Bangalore District Court
Or By It vs No.1 Insurance Company Is on 8 February, 2017
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 8th day of February, 2017.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com.,LL.B.(Spl.),L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.6760/2013
Baby Thrisha Nayak, ..... PETITIONER
Aged about 8 years,
D/o. Smt. Swetha,
Aged about 25 years,
W/o. Venkatesh Nayak,
Bannerugatta Road,
Hulimavu,
Bangalore.
(By Sri. M.E. Manjula, Adv.,)
V/s
1. Meru Cab Company Pvt. Ltd., ..... RESPONDENTS
9/4 Zanasha Alpha Building,
IInd Floor, Above Staples,
Marthahalli, Outer Ring Road,
Varthur Hobli,
Marathalli Colony,
Bangalore.
2. National Insurance Company Ltd.,
Mission Road, No.144,
Subharam Complex,
M.G. Road,
Bangalore.
Represented by its Administrative
Officer.
2 M.V.C.NO.6760/2013
(SCCH-7)
(Policy No.270108/31/17/6700008693,
Valid from 23.05.2012 to 23.05.2013)
3. C. Sindu,
D/o ......
Major,
No.37/75, 2nd Main Road,
Gangadhar Layout,
Vijayanagar,
Bangalore - 40.
(Vehicle bearing Registration No.KA-02-
MH-0975 Toyota Eitios Liva Car)
4. D.N. Ravichandra,
S/o. Ningegowda,
Aged about 30 years,
R/at No.51, KEB Road,
Chokkasandra.
T. Dasarahalli,
Tumkuru Road,
Bengaluru.
(R1- By Sri. Prasanna Kumar, Adv.,)
(R2- By Sri. V. Subramani, Adv.,)
(R3- By Sri. M. Prashanth, Adv.,)
(R4- Exparte)
JUDGMENT
It is pertinent to note here that, initially, the Petitioner had filed the present petition only as against the Respondents No.1 to 3 and later, as per the Order dated 03.02.2016 passed on I.A.No.III filed by the Respondent No.1, the Respondent No.4 is impleaded as party to the present petition. Hence, the present petition is pending for consideration and disposal as against the Respondents No.1 to 4.
2. The Petitioner has filed the present petition as against the Respondents No.1 to 4 under Section 166 of the Motor 3 M.V.C.NO.6760/2013 (SCCH-7) Vehicles Act, 1989 praying to award compensation of Rupees 5,00,000/- with interest and costs.
3. The brief averments of the Petitioner's case are as follows;
a) On 04.02.2013, she along with her mother and grandfather were traveling in a City Taxi Car bearing Registration No.KA-53-6386 and they were proceeding from Tiptur towards Bangalore and met with an accident around 5-45 p.m., on N.H.206 in between Kotenayakanahalli Gate and Bommanahalli Gate involving another Toyota Etois Liva Car bearing Registration No.KA-02-MH-975, coming in the direction from Bangalore towards Tiptur. Due to impact, she and her grandfather Sri. M.D. Krishnappa have sustained grievous injuries and they were shifted to Sanjay Gandhi Accident Hospital and Research Institute, Byrasandra, Bangalore. She had sustained fracture of shaft femur right and other injuries, which are grievous in nature and took medical treatment as an outpatient therein and also at K.C. General Hospital.
b) She was studying at 4th Standard at relevant point of time and she was good in Academic and other sports and cultural activities and the injuries sustained by her as impaired her studies and other activities.
c) As on the date of filing of the petition, she has incurred approximately a sum of Rupees 40,000/- towards medical and other incidental expenses and she is still undergoing medical treatment. Hence, she has to incur future medical expenses as well as other incidental expenses. Still now also she is suffering 4 M.V.C.NO.6760/2013 (SCCH-7) pain difficulty in hold the weight walking, standing, climbing steps, sit squat, she required one more surgery for removal of implants.
d) The Police, after investigation, have charge sheeted the driver of City Tax bearing Registration No.KA-53-6386, owned by M/s. Meru Car Co.
e) The first Respondent of the said vehicle was insured with the Respondent No.2. The said insured vehicle is classified as passenger Carrying commercial vehicle and it covers the risk of passenger and inmates of the said vehicle on the date of accident.
