Bangalore District Court
Mr.Sanjeevan Kumar vs M/S Shriram Gic Ltd on 2 April, 2018
BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL & V
ADDL. JUDGE SCCH-20, Mayo Hall Unit, Bengaluru.
Dated this the 2nd day of April, 2018
Present: Smt. A.G.SHILPA, B.A., LL.B.,
V Addl. Small Causes Judge &
XXIV A.C.M.M., Member, M.A.C.T.,
Bengaluru.
MVC. No.614/2017
PETITIONER: Mr.Sanjeevan Kumar
S/o S.N.Singh
Aged about 21 years,
R/at AT.Nashriganj, New Mithila colony
Mushari School behind H.No.231,
Danapur, Patna,
Presently residing at C/o Pradeep Kumar,
Hirandahally, vironagar Post,
Bidarahalli hobli, Bangalore District,
(By Pleader Sri.T.Manjunath.)
-V/s-
RESPONDENT: 1.M/s Shriram GIC Ltd.,
Motor Claims Hub, No.5/4, 3rd floor,
S.V.Arcade, Bilekehalli, IIM post,
Bannerghatta Road,
Bangalore - 560076
2.Mr.Murugan.E,
S/o Elemathe,
New No.1/124, Erikari ST
Sendur, Tindivanam (TK)
Villupuram - 604302, Tamil Nadu
(R1 by pleader Kiran Pujar,
R2-Exparte)
SCCH-20 2 MVC No.614/2017
JUDGMENT
The Petitioner has filed this petition U/sec.166 of M.V.Act, 1989 claiming compensation for the injuries sustained by his in a road traffic accident.
2. The brief facts of the Petitioner case are as follows:
It is the case of the petitioner that on 15.08.2016 at about 01.00 PM, when the petitioner was riding motor cycle bearing No.AP-11-AG-2433 on Medahalli way bridge, medahalli service road, Bidarahalli hobli, Bangalore district at that time, a Crane bearing No.KA-51-MA-4281 came in a rash or negligent manner so as to endangering to human life, without following any traffic rules and dashed against to the petitioner motor cycle, as a result, the petitioner fell down and sustained grievous injuries.
Immediately after the accident, he was shifted to sathya Sai Orthopaedic and Multi Speciality Hospital and admitted as an inpatient. The petitioner sustained fracture of shaft of right femur and he underwent surgery for right femur and internal fixation was done. The petitioner spent Rs.2,00,000/- towards hospital, medicine, nourishment and conveyance charges.
SCCH-20 3 MVC No.614/2017Prior to the accident, he was hale and healthy and aged about 21 years and he was studying in 1st year MBA at East Point college, due to the injuries he is not able to attend his classes hence, lost his academic. He underwent mental agony, hardship and financial difficulties.
The Avalahalli Traffic police have registered case against the driver of Crane bearing No.KA-51-MA-4281 in Cr.No.260/2016 U/s 279, 338 of IPC. Hence, prayed to allow this petition.
In pursuance of the claim petition, this court issued notice to respondent No.1 and 2. The respondent No.2 is placed exparte. The respondent No.1 has appeared through pleader and filed written statement.
3. Brief averments of the written statement are as follows:
The 1st respondent admitted for having issued policy bearing No.10003/31/17/158956 in favour of the 2nd respondent insuring the driver of Crane bearing No.KA-51-MA- 4281 for the period 27.06.2016 to 26.06.2017. The respondent has denied all other averments made in the petition. It is stated that in the event that an award is passed against the respondent their liability to indemnify their insured is subjected to the terms and conditions of the policy and under the SCCH-20 4 MVC No.614/2017 provision of Motor Vehicles Act. It is defence that the liability to indemnify the insured subject to holding valid and effective driving license by the rider. Further it is admitted that the petitioner is required to declare that he did not file any other petitions claim for compensation on the same cause of action before any other tribunal, in case of such petitions are pending, she ought to give an undertaking that he shall withdraw all other cases claiming for the same relief. Further submitted that in the event of this court has inclined to allow the above petition and award interest may be restricted to 6% pa., Therefore, the 2nd respondent in the above case prayed to dismiss claim petition.
4. On basis of the Pleadings and materials and materials, my Predecessor has framed the following:
ISSUES
1. Whether the petitioners prove that on 15-08-2016 at about 01.00 p.m. when the petitioner was riding a motor cycle bearing Regn No.AP-11 AG-2433, Proceeding on Medahalli Way Bridge, Medahalli Service Road, Bidarahalli Hobli, Bangalore, at that time, Crane bearing No.KA-51-MA-4281 came in a rash and negligent manner so as to endanger to human life and dashed against the petitioner motor cycle. Due to the forced impact, he fell down and sustained several grievous injuries?
