Bangalore District Court
Srikanth vs Icici Lombard General Ins on 20 March, 2017
SCCH-1 1 MVC 4757/2016
BEFORE THE ACCIDENT CLAIMS TRIBUNAL AND CHIEF
JUDGE, COURT OF SMALL CAUSES AT BANGALORE
(SCCH-1)
DATED THIS THE 20th DAY MARCH'2017
PRESENT: SRI H.P.SANDESH, B.A.L., LL.B,
MEMBER, PRL. M.A.C.T.
MVC No.4757/2016
Petitioner: Srikanth,
S/o.Nandi Pujari,
Aged 28 years,
R/at No.1-35, Koni Village Ward,
H.P.S.Koni (North Division),
Kundapura, Udupi 576 217.
(Pleader by Sri H.V.Kumara Swamy, Advocate)
V/s.
Respondents 1. ICICI Lombard General Ins., Co., Ltd.,
: Prestige CORNICHE, No.62/1,
2nd Floor, Richmond Road,
B'lore - 25 - Policy issued by its Office in
Policy
No.3005/2010702386/00/0000026399
Date of validity from 29.05.2015 to
28.05.2016.
2. Mr.Karthik M.,
S/o.Murugesh D.,
Major,
R/at No.83/4, 2nd Main
Sheshadripuram,
Near Lakshmi Nursing Home,
Bangalore-20.
(Respondent No.1 - by Sri S.Maheshwar,
Advocate,
Respondent No.2 by Sri C.Gangaraju,
Advocate)
SCCH-1 2 MVC 4757/2016
JUDGMENT
The petitioner has filed this petition under Section 166 of the Motor Vehicles Act, 1989 claiming compensation of Rs.20 lakhs from the respondents No.1 and 2 with regard to the injuries sustained by him in the road traffic accident that occurred on 21.05.2016 at about 01.30 am., near Nehru Brindavan Park, Seshadripuram, Bangalore.
2. Brief facts of the case are as under:-
It is the case of the petitioner that on 21.05.2016 at about 01.30 am., when the petitioner was riding motorcycle No.KA.04/HF.7092 slowly and cautiously and while riding so, when came near Neharu Brindavan Park, Seshadripuram, Bangalore, at that time, a Scooter bearing registration No.KA.05/JM.3408 came there in rash and negligent manner and in high speed and dashed against the petitioner's motorcycle, as a result, he fell down and sustained grievous injuries and immediately, he was shifted to HOSMAT Hospital, Bangalore wherein he was treated as inpatient and he has spent Rs.2,25,000/- towards medical expenses, conveyance and SCCH-1 3 MVC 4757/2016 nourishment charges. It is his case that prior to the accident, he was working as Collection Boy with Balaji Finance and earning Rs.25,000/- per month. It is contended that the petitioner has taken best possible treatment and still he is suffering from disability.
3. It is contended that the jurisdictional Police have registered a case against the rider of the offending Scooter and the first respondent is the insurer and the second respondent is the owner of the Scooter and both are jointly and severally liable to pay compensation of Rs.20 lakhs to the petitioner as claimed in the petition.
4. In pursuance of this petition, this Tribunal issued notice of the petition to both the respondents, pursuant to which, both the respondents appeared through their respective counsel and filed statement of objections.
5. The sum and substance of the statement of objections filed by the respondent No.1 is as under:-
6. Issuance of insurance policy to the scooter No.KA.05/JM.3408 is admitted by the respondent No.1, SCCH-1 4 MVC 4757/2016 however, the liability is subject to terms and conditions of the policy.
7. The respondent No.2 has taken the general defence, in as much as, as provided under Section 134(c) of the MV Act, the respondent No.2 has not furnished the particulars of policy, date, time and place of accident, particulars of injured and the name of the driver and particulars and his driving licence and thereby violated the provisions of the said Act.
8. It is further contended that as per Section 158(6) of the MV Act, it is the mandatory duty of the concerned Police Station to forward all the relevant documents to the concerned insurer within 30 days, but the Police having failed to do so, there is violation of the said Act.
