Bangalore District Court
Sri T.S.Umesh @ Umesh vs Sri Girish B on 7 September, 2016
1 SCCH-1
MVC No.4012/2015
BEFORE THE MEMBER PRL.MOTOR ACCIDENT CLAIMS
TRIBUNAL AT BANGALORE
(S.C.C.H. - 1)
Dated this the 7th day of September 2016
Present : SRI H.P.SANDESH, B.A.L., LL.B,
MEMBER, PRL. M.A.C.T.
M.V.C No.4012/2015
Petitioner: Sri T.S.Umesh @ Umesh,
S/o late Sambaiahgowda @ Sambaiah,
Aged about 36 years,
R/at 25, 3rd Cross,
Kuvempunagara,
Agra Panchayathi,
H.Gollahalli, Kengeri post,
Bengaluru -560 078.
Present Address:
Sri T.S.Umesh @ Umesh,
S/o Sambaiahgowda @ Sambaiah,
Aged about 36 years,
R/at Thagadegowdanagoddi,
Inoragollahalli post,
Uyyamballi Hobli,
Kanakapura Taluk,
Ramanagara District.
Pin Code: 562 119.
(By Sri. Shivaswamy, Advocate)
-Vs-
Respondents: 1. Sri Girish B.,
S/o Basavaraju,
2 SCCH-1
MVC No.4012/2015
Aged about 31 years,
R/at 373,
Opp. Sarabande Palya,
Subramanyapura Post,
Uttrahalli Main Road,
Bengaluru -560 070.
(Owner of the Mahindra Max bearing
Reg. No.KA-05-AC-2104)
( By Sri A.S.Girish, Advocate)
2. The Manager,
Bharti Axa General Insurance Co.Ltd.,
3rd floor, Hebbal,
Bellary Road, Bengaluru.
(Insurer of the Mahindra Max
Bearing Reg. No. KA-05-AC-2104)
(By Sri H.K.Ramamurthy, Advocate)
*******
JUDGMENT
The petitioner has filed this petition under Section 166 of the of the Motor Vehicles Act, 1989 seeking compensation of Rs.60,00,000/- for the injuries sustained by him in the road traffic accident.
2. Brief facts of the case are that:-
It is the case of the petitioner that, on 02-01-2014 at about 12.15 p.m. when he was proceeding towards Banashankari in
3 SCCH-1 MVC No.4012/2015 his autorickshaw in a moderate speed by observing traffic rules and when he reached near Subramanyapura main road of Banashanakari 2nd stage, near Teachers Colony, at that time Mahindra Max-Goods vehicle bearing registration No. KA-05- AC-2104 came from opposite direction with high speed and in a rash and negligent manner and dashed against the petitioner's autorickshaw. As a result of the same, petitioner sustained grievous injuries and autorickshaw was also sustained damages.
3. It is further contended that, immediately after the accident he was shifted to NIMHANS hospital, wherein first aid treatment was given to him and then he was shifted to Victoria hospital and took treatment as an inpatient. During the course of treatment he underwent open reduction and internal fixation with DCP on 20-01-2014 and discharged on 02-02-2014 with an advise to take follow up treatment.
4. It is also the case of the petitioner that, as on the date of accident he was working as auto driver and earning Rs.30,000/- p.m. and now he cannot work as before and he has to depend on others. The accident was occurred due to the 4 SCCH-1 MVC No.4012/2015 rash and negligent driving of the driver of the Mahindra Max goods vehicle bearing No. KA-05-AC-2104 and respondent No.1 being the owner and respondent No.2 being the insurer of the offending vehicle, both the respondents are jointly and severally liable to pay compensation to the petitioners.
5. In pursuance of this claim petition, this Court has issued notices against the respondents. Respondents have appeared before the Court through their respective counsels and have filed written statement separately.
