Bangalore District Court
Mohammad Arbaz @ Arbaz vs Kamalamma on 1 September, 2022
KABC020287162019
BEFORE THE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BENGALURU
(SCCH.13)
DATED THE 01st DAY OF SEPTEMBER 2022.
PRESENT :
SMT. DIVYASHREE.C.M., B.A.L, LL.M,
II Addl. Judge & ACMM,
Court of Small Causes,
Bengaluru.
M.V.C.No.6901 OF 2019
Petitioner: Mohammad Arbaz @ Arbaz,
S/o Mohammad Shafi,
Aged about 19 years,
R/at No.20th ward,
Near Yellammadevi Temple,
Mandibele road, Amanikere,
Vijayapura,
Bengaluru Rural District.
(By Smt. B.R. Usharani,
Advocate)
V/s
Respondents: 1. Kamalamma,
W/o Thippanna,
No.155, Bidlapura village,
Devanahalli taluk,
Bengaluru Rural District,
PIN: 562 110.
SCCH.13 2 MVC.6901/2019
(Owner of offending
vehicle)
(By NKS Associates
Advocates )
2. National Insurance Co.
Ltd., No.144, 2nd floor,
Shubharam Complex,
M.G. Road,
Bengaluru 560 001.
(By Sri B.T. Mohan, Advocate)
J U D G M E N T
This petition under section 166 of Motor vehicles Act1989 is filed by the petitioner claiming compensation of ₹20,00,000/ for the injuries sustained by him in a road traffic accident.
2. The brief facts stated in the petition as under:
It is stated that when the petitioner on on 11.10.2019 at about 9.30 a.m. he was proceeding on his motorcycle bearing Reg. No.KA03EW1049 on KolarDevanahalli Bypass road from his home towards Petrol to fill the petrol, at that time offending TractorTrailer SCCH.13 3 MVC.6901/2019 bearing No.KA12T5897 and KA43T4389 came in a rash and negligent manner without blowing horn and hit from behind. Due to which petitioner fell down and sustained grievous injuries. Immediately after the accident he was taken to Manasa hospital, Devanahalli after first aid treatment he was shifted to Bowring hospital, Bengaluru and then shifted to Victoria Hospital, wherein he took treatment as inpatient and underwent surgery. It is stated that he was studying PUC and distributing the daily newspaper and milk and also doing part time computer work and earning Rs.15,000/ per month and due to the injuries and disability he is unable to continue his studies and affected on his bright future and lost his earning capacity. As it was the negligence of the driver of the offending tractortrailer, it is requested to award compensation.
3. In response to the notice, both the respondents have appeared before the tribunal SCCH.13 4 MVC.6901/2019 through their counsels and filed their separate written statements.
4. The first respondent has denied all averments of the petition. She has denied the negligence on the part of the driver of the offending tractortrailer in causing the accident. She has contended that the compensation claimed by the petitioner is exorbitant and the petitioner is not entitled for the same. Further she has stated that her vehicle was insured with respondent No.2 and the policy is in force as on the date of accident. Hence, she is not liable to pay the compensation to the petitioner.
4. The second respondent filed its objection denying the entire petition averments. This respondent has admitted that it has issued 'Motor Miscellaneous and Special type of vehicle - Package' to the offending tractor and trailer. However, its liability is subject to terms and conditions of the policy. This respondent asserts that SCCH.13 5 MVC.6901/2019 the petitioner was a minor at the time of accident and he was driving his motorcycle without having valid DL and also not wearing helmet. Hence, the negligence is also attributable against the petitioner. Further it has also asserts that the driver of the offending tractor and trailer had no valid DL to drive the same and the driver of the offending tractortrailer had DL for driving tractor only. Therefore, this respondent is not liable to pay any compensation to the petitioner.
5. On the basis of the above pleadings, the following Issues were framed :-
1. Whether the petitioner proves that he sustained grievous injury in the road traffic accident alleged to have occurred on 11.10.2019 at about 9.30 a.m. due to rash and negligent driving of TractorTrailer bearing Reg. No.KA 43T4389 as alleged in the petition?
2. Whether the petitioner proves that he is entitled for the SCCH.13 6 MVC.6901/2019 compensation as claimed? If so, to what extent and from whom ?
