Bangalore District Court
Smt.Jayanthi vs S.M.Ramaswamy on 19 February, 2015
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 19th day of February 2015
M.V.C.No.1557/2013
Petitioners 1. Smt.Jayanthi,
Wife of Late B.Prabhu,
Aged about 35 years,
2. Kumari P.Swomya,
Daughter of Late B.Prab hu,
Aged about 18 years,
3. Kumari P.Megha,
Daughter of Late B.Prabhu,
Aged about 14 years,
Minor,
Represented by her mother and
Natural guardian Smt.Jayanthi,
All are residing at Door No.693,
7th A Main, BDA Quarters,
Dommalur, Bengaluru.
(Shri Deepak D.C., Advocate)
Vs.
Respondents 1. S.M.Ramaswamy,
Son of Late Mannaraiah,
Aged about 59 years,
(Shri D.Harish Kumar and Associates)
2. Ramprasad,
Son of Ramaswamy M.,
Aged about 26 years,
Both respondent Nos. 1 & 2 are
2 SCCH-8 MVC 1557/2013
residing at 625, 1st B Main road, Behind
Gayathri Nursing Home, 7th Block
Jayanagara, Bengaluru.
(Shri D.Harish Kumar and Associates)
3. The Oriental Insurance Company
Limited having its Divisional Office at
No.822, DVG Road, V.C.Plaza,
Basavanagudi,
Bengaluru-560 004.
(Insurance policy
No.421800/31/2011/3074)
Vehicle No.KA-05-D-1794,
Period of Insurance: From 29.7.2010 to
28.7.2011.
(Sri Adarsh Gangal, Advocate)
JUDGMENT
This is a claim petition filed by the petitioners against the respondents under Section 166 of Motor Vehicles Act, 1989, for seeking compensation of Rs.45,00,000/- for the death of Sri Prabhu B, Son of Late Basavaiah in a road traffic accident.
2. The brief facts of petition are as under;
The petitioners said to be the legal heirs of the deceased B.Prabhu in their claim petition, were alleged that, on 7.6.2011 at about 1.30 p.m. he was traveling back from Shimogga to Bengaluru in connection with his work along with all the filming equipments in a hired goods vehicle i.e., TATA ACE bearing registration No.KA-01-D-1794 driven by its diver, the first 3 SCCH-8 MVC 1557/2013 respondent as he was travelling in the said vehicle as a care taker representative, loader and unloader of the goods i.e., cinema lighting materials with the first respondent and they were only two persons in the said vehicle. The first respondent being the driver has drove the said vehicle in a rash and negligent manner on National Highway 206, when the said vehicle was reached near Doddaguni lake, Gubbi Taluk, the driver has dashed to the road divider, as a result, Prabhu has sustained multiple grievous injuries. So, immediately he was taken to Gubbi hospital and later on he was shifted to Vijaya Hospital, Bengaluru through ambulance, but the doctor has declared him as dead, on the way to the hospital. Thereafter the dead body was sent to Victoria hospital for post mortem, after post mortem the dead body was handing over to them and they performed funeral rites by spending huge amount.
3. Prior to the accident he was hale and healthy, very hard worker and has assisted several directors for shooting films and he was special set of skills in determining and adjusting the quality and quantity of light required to film specific scenes. So, he was getting remuneration of Rs.35,000/- per month and he was contributing the entire amount to the family. Due to the 4 SCCH-8 MVC 1557/2013 death of Prabhu they were put to great mental agony and trauma as the daughters were still very young and are yet to come to terms with the incident and the first petitioner is unemployed and maintenance of the family has solely fallen on her shoulders. The accident in question was taken place on the rash and negligent driving of the driver of the TATA ACE. Thereby Gubbi police have registered the case against the driver of the TATA ACE in their police station Cr.No.95/2011 for the offences punishable u/s 279, 337 of IPC. The respondents 1 to 3 being the driver, owner and the insurer are jointly and severally liable to pay the compensation and prays for allow the claim petition.
4. In response of the notice, the respondents were appeared through their respective counsel and filed their written statement.
5. The respondent Nos.1 & 2 in their written statement have denied the averments made in column Nos. 1 to 19 of the claim petition and they have alleged that the petitioners are put to strict proof of the same. Further they have alleged that they have no knowledge that the petitioners are legal heirs of the deceased Prabhu, who was working as a special assistant for 5 SCCH-8 MVC 1557/2013 lighting for filming of movies under his employer and the first petitioner is the wife and the second and third petitioners are daughters and they are only surviving dependants of the deceased Prabhu and they have admitted that on 7.6.2011 Prabhu was traveling back to Shimogga in connection with all film equipments, in a hired goods vehicle bearing No.KA-05-D- 1794 driven by its driver i.e., the first respondent and the deceased was traveling in the said vehicle as a care taker, representative, loader and unloader of goods i.e., Cinema lighting materials. The vehicle which was hired by its Manager for transporting film equipments from Shimogga to Bengaluru. The Prabhu was traveling as a representative to look after the goods used for cinema. But they have denied that the accident in question was taken place on the rash and negligent driving of the first respondent and they have admitted that the first respondent who is driver, second respondent is the owner of the vehicle was involved in the accident and the third respondent who is the insurer of the offending vehicle covered under the insurance policy as the offending vehicle duly insured with the third respondent and the policy was in existence as on the date of alleged accident. So, they are not liable to pay any 6 SCCH-8 MVC 1557/2013 compensation and they have denied that the deceased was getting monthly remuneration of Rs.35,000/- and he was contributing the entire amount to the family maintenance and prays for reject the claim petition.