9. The respondent No.1 also denied all the material averments made out in the claim petition with regard to the manner in which the accident occurred, nature of injuries sustained by the petitioner, period of treatment, expenditure incurred, the avocation of the petitioner, his income, age, loss of earnings during the period of treatment, disability said to have SCCH-1 5 MVC 4757/2016 been suffered by him etc., apart from denying the negligence attributed to the rider of the scooter. It is contended that the accident in question has not occurred due to the rash and negligent riding of the insured vehicle by its rider. In fact, the accident has occurred due to the petitioner himself. Under these circumstances, the claim petition is liable to be dismissed.
10. The rider of the scooter No.KA.05/JM.3408 was not holding valid and effective driving licence and therefore, the jurisdictional Police after investigation filed charge sheet under Section 3(1) read with Section 181 of the MV Act against the rider of the scooter. The amount of compensation claimed is excessive and not based on any norms. For all these reasons, the respondent No.1 has prayed for dismissal of the petition.
11. The respondent No.2 has also filed the statement of objections to the petition, contending that on 21.05.2016 at about 01.30 am., the petitioner driven the motorcycle No.KA.04/HF.7092 in rash and negligent manner and suddenly dashed to a scooter No.KA.05/JM.3408 and there is no fault on the part of the rider of the scooter and therefore, the claim of SCCH-1 6 MVC 4757/2016 Rs.20 lakhs made by the petitioner in the petition is unsustainable.
12. The respondent No.2 admits that he is the owner of the scooter No.KA.05/JM.3408 and the said scooter is covered with a policy of insurance bearing No.3005/2010796057/00/ 0000054163 with the 1st respondent and therefore, entire liability is covered under the said policy. Further, the rider of the scooter had valid and effective driving licence at the time of the accident and he has informed about the accident to the 1st respondent and handed over the driving licence and insurance particulars to the 1st respondent and complied the formalities as prescribed under Section 134 of MV Act. The petitioner without possessing valid and effective driving licence, driven the motorcycle and caused the accident and therefore, no liability can be fastened on the respondents.
13. The respondent No.2 does not aware about the age, avocation and income of the petitioner. So also does not aware about the nature of injuries sustained by the petitioner, amount spent for treatment, disability said to have been suffered by SCCH-1 7 MVC 4757/2016 him. The compensation claimed is exorbitant and exaggerated and hence, the respondent No.2 has prayed this Tribunal to reject the claim petition.
14. Based on the above pleadings of the parties, the following issues came to be framed by this Tribunal:-
1) Whether the petitioner proves that he sustained grievous injuries in a motor vehicle accident that occurred on 21.05.2016 at about 01.30 am., near Neharu Brindavan Park, Sheshadripuram, Bangalore within the jurisdiction of High Grounds Traffic Police Station on account of rash and negligent riding of the Scooter bearing registration No.KA.05/JM.3408 by its rider?
2) Whether the respondent No.2 proves that the accident has occurred on account of the negligent act of the petitioner?
3) Whether the petitioner is entitled for compensation? If so, how much and from whom?
4) What order?
15. In order to substantiate his case, the petitioner got examined himself as PW 1. On behalf of the petitioner, a doctor has been examined as PW 2. In all 18 documents came to be marked on behalf of the petitioner as Ex.P.1 to P.18.
16. On behalf of the respondents, two witnesses have been examined and through their evidence, 6 documents are got marked as Ex.R.1 to R.6.
SCCH-1 8 MVC 4757/2016
17. After closure of the evidence of both parties, I have heard the arguments of the counsel for the petitioner as well as respondents.
18. The counsel for the respondent No.2 has relied upon the following judgments:
1) (1987) 2 Supreme Court Cases 654
2) AIR KARR 2016 2 395
19. I have given my anxious consideration to the principles laid down in the above judgment.
20. Having heard the arguments of counsel for petitioner and the respondents and upon scrutiny of the oral and documentary evidence placed before the Tribunal, my finding on the above issues are as under:-
1) In the affirmative,
2) In the negative,
3) Partly in the affirmative,
4) As per final order, for the following:-
REASONS
19. Issue No.1 and 2:- Since both these issues are interconnected and the evidence is likely to overlap and to avoid SCCH-1 9 MVC 4757/2016 repetition of facts, both these issues are taken up for discussion together.
