Bangalore District Court
Sri.Salil Lakshman vs United India Insurance Company on 23 December, 2021
BEFORE THE COURT OF XXIV ADDITIONAL SMALL
CAUSES JUDGE AND THE MOTOR ACCIDENT CLAIMS
TRIBUNAL & A.C.M.M. (SCCH-26) AT BENGALURU
DATED THIS THE 23rd DECEMBER 2021
PRESENT: SRI.R.MAHESHA. B.A.L.LLB.,
XXIV ADDL. SCJ &
ACMM & MEMBER - MACT
BENGALURU.
M.V.C No.7101/2018
PETITIONER : Sri.Salil Lakshman
S/o Late.K.Lakshman,
Aged about 47 years
Residing at # 201, VBM trends,
8th cross, Celebrity paradise layout,
Doddathogur, Electronic city,
Bengaluru-560 100.
(By Sri.P.P.R. - Adv.,)
V/s
RESPONDENTS : 1. United India Insurance company
Limited, No.40/3, Geetha Mansion,
K.G.road, Bangalore-560 009
(Policy No.1707013118P109093795
valid from 13-10-2018 to 12-10-
2019
(By Sri.J.N.M.-Advocate)
2 2
MVC No.7101/2018
SCCH 26
2. Mr.C.Rathinasamy
S/o Chinnappa Gounder, Major,
# 14, 8th cross, Brindavanam,
Puducherry-605 011.
(Exparte )
****
:: JUDGMENT::
The petition is filed by the Petitioner under Sec.166 of Motor Vehicles Act, 1989 seeking compensation amount of Rs.20,00,000/- for the grievous injuries sustained by him in road traffic accident.
2. The brief facts of the case of the Petitioner is as follows:
That on 15-10-2018 at about 2.00 p.m. when the petitioner was riding his scooter bearing reg.No.KA-51- HD-4460 on Hosur road elevated ply over in a slow and cautious manner, observing traffic rules and regulations coming from north to south direction and when he reached near Infosys company, at that time, a vehicle bus bearing reg.No.PY-01-CN-4799 came in the same direction
3 3 MVC No.7101/2018 SCCH 26 with high speed and in a rash and negligent manner without observing traffic rules and regulations and dashed to the scooter from the backside, due to the terrible impact, the petitioner fell down and sustained grievous injuries all over the body and scooter was also damaged.
3. That immediately after the accident, petitioner was shifted to Sparsh hospital wherein he took treatment for one day and found that he sustained grievous injuries and treated conservatively and discharged on the same day and petitioner is still under treatment and the injuries have caused him permanent disablement.
4. That on the date of accident, petitioner was aged about 32 years and was having his own business doing interior designer and decorator for his livelihood and was earning sum of Rs.30,000/-p.m. and due to accidental injuries, he could not able to do his work till today. That the petitioner spent money towards hospitalization, medical expense, conveyance, nourishment, 4 4 MVC No.7101/2018 SCCH 26 miscellaneous expenses and lost earnings during the period of treatment. Hence petitioner prays to award compensation of Rs.20,00,000/- from the respondents.
5. After service of summons, the respondent No.2- owner of the offending vehicle remained exparte and respondent No.1-insurer of the offending vehicle appeared through counsel and filed written statement.
6. The first respondent has submits that petition is not maintainable against them either in law or on facts of the case. It is contended that the owner of the vehicle has failed to intimate this respondent about the accident. Further contended that the driver of bus was not holding a valid and effective DL as on the date of accident. The Registration certificate of the accused vehicle PSV bus bearing reg no.PY-01-CN-4799 has expired on 13-10-2018 and hence there was no valid FC. Further contended that there is delay in filing complaint. That the accident was 5 5 MVC No.7101/2018 SCCH 26 not caused due to the rash and negligent driving of the bus. That the MLC issued by the first seen hospital indicates the cause of accident as "SKID AND FALL FROM BIKE". That the petitioner was riding his motorcycle without wearing helmet and without a valid and effective DL rode the same on the date of accident. That the liability of this respondent to indemnify the insured in respect of the said policy is as per the statute, terms, limitations and conditions of the policy. That this respondent has issued an Insurance policy in respect of the PVS bus. Hence prays to dismiss the claim petition with costs.