6. The respondent No.3 being the insurer of the offending vehicle in its written statement has alleged that the claim petition filed by the petitioner is not maintainable in law or on facts and denied that the averments made in column Nos. 1 to 20 of the claim petition and has alleged that as on the date of alleged accident the offending vehicle driver was not holding valid and effective driving license. So, he is not liable to pay any compensation and the second respondent being the owner has permitted the first respondent to drive the offending vehicle knowing fully well that the first respondent was not holding valid and effective driving license and badge to drive the said goods vehicle and there was no permit to drive the same on National Highway 206 from Shimogga to Bengaluru. But he has admitted about the issuance of the policy and he has alleged that the second respondent being the owner has violated the terms and conditions of the policy and he has denied the age, avocation and income of the deceased and further he has denied that the 7 SCCH-8 MVC 1557/2013 deceased was traveling as a co-passenger along with the first respondent and they were only two persons in the vehicle and due to the rash and negligent driving of the first respondent the accident was occurred and the deceased was sustained grievous injuries and he was taken to hospital for treatment later on deceased was succumbed due to the accidental injuries and he has denied that the deceased was only the sole bread earner for his family and the petitioners are depending on him. Further he has alleged that the deceased was travelling as an unauthorized passenger, the vehicle in question is meant for carry the goods and not passenger. So, there is violation of the terms and conditions of the policy. So he is not liable to pay any compensation and prays for reject the claim petition.
7. On the basis of the pleadings of the parties, the following issues are framed.
1. Whether the petitioners prove that deceased Prabhu B. died in a road traffic accident on 7.6.2011 at about 1.30 p.m., on Doddaguni lake, NH-206, Gubbi, Tumkur, due to the rash and negligent driving of the driver of the TATA ACE bearing registration No.KA-05- D-1794?
8 SCCH-8 MVC 1557/2013
2. Whether the petitioners are entitled for any compensation? If so, to what extent and from whom?
3. What Order or Award?
8. The petitioners in order to prove their claim petition, the petitioner No.1 has examined herself as PW1 and got marked the documents as Ex.P1 to Ex.P11 and they have not examined any witness on their behalf. The respondent No.3 has examined its administrative officer as RW1 and got marked the documents as Ex.R1 to Ex.R3. The respondent No.2 has examined himself as RW2 and got marked the documents as Ex.R4 to Ex.R8 and examined one witness on their behalf as RW3.
9. Heard arguments on both side.
10. 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
11. Issue No.1:
The petitioners are said to be the legal heirs of the deceased were approached this court on the ground that on 9 SCCH-8 MVC 1557/2013 7.6.2011 at about 1.30 p.m. the deceased was traveling in a TATA ACE bearing registration No.KA-05-D-1794 as caretaker, representative, loader and unloader of the goods driven by its driver i.e., the first respondent, but the first respondent has driven the same in a rash and negligent manner and dashed against the road divider. As a result, Prabhu has sustained multiple grievous injuries, though he was shifted to hospital for treatment, but he was succumbed due to the accidental injuries.
Thereby, the petitioners are said to be the legal heirs and dependants of the deceased were filed the instant claim petition against the respondents.
12. The petitioners in order to prove their claim petition, the petitioner No.1 has filed her affidavit as her chief- examination as PW1, in which she has stated that on 7.6.2013 at about 1.30 p.m. her husband B.Prabhu was traveling in a TATA Ace bearing registration No.KA-05-D-1794 from Shimogga to Bengaluru by taking film equipments, in a hired goods vehicle i.e., the offending vehicle. The first respondent being the driver of the said vehicle has drove the same in a rash and negligent manner and dashed against the road divider. As a result, her 10 SCCH-8 MVC 1557/2013 husband has sustained grievous injuries. So, immediately he was taken to Gubbi Hospital for emergency treatment and later on he was shifted to Vijaya hospital, Bengaluru, but her husband was died on 8.6.2011 at about 1.30 p.m. while undergoing treatment as an inpatient due to the multiple injuries sustained by him in a road traffic accident. So, after post mortem they shifted the dead body for funeral and obsequies and they performed the funeral and obsequies by spending huge amount. The accident in question was taken place on the rash and negligent driving of the driver of the TATA ACE bearing registration No.KA-05-D-1794. Thereby, Gubbi Police have registered the case against the car driver in their police station crime No.95/2011 for the offences punishable u/s 279 and 337 of IPC. So, later on they filed the charge sheet against the offending vehicle driver for the offences punishable U/s 279 and 304(A) of IPC. The PW1 in her cross examination has admitted that vehicle which was carrying film equipments in which vehicle the deceased was traveling not belongs to him and as on the date of alleged accident her husband was working as a lighting assistant and she has admitted that at the time of accident he was traveling from Shimogga towards Bengaluru. 11 SCCH-8 MVC 1557/2013
13. RW2 who is the second respondent in his evidence has stated that as on the date of alleged accident the victim Prabhu was traveling as authorized caretaker representative, loader and unloader of goods i.e., Cinema lighting materials in his goods vehicle. Due to the accident his vehicle has been damaged. So, he has approached the respondent No.3 for seeking compensation for damages and respondent No.3 has settled his claim and as on the date of alleged accident the first respondent was holding valid and effective driving license. The learned counsel for the respondent No.3 has cross-examined the RW2 in which has admitted that his father was holding driving license for non-transport vehicle and he has admitted that as on the date of alleged accident the deceased was traveling as a loader and unloader of the equipments which was loading in the said vehicle and he has denied that the deceased was tarvelling in the said vehicle which is against to the terms and conditions of the policy.