20. It is the contention of the petitioner that on 21.05.2016 at about 01.30 am., when he was riding motorcycle No.KA.04/HF.7092 slowly and cautiously and while riding so, when came near Neharu Brindavan Park, Seshadripuram, Bangalore, at that time, a Scooter bearing registration No.KA.05/JM.3408 came there in rash and negligent manner and in high speed and dashed against the petitioner's motorcycle, as a result, he fell down and sustained grievous injuries.
21. The petitioner, in order to prove his contentions, examined himself as PW 1 and in his affidavit filed in the form of examination in chief, reiterated the averments made out in the petition and also got marked the documents such as FIR, Spot Sketch, Spot Mahazar, IMV Report and Charge Sheet as Ex.P.1 to P.5. The petitioner was subjected to cross- examination. In his cross-examination by the counsel for the respondent No.1, it is elicited from him that his friend Sachindra has lodged the complaint after the accident and that SCCH-1 10 MVC 4757/2016 he was having driving licence and the same was lost in the accident and he has taken the driving licence from Udupi RTO Office. When a question was posed to him stating that the accident is head on collusion, to which he says that he was crossing and at that time, the vehicle rider came in one way and dashed against his vehicle. He admits that as per IMV Report, front portion of both the vehicles were damaged. It is suggested to him that since he was not having driving licence on the date of accident and hence, the accident occurred due to his negligence and the said suggestion has been denied by him.
22. In the cross-examination by the counsel for the respondent No.2, it is elicited from him that the accident has occurred on 21.05.2016 near Nehru Circle and that he was proceeding in the motorcycle from Majestic to his room which is situated at Palace Guttahalli.
23. The respondent No.2 has been examined as RW 1 and in his evidence, he says that due to the rash and negligent driving of the motorcycle No.KA.04/HF.7092 by the petitioner near Nehru Brindavan Park, Seshadripuram, Bangalore on SCCH-1 11 MVC 4757/2016 2105.2016 at about 1.10 am., all of a sudden the petitioner dashed to his vehicle No.KA.05/JM.3408 and therefore, the petitioner is not entitled for compensation.
24. In his cross-examination by the counsel for the respondent No.1, he admits that one Sanganna was riding the motorcycle and that he was not having the driving licence.
25. The respondent No.1, in the statement of objections, having denied the negligence on the part of the rider of the Scooter and having further contended that there is negligence on the part of the part of the petitioner himself, has not let in any evidence, either oral or documentary in support of its case and although, a witnesses has been examined by the respondent No.1 as RW 2, but he has only spoken about the validity or otherwise of the driving licence of the rider of the scooter and their evidence is silent on the point of negligence.
