Bangalore District Court
Husen Sab vs Shri Ram Gen Ins Co Ltd on 15 April, 2024
KABC020066032020
BEFORE THE CHIEF JUDGE, COURT OF SMALL CAUSES,
MEMBER PRL.MOTOR ACCIDENT CLAIMS TRIBUNAL AT
BENGALURU
DATED THIS THE 15th DAY OF APRIL 2024.
PRESENT : Smt. B.V. RENUKA, B.Sc., L.L.B.
MEMBER, PRL. M.A.C.T.
M.V.C. No. 1254/2020
PETITIONER: Husen Sab,
S/o. Lalasab Kanakagiri,
Aged about 21 years,
Hanama Sagar village and post,
Kushtagi Taluk,
Koppal District.
(Represented by Sri Girimallaiah,
Advocate)
RESPONDENTS:1. Shriram General Insurance Co.Ltd.,
No.5/4, 3rd floor, S.V.Arcade,
Bilekahalli Main Road,
B.G.Road, IIM Post,
Bengaluru-560 076.
(Insurer of Eicher Lorry bearing Regn.
No.KA-51-AB-9113)
(Represented by Sri Gururaj Salur,
Advocate)
2. Leela K.R., Major,
W/o. Ravi Kumar K.V.,
No.456-D, 1st cross, 1st phase,
Anogha Nilaya, Ideal Homes,
Rajarajeshwarinagar,
SCCH-1 2 MVC No.1254/2020
Bengaluru-560 098.
(R.C.Owner of Eicher lorry bearing Regn.
No.KA-51-AB-9113)
(Exparte)
*******
JUDGMENT
This claim petition is filed by the petitioner under Section 166 of the of the Motor Vehicles Act, 1989 claiming compensation of Rs.50,00,000/- along with interest from the respondents on account of injuries sustained by him in an accident.
2. Briefly stated the case of the petitioner is as follows:
That on 21.11.2019 at about 3.20 a.m. while the petitioner was proceeding in the Eicher lorry bearing Reg.No.KA-51-AB-9113 as a cleaner-cum-coolie, from the starting point, the driver of lorry was driving the lorry with high speed and in a rash and negligent manner, in spite of repeated request to go slow and when the driver reached near Binary Garments NH-4 Road, K.R.Halli Gate, Hiriyur Taluk, Chitradurga District, at that time, in the process of overtaking an unknown lorry which was proceeding ahead of the lorry in which the petitioner was proceeding, SCCH-1 3 MVC No.1254/2020 dashed against the hind portion of an unknown lorry. Due to the impact, the petitioner sustained multiple fractures to his both legs and other injuries. He took treatment in Government Hospital, Hiriyur, then in Sanjay Gandhi Institute of Trauma and Orthopaedics, Bengaluru. A case was registered in Crime No.352/2019 at Hiriyur Rural Police Station under Sections 279 and 338 of IPC. Hence, this petition for compensation.
3. In response to the notice of the petition, the respondent No.2 has remained absent and hence, she was placed exparte.
The respondent No.1 appeared through its Counsel and filed its written statement by denying the entire averments of the petition as false. The issuance of policy is admitted and the liability is subject to the terms and conditions of the policy. The second respondent has not submitted the claim form and other documents like RC, DL, permit etc., for verification. At the time of alleged accident, the petitioner was travelling in the Eicher goods vehicle bearing Reg.No.KA-51-AB-9113 as an unauthorized passenger, the said vehicle was registered as goods vehicle SCCH-1 4 MVC No.1254/2020 and not authorized to carry any passengers, the owner of the said vehicle has allowed him to travel as paid passenger and it is violation of the policy terms and conditions, hence, this respondent is not liable to pay any compensation. As per the averments of the petition, the petitioner was travelling as a cleaner/coolie in the Eicher lorry bearing Reg.No.KA-51-AB-9113, as per Section 147 of M.V.Act, the cleaner is not covered in a goods vehicle and the insured has not paid any premium to cover the risk of the employee. Hence, this respondent is not liable to pay any compensation. If the cleaner/coolie in a goods vehicle is not entitled for compensation under Section 166 of M.V.Act, then he is covered under the provisions of Employees Compensation Act. The driver of an Eicher lorry bearing Reg.No.KA-51-AB-9113 had no valid and effective driving licence and the owner of the lorry had allowed the driver to drive the lorry which amounts to violation of terms and conditions of the policy. Eicher goods vehicle was not having valid permit and Fitness Certificate to ply in the public place. The compensation claimed is highly excessive, SCCH-1 5 MVC No.1254/2020 arbitrary and disproportionate to the simple injuries sustained by him. Hence, prays to dismiss the petition.