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3. What order or award?SCCH-20 5 MVC No.614/2017
5. In order to prove their case, the Petitioner got examined himself as P.W.1 and got marked documents as Ex.P.1 to Ex.P.9 and closed his side. The Respondent No.1 got examined two witnesses as RW-1 and 2 and got marked documents as Ex.R1 to Ex.R4.
6. Heard the arguments of both side and perused the records.
7. My findings on the above issues are as follows:
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative
Issue No.3 : As per final order
for the following:
REASONS
8. ISSUE No.1: The PW-1 has filed evidence affidavit reiterating the petition averments and narrated, how he met road traffic accident on 15.08.2016 at about 01.00 pm., on Medehalli service road, Bidrahally, Bangalore district. It is the case that on said date, time and place he was riding motor cycle bearing No.AP-11-AG-2433 cautiously the Crane bearing No.KA-51-MA-4281 came in a rash or negligent manner so as to endanger to human life and dashed against the motor cycle, as a result he fell down and sustained grievous injuries. To substantiate the same he produced FIR Ex.P1 FIR and Ex.P2 first information statement. The avalahally police have SCCH-20 6 MVC No.614/2017 registered FIR in Cri.260/2016 against the driver of Crane bearing No.KA-51-MA-4281 for committing an offence punishable U/sec., 279 & 338 of IPC on the basis of First Information Statement of PW1 himself. However, it is settled law that evidence in Motor cycle cases must be assessed independently from Criminal proceedings. Thus, prudence require corroboration.
9. The FIR was registered immediately after the accident while PW-1 was under treatment at hospital. the Ex.P3 spot mahazar and Ex.P4 IMV report corroborates the place of accident and good mechanical condition of both vehicles. AS per Ex.P5 PW-1 was carried to hospital with history of road traffic accident, while he traveled on two wheeler and hit by Crane bearing No.KA-51-M-4281, the IO after completing investigation filed charge sheet against the driver of Crane Mr.Mohahamed Kadar ansari for committing an offence punishable U/s 279, 338 of IPC. As per IMV inspection there was middle damage to the motor cycle and no damages were found to crane is being a heavy vehicle. When tested the vehicles its brake system was in order. The accident occurred was not due to any mechanical defects of above said vehicles, Therefore, the driver of crane did not have sufficient cause to cause accident to the PW-1 motor cycle. Even otherwise the respondent No.2 who is owner of Crane bearing No.KA-01-MA - 4281 is placed exparte. The driver of crane Mr.Mohammed SCCH-20 7 MVC No.614/2017 Ansari is not examined to explain what exactly happened at the place of accident. Therefore, an adverese inference can be drawn against them. Even otherwise, respondent No.2 by not filing written statement has impliedly admitted the allegations made in the petition. Nothing material is elicited of cross examination to attribute contributory negligence on PW-1. The oral evidence coupled with documentary evidence clearly indicate an act of rash or negligence on part of the driver of crane. Therefore, I answer issue No.1 in affirmative.
10. Issue No.2: Now in respect to the quantum of compensation is concerned, the PW-1 is studying 1st year MBA at East point college and he assert that he was unable to attend class as and hence he lost his academic. To substantiate the same he did not produce academic documents such as college admission certificate or academic certificate. Therefore, there is no cogent evidence in respect to his studying 1st MBA. However, his driving license Ex.P9 goes to show his date of birth is 06.05.1995 as on the date of accident and he was 21 years old.
11. The PW-1 deposed that he suffered fracture of shaft of right femur and underwent surgery and internal fixation. To substantiate the same he has produced discharge summary Ex.P7 and according to it, PW-1 was diagnosed to have fracture shaft of right femur, IM Nailing done for fracture of right femur shaft under SA on 16.08.2016 and he was fossilized as an SCCH-20 8 MVC No.614/2017 inpatient for a period of 3 days and thereafter he was discharged in stable condition. Due to injuries PW-1 must have certainly suffered acute pain and discomfort, at least for a period of 2 months while in bed rest. Therefore, he must be granted compensation under the head of pain and sufferings and loss of amenities as Rs.75,000/- and Rs.20,000/- respectively. As per Ex.P8 inpatient bill PW-1 has spent total sum of Rs.68,000/-, the same is found genuine and it can be granted under medical expenses.