26. Now, let me appreciate both oral and documentary evidence available before the Court with regard to the negligence.
SCCH-1 12 MVC 4757/2016
27. On perusal of the petition, it is contended by the petitioner that when he was riding motorcycle near Nehru Brindavan Park, Seshadripuram, Benglauru, at that time, the offending vehicle came and dashed against him. The petitioner has not only stated so in the petition, but also reiterated the same in his evidence as PW 1. Apart from his evidence, the petitioner has got marked the FIR, Spot Sketch, Spot Mahazar, IMV Report and the Charge Sheet as Ex.P.1 to 5. Complaint is lodged by one Sachindra, stated to be the friend of the petitioner, on the same day of accident, in which he says that when himself as pillion rider and the petitioner as rider, were going on the motorcycle and came near Seshadripuram College, the rider of the offending motorcycle having come in the one way in rash and negligent manner, dashed against their motorcycle in which the petitioner has sustained injuries. The petitioner has also got marked the Spot Sketch as Ex.P.2 and Ex.P.3 Spot Mahazar which describes the place of accident. It is evident from the sketch as well as mahazar that the rider of the offending scooter was moving on one way, contravening the SCCH-1 13 MVC 4757/2016 rules and dashed against the motorcycle of the petitioner. Ex.P.4 is the IMV Report, which discloses that in the accident, front portion of both the vehicles damaged. Ex.P.5 is the charge sheet filed against the rider of the scooter after investigation. The contents of these documents are neither denied nor disputed by the respondent No.1 and 2. In the cross- examination of PW 1, except suggesting to him that he was not having the driving licence and hence the accident has occurred due to his negligence and the same has been denied by PW 1, nothing is elicited from PW 1 regarding his negligence. The counsel for the petitioner, in his arguments, has rightly pointed out that the rider of the scooter has not been examined in the case, who would have been the best person to speak about the negligence of petitioner, if any. Hence, in the absence of any contra evidence, I am of the opinion that the accident has occurred on account of rash and negligent driving of the Scooter by its driver. Hence, I answer issue No.1 in the affirmative and issue No.2 in the negative.
SCCH-1 14 MVC 4757/2016
28. Issue No.3:- It is the contention of the petitioner that on account of the accident, he sustained grievous injuries. In support of his contention, he has produced the Wound Certificate as Ex.P.6 issued by HOSMAT Hospital, which discloses that the petitioner has suffered the following injuries:-
1) Closed comminuted fracture distal 1 1/3rd right tibia and fibula
2) Shatzjker type 1 fracture left tibial condyle The doctor who issued the above Wound Certificate Ex.P.6 has opined the injuries as grievous in nature.
29. The petitioner has also produced the Discharge Summary issued by the said Hospital which is marked as Ex.P.7, which discloses that the petitioner was admitted to the said hospital on 21.05.2016 and discharged in 24.05.2016 and he was inpatient in all for 4 days. The petitioner has also produced another Discharge Summary issued by Chinmayi Hospital, Udupi, which reveals that the petitioner was again admitted on 28.06.2016 and discharged on 01.07.2016. The petitioner has also relied upon the evidence of PW2 - Dr.Krishan Prasad, SCCH-1 15 MVC 4757/2016 working as Orthopedic Surgeon at HOSMAT Hospital, Bangalore. The evidence of PW 2 in regard to the nature of injuries and the treatment is in line with that of the petitioner and the medical records. Hence, considering the nature and gravity of injuries and the period of treatment, the petitioner has been awarded Rs.60,000/- under the head pain and suffering.
30. It is the case of the petitioner that he incurred Rs.2,25,000/- and he has deposed in his evidence as PW 2 that he incurred Rs.2,50,000/- towards medicines,, conveyance and attendant charges and to substantiate the same, he has produced Ex.P.7 and 8 - 2 Discharge Summaries issued by HOSMAT Hospital and Chinmayi Hospital, which show that the petitioner was treated as inpatient twice in all for a period of 7 days and the petitioner has also produced 39 Medical bills, which account to Rs.1,41,127/-. I have perused the medical bills. It is noticed that the Main Bills at Sl.No.1 is issued for Rs.1,13,400/- by HOSMAT Hospital and the remaining bills are towards purchase of medicines. Further, having suffered Closed comminuted fracture distal 1 1/3rd right tibia and fibula and SCCH-1 16 MVC 4757/2016 Shatzjker type 1 fracture left tibial condyle, the petitioner must have engaged a vehicle for his conveyance and some one must have attended to his needs when he was inpatient. Considering the same, I deem it just and proper to award Rs.1,41,127/- under the head medical expenses Rs.15,000/- under the head medical expenses, attendant, conveyance and miscellaneous expenses.
31. It is the case of the petitioner that he was aged 28 years and working as Bill Collector with Balaji Finance and getting an income of Rs.25,000/- per month and on account of the injuries suffered due to the accident, he not only suffered loss of income during treatment, but also suffered loss of earning capacity.
32. The petitioner, in order to prove his age, has got marked the copy of his PAN Card as Ex.P.9, which reveals his date of birth as 07.08.1987 and the accident having occurred on 21.05.2016, it can be said that he was running 29 years at the time of accident.
