Bangalore District Court
Sri.Pillappa vs M/S United India Insurance on 29 April, 2016
BEFORE THE COURT OF SMALL CAUSES AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, AT BANGALORE (SCCH-16)
PRESENT: SRI SATISH J.BALI,
B.Com., LL.M.,
X Addl.Judge, Court of Small Causes
(SCCH-16) Bangalore.
DATED THIS THE 29th DAY OF APRIL 2016.
MVC.No.4576/2012
PETITIONERS: 1. Sri.Pillappa,
S/o Late Poojappa,
Aged about 37 years,
2. Smt.Renuka,
W/o Pillappa,
Aged about 30 years,
All are residing at No.187,
Manjunatha Nagar,
Marathahalli,
Bengaluru-560 037.
(By Pleader Sri.K.V.Ravindra
Gowda.)
V/s
RESPONDENTS: 1. M/s United India Insurance
Company Ltd.,
Motor Claims Hub,
Krushi Bhavan,
Hudson Circle,
Bengaluru.
(Policy issued at: No.487/1,
C.M.Road, Near Amar Jyothi
Nurshing Home, Indira Nagar,
Bengaluru.
2 MVC.4576/12
SCH-16
(By Pleader Sri.Janardhan
Reddy)
2. Sri.Lokesh,
S/o Sampangi,
Choodasandra Village,
Sarjapura Hobli,
Anekal Taluk,
Bengaluru-562114.
(Owner of the Tractor No.KA-
12-T-2431)
(By Pleader Sri.B.T.Koller.)
3. Somashekar,
S/o Sri. Munishankarappa,
Govindapura,
Jologenahally,
Hoskote,
Bengaluru.
(By Pleader Sri.Ravikumar)
JUDGMENT
The parents of deceased Kum.Keerthana have filed this petition under Sec.166 of the M.V.Act claiming compensation of Rs.5,00,000/-, which occurred on 1-4-2012.
2. The brief facts of the petition averments are as under:
That on 1-4-12 at about 12.30 p.m. the deceased Kum.Keerthana was pedestrian and she was 3 MVC.4576/12 SCH-16 proceeding in front Yellamma Temple, Manjunatha Nagar Main Road, Manjunathanagar, Bangalore carefully and cautiously by observing all the traffic rules and regulations, at that time, a Tractor bearing Reg.No.KA-12-T-2431 driven by its driver came in a rash and negligent manner without observing the traffic rules and regulations and dashed against the Kum.Keerthana. Due to the impact, the deceased fell down and sustained grievous injuries on vital parts of the body.
2. Immediately after the accident, Kum.Keerthana was taken to Bowring hospital, wherein, the doctor declared as dead. It is further case of the petitioners that they have spent more than Rs.50,000/- for transportation of dead body and also for funeral ceremonies.
3. It is stated that, the Airport Traffic Police have registered case against the driver of Tractor in crime No.42/2012 for the offences punishable under section 279, 337 and 338 of IPC. The respondent No.2, being the R.C. owner and Respondent No.1 being insurer of the offending vehicle, are jointly and severally liable to pay the compensation to the petitioner. 4 MVC.4576/12
SCH-16
4. The respondent No.3 was subsequently impleaded. In response to the summons, the respondent No.1 & 2 appeared before this Tribunal. Though the respondent No.3 appeared through his counsel but not filed his objections.
5. The Respondent No.1 has filed objections contending that the petitioners are neither resident of Bangalore nor working in Bangalore and hence this tribunal has no jurisdiction to entertain the matter. The respondent No.1 has denied issuance of policy in respect of tractor bearing No.KA.12/T.2431. The respondent No.1 further contended that the petition is bad for non joinder of necessary parties as the owner/insurer of the Trailer involved in the accident are not made as parties to the proceedings. Further, respondent No.1 has taken up contention that there is violation of Sec.134 ( c) and 158(6) of MV Act by the respondent No.2. It is specific contention of the respondent No.1 that the 2nd respondent has violated the terms and conditions of the policy by entrusting his Tractor who has no valid and effective DL or badge from the concerned authority. The rest of allegations are in respect of age, death of Kum.Kirthana is 5 MVC.4576/12 SCH-16 denied. The respondent No.1 contended that the accident was due to the negligence on the part of the deceased herself. The parents of the deceased did not take care and due to their negligence only, she met with an accident and not due to the negligence on the part of driver of Tractor. The respondent No.1 denied the amount spent towards Funeral expenses and obsequies ceremonies. On all these grounds, Respondent No.1 prayed to dismiss the petition.
