Bangalore District Court
Vanishree vs Sartorius Mechatronics India Ltd on 27 June, 2024
KABC020262692018
BEFORE THE COURT OF SMALL CAUSES AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, AT
BENGALURU
(SCCH-16)
Present: Sri. Ganapati Bhat,
B.Sc., LL.B. (Spl.). L.L.M.
X Addl. Judge, Court of Small Causes
& Member, MACT, Bengaluru.
MVC No.6395/2018
Dated: 27th June 2024
Petitioner Smt. Vanishree,
W/o B.R. Ravindra,
C/o K. Hanumanthaiah,
Residing at No.83, 1st Cross,
Near BMTC Bus Stand Somanahalli,
Somanahalli, Bengaluru - 560 082.
(Sri Arjun R.K., Advocate)
Vs.
Respondents 1. M/s. Sartorious Mechatronics
India Ltd., No.10, 3rd Phase,
Peenya 6th Main,
KIABDB Industrial Area,
Bengaluru - 560 058.
(RC owner of Hundai Car
bearing Reg. No.KA-02-MB-8631)
(Exparte)
2. IFFCO-TOKIO General Insurance
Co. Ltd., Regional Office,
Sri Shanthi Towers, No.141,
2 (SCCH-16) MVC 6395/2018
5th Floor, III Main, East to NGEF
Layout, Kasturinagar,
Bengaluru - 560 021.
(Sri B. Anjaneyalu, Advocate)
JUDGMENT
The petitioner has filed this petition under Section 166 of M.V. Act 1989 against the respondents, seeking compensation of Rs.40,00,000/- for the injuries sustained by her due to the accident caused by the driver of the Hundai Car bearing No.KA-02-MB-8631.
2. The facts in brief stated in the petition are as under;
On 16-01-2016, the petitioner and others were proceeding in a Hundai car bearing No.KA-02-MB-8631. The said car was driven by its driver namely B.R. Bhanuprakash from Hubli towards Shirdi on Pune- Bengaluru highway road in rash and negligent manner. At about 4.00 p.m., when they reached near Mouje Limba, Satara Village, the driver of the said car lost control over it and dashed against the road divider by suddenly applying the brake. Due to the impact of dashing against the road divider, the said car was turtled. Due to the impact of accident, the petitioner and other inmates of 3 (SCCH-16) MVC 6395/2018 the said car sustained grievous injuries all over the body. Immediately after the accident, the petitioner was shifted to Satara Diagnostic Centre and Multispeciality Hospital Pvt. Ltd., at Satara. Upon clinical examination, it is found that the petitioner has sustained fracture D12 with small pre/paraspinal haematoma, fracture D11, L1, L2, L3, L4 with muscle contusion, fracture sacral segments with dislocation, severe injuries to head, hand, legs and other parts of the body. The petitioner underwent surgery and the doctors have advised her to take the follow up treatment. The petitioner has spent huge amount towards medical, conveyance and other incidental charges. Due to the accidental injuries, the petitioner was completely bed ridden and getting headache and giddiness. Prior to the accident, the petitioner was hale and healthy and working as Teacher at Jnaneshwar Public School. She was earning Rs.14,000/- per month. The accident was due to rash and negligent driving of the driver of the Hundai car bearing No.KA-02-MB-8631. The Satara Taluk Police have registered the criminal case against the driver of the said car for the offences 4 (SCCH-16) MVC 6395/2018 punishable under Section 279, 337, 338 and 304(A) of IPC. The respondent No.1 is the RC owner and respondent No.2 is the insurer of the offending vehicle. Hence, they are jointly and severally liable to pay compensation to the petitioner. The petitioner has sought for compensation of Rs.40,00,000/- with interest. She has prayed to allow the petition.
3. In response to the notice, the respondent No.2 has appeared through its counsel and filed the written statement. In spite of service of notice, respondent No.1 remained absent, hence, placed as ex-parte.
