Bangalore District Court
Muralidhar.D vs Samiulla on 30 April, 2024
KABC020019302021
BEFORE THE COURT OF SMALL CAUSES AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, AT
BENGALURU
(SCCH-16)
Present: Sri. Ganapati Bhat,
B.Sc., LL.B. (Spl.). L.L.M.
X Addl. Judge, Court of Small Causes
& Member, MACT, Bengaluru.
MVC No.589/2021
Dated: 30th April 2024
Petitioner Sri Muralidhar D.,
S/o Devaiah,
Aged about 43 years,
Resident of No.6-44/1,
Behind Shahi Export,
Sing Layout, Arakere,
Bilekahalli, Bannerughatta Road,
Bangalore South,
Bangalore - 560 076.
Permanent resident of No.138,
Near Veerabhadraswamy Temple,
Jaginakere Village,
Santhebachahalli Hobli,
K.R. Pet Taluk,
Mandya District - 571 436.
(Sri R. Lakshmana, Advocate)
Vs.
Respondents 1. Sri Samiulla,
S/o Abdul Azeez,
Resident of No.249, Coles Road,
Nehru Puram, Pulakeshi Nagara
2 (SCCH-16) MVC 589/2021
Ward, Bengaluru - 560 001.
(Exparte)
2. M/s. The Oriental Insurance Co.
Ltd., by its Manager,
Policy issuing office,
CBO-2, No.1/1, Queens road
cross, Bengaluru - 52,
by its dealing third party HUB.
M/s. The Oriental Insurance Co.
Ltd., Regional Office,
Third Party HUB, by its
Regional Manager,
No.144, 145, Leo Shopping
Complex, Residency road cross,
M.G. Road, Bengaluru - 560 001.
Insurer of Car No.KA-03-ME-8778
Policy No.421704/31/2020/2371
valid from 19-09-2019 to
18-09-2020
(Sri V. Shrihari Naidu, Advocate)
JUDGMENT
The petitioner has filed this petition under Section 166 of M.V. Act 1989, seeking compensation of Rs.10,00,000/- against the respondents for the injuries sustained by him due to the accident caused by the driver of the Car bearing No.KA-03-ME-8778.
2. The facts in brief stated in the petition are as under;
On 01-03-2020, at about 8.20 p.m., the petitioner was driving the car bearing No.KA-54-7209 along with 3 (SCCH-16) MVC 589/2021 inmates from Devanahalli towards Bengaluru on Bengaluru-Bellary road, Venkatala Flyover road, Yelahanka, with due care and caution. At that time, the driver of the car bearing No.KA-03-ME-8778 came from Bengaluru side towards Devanahalli in rash and negligent manner and dashed the road median divider and came to the Devanahalli-Bengaluru road and dashed the car of the petitioner. Due to the accident, the petitioner and inmates of the car sustained grievous injuries. The petitioner has sustained fracture of left shaft of radius with fracture left ulnar styloid and other grievous injuries. Immediately after the accident, he was shifted to K.C.G. Hospital, Bengaluru. The petitioner underwent for operation and he was advised for the complete bed rest for the period of 5 months after his discharge. The petitioner has spent Rs.1,00,000/- towards medicine, treatment and conveyance etc. Prior to the accident, the petitioner was working as owner-cum-driver of the car bearing No.KA-57-7209. He was earning Rs.30,000/- per month. Due to the accidental injuries and disability, he could not able to do his profession. The petitioner is 4 (SCCH-16) MVC 589/2021 suffering from permanent disability and he cannot do his driving work. At the time of accident, he was aged about 43 years and he was hale and healthy. The Yelahanka Traffic Police have registered the criminal case against the driver of the car bearing No.KA-03-ME-8778 for the offences punishable under Section 279, 338 and 304(A) of IPC. The respondent No.1 is the owner and respondent No.2 is the insurer of the said vehicle. Hence, they are jointly and severally liable to pay the compensation. The petitioner has sought for compensation of Rs.10,00,000/- with interest at the rate of 12% per annum. He has prayed to allow the petition.