4. On the basis of the above pleadings, this Court has framed the following issues:
1. Whether the petitioner proves that on 21.11.2019 at about 3.20 a.m. near Binary Garments on NH-04 Road, KR Halli gate, in Hiriyuru Taluk of Chitradurga district, he being cleaner cum coolie in Eicher Lorry bearing No.KA-
51-AB-9113 had met with an accident due to rash and negligent driving of the said Lorry by its driver and he sustained injuries in the accident as averred?
2. Whether the petitioner is entitled for compensation and if so, what amount and from whom?
3. What order and award?
5. The petitioner is examined as PW-1 and he has also examined one witness as PW-2 and got marked Exs.P.1 to P.15. The respondent No.1 has examined its official as RW-1 and got marked one document at Ex.R.1.
6. Heard the arguments on both sides.
7. My findings on the above issues are as under:
Issue No.1 ... In the Affirmative, Issue No.2 ... Partly in the affirmative awarding compensation of Rs.40,56,100/- from respondent No.2 SCCH-1 6 MVC No.1254/2020 Issue No.3 ... As per final order for the following:-
REASONS
8. Issue No.1:- The petitioner in order to prove this issue is relying upon his oral evidence and documentary evidence as per Exs.P.1 to P.7 such as FIR, complaint, spot panchanama, spot sketch, IMV report, Wound Certificate and chargesheet. PW.1 being an injured, in his affidavit evidence has narrated the manner in which he met with an accident and accident was due to rash and negligent act on the part of the driver of the Eicher Lorry/goods lorry bearing registration No.KA-51-AB-9113. The second respondent being the owner of the lorry has remained exparte. The first respondent being the insurer of the lorry, in its written statement has denied the accident and negligence aspect. Let us consider the materials placed before the court to decide this issue.
9. As per PW.1, on 21.11.2019, at about 3.20am, when he was proceeding in an Eicher Lorry bearing registration No.KA-51-AB-9113 as a cleaner-cum-coolie, the lorry driver was driving the vehicle at high speed and in SCCH-1 7 MVC No.1254/2020 a rash and negligent manner and when they were proceeding near Binary Garments on NH-4 road, K.R.Halli Gate, Hiriyur Taluk, Chitradurga District, at that time one unknown lorry was proceeding ahead of their lorry and his lorry driver in the process of overtaking the said unknown lorry, dashed against the hind portion of an unknown lorry and due to the impact, he sustained grievous injuries.
10. FIR and the complaint as per Exs.P.1 and P.2 disclose that on the basis of the complaint lodged by the petitioner, on the date of accident, a criminal case was registered against the driver of the Eicher Lorry bearing registration No.KA-51-AB-9113. In the complaint, the petitioner has narrated the same facts which are stated by him in his affidavit evidence. Though PW.1 was cross- examined by the first respondent counsel, but nothing worth is elicited from his mouth to disbelieve the occurring of the accident due to the rash and negligent act on the part of the driver of the Eicher Lorry bearing registration No.KA-51-AB-9113. As per PW.1 in the cross-examination, on the date of accident he was the cleaner-cum-coolie in the said lorry and the lorry was loaded with sajje millet SCCH-1 8 MVC No.1254/2020 load, but he was not the owner of the said load. Thus, as per PW.1 and Exs.P.1 and P.2, it is clear that the petitioner was travelling in the Eicher Lorry bearing registration No.KA-51-AB-9113 as its cleaner along with the driver by name Basavaraj.