3. What order or award?
6. In order to prove the claim, the petitioner is examined as PW.1, Senior Medical Record Technician is examined as PW2. The petitioner has produced 17 documents as per Ex.P1 to Ex.P17.
7. The second respondent examined its official as RW1, FDA at RTO, Devanahalli as RW.2 and produced 8 documents as per Ex.R1 to Ex.R8.
8. I have heard the counsel on both sides and have perused the material on record.
9. After perusal of entire materials on record, evidence and after hearing the arguments I have answered above Issues as under :
Issue No.1: In the Affirmative. Issue No.2: Partly in affirmative. Issue No.3: As per the final order, for the following:SCCH.13 7 MVC.6901/2019
R E A S O N S
10. ISSUE NO.1: The petitioner claims that on 11.10.2019 at about 9.30 a.m. he was proceeding on his motorcycle bearing Reg. No.KA03EW1049 on KolarDevanahalli Bypass road from his home towards Petrol to fill te petrol, at that time offending Tractor Trailer came and hit from behind. Due to which petitioner fell down and sustained grievous injuries. Petitioner says that he was going on the left side and tractor had come from behind. He alleges that the driver of the said tractor was driving in high speed and it was the negligence on the part of the driver of the offending tractor. The FIR has been registered on the basis of the statement given by the petitioner himself when he was admitted in the hospital.
11. The respondentowner objected the petition contending that the petitioner while riding motorcycle in a rash and negligent manner and while overtaking the tractor he SCCH.13 8 MVC.6901/2019 himself negligently hit the tractor and there was no negligence of driver of the offending tractor.
12. The insurance company has contended that it was the negligence of the petitioner himself as he was the minor at the time of the accident and was having no DL. It is contended that the petitioner did not know to ride the motorcycle and he himself has negligently fell down and sustained injuries.
13. In his crossexamination PW.1 has admitted that he was a minor and had no DL. He had taken the motorcycle to fill petrol to it. While returning he alleges that the tractor had hit him from behind. He denied the suggestion that he fell down after seeing the tractor since he had no DL and did not know to ride properly. Even the medical records show that the petitioner sustained injuries while he was riding twowheeler when hit by a fourwheeler. According to IMV report at Ex.P.5 rear portion of the SCCH.13 9 MVC.6901/2019 motorcycle was damaged whereas no damages were found on the tractor. It is obvious that since the tractor had hit the motorcycle, the rear portion of the motorcycle is damaged. It is argued by the respondentinsurance company since the petitioner was the minor and having no driving licence contributory negligence must be considered. Insurance company relied on the judgment of Hon'ble High Court of Karnataka in MFA No.101921/2019 dated 15.09.2021 wherein the Hon'ble High Court has considered contributory negligence of 35% towards rider of the motorcycle who was not possessing valid driving licence. In the said case the accident was head on collision and the offending vehicle had hit from the opposite direction. So far as the present case is concerned, petitioner is said to be going on the left side of the road and he was hit by a tractor from behind. Police have not prepared sketch of the spot, but it is mentioned in the spot mahazar at Ex.P.3 that the accident has occurred on the left side of SCCH.13 10 MVC.6901/2019 the road. There is led no iota of independent, cogent or reliable evidence on the part of the Insurance Company to substantiate that there was any contributory negligence on the part of claimant leading to the accident. Indeed, the petitioner has admitted that he was not holding driving licence but that alone is no conclusive evidence that he was in any way responsible for the accident. The plea of their being contributory negligence on the part of the petitioner is halfhearted and it cannot be presumed unless positive evidence is there. At the cost of repetition, insurer company has not chosen to produce the driver of the tractortrailer in the witness box or any other witness so as to substantiate such plea.
14. As the available records clearly indicates that it was the negligence on the part of the driver of the offending tractor trailer, I hold that the injuries sustained SCCH.13 11 MVC.6901/2019 by the petitioner was only due to the negligent driving of the offending tractor trailer. Hence, this Issue is answered in the Affirmative.