7. Heard arguments of learned counsel for the petitioner and respondent No.1.
8. Learned counsel for respondent No.1 produced judgment of Hon'ble High Court of Karnataka on 22-12-2021 MFA No.201689/2016 (MV) between Mahadevi and another Vs Shivaputra and another DB 6 6 MVC No.7101/2018 SCCH 26 judgment DD 20-11-2020. Wherein Hon'ble High Court of Karnataka held in para 14 of its judgment that-
"experience of the recent past shows that instances of fraudulent/collusive involvement of motor vehicles duly covered by insurance policy in accident cases or burgeoning and if the insurance companies are saddled with the burden of challenging the charge sheets filed throughout the country without there being no clear legal mandate do so, their work would be seriously crippled and they would not be able to do their insurance business without enhancing the premium, thereby further burdening the ever suffering owners of motor vehicles. Even the most liberal reading the provision of the motor vehicles Act 1988 does not spell-out such a requirement".
9. On the basis of the above pleadings, this tribunal has framed the following:
7 7 MVC No.7101/2018 SCCH 26 :: ISSUES ::
1. Whether Petitioner proves that, on 15-10-2018 at about 02.00 p.m., while he was riding his Scooter bearing Reg.No.Ka-51-HD-4460, when he reached on NH-07, Elevated Flyover Road, Near Infosys Company, Bengaluru at that time a driver of the Bus bearing Reg.No.PY-01-CN-4799 driven in a rash and negligent manner and dashed against the scooter, as a result of which petitioner fell down and he sustained grievous injury, as mentioned in claim petition?
2. Whether petitioner is entitle for compensation as prayed in the petition? If so, from which respondent?
3. What order or award?
10. In order to prove the above said issues, Petitioner has been examined as PW-1 and got marked Ex.P.1 to Ex.P.13 documents. Dr.Nagaraj B N., got examined as PW-2 and got marked Ex-P14 and 15.
11. On the otherhand, ASI at HAL Traffic PS by name Raju L as RW.1 and got marked Ex.R.1. The 8 8 MVC No.7101/2018 SCCH 26 respondent No.1 got examined its Legal Manager-Manjula as RW-2 and got marked Ex.R.2 to 4.
12. 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 order for the
following:
REASONS
Issue No.1:
13. In order to prove the actionable negligence, the petitioner himself entered into the witness box and filed his affidavit in lieu of examination-in-chief and got examined as P.W.1. PW-1 reiterates the averments and the allegations made in the claim petition and deposed that, the accident has occurred solely due to the rash and negligent driving of the PSV bus bearing reg.No.PY- 01-CN-4799 by its driver.
9 9 MVC No.7101/2018 SCCH 26
14. The petitioner is also relied upon various copies of police documents which are produced and got marked FIR, complaint, mahazar, sketch, IMV report. The FIR discloses that, registered a case against driver of the bus.
15. On perusal of documents placed by the petitioner i.e., Ex-P1 to 13 it is forthcoming from Ex-P1 that on 16-10-2018 the petitioner himself went to police station and lodged written complaint against the driver of private bus bearing No.PY-01-CN-4799 while lodging this complaint, the petitioner stated in Ex-P2 that on 15-10-2018 at about 2.00 p.m. while he was riding his scooter bearing No.KA-51-HD-4460 on the Hosur road elevated flyover in a slow and cautious manner, observing traffic rules and regulations coming from north to south direction and when he reached near Infosys company, at that time, the above stated bus which was coming in the same direction driven by its 10 10 MVC No.7101/2018 SCCH 26 driver with a high speed in a rash and negligent manner and dashed to his scooter from the backside. Due to the terrible impact, he fell down and sustained grievous injury all over his body and scooter was also got damaged. He further stated in Ex-P2 that -
" £ÀAvÀgÀ ¸ÀzÀj §¸ï£ÀªÀgÉà £À£ÀߣÀÄß ¸ÀàµðÀ D¸ÀàvÉæUÉ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃV zÁR®Ä ªÀiÁrzÀgÀÄ. £À£ÀߣÀÄß ¥ÀjÃQë¹zÀ D¸ÀàvÉæAiÀÄ ªÉÊzÀågÀÄ PÉÊ ªÀÄÆ¼É ªÀÄÄj¢zÀÄÝ D¥ÀgÃÉ µÀ£ï ªÀiÁqÀ¨ÉÃPÉAzÀÄ w½¹zÀgÀÄ. £Á£ÀÄ ¨ÉAUÀ¼ÀÆj£À°è M§â£Éà EzÀÄÝ, £À£ÀߣÀÄßß £ÉÆÃrPÉƼÀî®Ä £À£Àß PÀÄlÄA§¸ÀÞgÀÄ AiÀiÁgÀÆ E°ègÀĪÀÅ¢®è. DzÀÄzÀjAzÀ £Á£ÀÄ ºÉa£Ñ À aQvÉìUÁV £À£Àß ¸ÀéAvÀ HgÁzÀ PÉÃgÀ¼À gÁdåPÉÌ ºÉÆÃUÀÄwÛgÀÄvÉÛãÉ".