11. Exs.P.3 and P.4 are the spot mahazar and the spot sketch which reveals the state of affairs at the accident spot. As per Ex.P.3, the place of accident is near K.R.Halli gate, in front of Binary Garments on NH-4 road, which leads from Hiriyur towards Bengaluru and the said road runs west to east and its width is about 36 ft., and there is a divider in the middle of the said road. Even in Ex.P.4, the said details are mentioned. As per Exs.P.3 and P.4, the place of accident is about 26 ft. away from the edge of the road divider. In Ex.P.3, it is mentioned that the front glass, head light, two doors, bumper, front shape and mirror of the Goods Lorry bearing registration No.KA-51- AB-9113 have been damaged in accident. PW.1 in his cross-examination has admitted that front portion of the lorry was completely damaged in accident. Hence, by considering Exs.P.3 and P.4 and from the version of PW.1, SCCH-1 9 MVC No.1254/2020 it is clear that as the driver of the Eicher Lorry bearing registration No.KA-51-AB-9113 in which the petitioner was proceeding as a cleaner, drove the same with high speed and in a rash and negligent manner, this accident has occurred, resulting in injuries to the petitioner and damages to the lorry in the front portion.
12. Ex.P.5 is the IMV report wherein the damages caused to the Eicher Lorry bearing registration No.KA-51- AB-9113 are mentioned. As per this document, driver cabin top was totally damaged, front wind screen glass, front bumper at left side portion, front left side head light assembly, front both side doors, dash board, front left side shape, front left side wheel fender and left side body at front portion of the lorry in question were damaged. That means, the front portion of the lorry has been extensively damaged in accident. By considering these damages also, it can be said that, as the driver of the Eicher Lorry bearing registration No.KA-51-AB-9113 has hit the lorry to an unknown lorry which was proceeding ahead, the front portion of the lorry in question was completely damaged. Wound Certificate-Ex.P.6 discloses that the petitioner has SCCH-1 10 MVC No.1254/2020 sustained crush injury both lower limb till thigh region and it is a grievous injury. Thus, from Exs.P.5 and P.6, it can be said that as the driver of the lorry drove it with high speed and in a rash and negligent manner, this accident has occurred, resulting in injuries to the petitioner and damages to the lorry in question.
13. Ex.P.7 is the chargesheet filed by the police against the driver of the Eicher Lorry bearing registration No.KA-51-AB-9113, after detailed investigation. Even in the chargesheet, it is alleged that due to the rash and negligent act on the part of the driver of the lorry in hitting an unknown lorry moving ahead, this accident has occurred, causing grievous injury to the petitioner and causing damages to the front portion of the lorry. This chargesheet has not been challenged by the driver of the lorry in question. The first respondent has not summoned the driver of the lorry in order to prove its contention. Thus, absolutely there is no evidence of the first respondent in order to rebut the evidence placed by the petitioner. The conduct of the driver of the lorry in not challenging the chargesheet itself is sufficient to draw an SCCH-1 11 MVC No.1254/2020 adverse inference against him that, as the accident took place due to his negligence, he has remained silent. Thus, by considering all these aspects, I am of the opinion that the petitioner has proved that he met with an accident and sustained grievous injury due to the rash and negligent act on the part of the driver of the Eicher Lorry bearing registration No.KA-51-AB-9113. Accordingly, I answer Issue No.1 in the affirmative.
14. ISSUE No.2:
(a). Pain and Agony:
Wound Certificate-Ex.P.6 discloses that the petitioner has sustained crush injury both lower limb till thigh region. In the said wound certificate, it is mentioned that the petitioner has undergone above knee amputation. As per the opinion of the doctor, the said injury is grievous in nature. Discharge Summary-Ex.P.8 and Case Sheet- Ex.P.14 disclose that the petitioner has taken treatment in Sanjay Gandhi Hospital, Bengaluru as an inpatient from 21.11.2019 to 08.01.2020 and he has undergone bilateral above knee amputation and wound debridement for the accidental injury. Outpatient records at Ex.P.10 disclose SCCH-1 12 MVC No.1254/2020 that the petitioner has taken treatment in Sanjay Gandhi Hospital as an outpatient. The injury sustained by the petitioner requires minimum nine months treatment.
During the treatment period, the petitioner has suffered lot of pain and agony. As such, I deem it just and proper to award compensation of Rs.1,50,000/- under the head Pain & Agony.
