Bangalore District Court
In - Master.Vincent Mathew. K vs In 1. The Branch Manager on 27 April, 2019
IN THE COURT OF THE XXII ASCJ AND XX ACMM &
M.A.C.T., BENGALURU (SCCH-24).
PRESENT: Smt. Zaibunnisa
B.Com.LL.B.
XXII ASCJ & XX A.C.M.M.
& Member M.A.C.T., Bengaluru.
Dated This the 27th Day of April, 2019.
M.V.C.No.4384/2016 C/w and M.V.C.No.4385/2016
Petitioner in - Master.Vincent Mathew. K,
MVC.4384/16 S/o Sudeep Raj. K,
Aged about 12 years,
R/o No-52, 7th Cross,
Anjanappa layout,
Kothanur, Bangalore-77.
Represented by his Natural guardian
and mother Smt.Sarala.
Petitioner in - Master. David John. K,
MVC.4385/16 S/o Sudeep Raj. K,
Aged about 9 years,
R/o. No-52, 7th Cross,
Anjanappa layout,
Kothanur, Bangalore -77.
Represented by his Natural guardian
and mother Smt.Sarala
(Rept:By Smt.Sarvarani A,
Advocate, Bengaluru).
-Versus-
Respondents in 1. The Branch Manager,
both the cases: United India Insurance Co. Ltd,
Shilanikethana, Near Jayachamraja
Circle, Main Kote Road, Honnali,
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M.V.C.4384/2016 C/w 4585/2016
Davanagere-577217.
2. Sri.Vijay Kumar .D.T,
S/o D. Tippanna,
Prop. Durgambika Kisan seva Kendra,
Sagarpet (v) (Basavapattana)
Channagiri (T)
D.V.G. (D) 4-9, 577551.
3. The Branch Manager,
Future Generali India Ins Co. Ltd,
No.13, 4th floor, # 31,
Sharavanee Krishna Mansion,
100 feet Road, 2nd Block, Jayanagar,
Bangalore-560011.
4. Sri.Sudeep Raj. K,
S/o Raja Rao. K,
Aged about 39 years,
R/o. No-52, 7th cross,
Anjanappa layout,
Kothanur, Bangalore-77.
(Res.1: By Sri. D.N.Manjunatha Gupta,
Advocate, Bengaluru.
(Res.2: By Sri.M.C.Mallikarjuna Swamy,
Advocate, Bengaluru.
(Res.3: By Sri. Ravi.S.Samprathi,
Advocate, Bengaluru.
Res.4: Exparte).
(ZAIBUNNISA)
XXII ASCJ & XX A.C.M.M.,
& MEMBER, M.A.C.T.,
Bengaluru.
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M.V.C.4384/2016 C/w 4585/2016
COMMON JUDGMENT
M.V.C.4384/2016 C/w M.V.C.4585/2016
These two petitions filed by the petitioners U/s 166
of The M.V. Act claiming the compensation of Rs.10 lakhs
each, on account of injuries sustained by them in the
RTA. These two petitions are arising out of same
accident. Hence, they are clubbed & common evidence is
recorded in M.V.C.4384/2016 & taken together for
common disposal.
2. The case of the petitioners in both the petitions is
as under:
It is alleged that, on 12/13.02.2016 at about 12.15
a.m, (midnight) petitioners were proceeding along with
their family members, on the way to Bengaluru to
Bhadravathi to their grandparental house in a car
bearing No.KA-05-MP-841. Both the minor petitioners
were sitting in the back seat of the car, when the car
reached near Chikkarahalli gate, N.H 206, Banavara,
Arsikere Taluk, at that time the driver of Petrol Tanker
Lorry bearing Reg.No. KA-17-A-0688, had stopped the
lorry in the middle of the road without putting any
indicators/signal. The driver of the car bearing No.KA-05-
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M.V.C.4384/2016 C/w 4585/2016
MP-841 was proceeding with high speed, in rash and
negligent manner and dashed to the stationed Lorry, as a
result both the petitioners have sustained grievous
injuries all over their bodies. After the accident both
were shifted to Kadur Government hospital, wherein they
took first aid and then they were shifted to Sahyadri
Narayana Multi Speciality Hospital, Shimoga and for
higher treatment they were shifted to Christ Super
Specility Hospital, Bengaluru. In the said hospital both
petitioners were treated as inpatients for a period of 10
days. During the course of treatment they undergone
several radiological examinations and have undergone
surgery. After necessary treatment both were discharged
with an advice to regular follow up treatment and bed
rest. So far, their parents have spent huge amount
towards their treatment and other incidental expenses.