16. So as per Ex-P1 and 2, after this accident, the driver of the alleged offending bus driver admitted injured to the Sparsh hospital. The Investigation Officer of this case, after detailed investigation he charge sheeted against driver of the offending bus bearing No.PY-01-CN-4799 u/s 279, 338 IPC and Section 134 B and Section 187 of IMV Act. Further it is relevant to note down particulars of Ex-P6, the IMV inspector while inspecting the involved vehicles he clearly note down 11 11 MVC No.7101/2018 SCCH 26 the damages caused to bus bearing No.PY-01-CN-4799 i.e., scratch mark found on front left side corner shape and body and he note down damages to the motor cycle bearing No.KA-51-HD-4460 i.e., break light damage, right side body damaged, right side foot rest damaged, right side rear view mirror damaged. Further in support of petitioner contentions, the Sparsh hospital issued Ex-P7 and stating that the petitioner got admitted this hospital on 15-10-2018 at about 3.45 p.m. due to accident and they note down injuries i.e., right distal radins fracture and it is grievous in nature and they issued discharge summary on 15-10-2018 at about 4.00 p.m. at the request of petitioner. On perusal of Ex-P8 it is forthcoming that the doctor of Sparsh hospital advised for admission for surgery but patient not willing for further management and patient discharged against medical advice.
12 12 MVC No.7101/2018 SCCH 26
17. The respondent No.1 mainly took his defence in this case that the driver of PSV bus bearing No.PY-01- CN-4799 at the time of alleged accident was not holding a valid driving licence to drive the vehicle, the owner of the vehicle knowingly, willfully entrusted his vehicle to such person to drive, who had no licence to drive for particular clause and type of vehicle at the time of accident. Therefore the respondent No.2 gross violation of terms and conditions of policy. Therefore the respondent No.1 is not liable to indemnify the owner towards the claim of the petitioner. Further the specific defence of the respondent No.1 that on the date of accident, the permit was not valid to ply on the route/place of alleged accident and registration certificate of vehicle PSV bus bearing No.PY-01-CN- 4799 has expired on 13-10-2018. Therefore gross violation of provision of MV Act and policy conditions. Further the specific defence of the respondent No.1 that 13 13 MVC No.7101/2018 SCCH 26 the PSV bus bearing No.PY-01-CN-4799 is not at all involved in the accident, the petitioner, in collusion with jurisdictional police and the owner of the vehicle has fixed the insured vehicle for unlawful gain. The alleged accident took place only due to the carelessness of petitioner, who unable to control the speed of the vehicle as fallen from the bike. The negligence of driver of the bike is 100%. Therefore apportion the compensation against petitioner and driver of the bus.
18. In order to prove their contentions, the respondent No.1 company examined its official as RW-2 and she produced Ex-R2 to 4. Ex-R2 authorization letter given by first respondent company. Ex-R3 was office copy of the letter dt.4-2-2019 and Ex-R4 attested copy of the policy of vehicle bearing No.PY-01-CN-4799. On perusal of Ex-R3, it is indicates that on 4-2-2019, the first respondent company issued notice through RPAD to the registered owner of offending bus and 14 14 MVC No.7101/2018 SCCH 26 requested to produce 5 documents as stated in Ex-R3. The respondent No.1 company had not produced registered post cover whether it is served on respondent No.2 or not. Therefore it is not forthcoming the notice issued by respondent No.1 was served on respondent No.2 or not. On perusal of Ex-R4, the policy was in force from 13-10-2018 to mid night of 12-10-2019. The present accident occurred as alleged in Ex-P1 and 2 on 15-10-2018. So as per Ex-R4, the respondent No.1 issued policy in favour of respondent No.2. Further respondent No.1 called investigation officer and examined him as RW-1, he deposed before this tribunal that on 24-10-2018 he took this case file from HC-7362 and he started investigation on 16-10-2018 he visited Sparsha hospital and get police intimation and wound certificate of petitioner. He did not collected MLC record. Further he deposed that he recorded statement of eye witnesses. Further he deposed he did not 15 15 MVC No.7101/2018 SCCH 26 collected documents of alleged offending bus and not issued notice u/s 133 of IMV Act, because the said vehicle registered in Pandicheri state. The respondent No.1 counsel during chief examination they sought permission of this tribunal to treated this witness as hostile and sought permission to cross examination. In view of the submission of respondent No.1, this tribunal accorded permission during course of cross examination by respondent No.1, they produced one