f) The insurer and insured in respect of Maxi Cab Car bearing Registration No.KA-53-6386, are jointly and severally liable to pay the compensation to her along with interest including the cost of the proceedings.
g) This Hon'ble Court has jurisdiction to entertain the petition, in whose jurisdiction, she is permanently residing and also the insured of the vehicle bearing Registration No.KA-53- 6386, running its Office in Bangalore.
h) The Insurer of the vehicle bearing Registration No.KA- 02-MH-0975 Toyota Etios Liva Car is not made party to in this proceeding since the insurance particulars are not available to her. However, the Insurer has been made party in this proceeding as a 3rd Respondent and she may be directed to furnish insurance particulars of the Insurer. Hence, this petition.
5 M.V.C.NO.6760/2013(SCCH-7)
4. In response to the notice, the Respondent No.1 has appeared before this Tribunal through its Learned Counsel and has filed the written statement.
5. In response to the notice, the Respondent No.2 has appeared before this Tribunal through its Learned Counsel and has filed the written statement.
6. In response to the notice, the Respondent No.3 has appeared before this Tribunal through her Learned Counsel. But, initially, inspite of giving sufficient opportunities, the Respondent No.3 had not filed the written statement. Later, as per the Order dated 28.10.2014 passed on I.A.No.I, the written statement filed by the Respondent No.3 is taken on file.
7. As per the Order dated 03.02.2016 passed on I.A.No.III filed by the Respondent No.1, the Respondent No.4 is impleaded as party to the present petition. Though the notice was duly served on the Respondent No.4 through paper publication, he was remained absent and hence, he is placed as exparte on 19.08.2016.
8. The Respondent No.1 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) The City Taxi Car bearing Registration No.KA-53-6386 is insured with the Respondent No.2 under its Policy bearing No.278108/31/17/6700008693 for the period from 23.05.2012 to 22.05.2013 and the policy was in force as on the date and time of the accident. Hence, the Respondent No.2 is liable to indemnify its Company in the event of an award is passed by this Hon'ble Court as against its Company.
6 M.V.C.NO.6760/2013(SCCH-7)
b) The driver of the vehicle was holding a valid and effective driving licence to drive the vehicle at the time of the accident.
c) The compensation claimed by the Petitioner of the petition is highly exorbitant, speculative and fanciful.
d) The Petitioner and other occupants of the City Taxi Car bearing Registration No.KA-53-6386 were traveling unauthorizedly in the said Car in connivance of the driver of the Car. Hence, as per the agreement with the driver and it, the driver has to indemnify its Company in the event of an award being passed against its Company in addition to the indemnification by the Insurer of its Company.
e) The driver of the vehicle bearing Registration No.KA- 53-6386 has lodged a written complaint before the Tiptur Rural Police Station stating that, the said accident was caused due to the rash and negligent driving of the driver of the vehicle bearing Registration No.KA-02-MH-975 and the driver of the said vehicle bearing Registration No.KA-02-MH-975, the Insurance Company of the said vehicle, which is involved in the accident, are the necessary parties in addition to the owner, who is the Respondent No.3.
f) The driver of the vehicle bearing Registration No.KA- 53-6386 has admitted in the complaint lodged by himself to the Tiptur Rural Police Station that, the Petitioner is his relative and it is to be noted that, the relative is not a passenger/third party under the M.V. Act, 1988 and neither the booking of the said trip is not made as per the Cab Booking platform of its Company.
7 M.V.C.NO.6760/2013(SCCH-7)
g) The alleged accident has occurred due to involvement of two Cars, i.e., Car bearing Registration No.KA-53-6386 and No.KA-02-MH-0975. The Petitioner have made only the owner of the Car bearing Registration No.KA-02-MH-0975 without making the Insurance Company and drivers of the two Cars as parties to the petition. Hence, the petition suffers from non-joinder of necessary parties.
h) It craves leave of this Hon'ble Court to permit them to file their additional Written Statement in the changed circumstances. Hence, prayed to dismiss the petition.