3. It is alleged by the petitioners that, at the time of
accident both were hale and healthy, aged about 12 and
9 years, studying in 7th standard and 3rd standard
respectively. Due to injuries sustained in the alleged
accident both were not attended to their schools and they
are unable to concentrate on their studies and scoring
low marks. They are unable to walk and finding difficulty
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in squatting, studying, playing, kneeling, sitting cross
legged and they are undergoing great physical and
mental agony. The Banavara Police have registered a case
in their Crime No.35/2016 against the drivers of both
Car and Tanker Lorry for the offenses punishable U/s
279, 337, 304A of IPC and U/s 187 of IMV Act. The
Respondents No.1 and 2 are the insurer and RC owner of
the Tanker Lorry and respondent No.3 and 4 are the
insurer and driver of the Car, hence they are jointly and
severally liable to pay compensation to the petitioners.
For all these reasons prayed to allow the claim petitions.
4. After service of notice of the petitions,
respondents No.1 to 3 have appeared through their
counsels before the Tribunal and filed the detailed
statement of objections. Respondent No.4 remained
absent and placed Ex-parte.
5. The respondent No.1 to 3 have denied all the
averments made in the petitions and called upon the
petitioners to prove the same with strict proof. The claim
of the petitioners is highly excessive and exorbitant.
6. The respondent No.1 admitted the issuance of
insurance policy and its validity in respect of the Lorry
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bearing Reg.No.KA-17-A-0688. This respondent denied
the rash and negligent driving by the driver of the Lorry,
but contended that, as per the averments of the
petitioners the driver of the car bearing Reg.No.KA-05-
MP-841 was driving the same with high speed in rash
and negligent manner and dashed to the parked Lorry.
It is further contended that, the driver of the Lorry did
not posses effective DL and Lorry was not having valid
Permit and Fitness certificate as on the date of accident.
7. The respondent No.2 admitted the ownership of
the Lorry and same is insured with the respondent No.1.
The said policy was in force and the Goods carriage
permit of the lorry is also in force as on the date of
accident. This respondent denied the rash and negligent
driving on the part of the driver of the Lorry, but
contended that, the accident is occurred due to the
negligence on the part of the driver of the car.
8. The respondent No.3 admitted the issuance of
insurance policy and its validity in respect of the Car.
This respondent denied the involvement of the car and
rash and negligent driving by its driver, but contended
that, the driver of the lorry had stationed the same
dangerously without switching on the parking lights and
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causing inconvenience to the other road users. It is
further contended that, the driver of the Car did not
posses effective DL as on the date of accident. The
deceased was traveling in the car as paid passenger, the
car was registered and insured with this respondent as
private car, but the insured was using the car for the
purpose of carrying passengers for hire, thereby the
insured violated the terms and conditions of the
insurance policy. For all these reasons prayed to dismiss
the petitions against these respondents No.1 to 3.
9. In view of contentions raised by both the parties,
the following issues were framed:-
ISSUES in BOTH MVC No.4384/2016 &
MVC No.4385/2016
1. Whether the petitioner proves that,
he had sustained injury in road
traffic accident occurred on 12-
13.02.2016 at about 12.15 a.m, as
contested in petition ?
2. Whether the petitioner proves that
the alleged accident is due to
negligence by the driver of Lorry
bearing Reg.No.KA-17-A-688 in
stopping the Lorry without any signal
in the middle of the road ?
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3. Whether the petitioner proves that
the alleged accident is due to
negligence by the driver of car
bearing No.KA-05-MP-842 ?
4. Whether the petitioner proves that he
is entitled for the compensation ? If
so, to what extent and from whom ?
5. What order or award ?
10. In order to substantiate their cases, the
Natural guardian/mother of the petitioners has been
examined as P.W.1 and 2 and got marked documents at
Ex.P.1 to 25. Thereafter, the petitioners closed their side
evidence.
11. In order to rebut the evidence so placed on
record by the petitioners, respondent No.1 to 3 have
examined 8 witnesses as RW.1 to R.W.8 and got marked
documents at Ex.R.1 to Ex.R.12. Thereafter, respondents'
closed their side evidence.
12. Heard the arguments. Perused the materials
placed on record.
13. My findings on all the above issues in both the
cases are as under :
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M.V.C.4384/2016 C/w 4585/2016
MVC No.4384/2016 & MVC No.4385/2016
Issue No.1 : In the Affirmative.
Issue No.2 : In the Affirmative.
Issue No.3 : In the Affirmative.
