the deceased and the respondent No.1 viz., the owner of the offending vehicle is liable to pay the total amount of compensation."
With due respect to the Hon'ble High Court of Karnataka, I have carefully perused the above reported judgment, case on hand. the accident occurred when the petitioner was working in factory premises. Further on perusal of record not only petitioner but other persons were also present at the time of accident. So, with due respect to the Hon'ble High SCCH-11 13 MVC.No.5980/2018 Court of Karnataka, the facts and circumstances of the above case and case on hand are not one and the same.
12. The learned counsel for petitioner relied upon Judgment of our Hon'ble High Court of Karnataka in MFA.No.20675 and 21192/2013 (MV) dated: 12.12.2015 in between New India Assurance Co., Ltd., and Ors Vs. Rajani and Ors, wherein the Hon'ble High Court of Karnataka held at Para.29 as follows:
"29. Therefore, looking to the principle of Sec.43 as well as the decision of the Hon'ble Supreme Court referred in the said paragraph we are of the clear opinion that even though the I.O. has deleted Sec.279 of IPC while filing the charge sheet but same is not binding on the MACT which is an independent body to appreciate the materials placed on record before it and to come to its own independent conclusion."
13. Further the learned counsel for petitioner also relied on citation reported in AIR 1988 Bom 248 in between Panduran Chimaji Agale and Ors. Vs. New India Life Insurance Co., Ltd., and Ors., wherein the Hon'ble High Court of Bombay held that:
"All places where the members of public and/or their SCCH-11 14 MVC.No.5980/2018 property are likely to come in contact with the vehicles can legitimately be said to be in its view when the legislature made the relevant provisions for compulsory insurance."
14. Further the learned counsel for petitioner relied upon decision in MACA No.202 of 2013 of the Hon'ble High Court of Kerala in between Sosamma Abraham and Ors. Vs. Santhosh.G. and Ors, wherein the Hon'ble High Court of Kerala held that:
"The public place does not have a restricted meaning in as much as it is not to be taken as a place where public have uncontrolled access at all times. "Public Place" for the purpose of the Act has to be understood with reference to the places to which a vehicle has access."
With due respect to the Hon'ble High Court of Karnataka, the Hon'ble High Court of Kerala and the Hon'ble High Court of Bombay, I have carefully perused the above reported judgment and the case on hand the accident occurred when the petitioner was working in factory premises. The respondent insurance company except taking contention in chief examination that the accident occurred in private place he has nothing placed before the tribunal to establish that the SCCH-11 15 MVC.No.5980/2018 public are prohibited to enter into the said premises. In view of ratio laid down by the Hon'ble High Court of Karnataka, the Hon'ble High Court of Kerala and the Hon'ble High Court of Bombay, the accident occurred within the premises of factory, which is very much accessibly to the public to work. So, under such circumstances, the contention taken by respondent insurance company is not tenable and the ratio and dictum laid down by the Hon'ble High Court of Karnataka, the Hon'ble High Court of Kerala and the Hon'ble High Court of Bombay are aptly applicable to the case on hand.
15. The I.O. also filed charge sheet against the driver of crane for the offence punishable U/s.279 & 338 of IPC. The owner of vehicle did not challenged the charge sheet. On meticulous perusal of oral and documentary evidence placed by both the parties, it clearly shows that due to negligence on the part of offending vehicle the accident occurred. Accordingly, Issue No.1 held in the Affirmative.
16. Issue No.2: In view of held issue No.1 in the SCCH-11 16 MVC.No.5980/2018 Affirmative, the petitioner is entitled for compensation. To assess the compensation, the Tribunal has to look into several factors like injury, pain and suffering sustained by the petitioner and amount spent by the petitioner towards medical expenses, food and extra nourishment and medical attendants, conveyance, loss of income during treatment, disability, loss of amenities etc., let me discussion one by one.
(i) Towards injury and pain and suffering:-
The petitioner has contended that due to accident he has sustained injuries and underwent surgery and discharged with an advice to take follow up treatment. In order to prove injuries caused to him, he has produced Wound Certificate, marked at Ex.P3, which reveals that petitioner has sustained left foot crush injuries and left below knee amputation, doctor has opined that injuries are grievous in nature. So, on perusal of records, the petitioner took treatment in the hospital as an inpatient and the petitioner examined Dr.Krishan Prasad as PW.2 and got marked documents at Ex.P.11 to 15. PW.2/doctor SCCH-11 17 MVC.No.5980/2018 has deposed that he examined the petitioner for assessment of permanent physical disability for amputation below knee (left) and assessed disability to whole body at 35%. By considering the injury and facts and circumstances of the case, the tribunal is of the view that the compensation of ₹.45,000/- is just and reasonable towards pain and suffering.