3. In response to the notice, the respondent No.2 has appeared through its counsel and filed the written statement. In spite of service of notice, respondent No.1 remained absent, hence, placed as ex-parte.
4. The facts in brief stated in the written statement of the respondent No.2 are as follows;
The respondent No.2 has denied the allegations in the petition. It has denied the involvement of the car bearing No.KA-03-ME-8778 in the alleged accident. It has 5 (SCCH-16) MVC 589/2021 stated that the driver of the vehicle bearing No.KA-54- 7209 drove it in rash and negligent manner without having valid driving licence to drive it. It has denied the age, income and avocation of the petitioner. It has denied the rash and negligent driving of the driver of the car bearing No.KA-03-ME-8778. It has stated that the accident was due to rash and negligent driving of the driver of the vehicle bearing No.KA-54-7209. It has denied the nature of injuries, period of treatment and alleged disability suffered by the petitioner. It has admitted the insurance policy to the vehicle of the respondent No.1 at the time of accident. It has not admitted the valid RC, FC, permit and tax etc., to the insured vehicle at the time of accident. It has further stated that the driver of the vehicle bearing No.KA-03-ME- 8778 was not having valid driving licence at the time of accident. It has further stated that the respondent No.1 has entrusted his vehicle to the person who is not having valid driving licence, hence, respondent No.1 has made breach of the terms and conditions of the policy. It has further stated that the compensation claimed is 6 (SCCH-16) MVC 589/2021 excessive and exorbitant. It has further stated that the driver of the car bearing No.KA-54-7209 has contributed to the cause of accident and the negligence on the part of the said driver was on higher side. It has further stated that the petitioner has not provided the PAN number and bank details. It has further stated that the interest on the compensation more than 6% per annum cannot be awarded. It has filed the additional written statement and sated that the respondent No.1 has willfully entrusted the vehicle bearing No.KA-03-ME-8778 to the driver who has no valid driving licence. It has further stated that the police have included Section 3(1) R/w 180 of IMV Act and Section 5 R/w 181 of IMV Act against the driver of the said vehicle and respondent No.1. It has further stated that since the respondent No.1 has made breach of the terms of the policy, it is not liable to pay compensation. It has prayed to dismiss the petition.
5. Based on the pleadings the following issues came to be framed:
1. Whether the petitioner proves that he sustained grievous injuries due to the road traffic accident alleged to have 7 (SCCH-16) MVC 589/2021 occurred on 01-03-2020 at about 8.20 p.m., due to the rash and negligent driving of the driver of the Car bearing registration No.KA-03-ME-8778?
2. Whether the petitioner is entitled to compensation? If so, what is the quantum and from whom?
3. What order or Award?
6. In order to prove his case, the petitioner himself got examined as PW1 and got marked documents as Ex.P1 to Ex.P16. One witness namely, Dr. S.A. Somashekar has got examined as PW2 and got marked documents as Ex.P17 and Ex.P18. The official of respondent No.2 got examined as RW1 and got marked documents as Ex.R1 to Ex.R6.
7. Heard arguments of the learned counsel for the petitioner and learned counsel for the respondent No.2. Perused the pleadings and evidences and materials available on record, my findings on the issues are as under:
Issue No.1 : In the Affirmative Issue No.2 : Partly in the Affirmative
8 (SCCH-16) MVC 589/2021 Issue No.3 : As per final order for the following REASONS ISSUE No.1:
8. The petitioner has contended that when he was proceeding in his car, the driver of the car bearing No.KA-03-ME-8778 came from Bengaluru towards Devanahalli in rash and negligent manner and dashed the median divider and then came to the Devanahalli-
Bengaluru road and dashed the car of the petitioner. It is the further contention of the petitioner that due to the accident, the petitioner has sustained grievous injuries. It is the further contended by the petitioner that he was admitted to hospital and due to accidental injuries, he became physically disabled. It is the further contention of the petitioner that Yelahanka Traffic Police have registered criminal case against the driver of the offending vehicle for the offences punishable under Section 279, 337 and 338 of IPC and section 134(A & B) r/w section 187 and section 3(1) r/w section 181 and section 5(1) r/w section 181 of IMV Act. It is further contended by the petitioner that the accident was due 9 (SCCH-16) MVC 589/2021 to rash and negligent driving of the driver of the car bearing No.KA-03-ME-8778.
