Bangalore District Court
K.S.R.T.C vs Car Chassis Carriers Pvt Ltd on 18 January, 2024
KABC020145952020
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BENGALURU CITY
SCCH-17
PRESENT: SRI.KANCHI MAYANNA GOUTAM., B.A.L, LL.M.,
Member, MACT
XVIII ADDL. JUDGE,
Court of Small Causes,
BENGALURU.
Dated this the 18th day of January- 2024
MVC No.3205/2020
PETITIONER: Karnataka State Road
Transport Corporation Ltd.,
Bangalore Central Division,
K.H. Road, Shanthinagar,
Bangalore
R/by its Divisional Controller
(By Sri.Venkata Reddy C.M., Adv.)
V/s
RESPONDENTS: 1.Car Chassis Carriers Pvt.
Ltd., Chadmari, Kohima,
Nagaland - 797 001
(Exparte)
2. ICICI Lombard Gen. Ins.
Co. Ltd., The Estate,
No.121, 9th floor,
SCCH-17 2 MVC No.3205/2020
Dickenson Road, M.G. Road,
Bangalore - 01
Rep. By its Manager
(By Sri.A.N. Hegde., Adv.) .
JUDGMENT
The petitioner has filed this petition U/Sec.166 of the Motor Vehicles Act claiming compensation for the damages caused to KSRTC bus bearing Reg.No.KA-57-F- 2477 in a road traffic accident that occurred on 14.03.2018.
2. The petition averments in brief are as under:
The petitioner is the RC owner of the KSRTC bus bearing No.KA-57-F-2477. On 14.03.2018, the KSRTC bus was on its regular scheduled route from Belgaum to Bangalore and when the said bus proceeds towards Bangalore via Tumkur, reached near Nelamangala Navayuga toll line-2 and stood to pay toll charges, at that time the driver of container lorry bearing No. NL-01- N-2586 came from back side driven by its driver in a rash SCCH-17 3 MVC No.3205/2020 and negligent manner and dashed against the car bearing No. KA-05-ML-4717 which was standing in front of it and also dashed against another alto car bearing No. KA-13-M-8490 and then it dashed against KSRTC bus bearing No. KA-57-F-2477 and then it dashed against maruthi car bearing No. KA-57-MS-7574. Due to the above said accident, the KSRTC bus bearing No. KA-57- F-2477 was badly damaged and lost revenus as per the job card.
The said bus was taken to Divisional work shop Bangalore Central Division for getting repaired and the bus stood idle for 10 days. The petitioner corporation arranged another bus to the route and shift the passengers and the material consumed for repais amounts to Rs.38,203/- and lost its revenue due to idling of the bus amounts to Rs2,63,000/-. The bus has been sent for repairs from 17.3.2018 to 26.3.2018. In the usual course of its routine operation, the petitioner's SCCH-17 4 MVC No.3205/2020 corporation was getting income of Rs.26,300/- per day since, the bus kept idle for 10 days, the petitioner is liable for getting idling charges amounting to Rs.2,63,000/-. In all the petitioner claims Rs.3,01,203/-
as compensation and damages.
As on the date of accident, first respondent is the owner and second respondent is the insurer of the offending lorry bearing No. NL-01-N-2586. Hence prays to award compensation of Rs.3,01,203/- with interest.
3. After service of notices the respondent No.1 has not appeared hence, he placed exparte. The respondent No.2 entered appearance through its advocate and filed objection statement.
The respondent No.2 in its written statement admitted the issuance of policy to the lorry bearing No. NL-01-N-2586 and the liability of this respondent, if any, SCCH-17 5 MVC No.3205/2020 is subject to terms and conditions of the policy. Further contended that at the time of accident, the driver of the offending lorry was not holding valid and effective driving licence to drive the same. The alleged offending vehicle has not committed the accident. The compensation claimed by the petitioner is very high and exorbitant. Accordingly, respondent No.2 prays to dismiss the petition against it.
4. On the basis of the rival contention, the following issues are framed by this court:
1. Whether the petitioner proves that, the KSRTC bus bearing No. KA-57-F-2477 was sustained damages due to RTA alleged to have been occurred on 14.3.2018 at about 5.00 p.m. on Bangalore- Tumkur road, near Nelamangala Navayuga toll line No2-
due to rash and negligence driving of driver of container lorry bearing No. NL-01-N-2586?