12. Under the above facts and circumstances of the case, I am of the opinion that the petitioner is entitled for compensation under the following heads:
1. Pain and sufferings Rs.75,000/-
2 Medical expenses Rs.68,000/-
3 Nourishment and attendant Rs.10,000/-
charges 4 Conveyance allowance Rs.10,000/-
5 Loss of amenities Rs.20,000/-
Total Rs.1,83,000/-
13. Interest:
Hon'ble Supreme Court in Civil Appeal No.3238/2015 (arising out of SLP (C) 1865/2014 (Chanderi Devi and Anr., Vs. Jaspalsingh & Ors.,) and 2013 AIR SCW 5375 (Minu Rout & Ors vs Sathya Pradyumna Mohapatra & Ors), (2011) 4 SCC SCCH-20 9 MVC No.614/2017 481: (AIR 2012 SC 100) (Muncipal council of Delhi Vs Association of Victims of Uphaar Tragidy and Hon'ble High Court in MFA No.2326/2016 (Annapurna & Ors., G.Ashawathraya & Anr.,) have held that rate of interest shall be @9% p.a., from the date of application till the date of payment.
Hence, I hold that the petitioner is entitled for interest @9% p.a., from the date of petition till the date of payment. In view of settled rate of interest, 9% is justified and not on higher side. Accordingly the petitioner is entitled to interest @ 9% pa., Liability
14. The RW-1 has contended that the driver of Crane bearing No.KA-51-M-4281 was not holding valid and effective driving license as on the date of accident and he does not possess transport specific endorsement to drive crane vehicle and the respondent No.2 willfully entrusted the driver with vehicle and thereby violated the provisions of M.V.Act and committed breach of terms and conditions of the policy. Hence, respondent No.1 is not liable to pay compensation to the petitioner. Ex.R1 is extract of DL of Mr.Mohammed Kadir Ankara. The RW-1 has admitted issuance of policy of the crane vehicle, but his contention of petitioner that as per Ex.R1 driver was charge sheet to drive both LMV and TV crane against under clauses of transport and LMV.
SCCH-20 10 MVC No.614/201715. The RW-2 is superintend, RTO KR.Puram. He has produced extract of DL of Mr.Mohammed Kadir. At his office Mr.Ansari made request for change of address on 04.12.2015 and on 15.08.2016, if driver was driving a crane vehicle, according to RW-2 there is no specific endorsement in Ex.R4. The office did not issue special endorsement for driving Mohammed Ansari. The RW-2 in cross examination by learned counsel for petitioner contention is that witness neither ARTO or RTO is not aware of Maharastra transportation Vehicle Act and the vehicle are bifurcated as transport and not transport and under the act the crane vehicle is non-transport vehicle. In view of petitioner contention that RW-2 is not ARTO or RTO and evidence in that respect is inadmissible and he appeared for his production of documents alone and not in respect to give opinion as expert on the class of vehicles. It is for respondent No.2 to prove that crane though having two functions one is driving and another is operating of crane vehicle can be drove from one place to another place with same transport DL and there is no necessity for special endorsement for crane for DL. Now, the question is for consideration is whether crane as HMV or LMV. Referred decision 2002 SCC OnLine Guj 416 : (2002) 256 ITR 50 :
(2002) 174 CTR 324 J2 (Gujco Carriers Vs Commissioner of Income-Tax)
22. The word "crane" when used for an inanimate object means a machine for moving heavy objects usually by suspending them from a projecting arm or beam. Crane is any of a diverse group of machines that not only lift heavy objects but also shift them horizontally. Movable cranes are mounted on railway cars, motor trucks or chassis equipped with caterpillar treads and the hoisting machinery is mounted so as to counterpoise part of the load on the SCCH-20 11 MVC No.614/2017 boom and thereby, preventing the entire crane from overturning while carrying the load. The fork lift truck; widely used for moving goods between warehouse storages and shipping vehicles, "is a highly manoeuvrable crane adaptable to handling drums, crates, or loaded skids or pallets."
23. Thus, a "fork lift truck" is also a type of crane. The expression "truck crane" is well known in the' truck industry. "The truck crane is a unit consisting of a crane house and boom mounted on a truck chassis... Originally assembled by contractors from crawler cranes and truck parts, the truck crane for years had been manufactured and sold as a unit. Although the truck crane is difficult to move on soft or slippery ground, it is highly mobile on a firm footing and is easily moved over roads and highways,
24. A crane is usually typed according to its undercarriage. Some of the cranes whose undercarriage is not a truck are, "crawler cranes" mounted on continuous tracks, the "rail or locomotive crane" on special chassis with flanged wheels for use on railway tracks and "floating crane" on a barge or scow. Therefore, the search for the item "cranes" in the entries in Appendix I without keeping in mind the nature of equipment, was based on an erroneous premise. A crane mounted on a truck is a truck crane which is a well known machinery which can easily move over roads and highways and is not a stationary equipment.