6. Respondent No.1 has filed written statement denying the petition averments. It is stated the driver of the Mahindra Max was driving the vehicle slowly and cautiously by observing traffic rules and regulation in reverse by putting reverse indicator, but the petitioner without observing the indication dashed to the offending vehicle but the local police took sympathy towards petitioner and registered a false case against the driver of Mahindra Max vehicle.
7. This respondent has denied the date, time and mode of accident, age, avocation and income of the petitioner, injuries sustained by the petitioner, expenses incurred by him. 5 SCCH-1 MVC No.4012/2015 This respondent submits that on humanity ground he took injured to Sevakshetra hospital, then shifted to NIMHANS and borne the medical expenses, but petitioner and his relatives behaved rudely with the first respondent. The compensation claimed by the petitioner is excessive and exorbitant. This respondent admits that he is the R.C. Owner of the Mahindra Max as on the date of accident and he has taken policy from 2nd respondent and the same was valid as on the date of accident and the driver was having valid and effective driving licence also on the date of the accident.
8. The respondent No.2 has filed written statement denying the petition averments. This respondent has denied the issuance of policy and if correct policy particulars are furnished if there is a policy issued then the liability is subject to the validity of the terms and conditions of the policy. It is further contended that the second respondent owner has not complied the statutory obligation under section 134(c) of M.V.Act and the concerned police have not complied the provisions of section 158(6) of M.V.Act. 6 SCCH-1 MVC No.4012/2015
9. It is also the contention that, the driver of the offending vehicle was not holding valid and effective driving licence, fitness certificate at the time of the accident and hence the jurisdictional police have prosecuted offence under section 279, 338 of IPC r/w. 3(1) r/w. 182 r/w. 192 and 56 of MV Act and the driver has committed the terms and conditions of the policy. Hence it is not liable to indemnify the insured.
10. This respondent has denied the date, time and mode of accident, age, avocation and income of the petitioner, injuries sustained by the petitioner, expenses incurred by him and permanent disability sustained by him are all denied. It is further contended that the second respondent reserves its right to amend its statement of objection and also to take over the defence of the insured in the event of the owner does not contest the proceedings under section 170 of M.V.Act. Also contended that, the compensation claimed by the petitioner is excessive and exorbitant. Hence, prays to dismiss the petition.
11. Based on the pleadings this Court has framed the following:-
7 SCCH-1 MVC No.4012/2015 ISSUES
1. Whether the Petitioner proves that he sustained grievous injuries in a Motor Vehicle Accident that that occurred on 2-1-2014 at about 12.15 p.m, at Subramanyapura Main Road, Near Teachers Colony, BSK 2nd stage, Bangalore, within the jurisdiction of Banashankari Traffic Police Station on account of rash and negligent driving of the Mahindra Max Goods vehicle bearing registration No.KA-05-AC-2104 by its driver?
2. Whether the Petitioner is entitled for compensation? If so, how much and from whom?
3. What order?
12. The petitioner in order to prove his case, he examined himself examined as PW.1 and has examined one witness as PW.2 and they have got marked the documents at Ex.P.1 to 18. The respondents have examined two witnesses as RW-1 and 2 and have got marked Ex.R.1 to 3.
13. Heard the arguments of petitioner counsel and respondent NO.1 and 2 counsels.
14. Having heard the arguments, based on the pleadings and the evidence available on record, I record my findings on the above issues as under:-
8 SCCH-1 MVC No.4012/2015
1) Issue No.1 ... In the Affirmative,
2) Issue No.2 ... Partly in the Affirmative,
3) Issue No.3 ... As per final order for the following:-
REASONS
15. Issue No.1: It is the case of the Petitioner that, on 02-01-2014 at about 12.15 p.m. when he was proceeding towards Banashankari in his autorickshaw in a moderate speed by observing traffic rules and when he reached near Subramanyapura main road of Banashanakari 2nd stage, near Teachers Colony, at that time Mahindra Max-Goods vehicle bearing registration No. KA-05-AC-2104 came from opposite direction with high speed and in a rash and negligent manner and dashed against the petitioner's autorickshaw. As a result of the same, petitioner sustained grievous injuries and autorickshaw was also sustained damages.