SCCH-1 17 MVC 4757/2016
33. In order to substantiate his avocation and income, the petitioner has produced Ex.P.10 - Salary Certificate issued by Sri Balaji Enterprises, Malleshwaram, Bangalore, which shows that the petitioner was working in their firm as Pigmy Collector for the past 8 years and drawing a salary of Rs.25,000/- per month. Except the said document, the petitioner neither examined his employer, nor the author of Ex.P.10, although he claimed in his cross-examination that he can examine the author of Ex.P.10, but failed to do so. Hence, considering the age of the petitioner as 29 years and also the cost of living during the year 2016 in which the accident has occurred, I deem it just and proper to take his income at Rs.8,000/- per month.
34. The petitioner having suffered segmental closed comminuted fracture distal 1 1/3rd right tibia and fibula and Shatzjker type 1 fracture left tibial condyle and having taken treatment for 7 days as inpatient at HOSMAT Hospital and Chinmayi Hospita at Udupi, must have suffered loss of income during the period of treatment. Usually, a fracture injury takes at least 8 to 10 weeks to heal followed by rest for a period of at SCCH-1 18 MVC 4757/2016 least 6 weeks. Thus, I award Rs.32,000/- under the head loss of income during the period of treatment for 4 months at the rate of Rs.8,000/- per month.
35. As discussed above, the petitioner having suffered Closed comminuted fracture distal 1 1/3rd right tibia and fibula and Shatzjker type 1 fracture left tibial condyle, contend that he has suffered permanent disability, which resulted in loss of future income. To substantiate the same, he has examined PW 2 Dr.Krishan Prasad, Orthopedic Surgeon, HOSAMAT Hospital, Bangalore as PW 2 and, according to the evidence of PW 2, the petitioner met with road traffic accident on 21.05.2016 in which he suffered comminuted fracture of both bones of right leg lower third tibial plateau fracture type 1 (left knee) and he was admitted on 21.05.2016 and discharged on 24.05.2016 and on 21.05.2016 the petitioner was treated by interlocking nailing right leg and multiple cancellous screw left tibial plateau and the right leg fracture went for union with pain and stiffness of the right knee, right ankle, the left knee tibia plateau fracture has gone for incomplete union with infection and he has a chance SCCH-1 19 MVC 4757/2016 of developing arthritis of left knee and he has instability of his left knee suggestive of posterior cruciate ligament tear and that on 04.01.2017, he assessed the disability with the complaints of not to do his work, difficulty in kneeling, squatting, sitting cross legged and climbing stairs and slopes and unable to walk fast and needs period of rest while walking and pain and oozing of puss in his left knee and instability of left knee and upon examination lower limb mobility, stability component and upon using combined values chart with reference to the standard manuals, he has assessed that the petitioner has suffered 60% disability to lower limb and 20% disability to the whole body. The further evidence of PW 2 is that the petitioner needs to undergo another surgery for removal of implants which may cost him Rs.1,00,000/- and further he needs MRI and ligament reconstruction of left knee at a later stage (after control of infection) which may cost Rs.1.5 lakhs. In support of his evidence, PW 2 has got marked Ex.P.15 - Recent Examination Report, Ex.P.16 - Inpatient Record and Ex.P.17 Outpatient Record.
SCCH-1 20 MVC 4757/2016
36. PW 2 has been cross-examined by the counsel for the respondent No.2, wherein he admits that he has not treated the petitioner. He further admits that after taking the treatment at HOSMAT Hospital, the petitioner went to Mangalore for further treatment. He further categorically admits that he has examined the petitioner only for assessment of disability. He admits that the right side fracture is united and the left side fracture is incompletely united with infection. It is suggested to him that even though the fractures are united, he is giving false evidence before the Court and the said suggestion has been denied by him. He admits that he has not given any estimation towards the cost of removal of implants.