9. In Kusum and Others vs Satbir and Others reported in (2011) SCC 646, the Hon'ble Supreme Court has held that in a case relating to the Motor Accident Claims, the claimants are not required to prove the case as needs required to be done in a criminal trial.
10. In Parameshwari vs. Amir Chand and others reported in (2011) SCC 635, the Hon'ble Supreme Court has held that a road accident claims the strict principle of proof in a criminal case are not required.
11. In Bimla Devi and others vs. Himachal Road Transport Corporation and others reported in (2009) 13 SCC 513, the Hon'ble Supreme Court has held that the claimants were merely to establish their case on touch stone of preponderance of probability and that standard of proof on beyond reasonable doubt could not have been applied.
12. In Dulcina Fernandes and others vs. Joaquim Xavier Cruz and another ruling reported 10 (SCCH-16) MVC 589/2021 in (2013) 10 SCC 6, the Hon'ble Supreme court has held as follows:
"7.It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pickup van as set up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt."
13. In Anita Sharma and others vs. The New India Assurance Co. Ltd., and another, ruling reported in (2021) 1 SCC 171, the Hon'ble Supreme Court has held as follows:
"Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eyewitnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true."
11 (SCCH-16) MVC 589/2021
14. In Gurdeep Singh Vs Bhim Singh ruling reported in (2013) 11 SCC 507, the Hon'ble Supreme Court has held that in the motor accident claims, it is very difficult to get eyewitness. It has further held that even if, the eyewitnesses are available, they are not ready to come and depose in court of law for many reasons and thus, courts have to go by the oath of the claimant only.
15. Therefore, from the above rulings of the Hon'ble Supreme Court, it is clear that the strict proof of the case by the petitioner is not required and in all the MVC cases, the standard of proof required from the petitioner is preponderance of probability. The concept of proof of the case beyond reasonable doubt is not applicable in deciding the MVC cases by the Tribunal.
16. In order to prove his case, the petitioner has produced as many as 18 documents. They are marked as Ex.P1 to Ex.P18. Out of the said documents, Ex.P1 is the FIR with complaint, Ex.P2 is the spot mahazar, Ex.P3 is the sketch, Ex.P4 is the 133 notice, Ex.P5 is the reply, Ex.P6 is the IMV reports, Ex.P7 is the wound certificate, 12 (SCCH-16) MVC 589/2021 Ex.P8 is the charge sheet along with statements, Ex.P9 is the discharge summary, Ex.P10 is the outpatient follow up sheets, Ex.P11 is the medical bills, Ex.P12 is the vehicle job card bill, Ex.P13 is the vehicle towing bills, Ex.P14 is the aadhar card, Ex.P15 is the driving licence, Ex.P16 is the x-rays, Ex.P17 is the OPD card with examination report and Ex.P18 is the x-ray. In Ex.P1, it is stated that when petitioner was driving his vehicle bearing No.KA-54-7209, the driver of the car bearing No.KA-03-ME-8778 came from the Bengaluru side in rash and negligent manner and dashed the car of the petitioner. It is further stated that due to the accident, the petitioner has sustained grievous injuries and he was shifted to Columbia Asia Hospital. It is further stated that in the accident, one of the inmate in the car was succumbed to injuries. It is further stated that the driver of the car bearing No.KA-03-ME-8778 is responsible for the accident. The accident took place on 01-03-2020 at about 8.20 p.m. The police complaint was lodged on the same day at 11.00 p.m. Therefore, there is no delay in lodging the FIR. In Ex.P2, the accident spot 13 (SCCH-16) MVC 589/2021 is stated and in Ex.P3, the accident spot is shown. As per Ex.P3, the driver of the car bearing No.KA-03-ME- 8778 dashed the divider and came after divider and dashed the vehicle of the petitioner. The driver of the offending vehicle has changed his lane and came to the wrong side. He came to the other side of the road after dashing to the divider. Ex.P3 would show that the accident is due to sole negligence and rash driving of the driver of the offending vehicle. In Ex.P3, it is shown that the driver of the offending vehicle has dashed the divider, then went to the track after divider and dashed the vehicle of the petitioner and another vehicle. This