Issue No.4 : Partly in the affirmative.
Issue No.5 : As per final order.
for the following :-
REASONS
ISSUE No.1 to 3 IN BOTH THE PETITIONS :
14. As these Issues are inter related to each other,
they are taken up together for common discussion in
order to avoid repetition of facts.
15. In order to prove the actionable negligence, the
minor guardian of petitioners is examined as P.W.1 and 2
and she reiterated all the averments and allegations
made in the claim petitions. During the course of cross-
examination by respondent No.1, PW.1 deposed that car
belongs to her husband who is respondent No.4 herein.
She deposed that, on the date of accident altogether 5
persons including these two minor petitioners were
traveling in the car and her husband was driving the said
car. She denied that, her husband was driving the car
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with high speed. She denied that, she did not observe
how the accident took place. She denied that the
accident is occurred due to her husband's negligence as
he dashed his car against the parked tanker. She denied
that, the lorry was parked on the left side of the road
with indicators. She denied that, the accident is not
occurred due to the negligence on the part of the driver of
the Tanker Lorry.
16. In order to rebut the evidence so placed on
record, the respondent No.2 i.e., Owner of the Tanker
Lorry is examined as RW.1. During the course of cross
examination by respondent No.3, he admitted that, he
did not see the accident and denied that, the Tanker
Lorry was parked in the middle of the road without
putting any signal or indication including the indicator.
He admitted that, police have filed charge sheet against
the driver of his lorry. He deposed that, the driver of the
Car was dashed to right side back portion of his Lorry.
17. The respondent No.1 has examined its official as
RW.2. She reiterated the averments of objection
statement filed by respondent No.1. During the cross
examination by the learned counsel for respondent No.3
she admitted that she is deposing on the basis of police
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records and admitted the place of accident as Highway.
She deposed that; charge sheet came to be filed against
the drivers of both vehicles. She denied that, the lorry
was parked on the road without putting any indication or
signals.
18. The respondent No.2 has also examined his
Lorry driver as RW.4. He reiterated the averments of
objection statement filed by respondent No.2. During the
course of cross examination by the learned counsel for
3rd respondent, R.W.4 admitted that, the accident is
occurred in the middle of the Highway. He denied that,
the accident took place due to negligent parking of the
lorry in the middle of road without putting any
indicators.
19. Further the respondent No.2 has examined the
eye-witness to the said accident as RW.6. He deposed
that, he saw the alleged accident and same was occurred
in front of his hotel about 3 years back, but he did not
know the exact date of occurrence of accident. He
deposed that accident is occurred head collision between
car and Tanker in opposite direction. He deposed that he
cannot say on whose fault accident occurred but both
vehicles were coming in opposite direction, lorry was
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moving slowly due to the barricades putting on the road
and the car had hit to right side rear wheel of the lorry.
20. The respondent No.2 also examined the DYSP of
Arasikere, Hassan District as RW.7. He deposed that the
accident spot was shown by one Manjunath, the eye-
witness and the owner of Halli Mane Hotel. During the
course of cross examination by the learned counsel for
respondent No.1, RW.7 admitted the involvement of both
car and lorry in the accident and the car was coming in
opposite direction of the Petrol Tanker Lorry. He
admitted that he has filed charge sheet with respect to
the said accident.
21. The respondent No.3 has examined its official as
RW.8. During the cross examination he admitted that
both car and lorry were involved in the accident. Further
he admitted that in the mid night hours at 12.15 am the
driver of their insured car drove it with high speed and
dashed against the stationed lorry and volunteers that
the lorry was stationed in the middle of the road without
putting any signals hence the car hit against the lorry.
He admitted that, police have filed charge sheet against
the drivers of the car and Lorry as showing them accused
No.1 and 2.
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22. With regard to contributory negligence, the
respondent No.3 has relied on the decisions reported in :
1. LAWS (KAR) 2017 1 234, in MFA.3902/2012
(Citations ACJ 2018 0 958), between Ramanna V/S
Rameez Wherein it is clearly observed that,
"The driver of the lorry had parked the vehicle
on the National Highway without any
indicator. Further, there was no reflector to the
said lorry. The driver of Maruti Omni
proceeded in the National Highway without
noticing the parked vehicle dashed against the
rear side of the said lorry....... The tribunal has
fastened the contributory negligence to an
extent of 70% on the driver of the Lorry and
30% on the driver of Maruti Omni car. "
2. LAWS (KAR) 2016 1 260 between The General
Manager, ICICI Lombard Gen.Ins.,Co.Ltd. And ors.
