Bangalore District Court
Nagaraju vs Yashwanth.N on 29 June, 2024
KABC020038382022
BEFORE THE COURT OF SMALL CAUSES AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, AT
BENGALURU
(SCCH-16)
Present: Sri. Ganapati Bhat,
B.Sc., LL.B. (Spl.). L.L.M.
X Addl. Judge, Court of Small Causes
& Member, MACT, Bengaluru.
MVC No.667/2022
Dated: 29th June 2024
Petitioner Sri Nagaraju,
S/o Ramegowda,
Aged about 57 years,
No.336, 15th Main, 8th Cross,
Kididannammana Badavane,
Vijayanagara Railway Layout,
Metagalli, Mysore -570 016.
(Sri. K.N. Paramesha, Advocate)
Vs.
Respondents 1. Sri Yashwanth N.,
S/o Narasimhamurthy,
No.310, 4th Cross,
Mahadeshwara Badavane
Kumbarkoppal,
Mysore - 570 016,
(RC Owner of Motor cycle bearing
No.KA-09-JA-7621)
(Sri Ramesh M., Advocate)
2. Chola MS General Insurance Co.
Ltd., Unit No.4, 9th Floor,
2 (SCCH-16) MVC 667/2022
Level 06, Golden Heights
building, 59th C cross, 4th M Block,
Rajajinagar, Bengaluru-10,
Rep by its Manager.
Policy No.3397/01664790/000/00
Valid from 07.10.2018 to
06.10.2025.
(Sri Kiran Pujar, Advocate)
JUDGMENT
The petitioner has filed this petition under Section 166 of M.V. Act 1989, seeking compensation of Rs.15,00,000/- against the respondents for the injuries sustained by him due to the accident caused by the rider of the two-wheeler vehicle bearing No.KA-09-JA- 7621.
2. The facts in brief stated in the petition are as under;
On 29-09-2021, at about 9.00 a.m., the petitioner was standing in front of his vehicle in the extreme left side of the road, opposite to Chamundeshwari temple, SBI main road, Hebbal. At that time the rider of scooter bearing No.KA-09-JA-7621 rode his vehicle in a rash and negligent manner and dashed the petitioner. Due to the accident the petitioner has fell down and sustained 3 (SCCH-16) MVC 667/2022 grievous injuries. The petitioner was shifted to Vaatsalya Hospital with the help of public. On clinical examination, it is found that the petitioner has sustained left communited fracture distal radius and other injuries. The petitioner has taken treatment in the said hospital from 30.09.2021 to 02.10.2021. The doctor has advised him to take follow up treatment. The petitioner has spent amount of Rs.2,00,000/- towards medical expenses and other expenses. The petitioner under went surgery in the said hospital. Prior to the accident, the petitioner was hale and healthy and he was aged about 56 years. He was doing coolie work and earning sum of Rs.20,000/- per month. Due to accidental injuries, he has unable to do his professional as well as day to day works. The accident was due to rash and negligent riding of rider of two-wheeler bearing No.KA-09-JA-7621. The VV Puram Traffic Police have registered the criminal case against the rider of the said vehicle for the offence punishable under Section 279 and 338 of IPC. The 1 st respondent is the RC owner and 2nd respondent is the insurer of the vehicle bearing No.KA-09-JA-7621. Hence, the 4 (SCCH-16) MVC 667/2022 respondents are jointly and severally liable to pay the compensation. The petitioner has sought for compensation of Rs.15,00,000/- with interest at the rate of 12% per annum. He has prayed to allow the petition.
3. In response to the notice, the respondent No.1 and 2 have appeared through their counsels and filed their separate written statements.
4. The facts in brief stated in the written statement of the respondent No.1 are as follows;
The respondent No.1 has denied the allegations in the petition. He has stated that he is the RC owner and his two wheeler was insured with the respondent no.1. He has further stated that his vehicle had valid permit and his rider had valid driving license as on the date of accident. He has stated that he was not responsible for the alleged accident and he was not rash and negligent at the time of accident. He has stated that his vehicle was insured with the respondent no.2.He has sated that if any award is passed, then respondent no. 2 is liable to pay the compensation. He has further stated that the interest on the compensation more than 6% is contrary to 5 (SCCH-16) MVC 667/2022 the rulings of the Hon'ble High Court of Karnataka. He has stated that the petitioner compensation claimed is excessive. He has prayed to dismiss the petition.