9. The Respondent No.2 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) The petition as brought by the Petitioner under Section 166 of the M.V. Act is not maintainable either in law or on facts of the case.
b) The Respondent No.1 did not report and furnish the vehicle documents, such as, R.C. Book, Insurance, F.C., Permit etc., pertains to the Mahendra Logan City Taxi bearing Registration No.KA-53-6386 and driving licence of the person, who was driving it at the time of accident, to it for verification immediately after the alleged accident as required under the terms and conditions of the policy and the provisions of Section 134(c) of M.V. Act and rules framed there under.
c) The driver of the said Mahendra Logan City Taxi bearing Registration No.KA-53-6386 was not holding a valid and effective driving licence at the time of accident and further was not qualified for holding such driving licence. The Respondent No.1 8 M.V.C.NO.6760/2013 (SCCH-7) has handed over the possession of the said vehicle to the said driver and therefore, he has contravened the proviso of the M.V. Act and Rules famed there under and has also committed the breach of the terms and conditions of the policy.
d) The Respondent No.1/Owner of the offending Mahendra Logan City Taxi bearing Registration No.KA-53-6386 is not possessing the valid vehicle documents, such as, R.C., Tax Card, Permit and F.C., etc., as on the date of accident, as such, he has violated the terms and conditions of the policy and various provisions of the M.V. Act, State and Central Rules, under the said circumstances, it is not liable to indemnify the insured and not liable to pay any compensation to the Petitioner.
e) The Owner/Respondent No.1 of the said Mahendra Logan City Taxi bearing Registration No.KA-53-6386 is not possessing the valid Permit and F.C. as on the date of accident, as such, he has violated the provisions of necessity of Permit and F.C. as envisaged in the M.V. Act, State and Central Rules and also the terms and condition of the policy, as such, it is not liable to pay any compensation to the Petitioner. The Petitioner and also the Respondent No.1 are put to strict proof that, there was no violation of any Sections/Provisions of M.V. Act, 1988 and its subsequent amendments. In the absence of the valid Permit and F.C., it is not liable to indemnify the insured and also not liable to pay any compensation to the Petitioner.
f) The jurisdictional Police Authorities have filed the Charge Sheet under Sections 279, 337 and 338 of IPC and under Section 192A and 197 of M.V. Act against the driver of the Mahendra Logan City Taxi bearing Registration No.KA-53-6386, as 9 M.V.C.NO.6760/2013 (SCCH-7) such, there exist clear cut violations of the Permit, hence, the terms and conditions of the policy and also various provisions of the M.V. Act, State and Central Rules are breached, as such, it is the Insurer, is not liable to indemnify the Insured and not liable to pay any compensation to the Petitioner.
g) The offending Mahendra Logan City Taxi bearing Registration No.KA-53-6386 possess the Permit as City Taxi valid from 13.06.2008 to 12.06.2013, but, restricting its plying jurisdiction within 25 kms radius from the limits of Bangalore City Corporation area only and not other routes. Since the said vehicle has met with an accident near Kotenayakanahalli Curve, Kasaba Hobli, Tiptur Taluk, Tumkur District, it resulted in the clear cut violations of the Permit, as such, the terms and conditions of the policy and also various provisions of the M.V. Act, State and Central Rules are breached, as such, it is the Insurer, is not liable to indemnify the insured and not liable to pay any compensation to the Petitioner.
h) The amount of compensation claimed in all Rupees 5,00,000/- together with interest jointly and severally from the Respondents No.1 and 2 is without any basis, arbitrary and astronomical. The Petitioner is not entitled to any compensation, much less, the compensation sought for. The Petitioner is put to strict proof of the same.
i) It is not furnished with the documents as required under Section 158(6) of M.V. Act, read with Rule 231(A) of the Karnataka Motor Vehicles Rules by the Police Authorities.