14. The RW3 in his evidence has stated that on 7.6.2011 himself and one Prabhu who are operating film lighting equipments and camera and they were loading the lighting equipments in a TATA ACE bearing registration No.KA-05-D- 12 SCCH-8 MVC 1557/2013 1794, thereafter he was sent Prabhu as a caretaker and for loading and unloading the equipments. The RW3 in his cross examination has denied that as on the date of alleged accident the deceased was not traveling as a care taker representative, loader and unloader of goods and he has shifted the vehicle by taking another vehicle from the accident spot.
15. The petitioners in support of the oral evidence they have produced the documents marked as Ex.P1 to Ex.P11. Ex.P2 is the information filed by one Sudhir, in which he has stated that on 7.6.2011, he was proceeding towards Bengaluru in his car when he was reached near Doddaguni lake at about 1.30 p.m. one TATA ACE vehicle was passing in front of his car, the driver of the said vehicle has driven the same in a rash and negligent manner and dashed against the road divider. So, immediately he rushed to the spot and noticed that the driver of the said vehicle was get down and ran away from the spot. So, immediately he was shifted the deceased as he was sustained grievous injuries through 108 ambulance to the Gubbi hospital. So thereafter, he was shifted the deceased to Vijaya hospital, Bengaluru. So based on the information Gubbi police have registered the case against the TATA ACE driver in their Cr.No.95/2011 for the 13 SCCH-8 MVC 1557/2013 offences punishable u/s 279 and 337 of IPC. Though the respondents were cross-examined the PW1 nothing is elicited to disbelieve her evidence that the accident in question was not taken place on the rash and negligent driving of the offending vehicle driver. So one thing is clear that the accident in question was taken place on the rash and negligent driving of the offending vehicle driver. That is the reason why the Prabhu who being the care taker and representative of the RW3 has sustained injuries and succumbed due to the accidental injuries. Ex.P3 is the statement which was recorded by the I.O. clearly reflects that the first petitioner has given the statement before the police in which she has stated about the death of her husband in a road a traffic accident. Ex.P4 and Ex.P5 are the panchanama and sketch clearly reflects that the driver of the offending vehicle has driven the same in a rash and negligent manner and dashed against the road divider. As a result the accident was occurred. Ex.P6 and Ex.P9 are P.M. report and Inquest panchanama are clearly reflects that the Prabhu was met with an accident and sustained grievous injuries and succumbed due to the accidental injuries. Ex.P11 is the motor vehicle report clearly reflects that the driver of the offending vehicle has drove 14 SCCH-8 MVC 1557/2013 the vehicle in a rash and negligent manner. So the documents marked as Ex.P1 to Ex.P11 are coupled with the oral evidence of PW1. though the respondents have cross-examined the PW1 but nothing is elicited to disbelieve her evidence, on the other hand the petitioners have proved their case through oral and documentary evidence that the driver of the offending vehicle has drove the same in a rash and negligent manner and dashed against the road divider, as a result the Prabhu succumbed due to the accidental injuries. Hence, I am of the opinion that the issue No.1 is answered as affirmative.