6. The 2nd Respondent in its objections contended that he is not the necessary party to the petition as he has sold the Tractor to the person residing in Marathahalli area long back and he does not even remember the person to whom he sold the Tractor and at the time of sale, the purchaser has taken this respondent signature for all the necessary papers and he is no idea where the said Tractor was being operated. It is further objections of the respondent is that the said Tractor is insured with the 1st respondent and the insurance policy is in force as on the date of accident and respondent No.1 is liable to indemnify the owner and pay compensation. On all these grounds, Respondent No.2 prayed to dismiss the petition.
6 MVC.4576/12
SCH-16
7. On the basis of the above pleadings and propositions of law, the following issues have been framed:
ISSUES
1. Whether the Petitioners prove that the deceased Kum.Keerthana died in a road traffic accident due to involvement of Tractor bearing Reg.No.KA-12-T-2431 on 01-04-2012 at about 12.30 p.m., by its rash and negligent driving as alleged in the petition?
2. Whether the Petitioners are entitled for any compensation as claimed? If so, to what extent and from whom?
3. What order or award?
8. To prove the above issues, the Petitioner No.1 examined before this Tribunal as PW-1 and got marked documents at Ex.P.1 to P.13. The respondent No.1 is examined its Administrative Officer as RW-1 and got marked documents at Ex.R.1 and Ex.R.2. The Venkataraman, FDA, RTO Indira Nagar, Bengaluru is examined as RW.2 and got marked documents at Ex.R.3. The Dobbin Anthony R, Asst.RTO, Indira Nagar, Bengaluru is examined as RW.3 and got marked document at Ex.R.4. The P.Chandrappa, is examined as RW.4 and got marked documents at Ex.R.5 to Ex.R.8. The V.Sridhar, Asst.RTO, K.R.Puram, Bengaluru is 7 MVC.4576/12 SCH-16 examined as RW.5 and no documents were marked on his behalf.
9. I have heard the arguments and perused materials on record. The learned counsel for the petitioners have relied the following decisions:-
1. Civil Appeal Nos 9927-28 of 2014 and 9929-30 of 2014 (Kulwant Singh and others V/s Oriental Insurance Company Limited)
2. AIR 2013 SC 2262 (S.Iyyapan V/s M/s United India Insurance Company Limited and another) The learned counsel for the Respondent No.1 has relied the following decisions in support of his arguments:
1. ILR 2012 KAR 6065 (Sri.B.T.Venkatesh V/s Sri. Jagadeesh Kumar and others)
2. MFA 9169/2005 (MV) (The New India Assurance Company Limited V/s Sri. Afroz and others)
3. ILR 2015 KAR 2064 (Mohammed @ Mohd.Haneef V/s Mallayya @ Mallappa)
4. 2009 ACJ 1104 (P.T.Mooidu V/s Oriental Insurance Company Limited and others)
5. ILR 2011 KAR 2827 (Vishwanath Shetty V/s Vincent Pinto and another)
6. 2014 AIR SCW 165 8 MVC.4576/12 SCH-16
10. By considering the evidence on record and because of my below discussed reasons, I answer the above issues in the followings:
Issue No.1: In the Affirmative Issue No.2: Partly in the Affirmative Issue No.3: As per final order for the following:
REASONS ISSUE NO.1:
11. It is the specific case of the petitioners that due to rash and negligent driving of driver of Tractor bearing No.KA.12/T.2431, death of Kum.Kirthana took place and at the time of accident, Tractor was insured with the respondent No.1. Hence, the respondents are not liable to pay compensation to the petitioners.
12. The respondent No.1 in its objections has contended that the accident was caused to negligence on the part of minor petitioner and her parents did not took care of her, because of which, she met with an accident. Further defence of the respondent No.1 is that the driver of the said Tractor had no valid and effective DL as on the date of accident.
