Bangalore District Court
Sri Raja vs Mr.Narayanaswamy on 15 February, 2016
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS TRIBUNAL,
BANGALORE CITY.
SCCH-14
PRESENT: Basavaraj Chengti., B.Com.,LL.B.,(spl)
Member, MACT,
XVI ADDL. JUDGE,
Court of Small Causes,
BANGALORE.
MVC No.4908/2014
Dated this the 15th day of February 2016
Petitioner/s : 1. Sri Raja
S/o late David,
Aged about 42 years,
2. Mrs. Vasantha
W/o Raja
Aged about 32 years,
3. Mr.Praveen
S/o Raja
Aged about 16 years,
(Since the petitioner no.3 is minor he
is duly represented by his father i.e.,
petitioner no.1)
All are R/at No.68,
Opp: NES Office,
LBS Nagar,
Yelahanka,
Bangalore-560 064.
V/s (By pleader Sri KNH)
Respondent/s 1. Mr.Narayanaswamy
S/o Ramaiah,
No.102, Chikka Bommasandra,
GKVK post, Yelahanaka,
Bangalore-65.
(RC owner of the Scooter)
(By pleader Sri ADP)
SCCH-14 2 MVC No.4908/2014
2. The Regional Manager,
The Oriental Ins.,Co.Ltd.,
Regional Office, No.44/46,
Leo Shopping Complex,
Residency road, '
Bangalore-560 025.
(Insurer of the Scooter)
(By pleader Sri SM)
3. Mr. Ramakrishnan,
Old No.7, New No.23,
Periyaswamy street,
Krishnagiri, Tamil Nadu,
(RC owner of the lorry)
(Exparte)
4. The Branch Manager,
Shriram General Ins.,Co.Ltd.,
S-5, 2nd floor,
Monarach Chanmers,
Infantry road,
Bangalroe-560 001.
M.G.Road,
Bangalore-560001.
(Insurer of the lorry)
(By pleader Sri KP)
XVI ADDL.JUDGE,
Court of Small Causes & MACT,
Bangalore.
SCCH-14 3 MVC No.4908/2014
JUDGMENT
This claim petition is filed by the petitioner U/Sec.166 of Motor Vehicles Act for grant of compensation for the death of Prasanth.R S/o Raja in a road traffic accident.
2. Brief averments of the petition are as under:
The petitioner no.1 and 2 are the parents and the petitioner no.3 is the brother of the deceased Prasanth who was aged 19 years, was working at Varsha Manpower Out sourcer, Bangalore and drawing a salary of Rs.10,000/- p.m., On 05.08.2014 at about 06.15 A.M., the deceased Prasanth was traveling on Scooter bearing No.KA-02-Q-7764 as pillion rider on Doddaballapura main road from Doddaballapura to Yelahanka.
When they reached near East Guard Room, rail wheel extension, Yelahanka, Bangalore, the rider was riding the said scooter with high speed, reckless, rash and negligent manner, endangering human life, without observing traffic rules went and dashed against the Lorry bearing No.TN-70-E-2428 which was parked on the left side of the road. Due to impact, both the inmates fell down and sustained grievous injuries. Immediately, Prasanth was taken to Medstar Hospital, Bangalore wherein first aid treatment was given and then, he was taken to NIMHANS Hospital, Bangalore. Thereafter, he was shifted to Spathagiri Institute of Medical Sciences, Research centre, Bangalore wherein he was admitted as an inpatient, but he died on 08.08.2014 at 11.45 P.M., while he was under treatment. After postmortem, the dead body was handed over to the petitioners. Due to untimely death of Prasanth, the petitioners are put to great financial loss, mental agony and SCCH-14 4 MVC No.4908/2014 loss of love and affection. They have lost their dependency and estate. Yelahanka Traffic police have registered Cr.No.130/2014 against the rider of the Scooter bearing No.KA-02-Q-7764 and the driver of the lorry bearing No.TN-70-E-2428 for the offences punishable U/Sec.279, 337 of IPC. The respondent no.1 and 2 are the RC owner and insurer of said Scooter and the respondent no.3 and 4 are the RC owner and insurer of the said lorry and are liable to pay compensation. Hence, the petitioners have sought for awarding compensation of Rs.20,00,000/- with cost and interest.
3. In pursuance of the notices, the respondent no.1, 2 and 4 have appeared before the Court through their respective counsel and filed objections statement separately. The respondent no.3 remained absent inspite of service of notice and hence, he is placed exparte. The respondent no.1 is the owner of Scooter bearing No.KA-02-Q-7764 and he has denied the case of the petitioners as false and contended that the petition is bad for mis joinder and non joinder of parties, that he has sold his vehicle to one Sri Noushad S/o Ismail, residing at Yelahanka, Bangalore on 12.11.2013 and hence, he is not liable to pay compensation, that the accident has occurred due to carelessness and negligent act of the driver of the lorry bearing No.TN-70-E-2428, who parked his vehicle in the middle of the road, without leaving enough space for users of the road, without putting any caution/indication/parking lights or any other signs which were visible for the users of the road, that the accident has occurred at about 6.15 A.M., when there was not enough light as it was rainy season and cloudy weather, that the rider of the scooter was not able to see the lorry SCCH-14 5 MVC No.4908/2014 from distance, that if the driver of the lorry had taken little care and followed the traffic rules, the accident has would not have occurred, that the rider and pillion rider of Scooter have sustained severe/fatal injuries and the driver of lorry has took advantage of the situation and lodged complaint before the jurisdictional police and managed to get a false case registered against the rider of Scooter, that the rider of the scooter is also necessary and proper party for adjudication of the matter, that the scooter was insured with the respondent no.2 and the policy was in force as on the date of accident, that the rider of the scooter was holding a valid and effective driving licence to ride the scooter. He has denied the age, occupation and income of the deceased and contended that the present owner of the scooter and respondent no.2 to 4 are liable to answer the claim petition. Hence, he has sought for dismissal of the petition with cost.