4. The facts in brief stated in the written statement of the respondent No.2 are as follows;
The respondent No.2 has denied the allegations in the petition. It has denied the age, avocation and income of the petitioner. It has denied the involvement of the vehicle. It has admitted the valid insurance policy to the Hyundai Elantra car bearing No.KA-02-MB-8631 at the time of accident. It has stated that the compensation claimed is exorbitant and speculative. It has denied the manner of accident stated in the petition. It has denied 5 (SCCH-16) MVC 6395/2018 the alleged treatment taken by the petitioner and the alleged injuries to the petitioner. It has denied the complaints stated by the petitioner in the petition. It has denied the alleged rash and negligent driving of the driver of the car. It has stated that the accident was due to inevitable circumstances at the time of accident. It has stated that the injuries to the petitioner are simple in nature. It has stated that the driver of the insured car had no valid driving licence at the time of accident. It has further stated that the respondent No.1 has entrusted the said vehicle to the person who is not having valid driving licence. It has stated that the petitioner has not produced his PAN card and identity documents. It has stated that the interest on the compensation amount cannot be awarded more than 6% per annum. It has prayed to dismiss the petition.
5. Based on the pleadings the following issues came to be framed:
1. Whether the petitioner proves that she sustained grievous injuries due to the road traffic accident alleged to have occurred on 16-01-2016 at about 4.00
6 (SCCH-16) MVC 6395/2018 p.m., due to the rash and negligent driving of the driver of the Car bearing registration No.KA-02-MB-8631?
2. Whether the petitioner is entitled to compensation? If so, what is the quantum and from whom?
3. What order or Award?
6. In order to prove her case, the petitioner herself got examined as PW1 and got marked documents as Ex.P1 to Ex.P7. One witness namely, Anthony Maria has got examined as PW2 and got marked documents as Ex.P8 to Ex.P12. The official of respondent No.2 has got examined as RW1 and got marked document as Ex.R1.
7. Heard arguments of the learned counsel for the petitioner and learned counsel for the respondent No.2. Perused the pleadings and evidences and materials available on record, my findings on the issues are as under:
Issue No.1 : In the Affirmative Issue No.2 : Partly in the Affirmative Issue No.3 : As per final order for the following 7 (SCCH-16) MVC 6395/2018 REASONS ISSUE No.1:
8. The petitioner has contended that the driver of the Hundai Car bearing No.KA-02-MB-8631 drove it in rash and negligent manner and lost control over it and dashed the divider by suddenly applying the brake. It is the further contention of the petitioner that when they reached near Mouje Limba, Satara Village, the driver of the said vehicle caused the accident. It is the further contention of the petitioner that due to the accident, she has sustained grievous injuries. It is further contended by the petitioner that the accident was due to rash and negligent driving of the driver of the car bearing No.KA-02-MB-8631. It is further contended by the petitioner that immediately after the accident, she was shifted to hospital and taken treatment in the said hospital. It is further contended by the petitioner that Satara Taluk Police have registered criminal case against the driver of the offending vehicle for the offences punishable under Section 279, 337, 338 and 304(A) of IPC.
8 (SCCH-16) MVC 6395/2018
9. In Kusum and Others vs Satbir and Others reported in (2011) SCC 646, the Hon'ble Supreme Court has held that in a case relating to the Motor Accident Claims, the claimants are not required to prove the case as needs required to be done in a criminal trial.
10. In Parameshwari vs. Amir Chand and others reported in (2011) SCC 635, the Hon'ble Supreme Court has held that a road accident claims the strict principle of proof in a criminal case are not required.
11. In Bimla Devi and others vs. Himachal Road Transport Corporation and others reported in (2009) 13 SCC 513, the Hon'ble Supreme Court has held that the claimants were merely to establish their case on touch stone of preponderance of probability and that standard of proof on beyond reasonable doubt could not have been applied.
12. In Dulcina Fernandes and others vs. Joaquim Xavier Cruz and another ruling reported in (2013) 10 SCC 6, the Hon'ble Supreme court has held as follows:
9 (SCCH-16) MVC 6395/2018 "7.It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pickup van as set up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt."
13. In Anita Sharma and others vs. The New India Assurance Co. Ltd., and another, ruling reported in (2021) 1 SCC 171, the Hon'ble Supreme Court has held as follows:
"Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eyewitnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true."