13. The petitioner No.1 was examined as PW-1 and he has reiterated the petition averments in his affidavit filed in 9 MVC.4576/12 SCH-16 lieu of examination-in-chief. He has spoken with regard to the manner of accident, death of his daughter Kum.Kirthana and also expenses incurred towards funeral and transportation of dead body. He has also deposed regarding the registration of criminal case by the Airport traffic police in their Cr.No.42/12 for the offence punishable under Sec.279, 337 and 304(A) of IPC.
14. Apart from the above said oral evidence, PW-1 has produced the copy of FIR at Ex.P.1, complaint at Ex.P.2, wound certificate at Ex.P.3, requisition for alteration of charge sheet at Ex.P.4, sketch at Ex.P.5, spot mahazar at Ex.P.6, inquest mahazar at Ex.P.7, Post-mortem report at Ex.P.8, IMV report at Ex.P.9, charge sheet at Ex.P.10, birth certificate of deceased at Ex.P.11, copy of voters ID card of 1st petitioner at Ex.P.12 and voter ID card of 2nd petitioner at Ex.P.13.
15. On perusal of complaint at Ex.P.2, it is quite clear that one Smt.Renuka W/o.Pillappa, lodged the complaint by stating that on 1-4-12 at about 12.30 p.m. when the deceased was proceeding from Yellamma Temple curve, at that time, Tractor bearing No.KA.12/T.2431 came from Eastern side in 10 MVC.4576/12 SCH-16 a rash and negligent manner and dashed against the deceased who was crossing the road. On the basis of said complaint, FIR at Ex.P.1 came to lodged by the Airport traffic police against the driver of Tractor in Cr.No.42/12, initially for the offence punishable under Sec.279 and 337 of IPC. Subsequently, as per Ex.P.4, after the death of Kirthana, permission was sought to insert Sec.304(A) of IPC on receiving the death intimation from the concerned hospital. The MLC/police intimation at Ex.P.3 reveals that Kum.Kirthana died in the said accident. Ex.P.5-sketch reveals the spot of accident. As per Ex.P.6-, the jurisdictional police have conducted the spot mahazar. Ex.P.7 reveals that after the death of Kum.Kirthana, inquest mahaqzar was conducted. The Post-mortem report as per Ex.P.8 reveals that the deceased was aged about 3years and the death was due to coma, as a result of head injury sustained in the accident. The IMV report at Ex.P.9 reveals that no damages were caused to the Tractor. The jurisdictional police, after investigation have filed the charge sheet against the driver of offending Tractor or the offence punishable under Sec.279 and 304(A) of IPC.
11 MVC.4576/12
SCH-16
16. The respondent No.1 has taken up the contention that the accident was due to the negligence on the part of the deceased herself. But, it is to be noted that the deceased at the time of accident was aged about 3years, when such being the case, it is for the driver of Tractor to take utmost care, in order to avoid the accident. It is incumbent upon the driver of Tractor to take utmost care and should be vigilant in order to avoid the accident with the minor.
17. Though, the respondent No.1 has taken up the contention that the accident was due to the negligence on the part of deceased herself, but the police records as discussed above reveals that the accident was due to the rash and negligent driving of the driver of Tractor himself. More over, the respondent No.1 has only taken up the bald contention as to the aspect of negligence of deceased and not made any efforts to examine the driver of Tractor, who is the best person to say about under which circumstances, this accident took place. More over in case of minors, negligence need be strictly proved. In this regard it is useful to refer decision reported in ILR 2000 KAR 2792 ( Kumari Sneha vs National Ins.Co.Ltd., and another) wherein it is held that 12 MVC.4576/12 SCH-16 in a case of accidents involving minor children, question of "negligence" need not be strictly proved-Also the decision reported in Sunder Shetty vs Sanjeeva Rao and others 1982 ACJ 129 followed.