document which belongs to Sparsh hospital, the said witness seen the document and admitted it is a MLC document of this accident. Therefore the said document marked through Ex-R1 as RW-1. The respondent No.1 counsel suggested in Ex-R1 written as "skid and fall", but being investigation officer, he did not aware of this. Further RW-1 clearly denied the suggestion of respondent No.1 during course of cross examination by respondent No.1 he did not verify the documents of 16 16 MVC No.7101/2018 SCCH 26 offending bus and filed this charge sheet against offending bus driver. Further during course of cross examination by petitioner counsel, RW-1 stated that the information furnished in Ex-R1 may somebody given to hospital authority. "On perusal of entire court record, it is found in the file that the Sparsh hospital issued police intimation on 15-10-2018 at about 3.45 p.m. to SI, Hebbagodi P.S. police intimation No.014, they stated Mr.Sali Lakshman bearing hospital reg.No.159327, aged about 45 years, residing at No.108, Breez country apartment, celebrity layout, Bangalore has been registered in the with an alleged history of RTA two wheeler Vs bus on 15-10-2018 at about 3.00p.m. in place E city flyover. The patient status at the time of this intimation conscious. He discharge against to medical advice. The said RW-1 received from the hospital on 16-10-2018", but this document was not marked through RW-1, but any how 17 17 MVC No.7101/2018 SCCH 26 it is in file. RW-1 during chief examination he clearly deposed he received wound certificate and police intimation. The respondent No.1 produced Ex-R1 it is totally contrary to the case of petitioner as well as police documents. Even the hospital authorities issued police intimation to jurisdictional police they recorded in MLC register as skid and fall. Ex-R1 totally contrary to the police intimation issued by hospital authority. Therefore Ex-R1 is not admissible document. Learned respondent No.1 counsel on 22-12-2021 by placing reliance and decision of our Hon'ble High Court of Karnataka in case between MFA No.201689/2016 (MV) between Mahadevi and another Vs Shivaputra and another DB judgment DD 20-11-2020 and vehemently argued that the present petitioner get injuries due to his own negligence i.e., skid and fall. The hospital authority clearly recorded MLC the insured car was fixed for the purpose of getting compensation.
18 18 MVC No.7101/2018 SCCH 26 Therefore respondent No.1 counsel stressed in her argument the petition may be dismissed with exemplary cost. I have perused the ratio laid down in the above decision, the facts of above decision are quite differ from the facts and circumstances of the present case on hand. Hence the ratio laid down in above decision is not amply applicable to the facts and circumstances of the case on hand. In the instant case there is a police intimation by the hospital authority, they clearly note down regarding this accident occurred between two wheeler and car, but due to over sight the said document was not marked before this tribunal. This tribunal already came to conclusion as stated supra. The MLC recorded by giving information from public. The hospital authorities clearly intimated in their intimation to the jurisdictional police station. Therefore the decision relied by respondent No.1 is not helpful to the facts and circumstances of this case.
19 19 MVC No.7101/2018 SCCH 26
19. On perusal of entire police record and petitioner evidence, it is disclose that on 15-10-2018 at about 2.00 p.m. the petitioner was moving in his motor cycle on the Hosur road, the offending bus came speed in a rash and negligent manner dashed against petitioner scooter from the backside. Therefore he fell down and sustained injuries. The police documents cannot challenged by the respondent No.1 before higher authority. Moreover they not placed any believable document before this tribunal the offending bus not at all involved in the accident and the driver of the offending bus drove very cautious and slowly with following traffic rules. Therefore the respondent No.1 failed in proving contention took in his written statement. The petitioner produced Ex-P1 i.e., DL he had motor cycle with gear DL from 15-5-2009 and light motor vehicle DL took on 26-8-2015. The investigation officer charge sheeted against offending bus driver 20 20 MVC No.7101/2018 SCCH 26 alleged to be committed offence u/s 279, 337 of IPC and section 134B and 187 of IMV Act. The police document and IMV report clearly shows that accident occurred due to rash and negligent driving of driver of offending bus bearing No.PY-01-CN-4799 but not any mechanical defect. Discharge summary and wound certificate were disclose that injured/petitioner was get treatment in Sparsh hospital on 15-10-2015 and discharged same day against to medical advice.