5. The facts in brief stated in the written statement of the respondent No.2 are as follows;
The respondent No.2 denied the allegations in the petition. It has admitted the existence of valid insurance police as on the date of accident subject to the terms and condition of that policy. It has stated that respondent No.1 has not furnished the vehicle documents and information regarding the accident, hence, he has violated Section 134(c) of IMV Act. It has further stated that the police have not forwarded the document to it, hence, they have not complied Section 158(6) of IMV Act. It has denied the manner of accident stated in the petition. It has denied the injuries to the petitioner and treatment taken by the petitioner in the hospital. It has stated that the complaint was lodged after 9 days from the date of alleged accident. It has stated that the vehicle bearing No.KA-09-JA-7621 was falsely implicated by the petitioner by colluding with owner of the vehicle. It 6 (SCCH-16) MVC 667/2022 has stated that no valid reason was assigned for the delay in lodging the complaint. It has stated that the rider of the motor cycle bearing NO.KA-09-JA-7621 was not holding valid and effective driving license as on the date of the alleged accident and he was not qualified for driving that vehicle. It has denied the name age, occupation, father's name and income of the petitioner. It has denied the involvement of the insured vehicle. It has denied the nature of injuries and the alleged treatment taken by the petitioner. It has stated that the petition is liable to be dismissed for non-joinder of necessary parties, that is, the owner and insurer of two wheeler vehicle bearing no. KA-09-HK-3111. It has stated that the award interest for the compensation more than 6% is against to the ruling of the Hon'ble High Court of Karnataka. Hence, It has prayed to dismiss the petition.
6. Based on the pleadings the following issues came to be framed:
1. Whether the petitioner proves that he sustained grievous injuries due to the road traffic accident alleged to have occurred on 29-09-2021 at about 9.00
7 (SCCH-16) MVC 667/2022 p.m., due to the rash and negligent riding of the rider of the scooter bearing registration No.KA-09-JA-7621?
2. Whether the petitioner is entitled to compensation? If so, what is the quantum and from whom?
3. What order or Award?
7. In order to prove his case, the petitioner himself got examined as PW1 and got marked documents as Ex.P1 to Ex.P14. Two witnesses namely, Dr. Nagaraj B.N., and Mahesha got examined as PW2 and PW3 and got marked documents as Ex.P15 to Ex.P19. The official of respondent No.2 has got examined as RW1 and got marked documents as Ex.R1 and Ex.R2.
8. Heard arguments of the learned counsel for the petitioner and learned counsel for the respondent No.2. Perused the pleadings and evidences and materials available on record, my findings on the 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 8 (SCCH-16) MVC 667/2022 REASONS ISSUE No.1:
9. The petitioner has contended that on 29-09-
2021 at about 9.00 p.m., when he was waiting in the extreme left side of the road by parking his scooter bearing No.KA-09-HK-3111, the rider of the scooter bearing No.KA-09-JA-7621 rode his vehicle in rash and negligent manner and dashed the vehicle of the petitioner. It is the further contention of the petitioner that due to the accident, he has fell down and sustained grievous injuries. It is the further contention of the petitioner that immediately after the accident, he was shifted to Vaatsalya Hospital. It is further contended by the petitioner that the accident was due to rash and negligent riding of the rider of the two-wheeler vehicle bearing No.KA-09-JA-7621. It is further contended by the petitioner that V.V. Puram Traffic Police have registered criminal case against the rider of the offending vehicle for the offences punishable under Section 279 and 338 of IPC.
10. In Kusum and Others vs Satbir and Others reported in (2011) SCC 646, the Hon'ble 9 (SCCH-16) MVC 667/2022 Supreme Court has held that in a case relating to the Motor Accident Claims, the claimants are not required to prove the case as needs required to be done in a criminal trial.