18. PW-1 was cross-examined by the learned counsel for the respondent No.1. No eye witnesses of the accident were examined before this Tribunal. The police records reveals that due to the rash and negligent driving of the driver of Tractor of respondent No.2, this accident occurred. Though, in the cross-examination of PW-1, an attempt was made to falsify the involvement of Tractor in the accident, but the police records reveals that the accident was due to the involvement of Tractor bearing NO.KA.12/T.2431. Hence, viewed from any angle, this tribunal can safely come to the conclusion that Kum.Kirthana died in the RTA, which occurred on 1-4-2012, due to rash and negligent driving of offending Tractor by its driver. Accordingly, I answer Issue No.1 in the affirmative.
13 MVC.4576/12
SCH-16 ISSUE NO 2:
19. This issue is in respect of the quantum of compensation to be awarded to the petitioners and from whom the same is to be paid. The respondent No.1 has taken up specific contention that at the time of accident, owner of offending Tractor had handed over the vehicle who did not possess valid and effective DL. The learned counsel for the respondent No.1, during the course of his arguments has vehemently argued that the insured has violated the terms and conditions of the policy. There was no permit to run the Tractor. The Exs.R.2 to R.4 makes it clear that the driver had no valid DL at the time of accident and the Tractor was attached the water tanker and the Tractor was used for commercial purposes. Hence, contended that the respondent No.1 is not liable to pay compensation to the petitioners. In view of the said contentions urged by the learned counsel for the respondent No.1, I have carefully perused the written statement filed by the respondent No.1. No where in the objections filed by the respondent No.1, has taken up the contention that at the time of accident, the offending vehicle was not having valid permit to run the vehicle. The 14 MVC.4576/12 SCH-16 respondent No.1 has contended that the vehicle was used for commercial purpose. Admittedly, as could be seen from Ex.R.2, which is copy of policy issued in respect of offending vehicle/ Tractor, there is clear mention that the Tractor should be used only for agricultural purpose. Though, "B" extract was produced as per Ex.R.7, but, no where in the said Ex.R.7, there is endorsement that the vehicle was used for commercial purpose. Exs.R.1 to R.8 have been produced by the learned counsel for the respondent No.1, but, in all these documents, there is no reference to show that the Tractor was used for commercial purpose as contended by him. Ex.R.2-insurance policy was issued to the Tractor to use for agricultural and forestry purposes and an adverse inference can be drawn that the tanker was used for agricultural purpose. In the absence of any materials, this tribunal has come to the conclusion that at the time of accident, the Tractor was not used for commercial purpose.
20. The Administrative Officer of respondent No.1 was examined as RW-1. He has stated that they have issued miscellaneous and special type of liability only policy in respect of 2nd respondent. But the RC stands in the name of 15 MVC.4576/12 SCH-16 Somashekara as on the date of accident. On careful perusal of RC extract at Ex.R.7, the respondent No.2 was shown as registered owner. Though, respondent No.2 has taken up contention that he has sold the Tractor, but, he has not produced any documents to support his contention with Ex.R.7 and it reveals that the respondent No.2 is the owner of Tractor. RW-1 has stated that RC stands in the name of Somashekar, as on the date of accident, but he is not made as party to this petition. On perusal of Ex.R.7, it is clear that the RC stands in the name of 2nd respondent /Lokesh, hence, question of Somashekar to make party to the present petition will not arise for consideration.
21. RW-1 has also further stated that the insured has violated the terms and conditions of the policy, since, at the time of accident, he has entrusted the Tractor to a person, who has no valid and effective DL or transport endorsement to drive the Tractor. Further, he has also stated that at the time of accident, insured has not obtained the valid permit and he was using his Tractor for commercial purpose other than agricultural purpose and he has violated the terms and conditions of the policy. But, I have already discussed above, 16 MVC.4576/12 SCH-16 no where in the objections of respondent No.l, it has taken specific contention that there is violation of permit conditions. Hence, whatever the evidence led by RW-1 in respect of violation of permit is not supported by objections. Hence, the evidence let-in by RW-1 without objections cannot be considered. Moreover, the respondent No.1 has not produced any documents to show that the Tractor was used for commercial purposes other than agricultural purpose. Hence, viewed from any angle, the contention of respondent No.1 that the vehicle/ Tractor was used for commercial purpose is falls to the ground.