(b). Medical Expenses (including conveyance, attendant charges and extra nourishment):
The petitioner claims that he has spent Rs.1,50,000/- towards medical expenses, conveyance, attendant charges and nourishment. In support of his evidence, PW.1 has produced medical bills as per Exs.P.9 and P.12. Ex.P.9 is amounting to Rs.64,063/- and Ex.P.12 is amounting to Rs.1,211/-. Ex.P.9(1) is the final inpatient bill of Sanjay Gandhi Hospital, amounting to Rs.73,051/-. Out of the said amount, Rs.13,051/- is given discount. PW.1 has produced advance receipts at Ex.P.9(5 and 6) amounting to Rs.25,000/-. This amount is deducted towards the final inpatient bill of Rs.60,000/- in Ex.P.9(1). As such, it can be said that the petitioner has spent an SCCH-1 13 MVC No.1254/2020 amount of Rs.60,000/- towards hospital charges. Ex.P.9 (7,9 and 12) are the bills of Sanjay Gandhi Hospital, towards lab tests, service charges, miscellaneous charges etc. Hence, it can be said that the petitioner has spent the said amounts towards his treatment. The other bills are pharmacy bills which are not supported by prescriptions. Even they do not contain the seal of the shop. Hence, it cannot be said that the petitioner has spent the amounts claimed under those pharmacy bills. However, by considering the nature of the injury sustained by the petitioner and the type of treatment undergone by the petitioner, it can be said that the petitioner has spent some amount towards medicines, conveyance, nourishment and attendant charges. As such, I deem it just and proper to award compensation of Rs.1,00,000/- under the head medical expenses, conveyance, nourishment and attendant charges.
(c) Loss of income during the treatment period:
PW.1 has deposed that prior to the accident, he was working as a cleaner-cum-coolie under the second respondent and he was getting salary of Rs.18,000/- per SCCH-1 14 MVC No.1254/2020 month, but due to the accidental injury, he lost his earnings. Except the oral assertion of PW.1, no materials are placed in proof of his avocation and income. In the complaint and also in the evidence, PW.1 has stated that he was the cleaner in the lorry in which he was travelling on the date of accident. As such, the notional income of the petitioner has to be fixed as per the Minimum Wages Act. Hence, the average income of the petitioner is taken at Rs.11,500/- per month. Injuries sustained by the petitioner requires minimum 9 months treatment. During that period petitioner was unable to do any work. Hence, I deem it just and proper to award Rs.1,03,500/- under the head loss of income during the period of treatment.
(d) Future loss of earning capacity:
PW-1 has deposed that due to the amputation of both of his legs upto thigh, he is not able to walk, stand, sit properly, not able to move from his bed, not able to attend to his nature calls without someone's help and now he is depending upon others for all purpose and he has become permanent handicap person and he lost his future earnings since he has to depend upon others for his SCCH-1 15 MVC No.1254/2020 livelihood and due to amputation of both of his legs upto thigh, he has lost his marriage prospects also. In order to prove the disability, the petitioner has examined the doctor as PW-2. PW-2 has deposed about the injury sustained by the petitioner and the line of treatment undergone by the petitioner. As per PW.2, the petitioner has undergone above knee amputation of both lower limbs, stump debridement and skin grafting to the stump. PW.2 has deposed that the amputated stump of right lower limb at the level of distal 1/3 of (R) thigh, amounts to 80% disability and 40% disability to the whole body. PW.2 has also deposed that amputated stump of left lower limb at the level of distal 1/3 of left thigh amounts to 80% disability and 40% disability to the whole body and total amount of disability to the whole body from both lower limbs is at 80% and the said disability is permanent in nature and with this disability, the petitioner is not able to do any manual work in future. Whether the disability assessed by PW.2 is to be accepted or not has to be scrutinized cautiously.SCCH-1 16 MVC No.1254/2020
PW.2 in his cross-examination has deposed that he and his juniors as team of doctors conducted surgery to the petitioner. That means, PW.2 is the treated doctor of the petitioner and as such, his evidence has to be believed. PW.2 admits that the petitioner could do works by sitting on the chair, if artificial limbs are fixed to him. Merely on this admission of PW.2, it cannot be said that the petitioner do not suffer from functional disability in view of the serious nature of the injury sustained by the petitioner. The materials placed on record clearly disclose that the petitioner has lost both legs above knee and he has become a handicap person. On perusal of the cross-examination of PW.2, it is noticed that the first respondent counsel has not disputed about the petitioner suffering from permanent disability, but according to him, the disability assessed by PW.2 is on higher side. When the materials on record discloses that the petitioner has lost both of his legs on account of accidental injuries, he has to lead rest of his life by depending upon others for each and every activity. Such being the case, the question of petitioner doing any work by sitting on the chair, do not arise. Moreover, as per SCCH-1 17 MVC No.1254/2020 the petitioner, he is a cleaner and coolie in a lorry. As such, he cannot do the said work by sitting on the chair. Hence, by considering the pathetic condition of the petitioner regarding his both legs being amputated above knee, I am of the opinion that it is just and proper to take the functional disability at 100%. Hence, the functional disability of the petitioner is taken at 100%.
