Bangalore District Court
C. Vijay Kumar vs Mookamika Crane Services on 4 January, 2024
KABC020075742019
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BENGALURU CITY
SCCH-17
Present: Sri. KANCHI MAYANNA GOUTAM B.A.L, LL.M.,
Member, MACT
XIX ADDL. JUDGE,
Court of Small Causes,
BENGALURU.
Dated this the 4th day of January- 2024
MVC No.1514/2019
PETITIONER/S: C. Vijay Kumar,
S/o. Chikka Thimmaiah,
Aged about 35 years,
R/A. Behind Kongadiyappa
College, Karenahalli,
Ward No.11, Doddaballapur
Town, Bangalore Rural Dist.,
(By Sri.Vijay V.S.,Adv.,)
V/s.
RESPONDENTS: 1. Proprietor,
Sri. Mookambika Crane
Services, KIADB Complex,
No-1, Factory Circle,
Veerapura Post,
Doddaballapura- 561 203
Bangalore Rural District
(By Sri.B.N. Anjan Kumar., Adv.,)
SCCH-17 2 MVC No.1514/2019
2. Manager,
IFFCO TOKIO Gen. Ins.
Co. Ltd., No.141, 4th floor,
Sri. Shanthi Towers,
Opp; Cube III main,
East of N.G.E.G. Layout,
Kasturinagar, Bangalore43
(By Sri.Kiran Pujar Adv.,)
JUDGMENT
The petitioner has filed this petition U/Sec.166 of the Motor Vehicles Act claiming compensation for the injuries sustained by him in a road traffic accident that occurred on 17.01.2019.
Initially this case was disposed off by judgment dated 08.02.2021. Thereafter as per the order of the Hon'ble High Court of Karnataka in MFA No.7071/2022 C/w. 456/2022 dated 07.02.2023, remanded this case to this court with a direction for fresh consideration. After giving the opportunity for all the parties, the case is taken for disposal.
SCCH-17 3 MVC No.1514/2019
2. The petition averments in brief are as under:
On 17.01.2019 at about 5.00 to 5.30 p.m. the petitioner along with two passengers was returning to his village from Doddaballapura in an auto bearing No. KA-
64-1344 , when they reached near KIADB Industrial area, in front of FFI factory the driver of the crane bearing No. KA-43-N-0070 came in a rash and negligent manner with high speed and dashed against the auto from behind and caused the accident. Due to the said impact, the petitioner fell down and sustained grievous injuries.
Immediately after the accident, he was shifted to Columbia Clinic and later he was shifted to Bhagwan Mahaveer Jain Hospital, wherein he was admitted as inpatient and he has spent huge amount towards hospitalization charges, treatment medicines, conveyance, nourishing food and other incidental charges etc., SCCH-17 4 MVC No.1514/2019 Prior to the accident, petitioner was very hale and healthy and he was doing agriculture and also doing milk vending business and earning Rs.25,000/- p.m. Due to the accidental injuries petitioner is not able to continue his work and is under complete bed rest and he is suffering from permanent disability.
The respondent No.1 is the owner and respondent No.2 is the insurer of the offending vehicle, are jointly severally liable to pay the compensation to the petitioner.
Hence, prays to award compensation of Rs.35,00,000/-
with interest.
3. After service of notices both the respondents appeared and filed their written statement.
Respondent No.1 filed written statement by admitting that he is the owner of the crane bearing No. KA-43-N-0070 and the same was insured with respondent no.2 and the policy was in force as on the date of accident. Further contended that at the time of SCCH-17 5 MVC No.1514/2019 the accident the driver of the crane was having valid RC and driving licence. It is further stated that the accident was occurred due to negligence on the part of driver of the auto and there is no negligence on the part of driver of the crane. Further denied the age, avocation, alleged disability and the income of the petitioner. The compensation claimed by the petitioner is highly excessive and exorbitant. Hence, the respondent No.1 prays to dismiss the petition against it.
Respondent No.2 filed written statement by admitting the issuance of policy to the crane bearing no. KA-43-N-0070. Further contended that, the accident was happened due to negligence on the part of the driver of the auto and the liability of this respondent, if any, is subject to terms and conditions of the policy. Further it is contended that at the time of alleged accident, the driver of the crane was having valid and effective driving licence as on the date of accident. Further denied the age, avocation, alleged disability and income of the petitioner. SCCH-17 6 MVC No.1514/2019 The compensation claimed by the petitioner is highly excessive and exorbitant. Hence, the respondent No.2 prays to dismiss the petition against it.
4. On the basis of the rival contention, the following issues are framed by this court:
1. Whether the petitioner proves that he had sustained grievous injuries in an accident that was occurred due to rash and negligent driving of the driver of the Crane bearing No. KA-43- N-0070 on 17.01.2019 at about 5 to
5.30 p.m. in front of FFI factory, KIADB industrial area, Doddballapura Town?
2. Whether the petitioner is entitled for compensation as prayed for? If so, at what rate and from whom?
3. What Order or Award?
5. In order to prove the claim petition, the petitioner examined himself as P.W.1 and got marked the documents at Ex.P.1 to 11. Dr. S. Ramachandra who is working as Asst. Professor of Orthopaedics at Victoria SCCH-17 7 MVC No.1514/2019 Hospital is examined as PW.2, through him got marked Ex.P12 to 14.
Second respondent examined its official as RW.1, through him got marked one document at Ex.R1. The Proprietor of first respondent examined as RW.2, through him got marked Ex.R2 & 3.