22. RW-1 in his cross-examination has admitted that they have issued policy in respect of Tractor for agricultural purpose. RW-1 has admitted that at the time of accident, the policy was in force. He also admitted that when the policy was issued to the Tractor was standing in the name of 2nd respondent. He also admitted that they have not produced any documents to show that the offending vehicle was stood in the name of Somashekar. A suggestion was put to RW-1 that only Tractor engine bearing No.KA.12/T.2431 was involved in the accident and the said suggestion was denied. 17 MVC.4576/12
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23. It is stated that on perusal of police records, it is clear that only Tractor bearing No.KA.12/T.2431 was involved in the accident. The respondent No.1 has not produced any documents to show that the Trailor was attached to the Tractor at the time of accident .RW-1 has admitted that at the time of accident, driver of Tractor had LMV licence.
24. The respondent No.1 has examined RTO of Indiranagar as RW-2. He has produced DL extract at Ex.R.3. Through the evidence of RW-3, it is stated that as per Ex.R.3, driver had valid DL to drive the non transport vehicle and he has no DL to drive transport vehicle. In the cross- examination, RW-3 has admitted that the driver can drive Tractor and the DL was valid upto 2016. He has stated that he do not know the period of permit. Ex.R.5 is an authorization letter, Ex.R.6 is information letter, Ex.R.7 is the B-register extract and Ex.R.8 is the endorsement extract. These are all documents have been got marked through RW-4. On perusal of Ex.R.6-tax clearing certificate issued from RTO, K.R.Puram on 112-7-2007. Ex.R.7-is the B extract, which reveals that the Tractor stands in the name of Lokesh/2nd respondent. DL extract at Ex.R.3 reveals that the 18 MVC.4576/12 SCH-16 driver had valid DL to drive the non transport vehicle from 28-9-2002 to 21-7-2016.
25. The learned counsel for the respondent No.1 has pressed into service of rulings reported in ILR 2012 KAR 6065 (Sri.B.T.Venkatesh V/s Sri. Jagadeesh Kumar and others), wherein, the Hon'ble High Court of Karnataka has come to the conclusion that in case of violation of permit, the insurance company is not liable to pay compensation. There is no dispute with regard to the said position of law. But, in this case, as I have already discussed above, no wherein the written statement, the respondent No.1 has not taken up the contention that there is violation of permit condition. Hence, the said ruling is not applicable to the facts of the present case on hand.
26. Further in another ruling in unreported judgment in MFA 9169/2005 (MV) (The New India Assurance Company Limited V/s Sri. Afroz and others), wherein the Hon'ble High Court of Karnataka has come to the conclusion that on the basis of Ex.P.2-charge sheet, the driver had no DL as on the date of accident. Hence, the insurance company was not made liable to pay compensation. But, in this case, on 19 MVC.4576/12 SCH-16 perusal of charge sheet at Ex.P.10, no where, the investigation Officer has stated in the charge sheet that the driver of Tractor had no valid and effective DL at the time of accident. Hence, the said ruling is not applicable to the facts of the case on hand and it is not helpful to the respondent No.1.
27. The respondent No.1 has pressed into service of ILR 2015 KAR 2064 (Mohammed @ Mohd.Haneef V/s Mallayya @ Mallappa), wherein the Hon'ble High Court of Karnataka has held that where a person holding a licence to drive a LMV(NT) vehicle has the authority to drive the LMV(TP) vehicle.
28. The respondent No.1 relied upon another ruling reported in 2009 ACJ 1104 (P.T.Mooidu V/s Oriental Insurance Company Limited and others) wherein the Hon'ble High Court of Kerala has come to the conclusion that no; absence of badge in driving a commercial vehicle is not a ground to deny compensation to a third party. The said ruling is not helpful to the respondent No.1.
28. Further the respondent No.1 has pressed into service of the ruling reported in ILR 2011 KAR 2827 20 MVC.4576/12 SCH-16 (Vishwanath Shetty V/s Vincent Pinto and another) wherein the Hon'ble High Court of Karnataka has held that a person driving any type of vehicle should possess valid licence to drive a particular vehicle with proper endorsement in his driving licence permitting him to drive the type of vehicle, whether it is a transport vehicle or otherwise.