2. Whether the petitioner is entitled for compensation? If so, what amount and from whom?
3. What Order or Award?
SCCH-17 6 MVC No.3205/2020
5. In order to prove the claim petition, the petitioner examined its Traffic inspector as P.W.1 and got marked the documents at Ex.P.1 to 9. The second respondent examined its official as RW.1 and got marked documents at Ex.R1 to 8
6. I have heard the arguments on both sides and perused the materials available on record.
7. My findings on the above issues are as under.
Issue No.1 : In the affirmative,
Issue No.2 : In the partly affirmative,
Issue No.3 : As per the final orders
for the following:-
: R E A S O N S:
ISSUE NO.1 :
8. That by reiterating all the averments made in the petition, the traffic inspector of petitioner corporation filed affidavit by reiterating the contents of petition and produced Ex.P.1 to 9 document. On perusal of Ex.P1, which is an authorisation letter, which has authorised SCCH-17 7 MVC No.3205/2020 the PW.1 to represent the petitioner corporation in this case. The Ex.P2 is FIR which is registered on the basis of Ex.P3, complaint. The contents of Ex.P.2 & 3 is in accordance with the allegation of the petitioner and also supported the case of the petitioner in respect of rash and negligent driving by the driver of lorry bearing No.NL-01-N-2586. The Ex.P4 is charge sheet which is filed against the driver of lorry bearing No.NL-01-N- 2586. In the charge sheet it is opined by the IO that the said accident is caused due to the rash and negligent driving by the driver of lorry bearing No.NL-01-N-2586. Ex.P5 is rough sketch which also depicts that the accident has caused by the the driver of lorry bearing No.NL-01-N-2586 while the other vehicles were parking near to toll. Ex.P5 supported the case of the petitioner regarding the rash and negligent driving by the driver of lorry bearing No.NL-01-N-2586. Ex.P6 is the copy of IMV report wherein the damages to the vehicles involved SCCH-17 8 MVC No.3205/2020 in the alleged accident is mentioned. On considering the damages mentioned to vehicle bearing No. NL-01-N-2586 and the vehicle of the petitioner it is found that the offending has got damaged in its front side and the vehicle of the petitioner has got damaged in its front and rear side. This once again supported the case of the petitioner. Even though at the time of cross-examination of PW.1, the respondent No.2 has taken a contnetion that the offending vehicle bearing No. NL-01-N-2586 has not directly hit the vehicle of the petitioner, on considering the rough sketch due to the rash and negligent driving by the the driver of lorry bearing No.NL-01-N-2586 the alleged accident has taken place and the negligence of the driver of lorry bearing No.NL-01-N-2586 is the sole reason for the said accident.
9. In the accident cases, it is settled principle of law that "RES- IPSA LOQUITUR" which means the things speaks itself, is the standing principle to know the SCCH-17 9 MVC No.3205/2020 nature of the accident. On perusal of Ex.P5- rough sketch along with damages mentioned to the KSRTC bus bearing No. KA-57-F-2477 and the lorry bearing No.NL- 01-N-2586. in the Ex.P6 IMV report prima- facie shows the negligence on the part of the driver of lorry bearing No.NL-01-N-2586. By considering all these points, the Ex.P3- charge sheet was came to filed against the driver of lorry bearing No.NL-01-N-2586.
10. It is necessary to state, that even at the cost of repetition that the Nelamangala Traffic Police who registered the FIR on the basis of first information and charge sheeted the driver of lorry bearing No.NL-01-N- 2586, thereby prima facie opining that the said accident occurred due to rash or negligent driving of the driver of lorry bearing No.NL-01-N-2586. In this case it is very important to note that the respondent no.1 who is the owner of the lorry bearing No.NL-01-N-2586. remained exparte and thereby has not availed the chance of cross SCCH-17 10 MVC No.3205/2020 examining the P.W.1 and this goes to show that respondent No.1 do not dispute the facts asserted by the PW.1 and there is nothing on record on the basis of which it can be said that the negligence on the part of the driver of the KSRTC bus led to the accident.