6. I have heard the arguments of both sides and perused the material evidence that are available on record.
7. My findings on the above issues are as under.
Issue No.1 : In the affirmative;
Issue No.2 : Partly in the affirmative
Issue No.3 : As per final orders
for the following:-
: R E A S O N S:
ISSUE NO.1 :
8. That by reiterating all the averments made in the petition, the petitioner has filed his affidavit in lieu of- examination in-chief, which is considered as P.W.1. In SCCH-17 8 MVC No.1514/2019 support of his case, he has produced true copies of FIR and complaint, spot mahazar, IMV report, wound certificate and charge sheet, which are marked under Ex.P.1 to 5.
9. It is the case of the petitioner that, he had sustained grievous injuries due to the rash and negligent driving of the driver of the offending vehicle Crane bearing registration No. KA-43-N-0070, on the fateful day of the alleged accident. On the other hand, the respondent No.2 has not strongly denied the factum of the accident. But contended that, the driver of the offending vehicle had no driving license,as on the date of the accident. Initially at the time of filing of the petition, the respondent No.1 being the owner of the offending vehicle, was placed exparte. But after the remanding of the case, the respondent No.1 being the owner of the offending vehicle appeared and filed written statement by denying the alleged negligence and also by contending that the driver of the offending vehicle Crane bearing SCCH-17 9 MVC No.1514/2019 registration No. KA-43-N-0070 was having valid licence at the time of the alleged accident.
10. This issue is framed by casting the burden, on the petitioner, to prove the said issue by placing satisfactory and convincing evidence regarding the fact of negligence by the driver of offending vehicle Crane bearing registration No. KA-43-N-0070. To discharge the burden casted on the petitioner, he himself examined as PW.1 and filed affidavit in lieu of examination. In the affidavit of the PW1, he reiterated the petition averments. The respondent No.1 & 2, to prove their defence in the case on hand, placed their affidavit evidence. In the evidence of the RW1 & 2 they have not seriously disputed the accident, and also allegation made in the charge sheet against the driver of the offending vehicle, with respect to the accident and also not seriously denied that, as on the date of the accident, insurance policy with respect to the offending vehicle was in force. The serious contention of the respondent No.2 is SCCH-17 10 MVC No.1514/2019 that, as on the date of the accident, the driver of the offending vehicle was not holding valid driving license. In this aspect, this court is of the opinion that the fact of negligence has to be looked into in this issue and whether the driver of the offending vehicle Crane bearing registration No. KA-43-N-0070 was having valid licence can be looked into while discussing on the point of liability. The cricks of this issue is only with respect to whether there is any actionable negligence on the part of driver of offending vehicle Crane bearing registration No. KA-43-N-0070 or not.
11. To verify the fact of negligence on the part of driver of offending vehicle Crane bearing registration No. KA-43-N-0070, if we verify the documentary evidence placed on record by the petitioner, goes to show that, on the basis of first information given by one Shivaraj M. who is also injured in the said accident as per Ex.P1 the complaint was filed and the FIR was registered. On going through the recitals of the Ex.P1 complaint and FIR it SCCH-17 11 MVC No.1514/2019 discloses that the alleged accident was taken place on 17.1.2019 at about17.00 hours and information in connection with the accident was received on 18.1.2019 at about 10.30 hours. In Ex.P1column No.3(c), it is stated that, after taking treatment belatedly the complaint has been given. Along with this aspect on appreciation of this document, it discloses that there is no much delay in giving first information about the accident. As such, delay in the case on hand with respect to giving of first information is not fatal. In the Ex.P1- complaint it is alleged that when the petitioner was proceeding in auto bearing No. KA-64-1344, the offending vehicle Crane bearing registration No. KA-43-N- 0070 came from back side and dashed the auto to the back side of the auto. Thus, it shows that the accident is caused by the crane from the back side of the auto.
12. Further, recitals of the Ex.P2 spot mahazar goes to show that, after registration of the case the investigation officer on 18.1.2019 conducted the spot SCCH-17 12 MVC No.1514/2019 mahazar. The recitals of this document reveals that, at the time of mahazar process, both offending and defending vehicle were in the scene of occurrence. This document clearly substantiate about the accident and also involvement of the offending vehicle in the said accident. Ex.P3 is the Motor vehicle report and damages forthcoming in the said document speaks about the rash and negligent driving of the driver of the offending vehicle as on the date of the accident and the accident was not due to any mechanical defect of the offending and defending vehicles.
13. Another material document, Ex.P4 wound certificate pertaining to the petitioner goes to show that, consequent upon the accident, he had sustained grievous injuries. Ex.P5 final report submitted by the investigation officer against the driver of the offending vehicle Crane bearing registration No. KA-43-N-0070 alleging that, the driver of the crane has committed the offence punishable SCCH-17 13 MVC No.1514/2019 under section 279 and 338 of I.P.C. and section 181 of Motor Vehicles Act.
14. On appreciation of these material documents, it is crystal clear that, due to the negligent driving on the part of the driver of the offending vehicle, the alleged accident was taken place. To disprove this factum, no contra materials available on record for appreciation. At the time of cross-examination of PW1, the learned counsel for the respondents put several questions to the effect that the accident was not occurred due to the negligence on the part of the driver of the offending vehicle. But no material point culled out from his mouth to disprove the fact of the accident, that occurred due to the negligence on the part of the driver of the offending vehicle. The respondent No.1 even though examined is proprietor in their favour, the evidence of the proprietor has not helped the respondent No.1 to disprove the case of the petitioner in respect of negligence. The RW.2 who is the proprietor of the respondent No.1 company was not SCCH-17 14 MVC No.1514/2019 an eye witness. He even though admitted that the driver of the offending vehicle Crane bearing registration No. KA-43-N-0070 still working with him, has not made any effort to examine the said driver to disprove the alleged negligence as claiming by the petitioner.