29. But, in a ruling reported in (2015) 2 Supreme Court Cases 186 (Kulwant Singh and others-vs- Oriental Ins.Co.Ltd.,) , wherein, the Hon'ble Apex court has held that the driver having valid licence to drive a light motor vehicle was authorized at the relevant time to drive a light goods vehicle as well and hence, the insurance company is liable to pay compensation. The Hon'ble Apex Court has come to the said conclusion relying upon the ruling reported in (2013) 7 SCC-62 (S.Iyyappan vs United India Ins.Co.Ltd.,) held that in the absence of an appropriate endorsement of transport or non transport, the insurer cannot absolve its liability to satisfy the award.
30. Further in another unreported judgment in MFA 4693/2012 (MV) (The Divisional Manager V/s Smt.Puttamma and others) wherein the Hon'ble High Court 21 MVC.4576/12 SCH-16 of Karnataka has relied on sri.S. Iyyappan's case and come to the conclusion that the insurance company cannot avoid its liability to pay the compensation on the ground that the driver had no valid DL to drive the non transport vehicle. Even though, he had licence to drive LMV.
31. Further in unreported judgment in MFA 31687/2010 (W.C) (Oriental Insurance Company Limited Raichur V/s Meenaji Kalal and others) wherein the Hon'ble High Court of Karnataka has held that the insurer cannot disown its liability on the ground that there was no endorsement to drive a commercial vehicle and primary duty of the insurer to satisfy the claim.
32. Further in unreported judgment in MFA 5955/2013 (Nagesh V/s Balakrishna and others) wherein the Hon'ble High Court of Karnataka has come to the same said conclusion . Further in another unreported judgment in MFA 3430/2012 C/W.MFA.3429/12(MV) (The Regional Manager V/s Aktha Unnisa and others) the same view was expressed by the Hon'ble High Court of Karnataka in the said judgment relied on S.Iyyappan's case and come to the said conclusion. Further, in unreported judgment in 22 MVC.4576/12 SCH-16 MFA.4765/14(MV) (Bajaj Alliance Ins.Co.Ltd., vs Govindaraju.B.T. and others) wherein the Hon'ble High Court of Karnataka has relied on the same decision of Sri. S.Iyyappan's case.
33. The ruling reported in (2015) 2 Supreme Court Cases 186 (Kulwant Singh and others -vs- Oriental Ins.Co.Ltd.) being the latest judgment rendered by the Hon'ble Apex Court, stood good as on today as it is the latest judgment. This court by relying on the said judgment has come to the conclusion that, even though, the driver having valid license to drive light motor vehicle is authorized to drive a light goods vehicle as well and the insurance company is liable to pay compensation. In view of the above said ruling of the Hon'ble Apex court, the rulings relied upon by the learned counsel for the respondentNo.1's counsel will not come to his aide as all the courts of the country have to follow the decision of highest court of law, i.e, the Apex Court as per rules of precedents.
34. The deceased Kum.Kirthana was a minor girl aged about 3years. She was crossing the road at Yellamma temple by the side, at that time, offending vehicle came in a rash and 23 MVC.4576/12 SCH-16 negligent manner and dashed to the Kirthana. Due to the impact, she succumbed to the injuries in the hospital. She is non earning member. For having taken note of the materials available before the court, it is a fit case to apply following judgment:
35. The Hon'ble Supreme Court in the judgment reported in 2013 AIR SCW 5037 (Kishan Gopal and another Vs. Lala and others) has awarded compensation of Rs.5,00,000/-. In the case on hand when the deceased is a minor, I am of the opinion that, the Petitioners are entitled for compensation of Rs.5,00,000/- under Conventional Heads. (i.e. loss of love and affection, discomfort, funeral expenses, last rites etc.)