16. Issue No.2:
The PW1 being said to be the wife of the deceased in her evidence has stated that prior to the accident her husband was hale and healthy, at the time of his death he was aged about 44 years, working as Senior Assistant for Lighting, Karnataka Film Workers Artists Technicians Federation by getting monthly salary of Rs.35,000/- and he was having good experience, earning capacity higher amount in his life. Due to untimely death of her husband, they were suffering untold hardship, they lost the love and affection. PW1 in her cross-examination has denied that her 15 SCCH-8 MVC 1557/2013 husband was not working as a lighting artist technician and getting monthly salary of Rs.35,000/- and she has admitted that the equipments which are in the offending vehicle are not belongs to the deceased and she has expressed her inability to produce the documents before the court to show that her husband was getting monthly salary of Rs.35,000/- and she has denied that Film Chamber has paid compensation. So one thing is clear that the petitioners have not produced any documents to show that the deceased was working as a special assistant for lighting and getting monthly salary of Rs.35,000/-. Even they have not examined any independent witness under whom he was working as a special assistant for lighting. In the absence of the materials on record nor independent evidence it is very difficult to believe the income of the petitioner as alleged in the claim petition. Ex.P6 is the P.M. report clearly reflects that as on the date of alleged accident the deceased age was 45 years. Ex.P9 is clear that the Prabhu was met with an accident and succumbed due to the accidental injuries and the petitioners who are none other than his legal heirs. Ex.P10 is the ration card clearly reflects that the petitioner No.1 is the wife of the deceased and the petitioner Nos. 2 & 3 are none other than the 16 SCCH-8 MVC 1557/2013 daughters of the deceased and the first petitioner. Though the learned counsel for the respondents have cross-examined the PW1, nothing is much disputed about the relationship of the petitioners with the deceased. The petitioners have claimed in their claim petition as the age of the deceased was 44 years as on the date of the alleged accident. But medical records reflects that as on the date of alleged accident the deceased age was 45 years. So, deceased age is taken into consideration as 45 years as on the date of the alleged accident.
17. The RW3 who is clearly stated that the deceased was working as a Special Assistant for lighting for at Karnataka Film Workers Artists Technicians Federation by getting remuneration of Rs.35,000/-. But the petitioners have not produced any documents to show the income of the deceased as claimed in the claim petition. So considering the skill of the deceased and the present life condition it is just and necessary to consider the notional monthly income of Rs.7,000/- it will meet the ends of justice.
18. The learned counsel for the petitioners while canvassing his arguments has submitted that by virtue of 17 SCCH-8 MVC 1557/2013 Sarlaverma case reported in 2009 ACJ 1298 the future prospects adopted for the persons with permanent jobs only, but by virtue of Rajesh and others Vs. Rajabir Singh and Others, the Hon'ble Supreme Court has held by virtue of Sarla Verma's case, 2009 ACJ 1298 (SC), the future prospects adopted for persons with permanent jobs, may also be applied to the persons who are self employed or were engaged on fixed wages and requested the court to apply the principles of the Rajesh and others Vs. Rajabir Singh and Others to consider the future prospects of the deceased while considering the loss of dependency and drawn the court attention on the decision reported in 2013 ACJ 1403 in between the Rajesh and others Vs. Rajabir Singh and Others reads like thus;
Quantum - Fatal accident - Principles of assessment - Future prospects - Whether formula for increase of income for future prospects adopted for persons with permanent jobs in Sarla Verma's case, 2009 ACJ 1298 (SC), may also be applied to the persons who are self employed or were engaged on fixed wages - Held: yes; 50 per cent of actual income (after deduction of tax) for persons below 40 years; 30 per cent for age group 18 SCCH-8 MVC 1557/2013 of 40-50 years; 15 per cent for age group of 50-60 years; but no addition thereafter.
19. On careful perusal of the above said decision, in the said decision their lordship held that by virtue of Sarla Verma's case, 2009 ACJ 1298 (SC), the future prospects adopted for persons with permanent jobs, may also be applied to the persons who are self employed or were engaged on fixed wages. 50 per cent of actual income (after deduction of tax) for persons below 40 years; 30 per cent for age group of 40-50 years; 15 per cent for age group of 50-60 years; but no addition thereafter.
20.In the instant case the deceased was died in a road traffic accident when his age was 45 years and the decision as stated above is clear that the Tribunal has to consider about future prospects even self-employed or were engaged on fixed wages. So the deceased falls in the age group of above 40 years. So, if 30% of the future prospects is taken into consideration it comes to Rs.7,000/- + 2,100 (30%) = Rs.9,100/-. Then annual income comes to Rs.1,09,200/-.
21. So by virtue of decision reported in 2009 ACJ 1298 in between Sarla Verma and others Vs. Delhi Transport Corporation and another, the personal deduction of the 19 SCCH-8 MVC 1557/2013 deceased where the member of the dependant family members is 2 to 3, 1/3rd has to be deducted towards personal and living expenses of the deceased. In the instant case the petitioners 1 to 3 are none other than the wife, and daughters of the deceased. So, the personal and living expenses of the deceased is deducted as 1/3rd out of the yearly income of Rs.1,09,200/- it comes to Rs.72,800/-. As per Sarlaverma Vs. Delhi Transportation Corporation Ltd., the multiplier applicable to the deceased is 14. So, Rs.72,800X14=Rs.10,19,200/- towards loss of dependency. So, the petitioners are entitled for the said amount towards loss of dependency.
22. The petitioner No.1 is none other than the wife of the deceased, so Rs.10,000/- is awarded towards loss of consortium and the petitioner Nos.1 to 3 are none other than the wife and children of the deceased, so Rs.30,000/- is awarded towards loss of love and affection. Rs.10,000/- is awarded towards loss of estate and Rs.20,000/- is awarded towards transportation of dead body and funeral and obsequies.