15. In connection with the defence of the respondent No.2 herein, concerned official placed evidence as RW1, in the said evidence as already discussed above, RW1 reiterated the contents of written statement. But at the time of cross examination of RW1, he admitted that, company has not produced any documents to show that, from the side of the company investigation process was conducted in connection with the alleged accident and also admitted that, the accident had taken place due to the mistake on the part of the driver of the offending vehicle and against him final report was filed. RW.1 also admitted that on the date of the accident, policy pertaining to the offending vehicle was in force.
SCCH-17 15 MVC No.1514/2019
16. Over all appreciation of the documentary evidence placed by the petitioner, it is crystal clear that due to the rash and negligent driving of the driver of the offending vehicle Crane bearing registration No. KA-43-N- 0070, the accident had occurred. No contra documents are available on record to show that the petitioner has engineered the documentary evidence for the purpose of his case to claim the compensation from the respondents. If really the driver of the offending vehicle was innocent for the alleged offence and also to prove that due to the negligence on the part of the driver of the auto rickshaw, the respondent No.1 being the owner of the said crane would have been examined its driver. But no such effort were made by the respondent No.1
17. The charge sheet is came to be filed on the driver of the offending vehicle Crane bearing registration No. KA-43-N-0070 for the offences punishable under Sec. 279 & 338 of IPC and for the offences punishable under SCCH-17 16 MVC No.1514/2019 Sec. Sec. 181 of IMV Act. At this juncture, I would like to quote the following judgment wherein it states that;
2009 ACJ 287 ( National Ins. Co. V/s.
Pushparama and others), wherein it is held that, Certified copy of the criminal court records such as FIR, recovery and mechanical inspection of the vehicle or documents are of sufficient proof to reach the conclusion that the rider was negligent. Proceedings under Motor Vehicles Act are not akin to proceedings in a Civil Court. Hence, strict rules of evidence are not required to be followed in this regard.
18. Hence, by relying on the said precedent and in the absence of rebuttal evidence and denial in respect of police documents marked at Ex.P1 to 5, this court is of the opinion that the accident has happened due to the rash and negligent driving of the driver of the offending vehicle Crane bearing registration No. KA- 43-N-0070.
SCCH-17 17 MVC No.1514/2019
19. In a claim for compensation under Section 166 of Motor Vehicles Act, 1988, the claimant is to prove the incident only on preponderance of probabilities and the standard of proof beyond reasonable doubt is not required as held by Hon'ble Supreme Court in the decision reported in 2011 SAR (CIVIL) 319 Kusum and others V/s Satbir and others.
20. Further the Hon'ble Supreme Court in case of Bimla Devi and others v. Himachal Road Transport Corporation and others (2009) 13 SCC 530, wherein it is held that, it was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied.
SCCH-17 18 MVC No.1514/2019
21. In support of these documentary evidence, if we perused the oral evidence of the petitioner on this point, even though the respondents made a suggestions to the petitioner by stating that the accident was occurred by the negligence of the driver of the autoricksahw, nothing being elicited or produced to probabalise the said defence.
22. The contents of Ex.P1 FIR & complaint falsifies the contention of respondents about the contributory negligence of the drive of the autorickshaw for the occurrence of accident because, it is alleged that the offending vehicle Crane bearing registration No. KA- 43-N-0070 has dashed the autorickshaw to the back side of the said autorickshaw. By considering the contents of Ex.P1 to 5 this court tilts in favour of the petitioner as the petitioner has to prove the alleged negligence on the basis of the evidence and proof of the same on preponderance of probabilities. The Ex.P 5 charge sheet also supports the view of this court, as the charge sheet SCCH-17 19 MVC No.1514/2019 filed for the offence punishable under Sec. 279 & 338 of IPC against the driver of the offending vehicle Crane bearing registration No. KA-43-N-0070.
23. As per well settled principle of law, the standard of proof in the claim petition like the present is preponderance of the probability. There are no grounds to disbelieve the case of petitioner in the absence of rebuttal evidence. All the materials available on record leading to show that, petitioner has sustained injuries in the accident took place on 17.01.2019 which is caused by the driver of the crane bearing No.KA-40-N-0070 which belonging to respondent No.1. There is no reason to discard the evidence of petitioner. In the claim petition like present one strict proof is not necessary but preponderance of probabilities is sufficient. Accordingly, I answer issue No.1 in the affirmative.
ISSUE NO.2:
24. As already held herein above, the petitioner has proved that he has sustained injuries in RTA which SCCH-17 20 MVC No.1514/2019 is caused by respondent No.1. Hence, the petitioner is entitle for compensation. Now the quantum of compensation is to be ascertained on different heads.
a) PAIN AND AGONY :- At the time of alleged accident the petitioner was aged about 35 years.