V/S Rejendrasingh And Ors. Reported in ACJ 2017
0 2360
23. In the light of the above said materials I have
perused the record. Ex.P.1 and 8 are the copies of FIR
and Charge sheet, these documents discloses that, the
criminal case has been registered and charge sheet came
to be filed against the drivers of both, Car and Tanker
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Lorry. The police documents & oral evidence of PW.1,
PW.2 and RW.1, 2, 4, 6 to 8 prima-facie establishes the
involvement of the Car and Tanker Lorry in the accident
and also establishes the rash and negligence on the part
of both drivers of the Car and Tanker Lorry. But the
respondents No.1 to 3 denied the rash & negligence on
the part of their respective drivers of the Car and Tanker
Lorry in the alleged accident. Both respondents No.2 and
3 have denied the negligent driving on the part of their
drivers. The evidence led by respondent No.1 to 3,
through RW.1, 2, 4, 6 to 8 clears that the jurisdictional
police, after due investigation, filed the charge sheet
against both drivers of Car and Tanker Lorry.
24. In the present case, the materials produced by
both the parties would go to show that both drivers of the
Car and Tanker Lorry were not careful so as to avoid the
accident which they could have avoided. Therefore,
responsibility is to be fixed on both the drivers of Car and
Tanker Lorry. In the first instance it is to be looked into
that the driver of the Tanker Lorry parked his vehicle in
the middle of the road without putting any indicators or
signal and the Car, of course, was coming with high
speed from opposite direction and dashed to the Tanker
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Lorry without observing the stationed lorry. Therefore,
under the facts and circumstances, it can be held that,
the drivers of both Car and Tanker Lorry contributed
negligence in the ratio of 50:50 in occurrence of the
accident. Hence, I am of the considered opinion that, the
petitioners have established the rash and negligent
driving on the part of both drivers of the car and Tanker
Lorry and petitioners have sustained injuries in the said
accident. Accordingly, issues No.1 to 3 in both the cases
are answered in the Affirmative.
ISSUE NO.4 IN BOTH THE CASES:-
IN MVC NO.4384/2016 :
25. It is the case of the petitioner that, he has
sustained injuries in the accident. The petitioner has
relied upon Ex.P.3, i.e., the Wound Certificate issued by
Govt. Hospital, Kadur, which reveals that the petitioner
had sustained the following injuries :
1) Mild Head injury.
2) Right Lateral orbital wall present
infraorbital rib fracture.
As per Ex.P.3, injuries are grievious in nature.
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26. The mother/natural guardian of petitioner is
examined as PW.1. She deposed that, after the accident
her son was shifted to Kadur Government Hospital,
wherein he took first aid and then he was shifted to
Sahyadri Narayana Multispeciality Hospital, Shimoga. In
the said hospital he took treatment as an inpatient from
13.02.2016 to 18.02.2016 for a period of 6 days. During
the course of treatment he undergone surgery and
implants were inserted in the fractured portion. After
necessary treatment he was discharged with an advice to
regular follow-up treatment. In this regard, PW.1 has
produced discharge summary at Ex.P.9, wherein it is
clearly mentioned that the petitioner was diagnosed,
Right lateral orbital wall + infraorbital rib fracture, mild
head injury and was undergone surgery to ORIF under
GA. Though the petitioner has not produced any
documents towards the expenses incurred for
transportation, attendance and other miscellaneous
expenses, it can be said that his parents must have spent
amount towards transportation, attendance and other
miscellaneous expenses, which needs to be compensated.
27. The petitioner has produced inpatient detailed
Bill at Ex.P.10 for a sum of Rs.52,561/-. I have gone
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through the bills and found nothing to discard or
disbelieve it. Therefore, the amount spent for treatment
needs to be compensated. Hence petitioner entitled for a
compensation of Rs.52,561/- towards Medical
Expenses.
28. The petitioner, in his tender age suffered
injuries. Though there is no any evidence to show
whether it has resulted in permanent disability, however,
it can be said that the pain and agony will be there
throughout his life. Hence, the petitioner has to be
awarded some amount under the head loss of amenities
in life. In the cross-examination, PW.1 denied that her
son has not taken treatment as inpatient. She deposed
that, at the time of accident her son was studying in 7th
standard. Thus, the petitioner being a minor boy of 12
years at the time of accident as shown in the medical
records, he has not sustained any loss of income during
treatment period.