(ii) Towards Medical Expenses: The petitioner has claimed compensation towards medical expenses. The petitioner contended that he took treatment at Hospital. The petitioner has also produced 16 Medical bills for a sum of ₹.2,27,240/- marked at Ex.P.9 and 15 prescriptions marked at Ex.P.10. The respondents not rebutted the other medical bills by placing cogent evidence. So, Tribunal is of the view that compensation of ₹.2,27,240/- is just and reasonable towards medical expenses.
(iii) Towards food, extra nourishment and medical SCCH-11 18 MVC.No.5980/2018 attendant charges: On perusal of the records, the accident occurred on 09.08.2018 and the petitioner took treatment as an inpatient in the hospital. On perusal of evidence, the petitioner was inpatient at Hospital as he has sustained injuries. So, during the time of treatment the petitioner also required good food and extra nourishment. The petitioner has produced Discharge Summary issued by Hosmat Hospital marked at Ex.P7, wherein it shows that petitioner has taken treatment as an inpatient from 09.08.2018 to 25.08.2018 i.e., for a period of 17 days. Considering the said fact the Tribunal is of the view that compensation of ₹.400/- per day for 17 days to a sum of ₹.6,800/- is just and reasonable towards food, extra nourishment and medical attendant.
(iv) Towards Conveyance:
The petitioner is the resident of Bhagwanpur, Januwa, Sitapur, Uttar Pradesh, the accident occurred at Endurance Technology Co, KIADB Narasapura Industrial Area, Mindahalli SCCH-11 19 MVC.No.5980/2018 Village, Kolar within jurisdiction of Malur Police Station, Kolar.
He has admitted for treatment at Hospital. In order to prove this aspect the petitioner has produced discharge summary.
Considering the injuries and facts of the case, the tribunal is of the view that the compensation of ₹.10,000/- is just and proper towards conveyance charges.
(v) Towards loss of income during treatment: The petitioner has contended that he was working as a Welder and earning Rs.15,000/- per month. In order to prove his income, the petitioner has not produced any documents to show that he was earning a sum of ₹.15,000/- per month. In the absence of positive documents regarding his occupation and income, this tribunal will consider notional income. Due to the accidental injuries, the petitioner might have not attended his regular work at least for a period of 2 months.
The Hon'ble High Court of Karnataka fixed notional income of the year 2018 at ₹.12,500/- per month for determination of income before Lok Adalat SCCH-11 20 MVC.No.5980/2018 for the Districts coming under the Hon'ble High Court of Karnataka, Principal Benches, Bengaluru. So, in view of fixing of notional income by the Hon'ble High Court of Karnataka, it is just and proper to this Tribunal to follow the notional income as fixed by the Hon'ble High Court of Karnataka to decide the cases before this Tribunal also. Case on hand the petitioner has not produced any relevant document to prove his income.
Accordingly, the notional income of petitioner during the year 2018 treated as ₹.12,500/- per month as fixed by the Hon'ble High Court of Karnataka. By considering facts and circumstance of case the petitioner is entitled for ₹.25,000/- (12,500/- x 2) towards loss of income during treatment period.
(vi) Towards Permanent Disability:
The petitioner has contended that due to accident, he was inpatient at Hospital, and sustained permanent disablement. The petitioner examined Dr.Krishan Prasad, SCCH-11 21 MVC.No.5980/2018 Orthopedic Surgeon at Hosmat Hospital. PW.2/Doctor examined the patient clinically and radiologically to assess disabilities. The doctor deposed that petitioner has sustained crush injury of the left foot and underwent wound debridement and k-wiring metatarsals left foot was done, left foot revision k-wiring left 1st and 2nd lisfrancs joint was done, wound debridement left foot was done and on 18.08.2018 below knee amputation with stump closure was done to prevent ascending infection. Further deposed that the amputation stump left lower limb has healed and he has tingling numbness and painful phantom sensation of his left below knee amputation stump and the level of amputation is through the middle of left with a 6 and half inch stump.
Further doctor has assessed the disability for amputation below knee (left) with functional stump, lower extremity impairment at 60%, tingling numbness phantom sensation at 10% and lower limb disability at 70% and to whole body permanent disability at 35%. The doctor has produced SCCH-11 22 MVC.No.5980/2018 documents at Ex.P.11 to 15 i.e., inpatient file, outpatient file and X-ray films.
PW.2 in his cross examination deposed that as per hospital documents, there was an amputation below knee and there is 6 inches stump below knee. Further in his cross examination deposed that the disability given by him for petitioner at 70% for particular limb and 35% to whole body.