The income of the petitioner is taken at Rs.11,500/-. In the decision reported in 2014 ACJ 627 (Syed Sadiq and Others Vs. Divisional Manager, United India Insurance Co.Ltd.) and in another decision reported in 2014 ACJ 653 (Sanjay Kumar Vs. Ashok Kumar & Others), the Hon'ble Apex Court has taken 50% as future prospects. In the present case also, by considering that the petitioner is a cleaner-cum-coolie, future prospects is taken at 40%. According to the petitioner he was aged 21 years as on the date of accident. To prove his age, the petitioner has produced his Aadhaar Card as per Ex.P.13. In Ex.P.13, the date of birth of the petitioner is mentioned as 02.06.1999. Accident occurred in the year 2019. Hence, by considering the said date of birth of the petitioner, I am SCCH-1 18 MVC No.1254/2020 of the opinion that the petitioner was aged 21 years as on the date of accident. Depending upon the said age, as per the ratio laid down in a decision reported in 2009 ACJ 1298 (Sarala Verma Vs. Delhi Transport Corporation) the proper multiplier applicable is 18.
The income of the petitioner is taken at Rs.11,500/- p.m. As the petitioner is aged 21 years, 40% future prospects has to be added to his monthly income. Therefore, 40% of Rs.11,500/- is Rs.4,600/-, monthly income is Rs.16,100/-. The annual income of the petitioner comes to Rs.1,93,200/-. As discussed above, the petitioner suffered 100% functional disability. If we multiply the annual income of the petitioner with 18 multiplier, the loss of future income comes to Rs.34,77,600/- (16,100 x 12 x 100 x18 /100 = 34,77,600/-). As such, I deem it just and proper to award Rs.34,77,600/- under the head loss of future earning capacity.
(e) Towards future medical expenses:
PW.1 in his evidence has not stated anything about the requirement of future medical expenses to him. SCCH-1 19 MVC No.1254/2020 However, PW.2 in his cross-examination has stated that there is a chance of fixation of artificial limbs to the petitioner. By considering that the petitioner has undergone amputation of both the legs above knee, I am of the opinion that he requires some amount towards purchase of artificial limbs, so that by fixing of artificial limbs, the petitioner will be in a better position to do some of the activities. Hence, I deem it just and proper to award compensation of Rs.75,000/- under the head future medical expenses.
(f) Towards unhappiness, loss of amenities and marriage prospects: PW-1 has deposed that due to the amputation of both of his legs upto thigh, he is not able to walk, stand, sit properly, not able to move from his bed, not able to attend to his nature calls without someone's help and now he is depending upon others for all purpose and he has become permanent handicap person and he lost his future earnings since he has to depend upon others for his livelihood and due to amputation of both of his legs upto thigh, he has lost his marriage prospects also. SCCH-1 20 MVC No.1254/2020
PW.2 has deposed that the petitioner suffers from disability of 80% to the right lower limb and 40% to the whole body and the petitioner suffers from disability of 80% to the left lower limb and 40% to the whole body i.e., the petitioner suffers from total disability to the whole body from both lower limbs at 80% and with this permanent disability, the petitioner is not able to do any manual work in future. The petitioner is young and aged 21 years and he is unmarried. PW.1 has produced photos at Ex.P.11 which disclose the condition of the petitioner by lying on the floor without both legs. Hence, by considering the pathetic condition of the petitioner, it can be said that the petitioner has to lead rest of his life by depending upon others and in a vegetative state and he has lost his marital prospects. As discussed above, the petitioner suffers from functional disability of 100%. Hence, by considering the difficulties stated by PWs 1 and 2, I am of the opinion that those difficulties will definitely cause unhappiness and discomfort to the petitioner during his lifetime while doing normal activities and other works. As such, I deem it just SCCH-1 21 MVC No.1254/2020 and proper to award Rs.1,50,000/- under the head unhappiness, loss of amenities and marriage prospects.