Aadhaar card produced at Ex.P6 shows that the petitioner was aged about 37 years at the time of accident. In the petition itself he has averred that he was admitted to Columbia Clinic and thereafter he was shifted to Bhagwan Mahaveer Jain Hospital. As per the discharge summary marked at Ex.P8 the petitioner was admitted to the hospital on 18.01.2019 and discharged on 23.01.2019 who sustained left lower limb crush injury with extensive drainage. By considering the nature of the injuries and the period he spent to overcome the pain and other allied effects of the accident Rs.80,000/- may be awarded to the petitioner under this head. SCCH-17 21 MVC No.1514/2019
b) Medical expenses: The petitioner has produced 51 medical bills as per Ex.P9, amounting to Rs.1,59,772/-. These bills are not disputed by the respondents and no grounds are made out to disbelieve these bills. Looking to the facts and circumstances of the case in combined with the alleged injuries the petitioner is entitle for the reimbursement of the same by rounding of the same to i.e., Rs.1,60,000/-. Accordingly, the petitioner is entitle for the same.
c) Loss of income during laid up period: The petitioner has stated that he was doing agriculture and also doing milk vending business and earning Rs.25,000/- p.m. To prove the said fact the petitioner has not produced any document. To consider the avocation of the petitioner except the oral evidence, no documents or proof of salary is shown by the petitioner. Such being the case it is just and necessary to consider the notional income of the petitioner at Rs.14,000/- p.m. as the accident is of the year 2019.
SCCH-17 22 MVC No.1514/2019
As per the discharge summary marked at Ex.P8- the petitioner was admitted to Bhagwan Mahaveer Jain Hospital on 18.01.2019 and discharged on 23.01.2019 for 6 days. The petitioner sustained crush injury with extensive damage therefore usually the healing period has to be considered for which in the absence of evidence, this court is of the opinion that in total three months may be considered under this head as loss of income. So, the petitioner is entitled for compensation of Rs.14,000 X 3 months= Rs.42,000/- during the laid up period.
d) Disability;- To prove the nature of injuries sustained by him the petitioner examined Dr. S. Ramachandra, Asst. Professor of Orthopedic Surgeon at Victoria Hospital, as PW.2, through him outpatient record, X-ray and quotation of artificial limb are marked under Ex.P.12 to 14. According to the evidence of this witness the petitioner sustained left lower limb deglove injury and crush injury with extensive damage and SCCH-17 23 MVC No.1514/2019 underwent operation of left below knee (B/K) amputation coverage of stump and debridement. He examined the petitioner for assessment of disability. Petitioner suffered permanent residual physical disability of about 60% of left lower limb, which is about 30% to the whole body. This aspect is not impeached during the course of cross- examination.
According to the petitioner he was doing agriculture and also doing milk vending business. The disability caused to the petitioner may affect on his occupation to some extent. Hence, I hold that the petitioner sustained disability of 60% to the whole body.
The petitioner has produced his Aadhar card marked at Ex.P6, as per this document the date of birth of the petitioner is mentioned as 21.07.1982. The accident was occurred in the year-2019. So, as on the date of the accident the petitioner was aged 37 years. SCCH-17 24 MVC No.1514/2019
As per Sarala Verma's case, the proper multiplier applicable to the age of petitioner is '15'. Hence, I inclined to award future loss of income at Rs.14,000/- X 12 X 15 X 60% =Rs.15,12,000/- which is the total loss of future income.
e) FOOD, NOURISHMENT AND CONVEYANCE ; As per Ex.P8 discharge summary, the petitioner took treatment as inpatient for a period of 6 days. As per wound certificate Ex.P4 the injuries sustained by the petitioner are grievous in nature. By considering the nature of the injuries and period he spent to overcome the pain and other allied effects of the accident. Hence looking to the treatment taken by the petitioner and injuries sustained he is entitled for compensation of Rs.15,000/- towards food and nourishment, conveyance.
f) Attendant Charges: The petitioner sustained grievous injuries in the accident. The petitioner has spent 6 days in the hospital and there is no evidence or SCCH-17 25 MVC No.1514/2019 pleading in this regard to show that the petitioner is in need of attendant. But by considering the nature of the injuries as discussed above, one month of healing period including the inpatient period may be considered to award attendant charges at Rs.1,000/- per day i.e., Rs.20,000/- in total.
g) Towards loss of amenities and enjoyment of life:
The petitioner admitted to the hospital for the injuries sustained by him, which might certainly have deprived him of the basic comforts and enjoyment.
Therefore, it is just and proper to award him a reasonable sum of Rs.25,000/- under this head.
h)Towards future medical expeses: In connection with the future medication expenses is concerned, the petitioner has placed quotation as per Ex.P14. On perusal of the said quotation and also the other evidence available on record, and also on the basis of the evidence of Pw.2- doctor wherein PW.2 admitted that, now the SCCH-17 26 MVC No.1514/2019 stump of the petitioner is healthy, it can be fitted with artificial leg and no treatment is required except the artificial limb. Even after remanding of the case for fresh trial, the petitioner has not produced any evidence to show that he is in need of more than Rs.1,00,000/- for future medical expenses. What is the present condition of the petitioner is also not explained by any cogent evidence by the petitioner. By taking into consideration of this aspect along with the age of the petitioner as well as his occupation, the petitioner has to lead calm life in the remaining life span.