23. Thus the total award stands as follows:
1.Loss of dependency Rs.10,19,200-00
2.Loss of consortium Rs. 10,000-00 20 SCCH-8 MVC 1557/2013
3.Loss of love and affection Rs. 30,000-00
4.Loss of estate Rs. 10,000-00
5.Transportation of dead body and Rs. 20,000-00 funeral expenses Total Rs.10,89,200-00
24. The respondent No.3 being the insurer of the offending vehicle in its written statement has taken up the contention that the deceased was traveling as an unauthorized passenger. So, the third respondent is not liable to pay any compensation. But the respondent No.3 has admitted about the issuance of the policy infavour of the second respondent in respect of the offending vehicle.
25.The learned counsel for the respondent No.3 while canvassing his arguments has submitted that the petitioners have utterly failed to prove that as on the date of alleged accident the deceased was traveling in the offending vehicle as caretaker, representative, loader and unloader. But the learned counsel for the respondent No.3 while cross examination of the PW1 has suggested that materials which was carrying by the offending vehicle are not belongs to the deceased, for which she has admitted the same. So, one thing is clear that as on the date of alleged accident the deceased was traveling in the 21 SCCH-8 MVC 1557/2013 offending vehicle along with Cinema Lighting materials as the offending vehicle was hired by the film shooting unit by transporting film equipments from Shimogga to Bengaluru. So, one thing is clear that as on the date of alleged accident the deceased was traveling in the offending vehicle as care taker, representative, loader and unloader of the goods, due to the negligent driving of the offending vehicle driver the accident was occurred and he was sustained grievous injuries and succumbed due to the accidental injuries.
26.The learned counsel for the respondent No.3 while canvassing his arguments has submitted that the third respondent is not liable to pay any compensation to the petitioners as the deceased was traveling in the offending vehicle as unauthorized passenger and drawn the court attention on the decision of Hon'ble High Court of Gujarath passed in MAC Appeal No.38/2010. In the said decision the claimant mother was met with an accident, so he claimed the compensation before the Tribunal u/s 163(A) of the M.V. Act, claiming compensation for the death of his mother. On receipt of the notice the insurance company has appeared and filed the written 22 SCCH-8 MVC 1557/2013 statement and the said claim petition was came to be allowed by awarding the compensation and directing insurance company to satisfy the said award and to recover it from the owner subsequently. So, the insurance company has challenged the said order before the Appellate court, the said appeal was came to be disposed by remanding the case to the Tribunal to decide in afresh by affording the opportunity. Thereafter the insurance company has filed the additional written statement and the Tribunal has passed the judgement and award the compensation of Rs.2,97,833/- directed the Insurance Company to satisfy the said award with interest at 9% p.a. u/s 171 of the Act till final realisation by holding that there is a contract of insurance between the Insurance Company and the owner of the offending vehicle covering the risk of the owner in respect of the person carried in the commercial vehicle. Thereby the Insurance Company has filed the appeal before the Hon'ble High Court of Gujarath and the said appeal was came to be allowed and holding that the deceased was non fare paying passenger in respect of the goods carrying vehicle and he was neither an employee nor the owner or representative of the owner of the goods or charterer or representative of charterer of the vehicle 23 SCCH-8 MVC 1557/2013 or a person directly connected with the journey in one form or the other as stipulated in IMT-13.
27.In the instant case it is the case of the petitioners that as on the date of the alleged accident the deceased was a care taker, representative, loader and unloader of the goods, as the PW3 in his evidence has clearly stated that they took the offending vehicle for hire for transporting of the lighting equipments from Bengaluru to Shimogga and Shimogga to Bengaluru as on the date of the alleged accident they were loading the lighting equipments in the said offending vehicle and the deceased was travelling in the said vehicle as caretaker, representative, loader and unloader. So, his evidence clearly reflects that the deceased was traveling in the said vehicle as a caretaker, representative, loader and unloader. Therefore, I do respect to the decision relied by the respondent No.3, but the facts and circumstances of the above case and the present case are entirely different.
28.The learned counsel for the respondent Nos. 1 & 2 while canvassing his arguments has submitted that as on the date of alleged accident the deceased was traveling in the offending 24 SCCH-8 MVC 1557/2013 vehicle as a caretaker, representative loader and unloader. The driver of the offending vehicle has drove the same in a rash and negligent manner and hit the road divider, as a result Prabhu was sustained grievous injuries and succumbed due to the accidental injuries. As on the date of alleged accident the policy was in existence, the offending vehicle driver was holding valid and effective driving license. So, the respondent No.3 is liable to pay the compensation. The said counsel has drawn the court attention on the decision reported in 2014 ACJ 2873, which reads like thus;
Motor Vehicles Act, 1988, section 149 (2)
(a)(ii)---Motor insurance--Driving license--- Liability of insurance company--pay and recover order---Insurance company disputes its liability on the ground that driver had license to drive light motor vehicle but he was driving a goods vehicle---Tribunal mulcted liability on the insurance company on the ground that offending vehicle was 'light goods vehicle' and the driver had a valid driving license---High Court observed that 'light motor vehicle' cannot be equated with ' light goods vehicle', there was breach of policy as driver did not 25 SCCH-8 MVC 1557/2013 have valid and effective driving license and granted recovery rights to insurance company---Whether a person holding driving license to drive 'light motor vehicle' was authorized to drive 'light goods vehicle' and there was no breach of insurance policy---Held:
yes' order of High Court set aside and Tribunal's order restored.