10 M.V.C.NO.6760/2013(SCCH-7)
j) It reserves its liberty to file its additional statement of objections as and when found necessary due to changed circumstances of law and facts of the case.
k) It reserves its right to defend the claim on various grounds, which are all available under Section 149(2) also by filing I.A. under Section 170 of the M.V. Act, 1988, if the Respondent No.1, the Owner of the said vehicle, had been either placed exparte or even represented, but, fails to contest the case at all stages of the proceedings until its adjudication by this Hon'ble Tribunal. It seeks protection under Section 147 and 149(2) of M.V. Act.
l) If there exist breach of the terms and conditions of the policy and or violation of provisions of M.V. Act, 1988 or State and Central Rules, it is not liable to indemnify the insured. It is also submitted that, by virtue of the various latest Judgments passed by the Hon'ble Supreme Court of India by virtue of Article 142 of the Constitution of India, the Insurer is not liable to pay any compensation, when the driver does not possess a valid and effective driving licence, valid Permit and other breaches, etc., as stated above, the Owner and the Driver alone are liable to compensate the Petitioner.
m) It shall take up the matter suitably with the said Office to forward the policy, if issued by them and until receipt of the same, it denies the policy. If the alleged policy would have been issued by them, the same shall be produced either by the Petitioner or by it, if any, issued, which shall be enforced subject to compliance of its terms and conditions, the provisions of the M.V. Act, 1988, Section 64 VB of Insurance Act, 1938, State and 11 M.V.C.NO.6760/2013 (SCCH-7) Central Rules by the Respondent No.1 and if there exist any violation or breach of the same by the Respondent No.1, it is not liable to pay any compensation. The Insured/Respondent No.1 may kindly be directed to produce the original Insurance Policy before the Hon'ble Tribunal, failing which, it is not liable to indemnify.
n) In the event, if this Hon'ble Tribunal coming to conclusion that, the Petitioner is entitled to compensation with interest, then, the rate of interest that would be awarded on there of shall be restricted to 4% p.a., in view of the interest rate for the deposits allowed by various nationalized Banks.
o) On contrary, the alleged accident has caused solely due to the rash and negligent driving of the Toyota Etios Liva only by the driver of the said Car also, as such, there exist contributory negligence on the part of both the drivers. The Petitioner is put to strict proof of the same with documentary evidence.
p) The Petitioner shall not be eligible for the interest on compensation towards future medical expenses, if any, allowed by this Hon'ble Tribunal by virtue of the decision of Hon'ble Supreme Court rendered in R.D. Hattangadi V/s, Pest Control of India(P) Ltd., reported in AIR 1995 755 (S.C.). Hence, prayed to dismiss the petition with costs.
10. The Respondent No.3 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) The present petition is not maintainable under law.
12 M.V.C.NO.6760/2013(SCCH-7)
b) The mere fact is that, to perform the pooja at Sigandure Temple, her and her friend Ponanna left the house at Bangalore on 04.02.2013 at around 3-00 p.m., with the vehicle bearing Registration No.KA-02-MH-975 Toyota Etios Liva, which was driven by her friend Ponanna and they are traveling through N.H.206 via Tumkur K.B. Cross towards Shivamogga, when they are nearer to Tiptur at around 5-45 p.m., when they are passing through Kotanayakahalli Curve, she was traveling left side of the road, at that time, from the opposite side, the driver of the vehicle bearing Registration No.KA-53-6386 (Mahendra Logan City Taxi) driving the vehicle rash and negligent and hit directly to the Petitioner vehicle on the right side, who traveling on the left side of the road and the same could be evidenced from the Mahazar copy of the rural Police.
c) The accident occurred due to the rash and negligent driving of the driver of the vehicle bearing Registration No.KA-53- 6386, who could not able to control the vehicle, the accident was occurred due to rash and negligent driving of the driver of the vehicle bearing Registration No.KA-53-6368, by this accident, she caused fracture, sustained grievous injury, then the Petitioner was shifted to the Tiptur Government Hospital for first-aid, then, she was shifted to Columbia Asia Hospital at Malleshwaram Bangalore for treatment as an inpatient and the Petitioner sustained permanent disability and continuing the treatment till today, which is caused rash and negligent of the driver of the vehicle bearing Registration No.KA-53-6368.
d) Due to this accident, she sustained permanent disability, permanent disfigurement and her left six and seven rib displaced fracture and left seven and eight rib fracture, which is 13 M.V.C.NO.6760/2013 (SCCH-7) clearly mentioned in the Wound Certificate and the Doctor suggested to take bed rest for 6 months.