The respondent no.2 has admitted the issuance of the policy in favour of the respondent no.1 in respect of Scooter bearing No.KA-02-Q-7764, but he has denied the other averments of the petition as false. He has contended that the insured and concerned police have not complied with their mandatory duties, that the accident has occurred due to sole negligence of the driver of the lorry bearing No.TN-70-E-2428, that the risk of the pillion rider is not covered under the liability only policy issued to scooter, that no additional premium has been collected to cover the risk of pillion rider, as such he is not liable to pay compensation to the petitioners, that the deceased was the pillion rider on scooter as such his risk was not covered under the policy, that the rider of SCCH-14 6 MVC No.4908/2014 the insured vehicle was not holding valid and effective driving licence on the date of accident, that insured has committed breach of terms and conditions of the policy, that the jurisdictional police after investigation have filed chargesheet against the rider U/Sec.130(3) r/w Sec. 177 of MV Act stating that the rider did not produce his DL, that he is not liable to pay any compensation to the petitioners. He has denied the relationship between the petitioners and deceased. Hence, he has sought for dismissal of the petition with costs as against him.
The respondent no.4 has admitted the issuance of policy in favour of the respondent no.3 in respect of lorry bearing No.TN-70- E-2428, but he has denied the other averments of the petition as false. He has contended that the complaint was lodged against the rider of scooter bearing No.KA-02-Q-7764 and after investigation, the police have filed the chargesheet against the rider of said scooter U/Sec.279, 338 and 304-A of IPC and Sec.130(3) r/w 177 of MV Act, that the accident has occurred due to sole negligence of the rider of said scooter, that the rider of the scooter was riding it with high speed, in a rash and negligent manner, and without possessing valid driving licence and dashed to the back side of the lorry, which was parked on the extreme left side of the road by putting indicator and taking all precautions, that there was no negligence on the part of the driver of the insured lorry, that the petition is bad for mis-joinder of necessary parties, that the insured and concerned police have not complied with their mandatory duties, that the driver of the insured vehicle was not holding a valid and effective driving licence on the date of accident, SCCH-14 7 MVC No.4908/2014 that there is no obligation on his part and he is not liable to indemnify the insured, that the insured vehicle was plying without valid permit and FC on the date of accident, that the compensation claimed by the petitioners is highly exaggerated and baseless. He has denied the relationship between the petitioners and deceased. Hence, he has sought for dismissal of the petition as against him.
4. On the basis of above pleadings, the following issues were framed. On later date, issue no.1 was recast. The said issues and recast issue no.1 are as under:
ISSUES
1. Whether the petitioners prove that Prashanth s/o Raja died due to the injuries sustained by him in the accident occurred on 05.08.2014 at about 06.15 a.m. On Doddaballapura Main Road, Near East guard room, Rail Wheel Extension, Yelahanka, Bangalore, arising due to rash and negligent driving of driver of Lorry bearing No.TN-
70-E-2428?
2. Whether the petitioners are entitled for compensation? If so, how much and from whom?
3. What Order or Award?
RECAST ISSUE DATED: 17.08.2015 Whether the petitioners prove that Prashanth s/o Raja died due to the injuries sustained by him in the accident occurred on 05.08.2014 at about 06.15 a.m. on Doddaballapura Main Road, Near East guard room, Rail Wheel Extension, Yelahanka, Bangalore, arising due to rash SCCH-14 8 MVC No.4908/2014 and negligent driving of driver of Lorry bearing No.TN-70-E-2428 and rider of Scooter bearing no. KA-02-Q-7764?
5. During the evidence, the petitioners have examined the petitioner no.2 as PW.1 and got marked documents as Ex.P1 to 17. The respondent no.2 has examined his officer as RW.1 and got marked documents as Ex.R1 and 2. The respondent no.4 has examined his officer as RW.2 and got marked documents as Ex.R3 and 4. The respondent no.1 has not adduced any evidence on his behalf.
6. Heard the arguments. The counsel for the petitioners has relied upon following rulings:
1. 2011 ACJ 1129: New India Assurance Co.Ltd., Vs., G.Nagaraju & Ors.,
2. 2004 ACJ 2094: National Ins.,Co.Ltd., Vs., Challa Bharathamma & Ors.,
3. MFA 9308/2011: United India Ins., Co.Ltd., Vs. Smt.Rathna & Anr.,
4. MFA 2097/2011,2096/11, 2097/11 & 1904/11:Mooganna & Ors., Vs., IFFCO Tokio General Ins.,Co.Ltd., & Anr., The counsel for the respondent no.2 has relied upon following rulings:
1. AIR 2006 SC 1576: United India Ins.,Co.Ltd., Shimia Vs., Tilak Singh & Ors.,
2. ILR 2011 KAR 850: The Branch Manager, The New India Assurance Co.Ltd., Vs., Mahadev Pandurang Patil & Anr.,
3. 2008 ACJ 2045 SC: Oriental Ins., Co.Ltd., Vs., Sudhakaran K.V & Ors., SCCH-14 9 MVC No.4908/2014
4. 2009 ACJ 1419 KAR: United India Insurance Co.Ltd., Vs., C.S.Anilkumar & Ors., The counsel for the respondent no.4 has filed written argument and relied upon ruling reported in 2007 ACJ 1928:
Oriental Ins., Co.Ltd., Vs., Premlata Shukla & Ors., I have gone through written arguments and rulings and perused the records.