11. The view taken by this Court that the police records are prima facie proof in support of the case of the petitioner, is supported by the decision rendered in Kishan Gopal and another Vs. Lala and others reported in 2013 (4) T.A.C 5 (S.C.), wherein the Hon'ble Apex Court has categorically held thus:
12. In view of the aforesaid facts, the Tribunal should have considered both oral and documentary evidence referred to supra and appreciated the same in the proper perspective and recorded the finding on the contentious issue No. 1 & 2 in the affirmative. But it has recorded the finding in the negative on the above issues by adverting to certain statements of evidence of AW1 and referring to certain alleged discrepancies in the FIR without appreciating entire evidence of AW1 and AW2 on record properly and also not assigned valid reasons in not accepting their testimony. The SCCH-17 11 MVC No.3205/2020 Tribunal should have taken into consideration the pleadings of the parties and legal evidence on record in its entirety and held that the accident took place on 19.07.1992, due to which Tikaram sustained grievous injuries and succumbed to the same and the case was registered by the Uniara Police Station under Sections 279 and 304A, IPC read with Sections 133 and 181 of the M.V. Act against the first and second respondents. The registration of FIR and filing of the chargesheet against respondent Nos.1 & 2 are not in dispute, therefore, the Tribunal should have no option but to accept the entire evidence on record and recorded the finding on the contentious issue Nos.1 and 2 in favour of the appellants.
12. The respondent No.2 has lead evidence, but failed to disprove the allegation of the petitioner in respect of negligence by the driver of lorry bearing No.NL-01-N-2586. Hence, by relying on the said precedent and in the absence of rebuttal evidence and denial in respect of police documents marked at Ex.P1 to 6, this court is of the opinion that the accident has SCCH-17 12 MVC No.3205/2020 happened due to the rash and negligent driving of the driver of lorry bearing No.NL-01-N-2586.
13. In a claim for compensation under Section 166 of Motor Vehicles Act, 1988, the claimant is to prove the incident only on preponderance of probabilities and the standard of proof beyond reasonable doubt is not required as held by Hon'ble Supreme Court in the decision reported in 2011 SAR (CIVIL) 319 Kusum and others V/s Satbir and others.
14. Further the Hon'ble Supreme Court in case of Bimla Devi and others v. Himachal Road Transport Corporation and others (2009) 13 SCC 530, wherein it is held that, it was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. SCCH-17 13 MVC No.3205/2020 The standard of proof beyond reasonable doubt could not have been applied.
15. The standard of proof in the proceedings like the present one is the probabilities of preponderance. On weighing the material evidence available on record, there are sufficient evidence to prove that the KSRTC Bus bearing Reg.no..KA-57-F-2477 which belonging to the petitioner Corporation is damaged in the accident dated 14.3.2018, due to the rash and negligent driving of the the driver of lorry bearing No.NL-01-N-2586. which belonging to the respondent no.1 and insured with respondent No.2. Accordingly, issue No.1 answered in the affirmative.
16. Issue No.2: As per the reasons discussed in Issue No.1, it is already held that the KSRTC bus bearing N. KA-57-F-2477 has got damaged by the negligent driving of the driver of lorry bearing No.NL-01-N-2586. Thus, the next point before this tribunal to consider is, SCCH-17 14 MVC No.3205/2020 the quantum of damages and compensation. The petitioner being the owner of the KSRTC bus claimed for the compensation and damages under the following two heads;
Loss of income Rs.2,63,000/-
Damages Rs. 38,203/-
Total Rs.3,01,203/-
17. For the easy appreciation, the above heads in which the petitioner Corporation claiming for the compensation are taken separately for discussion to verify the entitlement of the petitioner Corporation to get the compensation under these heads.
I. Loss of income In the chief affidavit and also in the petition, it is alleged that the KSRTC bus bearing No. KA-57-F-2477 was unable to complete the trip and also stood idle for SCCH-17 15 MVC No.3205/2020 10 days for the purpose of repair. The KSRTC bus bearing No. KA-57-F-2477 was earning the income of Rs.26,300/- per day and as it is stood idle for 10 days they are entitle for the loss of revenue of Rs.26,300 X 10= Rs.2,63,000/-.