11. In Parameshwari vs. Amir Chand and others reported in (2011) SCC 635, the Hon'ble Supreme Court has held that a road accident claims the strict principle of proof in a criminal case are not required.
12. In Bimla Devi and others vs. Himachal Road Transport Corporation and others reported in (2009) 13 SCC 513, the Hon'ble Supreme Court has held that the claimants were merely to establish their case on touch stone of preponderance of probability and that standard of proof on beyond reasonable doubt could not have been applied.
13. In Dulcina Fernandes and others vs. Joaquim Xavier Cruz and another ruling reported in (2013) 10 SCC 6, the Hon'ble Supreme court has held as follows:
10 (SCCH-16) MVC 667/2022 "7.It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pickup van as set up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt."
14. In Anita Sharma and others vs. The New India Assurance Co. Ltd., and another, ruling reported in (2021) 1 SCC 171, the Hon'ble Supreme Court has held as follows:
"Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eyewitnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true."
15. In Gurdeep Singh Vs Bhim Singh ruling reported in (2013) 11 SCC 507, the Hon'ble Supreme Court has held that in the motor accident 11 (SCCH-16) MVC 667/2022 claims, it is very difficult to get eyewitness. It has further held that even if, the eyewitnesses are available, they are not ready to come and depose in court of law for many reasons and thus, courts have to go by the oath of the claimant only.
16. Therefore, from the above rulings of the Hon'ble Supreme Court, it is clear that the strict proof of the case by the petitioner is not required and in all the MVC cases, the standard of proof required from the petitioner is preponderance of probability. The concept of proof of the case beyond reasonable doubt is not applicable in deciding the MVC cases by the Tribunal.
17. In order to prove his case, the petitioner has produced as many as 19 documents. They are marked as Ex.P1 to Ex.P19. Out of the said documents, Ex.P1 is the FIR with complaint, Ex.P2 is the sketch, Ex.P3 is the spot mahazar, Ex.P4 is the IMV report, Ex.P5 is the IMV report, Ex.P6 is the wound certificate, Ex.P7 is the charge sheet, Ex.P8 is the driving licence, Ex.P9 is the RC Ex.P10 is the aadhar card, Ex.P11 is the discharge summary, Ex.P12 is the medical bills, Ex.P13 is the 12 (SCCH-16) MVC 667/2022 prescriptions, Ex.P14 is the x-rays, Ex.P15 is the clinical note, Ex.P16 is the x-ray, Ex.P17 is the MLC extract, ExP18 is the case sheet and Ex.P19 is the x-ray. In Ex.P1, it is stated that when petitioner was waiting in front his parked two-wheeler vehicle, the rider of the another two-wheeler vehicle bearing No.KA-09-JA-7621 rode his vehicle in rash and negligent manner and dashed the two-wheeler vehicle of the petitioner. It is further stated that due to the accident, the petitioner has fell down and sustained grievous injuries. It is further stated that the vehicle number was recorded in the CCTV which was installed near the accident spot. The accident took place on 29-09-2021 at about 9.00 p.m. The complaint was given on 08-10-2021. In the complaint, it is stated that the rider of the offending vehicle has requested the petitioner not to give the complaint, he is ready to compromise the matter. The petitioner has produced the MLC extract which is marked as Ex.P17. In MLC extract, the history of the injury is mentioned as RTA and the incident is recorded in it. The MLC is recorded on the next day of the 13 (SCCH-16) MVC 667/2022 accident. Therefore, the reasons stated for delay in filing the complaint is acceptable. In Ex.P2, the accident spot is shown and in Ex.P3, the accident spot is stated. In Ex.P2, it is shown that the rider of the offending vehicle has dashed the petitioner which was parked by the side of the road. In Ex.P4 and Ex.P5, the damages to both of the vehicle are stated. The damages stated in Ex.P4 and Ex.P5 would tally with the manner of accident stated in the petition. In Ex.P6, the injuries to the petitioner are stated. As per Ex.P6, the injuries to the petitioner are grievous in nature. The police have filed the charge sheet against the rider of the offending vehicle after the investigation in the said criminal case. The said document is marked as Ex.P7. In Ex.P7, it is stated that when the petitioner was waiting in front of his bike, the rider of the two-wheeler vehicle bearing No.KA-09-JA- 7621 rode his vehicle in rash and negligent manner and dashed the petitioner. It is further stated that due to the accident, the petitioner has sustained grievous injuries. It is further stated that after the accident, the petitioner was shifted to hospital. It is stated that the accident was 14 (SCCH-16) MVC 667/2022 due to rash and negligent riding of the rider of the offending vehicle bearing No.KA-09-JA-7621. It is further stated that the rider of the offending vehicle ran away from the accident spot immediately after the accident and he was riding the two-wheeler vehicle without driving licence. The police have filed the charge sheet against the rider of the said two-wheeler vehicle for the offences punishable under Section 279 and 338 of IPC and Section 134 (A&B) r/w 187, Section 3(1) r/w 181 of IMV Act. In all the documents produced by the petitioner, it is stated that the accident was due to rash and negligent riding of the rider of the offending vehicle. The respondents have not produced any document contrary to the documentary evidence produced by the petitioner.