kind of act of the driver of the offending vehicle would itself show that he was driving his vehicle in rash and negligent manner and the driver of the offending vehicle is solely responsible for the accident. Ex.P5 is the reply notice to the Ex.P4 notice. In Ex.P5, the respondent No.1 has stated that one Niranjan was driving his vehicle at the time of accident. The presence of the vehicle of the respondent No.1 at the time of accident is admitted by him. In Ex.P6, the damages to both the vehicles are 14 (SCCH-16) MVC 589/2021 stated. The damages shown in Ex.P6 would tally with the manner of accident stated in the petition. In Ex.P7, the injuries to the petitioner were stated. As per the opinion of the medical officer, the injury No.4 is grievous in nature and injuries No.1 to 3 are simple in nature. The police have recorded the statement of the injured and eyewitness. After investigation they have filed the charge sheet in the criminal case as per Ex.P8. In Ex.P8, it is stated that on 01-03-2020 at about 8.20 p.m., when petitioner was proceeding in his vehicle along with his wife and others, the driver of the car bearing No.KA-03- ME-8778 came from Hebbal side in rash and negligent manner and dashed the road divider. It is stated that thereafter, the driver of the offending vehicle dashed the vehicle of the petitioner and thereafter, dashed another car bearing No.TN-06-S-6296. It is further stated that due to the accident, the petitioner has sustained grievous injuries and he was shifted to hospital. It is further stated that the accident was due to rash and negligent driving of the driver of the car bearing No.KA- 03-ME-8778. It is further stated that the driver of the 15 (SCCH-16) MVC 589/2021 offending vehicle has no valid driving licenceto drve the vehicle and the respondent No.1 has entrusted the vehicle to the person who had no valid driving licence. Therefore, the police have alleged the offences punishable under Section 279, 337 and 304(A) of IPC and Section 134 (A & B) r/w 187 and 3(1) r/w 181 and 5(1) r/w 181 of IMV Act against the driver of the offending vehicle and the respondent No.1. In all the documents produced by the petitioner, it is stated that the accident was due to rash and negligent driving of the driver of the car bearing No.KA-03-ME-8778.
17. The petitioner has entered into the witness box and got examined as PW1. He has re-iterated the contents of the petition in his examination-in-chief. In the cross-examination, he has stated that there is a head on collision at the time of accident. He has denied the suggestion that the accident took place due to rash and negligent driving of himself. He has further denied that the accident was not due to rash and negligent driving of the driver of the vehicle bearing No.KA-03-ME- 8778. PW2 being the doctor assessed the disability,he 16 (SCCH-16) MVC 589/2021 has supported the case of the petitioner. The officer of the respondent No.2 company entered into the witness box and got examined as RW1. In his examination-in- chief, he has re-iterated the contents of the written statement of the respondent No.2. He has produced and got marked 6 documents as Ex.R1 to Ex.R6. Out of the said documents, Ex.R1 is the authorization letter, Ex.R2 is the policy, Ex.R3 is the notice sent by respondent No.2, Ex.R4 is the Section 133 of IMV notice, Ex.R5 is the reply to section 133 of IMV notice and Ex.R6 is the charge sheet. Ex.R6 is nothing but is the charge sheet which is relied upon by the petitioner also. Therefore, RW1 has not disputed the Ex.R6. In the cross- examination, RW1 has admitted that the offending vehicle has caused the accident to the vehicle of the petitioner which was moved after the divider. Therefore, RW1 has not denied the accident and rash and negligent driving of the driver of the offending vehicle. The petitioner has produced the relevant records and materials to show that the driver of the offending vehicle drove the same in rash and negligent manner 17 (SCCH-16) MVC 589/2021 and dashed the vehicle of the petitioner. From the documentary and oral evidence, petitioner has proved that the accident was due to rash and negligent driving of the driver of the car bearing No.KA-03-ME-8778. The petitioner has further proved that due to the accident, he has sustained grievous injuries. Hence, I answer issue No.1 in the affirmative.