37. In this case, PW 2 though has not treated the petitioner, but he is an orthopedic surgeon working at HOSMAT Hospital, wherein the petitioner was treated as inpatient. PW 2 deposes that the right side leg fracture is united and the left side leg fracture is incompletely united with infection. PW 2 in his evidence has given the detailed assessment of mobility and stability component and thus, after having taken in to SCCH-1 21 MVC 4757/2016 consideration the same, assessed the total disability at 60% has assessed the whole body disability at 20%. After having considered the evidence of PW 1 and PW 2 with regard to the nature of injuries and the percentage of disability assessed by PW 2 coupled with the medical records, in my opinion, the percentage of disability stated by PW 2, appears to be reasonable and hence, I accept the same.
38. As discussed above, the income of the petitioner is taken as Rs.8,000/- per month and the disability is taken at 20%. At the said rate, monthly loss of income works out to Rs.1,600/- and annually, it works out to Rs.19,200/-. As discussed above, the age of the petitioner at the time of accident was 29 years and thereby, the multiplier applicable to the case on hand is 17. Thus, if the annual loss of income of Rs.19,200- is multiplied by the 17 multiplicand, the same works out to Rs.3,26,400/-, to which the petitioner is entitled to under the head loss of income on account of disability.
39. The petitioner has suffered closed comminuted fracture distal 1 1/3rd right tibia and fibula and Shatzjker type SCCH-1 22 MVC 4757/2016 1 fracture left tibial condyle. Certainly, there will be some effect of the injuries throughout his life. Therefore, I deem it just and proper to award Rs.30,000/- under the head loss of amenities in life.
40. The evidence of PW 2, the doctor goes to show that the petitioner having Closed comminuted fracture distal 1 1/3rd right tibia and fibula and Shatzjker type 1 fracture left tibial condyle, has to undergo surgery for implant removal of both legs and needs MRI and ligament reconstruction left knee at a late stage (after control of infection) and for that, the petitioner has to incur Rs.2,50,000/-. In his cross-examination, PW 2 has categorically admitted that he has not given any estimation for such further treatment. But the fact remains that once the petitioner has been treated by implantation, the same has to be removed after some period. Considering the present day cost of living, if an amount of Rs.50,000/- is awarded towards future medical expenses, in my opinion, the same would meet the ends of justice and accordingly, I award Rs.50,000/- under the head future medical expenses, which shall not carry interest. SCCH-1 23 MVC 4757/2016
41. The petitioner is held to be entitled to compensation under the following heads:-
Sl.No. Heads of compensation Amount
Rs. Ps.
1. Pain and sufferings 60,000.00
2. Medical expenses
1,41,127.00
3. Conveyance charges, attendant 15,000.00
charges and other incidental
expenses
3. Loss of income on account of 3,26,400.00
disability
4. Loss of income during the period
of treatment 32,000.00
5. Loss of amenities in life 30,000.00
6. Future medical expenses 50,000.00
Total 6,54,427.00
42. As far as liability to pay the compensation amount is concerned, while answering issue No.1, it is held that the accident has occurred on account of rash and negligent driving of the Scooter by its rider. The respondent No.1 being the insurer and the respondent No.2 being the insurer, are jointly and severally liable to pay compensation. However, the respondent No.1 specifically contended that the insured has violated the terms and conditions of the policy, in as much as, the rider of the scooter was not holding licence to ride scooter SCCH-1 24 MVC 4757/2016 wheeler. In support of his contentions, the respondent No.2 has examined RW 2, an official and in his evidence, RW 2 has stated that the rider of the scooter bearing No.KA.05/JM.3408 was not holding valid and effective driving licence as on the date of the accident and further was not qualified for holding or obtaining such driving licence and further not satisfied the requirements of Rule 3 of the Central Motor Vehicles Rules 1989 and the respondent No. knowingly that the rider did not possess valid and effective driving licence, willfully entrusted the vehicle to the said rider, thereby the respondent No.2 has committed breach of terms and conditions of the policy and further the police after thorough investigation, have filed charge sheet under Section 3(1) read with Section 181 of the Motor Vehicles Act against the rider for not holding driving licence. He has got marked the Insurance Policy copy as Ex.R.4, Certified copy of Section 133 Notice as Ex.R.5 and Reply to the said Section 133 Notice as Ex.R.6.
