Bangalore District Court
) Sri.Sampath Kumar vs ) Sri.A.M.Narasimah Murthy on 4 March, 2017
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL;
B'LORE (SCCH-17)
DATED THIS THE 4th DAY OF MARCH, 2017
PRESENT; Sri.A.Samiulla B.Sc.,LL.B.,
XIX Addl SCJ & MACT.
MVC.No.2069/2016
Petitioners: 1) Sri.Sampath Kumar
S/o Late Thammanna,
45 years,
2) Smt.Shanthamma,
W/o Sampath Kumar,
35 years,
Both are R/at
Kattagollahalli village,
Mandur Post,
Bangalore East Taluk,
Bangalore-49.
(By Sri.TVR)
V/s
Respondents : 1) Sri.A.M.Narasimah Murthy,
S/o Muniyallappa,
Major,
R/o Arebannimangala Village,
Budigere Post, Jala Hobli,
Bangalore-64.
SCCH 17 2 MVC.No.2069/16
2)The Reliance General Insurance
Company Limited, V Floor,
West Wing, Centenary Building,
M.G.Road, Bangalore-01.
(R-1 Sri.KNS
R-2 by Sri.VSN)
J U D G M E N T
Petition is filed under Section 166 of MV Act seeking compensation of Rs.30,00,000/- on account of death of Sri.S.Sharan Kumar in a Road Traffic Accident.
2. Petitioners pleaded that, they are parents of deceased, who died in a motor accident occurred on 26th day of December 2015 at about half past eleven in the morning when he was riding pillion on the motorcycle bearing No.KA- 53/X-5617, near Ramenahalli, Channarayanapatna Hobli, Devenahalli Taluk, a tractor-trailer bearing No.KA-50/T- 689 and KA-50/T-690 came there from Budigere side SCCH 17 3 MVC.No.2069/16 driven by its driver in high speed, rash and negligent manner and turned the tractor-trailer towards Ramenahalli without any indication in that process trailer dashed the motorcycle, due to impact rider and pillion rider fell to ground and sustained injuries. Injured Sharan was shifted to Profile Multi Speciality Hospital, Bangalore, wherein he succumbed to injuries on 4/1/16 while under treatment. He was hale and healthy earlier to the accident and was studying first year Bachelor of Engineering. They incurred medical expenses of Rs.5,00,000/- and Rs.50,000/- towards funeral expenses. Jurisdictional Police registered case against the driver of tractor-trailer, which is owned by the first respondent and insured with the second respondent respectively, who are liable to pay compensation. Hence petition is filed.
SCCH 17 4 MVC.No.2069/16
3. First respondent filed written statement denying the petition averments. He admits that he is the RC owner of tractor-trailer and also admits the validity of insurance policy as on the date of accident. In this backdrop he prays to dismiss the petition.
4. Second respondent resisted the claim petition denying the petition averments in toto, inter alia contended that the claim is bad for non-compliance of Section 158 (6) and 134
(c) of MV Act. It contended that the rider of motorcycle contributed to the cause of accident and the degree of negligence on the part of rider of the motorcycle was on the higher side, as such the liability if any, as far as second respondent is concerned should be considerably be reduced and mitigated by taking into consideration of the higher SCCH 17 5 MVC.No.2069/16 degree of the negligence of rider. Reserving right to contest the matter on all grounds u/S 170 of MV Act in the event of owner fails to contest the claim, it prays to dismiss the petition.
5. Following issues arise for consideration:
1. Whether petitioners prove that on 26.12.15 at about 11.30 a.m., when the deceased riding pillion was proceeding towards village from Koramangala on motorcycle, bearing No.KA-53/X-5617 ridden by his friend Anil Kumar near Ramanahalli Village, Devanahalli Taluk, Bangalore Dist, met with an accident, sustained injuries and succumbs to the same due to actionable negligence on part of driver of tractor-trailer bearing No.KA-50-T-689 and KA-53-T-690 as alleged?