14. In Gurdeep Singh Vs Bhim Singh ruling reported in (2013) 11 SCC 507, the Hon'ble Supreme Court has held that in the motor accident 10 (SCCH-16) MVC 6395/2018 claims, it is very difficult to get eyewitness. It has further held that even if, the eyewitnesses are available, they are not ready to come and depose in court of law for many reasons and thus, courts have to go by the oath of the claimant only.
15. Therefore, from the above rulings of the Hon'ble Supreme Court, it is clear that the strict proof of the case by the petitioner is not required and in all the MVC cases, the standard of proof required from the petitioner is preponderance of probability. The concept of proof of the case beyond reasonable doubt is not applicable in deciding the MVC cases by the Tribunal.
16. In order to prove his case, the petitioner has produced as many as 12 documents. They are marked as Ex.P1 to Ex.P12. Out of the said documents, Ex.P1 is the crime details, Ex.P2 is the spot mahazar, Ex.P3 is the sketch, Ex.P4 is the charge sheet, Ex.P4(a) is the translated copy of charge sheet, Ex.P5 is the driving licence, Ex.P6 is the aadhar card, Ex.P7 is the PAN card, Ex.P8 is the authorization letter, Ex.P9 is the case sheet, Ex.P10 is the discharge summary, Ex.P11 is the MLC 11 (SCCH-16) MVC 6395/2018 extract and Ex.P12 is the case sheet. In Ex.P2, it is stated that when petitioner was proceeding in car bearing No.KA-02-MB-8631, its driver drove it in rash and negligent manner and dashed the road divider and caused the accident. It is further stated that in the accident spot there is a divider. In Ex.P3, the accident spot is shown. As per Ex.P3, the divider is on the right side of the vehicle of the respondent No.1. It is further shown that the driver of the offending vehicle drove it towards the divider and dashed the divider. In Ex.P9, the injuries to the petitioner are shown. The history of the injuries to the petitioner is shown as RTA. The said MLC record would show the injuries to the petitioner. The police have filed the charge sheet after investigation in the criminal case. The said document is marked as Ex.P4 and its English translation is marked as Ex.P4(a). In Ex.P4(a), it is stated that on 16-01-2016, at about 4.00 p.m., the driver of the car bearing No.KA-02-MB- 8631 drove it in rash and negligent manner and lost control over it and dashed the divider and caused the accident at Pune-Bengaluru highway road at Rayagaon 12 (SCCH-16) MVC 6395/2018 Patha, Limb Village. It is further stated that the petitioner and others were proceeding in the said car. It is further stated that the petitioner has sustained grievous injuries due to the accident. In Ex.P4(a), it is stated that the accident was due to rash and negligent driving of the driver of the Hundai Car bearing No.KA-02- MB-8631. The police have alleged the offences punishable under Section 279, 304(A), 337, 338 of IPC and Section 184, 3(1)/181 of IMV Act. It is alleged by the police that the driver of the offending vehicle had no valid driving licence at the time of accident. The respondent has produced the copy of the insurance policy. It has not produced any documents to show that the driver of the insured vehicle was not driving it in rash and negligent manner at the time of accident. In all the documents produced by the petitioner, it is stated that the accident was due to rash and negligent driving of the driver of the offending vehicle. The respondent No.1 remained ex-parte and respondent No.2 has not produced any document contrary to the documentary evidence produced by the petitioner. 13 (SCCH-16) MVC 6395/2018
17. The petitioner has entered into the witness box and got examined as PW1. She has re-iterated the contents of the petition in her examination-in-chief. The respondent No.2 has not cross-examined the PW1. Therefore, the oral evidence of PW1 remained unchallenged. PW2 being the MRO has supported the case of the petitioner. The official of the respondent No.2 got examined as RW1. But, he has not stated much regarding the absence of rash and negligent driving of the driver of the car. The driver of the car has dashed the divider which was in his right side of the road. This fact would show that the driver of the car has drove his vehicle in uncontrolled manner. In all the police documents, it is stated that the accident was due to rash and negligent driving of the driver of the offending vehicle bearing No.KA-02-MB-8631. The respondent No.2 has not produced any documents to show that the driver of the offending vehicle is not responsible for the accident. Therefore, no contrary material to the evidence produced by the petitioner regarding the rash and negligent driving of the driver of the offending 14 (SCCH-16) MVC 6395/2018 vehicle is available in this case. From the documentary and oral evidence, petitioner has proved that the accident was due to rash and negligent driving of the driver of the Hundai car bearing No.KA-02-MB-8631. The petitioner has further proved that due to the accident, she has sustained grievous injuries. Hence, I answer issue No.1 in the affirmative.