20. Besides it is well settled that in motor vehicles claim compensation cases, the strict proof of negligence is not required. For the foregoing reasons this tribunal has no doubt in mind to conclude that the accident in question had taken place because of the actionable negligence of the driver of offending vehicle from the documents produced by the petitioner easily concluded that there was a road accident and petitioner sustained injury. The said road accident taken place because of 21 21 MVC No.7101/2018 SCCH 26 exclusive negligence of driver of offending bus bearing No.PY-01-CN-4799. With this, I answer issue No.1 in Affirmative.
21. Issue No.2:-
As discussed in connection with issue No.1, since the petitioner has proved that he had sustained injuries in road traffic accident as contended, no doubt, he is entitle for just and fair compensation. Now the question would arise for consideration are for how much compensation the petitioner is entitled and from whom ?.
22. Pain and suffering:-
It is stated in the petition as well as in the evidence that, immediately after the accident, petitioner was shifted to Sparsha hospital, Bommasandra, after first aid petitioner discharged from Sparsha hospital against to medical advice and he stated in Ex-P2 he reside in Bangalore alone without his family. Therefore he went 22 22 MVC No.7101/2018 SCCH 26 to his native place i.e., Kerala for further treatment.
The Sparsha hospital issued discharge certificate and wound certificate he had right distal radins fracture and it is grievous in nature. Thus taking into consideration of the gravity of the injuries sustained by the petitioner and treatment taken, I am of the opinion that, the petitioner has suffered pain due to the accidental injuries. Taking all these facts into consideration, I am of the opinion that, the petitioner is entitled for a sum of Rs.5,000/- towards Pain and suffering.
23. Medical Expenses:-
The petitioner has produced four medical bills for Rs.4,286/-. Taking into consideration of the nature of the injuries and the treatment as inpatient in the hospital and considering actual medical bills, I am of the opinion that, the petitioner is entitled for a sum of 23 23 MVC No.7101/2018 SCCH 26 Rs.4,286/- which is awarded towards Medical Expenses.
24. Food and nourishment, Conveyance and Attendant charges:-
The petitioner stated in the petition and it is forthcoming during cross examination, after this accident, he immediately went to Sparsha hospital, Bommasandra and took first aid and discharged immediately against to medical advice and he went to further treatment to his native place i.e., Keral, but petitioner did not produced any document to show he took conservative treatment in Kerala. Therefore he is not entitle under this head. Therefore this tribunal declined to grant any compensation under this head.
25. Loss of income during the period of treatment:-
The case of the petitioner is that, at the time of accident he was aged about 32 years and he having his
24 24 MVC No.7101/2018 SCCH 26 own business doing interior designer and decorator for his livelihood and was earning sum of Rs.30,000/-p.m. Due to the injuries sustained in the accident, the petitioner could not able to do his work till today. To prove his avocation he produced Ex-P11 and 12. Ex- P11 is industrial training institute certificate issued by Govt., of Kerala he completed training from August 1987 to 1989 and he scored well. Ex-P12 is a certificate issued by Microchip computer centre and petitioner has completed diploma in autocad on 20-04- 1998. Except this, no document placed by petitioner to prove his avocation and his income as pleaded in the petition. It is questioned during cross of PW-1 he admitted that -
£ÀÁ£ÀÄ EAnÃjAiÀÄgï qÉPÉÆgÉÃlgï DV f J¸ïn jf¸ÉæÖõÀ£ï ªÀiÁrPÉÆArzÉÝÃ£É CzÀPÉÌ ¸ÀA§AzÀ¥l À Ö zÁR¯ÉAiÀÄ£ÀÄß £ÁåAiÀiÁ®AiÀÄPÉÌ ºÁdgÀÄ ¥Àr¹®è. £À£UÀ É wAUÀ½UÉ 30000 DzÁAiÀÄ EzÉ JAzÀÄ vÉÄÁÃj¸ÀĪÀ zÁR¯ÉAiÀÄ£ÀÄß £ÁåAiÀiÁ®AiÀÄPÉÌ PÉÆnÖ®è. £Á£ÀÄ 6 wAUÀ¼ÀÄUÀ¼À PÁ® PÉ®¸À ªÀiÁr®è JAzÀÄ vÉÆÃj¸ÀĪÀ zÁR¯ÉAiÀÄ£ÀÄß £ÁåAiÀiÁ®AiÀÄPÉÌ PÉÆnÖ®è.