25. Truck crane is described under the heading "Crane" in Encyclopaedia Britannica, as under:
"A commonly used type of small movable crane is the truck crane, which is a crane mounted on a heavy, modified truck. Such cranes frequently use unsupported telescoping booms; these are made up of collapsible sections that can be extended outward like the sections of an old nautical telescope or spyglass. The extension of the boom is usually managed hydraulically. Truck cranes make up in mobility and ease of transport what they lack in hoisting capacity."
26. Thus, a mobile crane mounted on a truck constitutes a single unit known as a "truck crane" which is adapted for use upon roads for special services. The truck on which the crane is mounted is constructed and adapted specially to carry the crane.
SCCH-20 12 MVC No.614/201727. "Goods carriage" as defined in section 2(14) of the Motor Vehicles Act, 1988, means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods. This definition is not confined only to carriage of freight which is narrower than the expression "carriage of goods". In the instant case, the truck is adapted for use solely for carriage of the crane mounted on it. The mounted crane is attached to the truck which carries it. The test of carrying goods such as potatoes and tomatoes that require loading and unloading in the context of carriage of freight when transported, as was suggested on behalf of the Revenue, will not be decisive. Unloading, in the context of truck crane where the crane remains mounted and attached to the truck when carried and even at the destination where it is put to use is not a relevant factor at all. Though not required to be loaded or unloaded like other goods transported in carriage of freight, the crane remains fixed, mounted on the truck which has been adapted for use solely for its carriage and such truck crane is used for special service of lifting and moving heavy objects. This is why such a mobile crane is registered as a heavy motor vehicle which is a heavy goods vehicle as defined in section 2(16) of the Motor Vehicles Act.
28. The approach of the Tribunal and the authorities below it that cranes are not mentioned specifically as an independent item falling in the categories for which higher depreciation allowance at the rate of 40 per cent, when used for hire and at 30 per cent, when not so used has been provided as against 10 per cent, of machinery in general, and therefore, they should be treated as falling in the general category of machinery, is an over- simplification of the matter. The approach of the Tribunal that the plea taken by the assessee that crane was an integral part of the motor vehicle on which it is mounted required ascertainment of facts and fresh investigation, amounts to imposing a burden on a person to prove something of which a court or Tribunal can take judicial notice. For example, if a witness deposes that he had seen a horse, the court need not insist upon him for a proof of the anatomy of a horse and can take a judicial notice of the horse as an animal. The courts and Tribunals are not required to act dumb SCCH-20 13 MVC No.614/2017 or ignorant of the facts of which judicial notice can be taken. Thus, just as a court can presume what a horse is, it can as well know what a crane is, and also that crane is an integral part of a truck- crane which is registered as a heavy motor vehicle. Lack of effort and knowledge sufficient for taking such judicial notice should not be a burden on the citizens in judicial proceedings. As provided by section 56 of the Evidence Act, no fact of which the court will take judicial notice, need be proved. This equally applies to the Tribunals which are not in fact strictly bound by the rules of evidence. The mobile crane of the assessee which admittedly was registered as a heavy motor vehicle, would, for the above reasons, clearly fall within the expression "motor lorries" (which means motor trucks) in entry No. IIIE(IA) of the Table in Appendix I under rule 5 of the said rules, since it was used by the assessee in its business of running the crane on hire.
29. We, therefore, hold that the Tribunal was not right in holding that the assessee was not entitled to depreciation at the rate of 40 per cent, on crane mounted on motor truck. The question referred to us is, therefore, answered in the negative, in favour of the assessee and against the Revenue. The reference stands disposed of accordingly with no order as to costs".
16. 996 SCC OnLine Kar 590 : ILR 1997 KAR 143 : (1997) 7 Kant LJ 183 : 1998 AIHC 254 J1 (M/s Evershine Granites Vs Dy. Commr. for Transport, Bangalore Div. & Anr.)* (A) MOTOR VEHICLES ACT, 1939 (Central Act 4 of 1939) Section 2(28) -- cranes used for loading & unloading goods, are motor vehicles under.
(B) KARNATAKA MOTOR VEHICLES TAXATION ACT, 1957 (Karnataka Act No. 35 of 1957) Section 3 -- cranes suitable for use on roads, held, are liable to taxed under Part-A of schedule.
(C) KARNATAKA MOTOR VEHICLES TAXATION ACT, 1957 (Karnataka Act No. 35 of 1957) Section 3 -- Authority taxing cranes under item No. 3(0) of Part-A on grounds of laden weight, capable of moving on Roads & also as "heavy motor vehicle" -- held, no finding as "goods vehicle" nor notified by Central Government as a SCCH-20 14 MVC No.614/2017 particular vehicle, but they come under residuary item No. 16.