16. The petitioner in order to prove his case, he has examined himself as PW.1 and has filed an affidavit reiterating the averments of the Petition and also relied upon the 9 SCCH-1 MVC No.4012/2015 documents such as F.I.R., Mahazar, Sketch, IMV Report and Charge sheet as Ex.P1 to Ex.P4 and Ex.P6.
17. The PW.1 was subjected to cross examination and in the cross examination he admits that, the accident road is double road and the offending vehicle came in the opposite direction and dashed against his vehicle. It is suggested that, near the accident place there is a cross road and the same was denied. He admits that, there is a cross road to go to Teachers Colony. It is suggested that, he has driven the auto rickshaw in a rash and negligent manner and dashed the left portion of the Mahindra Jeep when he was proceeding towards Teachers Colony and the same was denied.
18. In the cross examination of respondent No.1 counsel it is elicited that, the accident road is double road and there is a cross road near the place of accident at the distance of 10 feet and he saw the offending vehicle at the distance of 4 to 5 feet. It is suggested that, the offending vehicle was proceeding in the reverse direction with an indicator and the same was denied. It is suggested that, he did not observe the indicator and himself went and dashed the rear portion of the 10 SCCH-1 MVC No.4012/2015 said vehicle and the same was denied. It is suggested that, the offending vehicle was in reverse direction and hence the driver cannot drive the vehicle in a speed manner and the same was denied. He admits that he has not lodged the complaint immediately after the accident and the same was denied. Witness volunteers that the public took him to hospital and the person who caused the accident has assured that he will meet all the medical expenses. It is suggested that, the driver himself took him to NIMHANS and he met the expenses and the same was denied.
19. Now let me appreciate the oral and documentary evidence available before the court with regard to the negligence is concerned. The counsel appearing for the petitioner in his argument he vehemently contended that, even though there was a delay in lodging the complaint the petitioner has given the explanation and there is a clear negligence on the part of the driver of the offending vehicle and Sketch which is produced clearly depicts how the offending vehicle caused the accident. On the other hand counsels appearing for the respondents have not disputed seriously the 11 SCCH-1 MVC No.4012/2015 accident and involvement of the vehicle in the accident. However this Court has to appreciate the material available on record. In the cross examination it is elicited that, the accident road is a double road and PW.1 says that, the offending vehicle came in the opposite direction and dashed against his vehicle. Further he categorically says that, the owner of the offending vehicle took him to the NIMHANS hospital. It is suggested that, the accident was occurred due to his negligence and hence he has not given the complaint for a period of 1 week and only after thought he has filed complaint through his maternal uncle and he has denied the said suggestions. In the cross examination of PW.1 by the respondent No.1 counsel it is elicited that, there is a cross road near the place of accident at the distance of 10 feet and he saw the offending vehicle at the distance of 4 to 5 feet. He admits that, he has not lodged the complaint immediately after the accident. It is suggested that, the offending vehicle was in reverse direction and hence the driver cannot drive the vehicle in a speed manner and he has denied the said suggestion. However PW.1 volunteers that, the person who caused the 12 SCCH-1 MVC No.4012/2015 accident has assured that he will meet all the medical expenses but he failed to meet the assurance. The respondents have not led any evidence before the Court with regard to the negligence of the petitioner is concerned. The respondent No.2 has only concentrated with regard to the validity of the driving licence and violation of terms and conditions of the policy.