29. Thus, considering the nature of injuries, period
of treatment for 6 days as inpatient, amount spent for
treatment attendance, conveyance, miscellaneous
expenses, the suffering of the victim /claimant, one can
come to conclusion that apart from the expenses
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incurred towards treatment, conveyance etc., the
petitioner has suffered pain and sufferings till healing of
the injuries and he has also suffered loss of amenities in
life to some extent. Therefore, I award Rs.1,00,000/-
(Rupees one lakh only) under the above heads, as just
and reasonable compensation. In total petitioner is
entitled for a sum of (Rs.52,561/- + Rs.1,00,000/-)=
Rs.1,52,561/-(Rupees One Lakh Fifty Two Thousand
Five Hundred and Sixty One).
IN MVC NO.4385/2016 :
30. It is the case of the petitioner that, he has
sustained injuries in the accident. The petitioner has
relied upon Ex.P.18, i.e., the Wound Certificate issued by
Govt. Hospital Kadur, Chikkamagalur, which reveals that
the petitioner had sustained the following injuries :
1) Chip Avulsion fracture greater
tronchanter right.
As per Ex.P.18, injury is grievious in nature.
31. Mother-natural guardian of petitioner is
examined as PW.2. She deposed that, after the accident
her son was shifted to Kadur Government Hospital,
wherein he took first aid and then he was shifted to
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Sahyadri Narayana Multispeciality Hospital, Shimoga. In
the said hospital he took treatment as an inpatient from
13.02.2016 to 18.02.2016 for a period of 6 days. During
the course of treatment, he was managed conservatively
with above knee slab, medication and bed rest. After
necessary treatment he was discharged with an advice to
regular follow-up treatment. In this regard PW.2 has
produced discharge summary at Ex.P.19, wherein it is
clearly discloses that, the petitioner was diagnosed, Chip
Avulsion Fracture greater Tronchanter Right and was
treated conservatively. Though the petitioner has not
produced any documents towards the expenses incurred
for transportation, attendant and other miscellaneous
expenses, it can be said that his parent must have spent
some amount towards transportation, attendant and
other miscellaneous expenses, which needs to be
compensated.
32. The petitioner has produced inpatient detailed
Bill at Ex.P.20 for a sum of Rs.37,170/-. I have gone
through the bills and found nothing to discard or
disbelieve it. Therefore, the amount spent for treatment
needs to be compensated. Hence petitioner entitled for a
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compensation of Rs.37,170/- towards Medical
Expenses.
33. The petitioner, in his tender age suffered
injuries. Though there is no any evidence to show
whether it has resulted in permanent disability, however,
it can be said that the pain and agony will be there
throughout his life. Hence, the petitioner has to be
awarded some amount under the head loss of amenities
in life.
34. In the cross-examination, PW.1 denied that her
son was not taken treatment as an inpatient. She
deposed that, at the time of accident her son was
studying in 4th standard. Thus, the petitioner being a
minor boy of 9 years at the time of accident as shown in
the medical records, he did not suffer any loss of income
during the period of treatment. Thus, considering the
nature of injuries, period of treatment for 6 days as
inpatient, amount spent for treatment, expenses incurred
for attendance, conveyance, miscellaneous expenses, loss
of amenities in life etc., I award Rs.60,000/- (Rupees
Sixty thousand only) under the above heads, which in my
opinion will be just and proper compensation. In total
petitioner is entitled for a sum of (Rs.37,170/- +
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Rs.60,000/-) = Rs.97,170/- (Rupees Ninety Seven
Thousand One Hundred and Seventy Only).
35. The respondent No.1 and 3 contended that, the
drivers of both Lorry and car have not possessed valid DL
to drive the class of vehicles on the date of accident.
36. In order to substantiate its case respondent
No.1 has examined its Deputy Manager as R.W.2. In the
affidavit evidence she has reiterated the averments made
in the objection statement. She has produced Ex.R.9 to
Ex.R.12 i.e., Copy of insurance policy, DL Extract, B-
Register Extract and Permit copies. During the course of
cross examination by 2nd respondent counsel, RW.2
admitted that, at the time of accident the driver of Tanker
Lorry had DL but she deposed that, said DL was expired
on the date of accident. She deposed that, as per the
policy conditions the driver of the lorry shall possess the
DRIVING LICENCE to drive the Petrol Tanker and it is to
be renewed annually/periodically as per the provisions of
Motor Vehicles Act.
37. The respondent No.2 himself examined as RW.1.
During the cross examination by the counsel for
respondent No.1, RW.1 admitted that, there is no
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endorsement on Ex.R.5, relating to permission to drive
Hazardouns Goods vehicle. But he denied that as on the
date of accident the driver of the offending lorry by name
Shivaraj did not possess the DL to drive hazardous goods
vehicle. He voluntarily deposed that, he filed renewal
application before the RTO in the year 2016 and his
driver has collected Ex.R.8 after completion of his
training.