15. In view of the reasons stated above, in all the petitioner is entitled to the compensation as under:
Sl. Head of Compensation Amount
No.
a. Pain and Agony Rs. 1,50,000-00
b. Medical Expenses (conveyance, Rs. 1,00,000-00
nourishment and attendant
charges )
c. Loss of income during the Rs. 1,03,500-00
treatment and rest period
Rs.11,500 x 9
d. Loss of future income due to Rs. 34,77,600-00
permanent disability
11,500 x 40% =4,600
11,500+4,600=16,100
(16,100 x 12 x 100 x 18 /100)
e. Future medical expenses Rs. 75,000-00
f. Unhappiness and loss of Rs. 1,50,000-00
amenities
TOTAL Rs. 40,56,100-00
Thus, the petitioner is entitled for a sum of Rs.40,56,100/- with interest at the rate of 6% p.a. excluding Rs.75,000/- awarded towards future medical expenses, from the date of the petition till deposit in Court. SCCH-1 22 MVC No.1254/2020
16. So far as the liability is concerned, according to the petitioner, the first respondent is the insurer and the second respondent is the owner of the Eicher Lorry/goods lorry bearing registration No.KA-51-AB-9113. The second respondent being the owner of the said lorry has remained exparte. The first respondent in the written statement admits the issuance of policy in favour of the second respondent with respect to the goods vehicle bearing registration No.KA-51-AB-9113. It has contended that, at the time of alleged accident, the petitioner was travelling in Eicher lorry as an unauthorized passenger and as the said vehicle was registered as a goods vehicle, it is not authorized to carry any passengers, but the owner has allowed the petitioner to travel as a paid passenger and as such, there is violation of terms and conditions of the policy and moreover, the cleaner is not covered in a goods vehicle policy, since the insured has not paid any premium to cover the risk of the employee and as such, it is not liable to pay compensation to the petitioner. The first respondent has also contended that the claim of the petitioner as a cleaner-cum-coolie in a goods vehicle is not SCCH-1 23 MVC No.1254/2020 maintainable under Sec.166 of M.V.Act, since if he is entitled for any compensation, then he is covered only under the provisions of Employees Compensation Act. In this regard, the first respondent has placed the evidence of its official as RW.1. RW.1 in his evidence has deposed that at the time of alleged accident, the petitioner was travelling as an unauthorized passenger in the goods vehicle i.e., the lorry bearing registration No.KA-51-AB-9113 and as the second respondent has not paid extra premium to cover the risk of the cleaner, the cleaner is not covered under the insurance policy and the first respondent is not responsible to indemnify the second respondent.
17. In this regard, the learned counsel for the petitioner during his arguments, has relied upon a decision reported in (1) 2005 ACJ 1323 (National Insurance Co.Ltd. Vs. Prembai Patel & Others). Whereas the learned Counsel for the first respondent has relied upon the decisions reported in (1) 2005 ACJ 721 (National Insurance Co.Ltd. Vs. Bommithi Subbhayamma & Others) (2) ILR 2010 KAR 196 (Smt. Gulnaaz Jaleel Vs. Syed Jaleel & Another) SCCH-1 24 MVC No.1254/2020 regarding the liability of Insurance Company in case of petitioner or the deceased being a gratuitous passenger.
18. The decision relied upon by the petitioner counsel are in respect of the contention taken by the first respondent that claim of the petitioner is not maintainable as the petitioner alleges that he is a cleaner/coolie in a goods vehicle, but he is covered only under the provisions of Employees Compensation Act. In the decision relied upon by the petitioner counsel reported in 2005 ACJ 1323 at Para-6 of the Judgment, their Lordships have observed that if personal injury is caused to a workman by accident, arising out of and in the course of his employment, he can claim compensation either under Sec.166 of M.V.Act or under Workmen Compensation Act, but not under both the provisions. From these observations, it is clear that it is left to the victim to claim compensation either under Sec.166 of M.V.Act or under the provisions of Workmen Compensation Act, if the victim is an employee under the employer and accident took place during the course of his employment. Therefore, the contention of the first respondent that the petition is not maintainable since the SCCH-1 25 MVC No.1254/2020 petitioner has to claim compensation under Employees Compensation Act, cannot be accepted.