By considering the oral and documentary evidence and facts and circumstances of the case, it appears that the petitioner can do his work with difficulty. Therefore, considering all these aspects, the functional disability is assessed at 30%.
The respondent insurance company has contended that as per Ex.P.8 - Notarized copy of Aadhaar Card, wherein his date of birth is mentioned as 23.05.1932, as such the respondent insurance company contended that he is aged more than 86 years. PW.1 in his cross examination, he has deposed that his date of birth is wrongly mentioned in Adhaar SCCH-11 23 MVC.No.5980/2018 Card. On perusal of Ex.P.2 his age is mentioned as 36 years and even in hospital documents, his age is shown as 36 years. The petitioner not produced any other documents to prove his age. But on perusal of photographs mentioned in Aadhaar Card and in petition, it appears that he may not be aged as contended by respondent. Hence, this tribunal will consider the age mentioned in hospital documents.
Accordingly, this tribunal will consider the age of petitioner was 36 years as on the date of accident and same is taken into consideration for applying multiplier and multiplier 15 is applicable as per Smt. Sarla Verma case. As per ratio laid down by Hon'ble Supreme Court of India in Raj Kumar V/s. Ajay kumar and another, this tribunal not deducted personal expenses of petitioner out of his gross income.
Hence, future earning capacity of the petitioner due to permanent disability works out as under :
Annual Income before accident : (12,500/- x 12) = ₹.1,50,000/-SCCH-11 24 MVC.No.5980/2018
Loss of future earning p.a. (30% of prior annual income) ₹.45,000/-.
Multiplier applicable with reference to age - 15 Loss of future earnings - (45,000/- x 15) = ₹.6,75,000/-. The petitioner is entitled for ₹.6,75,000/- under the head of loss of future earning capacity.
(vii) Deprivation of Future Amenities and marriage prospects:- The petitioner lost left lower limb below knee and now he is using artificial limb. On perusal of petition averments, petitioner is still bachelor. Due to accidental injuries, there is effect on his marriage prospects. Hence, by considering injuries sustained by the petitioner, it is just and proper to award compensation of ₹.50,000/- under the head deprivation of future amenities and marriage prospects.
(viii) Towards Future Medical Expenses:
The doctor/PW.2 has opined that the petitioner needs SCCH-11 25 MVC.No.5980/2018 good quality of Prosthesis (artificial limb), which costs around ₹.2,81,300/-. There is additional maintenance charge of good quality of prosthesis and artificial limb needs to be changed once in 15 years. By considering the facts and circumstances of the case ₹.50,000/- is just and reasonable under the head deprivation of future medical expenses.
17. Therefore, the petitioner is entitled for compensation as follows:
Sl.No. Particulars Amount
a. Towards injury pain and suffering ₹.45,000/-
b. Towards Medical Expenses ₹.2,27,240/-
c. Towards food and extra ₹.6,800/-
nourishment and medical
attendant
d. Towards conveyance ₹.10,000/-
e. Towards loss of income during ₹.25,000/-
treatment
f. Towards loss of future earning ₹.6,75,000/-
g. Deprivation of future amenities ₹.50,000/-
and marriage prospects
h. Towards Future Medical ₹.50,000/-
Expenses
Total compensation ₹.10,89,040/-
SCCH-11 26 MVC.No.5980/2018
18. In MFA.No.100090 of 2014 C/w. MFA.No.25107 of 2013 between Vijay Ishwar Jadhav and others Vs. Ulrich Belchior Fernandes and another, the Hon'ble High Court of Karnataka at Page No.7 at Para No.15 held as follows:
"However, the provisions of Section 149(1) of the Act to the extent they speak of interest payable on the compensation amount is in the nature of an exception to the general law enacted in 169 of the M.V.Act and therefore, the provisions of Section 34 of CPC to that extent become invocable on the general principles of construction of statutes namely the special law overrides the general law. Therefore, in the absence of any other law relating to interest on Judgments, the MACT has to follow the provisions of Section 34 of CPC, 1908. Thus, in the given circumstances of this case, interest at the rate of more than 6% could not have been awarded."
In view of ratio and dictum laid down by the Hon'ble High Court of Karnataka in the above judgment, the petitioners are entitled for interest @ 6% per annum from the date of petition till its realization.