38. The respondent No.1 has also examined the IMV
Inspector of Davanagere RTO as RW.4. During the course
of cross examination by learned counsel for respondent
No.2, RW.4 shows ignorance as he don't know that the
owner of the vehicle had produced the Certificate with
respect to refresher training undergone by his driver to
drive Hazarodous good. But he admitted that the driver
of the offending vehicle was having DL to drive HGV at
the time of accident.
39. To support his defence the learned counsel for
respondent No.2 has relied on the decision reported in
ILR 2014 KAR 2592, between Renu and Another V/s The
Oriental Ins.Co.Ltd, wherein it is held that,
"Motor Vehicles Act, 1988 - Section 173(1) -
Accident claim - Judgment and Award -
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Tribunal fastening liability on the owner of
the vehicle and absolving the Insurer to pay
the compensation - Appeal against the
claimants - Finding of the Tribunal that the
driver did not possess valid and effective
driving licence to drive the vehicle and there
was no endorsement authorizing the driver to
drive hazardous vehicle."
HELD,
(a) Insurer is liable to pay the compensation
as there is valid Insurance Policy as on the
date of accident - The driver also had a valid
driving licence to drive the Tanker except the
endorsement as was contemplated at the
relevant point of time but, it is also clear that
the driver had driving licence with
endorsement which is one or two years prior
to the occurrence of the accident.
(b) Especially in case of Oil Tankers, the main
purpose of such endorsement or training
required is, to take a special care to over
come the situation like capsizing of vehicle,
spilling of oil from the tanker and likelihood
of destruction from fire, confronting with
dangerous situation and in case of head - on
collision, which results in causing damage /
danger to the vehicle namely the tanker as
well as other vehicle involved in the accident,
due to fire there is complete destruction of
defence resulting in damage to both the men
and material.
(c) While the deceased was in the process of
crossing the road, the driver of the Tanker
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drove the Tanker in a rash and negligent
manner and dashed against him, as a result
of which, the deceased died due to the
injuries sustained in the accident. No such
fire of spilling of oil from the Tanker is
indicated. Even nothing is indicated in the
Spot Mahazar in this regard.
I have gone through the decisions of our own
Hon'ble High court, referring to SWARAN SINGH'S case,
it is held having regard to the occurrence of the accident
that the insurer cannot be absolved from its liability.
While modifying the order passed by the Tribunal, it is
held that, the insurer is liable to pay compensation as
there is valid insurance policy as on the date of accident.
The driver also had a valid driving licence to drive the
Tanker except the endorsement as well contemplated at
the relevant point of time but, it is also clear that the
driver had driving licence with endorsement which is one
or two years prior to the occurrence of the accident in the
case on hand.
40. It is apparent from the record that, driver of
Tanker Lorry was holding DL to drive HGV at the time of
accident. The driver was also got refresher course
certificate at Ex.R.14 same is issued on 01.10.2015 and
25 SCCH-24
M.V.C.4384/2016 C/w 4585/2016
same is valid for one year from the date of issue. It is
pertinent to note that, the accident is occurred on 12-
13/02/2016, the Driver's Refresher Training Course
certificate issued on 01.10.2015, hence it is clear that,
the driver was posses valid DL to drive the class of
vehicle on the date of accident.
41. With respect to no petrol load in the insured
Tanker at the time of accident, RW.2 during the cross
examination for respondent No.2 deposed that to the
suggestion, she don't know that at the time of accident
the Tanker was moving empty after unloading the entire
fuel load at different places. But the counsel for
Respondent No.1 stick on to the contention that the
insured petrol tanker was filled with fuel at the time of
accident and the driver of the said vehicle was not
possessing the valid DL to drive the hazardous goods
vehicle, hence it is clear violation of the policy condition
and statutory provisions of M.V.Act and respondent No.1
is not liable to pay compensation in these cases.
42. In this respect the learned counsel for
Respondent No.1 also relied on the decision reported in:-
26 SCCH-24
M.V.C.4384/2016 C/w 4585/2016
i) ACJ 2011-1912 in the case between Nagaveni
and another V/s Singaravelu and another.
ii) ILR 2011 KAR 2827 between Vishwamath Shetty
V/s Vincent Pinto and Another.