18. The petitioner has entered into the witness box and got examined as PW1. He has re-iterated the contents of the petition in his examination-in-chief. In the cross-examination, he has denied the suggestion that the accident was due to his self fall. PW2 being the doctor who has assessed the disability of the petitioner 15 (SCCH-16) MVC 667/2022 and PW3 being the MRO, they have supported the case of the petitioner. The Assistant Manager of the respondent No.2 entered into the witness box and got examined as RW1. He has re-iterated the contents of the written statement in his examination-in-chief. But, he has not denied the rash and negligent riding of the rider of the offending vehicle in his examination-in-chief. The respondent No.1 being the owner of the offending vehicle has not adduced any oral evidence or produced any documents. RW1 has mainly contended that the rider of the offending vehicle had no valid driving licence as on the date of accident. Therefore, there is no evidence contrary to the evidence produced by the petitioner in this case regarding the rash and negligent riding of the rider of the offending vehicle. From the documentary and oral evidence, petitioner has proved that the accident was due to rash and negligent riding of the rider of the two-wheeler vehicle bearing No.KA-09- JA-7621. The petitioner has further proved that due to the accident, he has sustained grievous injuries. Hence, I answer issue No.1 in the affirmative. 16 (SCCH-16) MVC 667/2022 ISSUE No.2:
19. As discussed above, the petitioner has proved that the accident was caused due to rash and negligent riding of the rider of the two-wheeler bearing No.KA-09-
JA-7621. Therefore, petitioner is entitled to the compensation under various heads. The damages are to be assessed under two heads, they are pecuniary damages and non pecuniary damages. The pecuniary damages are those like medical, treatment, attendants, transport, actual loss of earning, future loss of earning. Non pecuniary damages includes mental and physical shock, loss of amenities, loss of expectation of life, loss of prospects of marriage. The petitioner who has sustained injuries is entitled for compensation under the following heads:
A) Towards loss of future income :
In order to determine the compensation towards loss of future income, the age, monthly income and disability of the petitioner are to be determined. The petitioner has produced Ex.P8 - driving licence. In Ex.P8, the date of birth of the petitioner is shown as 13-06- 1964. The accident took place on 29-09-2021.
17 (SCCH-16) MVC 667/2022 Therefore, the age of the petitioner as on the date of accident is 57 years.
B). The petitioner has sustained grievous injury in this case. The injuries to the petitioner are as follows:
Left distal radius fracture with
displacement.
In this regard, the Dr. Nagaraj B.N. got examined as PW2. PW2 in his examination-in-chief has stated about injuries and fractures of petitioner. He has stated that after clinical and radiological examination, he found that the petitioner has disability of left upper limb as 35%. He has stated that the whole body physical disability of the petitioner is 12%. In the cross- examination, he has denied the suggestion that the petitioner has no disability. Therefore, considering the injuries sustained and evidence of PW2, in this case, the disability of 10% can be considered to the whole body of the petitioner. Hence, in this case, the whole body disability of the petitioner is considered as 10%.