19. It is already held that the accident occurred due to rash and negligent driving of Crane bearing Regn.No.KA-51- MH-9131 by its driver. The respondent contended that the driver of offending vehicle was not holding valid and effective driving license at the time of alleged accident. In order to SCCH-11 27 MVC.No.5980/2018 prove their contention, the Administrative Officer in respondent insurance company examined as RW.1. RW.1 in his chief examination, he has deposed that the driver of crane by name Sri.Santhosh Sharma, S/o.Aditya Sharma was not having any driving license authorizing him to drive class/type of vehicle. Further he has deposed that the alleged driving license possessed by driver is fake one, as such this insurance company is not liable to pay compensation. RW.1 produced Ex.R.3 one application given to District Transport Officer, Hazaribag under "Right to Information Act 2005" and reply given by DTO Hazaribag as per Ex.R.4. The District Transport Officer given a reply by stating that they have not issued driving license No.41849/2017 in the name of Sri.Santhosh Sharma. By producing these documents, the learned counsel for respondent vehemently argued that the driver produced fake policy and as per endorsement issued by RTO, they have not issued any type of driving license in the name of driver. No doubt on perusal of Ex.R.4, the DTO Hazaribag has not SCCH-11 28 MVC.No.5980/2018 issued license in the name of Sri.Santhosh Sharma in D.L.No.41849/2017. The respondent insurance company except producing endorsement issued by RTO, they have not placed any materials before the tribunal to show that the DL No.41849/2017 is fake driving license. The respondent No.2 owner of vehicle did not appear before the tribunal and did not produced copy of driving license. The respondent insurance company except taking contention that it is fake driving license and they have not placed any materials before the tribunal to show that the owner of vehicle engaged the driver by name Sri.Santhosh Sharma by knowing that he was possessing fake driving license. No doubt when respondent insurance company has taken such defence it is the duty of owner of vehicle to explain whether the driver was possessing valid driving license or not, but he did not appear before the tribunal to explain.
20. The learned counsel for petitioner relied upon citation reported in AIR 2003 SC 1292 of our Hon'ble SCCH-11 29 MVC.No.5980/2018 Supreme Court of India in between United India Insurance Company Limited Vs. Lehru and Others, wherein it is held as follows:
"Section 149(2) (a) (ii) - Fake license - Liability of Insurance Company to third parties - In order to avoid liability, it is not sufficient to shows that the person driving at the time of accident was not duly licensed - Insurance Company must establish that the breach was on the part of insured - If it ultimately turns out that the license was fake the insurance company would continue to remain liable unless it is proved that, the owner/insured was aware of or had notice that the license was fake and still permitted that person to drive - insurance company liable to the innocent third party, but it may be able to recover from the insured."
21. Further the learned counsel for petitioner relied upon decision of our Hon'ble Supreme Court of India in Civil Appeal No.8276 of 2009 in between Pepsu Road Transport Corporation Vs. National Insurance Company, wherein the Hon'ble Supreme Court of India held at Para.8 & 9 as follows:
"8. In a claim for compensation, it is certainly open to the insurer under Section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving license. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that SCCH-11 30 MVC.No.5980/2018 the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving license with the licensing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that licence issued to the driver employed by him is a fake and yet the owner does not take appropriate action verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swaran Singh's case (supra). If despite such information with the owner that the license possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the insurance company is not liable for the compensation.
9. On facts, in the instant case, the appellant employer had employed the third respondent Nirmal Singh as driver in 1994. In the process of employment, he had been put to a driving test and he had been imparted training also. The accident took place only after six years of his service in PRTC as driver. In such circumstances, it cannot be said that the insured is at fault in having employed a person whose license has been proved to be fake by the insurance company before the Tribunal."
22. Further the learned counsel for petitioner also relied upon decision of our Hon'ble Supreme Court of India in Civil Appeal No.1999-2000 of 2020 in between Nirmala Kothari Vs. United India Insurance Co., Ltd., wherein the Hon'ble Supreme Court of India held at Para.11 as follows: SCCH-11 31 MVC.No.5980/2018
"11. While hiring a driver the employer is expected to verify if the driver has a driving license. If the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. If the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving license there would be no breach of Section 149(2)(a)(ii) and the Insurance Company would be liable under the policy. It would be unreasonable to place such a high onus on the insured to make enquiries with RTOs all over the country to ascertain the veracity of the driving license. However, if the Insurance Company is able to prove that the owner/insured was aware or had notice that the license was fake or invalid and still permitted the person to drive, the insurance company would no longer continue to be liable."
23. Further the learned counsel for petitioner relied upon decision of our Hon'ble High Court of Karnataka in MFA.No.7227/17 C/w. MFA.No.7285/17 in between Legal Manager, IFFICO Tokio GIC Ltd., Vs. Smt.Nagendram Lachi and others, wherein the Hon'ble High Court of Karnataka held at Para.33 as follows:
"33. On analyzing he entire oral and documentary evidence placed on record, we are of the view that the owner of the lorry has placed cogent evidence to show that he has nto committed breach of policy conditions. There is no satisfactory evidence to prove the contentions of the insurance company that the driving license possessed by the driver of the tipper lorry was a fake licence as such there was a breach of policy conditions. There are no valid grounds to interfere with the findings given by the tribunal in SCCH-11 32 MVC.No.5980/2018 fastening the liability on the insurer of the vehicle."