ISSUE No.2:
18. As discussed above, the petitioner has proved that the accident was caused due to rash and negligent driving of the driver of the car bearing No.KA-02-MB-
8631. Therefore, petitioner is entitled to the compensation under various heads. The damages are to be assessed under two heads, they are pecuniary damages and non pecuniary damages. The pecuniary damages are those like medical, treatment, attendants, transport, actual loss of earning, future loss of earning. Non pecuniary damages includes mental and physical shock, loss of amenities, loss of expectation of life, loss of prospects of marriage. The petitioner who has 15 (SCCH-16) MVC 6395/2018 sustained injuries is entitled for compensation under the following heads:
A) Towards loss of future income :
The petitioner has stated that she has sustained grievous injuries. She has not produced the wound certificate. Further, petitioner has not adduced evidence of the medical officer to show the disability to her. Hence, the petitioner has failed to prove the disability. Hence, the compensation is not awarded from the head of loss of future income due to disability.
Medical expenses :
In this case the petitioner has sustained injuries. As per Ex.P10, she has taken treatment as inpatient from 19-01-2016 to 29-01-2016 for 11 days. The original medical bills are not produced by the petitioner. Hence, petitioner is not entitled to the compensation towards medical expenses.
Pain and sufferings :
The petitioner has sustained injuries in this case. So considering the injuries to the petitioner, an amount of Rs.50,000/- is to be awarded to the petitioner towards pain and sufferings.
16 (SCCH-16) MVC 6395/2018 Attendant charges :
As per Ex.P10 - discharge summary, the petitioner has admitted as inpatient for 11 days from 19-01-2016 to 29-01-2016. Considering the nature of the injuries and the medical treatments, it appears that the petitioner has needed attendant for one month.
Therefore, 800 x 30 i.e., Rs.24,000/- is awarded towards the attendant charges.
Food and nourishment :
The petitioner was admitted as inpatient for 11 days in Apollo Hospital, Bengaluru. He has needed special food and nourishment for one month. Therefore, Rs.600/- per day i.e., Rs.18,000/- is awarded towards food and nourishment.
Conveyance expenses :
The petitioner is the resident of Somanahalli, Bengaluru and she has taken treatment in Apollo Hospital, Bengaluru. Hence, Rs.20,000/- is the just compensation towards conveyance.
Loss of income during laid-up period : The petitioner has taken treatment as inpatient for 11 days. By considering the injuries and treatments
17 (SCCH-16) MVC 6395/2018 taken, it appears that the petitioner has needed bed rest for one month. Therefore, Rs.15,000/- is awarded towards loss of income during laid-up period.
Loss of amenities :
The petitioner has stated that she has sustained grievous injuries and there are complications to her.
Therefore, awarding the compensation of Rs.15,000/-
would be just and reasonable towards loss of amenities.
19. Hence, the petitioner is entitled to the compensation under different heads as follows :
1. Loss of future income Nil
2. Medical expenses Nil
3. Pain and sufferings 50,000-00
4. Attendant charges 24,000-00
5. Food and nourishment 18,000-00
6. Conveyance expenses 20,000-00
7. Loss of income during laid- 15,000-00 up period
8. Loss of amenities 15,000-00 Total 1,42,000-00
20. In all, petitioner is entitled for compensation of Rs.1,42,000/- with interest at the rate of 6% per annum from the date of petition till its realization.