C). The petitioner has stated that he was doing coolie work and earning an amount of Rs.20,000/-. But, he has not produced any document to show his income 18 (SCCH-16) MVC 667/2022 and avocation. Therefore, notional income is to be considered as per the guidelines of the Karnataka State Legal Services Authority. The accident took place in 2021. Hence, the notional income of the petitioner is Rs.15,000/-. Therefore, the annual income of the petitioner is Rs.1,80,000/-.
D). As per the ratio laid down in Sarla Verma and others vs. Delhi Transport Corporation and another reported in 2009 ACJ 1298, the appropriate multiplier for a person whose is aged about 57 years is
9. Therefore, loss of future income is Total annual income X disability/100 X multiplier = Rs.1,80,000 X 10/100 X 9 = Rs.1,62,000/-.
Medical expenses :
In this case the petitioner has sustained grievous injuries. As per Ex.P11, he has taken treatment as inpatient from 30-09-2021 to 02-10-2021 for 3 days. The petitioner has produced 8 medical bills at Ex.P12 which are amounting to Rs.38,034/-. Therefore, the petitioner is entitled for reimbursement of total medical bills of Rs.38,034/-.
19 (SCCH-16) MVC 667/2022 Pain and sufferings :
The petitioner has sustained grievous injuries in this case. Injuries have caused the disability to the petitioner. So considering the injuries and disability to the petitioner, an amount of Rs.50,000/- is to be awarded to the petitioner towards pain and sufferings.
Attendant charges :
As per Ex.P11 - discharge summary, the petitioner has admitted as inpatient for 3 days from 30-09-2021 to 02-10-2021. The petitioner has sustained grievous injuries. Considering the nature of the injuries and the medical treatments, it appears that the petitioner has needed attendant for one month. Therefore, 800 x 30 i.e., Rs.24,000/- is awarded towards the attendant charges.
Food and nourishment :
The petitioner was admitted as inpatient for 3 days in Secure Hospital, Mysore. He has needed special food and nourishment for one month. Therefore, Rs.600/- per day i.e., Rs.18,000/- is awarded towards food and nourishment.
20 (SCCH-16) MVC 667/2022 Conveyance expenses :
The petitioner is the resident of Metagalli, Mysore and he has taken treatment in Secure Hospital, Mysore.
Hence, Rs.15,000/- is the just compensation towards conveyance.
Loss of income during laid-up period :
The petitioner has taken treatment as inpatient for 3 days. By considering the injuries and treatments taken, it appears that the petitioner has needed bed rest for one month. Therefore, Rs.15,000/- is awarded towards loss of income during laid-up period.
Loss of amenities :
The PW2 has opined that the petitioner has sustained grievous injuries and there are complications to him. Therefore, awarding the compensation of Rs.15,000/- would be just and reasonable towards loss of amenities.
20. Hence, the petitioner is entitled to the compensation under different heads as follows :
1. Loss of future income 1,62,000-00
2. Medical expenses 38,034-00
3. Pain and sufferings 50,000-00 21 (SCCH-16) MVC 667/2022
4. Attendant charges 24,000-00
5. Food and nourishment 18,000-00
6. Conveyance expenses 15,000-00
7. Loss of income during laid- 15,000-00 up period
8. Loss of amenities 15,000-00 Total 3,37,034-00
21. In all, petitioner is entitled for compensation of Rs.3,37,034/- with interest at the rate of 6% per annum from the date of petition till its realization.
Liability:
22. The respondent No.1 is the owner and respondent No.2 is the insurer of the offending vehicle.
The respondent No.2 has admitted the insurance policy to the offending vehicle as on the date of accident. The respondent No.2 has stated that the rider of the offending vehicle had no valid driving licence as on the date of accident. In the charge sheet, it is stated that the rider of the two-wheeler bearing No.KA-09-JA-7621 has no valid driving licence as on the date of the accident. A defence of the respondent No.2 is that since the rider of the offending vehicle has no valid driving licence, hence the insurance company is not liable to pay any compensation.