18. To support the said contention the PW.1 produced the Ex.P8 certificate along with daily revenue sheet wherein it is certified that the KSRTC bus bearing No. KA-57-F-2477 was earning Rs.26,300/- income per day. Except these documents no other documents are produced to show the actual income of the said KSRTC bus. No doubt, that the Ex.P5 is a certificate issued by the petitioner corporation to show the actual income of the said bus. Hence, whether due to non working of the said bus whether the petitioner corporation is entitle for the compensation under the head of loss of revenue/ income has to be looked into. The learned counsel for the respondent by relying on the Sec. 72 of IMV Act SCCH-17 16 MVC No.3205/2020 contended that the Transport Authority while issuing stage carrier permit to the transporters would compulsory incorporate condition by directing the transporters to maintain spare vehicles. As such, in this case, the KSRTC usually keeps the spare vehicles, has plied the other spare bus in the said route hence, it is not entitle for the compensation under the head of loss of revenue. By considering the argument canvassed by the learned counsel for the respondent, it is necessary to examine clause 17 (xvii) of sub-section (2) of Section 72 of the Motor Vehicles Act and Rule 69-A of the Motor Vehicles Rules.
Section 72 of the Motor Vehicles Act, 1988,
72. Grant of stage carriage permits.- (1) Subject to the provisions of Section 71, a Regional Transport Authority may, on an application made to it under Section 70, grant a stage carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit: SCCH-17 17 MVC No.3205/2020
Provided that no such permit shall be granted in respect of any route or area not specified in the application.
(2) The Regional Transport Authority, if it decides to grant a stage carriage permit, may grant the permit for a stage carriage of a specified description and may, subject to any rules that maybe made under this Act, attach to the permit anyone or more of the following conditions, namely-
(i) to (xvi) - XXXX (xvii) The vehicles to be kept as reserve by the holder of the permit to maintain the operation and to provide for special occasions;"
Rule 69-A of the Motor Vehicles Rules, 1989, reads as under:
"69-A. Maintenance of reserve vehicles.- The conditions regarding maintenance of reserve vehicles specified in clause (xvii) of sub-section (2) of Section 72 of the Act, shall be incorporated in every permit granted to a person and the maximum number of reserve vehicles to be maintained with valid permits for such use shall be as specified in the table below:SCCH-17 18 MVC No.3205/2020
No. of permits Maximum number of
reserve vehicles that
can be maintained
Upto 4 1
Upto 5 to 10 2
Upto 11 to 20 3
Upto 21 to 30 4
Upto 31 to 40 5
Upto 41 to 50 6
Upto 51 and above Not less than 10%
of the fleet strength
The learned counsel for the petitioner produced the copy of judgment of Hon'ble High Court of Karnataka in MFA No. 4377-2001 between the Managing Director, KSRTC V/s. United India Ins. Co. Ltd., and others, by arguing that the petitioner company is entitle for the compensation under the head of loss of income.
19. Further the learned counsel for respondent No.2 also relied on the judgment of Hon'ble High Court of Karnataka in M.F.A. No. 6416-2014 between National Insurance Company Ltd., V/s. The Senior Divisional SCCH-17 19 MVC No.3205/2020 Controller and another, MISCELLANEOUS FIRST APPEAL NO.6416 OF 2014 (MV-DM), C/W, MISCELLANEOUS FIRST APPEAL NO.4481 OF 2014 (MV-I), IN M.F.A.NO: 6416/2014: wherein it is held that "24.A perusal of the above provisions would clearly indicate that while issuing a stage carriage permit to the transporters, the authorities would incorporate the condition that permit holder must have spare / reserve vehicles for being plied in the route in the eventuality of break down or being stationed for repair or for whatsoever reason if the said vehicle is not plied.
25. It is not the specific case of claimant KSRTC that the loss of revenue was due to non-user of spare vehicles on Mangalore to Bombay route during the repair period of Volvo bus. In the present case, PW-2 - Divisional Mechanical Engineer of KSRTC has filed affidavit in lieu of oral evidence, wherein he has stated that the KSRTC could not be put on the road i.e., from 25.09.2007 to 22.11.2007. On a moderate calculation, loss of revenue due to non- use of the bus after deduction of maintenance charges would be Rs.20/- per km., thus, the net revenue loss per day would be Rs.10,000/-. But, he has not specifically stated that spare bus SCCH-17 20 MVC No.3205/2020 was not used for plying in the route of Mangalore to Bombay during the period of repair of the damaged Volvo bus. In the cross-examination, he has stated that in the said route, Volvo buses have been plied prior to and after the accident.