With due respect to the Hon'ble Supreme Court of India and Hon'ble High Court of Karnataka, I have carefully perused the above reported judgment. The ratio and dictum laid down by the Hon'ble Supreme Court of India and Hon'ble High Court of Karnataka is aptly applicable to the case on hand. Case on hand, except producing Ex.R.4 no other documents or evidence placed before the tribunal to show that the owner of vehicle knowingly appointed the driver is does not possess valid driving license to drive such class of vehicle. So, under such circumstances, it is just and proper to direct the insurance company to pay compensation to the petitioner and recovery the same from the owner of vehicle. Hence, Issue No.2 answered Partly in the Affirmative.
24. Issue No.3: In view of the findings given on the above said issues, I proceed to pass the following: SCCH-11 33 MVC.No.5980/2018
ORDER The claim petition filed by the petitioner Under Section 166 of Motor Vehicles Act is hereby partly allowed with cost.
The petitioner is entitled for compensation amount of ₹.10,89,040/- (Rupees Ten Lakhs Eighty Nine Thousand Forty Only) with interest at 6% p.a., from the date of petition till realization. (future medical expenses shall not carry any interest) Respondent No.2 owner of Crane is liable to pay the compensation to the petitioner. Respondent No.1 being the insurer is primarily liable to deposit the said compensation amount within a period of two months from the date of award and he is at liberty to recover the same from the respondent No.2 owner of the crane in due process of law.
In the event of deposit of the said compensation amount, 40% shall be deposited in the name of petitioner for a period of 3 years in any nationalized bank or scheduled bank and the remaining 60% shall be released in favour of petitioner on proper identification.
After deposit of compensation amount with interest SCCH-11 34 MVC.No.5980/2018 thereon disburse amount as mentioned above as per guidelines laid down by Hon'ble High Court in MFA.No.2509/2019 (ECA) and as per General Circular No.2/2019 dated 19.8.2019.
The petitioner hereby directed to produce particulars of his Bank Account, with name of Bank, IFSC Code, Account Number with copy of First Page of Bank Pass Book which contained compulsorily photographs of petitioner, which is duly attested by concerned Bank. Further petitioner shall produce PAN Card/Aadhaar Card.
In case of deposit of awarded amount with interest thereon by respondent, the petitioner is entitled to receive amount as mentioned above after expiry of period provided for filing an appeal.
Bank shall not advance loan on such FD, and shall not cause premature release of FD without permission from the Tribunal.
Bank shall release amount along with interest thereon in favor of petitioner on proper verification and identification or credit said amount to his account after expiry of three years period of deposit, without waiting for further order of court.SCCH-11 35 MVC.No.5980/2018
The Advocate fee is fixed at ₹.1,000/-.
Draw up award accordingly.
(Dictated to the stenographer over computer, corrected and pronounced by me in open court on this 19th day of November, 2022.) (D.RAGHAVENDRA) I ADDL.SMALL CAUSES JUDGE & ACMM ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONERS:
PW.1 - Sri.Laik Khan @ Mohammed Laik
PW.2 - Dr. Krishna Prasad
DOCUMENTS MARKED FOR PETITIONERS:
Ex.P1 FIR
Ex.P2 Complaint
Ex.P3 Wound Certificate
Ex.P4 Mahazar
Ex.P5 IMV report
Ex.P6 Charge sheet
Ex.P7 Discharge summary
Ex.P8 Notarized copy of Aadhaar card
SCCH-11 36 MVC.No.5980/2018
Ex.P9 16 Medical bills for Rs.2,22,240/-
Ex.P10 15 Prescriptions
Ex.P11 Inpatient file
Ex.P12 & 13 Out patient file
Ex.P14 X-rays
Ex.P15 7 X-rays with consent
LIST OF WITNESSES ON BEHALF OF RESPONDENTS :
RW.1 Sri.Himendra Kartanti Simha.M.N LIST OF DOCUMENTS ON BEHALF OF RESPONDENTS :
Ex.R.1 Authorization letter
Ex.R.2 Copy of insurance policy
Ex.R.3 Copy of Application
Ex.R.4 Reply to Application
(D.RAGHAVENDRA)
I ADDL.SMALL CAUSES JUDGE & ACMM
BENGALURU