29.In the above said decision the dependants of the deceased Rizwan have filed the claim petition and sought for compensation. The insurance company has took up the contention that the driver was holding license to drive 'light motor vehicle', the vehicle involved in the accident is 'light goods vehicle'. So, insurance company is not liable to pay the compensation. But the Tribunal held that the death was on account of negligence of the driver of the offending tempo, so the claimants were entitled for compensation as the vehicle was insured with the insurance company and the driver was holding valid driving license. So, the insurance company has preferred an appeal before the Hon'ble High Court and the Hon'ble High Court held that the driving license of the driver was for driving 'light motor vehicle' in no manner can be said that a light motor 26 SCCH-8 MVC 1557/2013 vehicle can be equated with a light goods vehicle. So, there is a breach of policy conditions as the driver was not holding valid and effective driving license. So, recovery rights would have been granted by the Tribunal against the owner. So, award was modified for recovery of rights infavour of the insurance company. So, aggrieved by the judgement of the Hon'ble High Court, the owner has filed the appeal before the Hon'ble Supreme Court, the Hon'ble Supreme Court held where the person holding driving license to drive light motor vehicle was authorized to drive the light goods vehicle and there was no breach of insurance policy. Held: yes. So, the order of the Hon'ble High Court was came to be set aside and the Tribunal was restored.
30.In the instant case also the RW1 being the administrative officer of the respondent No.3 in her cross- examination has admitted that the driver is holding valid and effective driving license to drive the light motor transport goods vehicle. But he was not holding badge and the vehicle involved in the accident is goods vehicle and Ex.R3 is also clear that the offending vehicle driver was holding driving license to driver the 27 SCCH-8 MVC 1557/2013 transport goods vehicle. Therefore, decision as stated above is directly applicable to the case on hand.
31.The learned counsel for the respondent Nos.1 & 2 has drawn the court attention on the decision reported in 2008 ACJH 886, which reads like thus;
Motor Vehicles Act, 1988, section1 47 (1)
(b)(i) as amended in 1994) ---Motor insurance
-----Goods vehicle--Passenger risk--Liability of insurance company---Passengers traveling in truck along with their goods sustained injuries when the vehicle turned turtle due to its rash and negligent driving -Whether the insurance company is liable -Held: yes.
32.In the above said decision the petitioner being the injured have filed the claim petition before the Tribunal and the Tribunal has granted the compensation. So, the insurance company has filed the appeal before the Hon'ble High Court on the ground that the claimants were traveling in the truck. So, these passengers risk is not covered in policy, the insurance company is not liable to pay any compensation. So carrying of passengers it amounts to breach of conditions of the policy. But 28 SCCH-8 MVC 1557/2013 their relationship held that the passengers traveling in the truck along with their goods sustained injuries when the vehicle turned trutled due to its rash and negligent driving of the driver of the truck. So, the insurance company is liable to pay the compensation.
33.In the instant case, it is the specific case of the petitioners that as on the date of alleged accident the deceased was traveling in the offending vehicle as a care taker, representative, loader and unloader. Therefore, the decision as relied by the learned counsel for the respondent Nos. 1 & 2 is directly applicable to the case on hand.
34.The learned counsel for the third respondent has much argued that the offending vehicle driver was holding valid and effective driving license to drive the light motor vehicle (transport) goods vehicle), but he was not holding badge to drive the offending vehicle. Thereby the insurance company is not liable to pay any compensation. Therefore, this court has drawn its attention on S. 149(2)(a) reads like thus; 29 SCCH-8 MVC 1557/2013
(2)No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely :-
(i) a condition excluding the use of the vehicle -
(a) for hire or reward, where the vehicle is on the date of the contract of 30 SCCH-8 MVC 1557/2013 insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organised racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or
(d) without side-car being attached where the vehicle is a motor cycle; or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or
(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular. 31 SCCH-8 MVC 1557/2013 32 SCCH-8 MVC 1557/2013
35. On careful perusal of the above provision, it is clear that no sum shall be payable by an insurer u/s (1) in respect of any judgement or award where the driver of the offending vehicle was not holding valid and effective driving license or if owner entrusted the vehicle to the person who was not holding valid and effective driving license, but in which nowhere appears that the insurance company is not liable to pay any compensation if the driver was holding driving license without badge. But the provision appears that if the driver though he was holding license, if not holding badge, the insurance company is not liable to pay any compensation. So, one thing is clear that as on the date of alleged accident, the offending vehicle was holding valid and effective driving license. Therefore, the respondent No.3 being the insurer is liable to pay the compensation, he cannot escape from its liability only on the ground that the offending vehicle driver was not holding badge as on the date of alleged accident since the insurance company cannot take plea behind the scope of 149 of M.V. Act 1989. Therefore, one thing is clear from the oral and documentary evidence on record that as on the date of alleged accident the driver of the offending vehicle was holding valid and effective driving license. The respondent No.3 33 SCCH-8 MVC 1557/2013 being the insurer in its written statement has admitted about the issuance of the policy. Ex.R2 is the policy copy clearly reflects that the period of policy from 29.7.2010 to 28.7.2011. The accident was occurred on 7.6.2011. So, as on the date of alleged accident the policy was in existence. Therefore, claim petition against the respondent No.1, who is the driver of the offending vehicle is deserves to be dismissed. The respondent Nos. 2 & 3 being the owner and the insurer are jointly and severally liable to pay the compensation. In view of the valid insurance policy the respondent No.3 alone is liable to pay the compensation to the petitioners with interest at 6% p.a. from the date of petition till its realization. In the result, the issue No.2 is answered as partly in the affirmative.