26. It is pertinent to note that as per Rule 69-A of the Motor Vehicles Rules, there is a requirement of law for maintaining spare / reserve vehicles as an alternative arrangement when the buses plying on the said route either break down or stationed for repairs or any other reason. Thus, the transporters are duty bound to maintain the spare vehicles. When the transporters earn the income / revenue by making use of the spare vehicles, they are not entitled to claim towards loss of revenue / income. The evidence placed on record disclose that the claimant Corporation was in possession of reserve vehicles as on the date of the accident. But no convincing evidence has been placed to show that the spare vehicles were not used in the route of Mangalore to Bombay when the damaged Volvo bus which was plied in the said route was kept in the garage for repairs.
27. Under these circumstances, this Court is of the considered view that the finding given by the Tribunal regarding the loss of income suffered by SCCH-17 21 MVC No.3205/2020 the KSRTC is erroneous and the same is not justified".
Further the Hon'ble High Court of Karnataka in MFA No. 22143/2009 in the case of NWKTC Vs. Pushpaja and another, in para 8 of this decision, it has been held as follows;
"Thus, it would emerge that Corporation was possession reserve vehicles on the date of accident and as such it was incumbent upon it to establish that in the route where damaged bus was plying that spare vehicles had not been put to use or it has not plied. This has not been done by the Corporation M.V. Act and the Rules would clearly indicate that permit holder is mandatorily required to have reserve vehicle and in the instant case, PW.1 himself admits that there were reserve vehicles. In that view of the matter, I am of the considered view that the Tribunal was fully justified in disallowing the claim for award of loss of revenue to the Corporation and there is no infirmity in the order under challenge".SCCH-17 22 MVC No.3205/2020
20. By keeping the said precedent in back ground if we examine the evidence available on record, the PW.1 admitted that there are spare buses were available in their corporation and in case of any damages to any one bus they will allow the other spare bus to run in the said route. Such being the case, it can be construed that the spare buses are available with the petitioner corporation and without the evidence to show that they were unable to run the spare bus in the regular route of KA-57-F- 2477, the petitioner corporation is not entitle for the compensation under this head. Hence, by considering the evidence of the petitioner corporation the judgment relied by the learned counsel for the petitioner is not applicable to the present case.
ii) Amount spent towards spare parts and repair charges - The PW.1 to prove the damages caused to the bus bearing No. KA-57-F-2477 has produced Ex.P7- Job card, wherein Rs.38,203/- was spent for the repair of the SCCH-17 23 MVC No.3205/2020 damages caused to the said bus. The damages mentioned at Ex.P6- IMV report and the amount spent for the repair of the same as per Ex.P7 looks feasible and no grounds are made out to disprove the said amount claimed by the petitioner. Such being the case, the petitioner corporation is entitled for the damages for the amount spent by petitioner corporation for the repair by rounding of the same to Rs.38,500/-.
Liability:
21. In the objection statement the respondent no.2 admitted the issuance of policy to the lorry bearing No.NL-01-N-2586. But they have taken a contention that the liability is subjected to conditions mentioned in the policy. In their objection statement the respondent No.2 has taken a specific contention that the driver of lorry bearing No.NL-01-N-2586 was not having valid DL and as per the Criminal case records the DL of the driver of lorry bearing No.NL-01-N-2586 is numbered as BR- SCCH-17 24 MVC No.3205/2020 2120130032346 issued by Nalanda DTO. But as per the investigation of their agency the DL bearing No.BR- 2120130032346 was not issued by that office and the said DL is a fake. In support of this contention, the Legal Manager of the respondent NO.2 company examined as RW.1 and produced certified copy of Ex.R1- which is filed under the RTI. Ex.R2 is the copy of the alleged fake DL. Ex.R3 is the copy of postal receipt and Ex.R.4 is the reply given by the DTO, Nalanda and Ex.R5 is the translated copy of Ex.R4. Ex.R6 is computerised extract, Ex.R7 is the evidence given by the official of the DTts along with the evidence of RW.1 as per Ex.R.4 to 7 the DL bearing No. BR-2120130032346 is a fake DL.