43. RW 2 has been cross-examined by the counsel for the petitioner, wherein he admits that in the Reply given under SCCH-1 25 MVC 4757/2016 Section 133 Notice, the owner has not mentioned that the driver was not having the driving licence. It is suggested to him that the driver Sanganna was having licence to drive the vehicle and he is falsely deposing before the Court and the said suggestion has been denied by him.
44. RW 2 has also been cross-examined by the counsel for the respondent No.2, wherein he admits that the 2nd respondent was not driving the vehicle at the time of accident and the charge sheeted person was driving the vehicle.
45. As against the same, the respondent No.2, who got himself examined as RW 1, has deposed that at the time of accident, he being the owner of the scooter, his vehicle was covered by an insurance policy with 1st respondent and he was having valid driving licence and in case of any liability, the same be saddled on the respondent No.1. In support of his evidence, he has got marked the copy of the RC as Ex.R.2 and the copy of the driving licence as Ex.R.3.
46. RW 1 has been cross-examined by the counsel for the respondent No.1, wherein he categorically admits that after the SCCH-1 26 MVC 4757/2016 accident, the Police have given notice and he replied to the same and at the time of accident, one Sanganna was driving the scooter and that he was not having driving licence.
47. In the cross-examination by the Counsel for the petitioner, RW 1 denies the suggestion that on the date of accident, he was riding the motorcycle.
48. During the course of the arguments, the counsel for the respondent No.2, placed reliance on the following judgments:-
1) (1987) 2 Supreme Court Cases 654 (Skanda Insurance Co., Ltd., Vs Kokilaben Chandravadan and others) wherein it has been held as under:-
"Motor Vehicles Act, 1939 - Sections 96(2)(b)(ii) and 84 - Breach of condition of excluding driving of vehicle of the insured owner by a person not duly licenced - Extent of vicarious liability of the owner in case of accident - Held, owner not liable where accident caused by an unlicenced person when licenced driver employer by the owner left the vehicle unattended contrary to express or implied orders of the owner - Exclusion clause in the contract of insurance making the owner absolutely liable irrespective of circumstances leading to driving of unlicenced driver must be read down being in conflict with the main statutory provision - Deeds and Documents - Contracts - Interpretation of - Contrct Act, 1872, Section 23"
2) AIR KARR 2016 2 395, LAWS (KAR) 2015 11 344 ( United India Insurance Co., Ltd., Vs Rathna and others). In the said case, the High Court of Karnataka was dealing with the question "Whether police charge sheet could be relied upon to hold that the driver of the insured vehicle had no driving licence as on the date of the accident" and in para 8, the High SCCH-1 27 MVC 4757/2016 Court held thus: 8. To hold that the driver of the insured vehicle had no driving licence as on the date of the accident, there must be clear evidence on the record of the case to that effect, Police charge sheet is no evidence to hold that the driver of the insured vehicle had no driving licence as on the date of the accident".
49. The counsel for the respondent No.1, by placing reliance on the principles laid down in the above judgments, vehemently contended that mere filing of charge sheet against the driver of the offending vehicle by itself will not be a conclusive proof to hold that there is violation of policy conditions and the same has to be proved by placing on record cogent evidence and in this case, neither the police officials are examined nor the RTO officials and since the vehicle was duly insured with the respondent No.1, prayed the Court to fasten the liability on the respondent No.1.