7. My findings on the above issues are as under:-
ISSUE No.1 : In affirmative.
ISSUE No.2 : In affirmative,
for Rs.12,54,000/-
from the respondent No.1.
ISSUE No.3 : As per final order :
for the following:
REASONS
8. ISSUE NO.1: It is the case of the petitioners that Prasanth S/o Raja died due to injuries sustained by him in the accident occurred on 05.08.2014 at about 06.15 A.M., on Doddaballapura main road, near Rail Wheel Extension, Yelahanka, Bangalore arising due to rash and negligent riding of the rider of Scooter bearing No.KA-02-Q-7764 and rash and negligent act of the driver of lorry bearing No.TN-70-E-2428. The respondent no.1 and 2 are the RC owner and insurer of Scooter bearing No.KA-02- Q-7764, whereas the respondent no.3 and 4 are the RC owner and insurer of lorry bearing No.TN-70-E-2428. The respondent no.3 remained exparte. The respondent no.1, 2 and 4 have impliedly admitted the occurrence of accident, death of Prasanth S/o Raja due to injuries sustained by him in the accident, but the SCCH-14 10 MVC No.4908/2014 respondent no.1 and 2 have contended that the accident has occurred due to negligent act of the driver of lorry bearing No.TN- 70-E-2428 who has parked his lorry in the middle of the road without indication or signal and without taking precautions. The respondent no.4 has contended that the accident has occurred due to sole negligence of the rider of motorcycle and there was no negligence on the part of the driver of the lorry as it was parked by the side of the road with indicator.
9. The petitioners have examined the petitioner no.2 as PW.1 and got marked copies of police records as Ex.P1 to 6 and 14, death certificate, Identity card of dead body, medical certificate and referral letter as Ex.P7, 13, 15 and 16 to prove this issue. The respondent no.2 has examined his Deputy Manager as RW.1 to prove the averments of his written statement and the respondent no.4 has examined his legal officer as RW.2 to prove his defence. The respondent no.1 has got marked authorisation letter and copy of policy of Scooter as Ex.R1 and 2, whereas the respondent no.4 has got marked Authorisation letter and copy of policy of lorry as Ex.R3 and 4. The documentary evidence produced by the respondents indicates that the respondent no.1 is the RC owner of Scooter bearing No.KA-02-Q-7764 which was duly insured with the respondent no.2 and policy was in force on the date of accident, that the respondent no.3 is the RC owner of lorry bearing No.TN-70-E-2428 which was duly insured with the respondent no.4 and the policy was in force on the date of accident. He has not adduced any evidence on his behalf. Thus, the respondent no.1 has failed to prove that he has sold his SCCH-14 11 MVC No.4908/2014 Scooter to one Noushad S/o Ismail, Yelahanka, Bangalore on 12.11.2013 i.e., prior to the date of accident.
10. PW.1 Vasantha W/o Raja is the mother of the deceased and she has reiterated the averments of the petition and stated that Prasanth was the pillion rider of Scooter bearing No.KA-02-Q-7764, that the accident has occurred on 05.08.2014 at 06.15 A.M., near rail wheel factory on Doddaballapura road due to rash and negligent act of the driver of lorry bearing No.TN-70-E- 2428 which was parked on the road without indicator, that her son died on 08.08.2014 at 11.45 P.M., at Sapthagiri Hospital, Bangalore due to injuries sustained by him in the accident. She has admitted in the cross-examination, that she has not personally seen the accident. Hence, her evidence regarding manner of accident and negligence of the driver of lorry is inadmissible and unbelievable. However, her evidence regarding causing of fatal injuries to the deceased in the accident and his death due to accidental injuries is admissible and believable.
11. PW.1 Vasantha has stated in cross-examination that Scooter bearing No.KA-02-Q-7764 belongs to one Shekar, that she has not challenged FIR and chargesheet filed by the police, that copies of police records produced by them contain true facts, that she has given instruction to the counsel for filing petition. She has denied the suggestions that the police have registered case against the rider of scooter, that since risk of pillion rider was not covered in the policy of scooter, she has changed version and stated that the accident has occurred due to negligence of the driver of the lorry. She has denied that the lorry was parked on extreme left side SCCH-14 12 MVC No.4908/2014 of the road with parking lights on and by leaving sufficient space for the other road users. Evidence of PW.1 regarding negligence of the driver of lorry is contradictory to the averments of the petition. The petitioners have asserted in their petition that the accident has occurred due to rash and negligent riding of the rider of Scooter bearing No.KA-02-Q-7764. PW.1 has stated that the accident has occurred due to negligence of the driver of lorry bearing No.TN-70- E-2428. In cross-examination, she has come up with a contention that there was no negligence on the part of the rider of scooter. Evidence of PW.1 and the pleading of the petitioners are at variance. However, PW.1 is not an eye witness to the accident. Hence, her evidence regarding negligence aspect is inadmissible. The petitioners have not adduced any direct evidence regarding negligence either rider of scooter or of the driver of lorry.