25. In connection with his injury as per the evidence of the doctor artificial limb has to be affixed to walk. As such by taking into consideration of the quotation placed by the petitioner along with other aspects and rate of artificial limb in the present circumstance, and also considering the point that the petitioner has to lead his life in future along with his permanent disability with the aid of artificial limb, it is SCCH-17 27 MVC No.1514/2019 apt herein to award compensation of Rs.1,00,000/- towards future medical expenses. Hence, this court is of the opinion that under this head, the petitioner is entitle for the compensation of Rs.1,00,000/-
Thus, the petitioner is entitled for compensation under the following heads:
a) Towards pain and agony Rs. 80,000/-
b) Towards medical expenses Rs. 1,60,000/-
c) Towards loss of income Rs. 42,000/-
d) Towards disability Rs. 15,12,000/-
e) Towards food, nourishment
and conveyance Rs. 15,000/-
f) Towards attendant charges Rs. 20,000/-
g) Towards loss of amenities
and enjoyment in life Rs. 25,000/-
h) Towards future medical
expenses Rs. 1,00,000/-
_______________
Total Rs.19,54,000 /-
SCCH-17 28 MVC No.1514/2019
26. Liability: In the written statement of the
respondent No.2- insurance company admitted the
issuance of insurance to the offending vehicle Crane
bearing registration No. KA-43-N-0070, but in view of the specific contention of the respondent No.2 that respondent No.1 has violated the policy conditions, as the respondent No.1 has handed over the offending vehicle Crane bearing registration No. KA-43-N-0070 which is insured with respondent No.2 to the driver who did not possess a valid a subsisting driving license to ride a offending vehicle Crane bearing registration No. KA-43-N-
0070, as on the date of accident.
27. Precisely, it is the specific case of the respondent No.2 that the driver of the offending vehicle Crane bearing registration No. KA-43-N-0070, did not possessed a valid driving license and hence was not competent to drive the offending vehicle Crane bearing registration No. KA-43-N-0070, and secondly the respondent No.1 has allowed unauthorized person to SCCH-17 29 MVC No.1514/2019 drive the offending vehicle Crane bearing registration No. KA-43-N-0070, which is in gross violation of the insurance policy.
28. On the other hand, after the remanding of the case, the respondent No.1 who is the owner of the offending vehicle Crane bearing registration No. KA-43-N- 0070 examined himself as RW.2 and produced the copy of driving licence of the driver of the offending vehicle Crane bearing registration No. KA-43-N-0070 at the time of accident and the same is marked as Ex.R2 & 3. Ex.R2 is notarised copy of driving licence of one Arvind and the Ex.R3 is the certified copy of extract of the driving licence of said Arvind. On perusal of the said Ex.R2 & 3, the driver of the offending vehicle Crane bearing registration No. KA-43-N-0070 was having licence to drive LMV, MCWG and transportation vehicle. The said documents are not disputed by the respondent No.2- insurance company. But when the RW.2 is cross-examined by the SCCH-17 30 MVC No.1514/2019 learned counsel for the respondent No.2 he admitted that the offending vehicle is crane. Thus, it is contention of the respondent No.2 that the Ex.R1 & 2 does not authorises the holder of the said driving licence to drive the crane. In support of his contention, the learned counsel for the respondent No.2 has relied on the judgment of Hon'ble High Court of Karnataka in MFA No. 23085/2012 (MV), connected with MFA NO. 24405/2010 (MV) between Sadashiv V/s. Smt. Dyavakka and another. The relevant portion which are relied by the learned counsel for the respondent No.2 in support of his contention is hereby quoted for the better appreciation.
5. On the other hand, learned counsel appearing for the insurance company places reliance on Section10(2) of the Act, which reads as under:
"A learner's licence, or. as the case maybe, driving licence shall also be expressed asentitling the holder to drive a motor vehicle ofone or more of the following classes, namely:'
a)motor cycle without gear;
b)motor cycle with gear;
c)invalid carriage;
d)light motor vehicle;
e)transport vehicle;
i)road-roller;
j)motor vehicle of a specified description.SCCH-17 31 MVC No.1514/2019
6. It is contended that different classes of vehicle are stipulated under Section 10(2) of the Act, the offending vehicle being construction equipment vehicle,falls under Clause (j), motor vehicle of a specified description. Section 2(21) of the Act defines the light motor vehicle as a transport vehicle, omnibus or Motor-cab or Tractor or Road-Roller, all these vehicles are represented under different clauses of Section 10(2) of the Act. In case of the transport vehicle or omnibus, the gross vehicle weight shall not exceed 7,500 kgs., whereas in motor-cab, tractor and road- roller, the unladen weight shall not exceed 7,500 kgs, such vehicles would be construed as light motor vehicle. The motor vehicle of a specific description not falling under these categories and even if the unladen weight is less than 7,500 kgs. Cannot be construed as light motor vehicle and forms separate class, i.e., motor vehicle of a specified description.
**************
8. After considering the rival submissions of the parties, it is clear that the driver of the offending vehicle was authorized to drive light motor vehicle, transport vehicle, tractor and trailer as per the licence now produced by the owner before this Court. Now it has to be examined whether the offending vehicle commonly known as JCB bearing No.KA-25/N-4695 is a light motor vehicle falling under Section 2(21) of the Act or not. Section 2(21) of the Act reads thus:
"Section 2(21): "light motor vehicle"means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed[7,500] kilograms."
9. Thus, it is clear that to attract this provision,the vehicle must be in the following category of vehicles,i.e., ************************
a)transport vehicle SCCH-17 32 MVC No.1514/2019
b)omni bus }gross vehicle weight doesnot exceed 7500 kgs.
c)motor car
d)tractor
e)road roll }unladen weight does
not exceed 7500 kgs.
If it falls in any one of these vehicles with the corresponding gross vehicle weight or unladen weight,which does not exceed 7,500 kgs. then it has to be construed as a light motor vehicle. The certificate of registration now produced by the owner to establish that the unladen weight of the offending vehicle is 7,465 kgs would not be suffice to characterize the said vehicle as light motor vehicle falling under Section 2(21) of the Act, ifit falls only in any of the five categories mentioned in Section 2(21) of the Act, i.e.,(a) to
(e) referred to above,coupled with the gross weight/unladen weight it comes under the ambit of light motor vehicle. This view is further supported by the notification issued by the Central Government Official Gazette, as per S.O.1248(E) dated05.11.2004, published in the Gazette of India, Extra-Ordinary, Part II Section 3(ii) dated 05.11.2004.