22. The evidence of clerk of DTO Office, Nalanda which is marked at Ex.R7 & 8 also supported the defence of the respondent No.2 that the driver of the lorry bearing No. NL-01-N-2586 was not having the valid DL at the time of accident and the DL bearing No. BR- SCCH-17 25 MVC No.3205/2020 2120130032346 is a fake DL. The respondent No.1 owner of orry bearing No. NL-01-N-2586 remained exparte and has not adduced any evidence to show that the driver of lorry bearing No. NL-01-N-2586 was having valid DL at the time of accident. By producing Ex.R1 to 8 the respondent No.2 successfully discharged their burden that the drive of lorry bearing No. NL-01-N-2586 was not having DL to drive the offending lorry.
23. Now that this court has ascertained the compensation amount, the last aspect of the matter is regarding fixation of liability i.e., who should be made liable to pay the compensation to the petitioner?. Precisely, it is the specific case of the respondent No.2 that the respondent No.1 has handed over the offending vehicle lorry to a person who has not having valid driving license. For the reasons discussed as supra, it is established that the driver of the offending vehicle lorry SCCH-17 26 MVC No.3205/2020 bearing registration No. NL-01-N-2586 was not having valid licence at the time of the accident.
24. The next aspect to be pondered upon now is, what is the effect of the rider of the offending vehicle not possessing a driving license at the time of accident. In H.K. Shivaramu Vs. H.S.Shivaramum other rendered by the Division Bench of Hon'ble High Court of Karnataka on 4.12.2020 wherein in a similar set of facts the Hon'ble High Court of Karnataka held thus:
10. On the basis of the evidence of the parties and the materials available on record, i.e., Ex.P2 - charge sheet the Tribunal has rightly held that the rider of the offending vehicle was not holding a valid and effective driving licence and fastened the liability on the respondent Nos. 1 and 2 - the rider and the owner of the offending vehicle jointly and severally. In view of the law laid down by a Full Bench of this Court in the case of YELLAVVA (supra), even though there is violation of policy conditions, when it is not in dispute that as on the date of SCCH-17 27 MVC No.3205/2020 the accident the offending vehicle was covered by the insurance policy, the insurance company has to pay the compensation with liberty to recover the same.
25. The essence of the said decision is that even where the driver of the offending vehicle was found to be driving without a valid driving license and the insurance company pleads that there is violation of policy conditions, if the vehicle had a valid and subsisting insurance policy, then the insurance company has to pay the compensation with liberty to recover the same from owner and rider.
26. In fact the Hon'ble Division Bench of the Hon'ble High Court of Karnataka relied upon the decision of Hon'ble full bench of the Hon'ble High Court of Karnataka in New India Assurance Co., Ltd., vs Yallavva reported in ILR 2020 Kar 2239 equivalent (2020) 2 KCCR 1405 wherein the Hon'ble High court SCCH-17 28 MVC No.3205/2020 has reaffirmed the principles relating to pay and recover by relying upon decision of the Hon'ble Apex Court in National Insurance Co. Ltd. Vs. Swaran Singh and Others reported in (2004) 3 SCC 297 cited supra held thus:
34. On a reading of the same, it becomes clear that the Hon'ble Supreme Court has laid down two tests. The breach of a policy condition, for example, by disqualification of the driver to hold a driving licence or invalid driving licence has to be proved to have been committed by the insured for avoiding liability by the insurer. In other words, in order to avoid the liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of policy regarding use of the vehicle by a duly licensed driver or one who was not disqualified to drive at the relevant time. Thus, burden of proof of establishing breach on the part of the owner of the vehicle is on the Insurance Company. The above is the first test laid down by the Hon'ble Supreme Court. Then, there is another test enunciated. Even after proving breach of a policy condition regarding a valid licence by the driver or his qualification to drive during the relevant period on the part of the insured, the insurer would not be allowed to avoid his liability towards the insured unless the said breach or breaches is/are so "fundamental" as found to SCCH-17 29 MVC No.3205/2020 have contributed to the cause of the accident.