12. Copies of police records at Ex.P1 to 6 and 14 disclose that Yelahanka Traffic police have registered Cr.No.130/2014 against the rider of Scooter bearing No.KA-02-Q-7764 on the basis of information given by the driver of lorry bearing No.TN-70-E-2428 by name N.Jayaram, investigated the matter and filed chargesheet against the rider of Scooter bearing No.KA-02-Q-7764 for the offences punishable U/Sec.279, 338, 304-A of IPC and Sec.177 of MV Act. There was no delay in lodging complaint. Sketch at Ex.P2 and panchanama at Ex.P3 reveal that the lorry was parked on the extreme left side of the road and there was sufficient space for the scooter to move ahead. IMV report at Ex.P4 discloses that both vehicles were damaged in the accident, that brake system of both vehicles was in order. It is opined that the accident has not SCCH-14 13 MVC No.4908/2014 occurred due to mechanical defects of the vehicles. Looking to the damages caused to the vehicles, it can be said that the scooter went and dashed against right rear portion of the lorry.
13. Copy of inquest report and PM report at Ex.P5 and 6 support the version of PW.1 regarding death of deceased. It is opined that the said Prasanth died due to head injuries sustained by him in road traffic accident. Injuries mentioned in Inquest report and the one mentioned in PM report tally with each other and disclose that the said Prasanth died due to injuries sustained by him in the road traffic accident. Ex.P7 is death certificate and it confirms that the said Prasanth died on 08.08.2014. Ex.P15 and 16 go to show that the petitioner was treated at Medstar Specialty Hospital, ESI Hospital, NIMHANS Hospital and Sapthagiri Hospital before died on 08.08.2014. Thus, medical records and oral evidence of PW.1 clearly go to show that the deceased Prasanth sustained fatal injuries in the accident and he died on 08.08.2014 due to such accidental injuries.
14. The police investigation has resulted in filing of charge sheet against the rider of scooter bearing no.KA-02-Q-7764. Evidence of RW-1 and 2 is also hearsay, but copy of charge sheet filed by the petitioners go against the evidence of PW-1 as to negligence of the driver of lorry. The said charge sheet substantiates the defence of the respondent no.4. RW-2 was suggested about the negligence of the driver of lorry, but he has pointed out the contents of charge sheet in that regard. It is mentioned in the charge sheet that the lorry was parked on the extreme left side of the road with parking lights on. The sketch and SCCH-14 14 MVC No.4908/2014 panchanama at Ex.P-2 and 3 corroborate the contents of charge sheet. There is nothing on record to disbelieve the contents of police records at Ex.P-1 to 4 and 14. There was no delay in lodging complaint. There is no evidence to believe that the investigation done by the police is defective or collusive. The petitioners have not examined the rider of scooter or any other eye witness named in the charge sheet to prove the negligence of the driver of the lorry. The evidence of PW-1 is contradictory to the averments of the petition regarding negligence of the lorry driver. I am of the opinion that the accident has occurred due to sole negligence of the rider of the scooter bearing no. KA-02-Q-7764 and there was no negligence on the part of the driver of lorry bearing no.TN-70-E-2428. Hence, I answer the issue in affirmative in respect of negligence of the rider of scooter and in negative in respect of negligence of the driver of lorry.
15. ISSUE NO.2: The petitioners are claiming compensation for the death of deceased stating that they are the parents and brother of the deceased. PW-1:Smt.Vasantha has deposed about their status in respect of the deceased. Copy of Ration card, of Adhaar cards are at Ex.P-8 to 11 which corroborate the evidence of PW-1. Copy of Inquest report at Ex.P-5 also support the version of PW-1 as to relationship between the petitioners and the deceased. Nothing is elicited from PW-1 to disbelieve her evidence in that regard. Hence, I hold that the petitioners are the parents and brother of the deceased. The petitioner no.3 is minor. Hence, I hold that the petitioners are the SCCH-14 15 MVC No.4908/2014 LRs and dependents of the deceased and are entitled for compensation.
16. PW-1 has deposed that the deceased was aged 19 years, was working in Varsha Manpower and was drawing a salary of Rs.10,000/-p.m., Age of the deceased is mentioned as 19 years in inquest panchanama and PM report. His date of birth is shown as 31-3-1995 in college ID at Ex.P-12. There is no other evidence on record to disbelieve the age/ date of birth mentioned in the above said documents. Hence, I hold that the deceased was aged 19 years on the date of accident.
17. The petitioners have not produced any oral and documentary evidence to corroborate the evidence of PW-1 regarding occupation and income of the deceased. Ex.P-16 are the OPD records and referral letter of ESI hospital. Treatment of the deceased in ESI hospital indicates that either the deceased or his family member was registered under ESI Act. PW-1 has not stated that she or the petitioner no.1 is not registered under ESI Act. There is no document regarding employment of the deceased. The petitioners have not produced appointment letter, pay slip, bank statement, etc., to prove the occupation and income of the deceased. Evidence of PW-1 in that regard is uncorroborated and hence, it is not acceptable. Occupation of the deceased is not shown in inquest panchanama. Therefore, I hold that the petitioners have failed to prove that the deceased was working in Varsha Manpower and was drawing Rs.10,000/- p.m., However, looking to the age of the deceased and his education as can be seen from Ex.P-12, it can be said that the deceased was capable of SCCH-14 16 MVC No.4908/2014 earning his livelihood. In the absence of positive evidence, I am of the opinion that if Rs.7,000/- p.m., is considered as income of the deceased, it would meet the ends of justice. His annual income comes to Rs.84,000/-. He was aged 19 years. Hence, 50% amount shall be added towards future prospects as per the principle laid down in Munnalal Jain case. After such addition, the income of the deceased comes to Rs.1,26,000/- p.a., The deceased was a bachelor. Hence, 50% amount shall be deducted towards personal expenses of the deceased. After such deduction, net income of the deceased would be Rs.63,000/-. Appropriate multiplier as per Munnalal Jain case for the age of the deceased is 18. Then, loss of dependency of the petitioners is Rs.63,000X18= Rs.11,34,000/-.