25 25 MVC No.7101/2018 SCCH 26
26. So this admission the petitioner has not produced any document to show he was working as a interior decorator and he getting income of Rs.30,000/-p.m. and he got rest without any income for a period of six months, he has not placed any documents. Therefore under this circumstances, petitioner is not entitle for any compensation under this head. Therefore this tribunal declined to grant any compensation under this head.
27. Loss of Future earnings:-
The petitioner has stated that he was 32 years and he having his own business doing interior designer and decorator for his livelihood and was earning sum of Rs.30,000/-p.m. The petitioner has produced Ex-P11 and
12. The petitioner has examined one Dr.Nagaraju B.N. an orthopaedic surgeon and medico legal consultant at Sparsh hospital. He deposed that on 15-10-2018 the petitioner came to his hospital with an alleged history of RTA the patient was examined clinically, radiologically and investigated diagnosed to have right distal radius 26 26 MVC No.7101/2018 SCCH 26 fracture. They conducted conservatively with POP cast and discharged the petitioner was on regular followup and the fracture united, he assessed physical disability of the petitioner on 2-4-2021. The patient still having complains of weakness and pain in the right wrist, unable to lift weight, unable to work on computer for long time and he totally having wholebody physical disability of 11% and petitioner having disability of right arm 32% and he produced latest clinical note and x-ray report. This doctor being subjected for cross examination by respondent No.1 he deposed during cross examination that he was one of the treated doctor in team, he treated injured conservatively and he admitted fractures are completely united, he treated petitioner in OPD. The petitioner took healing of his injury within two months, he conducted physical disability assessment after lapse of 2 ½ years from the date of accident, he did not produced followup treatment document of petitioner and denied other formal 27 27 MVC No.7101/2018 SCCH 26 suggestions of respondent No.1. On perusal of evidence of PW-2 he contended that he was a one of the treated doctors team, but he did not produced any followup documents of OPD. He produced only recent x-ray copy and clinical note i.e., Ex-P14 and 15. After 2 ½ years he assessed total body disability of 11% and right arm disability of 32%, he did not assigned reasons for restriction and disability. So it is appears that the disability assessed by petitioner is in higher side. It is forthcoming from police records and petitioner own documents he admitted Sparsh hospital on 15-10-2018 and he took first aid and they diagnosed right distal radians fracture, but he not willing for further management. Therefore he discharged immediately on 15-10-2018 at about 4.00 p.m. against to medical advice.
The petitioner did not produced further medical treatment took in which hospital, nothing has been placed. Therefore except Ex-P7 and 8 and doctor evidence, it cannot be 28 28 MVC No.7101/2018 SCCH 26 accepted the petitioner took conservative treatment and he having disability of 11% to wholebody. Therefore this tribunal declined to accept evidence of PW-2 and not grant any compensation under this head.
28. Loss of Amenities of Life due to disability:-
The injuries sustained by the petitioner shows that he must have sustained pain and suffering. The accident has put him into a discomfort and he has lost the amenities of life to some extent. Taking all these facts into consideration, the petitioner is entitled for a compensation of Rs.5,000/- towards Loss of Amenities of Life due to disability.
29. Thus, I am of the considered opinion that, the petitioner is entitled for the compensation under the following heads :
1 Pain and suffering. : Rs. 5,000=00 2 Medical Expenses : Rs. 4,286=00 3 Loss of amenities of life due to : Rs. 5,000=00 disability.
Total Rs. 14,286=00
29 29
MVC No.7101/2018
SCCH 26
The said total amount of Rs.14,286/- is rounded off to Rs.15,000/-. So, the petitioner in this case is entitled for the compensation of Rs.15,000/-.
30. As far as awarding of interest on the compensation amount is concerned, in a recent decision reported in 2018 ACJ 1300 between Mangla Ram V/s. Oriental Insurance Co., Ltd., and others (in CA Nos.2499 of 2018 arising out of SLP(C) Nos.28141-42 of 2017 decided on 06.04.2018) wherein the Hon'ble Supreme Court with regard to interest at the rate of 9% p.a. on the compensation amount, in para No.28 of the judgment held that, 'The appellant would also be entitled to interest on the total amount of compensation at the rate of 9 per cent per annum on the compensation from the date of filing of the claim petition till date of realization" and also by following the principles laid down in (2018) ACJ 1020 in between ICICI Lombard General Insurance Co., Ltd., V/s. Ajay Kumar Mohanty 30 30 MVC No.7101/2018 SCCH 26 and another decided on 6.3.2018 (in CA Nos.7181 of 2015 and 1879 of 2016) at para No.1 and 12 Hon'ble Supreme Court held that: "Quantum-Interest-Tribunal allowed interest at the rate of 7.5 per cent which was reduced by High Court to 7 per cent-Apex Court allowed interest at 9 per cent per annum from the date of filing of claim application". In view of the above judgments with regard to the rate of interest and also it is settled principles of law that, while awarding interest on the compensation amount, the Court has to take into account the rate of interest on the Nationalized Bank and the rate of interest at the rate of 9% p.a. cannot said to be on the higher side. Accordingly, the Petitioner is entitled to interest at the rate of 9% p.a.