19. In this case, the petitioner has chosen to file this petition claiming compensation under Sec.166 of M.V.Act, by alleging the negligence aspect on the part of the driver of the Lorry in question and as discussed in Issue No.1, he has proved the negligence aspect. Therefore, by applying the observations made in the reported decision relied upon by the learned Counsel for the petitioner, the present claim petition is maintainable under Sec.166 of M.V.Act, even though the petitioner claims that he is a cleaner under the respondent No.2 in the goods vehicle.
20. RW.1 in his cross-examination has admitted that on 21.11.2019 the Insurance policy was in force in respect of the lorry bearing registration No.KA-51-AB-9113. RW.1 has produced the copy of the Insurance policy of the goods vehicle at Ex.R.1. RW.1 admits that the policy premium is collected for third party risk, but he has denied that the policy which was issued with respect to the lorry, covers the risk of the petitioner also. Even he has denied that the SCCH-1 26 MVC No.1254/2020 policy covers the risk of driver, cleaner and if there are any other persons, then the owner is responsible to pay the compensation. Let us consider the premium said to have been paid by the second respondent under Ex.R.1.
21. In Ex.R.1, the second respondent has paid premium of Rs.24,190/- towards third party cover and additional premium of Rs.315/- towards PA for owner driver. That means, under Ex.R.1, no additional premium was paid by the second respondent to a cleaner. Whether the additional premium paid by the second respondent towards PA for owner driver covers the risk of the cleaner is the point to be considered now.
22. The learned Counsel for the petitioner in his written arguments has alleged that the petitioner was present in the lorry as a cleaner-cum-coolie and in addition to the third party risk, a sum of Rs.315/- is collected towards additional premium and except the cleaner, no one has sustained injuries in the accident and as such, both the respondents are jointly and severally liable to pay the compensation. It is also alleged in the written arguments SCCH-1 27 MVC No.1254/2020 that, even if we assume for the sake of arguments that no additional premium was paid by the second respondent to cover the risk of the cleaner, under statute, driver, cleaner and coolies are automatically covered under Workmen's Compensation Act (Employees Compensation Act) and if the Workmen Compensation Act is applied, the liability of the Insurance Company is restricted and remaining compensation has to be paid by the owner of the lorry and as an additional premium of Rs.315/- is paid in this case, the first respondent is liable to pay the entire compensation.
23. As discussed above, the petitioner has filed this petition under Sec.166 of M.V.Act and not under the Employees Compensation Act, in order to consider the above arguments of the petitioner's counsel. Ex.R.1 discloses that an additional premium is collected towards personal accident of owner or driver and not for cleaner. Additional premium paid by the second respondent in Ex.R.1 is restricted only to owner and the driver and not to the cleaner. As such, additional premium amount paid by the second respondent towards PA of owner and driver, SCCH-1 28 MVC No.1254/2020 cannot be taken as premium paid towards the risk of cleaner in a goods vehicle. Therefore, the arguments stated by the petitioner counsel in the written arguments cannot be accepted.
24. As per RW.1, the petitioner was travelling in the goods vehicle as an unauthorized passenger. But, RW.1 in his cross-examination has deposed that he has not produced any document in this regard. However, it is noticed that in the complaint lodged by the petitioner as per Ex.P.2, he has specifically stated that he was travelling as a cleaner cum coolie in the lorry of the second respondent, driven by the accused in the criminal case at the time of accident. Though PW.1 in his cross- examination has deposed that he can produce the document to show that at the time of accident he was the cleaner-cum-coolie in the lorry, but he has not produced any document in this regard. It was suggested to PW.1 that even though he was not the cleaner-cum-coolie in the lorry at the time of accident, but to get compensation he is deposing falsely. This suggestion was denied by PW.1. Even RW.1 has denied the suggestion that on the date of SCCH-1 29 MVC No.1254/2020 accident, the petitioner was travelling in the lorry as a cleaner-cum-coolie. Such being the case, the petitioner ought to have placed satisfactory evidence to establish that he was a cleaner-cum-coolie on the date of accident under the respondent No.2 in his goods vehicle.
25. As per the petitioner, there was load of sajje millet in the lorry at the time of accident, but he was not the owner of the said load. In such circumstances, the probable inference that can be drawn is that the petitioner was travelling in the goods vehicle as an unauthorized passenger and not as a cleaner-cum-coolie, as deposed by PW.1. Even if we assume that the petitioner was working under the respondent No.2 as a cleaner-cum-coolie in his goods vehicle, but as discussed above, the second respondent has not paid additional premium covering the risk of the said cleaner-cum-coolie. Such being the case, I am of the opinion that the petitioner appears to have travelled in the goods vehicle in the capacity of a passenger and not as a cleaner-cum-coolie, since the employment of the petitioner as a cleaner-cum-coolie has not been established.