18. The petitioners have lost love and affection and estate of the deceased. They have spent amount for transportation of dead body and funeral expenses. Therefore, the petitioners are entitled for a compensation of Rs.45,000/- towards loss of love and affection, Rs.45,000/- towards loss of estate and Rs.30,000/- towards transportation of dead body and funeral expenses. Thus, the petitioners are entitled for just and reasonable compensation as under:
1. Loss of dependency Rs.11,34,000/- 2 Loss of love and affection Rs. 45,000/- 3 Loss of estate Rs. 45,000/-
4 Transportation of dead body Rs. 30,000/-
and funeral expenses Total Rs.12,54,000/-
The petitioners are further entitled for interest @9% p.a., from the date of petition till the date of payment.
SCCH-14 17 MVC No.4908/2014LIABILITY
19. The respondent no.1 and 2 are the owner and insurer of scooter bearing no.KA-02-Q-7764, whereas the respondent no.3 and 4 are the owner and insurer of lorry bearing no.TN-70-E-2428. It is held above that the accident has occurred due to sole negligence of the rider of scooter and there was no negligence on the part of the driver of lorry. Hence, the respondent no.3 and 4 are not liable to compensate the petitioners. The respondent no.1 and 2 being the owner and insurer, are jointly and severally liable to pay compensation to the petitioners. But, the respondent no.2 has denied his liability on the ground that the rider of scooter was not holding a valid and effective driving licence on the date of accident, that risk of pillion rider was not covered under the policy as extra premium was not paid by the insured.
20. The respondent no.1 has though filed his written statement, he has not adduced any evidence to prove his defence. He has asserted that the vehicle was sold to one Noushad of Yelahanka much prior to the accident. There is no evidence to believe the same. Copy of policy of scooter is at Ex.R-2 in which the name of the respondent no.1 is shown as insured. His name is mentioned as owner of scooter in the charge sheet. Hence, I hold that the respondent no.1 was the RC owner of scooter bearing no. KA-02-Q-7764. The respondent no.2 has admitted the issuance of policy in favour of the respondent no.1 in respect of said scooter. The copy of policy as Ex.R-2 reveals that the policy was in force on the date of accident. But, the respondent no.2 SCCH-14 18 MVC No.4908/2014 seeks exoneration on two grounds. Firstly, the charge sheeted rider was not holding a valid and effective driving licence on the date of accident and secondly, the risk of pillion rider was not covered under the policy.
21. To prove his defence, the respondent no.2 has relied upon oral evidence of RW-1:Lynette Suares and documentary evidence at Ex.R-1 and 2. Evidence of RW-2 and documents at Ex.R-3 and 4 are helpful to decide the issue as to liability. The petitioners have not adduced any evidence to prove that the rider of scooter was having a valid and effective driving licence and the risk of pillion rider was covered under the policy, but they have placed reliance on the cross examination of RW-1 and 2 to rebut the defence of the respondent no.2.
22. RW-1: Lynette Suares has deposed as per the defence of the respondent no.2 and stated that the rider of the scooter was not holding a valid and effective driving licence, that the policy issued to the said scooter was a liability only policy and risk of the pillion rider was not covered under the said policy, that the respondent no.2 has not collected the additional premium to cover the risk of pillion rider. She was cross examined at length taking up a contention that the policy was covering the risk of pillion rider and in order to escape from liability she is deposing falsely. The counsel for the petitioners has drawn my attention to contents of Ex.R-2 wherein seating capacity of the vehicle is shown as 1+1 and P.A. cover to registered owner is Rs.1,00,000/-. He has argued that the owner and insurer are the parties to the policy and all other persons are third parties, that there is no provision in MV Act SCCH-14 19 MVC No.4908/2014 barring the coverage of risk of pillion rider in the policy and said fact is not mentioned in Ex.R-2 as such risk of pillion rider was covered and the respondent no.2 is liable to indemnify the respondent no.1 and to compensate the petitioners. He has relied upon rulings wherein it is held as under:
1. 2011 ACJ 1129:
Motor Vehicle Act, 1988, Sec.147(1)-Motor Insurance-Third party risk- Pillion rider- Liability of insurance company-Death of pillion rider when the motorcycle met with accident- Tribunal fastened liability on the insurance company-Insurance company disputed its liability on the ground that pillion rider was the wife of the owner-insured and she was not a third party-Insurance company adduced no evidence to show that policy did not cover the risk of pillion rider or its liability is limited- deceased was neither the owner of the vehicle nor was riding the motorcycle and she was only a pillion rider-Whether insurance company is liable for the death of pillion rider- Held: yes: though deceased was wife of the owner-insured but she cannot be treated as the insured or his representative and hence she would become a third party".