36. 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 petitioners under section 166 of M.V. Act as against the respondent No1 is hereby dismissed.
The petition filed by the petitioners u/s 166 of the M.V. Act as against the respondent Nos. 2 & 3 is partly allowed, with 34 SCCH-8 MVC 1557/2013 costs. The petitioners are entitled for compensation of Rs.10,89,200/- together with interest at the rate of 6% p.a. from the date of the claim petition till its realisation.
The respondent Nos.2 & 3 are jointly and severally liable to pay the compensation. In view of the valid insurance policy the respondent No.3 being the insurer shall pay the compensation amount with interest at the rate of 6% 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, 50% is allotted to the share of petitioner No.1 and 25% each is allotted to the share of petitioner Nos.2 & 3 by way of apportionment of compensation amount.
Out of the share amount of petitioner No.1, 40% of the amount shall be deposited in her name in any nationalised or scheduled bank of her choice for a period of three years and the remaining 60% shall be released to her by means of a/c payee cheque on proper identification. However, she is at liberty to withdraw the periodical interest accrued on her deposit amount from time to time.
35 SCCH-8 MVC 1557/2013
Out of the share amount of petitioner No.2, 50% of the amount shall be deposited in her name in any nationalised or scheduled bank of her choice for a period of three years and the remaining 50% shall be released to her by means of a/c payee cheque on proper identification. However, she is at liberty to withdraw the periodical interest accrued on her deposit amount from time to time.
Out of the share amount of petitioner No.3 being the minor entire amount shall be deposited in any nationalised or scheduled bank till attaining her age of majority. However, the petitioner No.1 being the natural guardian of the petitioner No.3 is at liberty to withdraw periodical interest accrued on their deposit. After attaining her age of majority the entire amount shall be released to her without any further proceedings.
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 19 th day of February 2015.
36 SCCH-8 MVC 1557/2013
(P.J.Somashekar), XII Addl. Judge-Member, MACT, Bangalore.
ANNEXURE List of the witnesses examined on behalf of petitioners:
PW1 Smt.Jayanthi 2.6.2014 List of the documents exhibited on behalf of petitioners:
Ex.P1 True copy of FIR Ex.P2 True copy of Complaint Ex.P3 Statement of witness Ex.P4 True copy of Panchanama Ex.P5 True copy of sketch Ex.P6 True copy of PM report Ex.P7 Death certificate Ex.P8 True copy of Charge sheet Ex.P9 True copy of inquest mahazar Ex.P10 Notarised attested true copy of Ration card Ex.P11 True copy of the IMV report
List of the witnesses examined on behalf of respondents:
RW1 Smt.P.Parimala 26.11.2014 RW2 Shri Ramprasad 23.12.2014 RW3 Shri Devendra 17.1.2015
List of the documents marked on behalf of respondents:
Ex.R1 Authorisation letter Ex.R2 Policy copy Ex.R3 History of driving license extract 37 SCCH-8 MVC 1557/2013 Ex.R4 Original cash bill book Ex.R5 Own damage claim form Ex.R6 Driving license Ex.R7 Policy copy Ex.R8 Receipt (P.J. Somashekar), XII Addl. Judge-Member, MACT, Bangalore. 38 SCCH-8 MVC 1557/2013
Judgment pronounced in open court (vide separate judgment) with the following operative portion:
The petition filed by the petitioners under section 166 of M.V. Act as against the respondent No1 is hereby dismissed.
The petition filed by the petitioners u/s 166 of the M.V. Act as against the respondent Nos. 2 & 3 is partly allowed, with costs. The petitioners are entitled for compensation of Rs.10,89,200/- together with interest at the rate of 6% p.a. from the date of the claim petition till its realisation.
The respondent Nos.2 & 3 are jointly and severally liable to pay the compensation. In view of the valid insurance policy the respondent No.3 being the insurer shall pay the compensation amount with interest at the rate of 6% 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, 50% is allotted to the share of petitioner No.1 and 25% 39 SCCH-8 MVC 1557/2013 each is allotted to the share of petitioner Nos.2 & 3 by way of apportionment of compensation amount.
Out of the share amount of petitioner No.1, 40% of the amount shall be deposited in her name in any nationalised or scheduled bank of her choice for a period of three years and the remaining 60% shall be released to her by means of a/c payee cheque on proper identification. However, she is at liberty to withdraw the periodical interest accrued on her deposit amount from time to time.