50. The counsel for the petitioner argued in support of the arguments advanced by the Counsel for the respondent No.2.
51. Countering the same, the counsel for the respondent No.1, in his arguments, contended that the fact that one Sanganna was riding the scooter is clearly admitted by the respondent No.2 in his evidence and also in the Reply given by SCCH-1 28 MVC 4757/2016 the respondent No.2 to the Police in response to the notice given to him under Section 133. Further, RW 1 the owner of the vehicle in his cross-examination has also very specifically admitted that the said Sanganna was not holding licence to drive the scooter. Thus, when the respondent No.2 has admitted in clear terms that one Sanganna was riding the scooter and that too he was not holding licence to ride the scooter, I think, the same is sufficient for this court to hold that the respondent No.2 has violated the policy conditions, in entrusting the vehicle to be driven by a person, who had no valid and effective driving licence. If this opinion of mine was based on the contents of the charge sheet, then the principles laid down in the case relied upon by the respondent No.2, supra (AIR KARR 2016 2 395 = LAWS (KAR) 2015 11 344), could have been applied to this case. Further, the facts of the case and the principles laid down in the case relied upon by the respondent No.2 reported in (1987) 2 Supreme Court cases 654, being different from the case on hand, are not applicable to the case on hand. Hence, it is held that when the owner of the vehicle himself has clearly and SCCH-1 29 MVC 4757/2016 categorically admitted that the rider of the vehicle was no holding licence to ride the scooter, this Court has no option but to hold that there being violation of policy conditions, the respondent No.2 is alone liable to satisfy the award and the petition as against the respondent No.1 is liable to be dismissed.
52. In a case reported in (2011) 4 SCC 481 : (AIR 2012 SC
100) (Municipal Council of Delhi Vs. Association of Victims of Uphaar Tragedy), the Supreme Court has held that the Court has to take into account the rate of interest of the nationalized bank and the present day cost of living and thereby awarded, interest on the compensation amount at 9% p.a. I have no reasons to deviate from the said view of the Apex Court. Accordingly, interest on compensation amount is awarded at 9% p.a.
53. Issue No.4;- In the result I proceed to pass the following:-
ORDER The petition filed by the petitioner is allowed in part. The petitioner is awarded compensation of Rs.6,54,427/- with interest at the rate of 9% per annum (on Rs.6,04,427/- only) from the date of petition till realization from the SCCH-1 30 MVC 4757/2016 respondent No.2, who shall pay the compensation amount within 2 months from the date of this order.
Out of the compensation amount, 50% with proportionate interest shall be invested in high yielding fixed deposit in the name of petitioner for a period of 5 years, in any of the nationalized or scheduled bank of the choice of petitioner. Remaining amount with proportionate interest is ordered to be released to the petitioner.
Petition as against the respondent No.1 is dismissed. Advocate's fee is fixed at Rs.1,000/-.
Draw an award accordingly.
(Dictated to the Judgment writer directly on computer, corrected, revised and then pronounced by me in open court on 20.03.2017) (H.P.SANDESH) Member, Prl. M.A.C.T. Bangalore ANNEXURES List of witnesses examined on behalf of the petitioner PW 1 - Srikanth PW 2 - Dr.Krishan Prasad List of witnesses examined on behalf of the Respondents:
R.W.1 - M.Karthik R.W.2- Nagendra R.,
List of documents marked on behalf of the petitioner :
Ex.P1: Copy of FIR
Ex.P2: Copy of Spot Sketch
SCCH-1 31 MVC 4757/2016
Ex.P3: Copy of Spot Mahazar
Ex.P4: IMV Report
Ex.P5: Charge Sheet
Ex.P6: Wound Certificate
Ex.P7&8 Discharge Summary
Ex.P.9: Notarised copy of PAN Card
Ex.P.10: Salary Certificte
Ex.P.11: 2 Photos with CD
Ex.P.12: Medical Bills
Ex.P.13: 15 Prescriptions
Ex.P.14: Lab Reports
Ex.P.15: Recent Examination Record
Ex.P.16: Inpatient Record
Ex.P.17: Outpatient Record
Ex.P.18: 18 X rays
List of documents marked on behalf of the Respondents:
Ex.R.1 - Policy Copy Ex.R.2 - Registration Certificate Ex.R.3 - Driving Licence Copy Ex.R.4 - Policy Copy Ex.R.5 - Certified copy of Section 133 Notice Ex.R.6- Reply to Section 133 Notice (H.P.SANDESH) Member, Prl. M.A.C.T. Bangalore