ISSUE No.2:
18. As discussed above, the petitioner has proved that the accident was caused due to rash and negligent driving of the driver of the car bearing No.KA-03-ME- 8778. Therefore, petitioner is entitled to the compensation under various heads. The damages are to be assessed under two heads, they are pecuniary damages and non pecuniary damages. The pecuniary damages are those like medical, treatment, attendants, transport, actual loss of earning, future loss of earning. Non pecuniary damages includes mental and physical shock, loss of amenities, loss of expectation of life, loss of prospects of marriage. The petitioner who has 18 (SCCH-16) MVC 589/2021 sustained injuries is entitled for compensation under the following heads:
A) Towards loss of future income :
In order to determine the compensation towards loss of future income, the age, monthly income and disability of the petitioner are to be determined. The petitioner has produced Ex.P15 - driving licence. In Ex.P15, the date of birth of the petitioner is shown as 10-05-1976. The accident took place on 01-03-2020.
Therefore, the age of the petitioner as on the date of accident is 44 years.
B). The petitioner has sustained grievous injury in this case. The injuries to the petitioner are as follows:
fracture shaft of radius and fracture ulnar styloid left sided.
In this regard, the Dr. S.A. Somashekara got examined as PW2. PW2 in his examination-in-chief has stated about injuries and fractures of petitioner. He has stated that after clinical and radiological examination, he found that the petitioner has disability of left upper
19 (SCCH-16) MVC 589/2021 limb as 37%. He has stated that the whole body physical disability of the petitioner is 19%. In the cross- examination, he has denied the suggestion that the petitioner has no disability. Therefore, considering the injuries sustained and evidence of PW2, in this case, the disability of 15% can be considered to the whole body of the petitioner. Hence, in this case, the whole body disability of the petitioner is considered as 15%.
C). The petitioner has stated that he was working as cab driver and he was earning Rs.30,000/- per month. But, he has not produced any document to show his income and avocation. Therefore, notional income is to be considered as per the guidelines of the Karnataka State Legal Services Authority. The accident took place in 2020. Hence, the notional income of the petitioner is Rs.14,500/-. Therefore, the annual income of the petitioner is Rs.1,74,000/-.
D). As per the ratio laid down in Sarla Verma and others vs. Delhi Transport Corporation and another reported in 2009 ACJ 1298, the appropriate multiplier for a person whose is aged about 44 years is 20 (SCCH-16) MVC 589/2021
14. Therefore, loss of future income is Total annual income X disability/100 X multiplier = Rs.1,74,000 X 15/100 X 14 = Rs.3,65,400/-.
Medical expenses :
In this case the petitioner has sustained grievous injuries. As per Ex.P9, he has taken treatment as inpatient from 02-03-2020 to 14-03-2020 for 13 days.
The petitioner has produced 20 medical bills at Ex.P11 which are amounting to Rs.13,522/-. Therefore, the petitioner is entitled for reimbursement of total medical bills of Rs.13,522/-.
Pain and sufferings :
The petitioner has sustained grievous injuries in this case. Injuries have caused the disability to the petitioner. So considering the injuries and disability to the petitioner, an amount of Rs.50,000/- is to be awarded to the petitioner towards pain and sufferings.
Attendant charges :
As per Ex.P9 - discharge summary, the petitioner has admitted as inpatient for 13 days from 02-03-2020 to 14-03-2020. He needs attendant during that period. 21 (SCCH-16) MVC 589/2021 Therefore, 1000 x 13 i.e., Rs.13,000/- is awarded towards the attendant charges.