This is having regard to the "rule of main purpose"
or "main purpose rule" i.e., even if there is a proof of the driver of a motor vehicle not being duly licenced at the time of the accident, the said fact must be a cause for the accident. In other words, the breach was so fundamental as to have contributed to the cause of the accident. The doctrine of fundamental breach has been incorporated in Section 149 of the Act by the Hon'ble Supreme Court in order to give effect to the main purpose rule. Thus, the exclusion clause or the defence of an insurer so as to avoid liability has been read down to the extent to which it is inconsistent to the main purpose of the contract. The above is the second test to be applied. Thus, there has to be a finding of fact, as to, whether, the owner or the insured had taken reasonable care. Hence, the Tribunal will have to decide the dispute, as to, whether, the insurer has proved its defence. While adjudicating the said claim if the Tribunal concludes that the insurer has satisfactorily proved its defence in accordance with Section 149(2)(a) of the Act, 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 pay to the third party as per the award of the Tribunal having regard to the mandate of section 149(1) of the Act."
(emphasis supplied by me) The Hon'ble Apex Court in National Insurance Co. Ltd. Vs. Swaran Singh and Others reported in (2004) 3 SCCH-17 30 MVC No.3205/2020 SCC 297 cited supra has categorically held that to avoid its liability towards insured, the insurer has to prove that the insured was guilty of 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. Further at para 110 the Hon'ble Apex Court has observed thus:
(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 be proved 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 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.
(emphasis supplied by me) SCCH-17 31 MVC No.3205/2020
27. No doubt the respondent No.2 has proved that the driver of respondent No.1 did not possess license, but the above decision makes it clear that the respondent No.2 was required to prove that the insured was negligent or did not exercise reasonable care which is not proved. Thereby fortifying the view taken by this court that the respondent No.2 should make good the compensation amount to the petitioner and then proceed against the respondent No.1 i.e., the owner to recover the same.
28. For the foregoing reasons this court finds no hesitation in holding that the respondents are jointly and severally liable to pay the compensation to the petitioner and the respondent No.2 being the insurer shall pay the compensation amount to the petitioner with liberty to recover the same from respondent No.1. Accordingly, Issue No. II is held in the partly affirmative and it is held that the petitioner is entitled for compensation of SCCH-17 32 MVC No.3205/2020 Rs.38,500/- along with interest at the rate of 6% per annum and it is also held that the respondent No.2 shall pay the compensation amount as awarded by this court to the petitioner and recover the same from respondent No.2 and issue is answered accordingly.
ISSUE NO.3:
29. For the foregoing reasons, I proceed to pass the following:
O RDE R The petition filed by the petitioner U/s. 166 of the Motor Vehicles Act is hereby partly allowed with cost.
The petitioner is entitled for total compensation amount of Rs.38,500/-
(Rupees Thirty eight thousand five hundred only) with interest at the rate of 6% p.a., from the date of petition till the realization.
The respondent No.2 is directed to deposit the compensation amount within 60 days SCCH-17 33 MVC No.3205/2020 from the date of this order and recover the same from respondent No.1.
Considering the quantum of amount awarded to petitioner, it is ordered to release the entire amount in its favour.
Advocate fee is fixed at 1,500/-.
Draw up award accordingly.
(Dictated to the Stenographer directly on the computer, corrected by me and then pronounced in the open court on this the 18th day of January, 2024) (Kanchi Mayanna Goutam) XIX ADDL.JUDGE, Court of Small Causes, BENGALURU.
ANNEXURE List of witnesses examined for petitioners:
PW.1 Prathima List of documents marked on behalf of the petitioners:
Ex.P1 Letter
Ex.P2 FIR
Ex.P3 First information statement
Ex.P4 Charge sheet
Ex.P5 Spot sketch prepared by the police
Ex.P6 IMV report
Ex.P7 Job card
Ex.P8 Certificate along with daily revenue sheet
Ex.P9 Certified copy of RC card and
B Register extract
SCCH-17 34 MVC No.3205/2020
List of witnesses examined for Respondents:
Smt. Anagha G.R. List of documents marked on behalf of the Respondents:
Ex.R1 C/c. Of application filed under RTI Ex.R2 C/c. Of DL Ex.R3 C/c. Of Postal receipt Ex.R4 &5 C/c. Of letter issued by DTO Nalanda and its translated copy Ex.R6 C/c. Of Computer generated document Ex.R7 & 8 C/c. Of Chief examination of Dinesh in MVC No. 2517-2018 XIX ADDL.JUDGE Court of Small Causes & MACT., Bengaluru.