10. The Construction Equipment Vehicle as defined under Rule 2(ca) of the Central Motor Vehicles Rules, 1989is considered as a non- transport vehicle, which reads thus:"
Rule 2(ca): "Construction equipment vehicle"
means rubber tyred, (including pneumatic tyred), rubber padded or steel drum wheel mounted, self-propelled, excavator,loader, backhoe, compactor roller, dumper,motor grader, mobile crane, dozer, fork lift truck, self-loading concrete mixer or any other construction equipment vehicle or combination thereof designed for off- highway operations in mining, industrial undertaking, irrigation and general construction SCCH-17 33 MVC No.1514/2019 but modified and manufactured with "on or off"
or "on and off"highway capabilities. Explanation.- A construction equipment vehicle shall be a non- transport vehicle the driving on the road of which is incidental to the main off-highway function and for a short duration at a speed not exceeding 50 kms per 15hour, but such vehicle does not include other purely off-highway construction equipment vehicle designed and adopted for use in any enclosed premises, factory or mine other than road network, not equipped to travel on public roads on their own power."
11. The Full Bench of this Court has categorically held referring to Section 10(1) and 10(2) of the Act along with Rule (16) of the Rules and Form No.6 that "It is clear that the Court should ascertain the nature of vehicle involved in the accident, so far as Section 2 of the Act and on examining the licence whether driver was authorized to drive the particular type of vehicle involved in the accident,has to be ascertained." In the light of this judgment, if the driving licence is examined vis-a-vis the provisions of Section 2 of the Act r/w Section 10 of the Act and Rule2[ca] read with Rule 3 of the Rules it would be held that the offending vehicle is an excavator/ construction equipment vehicle which is commonly known as JCB by its company's name is a special vehicle falling under the 16Clause (j) of Section 10 (2) of the Act and is not a light motor vehicle falling under Section 2(21) of the Act.
12. Having considered the offending vehicle as a special vehicle, which necessarily requires special skill for driving, the finding given by the Tribunal that JCB is a special category of vehicle, according to the Motor Vehicles Act and Rules, the driver was not authorized to drive the JCB, cannot be found fault with. In such circumstances,the appeal filed by the owner of the vehicle, being devoid of merit stands dismissed.
......................................... SCCH-17 34 MVC No.1514/2019
14. Accordingly, the appeal filed by the owner of the offending vehicle is dismissed. The appeal filed by the claimants is allowed in part, the judgment and award of the Tribunal is modified. The claimants are entitled to enhanced compensation of Rs.2,00,250/- with interest at 6% p.a. from the date of petition till realization. The owner is liable to deposit same within six weeks from the date of receipt of judgment, the claimants are at liberty to withdraw the same.
29. In order to discharge the burden cast on it, the respondent No.2 company has examined its Executive as RW-1 where the RW-1 has specifically stated on oath that the driver of the respondent No.1 did not possessed a valid driving license at the time of accident. Further the RW.1 has produced copy of policy wherein it specifically establishes that at the time of accident the offending vehicle was covered with valid licence. The Ex.P5 charge sheet also supported the defence of the respondent No.2 company in respect to the driving of the offending crane by the person who has no valid licence.
30. Initially this case is disposed off and thereafter the respondent No.1 who is the owner of the offending SCCH-17 35 MVC No.1514/2019 vehicle Crane bearing registration No. KA-43-N-0070 has preferred an appeal and the case is remanded back for fresh consideration. The owner of the offending vehicle Crane bearing registration No. KA-43-N-0070 examined himself as R.W,2 and filed evidence affidavit in lieu of his chief-examination. The RW.2 also produced the copy of driving licence as Ex.R2 and copy of driving licence extract as Ex.R3. By this, the respondent No.1 being the owner of the offending vehicle Crane bearing registration No. KA-43-N-0070 contended that as per Ex.R2 & 3, the driver of the offending vehicle Crane bearing registration No. KA-43-N-0070 was having valid licence at the time of alleged accident. The RW.2 in his cross- examination has specifically admitted that the offending vehicle is a crane.
31. On perusal of Ex.R2 & 3, the driver of the offending vehicle Crane bearing registration No. KA-43-N-0070 was having valid licence only to drive LMV, MCWG and transportation vehicle. Admittedly, the vehicle involved in SCCH-17 36 MVC No.1514/2019 this case is crane. On perusal of the notification of Government of India, the said vehicle comes under the special category and unladen weight of the said crane has no bearing in considering the type of the said vehicle. In the above quoted judgment of Hon'ble High Court of Karnataka the offending vehicle falls under the category of construction equipment vehicles falling under the Clause J of Sec. 10 (2) of the Act. Having considered the offending vehicle Crane bearing registration No. KA-43-N- 0070 as special vehicle which necessarily requires special skill for driving. The Ex.R2 & 3 does not authorizes the driver of the offending vehicle Crane bearing registration No. KA-43-N-0070 to drive the special category of vehicle.