2. Whether petitioners are entitled for compensation? If so, at what amount and from whom?
3. What order or award?
6. To prove their case, petitioners examined first petitioner as Pw.1 and documents Ex.P1 to 17 were marked.
SCCH 17 6 MVC.No.2069/16 Rider of motorcycle Sri.Anil Kumar is examined as Pw.2. On the other hand, second respondent examined Mamatha, FDA, Yelahanka RTO as Rw.1 and documents Ex.R1 & 2 were marked. Assistant Manager of second respondent company was examined as Rw.2 and document Ex.R3 was marked.
7. Heard arguments from both sides.
8. Answer to the above issues is as follows:
Issue-1: Affirmative.
Issue-2: Partly affirmative.
Issue-3: As per final order for the following;
R E A S O N S
9. Issue-1: Petitioners asserted that Sharan Kumar lost his life in a vehicular accident occurred due to the negligence of driver of tractor. On the other hand SCCH 17 7 MVC.No.2069/16 respondents denied it and contended that the accident occurred due to the negligence of rider of motorcycle.
10. It is well settled that, in a claim petition u/S 166 of MV Act the negligence is not required to be proved beyond reasonable doubt but on the touch stone of preponderance of probability. Initial burden is on the claimants to demonstrate the actionable negligence on the part of driver of tractor-trailer. In this backdrop let us analyse the proof made available by the parties to the lis.
11. The first petitioner filed evidence affidavit reiterating the petition averments. He specifically stated that, his son was riding pillion on the motorcycle which met with an accident caused by the driver of tractor-trailer SCCH 17 8 MVC.No.2069/16 driving the same in high speed, rash and negligent manner dashing the motorcycle.
12. He relied on documents i.e., Ex.P1 is first information report registered by the police against the driver of tractor-trailer on the basis of report lodged by the rider Anil Kumar. Ex.P2 is report, wherein it is stated that the accident has taken place due to the negligence of driver of tractor. Ex.P3 is final report filed by the Police against the driver of tractor by opining that the accident has not occurred due to the mechanical defect of vehicles but occurred due to the negligent driving of driver of tractor. Ex.P4 & 6 are Spot Panchanama and Site plan, wherein the topographical situation of place of accident and the exact SCCH 17 9 MVC.No.2069/16 place of impact are indicated. Ex.P5 is IMV report. Ex.P7 & 8 are inquest mahazar and post-mortem report.
13. In cross-examination of Pw.1 it is suggested that, he has stated in the hospital that his son rode the motorcycle in high speed and caused accident dashing tractor-trailer, due to this two days delayed report is lodged, he denied it. He denied that in collusion with Anil Kumar false case is filed. He admits that the contents of IMV report and Sketch are correct. It is suggested that the tractor-trailer proceeded on the left side of road and accident has taken place due to the negligence of his son and not due to the negligence of driver of tractor, he denied the said suggestions. It is suggested that, his son rode the motorcycle in high speed and tried to overtake the tractor SCCH 17 10 MVC.No.2069/16 and came in contact with right rear portion of trailer, he denied it.
14. Sri.Anil kumar (Pw.2) is the rider of motorcycle. He stated that he was riding the motorcycle along with pillion rider Sharan Kumar, near Ramenahalli a tractor-trailer came in high speed, rash and negligent manner from Budigere side and without giving any indication the driver turn the tractor towards Ramenahalli, due to this tractor-trailer came to the other side of road and caused accident dashing motorcycle, due to impact they fell to ground. He sustained simple injuries. Injured pillion rider succumbed to the injuries in the hospital.
15. In cross-examination the Pw.2 stated that the accident took place in highway road. There is no median in SCCH 17 11 MVC.No.2069/16 the road. It is suggested that the deceased was not wearing helmet and the deceased was riding the motorcycle in high speed and caused accident dashing the rear portion of trailer and deceased sustained head injuries as he was not wearing helmet, he denied the said suggestions. Pw.2 stated that he was riding the motorcycle. It is suggested that on that day the deceased was riding the motorcycle and due to his negligence only the accident has taken place, he denied it.