15. ISSUE NO.2: The petitioner states that he was aged about 19 years as on the date of accident. Due to the accident he has sustained grievous injuries. Immediately he was taken to Manasa hospital, after first aid treatment he was shifted to Bowring hospital and then shifted to Victoria hospital wherein he has taken treatment as an inpatient and underwent surgery. It is said that he sustained injuries to face, leg, head fracture of right hand, right ear cut and other parts of the body. He has produced wound certificate and case sheet in support of it. On perusal of case sheet, it shows that, petitioner has taken treatment as an inpatient at Victoria hospital, Bengaluru from 12.10.2019 to 21.10.2019 i.e., for 10 days. In this hospital, the petitioner was SCCH.13 12 MVC.6901/2019 treated with debridement and SSG done for PIRA right elbow on 15.10.2019 under GA and ear laceration suturing done under LA on 12.10.2019.
16. Though petitioner says that he is unable to write due to the injury on his right hand, no medical evidence is produced to prove that the injury has affected his education. Further the petitioner has not examined the doctor to prove the disability suffered by him. He has not proved that he lost his education and earning capacity due to disability arising out of the accidental injuries and hence the question of disability and loss of future earnings does not arise. The petitioner is not awarded any compensation under the head of loss of future earnings.
17. Petitioner has stated that he was a PUC student and also doing part time work and earning a sum of Rs.15,000/ p.m. In this connection he has not produced any documents.
SCCH.13 13 MVC.6901/2019In fact petitioner has not proved that he lost his education and income during laid up period.
18. Further the petitioner has also produced medical bills amounting to Rs.24,393/ at Ex.P13. In the cross examination, though PW1 has admitted that he has treatment at Government hospitals, but initial treatment was taken at Manasa hospital. The bills which are produced appears to be genuine and paid by the petitioner himself. Hence, the entire medical bills claimed by the petitioner is awarded.
19. Considering the medical expenses and the nature of treatment obtained by the petitioner, nature of injuries sustained by him, number of days admitted in the hospital, I deem it proper to award global compensation of Rs.1,00,000/ as the petitioner has suffered some sort of pain and had to take treatment for his injuries.
SCCH.13 14 MVC.6901/2019LIABILITY:
20. The respondentinsurance company has denied its liability on the ground that the driver of the offending vehicle was not possessing valid driving licence since the tractor was attached to the trailer at the time of accident. It is stated that the tractor will be light motor vehicle if it is not attached to the trailer. It will become transport vehicle or goods vehicle when it is attached to the trailer. Respondentinsurance company examined its official as RW.1 who deposed that the DL is for driving only tractor and not tractor cum trailer. In his crossexamination he denied the suggestion that the driver can drive the tractortrailer even when it is attached to trailer. The respondent No.2insurance company examined official from RTO, Devanahalli, Bengaluru who produced the DL extract of accused Narayanaswamy B.V. as per Ex.R.8. In his crossexamination he has admitted that the person having DL to drive tractor can also SCCH.13 15 MVC.6901/2019 drive it even when it is attached to trailer. Respondentinsurance company has not produced any such authority to show that the person having LMV driving licence cannot drive the tractor attached to the trailer. The respondent No.2 relied on the judgment of Hon'ble Supreme Court reported in (2005) 7 SCC 364 where it is held that the tractor cum trailer will comes under the category of goods carriage and falls under the definition of transport vehicle. The judgment was with respect to Motor Vehicle Taxation Act - 1957 and no where in the judgment is discussed about the driving licence of such tractor trailer.
21. There are several decisions of Supreme Court and High Court in this regard. The some judgments are as under:
i) (2001) 8 SCC 56 (Nagashetty v/s United India Insurance Co. Ltd., & Others), wherein it is held that, When a person holds a permanent licence to drive tractor, then merely because he was SCCH.13 16 MVC.6901/2019 driving a tractor which had a trailer attached to it and was being used for carrying goods at the time of accident.