20. For having considered the oral and documentary evidence, no doubt there is a delay in lodging the complaint. On perusal of the Ex.P1 the accident was taken place on 02.01.2014 and complaint was given on 07.01.2014 and in the complaint the complainant has specifically made allegations against the driver of the offending vehicle. He further says that, injured was taken to hospital with the assistance of the general public and also it is specifically mentioned that, the driver of the offending vehicle came to the hospital and he assured that, he will meet the medical expenses and thereafter he declined to do so. The fact that, the offending vehicle driver took the injured to the hospital has not been disputed. The Sketch Ex.P3 clearly discloses that, there is a cross road near 13 SCCH-1 MVC No.4012/2015 the place of accident and further the Auto Rickshaw was proceeding in his direction on the left side of the road at the distance of 4 feet from the edge of the road and even though the driver of the offending vehicle in order to go to the Teachers colony took right turn, he did not take right turn near the place of cross road and instead of that, he had taken the vehicle even prior to the cross road on the extreme right side, as a result the accident was occurred. The Sketch Ex.P3 has not been disputed by the respondent and so also the IMV Report Ex.P4 confirms the damages caused to the vehicles on account of the accident. The Respondents ought to have examined the driver of the offending vehicle to prove their contention that the accident was occurred due to the negligence on the part of the petitioner himself and the same has not been done. The police after investigation have also filed the Charge Sheet against the driver of the offending vehicle in terms of Ex.P6. Both the oral and documentary evidences have not been disputed by the respondents. No doubt the respondent No.1/Owner counsel has cross examined the PW.1 in detail suggesting that, the offending vehicle was 14 SCCH-1 MVC No.4012/2015 proceeding in the reverse direction and hence the accident was occurred and why he went in reversed direction, there is no explanation on the part of the respondents. The Sketch clearly depicts that, the driver of the offending vehicle took the right turn even prior to the cross road. In view of the explanation given in the complaint regarding the delay in lodging the complaint and also both oral and documentary evidence available before the Court clearly confirms and substantiates the contention of the petitioner, hence I am of the opinion that the petitioner has proved that the accident was occurred due to the negligence on the part of the driver of the Mahindra Max Goods vehicle bearing Reg.No. KA-05-AC-2104. Hence I answer issue No.1 in the Affirmative.
21. ISSUE No.2:
It is the case of the petitioner that, on account of the accident he has sustained the grievous injuries i.e. fracture of mid shaft of right Ulna, diffuse smelling on left forearm and the X-ray shows that, fracture of Isolated Ulna right mid 1/3 with pnemo thorax and head injury, abrasions 3x2 cm on left forearm, abrasions 2x2 cm over left leg anterior aspect, 15 SCCH-1 MVC No.4012/2015 injuries to right side chest. Immediately after the accident he was shifted to NIMHANS Hospital, then shifted to Victoria hospital and took treatment as an inpatient. It is also contended that, he was working as an Auto Driver and earning Rs.30,000/- p.m. and due to the accidental injuries he has lost his income and also suffering from discomfort to do day to day activities.
22. Petitioner in order to substantiate his contention has relied upon Ex.P5-Wound Certificate, Ex.P8-Discharge summary, Ex.P9-Lab report, Ex.P10- 6 Prescriptions, Ex.P11 Medical bills(25 in nos.) of Rs.12,079/-, Ex.P12 Photos with CD, Ex.P13 and 14- 2 Out patient records, Ex.P15-Driving licence.
23. The petitioner was subjected to cross examination and in the cross examination it is elicited that, immediately after the accident he was taken to NIMHANS hospital by the owner of the offending vehicle and got the report that no serious injury and immediately he was taken to residence and when he was unable to bear the pain and became serious he was shifted to Victoria hospital by his family members. He 16 SCCH-1 MVC No.4012/2015 cannot tell the date of admission to Victoria hospital. It is suggested that, Ex.P.5 and 8 are created in collusion with the doctor and the same was denied. He does not remember the name of the doctor who gave the treatment at Victoria hospital and he is taking follow up treatment at Kanakapura Government Hospital. It is suggested that, he has not taken any Inpatient or Outpatient treatment and the same was denied. It is suggested that, Ex.P.9 medical bills are created and produced and the same was denied.