2. 2004 ACJ 2094:
"Motor Vehicles Act,1988, sections 149(2)(a)(i) and 149 (4) read with section 66-
Motor insurance-Permit-Defences available to insurance company-Autorickshaw met with accident resulting in death of two persons and third sustained injuries-Insured had not obtained permit to ply the vehicle-Whether insurance company is liable-Held: not:
however, insurance company directed to deposit the amount and recover the same from the insured by initiating proceedings before the executing court, it need not file a separate suit".SCCH-14 20 MVC No.4908/2014
3. MFA 9308/2011 "8. To hold that the driver of the insured vehicle had no driving licence as on the date of accident, there must be clear evidence on the record of the case to the effect. Police chargesheet is no evidence to hold that the driver of the insured vehicle has no driving licence as on the date of accident".
4. MFA 2097/11,2096/11, 2097/11 & 1904/11:
"6. As could be seen from the photocopy of the insurance policy marked in evidence as Ex.R2, no condition as stated in Section 149(2)(a)(i)(c) of the Act is specified therein. In the absence of a condition in the insurance policy in terms of Section 149(2)(a)(i)(c) of the act, an insure cannot be absolved of the liability relating to the risk covered under the policy on the ground that the vehicle was used for a purpose not allowed by the permit".
The rulings at Sl.No.2 and 4 are pertaining to violation of permit conditions and that is not the situation in this case. Hence, said rulings can not be applied to this case.
23. It is an admitted fact that the deceased was the pillion rider of scooter bearing no.KA-02-Q-7764 and he died due to injuries sustained by him in the accident arising due to rash and negligent riding of the rider of the scooter. Evidence of RW-1 and contents of Ex.R-2 reveal that the said scooter was insured with the respondent no.2 and the policy was in force on the date of accident. The policy issued by the respondent no.2 was a liability only policy. It is an Act policy covering the risk of third parties only. It is not a comprehensive policy and it does not cover the risk of vehicle and owner. The petitioners have put forward a SCCH-14 21 MVC No.4908/2014 contention that the deceased was third party and his risk was covered under the policy. In the ruling at Sl.No.1 stated above, the policy was comprehensive policy and the insurer therein was not contesting the matter that pillion rider was not covered under the policy, but he was contesting the matter on the ground that the pillion rider was the wife of the owner. In the said case, Hon'ble Court has held that the wife of the owner is a third party. That is not the situation in this case. The policy issued to the respondent no.1 is liability only policy. Hence, said ruling is not applicable to this case.
24. There is no evidence on behalf of the respondent no.2 regarding driving licence of the rider of the scooter. The said rider is charge sheeted for the offence punishable U/s 177 of MV Act alleging that the rider has not produced his licence. He is not charge sheeted for the offence punishable U/s 181 of MV Act. The respondent no.2 has not examined IO to prove the contents of charge sheet. Evidence of RW-1 is not sufficient to hold that the rider of scooter was not holding a licence to ride the same. Hence, ruling at Sl.No.3 is aptly applicable to this case. I am of the opinion that the respondent no.2 has failed to prove that the rider of scooter was not holding a valid and effective driving licence on the date of accident.
25. In rulings relied upon by the respondent no.2, it is held as under:
1. AIR 2006 SC 1576:
"(c) Motor Vehicles Act (59 of 1988).
S.147-Liability of Insurer-Act only policy-
SCCH-14 22 MVC No.4908/2014Risk of gratuitous passenger carried in private vehicle is not covered".
2. ILR 2011 KAR 850:
"MOTOR VEHICLES ACT, 1988-ACEIDENT CLAIM-Award of compensation-Tribunal fastening the liability on the Insurance Company in respect of the death of the occupation of a private car-Appealed against- Whether the occupants/passengers-inmates of private vehicle do fall within the definition of the word 'Third party'-HELD, The statutory insurance is confined to the death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place.- Therefore, the passenger of a vehicle which is not meant for public service is no covered under section 147. The said passenger in the case of a two wheeler is the pillion rider and in the case of three wheeler and four wheeler the occupants of such vehicle who are not carried in the said vehicle for hire or reward. Therefore, the insurance policy taken in respect of a vehicle, in which they are traveling as such passengers are not treated as third parties and such an insurance do not cover the risk of such persons. The reason is Section 147 does not require a policy to cover the risk to passengers who are not carried for hire or reward. The statutory insurance does not cover injuries suffered by occupants of the vehicle who are not carried for hire or reward and the insurer cannot be held liable under the Act. The occupants/passengers/inmates of a private vehicle do not fall within the definition of the word third party. Therefore, the legal obligation arising under section 147 of the Act cannot be extended to an injury or death of the owner of the vehicles, passengers in such private vehicle or a pillion rider in the case of a two wheeler. Gratuitous passengers who are not carried for hire or reward in a vehicle other than a public service vehicle, cannot be SCCH-14 23 MVC No.4908/2014 construed as third parties.- FURTHER HELD, if the risk of an occupant of a be covered, additional premium has to be paid. If no statutory liability under section 146 and 147 of the Act has to be read with the terms of the insurance policy issued under Section 146 of the Act. -ON FACTS, HELD, Therefore, in the facts of this case, the Court is satisfied, as the insured has not paid additional premium and the insurance company has not collected any additional premium, the risk of the occupants of a private car was not covered. Therefore, liability foisted on the insurance company cannot be sustained.- MOTOR VHEICLE ACT,1988".