22 (SCCH-16) MVC 667/2022
23. In New India Assurance Company Limited, Bijapur, vs. Yallavva w/o. Yamanappa Dharanakeri and another ruling reported in ILR 2020 KAR 2239, the full bench of Hon'ble High Court of Karnataka referring to the catena of decisions rendered by the Hon'ble Apex Court has held that breach of policy conditions would not exonerate the Insurance Company to pay the compensation. It has held that even if fundamental breach of policy conditions is established, the Insurance Company is still liable to satisfy the award by paying the compensation to the third party and thereafter, it can recover it from the owner of the vehicle involved in the accident. It has held that the pay and recovery cannot be ordered against the insurance company only when the claim petition filed is a fraudulent and collusive petition.
24. In United India Insurance Co. vs. V. Janardhan ruling reported in 2021 SCC Online KAR 12643, the Hon'ble High Court of Karnataka has held as follows:
"It would be irrelevant as to whether the owner of the vehicle appear or did not 23 (SCCH-16) MVC 667/2022 appear or did not contest or contested the proceedings for applying the pay and recovery principle. So long as it is established that there was an insurance policy issued in respect of motor vehicle which was involved in the accident, the insurer would be liable to pay the victim, even if the insurer is able to establish its defence that there has been a breach of policy condition and it can avoid liability".
25. In Shivanna vs. Muniyappa ruling reported in 2022 SCC Online KAR 16660, the Hon'ble High Court of Karnataka has held that the insurer would have to satisfy the compensation i.e., liable to be paid to the claimants and thereafter to proceed to recover the same from the owner of the offending vehicle.
26. In Balu Krishna Chavan vs. Reliance General Insurance Co. Ltd., 2022 Live Law (SC) 932, judgment dated 03-11-2022, the Hon'ble Supreme Court has held that when the insurance policy is in force then even if the insurer is able to show the breach of policy condition and it can avoid the liability then also it is liable to pay the victim and recover from the owner of the offending vehicle.
24 (SCCH-16) MVC 667/2022
27. In Pappu and others vs. Vinod Kumar Lamba and another ruling reported in (2018) 3 SCC 208, the Hon'ble Supreme Court has held as follows:
"110. The summary of our findings to the various issues as raised in these petitions areas follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.
(ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163Aor Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act.
(iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to reproved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured,the insurer has to prove that the insured was guilty of 25 (SCCH-16) MVC 667/2022 negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them.
(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act.
(vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), doesn't fulfill the 26 (SCCH-16) MVC 667/2022 requirements of law or not will have to be determined in each case.
(viii) - (ix) xxxxx
(x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to payto the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section(3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal.
(xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, 27 (SCCH-16) MVC 667/2022 regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims."
28. In Shamanna and another vs. Divisional Manager, Oriental Insurance Co. Ltd., and others ruling reported in (2018) 9 SCC 650, the Hon'ble Supreme Court of India has held as follows:
"12. Since the reference to the larger bench in Parvathneni case has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case followed in Laxmi Narain Dhut and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh and Laxmi Narain Dhut cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored".
28 (SCCH-16) MVC 667/2022
29. In the case of Rishi Pal Singh vs New India Assurance Company, Civil Appeal No. 4919/2022,the Hon'ble Supreme Court of India has held that it is not expected from the owner of the vehicle to verify the genuineness of the driving licence issued to his driver.
30. In the case of Najegowda Vs C. Cheluvaraj ruling reported in 2023 ACJ1245 has held that when the driver of the offending vehicle does not possess valid driving licence at the time accident, then insurance company is liable to pay compensation at the first instance and then it can recover that amount from the owner.
31. In Kurvan Ansari @ Kurvan Ali vs. Shyam Kishore Murmu, ruling reported in (2022) 1 SCC 317, the Hon'ble Supreme Court of India has held as follows:
"The entire compensation shall be paid to the appellants by respondent No.2
- Insurance Company, and we keep it open to the Insurance Company to recover the same from respondent No.1 - owner of the motorcycle by initiating appropriate proceedings as the motorcycle was driven by the driver who was not possessing 29 (SCCH-16) MVC 667/2022 valid driving licence on the date of the accident".