32. This apart the respondent No.1 has not made any other efforts to prove that the driver of the offending vehicle Crane bearing registration No. KA-43-N-0070 possessed a valid driving license on the date of the accident to drive the crane in the public road. SCCH-17 37 MVC No.1514/2019
33. It is relevant to note that the petitioner neither produced the copy of notice issued by the investigating officer under IMV Act during the time of investigation nor the copy of reply given by the respondent No.1 under IMV Act is produced. The owner i.e. the respondent No.1 even though appeared before this court has failed to produce necessary evidence to show that the driver the offending vehicle Crane bearing registration No. KA-43-N-0070 was having a valid licence at the time of accident to drive the crane in the public road.
34. It is relevant to note that the respondent No.1 even though produced the driving license which was valid as on the date of accident, it only authorised the driver of the offending vehicle Crane bearing registration No. KA- 43-N-0070 to drive LMV, MCWG and transportation vehicle and not the crane which is a special vehicle. Thus, it needless to state that as the driver of the offending vehicle Crane bearing registration No. KA-43-N- 0070 was not having valid licence the investigating SCCH-17 38 MVC No.1514/2019 officer has rightly invoked the Section 3 read with section 181 of MV act against respondent No.1. The above facts make it clear that the respondent No.1 had more than one opportunities to produce the driving license of driver of the offending vehicle Crane bearing registration No. KA-43-N-0070, but he did not bother to produce the same, which makes it obvious that the driver of the offending vehicle Crane bearing registration No. KA-43-N-0070 does not possess a driving license.
35. Perusal of Section 106 of the Indian Evidence Act makes it clear that any particular fact which is within the knowledge of a party, he has the burden of proving the same. The said provision reads as under :
106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
The essence of the said provision is that the respondent No.1 who is the owner of the the offending vehicle Crane SCCH-17 39 MVC No.1514/2019 bearing registration No. KA-43-N-0070 has the burden of proving any fact which is specially within his knowledge. In fact the illustration (b) appended to the section 106 of Indian Evidence Act , A is charged with traveling on a railway without a ticket. The burden of proving that he had a ticket is on him.
36. Applying the said provision to the facts at hand, the burden of proving that the the driver of the offending vehicle Crane bearing registration No. KA-43-N- 0070 was having driving license shifted on the respondent No.1, but the respondent No.1 has failed to discharge the said onus. On the other hand the respondent No.2 by examining RW.1 has discharged the burden cast on it.
37. Now that this court has ascertained the compensation amount, the last aspect of the matter is regarding fixation of liability i.e., who should be made liable to pay the compensation to the petitioner?. Precisely, SCCH-17 40 MVC No.1514/2019 it is the specific case of the respondent No.2 that the respondent No.1 has handed over the offending vehicle Crane bearing registration No. KA-43-N-0070 to a person who has not having valid driving license. For the reasons discussed as supra , it is established that the driver of the offending vehicle Crane bearing registration No. KA- 43-N-0070 was not having valid licence at the time of the accident.
38. The next aspect to be pondered upon now is, what is the effect of the rider of the offending vehicle not possessing a driving license at the time of accident. In H.K. Shivaramu Vs. H.S.Shivaramum other rendered by the Division Bench of Hon'ble High Court of Karnataka on 4.12.2020 wherein in a similar set of facts the Hon'ble High Court of Karnataka held thus:
10. On the basis of the evidence of the parties and the materials available on record, i.e., Ex.P2 - charge sheet the Tribunal has rightly held that the rider of the offending vehicle was not holding a valid and effective driving licence and fastened the liability on the respondent SCCH-17 41 MVC No.1514/2019 Nos. 1 and 2 - the rider and the owner of the offending vehicle jointly and severally. In view of the law laid down by a Full Bench of this Court in the case of YELLAVVA (supra), even though there is violation of policy conditions, when it is not in dispute that as on the date of the accident the offending vehicle was covered by the insurance policy, the insurance company has to pay the compensation with liberty to recover the same.
The essence of the said decision is that even where the driver of the offending vehicle was found to be driving without a valid driving license and the insurance company pleads that there is violation of policy conditions, if the vehicle had a valid and subsisting insurance policy, then the insurance company has to pay the compensation with liberty to recover the same from owner and rider.
39. In fact the Hon'ble Division Bench of the Hon'ble High Court of Karnataka relied upon the decision of Hon'ble full bench of the Hon'ble High Court of SCCH-17 42 MVC No.1514/2019 Karnataka in New India Assurance Co., Ltd., vs Yallavva reported in ILR 2020 Kar 2239 equivalent (2020) 2 KCCR 1405 wherein the Hon'ble High court has reaffirmed the principles relating to pay and recover by relying upon decision of the Hon'ble Apex Court in National Insurance Co. Ltd. Vs. Swaran Singh and Others reported in (2004) 3 SCC 297 cited supra held thus:
34. On a reading of the same, it becomes clear that the Hon'ble Supreme Court has laid down two tests. The breach of a policy condition, for example, by disqualification of the driver to hold a driving licence or invalid driving licence has to be proved to have been committed by the insured for avoiding liability by the insurer. In other words, in order to avoid the liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of policy regarding use of the vehicle by a duly licensed driver or one who was not disqualified to drive at the relevant time. Thus, burden of proof of establishing breach on the part of the owner of the vehicle is on the Insurance Company. The above is the first test laid down by the Hon'ble Supreme Court. Then, there is another test enunciated. Even after proving breach of a policy condition regarding a valid licence by the driver or his qualification to drive during the relevant period on the part of the insured, the insurer SCCH-17 43 MVC No.1514/2019 would not be allowed to avoid his liability towards the insured unless the said breach or breaches is/are so "fundamental" as found to have contributed to the cause of the accident.