Food and nourishment :
The petitioner was admitted as inpatient for 13 days in K.C. General Hospital, Malleshwaram. Therefore, Rs.800/- per day i.e., Rs.10,400/- is awarded towards food and nourishment.
Conveyance expenses :
The petitioner is the resident of Arekere, Bannerghatta road, Bengaluru south and he has taken treatment in K.C. General Hospital, Malleshwaram.
Hence, Rs.4,000/- is the just compensation towards conveyance.
Loss of income during treatment period :
The petitioner has taken treatment as inpatient for 13 days. Therefore, Rs.6,500/- is awarded towards loss of income during treatment period.
Loss of amenities :
The PW2 has opined that the petitioner has sustained grievous injuries and there are complications to him. Therefore, awarding the compensation of 22 (SCCH-16) MVC 589/2021 Rs.10,000/- would be just and reasonable towards loss of amenities.
Future medical expenses :
The PW2 has stated that the petitioner has to undergo surgery for removal of implants. Therefore, awarding the compensation of Rs.15,000/- would be just and reasonable towards future medical expenses.
19. Hence, the petitioner is entitled to the compensation under different heads as follows :
1. Loss of future income 3,65,400-00
2. Medical expenses 13,522-00
3. Pain and sufferings 50,000-00
4. Attendant charges 13,000-00
5. Food and nourishment 10,400-00
6. Conveyance expenses 4,000-00
7. Loss of income during 6,500-00 treatment period
8. Loss of amenities 10,000-00
9. Future medical expenses 15,000-00 Total 4,87,822-00
20. In all, petitioner is entitled for compensation of Rs.4,87,822/- with interest at the rate of 6% per annum (Excluding future medical expenses of Rs.15,000/-) from the date of petition till its realization. 23 (SCCH-16) MVC 589/2021 Liability:
21. The respondent No.1 is the owner and respondent No.2 is the insurer of the offending vehicle.
The respondent No.2 has admitted the insurance policy to the offending vehicle as on the date of accident. The respondent No.2 has stated that the driver of the offending vehicle had no valid driving licence as on the date of accident. In the charge sheet, it is stated that the driver of the car bearing No.KA-03-ME-8778 has no valid driving licence as on the date of the accident. A defence of the respondent No.2 is that since the driver of the offending vehicle has no valid driving licence, hence the insurance company is not liable to pay any compensation. The learned counsel for the respondent No,.2 has relied upon the judgment of the Hon'ble High Court of Karnataka, in the case of Smt Adilakshmamma vs Sri Raju, MFA No.3297/2019,in the case of Smt.Hemalatha vs Bajaj Alianza General Insurance, MFA No.6154/2019 and in the case of United Insurance Company Ltd. Vs Smt. Umamaheshwari, MFA No.4716/2011.In all the judgments, the Hon'ble High 24 (SCCH-16) MVC 589/2021 Court of Karnataka has held that when the driver of the offending vehicle does not possess the valid driving licence at the time of accident, then the insurance company is not liable to pay compensation. These rulings are not applicable to the facts and circumstances of the case on hand.
22. The learned counsel for the petitioner has relied upon the judgments the Hon'ble Supreme Court and Hon'ble High Court of Karnataka, in the case of Shamanna vs The Oriental Insurance Company, Civil Appeal No. 8144 / 2018,Pappu vs Vinod kumar ruling reported in (2008)3 SCC 208, In the case of Rishi Pal Singh vs New India Assurance Company, Civil Appeal No. 4919/2022, in the case of Najegowda Vs C. Cheluvaraj ruling reported in 2023 ACJ1245.The ratio laid down these rulings and other rulings are discussed as follows.
23. In New India Assurance Company Limited, Bijapur, vs. Yallavva w/o. Yamanappa Dharanakeri and another ruling reported in ILR 2020 KAR 2239, the full bench of Hon'ble High Court of Karnataka 25 (SCCH-16) MVC 589/2021 referring to the catena of decisions rendered by the Hon'ble Apex Court has held that breach of policy conditions would not exonerate the Insurance Company to pay the compensation. It has held that even if fundamental breach of policy conditions is established, the Insurance Company is still liable to satisfy the award by paying the compensation to the third party and thereafter, it can recover it from the owner of the vehicle involved in the accident. It has held that the pay and recovery cannot be ordered against the insurance company only when the claim petition filed is a fraudulent and collusive petition.