Out of the share amount of petitioner No.2, 50% of the amount shall be deposited in her name in any nationalised or scheduled bank of her choice for a period of three years and the remaining 50% shall be released to her by means of a/c payee cheque on proper identification. However, she is at liberty to withdraw the periodical interest accrued on her deposit amount from time to time.
Out of the share amount of petitioner No.3 being the minor entire amount shall be deposited in any nationalised or scheduled bank till attaining her age of majority. However, the petitioner No.1 being the natural guardian of the petitioner No.3 is at liberty to withdraw periodical interest accrued on their deposit. After attaining her age of majority the entire amount shall be released to her without any further proceedings.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
XII Addl. Judge-Member, MACT, Bangalore.
40 SCCH-8 MVC 1557/2013AWARD BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL BANGALORE METROPOLIS M.V.C.No.1557/2013 Petitioners 1. Smt.Jayanthi, Wife of Late B.Prabhu, Aged about 35 years,
2. Kumari P.Swomya, Daughter of Late B.Prabhu, Aged about 18 years,
3. Kumari P.Megha, Daughter of Late B.Prabhu, Aged about 14 years, Minor, Represented by her mother and Natural guardian Smt.Jayanthi, All are residing at Door No.693, 7th A Main, BDA Quarters, Dommalur, Bengaluru.
(Shri Deepak D.C., Advocate) Vs. Respondents 1. S.M.Ramaswamy, Son of Late Mannaraiah, Aged about 59 years, (Shri D.Harish Kumar and Associates)
2. Ramprasad, Son of Ramaswamy M., Aged about 26 years, Both respondent Nos. 1 & 2 are residing at 625, 1st B Main road, Behind Gayathri Nursing Home, 7th Block Jayanagara, Bengaluru.
(Shri D.Harish Kumar and Associates)
3. The Oriental Insurance Company Limited having its Divisional Office at 41 SCCH-8 MVC 1557/2013 No.822, DVG Road, V.C.Plaza, Basavanagudi, Bengaluru-560 004.
(Insurance policy No.421800/31/2011/3074) Vehicle No.KA-05-D-1794, Period of Insurance: From 29.7.2010 to 28.7.2011.
(Sri Adarsh Gangal, Advocate) WHEREAS, this petition filed on by the petitioner above named under Section 166 of the M.V.Act, 1988, praying for compensation of Rs.
for the injuries sustained by the petitioner in a motor accident caused by a vehicle bearing No. WHEREAS, this claim petition coming up before Shri P.J.Somashekar, XII Addl.Judge, Member, MACT, Bangalore, in the presence of Shri advocate for the petitioner and of Shri , Advocate for respondent.
The claim petition is decreed as under:
The petition filed by the petitioners under section 166 of M.V. Act as against the respondent No1 is hereby dismissed.
The petition filed by the petitioners u/s 166 of the M.V. Act as against the respondent Nos. 2 & 3 is partly allowed, with costs. The petitioners are entitled for compensation of Rs.10,89,200/- together with interest at the rate of 6% p.a. from the date of the claim petition till its realisation. 42 SCCH-8 MVC 1557/2013
The respondent Nos.2 & 3 are jointly and severally liable to pay the compensation. In view of the valid insurance policy the respondent No.3 being the insurer shall pay the compensation amount with interest at the rate of 6% 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, 50% is allotted to the share of petitioner No.1 and 25% each is allotted to the share of petitioner Nos.2 & 3 by way of apportionment of compensation amount.
Out of the share amount of petitioner No.1, 40% of the amount shall be deposited in her name in any nationalised or scheduled bank of her choice for a period of three years and the remaining 60% shall be released to her by means of a/c payee cheque on proper identification. However, she is at liberty to withdraw the periodical interest accrued on her deposit amount from time to time.
Out of the share amount of petitioner No.2, 50% of the amount shall be deposited in her name in any nationalised or scheduled bank of her choice for a period of three years and the remaining 50% shall be released to her by means of a/c payee cheque on proper identification. However, she is at liberty to withdraw the periodical interest accrued on her deposit amount from time to time.
Out of the share amount of petitioner No.3 being the minor entire amount shall be deposited in any nationalised or scheduled bank till attaining her age of majority. However, the 43 SCCH-8 MVC 1557/2013 petitioner No.1 being the natural guardian of the petitioner No.3 is at liberty to withdraw periodical interest accrued on their deposit. After attaining her age of majority the entire amount shall be released to her without any further proceedings.
Advocate fee is fixed at Rs.1,000/-.
Given under my hand and seal of the Court this the day of February 2015 MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA: BANGALORE.
By the Petitioner By the
Respondent
Court fee paid on
petition
Court fee paid on Powers
Court fee paid on I.A.
Process
Pleaders Fee:
Total
Decree Drafted by: Scrutinised by:
Decree Clerk Sheristedar:
MEMBER
MOTOR ACCIDENT CLAIMS TRIBUNAL,
METROPOLITAN AREA: BANGALORE.