31. LIABILITY:-
The first respondent contended that driver of the bus bearing No.PY-01-CN-4799 was not holding a valid and effective driving licence to drive for particular class and 31 31 MVC No.7101/2018 SCCH 26 type of vehicle at the time of accident. The police have chargesheeted against the driver of offending bus U/s 279, 338 and Section 134A and B r/w sec.187 of IMV Act.
The respondent No.2 permitted the driver to drove the bus in the public road without having valid and effective driving licence and charged owner of bus U/s 5 R/w Sec.180 of IMV Act for allowing the driver to drive the vehicle who had no valid and effective driving licence. Admittedly the said above fact proved by the police record at the relevant time, the driver of offending vehicle did not possess valid and effective driving licence. The Investigation Officer, charge sheeted against offending vehicle owner and driver with proper provision of law and respondent No.1 called investigation officer and examined as RW-1, he clearly deposed before this tribunal that they charge sheeted against offending bus bearing No.PY-01- PN-4799 and owner name was C.Rathinaswamy S/o Chinnappa, during his investigation, he did not issued 32 32 MVC No.7101/2018 SCCH 26 notice U/s 133 of IMV Act to owner of offending vehicle because the said vehicle registered outside state and he did not collected documents of offending bus in jurisdictional RTO office. The respondent No.1 after got information about this accident, they issued notice to owner of offending bus for production of relevant documents as called in Ex-R3, but owner of offending bus did not produced before respondent No.1. So from entire police record and evidence deposed by RW-1 and Ex-R3, it is proved before this tribunal that at the time of accident, the driver of offending vehicle did not possess valid and particular class of driving licence and owner of offending vehicle allowing the said driver to drove offending bus in public road without having particular class of driving licence.
32. Section 3-necessity for driving licence:- No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him 33 33 MVC No.7101/2018 SCCH 26 authorizing him to drive the vehicle and no person shall; so drive a transport vehicle other than a (motor cab or motor cycle) hired for his own use or rented under any scheme made under sub section 2 clause 75 unless his driving licence specifically entitles him so to do.
33. It is relevant to relied and refer decision of Apex court in case between United India Insurance company Ltd., Vs Rakesh Kumar Arora and others 2008(7) Supreme 343. In this case held that driver not holding a valid licence; insurer not liable to pay compensation; in such a cases, it is not for the insurance company to prove breach of conditions of the contract of insurance.
34. Sardari and others Vs V.Susheel Kumar and others 2008 (4) SBR 206. 2008(2) Supreme 451, in this case, Apex court held that the owner is duty bound to ensure that the driver has a valid driving licence; the insurer can avoid liability on violation of this provision.
34 34 MVC No.7101/2018 SCCH 26
35. So in the instant case this tribunal come to conclusion on the basis of materials placed by the petitioner and police documents the alleged accident occurred due to exclusive negligence of offending bus bearing reg.No.PY-01-CN-4799 the driver of said offending vehicle did not possess particular class of driving licence the petitioner did not made driver as party to this proceeding. The respondent No.2 being registered owner of offending vehicle the police not charge sheeted against owner of vehicle U/s 5 R/w 180 of IMV Act for allowing driver to drove the vehicle who had no valid and effective driving licence. But police charge sheeted against driver of the private bus No.PY-01-CN-4799 u/s 279, 338 of IPC, 134B and 187 of IMV Act. So it is clear violation of policy terms and conditions. The first respondent has issued policy of insurance in favour of 2nd respondent liability limited to terms and conditions of the policy. The driver of the offending vehicle and respondent No.2 they 35 35 MVC No.7101/2018 SCCH 26 committed the breach of terms and conditions of the policy. Under these circumstances the owner of offending vehicle is liable to pay compensation to petitioner.