This is having regard to the "rule of main purpose"
or "main purpose rule" i.e., even if there is a proof of the driver of a motor vehicle not being duly licenced at the time of the accident, the said fact must be a cause for the accident. In other words, the breach was so fundamental as to have contributed to the cause of the accident. The doctrine of fundamental breach has been incorporated in Section 149 of the Act by the Hon'ble Supreme Court in order to give effect to the main purpose rule. Thus, the exclusion clause or the defence of an insurer so as to avoid liability has been read down to the extent to which it is inconsistent to the main purpose of the contract. The above is the second test to be applied. Thus, there has to be a finding of fact, as to, whether, the owner or the insured had taken reasonable care. Hence, the Tribunal will have to decide the dispute, as to, whether, the insurer has proved its defence. While adjudicating the said claim if the Tribunal concludes that the insurer has satisfactorily proved its defence in accordance with Section 149(2)(a) of the Act, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party as per the award of the Tribunal having regard to the mandate of section 149(1) of the Act."
(emphasis supplied by me) The Hon'ble Apex Court in National Insurance Co. Ltd. Vs. Swaran Singh and Others reported in (2004) 3 SCCH-17 44 MVC No.1514/2019 SCC 297 cited supra has categorically held that to avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. Further at para 110 the Hon'ble Apex Court has observed thus:
(iii) The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
(emphasis supplied by me)
40. No doubt the respondent No.2 has proved that the driver of respondent No.1 did not possess license, but SCCH-17 45 MVC No.1514/2019 the above decision makes it clear that the respondent No.2 was required to prove that the insured was negligent or did not exercise reasonable care which is not proved. Thereby fortifying the view taken by this court that the respondent No.2 should make good the compensation amount to the petitioner and then proceed against the respondent No.1 i.e., the owner to recover the same.
41. The learned counsel for the respondent No.1 has relied on the following judgments in support of his case.
(2018) 3 SCC 208 Pappu and others V/s. Vinod Kumar Lamba and Another, ( 2018) 9 SCC 650 Shamanna and another V/s. Divisional Manager, Oriental Ins. Company Limited and others,
42. In the case reported in (2018) 3 SCC 2008, the burden of proof on whom it lies while deciding the fact of driving of the offending vehicle by the unauthorized SCCH-17 46 MVC No.1514/2019 person is explained and in the judgment reported in (2018 ) 9 SCC 650 the concept of pay and recovery is explained. Both these precedents are considered while adjudicating this case.
43. For the foregoing reasons this court finds no hesitation in holding that the respondents are jointly and severally liable to pay the compensation to the petitioner and the respondent No.2 being the insurer shall pay the compensation amount to the petitioner with liberty to recover the same from respondent No.1. Accordingly, Issue No. II is held in the partly affirmative and it is held that the petitioner is entitled for compensation of Rs.19,54,000/- along with interest at the rate of 6% per annum and it is also held that the respondent No.2 shall pay the compensation amount as awarded by this court to the petitioner and recover the same from respondent No.2 and issue is answered accordingly. SCCH-17 47 MVC No.1514/2019 ISSUE NO.3:
21. For the foregoing reasons, I proceed to pass the following:
O RDE R The petition filed by the petitioner U/s. 166 of the Motor Vehicles Act is hereby partly allowed with cost.
The petitioner is entitled for total compensation amount of Rs.19,54,000/-
(Rupees Nineteen Lakhs fifty four thousand only) with interest at the rate of 6% p.a., from the date of petition till the realization from respondents.
The amount awarded towards future medical expenses does not carry interest.
The respondents are jointly and severally liable to pay compensation to the petitioner within two months from the date of this judgment.
Further the respondent No.2 is directed to pay the compensation amount awarded to the petitioner and recover the same from the respondent No.1.
SCCH-17 48 MVC No.1514/2019
Out of total compensation awarded to the Petitioner, 50% of the same to be released in favour of petitioner through E-payment on his proper identification and remaining 50% to be kept in Fixed Deposit in any Nationalized or Scheduled Bank, for a period of three years, in his name.
Advocate fee is fixed at 1,500/-.
Draw up award accordingly.
(Dictated to the Stenographer directly on the computer, corrected by me and then pronounced in the open court on this the 4th day of January, 2024) (Kanchi Mayanna Goutam) XIX ADDL.JUDGE, Court of Small Causes, BENGALURU.
ANNEXURE List of witnesses examined for petitioners:
PW.1 C. Vijay Kumar PW.2 Dr. S. Ramachandra
List of documents marked on behalf of the petitioners:
Ex.P1 : FIR and complaint
Ex.P2 : Spot mahazar
Ex.P3 : IMV report
Ex.P4 : Wound certificate
Ex.P5 : Charge sheet
Ex.P6 : Notarised copy of Aadhaar card
Ex.P7 : Notarised copy of PAN card
Ex.P8 : 8 Discharge summary
SCCH-17 49 MVC No.1514/2019
Ex.P9 : 51 Medical bills
Ex.P10 : 33 Prescriptions
Ex.P11 : Lab report
Ex.P12 : Outpatient record
Ex.P13 : X-ray
Ex.P14 : Quotation of artificial limb
List of witnesses examined for Respondents:
RW.1 Gourish Bhat RW.2 K. Murugan
List of documents marked on behalf of the Respondents :
Ex.R1 Insurance policy
Ex.R2 Notarised copy of driving licence
Ex.R3 Driving licence
XIX ADDL.JUDGE
Court of Small Causes & MACT.,
Bengaluru.