16. On the other hand the second respondent examined Mamatha, FDA, Yelahanka RTO. She stated that the driver Muninanjappa is possessing Driving License to ride motorcycle and to drive LMV Car and LMV Tractor. Tractor is non-transport vehicle. If tractor is attached with trailer it becomes transport vehicle and it requires separate SCCH 17 12 MVC.No.2069/16 transport licence. To drive tractor-trailer separate transport endorsement is required. Muninanjappa is having license to drive tractor only and he is not having license to drive tractor attached with trailer. She produced Driving License extract (Ex.R2). In cross examination she stated that she is not a technical expert.
17. Senior Executive legal of second respondent company examined as Rw-2. He stated that the company has issued policy of insurance in respect of the tractor-trailer. Driver of tractor was not possessing valid and effective driving license to drive the tractor-trailer on the date of accident.
18. It is worth to note that the Rw.2 has not stated anything about the negligence, which resulted in the fatal accident. In the backdrop of evidence supra let us analyze SCCH 17 13 MVC.No.2069/16 the facts situation on hand to unveil the truth regarding the rival contentions raised by the parties to lis in respect of negligence.
19. It is significant to note that in the instant case absolutely there is no dispute with respect to the police records produced by the petitioners. The Spot Panchanama and Site plan (Ex.P4 & P5) reveal the true picture of accident, topographical situation of place of accident and the exact place of impact. As per said documents the place of accident is Devanahalli-Budigere road. It is in north- south direction. Its width is 20 feet. Motorcycle was proceeding towards south (Budigere). Tractor-Trailer was proceeding towards North (Devanahalli). On eastern side of road, a cross-road to Ramnahalli is situated. Motorcycle was SCCH 17 14 MVC.No.2069/16 proceeding on the eastern side (proper side) of road. Tractor-trailer came from opposite direction and turn towards Ramenahalli cross-road and in that process it dashed motorcycle. The driver of tractor-trailer should be more cautious while taking turn from western side of road to eastern side. He has to allow the vehicles on eastern side to proceed and after observing no vehicle movement he has to turn the vehicle towards cross-road situated on the other side of road. But the driver of tractor-trailer took the tractor suddenly towards cross-road in a negligent manner which resulted in the accident. All these facts manifest that the accident occurred due to the negligence of driver of tractor-trailer. Though the respondents contended that the accident took place due to the SCCH 17 15 MVC.No.2069/16 negligence of rider of motorcycle but they failed to produce any iota of evidence.
20. It is argued that there is delay in lodging report, which shows that the accident occurred due to the negligence of rider of motorcycle. This contention is not sustainable because mere delay in lodging report does not indicate that the accident occurred due to the negligence of rider of motorcycle. Delay in filing report always not creates doubt regarding the case. In the case on hand pillion rider sustained grievous injuries. He was immediately shifted to the hospital and treated for the injuries sustained in the history of RTA. More over in the case on hand there is no dispute about the very occurrence of SCCH 17 16 MVC.No.2069/16 accident. In this background the contention raised is not tenable.
21. The discussion supra coupled with the absence of any contra material it can be safely conclude that the accident occurred due to the negligence of driver of tractor-trailer in which Sharan Kumar lost his life. Hence issue-1 is answered in affirmative.
22. Issue-2: On account of death of Sharan Kumar the petitioners being the parents of deceased are entitle for compensation under the following heads. Loss of dependency: To ascertain the loss of dependency the age, income of deceased and the number of dependents of the deceased are to be taken into consideration.
SCCH 17 17 MVC.No.2069/16 Petitioners stated that the deceased was aged 20 years at the time of accident. In police and medical records the age of deceased is indicated as 20 years. There is no dispute with respect to the age of deceased.
Petitioners asserted that the deceased was studying Bachelor of Engineering. They produced study certificate (Ex.P13) issued by the Principal of SEA college of Engineering Technology, wherein it is stated that the deceased admitted to BE degree course in Mechanical Engineering for the Academic year 2015-16. Ex.P13 is undisputed document. In cross-examination of Pw.1 he stated that the deceased has written first semester examination. There is no much dispute about the education of deceased. Considering the fact that the deceased was studying Technical course and the job opportunities in SCCH 17 18 MVC.No.2069/16 future for a person possessed graduation in Engineering the ends of justice can be met by considering the notional income of deceased as Rs.10,000/- per month.