43. But in order to disprove the said contentions of
respondent No.1, the respondent No.2 himself examined
as RW.1 and has produced Ex.R.1 to 8 viz.,
- Notarised copy of RC (original perused and
returned).
- Fitness Certificate.
- Insurance policy.
- Notarised copy of Goods Carriage
Permit.(original perused and returned).
- DL Extract.
- Notarised copy of licence to transport
petroleum. (original perused and returned)
- Notarised copy of intimation of renewal of
transport licence (original perused and
returned)
- Notarised copy of certificate issued from
Karnataka State transport department
officer association (original perused and
returned)
44. The respondent No.2 has also examined its
driver as RW.3, who has deposed that, he has given
27 SCCH-24
M.V.C.4384/2016 C/w 4585/2016
statement after the accident stating that his Petrol
Tanker lorry was empty at the time of accident.
45. The respondent No.2 has also examined the eye
witness to the said accident as RW.6. During the cross
examination he deposed that, though it is not mentioned
in the mahazar at Ex.P5 but the petrol tanker was empty
and it was clearly appears and felt when the tanker was
lifted with the help of crane and driver also revealed him
that the tanker was empty at that time.
46. Further the respondent No.2 has examined
DYSP of Arasikere, Hassan District as RW.7. During the
cross examination by the learned counsel for respondent
No.1, RW.7 clearly deposed that, tanker was empty and
since it was empty it did not fee necessary to mention
that aspect in the spot or seizure mahazar. He further
deposed and clarified that if it was a filled tanker, then
the impact of the accident would be more severe than the
actual due to spilling of the fuel.
47. It is pertinent to note that, nowhere in police
records it is mentioned that, the Petrol tanker was filled
with petrol at the time of accident. The evidence of RW.1,
RW.2, RW.4 to 7 clears that, at the time of accident the
28 SCCH-24
M.V.C.4384/2016 C/w 4585/2016
offending Petrol Tanker was empty and no strict
adherence to the rule for possessing DL with prescribed
endorsement to drive petrol tanker is necessary.
Furthermore, the owner of the petrol tanker furnished
the certificate of the driver for having undergone the
refresher training to drive the hazardous goods vehicle
from a training centre. Therefore I am of the opinion that
the defence raised by respondent No.1 is duly discharged
by respondent No.2 by way of rebuttal evidence and also
clarified with the help of rulings of our Hon'ble High
court which is recent than the rulings supra, relied on by
the learned counsel for respondent No.1. In view of the
above said facts and circumstances I came to conclusion
that respondent No.1 cannot be absolved from its liability
to indemnify the insured as per the terms and conditions
of the policy. Hence the respondent No.1 is liable to
indemnify the insured/respondent No.2, the owner of the
petrol tanker lorry.
48. Now coming to the quantum of liability. It is the
case of the petitioners that, Respondent No.1 and 2 are
the Insurer and RC owner of the Tanker Lorry bearing
Reg.No.KA-17-A-0688 and respondent No.3 and 4 are the
Insurer and RC owner of Car bearing Reg.No.KA-05-MP-
29 SCCH-24
M.V.C.4384/2016 C/w 4585/2016
841 hence, they are jointly and severally liable to pay the
compensation to the petitioners. Respondent No.1 and 3
have admitted the issuance of insurance policy in respect
of the offending vehicles. In view of the findings on issue
No.1 to 3 in MVC.4384/2016 and in MVC.4385/2016,
the accident has occurred due to the rash and negligent
driving of both drivers of Tanker Lorry and Car. Thus,
this Tribunal considered the contributory negligence and
fixed it in the ratio of 50:50 on the part of the driver of
the Tanker Lorry and Car.
49. As stated above the petitioner in
MVC.4384/2016 is entitled for a total compensation of
Rs.1,52,561/-(Rupees One Lakh Fifty Two Thousand
Five Hundred and Sixty One only) and petitioner in
MVC.4385/2016 is entitled for a total compensation of
Rs.97,170/- (Rupees Ninety Seven Thousand One
Hundred and Seventy Only) with interest at the rate of
8% p.a from respondents from the date of petition, till the
date of realisation. Respondent No.1 and 2 and
respondent No.3 and 4 are jointly and severally liable to
pay compensation in the ratio of 50:50 to the petitioners.
Accordingly, Issue No.4 of M.V.C.4384/2016 and
30 SCCH-24
M.V.C.4384/2016 C/w 4585/2016
M.V.C.4385/2016 are answered Partly in the
Affirmative.