24. In the cross examination by the respondent No.1 counsel it is suggested to PW.1 that, after 2 days of the accident he went to Victoria hospital and the same was denied. It is suggested that, he has not sustained the grievous injuries and he has sustained the injuries only in his house and thereafter he went to hospital and the same was denied. It is elicited that, he has surrendered the driving licence and he has got renewed the same. It is suggested that, he was not subjected to any surgery in respect of accidental injuries and the same was denied. It is suggested that, medical bills are 17 SCCH-1 MVC No.4012/2015 created and produced before the Court and the same was denied.
25. The petitioner also relied upon the evidence of the Doctor who has been examined as PW.2 and in his evidence he says that, injured has sustained fracture of 1/3rd Right Ulna and underwent surgery on 20.01.2014. It is also his evidence that, on 20.06.2016 he assessed the disability based clinical and radiology evidence and he came to the conclusion of 27.63% disability to the right upper limb and the whole body disability as 9.33%. He has produced Ex.P16 OPD Card, Ex.P17 Case Sheet and Ex.P18 X-ray.
26. The PW.2 was subjected to cross examination. In the cross examination he says that, he has treated the patient along with the other doctors and the patient came to him twice after discharge and before the assessment of disability. It is suggested that, in order to help the petitioner he has assessed the disability even though there is no any disability and the same was denied. It is suggested that, the Ulna is supporting bone and radius is the main bone and the same was denied. He admits that, it is not a commuted fracture and it is a simple 18 SCCH-1 MVC No.4012/2015 fracture and he has advised the physiotherapy treatment to reduce the restrictions. It is suggested that, there is chances of reduction of disability after the removal of implants in situ and the same was denied. He admits that, the fracture is untied with mild degree of mal-union. He also admits that, the X-ray does not contain the report.
27. Now let me appreciate both oral and documentary evidences available before the court under the different heads:
28. PAIN AND SUFFERINGS:
The petitioner in his petition and also in the evidence he has reiterated the nature of injuries sustained by him and also says that, he has suffered the permanent disability on account of the accident. The Petitioner in order to substantiate his contention has produced the Wound certificate which is marked as Ex.P5 and the doctor in the wound certificate has opined that the injury No.1 is grievous in nature and injury No.2 is simple in nature. Ex.P8 Discharge Summary reveals that, PW.1 was subjected to surgery and he was treated in the form of ORIF with DCP and IVRA. In view of petitioner has 19 SCCH-1 MVC No.4012/2015 suffered the above said fractures and also underwent surgery, I am of the opinion that, petitioner is entitled for compensation of Rs.35,000/-. Hence, I award Rs.35,000/- under the Head Pain and Sufferings.
29. LOSS OF FUTURE EARNINGS ON ACCOUNT OF DISABILITY:
a) Disability:
Regarding the disability is concerned no doubt in the cross examination of PW.1 it is elicited that, he has not surrendered the driving licence and he has got renewed the driving licence it does not mean that, he is not having the disability and the doctor who has been examined before the Court as PW.2 has assessed the disability of 9.33% to whole body. In the cross examination he admits that, he has treated the patient along with other doctors and the fracture is united with mild degree of mal-union. PW.2 also admits that, X-ray does not contain the report and further it is elicited that, it is not a comminuted fracture and it is simple fracture. For having taken note of the admissions elicited from the mouth of PW.2, the disability assessed by the Doctor as 9.33% to whole 20 SCCH-1 MVC No.4012/2015 body is little on the higher side, hence I accept the evidence of the PW.2 to the extent of 8% since there is mild degree of mal-
union and the fracture is only in respect of the mid 1/3rd right Ulna. Hence I have taken the disability as 8% which would be just and reasonable.