SCCH-1 30 MVC No.1254/2020
26. In the first reported decision relied upon by the first respondent counsel, their Lordships have held that the Insurance Company is not liable to pay compensation in respect of gratuitous passenger in a goods vehicle and the claimants are entitled to recover awarded compensation from the owner of the vehicle. By applying the ratio laid down in the first decision, I am of the opinion that in the present case also, the owner of the goods vehicle i.e., the second respondent only is liable to pay the compensation to the petitioner and not the first respondent i.e., the Insurance Company.
27. The facts and circumstances of the second decision relied upon by the first respondent counsel are different from the facts and circumstances of the present case and as such, it is not applicable to the present case on hand. Thus, from the overall assessment of the evidence placed on record, it is established before the court that the petitioner was travelling in the goods vehicle along with the driver as an unauthorized passenger and not as a cleaner-cum-coolie, since except the oral assertion of PW.1, absolutely there is no material before the court to show SCCH-1 31 MVC No.1254/2020 that the petitioner was a cleaner-cum-coolie under respondent No.2 in the goods vehicle as on the date of accident. As such, the first respondent is not liable to indemnify the second respondent, but it is the second respondent who is alone liable to pay the compensation to the petitioner. Thus, from the above discussion, I hold that the second respondent alone is liable to pay compensation of Rs.40,56,100/- to the petitioner with interest at 6% per annum, excluding Rs.75,000/- awarded towards future medical expenses, from the date of petition till the date of deposit in court, whereas, the petition against the first respondent is liable to be dismissed. Accordingly I answer Issue No.2 partly in the affirmative.
28. Issue No.3 : In view of my findings on the above said issue Nos.1 and 2 and for the reasons stated therein, I proceed to pass the following: -
ORDER The claim petition filed by the petitioner is allowed in part with costs against the respondent No.2, awarding compensation of Rs.40,56,100/- (Rupees Forty Lakhs Fifty Six Thousand One Hundred only) with interest at 6% p.a., SCCH-1 32 MVC No.1254/2020 excluding Rs.75,000/- awarded towards future medical expenses, from the date of petition till the date of deposit in Court.
The respondents No.2 is liable to pay the compensation amount with interest to the petitioner and she is directed to deposit the compensation amount in Court within 3 months from the date of this order.
After deposit of the compensation amount, 50% with proportionate interest shall be deposited in the name of the petitioner in any of the nationalized or scheduled bank for a period of 5 years. Remaining 50% with proportionate interest is ordered to be released to the petitioner.
The claim petition filed by the petitioner is dismissed against respondent No.1.
Advocate's fee is fixed at Rs.1,000/- . Draw an Award accordingly.
(Dictated to the Stenographer Gr.I, transcribed by her, corrected, signed and then pronounced by me in the Open Court on this the 15th day of April, 2024.) (B.V.RENUKA) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore.SCCH-1 33 MVC No.1254/2020
ANNEXURES Witnesses examined on behalf of the petitioners:
P.W.1 : Hussen Sab P.W.2 : Dr. Prakashappa T.H.
Documents marked on behalf of the petitioners:
Ex.P-1 : Certified Copy of FIR Ex.P-2 : Certified Copy of Complaint Ex.P.3 : Certified Copy of Spot Panchama Ex.P-4 : Certified Copy of spot sketch Ex.P-5 Certified copy of IMV Report Ex.P-6 : Certified copy of Wound Certificate Ex.P-7 : Certified Copy of Chargesheet Ex.P-8 : Discharge Summary Ex.P-9 : Medical Bills (16) Ex.P-10: Outpatient record Ex.P-11: Photos with negatives(2) Ex.P-12: Cash bill Ex.P-13: Notarized copy of Aadhaar Card Ex.P-14: Case sheet Ex.P-15: X-ray
Witnesses examined on behalf of the respondents :
RW-1 Sathya D Documents marked on behalf of the respondents:
Ex.R.1 Copy of policy
(B.V.RENUKA)
Chief Judge,
Court of Small Causes &
Member, Prl. M.A.C.T.
Bangalore.