36. The details of compensation I propose to award are as under:
Sl.No. Head of Compensation Amount/Rs
1. Loss of dependency 5,00,000/-
Total 5,00,000/-
In all the Petitioners are entitled for compensation of Rs.5,00,000/-.24 MVC.4576/12
SCH-16 Interest:
36. Relying upon a judgment of the Apex Court reported in 2013 AIR SCW 5375 (Minu Rout and others Vs. Satya Pradyumna Mohapatra and others), with regard to interest at the rate of 9% p.a. on the compensation amount, in para 13 of the judgment, the Apex Court held that Insurance Company is also liable to pay interest at the rate of 9% p.a. from the date of application till the date of payment and also by following the principles laid down in (2011) 4 SCC 481 :
(AIR 2012 SC 100) (Municipal Council of Delhi Vs. Association of Victims of Uphaar Tragedy). In view of the above judgments with regard to the rate of interest, and also it is settled law that while awarding interest on the compensation amount, the Court has to take into account the rate of interest of the nationalized bank and the rate of interest at 9% cannot said to be on the higher side. Accordingly, the Petitioners are entitled to interest at the rate of 9% p.a. Liability:
37. While answering issue No.1, it was come to the conclusion, that the accident was occurred on account of 25 MVC.4576/12 SCH-16 rash and negligent driving of Tractor bearing No.KA.12/T.2431 by the driver of respondent No.2. The respondent No.2 insured the Tractor with the respondent No.1 and the policy was in force as on the date of accident. Therefore, the respondent No.1 being the insurer and respondent No.2 being owner of the offending vehicle are jointly and severally liable to pay compensation to petitioner with interest at 9% p.a. However, primary liability is fixed on respondent No.1. Accordingly, issue No.2 is answered partly in the affirmative.
ISSUE No.3:-
38. In view of my above findings, the petition is deserves to be partly allowed. Hence, I proceed to pass the following order:
ORDER The petition filed by the Petitioners is allowed in part.
The petition against respondent NO.3 is dismissed.
The Petitioners are entitled for compensation of Rs.5,00,000/- (Rs.Five Lakhs Only) with interest at the rate of 9% p.a. from the date of petition till realisation.26 MVC.4576/12
SCH-16 The Respondents No.1 and 2 are jointly and severally liable to pay the award amount. However, the primary liability to pay the compensation amount is fixed on the Respondent No.2.
Respondent No.1 is directed to pay the compensation amount within two months from the date of this order.
Compensation amount is apportioned as follows:-
Petitioner No.1 -Father 50%
Petitioner No.2 -Mother 50%
Out of the said compensation amount
awarded, 50% of the compensation amount with proportionate interest shall be deposited in the name of the Petitioner Nos.1&2 as FD in any nationalized bank for a period of five years (without any encumbrance or premature withdrawal) with liberty to draw the accrued interest periodically and the remaining 50%amount with proportionate interest shall be released to the Petitioner Nos1&2 through A/c payee cheque on proper identification and verification.
Advocate's fee is fixed at Rs.1,000/-. Draw an award accordingly.
(Dictated to the stenographer, transcribed by her, corrected and then pronounced in the open court this the 29th day of April 2016) (SATISH.J.BALI) MEMBER:MACT, BANGALORE.27 MVC.4576/12
SCH-16 ANNEXURE Witnesses examined on behalf of petitioners:
PW.1 : Pillappa Documents marked on behalf of petitioners:
Ex.P.1 : FIR
Ex.P.2 : Complainant Statement
Ex.P.3 : Wound Certificate
Ex.P.4 : Requisition for alteration of Charge Sheet
Ex.P.5 : Sketch
Ex.P.6 : Spot Mahazar
Ex.P.7 : Inquest Mahazar
Ex.P.8 : PM Report
Ex.P.9 : IMV Report
Ex.P.10 : Charge Sheet
E.xP.11 : Notarised copy of birth certificate
Ex.P.12 : Notarised copy of voter ID
Card of the Petitioner No.1
Ex.P.13 : Notarised copy of voter ID
Card of the Petitioner No.2
Witnesses examined on behalf of respondents:
RW.1 : Hans Shivhari RW.2 : Venkataraman RW.3 : Dobbin Anthony R RW.4 : P.Chandrappa RW.5 : V.Sridhar
Documents marked on behalf of the respondents:
Ex.R.1 : Authorization Letter
Ex.R.2 : Policy
28 MVC.4576/12
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Ex.R.3 : D.L.Extract
Ex.R.4 : Authorization Letter
Ex.R.5 : Authorization Letter
Ex.R.6 : Information Letter
Ex.R.7 : B-Register Extract
Ex.R.8 : Endorsement Extract
(SATISH.J.BALI),
MEMBER, MACT BANGALORE.