b) Income:
The Petitioner claims that, he was working as Auto driver and earning Rs.30,000/- p.m. In order to prove the same he has produced Ex.P15 driving licence which reveals that, he has obtained the driving licence covering 3W-CAB and the same was issued on 10.01.2008 and valid till 10.01.2018. In the cross examination he categorically admits that, he has got renewed the driving licence, but he has not produced the income proof for earning Rs.30,000/- p.m. In the judgment of Hon'ble High Court of Karnataka in MFA 9394/13 c/w.9924/13 (B.Anuradha @ Anusha and others vs. M/s. Shriram General Insurance Co.,) wherein it has taken the income of a skilled person at Rs.10,000/p.m. and in the case on hand, the petitioner is working as driver and it is a skilled job. Hence I have taken income of the petitioner as 21 SCCH-1 MVC No.4012/2015 9,000/- p.m. considering that, the petitioner is a driver and the accident was taken place in the year 2015.
c) Age & multiplier:
The Petitioner claims that he was aged about 36 years at the time of the accident. To prove the same he has relied upon the driving licence which is marked as Ex.P15 which discloses the petitioner date as 18.07.1978 and the accident was occurred on 21.02.2015, hence he was aged 36 years at the time of the accident. Having taken note of the petitioner's age as 36 years, the relevant multiplier applicable between the age group of 36 to 40 is 15.
The petitioner is entitled for the compensation of Rs.1,29,600/-(9,000x12x15x8/100). Hence I award Rs.1,29,600/- under the Head of Loss of Earnings due to disability.
30. MEDICAL EXPENSES:
The petitioner has produced medical bills to the tune of Rs.12,079/ which are marked as Ex.P11. On perusal of Ex.P11 it discloses that, petitioner has spent amount towards 22 SCCH-1 MVC No.4012/2015 purchase of medicines and undergone prescribed tests. It is also has to be noted that, bill No.17 amounting to Rs.350/-
appears that, it is not in the name of the petitioner, hence the same has to be deducted from the total medical bills. Hence after deducting the amount of Rs.350/- out of the amount of Rs.12,079/- it comes to Rs.11,729/-. Hence I have considered the medical bills to the tune of Rs.11,729/- and it is rounded off to 11,800/-. Hence I award Rs.11,800/- under the head medical expenses.
31. CONVEYANCE, FOOD AND NOURISHMENT, ATTENDANT CHARGES AND OTHER INCIDENTAL EXPENSES:
During the treatment period the Petitioner must have spent amount towards conveyance and other incidental expenses. The petitioner was an inpatient at Victoria hospital for a period of 26 days from 04.01.2014 to 29.01.2014. He has suffered fractures and undergone surgery. Hence I award Rs.20,000/- under the head conveyance, food and nourishment, attendant charges and other incidental expenses.
23 SCCH-1 MVC No.4012/2015
32. LOSS OF INCOME DURING THE PERIOD OF TREATMENT:
It is important to note that, he was an inpatient for a period of 26 days and he has sustained fracture of 1/3rd Right Ulna and other injuries. The PW.1 has not placed any documentary evidence before the court to prove that presently he is not working. Hence for having taken note of nature of injuries he has suffered, I am of the opinion that he could not work for a period of 3 months. Hence, I award an amount of Rs.27,000/-(9,000x3) under the head Loss of earnings during the period of treatment.
33. LOSS OF AMENITIES IN LIFE:
The petitioner is aged about 36 years and he has suffered the disability and this court has fixed 8% disability. On account of his age being 36 years and he has to lead his rest of life with the disability of 8%, I am of the opinion that, the Petitioner is entitled for an amount of Rs.20,000/- on the head loss of amenities in life.
34. FUTURE MEDICAL EXPENSES:
The Doctor who has been examined as PW.2 before the court says that, petitioner is in need of one more surgery for 24 SCCH-1 MVC No.4012/2015 removal of implants. On perusal of records it discloses that, petitioner was subjected to ORIF with DCP and INRA. For having taken note of the fracture I am of the opinion that, an amount of Rs.20,000/- towards removal of implants is just and reasonable. Hence I award an amount of Rs.20,000/-
under the head future medical expenses.
The details of compensation, I propose to award are as under:
Sl.
Head of Compensation Amount
No.