In case of Rajesh the Hon'ble Apex Court held that future prospects to be added in case of self employed person depending on the age of deceased. It is pertinent to note that in a decision reported in 2013 ACJ 1403 (Rajesh & Others v/s Rajbir Singh & Others) the Hon'ble Apex Court at para 11 & 12 held that formula for increase of income for future prospects adopted for persons with permanent jobs in Sarala Verma's case also be applied to persons who were self employed or were engaged on fixed wages. 50 percent of actual income for persons below 40 years. 30 per cent for age group of 40 to 50 years. 15 per SCCH 17 19 MVC.No.2069/16 cent for age group of 50 to 60 years. No addition thereafter.
Deceased was aged 20 years; hence 50% per cent is added towards future prospectus. 50% of Rs.10,000/- works out to Rs.5,000/-. Total income is Rs.15,000/-. Deceased was a bachelor, hence 50% is deducted towards personal expenses. 50% of Rs.15,000/- works out to Rs.7,500/-. Annual income comes to Rs.7,500x12 = Rs.90,000/-. Loss of dependency on application of multiplier is Rs.90,000x18 = Rs.16,20,000/-.
Compensation to the family members (children and family members other than wife) for loss of love and affection, deprivation of protection, social security etc. SCCH 17 20 MVC.No.2069/16 In case of Rajesh V/s Rajbir Singh (supra) the Hon'ble Apex Court granted Rs.1,00,000/- for loss of care and guidance for minor children.
In a decision reported in AIR 2014 SC 706 (Puttamma V/s Narayan Reddy), The Hon'ble' Apex Court awarded Rs.1,00,000/- as compensation to the family members (children & family members other than wife) for loss of love and affection, deprivation of protection, social security etc. Thus, considering the age of dependants and the age of deceased it will be just, fair and equitable to award Rs.1,00,000/- towards loss of love and affection. Funeral expenses and transportation of dead body:
Petitioners stated that they spent considerable amount towards transportation of dead body and funeral SCCH 17 21 MVC.No.2069/16 expenses. Except ocular version no positive proof is placed to demonstrate it. In the absence of proof coupled with the family background and distance traveled, the petitioners are entitle for Rs.25,000/- under this head.
Medical expenses: Petitioners stated that they spent considerable amount towards medical expenses. They relied on 43 medical bills of Rs.3,22,329/- and 34 prescriptions and five inpatient receipts produced at Ex.P10 & 12. Bill No.1 is inpatient bill issued by Profile Hospital for Rs.1,91,000/-.
Though Pw.1 was subjected to cross-examination but nothing is elicited which creates doubt regarding the genuineness of medical bills. Thus petitioners are entitle for Rs.3,22,329/- towards medical expenses.
SCCH 17 22 MVC.No.2069/16 The petitioners are entitling for compensation under the following heads:
a) Towards loss of dependency Rs. 16,20,000/-
b) Towards loss of love and affection Rs. 1,00,000/-
c) Towards funeral expenses Rs. 25,000/-
d) Towards medical expenses Rs. 3,22,329/-
Rs. 20,67,329/-
23. Liability: In the instant case the undisputed facts are that the offending vehicle is tractor-trailer and driver of said vehicle possess valid driving licence to drive LMV Tractor. The tractor is non transport vehicle whereas the tractor-trailer is transport vehicle.
In the light of undisputed facts supra it is argued that, at the time of accident the driver of insured vehicle did not possess valid and effective driving licence to drive a SCCH 17 23 MVC.No.2069/16 tractor-trailer, as such Insurance Company is to be exonerated of its liability. On the contrary it is argued that, a person possessing licence to drive LMV tractor can also driver tractor-trailer and no separate driving licence or endorsement is required.
24. The Official from Yelahanka RTO (Rw.1) in her evidence stated that driver possessed driving licence to drive LMV Tractor, which is non-transport vehicle and said driver is not authorize to driver tractor-trailer. Rw.2 stated that the driver is not authorized to drive tractor-trailer. In cross-examination the Rw.2 stated that, tractor will be used for transportation of goods and also for agriculture. He denies that, tractor means tractor cum trailer.