Held it cannot be said that the tractor was being used as a goods vehicle for driving which the driver had no valid licence In the insurance policy issued for a tractor, an additional premium for a trailer having been taken and the policy having contemplated transportation of goods, also, held, insurance company was liable to pay compensation to the LR of the deceased victim of the accident. At para 10 it is held that, if a person has a valid driving licence to drive a tractor as a motor vehicle, he continues to have a valid licence to drive that tractor or motor vehicle even if a trailer is attached to it and some goods are carried in it. In other words, a person having valid driving licence to drive a particular category of vehicle does not become disabled to drive that vehicle merely because a trailer is added to that vehicle.
ii) Judgment passed in MFA No.1830/14 dated 24.3.2015, wherein the Hon'ble High Court of Karnataka has held that the contention of learned counsels for Insurance Company that driver of insured tractor did not have valid licence to drive a tractor trailer in the absence SCCH.13 17 MVC.6901/2019 of endorsement to drive tractor trailer cannot be accepted.
iii) In a case reported in 2011 ACJ 481, Jharkhand (National Insurance Co. Ltd., v/s Jayanthi Devi & Others), it is held that, if the trailer is attached to tractor and it is used for carrying goods, the licence to drive tractor does not become in effective and insurance company is liable to pay compensation.
22. By the above and by the evidence of RW.2 it is clear that the person having DL to drive tractor can also drive the tractor attached to the trailer. The insurance company cannot deny the liability of indemnifying the claim only because the tractor was attached to the trailer at the time of accident when they have received premium even for the trailer. Moreover, it is not proved that the tractor was filled with goods at the time of accident. Hence it is held that the insurer respondent No.2company is liable to indemnify the respondent No.1. The respondent No.1 and 2 are jointly and severally liable to pay compensation to the SCCH.13 18 MVC.6901/2019 petitioner with interest at 6% per annum from the date of petition. With these observation I answer Issue No.2 in the affirmative.
23. ISSUE NO.3 : In view of the above discussion, reasons stated and findings given to Issue Nos.1 & 2, I proceed to pass the following:
O R D E R Claim Petition filed under Sec.166 of M.V.Act is allowed in part with cost.
Petitioner is awarded
compensation of ₹1,00,000/
together with interest @ 6% p.a. from the date of petition till the date of deposit with the Tribunal.
Respondent No.2 shall liable to pay the aforesaid amount within three months from the date of this Order.
The entire compensation amount shall be released in favour of the petitioner on proper identification and verification.
Advocate's fee is fixed at
Rs.1,000/.
SCCH.13 19 MVC.6901/2019
Draw award accordingly.
(Dictated to the Stenographer, transcript thereof corrected, signed and pronounced by me in open court dated this the 1st day of September 2022) (DIVYASHREE.C.M.) II Addl. Judge & ACMM Member, MACT Court of Small Causes, Bengaluru.
ANNEXURE List of witnesses examined for petitioner :
PW.1 : Mohammad Arbaz
PW.2 : Shilpashree R.
List of documents marked for petitioners :
Ex.P.1 : True Copy of FIR
Ex.P.2 : True Copy of Complaint
Ex.P.3 : True Copy of Spot mahazar
Ex.P.4 : True Copy of notice under Sec.133
Ex.P.5 : True Copy of IMV Report
Ex.P.6 : True Copy of Wound certificate
Ex.P.7 : True Copy of Charge Sheet
Ex.P.8 : Notarized Copy of TC of
petitioner
Ex.P.9 : Notarized Copy of Aadhaar Card of
petitioner
Ex.P.10 : Outpatient card
SCCH.13 20 MVC.6901/2019
Ex.P.11 : Referral Letter
Ex.P.12 : Lab reports
Ex.P.13 : Medical Bills
Ex.P.14 : Prescriptions
Ex.P.15 : Authorization Letter
Ex.P.16 : Case Sheet
Ex.P.17 : Xray
List of witnesses examined for Respondents :
RW1 : Himendra Kartantik Simha M.N. List of documents marked for Respondents :
Ex.R.1 : Authorization Letter
Ex.R.2 : Copy of Policy
Ex.R.3 : Office Copy of Notice issued to
R1
Ex.R.4 : Postal Acknowledgment
Ex.R.5 : Reply by R1
Ex.R.6 : DL extract of Narayanaswamy B.V.
Ex.R.7 : Authorization Letter
Ex.R.8 : DL Extract of Narayanaswamy B.V.
(DIVYASHREE.C.M.)
II Addl. Judge & ACMM
Member, MACT
Court of Small Causes,
Bengaluru.