32. In IFFCO Tokio General Insurance Co. Ltd., vs. Geeta Devi and others ruling reported 2023 SCC OnLine SC 1398 the Hon'ble Supreme Court has held as follows:
"even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident".
The ratio laid down in the above rulings are applicable to the case on hand.
33. The respondent No.1 has not produced any documents to show that there is valid and effective driving licence to the rider of his vehicle as on the date of accident. Further, the charge sheet which is marked as Ex.P7 would show that there was no valid licence to the rider of the offending vehicle as on the date of 30 (SCCH-16) MVC 667/2022 accident. Therefore, from the materials available on record, it is clear that the rider of the offending vehicle had no valid driving licence as on the date of accident. Therefore, the respondent No.1 has violated the terms and conditions of the insurance policy. The insurance policy is valid as on the date of accident. This fact is admitted by the respondent No.2. Therefore, the respondent No.2 i.e., insurance company is primarily liable to pay the compensation along with respondent No.1. Since there is violation of the terms and conditions of the policy, the respondent No.2 is entitled to recover the compensation amount from the respondent No.1 after pay the amount to the petitioner. Hence, the respondent No.1 and 2 both are jointly and severally liable to pay the compensation amount to the petitioner. But, the respondent No.2 is entitled to recover the compensation amount to be paid to the petitioner after paying it to him from the respondent No.1 on pay and recovery basis. The petitioner is entitled to the compensation of Rs.3,37,034/-. Hence, I answer issue No.2 partly in the affirmative.
31 (SCCH-16) MVC 667/2022 ISSUE No.3:
34. In view of the findings, the petition deserves to be allowed in part. Hence, the following order is passed:
ORDER The petition is partly allowed with costs.
The petitioner is entitled to compensation of Rs.3,37,034/- (Rupees three lakhs, thirty seven thousand and thirty four only) with interest at the rate of 6% p.a., from the date of petition till realisation.
The respondent No.2 is directed to pay the compensation amount on pay and recovery basis to the petitioner within two months from the date of this order in the first instance and then recover the same from respondent No.1 through due course of action.
Out of the compensation amount
awarded to petitioner, 30% of the
compensation amount with
proportionate interest shall be
deposited in his name as FD in any
nationalized bank for the period of two years with liberty to draw the accrued
32 (SCCH-16) MVC 667/2022 interest periodically and the remaining 70% amount with proportionate interest shall be released to him through E-
payment on proper identification and verification.
Advocate's fee is fixed at Rs.2,000/-. Draw an award accordingly.
(Dictated to the stenographer, directly on computer, typed by him, corrected and then pronounced in the open court this the 29th day of June 2024) (Ganapati Bhat) Member, MACT, Bengaluru.
ANNEXURE Witnesses examined on behalf of petitioner:
PW1 Sri Nagaraju PW2 Dr. Nagaraj.B. PW3 Sri. Mahesha
Documents marked on behalf of petitioner:
Ex.P1 True copy of FIR with complaint Ex.P2 True copy of sketch Ex.P3 True copy of spot mahazar Ex.P4 True copy of IMV Report Ex.P5 True copy of another IMV Report Ex.P6 True copy of wound certificate Ex.P7 True copy of charge sheet Ex.P8 Notarized copy of DL of PW.1 Ex.P9 Notarized copy of RC of PW.1 Ex.P10 Notarized copy of Aadhar card of PW.1 Ex.P11 Original discharge summary Ex.P12 Medical bills (8 in nos)
33 (SCCH-16) MVC 667/2022 Ex.P13 Prescriptions(6 in nos) Ex.P14 X-rays (3 in nos) Ex.P15 Clinical note Ex.P16 X-ray Ex.P17 MLC Extract Ex.P18 Case sheet Ex.P19 X-ray Witnesses examined on behalf of respondents:
RW.1 Sri G.L. Sagar Documents marked on behalf of the respondents:
Ex.R1 Authorization Letter
Ex.R2 True copy of policy
(Ganapati Bhat)
Member, MACT, Bengaluru.