24. In United India Insurance Co. vs. V. Janardhan ruling reported in 2021 SCC Online KAR 12643, the Hon'ble High Court of Karnataka has held as follows:
"It would be irrelevant as to whether the owner of the vehicle appear or did not appear or did not contest or contested the proceedings for applying the pay and recovery principle. So long as it is established that there was an insurance policy issued in respect of motor vehicle which was involved in the accident, the insurer would be liable to pay the victim, even if the insurer is able to establish its 26 (SCCH-16) MVC 589/2021 defence that there has been a breach of policy condition and it can avoid liability".
25. In Shivanna vs. Muniyappa ruling reported in 2022 SCC Online KAR 16660, the Hon'ble High Court of Karnataka has held that the insurer would have to satisfy the compensation i.e., liable to be paid to the claimants and thereafter to proceed to recover the same from the owner of the offending vehicle.
26. In Balu Krishna Chavan vs. Reliance General Insurance Co. Ltd., 2022 Live Law (SC) 932, judgment dated 03-11-2022, the Hon'ble Supreme Court has held that when the insurance policy is in force then even if the insurer is able to show the breach of policy condition and it can avoid the liability then also it is liable to pay the victim and recover from the owner of the offending vehicle.
27. In Pappu and others vs. Vinod Kumar Lamba and another ruling reported in (2018) 3 SCC 208, the Hon'ble Supreme Court has held as follows:
27 (SCCH-16) MVC 589/2021 "110. The summary of our findings to the various issues as raised in these petitions areas follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.
(ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163Aor Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act.
(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 reproved 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
28 (SCCH-16) MVC 589/2021 disqualified to drive at the relevant time.
(iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them.
(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act.
(vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), doesn't fulfill the requirements of law or not will have to be determined in each case.
(viii) - (ix) xxxxx
(x) Where on adjudication of the claim under the Act the tribunal arrives 29 (SCCH-16) MVC 589/2021 at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, 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 payto the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section(3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal.
(xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims."
30 (SCCH-16) MVC 589/2021
28. In Shamanna and another vs. Divisional Manager, Oriental Insurance Co. Ltd., and others ruling reported in (2018) 9 SCC 650, the Hon'ble Supreme Court of India has held as follows:
"12. Since the reference to the larger bench in Parvathneni case has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case followed in Laxmi Narain Dhut and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh and Laxmi Narain Dhut cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored".
29. In the case of Rishi Pal Singh vs New India Assurance Company, Civil Appeal No. 4919/2022,the Hon'ble Supreme Court of India has held that it is not expected from the owner of the 31 (SCCH-16) MVC 589/2021 vehicle to verify the genuineness of the driving licence issued to his driver.
30. In the case of Najegowda Vs C. Cheluvaraj ruling reported in 2023 ACJ1245 has held that when the driver of the offending vehicle does not possess valid driving licence at the time accident, then insurance company is liable to pay compensation at the first instance and then it can recover that amount from the owner.
31. In Kurvan Ansari @ Kurvan Ali vs. Shyam Kishore Murmu, ruling reported in (2022) 1 SCC 317, the Hon'ble Supreme Court of India has held as follows:
"The entire compensation shall be paid to the appellants by respondent No.2
- Insurance Company, and we keep it open to the Insurance Company to recover the same from respondent No.1 - owner of the motorcycle by initiating appropriate proceedings as the motorcycle was driven by the driver who was not possessing valid driving licence on the date of the accident".
32. In IFFCO Tokio General Insurance Co. Ltd., vs. Geeta Devi and others ruling reported 2023 32 (SCCH-16) MVC 589/2021 SCC OnLine SC 1398 the Hon'ble Supreme Court has held as follows:
"even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident".
The ratio laid down in the above rulings are applicable to the case on hand.