36. It is worthful to refer decision of Hon'ble Apex court between National Insurance Company Vs Vidyadara Maheriwal and others 2008 ACC 714 SC wherein Supreme Court held that in case where the driver had no driving licence and award has been passed in respect of 3rd party claimant, the insurance company has to pay amount to the claimants and recover same from the owner.
37. It is worthful to refer and placed reliance of Apex court decision (2018) 9 Supreme court cases 650 Civil Appeal No.8144/2018 Shamanna and another Vs Divisional Manager-oriental insurance co., Ltd., and others and "Oriental Insurance Co. Ltd. Vs. Nanjappan and others 2004(13) SCC 224"
- wherein Supreme Court held that -
36 36 MVC No.7101/2018 SCCH 26 U/s 149 and 147 of MV Act 1988 in case of third party victim of motor vehicles accident award passed against insured owner- duty of insurer to satisfy the award in case of -principle of "pay and recovery"
summarized.
38. So it is clear from the Apex court about liability of insured owner and insurer. Therefore, in the instant case, at the time of accident, first respondent was insurer, 2nd respondent was RC owner of private bus bearing reg.No.PY-01-CN-4799. The respondent No.1 and 2 are jointly and severally liable for payment of compensation to the petitioner. The policy issued by first respondent subsists at the time of accident, hence the first respondent/insurance company shall comply the award passed by this tribunal and same would be recover from respondent No.2. Accordingly, issue No.2 is answered partly in the Affirmative.
37 37 MVC No.7101/2018 SCCH 26
39. Issue No.3: For the foregoing reasons and the discussions as stated above, the petition filed by the petitioner deserves to be allowed in part with costs. In result, I proceed to pass the following:
-: O R D E R :-
The claim petition filed under Section 166 of Motor Vehicles Act by the petitioner is hereby allowed in part with costs.
The petitioner is awarded compensation of Rs.15,000/- with interest at the rate of 9% per annum from the date of petition till realization from the respondents No.1 and 2 jointly and severally.
The respondent No.1-insurer of the bus is directed to deposit the award amount and interest before this tribunal within 60 days from the date of this judgment. The respondent No.1 insurer is at liberty to recover the same from the 2nd respondent
-RC owner of bus bearing reg.No.PY-01- CN-4799 by filing an execution petition.
The compensation awarded by this tribunal is very meager, entire amount shall be released in favour of the petitioner through E-payment directly to the petitioner's Account by obtaining 38 38 MVC No.7101/2018 SCCH 26 bank account details on proper identification.
Advocate's fee is fixed at Rs.1,000/-. Draw Award Accordingly.
(Dictated to the stenographer, through online computer, thereof is corrected and then pronounced by me in the open Court on this the 23rd December 2021) (R.MAHESHA.) XXIV ADDL. SCJ & ACMM, MEMBER, MACT, BENGALURU.
::A N N E X U R E::
LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER:-
PW-1 : Salil Lakshman PW-2 : Dr.Nagaraj B.N.
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONER:-
Ex.P.1 Certified copy of the FIR Ex.P.2 Certified copy of the complaint Ex.P.3 Certified copy of the Charge sheet Ex.P.4 Certified copy of the Sketch Ex.P.5 Certified copy of the spot mahazar Ex.P.6 Certified copy of the IMV report Ex.P.7 Certified copy of the wound certificate Ex.P.8 Discharge summary Ex.P.9 Medical bills from Sl.No.1 to 4
39 39 MVC No.7101/2018 SCCH 26 Ex.P.10 Notarized copy of the DL of the petitioner (original produced , verified and returned back) Ex.P.11 Notarized copy of the Industrial training Certificate of the petitioner (original produced , verified and returned back) Ex.P.12 Notarized copy of the MICRO CHIP computer center certificate of the petitioner (original produced , verified and returned back) Ex.P.13 Notarized copy of the Aadhar Card of petitioner of the petitioner (original produced, verified and returned back) Ex.P.14 Clinical notes Ex.P.15 Latest x-ray report LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENTS:-
RW-1 : Raju L. RW-2 : R.Manjula
LIST OF DOCUMENTS MARKED ON BEHALF OF THE RESPONDENTS:-
Ex.R1 : MLC record Ex.R2 : Authorisation letter Ex.R3 : Office copy of letter dt.4-2-2019 Ex.R4 : Attested copy of policy of
vehicle bearing No.PY-01-CN-4799 (R.MAHESHA.) XXIV ADDL. SCJ & ACMM, MEMBER, MACT, BENGALURU.