1. Pain and Sufferings Rs. 35,000.00
2. Loss of future earnings due to Rs. 1,29,600.00
disability (9,000x12x15x8/100)
3. Medical expenses 12,079- Rs. 11,800.00
350=11,729
4. Conveyance, food and 20,000.00
nourishment, attendant charges
and other incidental expenses.
5. Loss of income during the Rs. 27,000.00
period of treatment(9,000x3)
6. Loss of amenities in life Rs. 20,000.00
7. Future medical expenses Rs. 20,000.00
Total Rs. 2,63,400.00
In all the Petitioner is entitled for compensation of Rs.2,63,400/- which is rounded off to Rs.2,64,000/- 25 SCCH-1 MVC No.4012/2015
35. INTEREST:
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 petitioner is entitled to interest at the rate of 9% p.a.
36. LIABILITY:
With regard to the liability is concerned it is the contention of the Insurance Co., that, it is not liable to pay 26 SCCH-1 MVC No.4012/2015 compensation since the insured has violated the terms and conditions of the policy.
37. In order to prove their contention the respondents have examined the Legal Manager as RW.1 and in his affidavit he has contended that, the insured has violated the policy terms and conditions as well as the MV Act knowing fully allowed a person to drive his vehicle without valid and effective driving licence and to drive the 1st respondent vehicle, therefore the jurisdictional police have filed Charge Sheet; against the driver of 1st respondent under sections 2(1) r/w 182 r/w56, 192 of MV Act. The RW.1 was subjected to cross examination and he admits that the policy was in force as on the date of the accident. Also admits that, they have secured the vehicular documents through the investigator and they have verified the driving licence and fitness certificate. He admits that, the unladen weight of the vehicle is 1090 kgs. It is suggested that, as per the Ex.P7 the badge number and validity of the driving licence of the driver is correctly mentioned and the same was denied. He further admits, he 27 SCCH-1 MVC No.4012/2015 has no any impediment to examine the RTO regarding the validity of the driving licence and Fitness certificate.
38. Respondents also relied upon the evidence of RW.2 who is the official at RTO, Jayanagar and he has produced the history sheet of the driver as Ex.R.3. In his evidence he says that, the driver was having the valid driving licence for LMV transport from 29.08.2010 to 28.08.2013. The LMV non- transport driving licence from 27.11.1996 to 26.11.2016. The transport licence has not been renewed from 28.08.2013 in their office. The person who is having non-transport driving licence cannot drive the transport vehicle. In the cross examination it is elicited that, the driver has not been disqualified. He was having driving licence to drive LMV non- transport. He cannot tell whether he has renewed the licence or not in any other office. The vehicle bearing No.KA-05-AC- 2104 is light goods vehicle and the unladen weight of the vehicle is 1090 kg. It is suggested that, the driver was having non-transport driving licence also can drive even transport vehicle and the same was denied.
28 SCCH-1 MVC No.4012/2015
39. On perusal of the evidence of RW.1 and 2 it is the contention that, the driver who is having non-transport vehicle cannot drive the transport vehicle. It is emerged in the evidence that, the vehicle involved in the accident i.e. offending vehicle is a light goods vehicle. It is an admitted fact that, the driver was also having the valid licence for LMV transport from 29.08.2010 to 28.08.2013 and the same was not been renewed in the RTO Office, Jayanagar. But he was having LMV non- transport driving licence from 27.11.1996 to 26.11.2016. The accident was taken place on 02.01.2014 and hence it is clear that, he was not having the driving licence for LMV transport vehicle as on the date of the accident and the same was expired and was not renewed. However, he was having LMV non-transport driving licence as on the date of the accident. The contention of the respondent that, the driver was not having the LMV transport vehicle licence is not disputed by the petitioners.