33. The respondent No.1 has not produced any documents to show that there is valid and effective driving licence to the driver of his vehicle as on the date of accident. Further, the charge sheet which is marked as Ex.P8 would show that there was no valid licence to the driver of the offending vehicle as on the date of accident. Therefore, from the materials available on record, it is clear that the driver of the offending vehicle had no valid driving licence as on the date of accident. Therefore, the respondent No.1 has violated the terms 33 (SCCH-16) MVC 589/2021 and conditions of the insurance policy. The insurance policy is valid as on the date of accident. This fact is admitted by the respondent No.2. Therefore, the respondent No.2 i.e., insurance company is primarily liable to pay the compensation along with respondent No.1. Since there is violation of the terms and conditions of the policy, the respondent No.2 is entitled to recover the compensation amount from the respondent No.1 after pay the amount to the petitioners. Hence, the respondent No.1 and 2 both are jointly and severally liable to pay the compensation amount to the petitioners. But, the respondent No.2 is entitled to recover the compensation amount to be paid to the petitioners after paying it to them from the respondent No.1 on pay and recovery basis.
ISSUE No.3:
34. In view of the findings, the petition deserves to be allowed in part. Hence, the following order is passed:
ORDER The petition is partly allowed with costs.
34 (SCCH-16) MVC 589/2021
The petitioner is entitled to
compensation of Rs.4,87,822/- (Rupees four lakhs, eighty seven thousand, eight hundred and twenty two only) with interest at the rate of 6% p.a., (Excluding future medical expenses of Rs.15,000/-) from the date of petition till realisation.
The respondent No.2 is directed to pay the compensation amount on pay and recovery basis to the petitioners within two months from the date of this order in the first instance and then recover the same from respondent No.1 through due course of action.
Out of the compensation amount
awarded to petitioner, 30% of the
compensation amount with
proportionate interest shall be
deposited in his name as FD in any
nationalized bank for the period of two years with liberty to draw the accrued interest periodically and the remaining 70% amount with proportionate interest shall be released to him through E-
payment on proper identification and verification.
Advocate's fee is fixed at Rs.2,000/-. 35 (SCCH-16) MVC 589/2021 Draw an award accordingly.
(Dictated to the stenographer, directly on computer, typed by him, corrected and then pronounced in the open court this the 30th day of April 2024) (Ganapati Bhat) Member, MACT, Bengaluru.
ANNEXURE Witnesses examined on behalf of petitioner:
PW1 Sri Muralidhar D. PW2 Dr. S.A. Somashekar
Documents marked on behalf of petitioner:
Ex.P1 Certified copy of FIR with Complaint Ex.P2 Certified copy of Spot Mahazar Ex.P3 Certified copy of Sketch Ex.P4 Certified copy of 133 Notice Ex.P5 Certified copy of Reply Ex.P6 Certified copy of IMV Report (2 in nos.) Ex.P7 Certified copy of Wound Certificate Ex.P8 Notarized copy of Charge Sheet along with statements Ex.P9 Discharge Summary Ex.P10 Outpatient follow-up sheet (4 in nos.) Ex.P11 Medical Bills (19 in nos.) Ex.P12 Vehicle Job Card Bill Ex.P13 Vehicle Towing Bills Ex.P14 Notarized copy of Aadhar card of petitioner Ex.P15 Notarized copy of Driving Licence of PW1 Ex.P16 X-rays (3 in nos.) Ex.P17 OPD Card with Examination Report Ex.P18 X-ray
36 (SCCH-16) MVC 589/2021 Witnesses examined on behalf of respondents:
RW1 Smt. Veera Gonsalves Documents marked on behalf of the respondents:
Ex.R1 Authorization Letter Ex.R2 True copy of Policy Ex.R3 Certified copy of Notice sent by R-2 Ex.R4 Certified copy of Section 133 IMV Notice Ex.R5 Certified copy of Reply to Section 133 IMV Notice Ex.R6 Certified copy of Charge Sheet (Ganapati Bhat) Member, MACT, Bengaluru.