ISSUE No.5 in M.V.C.No.4384/2016 and
M.V.C.No.4385/2016 :
50. For the foregoing reasons and the discussions
made above, the petitions filed by the petitioners in
M.V.C.No.4384/2016 and M.V.C.No.4385/2016 deserve
to be allowed in part with costs. In result, I proceed to
pass the following:
ORDER
The Claim Petitions filed in M.V.C.4384/2016 and MVC.4385/2016 by the petitioners U/s 166 of The M.V Act are allowed in part with costs. The petitioner in MVC.4384/2016 is awarded a total compensation of Rs.1,52,561/- (Rupees One lakh fifty two thousand five hundred and sixty one only) together with interest at the rate of 8% p.a from the date of petition, till deposit. The petitioner in MVC.4385/2016 is awarded a total compensation of Rs.97,170/- (Rupees Ninety seven thousand one hundred and seventy only) together with interest at the rate of 8% p.a from the date of petition, till deposit.
31 SCCH-24 M.V.C.4384/2016 C/w 4585/2016 Entire awarded amount of Petitioners in MVC.4384/2016 and MVC.4385/2016 shall be kept in the Fixed Deposit in any of the Nationalised or Scheduled Bank in the name of petitioners, till they attains the age of majority free from encumbrance with a liberty to draw the periodical interest by the guardian of petitioners to meet their educational and other expenses. The respondent No.1 to 4 are jointly and severally liable to pay the compensation awarded in this case to the petitioner. The respondent No.1 and 3 shall deposit the said compensation amount in the ratio of 50:50 into the Tribunal within 60 days from the date of this order. Advocate's fee is fixed at Rs.1,000/- each in both cases.
Draw award in both the petitions separately in accordance with the order. Original Judgment is kept in MVC.4384/2016 and the copy of the same is kept in MVC.4385/2016.
(Dictated to the stenographer directly on Computer, typed by him, corrected by me and then pronounced in the open court on this the 27th day of April, 2019).
(Zaibunnisa) XXII A.S.C.J. & XX A.C.M.M., & MEMBER, M.A.C.T., Bengaluru.
32 SCCH-24 M.V.C.4384/2016 C/w 4585/2016 ANNEXURE Witness examined on behalf of the Petitioners :
P.W.1 - Smt. Sarala P.W.2 - Smt. Sarala
Witnesses examined on behalf of the Respondents :
R.W.1 - Sri. Vijay Kumar D.T. R.W.2 - J.Shanthakumari.
R.W.3 - Sri.Shivaraj Rao. R.W.4 - Sri. M.D.Sharashchandra Hegde. R.W.5 - Sri. Imtiyaz Pasha. R.W.6 - Sri. Manjunath. R.W.7 - Sri. Sadanand Thippannavar. R.W.8 - Sri. Shankar A.C.
Documents marked on behalf of the Petitioners :
Ex.P.1 - Copy of FIR. Ex.P.2 - Copy of Complaint. Ex.P.3 - Copy of Wound Certificate. Ex.P.4 - Copy of Spot Mahazar. Ex.P.5 - Copy of Seizer Mahazar. Ex.P.6 - Copy of Sketch. Ex.P.7 - Copy of IMV report. Ex.P.8 - Copy of Charge sheet. Ex.P.9 - Discharge Summary.
Ex.P.10 to - 7 Medical Bills. Ex.P.16 Ex.P.17 - 2 CT scan films together marked. Ex.P.18 - Copy of Wound Certificate. Ex.P.19 - Discharge summary. Ex.P.20 to - 5 Medical bills. 24 Ex.P.25 - CT scan films (4 in Nos.)
33 SCCH-24 M.V.C.4384/2016 C/w 4585/2016 Documents marked on behalf of the Respondents:
Ex.R.1 - Notarised copy of RC (original perused and returned).
Ex.R.2 - Fitness Certificate. Ex.R.3 - Insurance policy. Ex.R.4 - Notarised copy of Goods Carriage Permit.(original perused and returned).
Ex.R.5 - DL Extract. Ex.R.6 - Notarised copy of licence to transport
petroleum. (original perused and returned) Ex.R.7 - Notarised copy of intimation of renewal of transport licence (original perused and returned) Ex.R.8 - Notarised copy of certificate issued from Karnataka State transport department officer association (original perused and returned) Ex.R.9 - Copy of insurance policy.
Ex.R.10 - DL Extract.
Ex.R.11 - B-Register Extract.
Ex.R.12 - Goods carriage permit.
Ex.R.13 - Policy Copy.
(Zaibunnisa)
XXII A.S.C.J. & XX A.C.M.M., & MEMBER, M.A.C.T., Bengaluru.