3. 2008 ACJ 2045 SC:
"Motor Vehicles Act, 1988, section 147(1)- Motor Insurance- Pillion rider- Act policy- Liability of insurance company-No extra premium was paid covering risk of pillion rider-Death of pillion rider when she fell down due to rash and negligent driving of scooter- Whether insurance company is liable-Held: no:
pillion rider on a two-wheeler scooter cannot be treated as a third party: legal obligation under section 147 cannot be extended to injury or death of pillion rider".
4. 2009 ACJ 1419 KAR:
"Motor Vehicles Act, 1988, section 149 (1)- Motor insurance-Private vehicle-Act policy-
Passenger risk-Liability of insurance company Vehicle covered by a liability only policy which is a standard form contract and forms part of India Motor Traffic-Whether insurance company is liable for injuries sustained by a passenger in private car-Held: no".
The above rulings make it clear that in case of liability only policy, the inmates or occupants of the vehicle are not covered, that extra premium is required to be paid to cover the risk of such inmates or occupants. In this case, the copy of policy reveals that SCCH-14 24 MVC No.4908/2014 the respondent no.1 has paid Rs.530/- as premium. Extra premium for covering the risk of owner driver is paid and that is why PA cover to registered owner cum driver is shown as Rs.1,00,000/-. No extra premium is paid to cover the risk of pillion rider. If the policy was a comprehensive policy, then the matter would be different. Since, the policy is a liability only policy, extra premium is required to be paid to cover the risk of the pillion rider. The admission of RW-2 in that regard does not come to the rescue of the petitioners. His admission can not override the contents of Ex.R-2 which clearly reveal that no extra premium is paid and the policy is a liability only policy. Hence, I am of the opinion that the respondent no.2 has succeeded to prove his defence that the policy issued in favour of the respondent no.1 in respect of scooter bearing no. KA-02-Q-7764 was not covering the risk of pillion rider. The contention of the petitioners and argument of their counsel hold no water. The rulings relied upon by the respondent no.2 are aptly applicable to this case. Hence, I hold that the respondent no.2 is not liable to indemnify the respondent no.1 and to compensate the petitioners. The respondent no.1 being the RC owner of the scooter bearing no. KA-02-Q-7764, is alone liable to pay compensation and interest to the petitioners as stated above. The petition as against the respondent no.2 to 4 is liable to be dismissed.
The petitioners are entitled to share the compensation amount as under:
The petitioner no.1 : Rs.7,54,000/-
The petitioner no.2 : Rs.4,00,000/-.
The petitioner no.3 : Rs.1,00,000/- .
Hence, I answer the issue as above.
SCCH-14 25 MVC No.4908/2014
26. ISSUE NO.3: In view of above discussion and
findings, I proceed to pass the following:
ORDER The petition filed by the petitioners U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioners are entitled for a compensation of Rs.12,54,000/- with interest @ 9% per annum from the date of petition till the date of payment.
The respondent no.1 is liable to pay to the above said petitioners a compensation of Rs.12,54,000/- with interest. He is directed to deposit the amount before court within one month from the date of order.
The petitioners are entitled to share of compensation amount as under:
The petitioner no.1 : Rs.7,54,000/-
The petitioner no.2 : Rs.4,00,000/-.
The petitioner no.3 : Rs.1,00,000/- .
After deposit, Rs.3,00,000/- out of the share of the petitioner no.1 and Rs.2,00,000/- out of the share of the petitioner no.2 and entire share of the petitioner no.3 shall be deposited in their respective names in any nationalized, scheduled, co-operative bank for a period of 3 years. Remaining amount and interest of the petitioner no.1 and 2 shall be released in their favour through account payee cheque with proper identification.SCCH-14 26 MVC No.4908/2014
The claim petition as against the respondent no.2 to 4 is dismissed without cost.
Advocate's fee is fixed at Rs.5,000/-. Draw award accordingly.
(Dictated to the Stenographer, transcribed by him and then corrected by me and pronounced in the open court, on this the 15th day of February 2016.) (Basavaraj Chengti) XVI ADDL.JUDGE Court of Small Causes & MACT., Bangalore.SCCH-14 27 MVC No.4908/2014
ANNEXURE WITNESSES EXAMINED AND DOCUMENTS MARKED FOR PETITIONERS AND RESPONDENTS:
PW.1 Vasantha
Respondent' s
RW.1 Lynette Suares
RW.2 Yallappa.B.P
Ex.P1 - Copy of FIR with complaint
E.xP2 - Copy of Sketch
Ex.P3 - Copy of Panchanama
Ex.P4 - Copy of IMV report
Ex.P5 - Copy of Inquest report
Ex.P6 - Copy of PM Report
Ex.P7 - Death Certificate
Ex.P8 - Copy of Ration Card
Ex.P9 - Copy of Adhaar Card of petitioner no.1
Ex.P10 - Copy of Adhaar Card of petitioner no.2
Ex.P11 - Copy of Adhaar Card of petitioner no.3
Ex.P12 - Copy of ID card of deceased
Ex.P13 - Card issued by Sapthagiri hospital
Ex.P14 - Copy of Charge Sheet
Ex.P15 - Discharge Letter
Ex.P16 - OPD slip (3 in nos)
Ex.P17 - Medical bills (7 in nos amounting to Rs.19,451/-)
Respondent's
Ex.R1 - Authorisation Letter
Ex.R2 - Copy of Policy
Ex.R3 - Authorization letter
Ex.R4 -Copy of policy
XVI ADDL.JUDGE,
Court of Small Causes & MACT,
Bangalore.