40. However, the counsel appearing for the 1st respondent has relied upon the judgment report in (2015) 2 SC 186. In this judgment the Apex Court relying upon the 29 SCCH-1 MVC No.4012/2015 judgment reported in (2008) 3 SCC 464 (National Insurance Co., Ltd., vs. Annappa Irappa Nesaria) and (2013) 7 SCC 62 (S.Iyappan vs. United India Insurance Co., Ltd.,) has held that, "The driver who was holding a valid driving licence to drive light motor vehicle used as commercial vehicle could drive light motor vehicle used as commercial vehicle without obtaining endorsement to drive the commercial vehicle and relying upon those two judgments it is also held that, in such a case insurance company could not disown its liability and reversed the judgment of the High Court and held that, "there was no breach of any condition of insurance policy since admittedly the driver was having a valid licence to drive the light motor vehicle."
41. In view of the judgment of the Apex Court, in the case on hand also, the driver was not having the driving licence to drive the LMV transport vehicle and the same was expired prior to the accident, but he was having the driving licence to drive the LMV non-transport vehicle. In view of the Apex Court judgment passed in Kulwanth Singh and others vs. Oriental Insurance Company Limited, this Court has to fix the 30 SCCH-1 MVC No.4012/2015 liability on the insurance company as there was no any breach of any condition of insurance policy and the contention of the respondent No.2 cannot be accepted. Hence I have fastened the liability on the insurance company who is the respondent No.2 herein who is the insurer o Mahindra Max bearing Reg. No.KA-05-AC-2104. Hence, this issue is answered accordingly.
42. Issue No.3: In the result, I proceed to pass the following:
ORDER The petition is partly allowed with cost against respondents.
The petitioner is entitled for total compensation of Rs.2,64,000/-.
He is entitled for interest at the rate of 9% per annum only on Rs.2,44,000/- from the date of petition till realization. The respondent No.1 and 2 are jointly and severally liable to pay the compensation along with interest to the petitioner. However, the respondent No.2 being the insurer is liable to pay the compensation amount to the petitioner within 2 months from the date of this order.
Out of the compensation amount so awarded, 50% with proportionate interest is ordered to be released in 31 SCCH-1 MVC No.4012/2015 favour of the petitioner and the balance amount 50% shall be invested in fixed deposit for a period of 5 years in the name of the petitioner in any of the nationalised bank of the choice of the petitioner. Interest on F.D. is payable on maturity.
Advocate's fee is fixed at Rs.1,000/-
Draw an award accordingly.
(Dictated to the Stenographer, transcribed by her, corrected, signed and then pronounced by me in the open court dated this the 07th day of September 2016) (H.P.SANDESH) Member, Prl. M.A.C.T., Court of Small Causes ,Bangalore.
********** ANNEXURES Witnesses examined on behalf of the petitioners:
PW.1 : T.S.Umesh PW.2 : Dr. D.Vishwanath
Witnesses examined on behalf of the respondents :
RW.1 : S.R.Sandeep RW.2 : Gangaram S. Naik
Documents marked on behalf of the petitioners:
Ex.P.1 FIR
Ex.P.2 Mahazar
32 SCCH-1
MVC No.4012/2015
Ex.P.3 Sketch
Ex.P.4 IMV report
Ex.P.5 Wound certificate
Ex.P.6 Chargesheet
Ex.P.7 Accident information report
Ex.P.8 Discharge summery
Ex.P.9 Lab report
Ex.P.10 6 Prescriptions
Ex.P.11 Medical bills (25 in nos.) for Rs. 12,079/-
Ex.P.12 Photograph with CD
Ex.P.13 & 14 2 Outpatient records
Ex.P.15 Notarized copy of Driving License
Ex.P.16 OPD card
Ex.P.17 Case sheet
Ex.P.18 X-ray
Documents marked on behalf of the respondents:
Ex.P.1 Policy copy
Ex.P.2 Authorisation letter issued by RTO
Ex.R.3 History sheet of driver Nisssar Ahmed Khan
(H.P.SANDESH)
Member, Prl. M.A.C.T.,
Court of Small Causes ,Bangalore.
*S.D.*
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