18 (SCCH-16) MVC 6395/2018 Liability:
21. The respondent No.1 is the owner and respondent No.2 is the insurer of the offending vehicle.
The respondent No.2 has admitted the insurance policy to the offending vehicle as on the date of accident. The respondent No.2 has stated that the driver of the offending vehicle had no valid driving licence as on the date of accident. In the charge sheet, it is stated that the driver of the car bearing No.KA-02-MB-8631 has no valid driving licence as on the date of the accident. A defence of the respondent No.2 is that since the driver of the offending vehicle has no valid driving licence, hence the insurance company is not liable to pay any compensation.
22. In New India Assurance Company Limited, Bijapur, vs. Yallavva w/o. Yamanappa Dharanakeri and another ruling reported in ILR 2020 KAR 2239, the full bench of Hon'ble High Court of Karnataka referring to the catena of decisions rendered by the Hon'ble Apex Court has held that breach of policy conditions would not exonerate the Insurance Company to pay the compensation. It has held that even if 19 (SCCH-16) MVC 6395/2018 fundamental breach of policy conditions is established, the Insurance Company is still liable to satisfy the award by paying the compensation to the third party and thereafter, it can recover it from the owner of the vehicle involved in the accident. It has held that the pay and recovery cannot be ordered against the insurance company only when the claim petition filed is a fraudulent and collusive petition.
23. In United India Insurance Co. vs. V. Janardhan ruling reported in 2021 SCC Online KAR 12643, the Hon'ble High Court of Karnataka has held as follows:
"It would be irrelevant as to whether the owner of the vehicle appear or did not appear or did not contest or contested the proceedings for applying the pay and recovery principle. So long as it is established that there was an insurance policy issued in respect of motor vehicle which was involved in the accident, the insurer would be liable to pay the victim, even if the insurer is able to establish its defence that there has been a breach of policy condition and it can avoid liability".
24. In Shivanna vs. Muniyappa ruling reported in 2022 SCC Online KAR 16660, the 20 (SCCH-16) MVC 6395/2018 Hon'ble High Court of Karnataka has held that the insurer would have to satisfy the compensation i.e., liable to be paid to the claimants and thereafter to proceed to recover the same from the owner of the offending vehicle.
25. In Balu Krishna Chavan vs. Reliance General Insurance Co. Ltd., 2022 Live Law (SC) 932, judgment dated 03-11-2022, the Hon'ble Supreme Court has held that when the insurance policy is in force then even if the insurer is able to show the breach of policy condition and it can avoid the liability then also it is liable to pay the victim and recover from the owner of the offending vehicle.
26. In Pappu and others vs. Vinod Kumar Lamba and another ruling reported in (2018) 3 SCC 208, the Hon'ble Supreme Court has held as follows:
"110. The summary of our findings to the various issues as raised in these petitions areas follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of 21 (SCCH-16) MVC 6395/2018 compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.
(ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163Aor Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act.
(iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to reproved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured,the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them.
22 (SCCH-16) MVC 6395/2018
(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act.
(vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), doesn't fulfill the requirements of law or not will have to be determined in each case.
(viii) - (ix) xxxxx
(x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to payto the third party under the award 23 (SCCH-16) MVC 6395/2018 of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section(3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal.
(xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims."
27. In Shamanna and another vs. Divisional Manager, Oriental Insurance Co. Ltd., and others ruling reported in (2018) 9 SCC 650, the Hon'ble Supreme Court of India has held as follows:
24 (SCCH-16) MVC 6395/2018 "12. Since the reference to the larger bench in Parvathneni case has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case followed in Laxmi Narain Dhut and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh and Laxmi Narain Dhut cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored".
28. In the case of Rishi Pal Singh vs New India Assurance Company, Civil Appeal No. 4919/2022,the Hon'ble Supreme Court of India has held that it is not expected from the owner of the vehicle to verify the genuineness of the driving licence issued to his driver.
29. In the case of Najegowda Vs C. Cheluvaraj ruling reported in 2023 ACJ1245 has held that when 25 (SCCH-16) MVC 6395/2018 the driver of the offending vehicle does not possess valid driving licence at the time accident, then insurance company is liable to pay compensation at the first instance and then it can recover that amount from the owner.