SCCH-14 28 MVC No.4908/2014
Dt.15.02.2016
P-KNH
R1-ADP
R2-SM
R3-Exparte
R4-KP
For Judgment
Order pronounced in open court
vide separate judgment.
ORDER
The petition filed by the petitioners U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.SCCH-14 29 MVC No.4908/2014
The petitioners are entitled for a compensation of Rs.12,54,000/- with interest @ 9% per annum from the date of petition till the date of payment.
The respondent no.1 is liable to pay to the above said petitioners a compensation of Rs.12,54,000/- with interest. He is directed to deposit the amount before court within one month from the date of order.
The petitioners are entitled to share of compensation amount as under:
The petitioner no.1 : Rs.7,54,000/-
The petitioner no.2 : Rs.4,00,000/-.
The petitioner no.3 : Rs.1,00,000/- .
After deposit, Rs.3,00,000/- out of the share of the petitioner no.1 and Rs.2,00,000/- out of the share of the petitioner no.2 and entire share of the petitioner no.3 shall be deposited in their respective names in any nationalized, scheduled, co-operative bank for a period of 3 years. Remaining amount and interest of the petitioner no.1 and 2 shall be released in their favour through account payee cheque with proper identification.
The claim petition as against the respondent no.2 to 4 is dismissed without cost.
Advocate's fee is fixed at Rs.5,000/-. Draw award accordingly.
XVI ADDL.JUDGE, Court of Small Causes & MACT, Bangalore.SCCH-14 30 MVC No.4908/2014
AWARD SCCH NO.14 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA : BANGALORE CITY MVC No.4908/2014 Petitioner/s : 1. Sri Raja S/o late David, Aged about 42 years,
2. Mrs. Vasantha W/o Raja Aged about 32 years,
3. Mr.Praveen S/o Raja Aged about 16 years, (Since the petitioner no.3 is minor he is duly represented by his father i.e., petitioner no.1) All are R/at No.68, Opp: NES Office, LBS Nagar, Yelahanka, Bangalore-560 064.
(By pleader Sri KNH) V/s Respondent/s 1. Mr.Narayanaswamy S/o Ramaiah, No.102, Chikka Bommasandra, GKVK post, Yelahanaka, Bangalore-65.
(RC owner of the Scooter) (By pleader Sri ADP)
2. The Regional Manager, The Oriental Ins.,Co.Ltd., Regional Office, No.44/46, Leo Shopping Complex, SCCH-14 31 MVC No.4908/2014 Residency road, Bangalore-560 025.
(Insurer of the Scooter) (By pleader Sri SM)
3. Mr. Ramakrishnan, Old No.7, New No.23, Periyaswamy street, Krishnagiri, Tamil nadu, (RC owner of the lorry) (Exparte)
4. The Branch Manager, Shriram General Ins.,Co.Ltd., S-5, 2nd floor, Monarach Chanmers, Infantry road, Bangalroe-560 001.
M.G.Road, Bangalore-560001.
(Insurer of the lorry)
(By pleader Sri KP)
WHEREAS, this petition filed on by the
petitioner/s above named U/sec.166 of the M.V.C. Act, praying for the compensation of Rs.
(Rupees ) for
the injuries sustained by the petitioner/Death of in a
motor Accident by vehicle No.
WHEREAS, this claim petition coming up before
Sri/Smt.Basavaraj Chengti, XVI Addl.Judge, Court of Small Causes, Bangalore, in the presence of Sri/Smt. Advocate for petitioner/s and of Sri/Smt. Advocate for respondent.
SCCH-14 32 MVC No.4908/2014ORDER The petition filed by the petitioners U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioners are entitled for a compensation of Rs.12,54,000/- with interest @ 9% per annum from the date of petition till the date of payment.
The respondent no.1 is liable to pay to the above said petitioners a compensation of Rs.12,54,000/- with interest. He is directed to deposit the amount before court within one month from the date of order.
The petitioners are entitled to share of compensation amount as under:
The petitioner no.1 : Rs.7,54,000/-
The petitioner no.2 : Rs.4,00,000/-.
The petitioner no.3 : Rs.1,00,000/- .
After deposit, Rs.3,00,000/- out of the share of the petitioner no.1 and Rs.2,00,000/- out of the share of the petitioner no.2 and entire share of the petitioner no.3 shall be deposited in their respective names in any nationalized, scheduled, co-operative bank for a period of 3 years. Remaining amount and interest of the petitioner no.1 and 2 shall be released in their favour through account payee cheque with proper identification.
The claim petition as against the respondent no.2 to 4 is dismissed without cost.
SCCH-14 33 MVC No.4908/2014Advocate's fee is fixed at Rs.5,000/-.
Given under my hand and seal of the Court this day of 2016.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA: Bangalore.
By the __________________________________ Petitioner/s Respondent No.1 No.2 __________________________________ Court fee paid on petition 10-00 Court fee paid on Powers 01-00 Court fee paid on I.A. Process Pleaders Fee _____________________________ Total Rs. ---------------------------------------
Decree Drafted Scrutinised by
MEMBER, M.A.C.T.
METROPOLITAN: BANGALORE
Decree Clerk SHERISTEDAR
SCCH-14 34 MVC No.4908/2014
SCCH-14 35 MVC No.4908/2014