Held :
It is for the reasons that for being placed in the catagory of "heavy goods vehicle" it must first be shown that it is a 'goods vehicle' within the meaning of Clause (8) of Section 2 of 1939 Central Act.... Further, so far as reference to Section 41(4) of the Central Act 1988 is concerned, the vehicles are required to be specified thereunder as falling under a particular type as notified by the Central Government for the purposes of registration of vehicles and as such description of the type of the vehicle is of no consequence for determining the rate of tax applicable to such vehicle under the provisions of the Taxation Act. For the foregoing reasons, in my opinion, keeping in view the materials on record and findings of the respondent authorities, the cranes owned by the petitioners can be subjected to tax only under the residuary item No. 16 of Part-A of the Schedule to the Taxation Act.
17. The learned counsel for respondent No.1 has relied upon decision of MFA No.23085/2012 C/w MFA No.24405/10 (Sadashiva and others Vs Smt.Dyavakka W/o Balappa pujar) held mobile crane is construction equipment vehicle and non transport vehicle.
18. It is pertinent to note is that in the aforesaid case driver of offending vehicle had valid driving license to drive LMV as well as HTV and tractor and trailer on the date of occurrence of the accident. It was held in para No.12 offending vehicle JCB as special vehicle which necessarily requires special skill for driving, the finding given by the tribunal that JCB is a special SCCH-20 15 MVC No.614/2017 category of vehicle. According to the MVAct and Rules the driver was not authorized to drive JCB can not be found fault with. In such circumstances the appeal filed by the owner of the vehicle being devoid of merit stands dismissed.
19. In this case, crane diesel is heavy motor vehicle (NT). As per Ex.R1 and Ex.R4, the driver was authorized to drive vehicle class : LMV Transport from 12.05.2015 to 11.05.2018 and NT from 18.12.1996 to 17.12.2016. As on the date of accident, 15.08.2016 he did not have valid and effective driving license to drive crane diesel which is heavy motor vehicle (NT). In view of it, the owner i.e., respondent No.2 entrusted the crane diesel vehicle to Mr.Mohammed Ansari without valid and effective DL and thereby caused breach of terms and conditions of the policy. In view of it, the respondent No.1 insurance company is absolved from liability. The petitioner is entitled for compensation of Rs.1,83,000/- with interest @ 9% pa., from the date of petition till realization. The owner is liable to deposit the same within 6 weeks from the date of receipt of Judgment. Therefore, I answer the issue No.2 partly in the affirmative.
20. Issue No.3: After having answered issue No.1 & 2 as supra I hold that, the petition filed by the petitioners is fit to be allowed in Part, in the result, I proceed to pass the following:-
SCCH-20 16 MVC No.614/2017ORDER The claim petition filed under Section 166 of the Motor Vehicles Act is allowed in part with cost as hereunder.
The petitioner is entitled for compensation of Rs.1,83,000/- with interest @ 9% pa., from the date of petition till its realization.
The petition filed by the petitioner against respondent No.1/ insurance company is hereby dismissed.
The respondent No.2/owner shall pay the compensation together with 9% interest within 6 weeks from the date of receipt of judgment, the petitioner is at liberty to withdraw the same.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed by him, corrected by me and then pronounced in open court on this the 2nd day of April 2018) (A.G.SHILPA,) V ASCJ & Member, MACT, Court of Small Causes, Mayo Hall Unit, Bengaluru.SCCH-20 17 MVC No.614/2017
A N N E X U R E:
Witnesses examined for petitioners:
P.W.1 : Sanjeevan Kumar
Documents marked for petitioners:
Ex.P.1 True copy of FIR
Ex.P.2 True copy of FIS
Ex.P.3 True copy of Spot Mahazar
Ex.P.4 True copy of IMV report
Ex.P.5 True copy of wound certificate
Ex.P.6 True copy of Charge sheet
Ex.P.7 True copy of Discharge summary
Ex.P.8 Medical bills
Ex.P.9 Notarized copy of DL
Ex.P.10 Medical prescriptions
Witnesses examined for respondents:
RW-1 Mohan Kumar
RW-2 Sridhar Babu
Documents marked for respondents:
Ex.R1 DL extract
Ex.R2 Policy
Ex.R3 Authorization letter
Ex.R4 DL extract issued by Mumbai RTO
(A.G.SHILPA,)
V ASCJ & Member, MACT,
Court of Small Causes,
Mayo Hall Unit, Bengaluru.