SCCH 17 24 MVC.No.2069/16
25. In the backdrop of discussion supra the moot question arises for consideration is can a person possessing driving licence i.e., LMV tractor can also driver tractor-trailer or not.
26. Second respondent relied on decisions reported in i) (2008) SCC 253 (New India Assurance Company v/S Roshan Ben Fakir and another), wherein it is held that, accident caused by goods transport vehicle (autorickshaw delivery van), driver of vehicle was not possessing valid licence to driver a transport vehicle, insurer not liable.
ii) (2009) II SCC 356 (Oriental Insurance Company Limited v/s Angod Kol & Others), wherein at para 37 it is held that, Ram Narain was having licence to driver light motor vehicle. The licence was not endorsed as required SCCH 17 25 MVC.No.2069/16 and hence, he could not have been driven TATA 709 in the absence of requisite endorsement and the insurance company could not be held liable.
iii) Judgment passed in MFA No.847/2011 dated 17.12.15, wherein it is stated that the driver had licence to driver LMV (non transport) and on the date of accident he had no licence to drive LMV transport vehicle, as such insurer is not liable to pay compensation.
iv) Judgment passed in MFA 10462/12 dated 20.10.15, wherein it is stated that, the licence possessed by the driver of tractor-trailer authorized him to drive LMV and HGV (non transport). There was no endorsement by the RTO, permitting the driver to drive a transport vehicle, if the driver is not authorize to drive a tractor-trailer and the SCCH 17 26 MVC.No.2069/16 same exonerates the Insurer from indemnifying the insured on the ground of violation of policy conditions.
27. On the other hand, the petitioners relied on decisions reported in i) (2001) 8 SCC 56 (Nagashetty v/s United India Insurance Co. Ltd., & Others), wherein it is held that, When a person holds a permanent licence to drive tractor, then merely because he was driving a tractor which had a trailer attached to it and was being used for carrying goods at the time of accident, held, it cannot be said that the tractor was being used as a goods vehicle for driving which the driver had no valid licence - In the insurance policy issued for a tractor, an additional premium for a trailer having been taken and the policy having contemplated transportation of goods, also, held, insurance company was SCCH 17 27 MVC.No.2069/16 liable to pay compensation to the LR of the deceased victim of the accident. At para 10 it is held that, if a person has a valid driving licence to drive a tractor as a motor vehicle, he continues to have a valid licence to drive that tractor or motor vehicle even if a trailer is attached to it and some goods are carried in it. In other words, a person having valid driving licence to drive a particular category of vehicle does not become disabled to drive that vehicle merely because a trailer is added to that vehicle.
ii) Judgment passed in MFA No.1830/14 dated 24.3.2015, wherein it is stated that the contention of learned counsels for Insurance Company that driver of insured tractor did not have valid licence to drive a tractor-
SCCH 17 28 MVC.No.2069/16 trailer in the absence of endorsement to drive tractor- trailer cannot be accepted.
iii) 2011 ACJ 481, Jharkhand (National Insurance Co. Ltd., v/s Jayanthi Devi & Others), wherein it is held that, if the trailer is attached to tractor and it is used for carrying goods, the licence to drive tractor does not become in effective and insurance company is liable to pay compensation.
In decisions reported in i) AIR 2013 SC 2262 (S.Iyappan v/s United India Insurance Company and another), wherein the Hon'ble Apex Court held that - the accident involving maxi cab and cycle, driver of maxi cab holding valid licence to drive Light Motor vehicle but did not have endorsement to drive maxi cab, mere absence of SCCH 17 29 MVC.No.2069/16 endorsement does not exonerate insurer of its statutory liability to pay compensation.
ii) (2015) 2 SCC 186 (Kulwant Singh and Others v/s Oriental Insurance Company), wherein it is held that a driver who had a valid licence to drive a light motor vehicle, therefore, was authorised to drive a light goods vehicle as well. Merely, because the driver did not get any endorsement in the driving licence to drive Mahindra maxi cab, which is a light motor vehicle, the Hon'ble High Court has committed grave error of law in holding the licence to drive the commercial vehicle.