30. In Kurvan Ansari @ Kurvan Ali vs. Shyam Kishore Murmu, ruling reported in (2022) 1 SCC 317, the Hon'ble Supreme Court of India has held as follows:
"The entire compensation shall be paid to the appellants by respondent No.2
- Insurance Company, and we keep it open to the Insurance Company to recover the same from respondent No.1 - owner of the motorcycle by initiating appropriate proceedings as the motorcycle was driven by the driver who was not possessing valid driving licence on the date of the accident".
31. In IFFCO Tokio General Insurance Co. Ltd., vs. Geeta Devi and others ruling reported 2023 SCC OnLine SC 1398 the Hon'ble Supreme Court has held as follows:
"even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or 26 (SCCH-16) MVC 6395/2018 his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident".
The ratio laid down in the above rulings are applicable to the case on hand.
32. The respondent No.1 has not produced any documents to show that there is valid and effective driving licence to the driver of his vehicle as on the date of accident. Further, the charge sheet which is marked as Ex.P4 would show that there was no valid licence to the driver of the offending vehicle as on the date of accident. Therefore, from the materials available on record, it is clear that the driver of the offending vehicle had no valid driving licence as on the date of accident. Therefore, the respondent No.1 has violated the terms and conditions of the insurance policy. The insurance policy is valid as on the date of accident. This fact is admitted by the respondent No.2. Therefore, the respondent No.2 i.e., insurance company is primarily 27 (SCCH-16) MVC 6395/2018 liable to pay the compensation along with respondent No.1. Since there is violation of the terms and conditions of the policy, the respondent No.2 is entitled to recover the compensation amount from the respondent No.1 after pay the amount to the petitioner. Hence, the respondent No.1 and 2 both are jointly and severally liable to pay the compensation amount to the petitioner. But, the respondent No.2 is entitled to recover the compensation amount to be paid to the petitioner after paying it to him from the respondent No.1 on pay and recovery basis. The petitioner is entitled to the compensation of Rs.1,42,000/-. Hence, I answer issue No.2 partly in the affirmative.
ISSUE No.3:
33. In view of the findings, the petition deserves to be allowed in part. Hence, the following order is passed:
ORDER The petition is partly allowed with costs.
The petitioner is entitled to compensation of Rs.1,42,000/- (Rupees one lakh and forty two thousand only)
28 (SCCH-16) MVC 6395/2018 with interest at the rate of 6% p.a., from the date of petition till realisation.
The respondent No.2 is directed to pay the compensation amount on pay and recovery basis to the petitioner within two months from the date of this order in the first instance and then recover the same from respondent No.1 through due course of action.
The entire compensation amount with proportionate interest shall be released to the petitioner through E- payment on proper identification and verification.
Advocate's fee is fixed at Rs.2,000/-. Draw an award accordingly.
(Dictated to the stenographer, directly on computer, typed by him, corrected and then pronounced in the open court this the 27th day of June 2024) (Ganapati Bhat) Member, MACT, Bengaluru.
ANNEXURE Witnesses examined on behalf of petitioner:
PW1 Smt. Vanishree PW2 Sri Anthony Maria 29 (SCCH-16) MVC 6395/2018
Documents marked on behalf of petitioner:
Ex.P1 Certified copy of Crime Details Ex.P2 Certified copy of Spot Mahazar Ex.P3 Certified copy of Sketch Ex.P4 Certified copy of Charge Sheet Ex.P4(a) Translated copy of Charge Sheet Ex.P5 Notarized copy of D.L. of petitioner Ex.P6 Notarized copy of Aadhar Card Ex.P7 Notarized copy of PAN Card of petitioner Ex.P8 Authorization Letter Ex.P9 Case Sheet Ex.P10 Discharge Summary Ex.P11 Copy of MLC Extract Ex.P12 Case sheet Witnesses examined on behalf of respondents:
RW1 Sri Nagendra Documents marked on behalf of the respondents:
Ex.R1 Copy of Insurance Policy
(Ganapati Bhat)
Member, MACT, Bengaluru.