It is significant to note that in a judgment passed in the Hon'ble Apex Court in (Mukund Dewangan v/s Oriental Ins. Co. Ltd.,) dated 11.2.2016 (DB), the decisions SCCH 17 30 MVC.No.2069/16 reported in i) (2008) 8 SCC 253 (New India Assurance Co v/s Roshanben Fakir & another) ii) (2009) 11 SCC 356 (Oriental Insurance Co. Ltd., V/s Angod Kol & Others) and
iii) (2001) 8 SCC 56 (Nagashetty v/S United India Ins. Co. Ltd., & Others) are referred to larger bench and the matter is still pending to finding regarding questions i.e., what is the meaning to be given to definition of light motor vehicle as defined in Section 2 (21) of the MV Act? And whether transport vehicles are excluded from it?
Petitioners relied on a decision reported in 2016 ACJ 1000 MP (Oriental Insurance Co. Ltd., V/s Sanju Bai & Others), wherein it is stated that, judicial precedent - Binding effect - Coordinate Bench of Apex Court has expressed in the correctness of view expressed in the SCCH 17 31 MVC.No.2069/16 earlier decision of coordinate Bench and referred the matter to a larger Bench - Whether the earlier decision still holds the filed and is a binding precedent for all the subordinate Courts until over turned by a larger Bench - Held; yes.
In the backdrop of discussion supra, the decision passed in Nagashetty case (Supra), which is squarely applicable to the facts situation on hand and said decision still holds the filed, the insurer is liable to pay compensation to the petitioners. Accordingly, this issue is answered.
28. Issue-3: By virtue of above findings, Tribunal proceeds to pass the following;
O R D E R Petition is allowed in part with costs.
SCCH 17 32 MVC.No.2069/16
Petitioners are entitled for compensation of
Rs.20,67,329/- (Rupees Twenty Lakhs Sixty seven
thousand three hundred twenty nine Only) with interest @ 9 per cent per annum from the date of petition till its realization.
Respondents are liable to pay compensation to the petitioners.
Second respondent being the insurer has to indemnify the owner. Hence second respondent is directed to deposit the aforesaid compensation amount within 60 days from the date of this judgment.
Out of the award amount Petitioners are entitled for compensation to the extent of 50 per cent each.
In the event of deposit, 50 per cent of the amount shall be kept in fixed deposit in any nationalized or schedule SCCH 17 33 MVC.No.2069/16 bank for a period of three years of the choice of petitioners with liberty to withdraw the accrued interest periodically and remaining 50 per cent shall be released in favour of the petitioners in equal proportion as per their percentage noted above.
Advocate's fee is fixed at Rs.1,000/-.
Draw an award accordingly.
(Dictated to the Stenographer, transcribed by her corrected by me and then pronounced in the Open court, this the 4th day of March, 2017) (A.SAMIULLA) XIX ADDL.SCJ & MACT, BANGALORE.
A N N E X U R E LIST OF WITNESSES & DOCUMENTS EXAMINED & MARKED ON BEHALF OF THE PETITIONERS & RESPONDENTS:
FOR PETITIONERS:
Pw.1: Sri. Sampath Kumar Pw.2: Sri. Anil Kumar SCCH 17 34 MVC.No.2069/16 DOCUMENTS:
Ex.P.1 FIR
Ex.P.2 Complaint
Ex.P3 Charge sheet
Ex.P.4 Mahazar
Ex.P.5 IMV report
Ex.P.6 Sketch
Ex.P.7 Inquest report
Ex.P.8 PM report
Ex.P.9 Treatment summary
Ex.P.10 43 medical bills of Rs.3,22,329/-
Ex.P.11 34 prescriptions
Ex.P.12 5 IP receipts
Ex.P.13 Study certificate
Ex.P.14 Bus pass
Ex.P.15 Pan card
Ex.P.16 Aadhar card
Ex.P.17
Ex
Ration card
FOR RESPONDENTS:
R.w.1: Mamatha
R.w.2:Santhosh
DOCUMENTS:
Ex.R.1: Authorisation letter
Ex.R.2: DL register extract
Ex.R.3: Insurance policy
(A.SAMIULLA)
XIX ADDL.SCJ & MACT,
BANGALORE.