e) The Tiptur Rural Police registered a case as against the driver of the Vehicle bearing Registration No.KA-53-6368, punishable under Sections 279 and 337 of Cr. P.C. and till today, the Petitioner is under medical treatment and spent around Rupees 35,000/- towards medical treatment, better nourishment, traveling and attending charges, Hospital charges etc., Apart from the other loss of income and other damages, the Doctor instructed her to take bed rest for 6 months and all the above is caused due to rash and negligent driving of the driver of the vehicle bearing Registration No.KA-53-6368.
f) All the above are due to the rash and negligent driving by the driver of the vehicle bearing Registration No.KA-53-6368 and by knowing the fact, the Petitioner with malafide intention made her to the party to the suit to the present case to gain the illegal benefits from her. Hence, prayed to dismiss the petition with costs.
11. Based on the above said pleadings, I have framed the following Issues;
ISSUES
1. Whether the Petitioner proves that the accident occurred due to rash and negligent driving of the City Taxi bearing Reg.No.KA-53-6386 by its driver and in the said accident, she sustained injuries?
14 M.V.C.NO.6760/2013(SCCH-7)
2. Whether the Petitioner is entitled for compensation? If so, how much and from whom?
3. What Order?
12. In order to prove her case, the Petitioner has examined her mother, who is her natural guardian as P.W.1 and has also examined one witness as P.W.2 by filing the affidavits as their examination-in-chief and has placed reliance upon Ex.P.1 to Ex.P.16. On the other hand, the Respondent No.2 has examined its Deputy Manager as R.W.1 by filing an affidavit as his examination-in-chief and has placed reliance upon Ex.R.1 to Ex.R.4. On the other hand, the Respondent No.1 has examined its authorized representative as R.W.2 by filing an affidavit as his examination-in-chief and has placed reliance upon Ex.R.5 to Ex.R.14. On the other hand, the Respondent No.3 has not adduced any evidence on her behalf.
13. Heard the arguments. The Learned Counsel appearing for the Respondent No.1 has filed the written arguments.
14. In support of the submission, the Learned Counsel appearing for the Petitioner Smt. M.E. Manjula has placed reliance upon the decisions reported in,
i) AIR 2013 SUPREME COURT 2262 (Iyyapan V/s. M/s. United India Insurance Company Limited and Another), wherein, it is observed that, (A) Motor Vehicles Act (59 of 1988), S.149 - Liability of insurer - Defence of violation of condition of policy - Does not 15 M.V.C.NO.6760/2013 (SCCH-7) absolve insurer of its statutory liability to pay compensation to their party - Defences available under S.149 only safeguards interest of insurer in certain circumstances by enabling it to recover same from insured.
(B) Motor Vehicles Act (59 of 1988), S.149, S.146 - Liability of insurer - Accident involving Maxi Cab and cycle - Driver of Maxi Cab holding valid licence to drive light Motor Vehicles - But, did not have endorsement to drive Maxi Cab - Mere absence of endorsement does not exonerate insurer of its statutory liability to pay compensation.
ii) AIR 2003 SUPREME COURT 511 (Bhavnagar University V/s. Palitama Sugar Mills Pvt., Ltd., and Others, wherein, it is observed that, (D) Constitution of India, Art.1.41- Precedential value of a decision-Little difference in facts/ additional facts-May affect precedential value of decision settled that, a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.
15. In support of the submission, the Learned Counsel appearing for Respondent No.1 Sri. P. Prasanna Kumar has placed reliance upon the decisions reported in,
i) M.F.A.No.1201/2011 (MV) High Court of Karnataka, Bengaluru (Durugamma V/s. S.G. Nagesh and Others), wherein, it is observed that, 16 M.V.C.NO.6760/2013 (SCCH-7)
17. It is beneficial to refer to this provision only to ascertain the intention of the legislature in employing the words 'the purpose for which the vehicle may be used'. There are different kinds of contravention of the permit. One of it is relating to the route on which or the area in which the vehicle may be used. The purpose for which the vehicle may be used is distinguishable from the terms and conditions of the permit.
Utmost, route on which or the area in which the vehicle may be used is one of the terms and conditions of the permit. But, it cannot be construed as the purpose for which the vehicle may be used. The Hon'ble Apex Court while considering this aspect relating to Section 207 of the Act, in the case of State of Maharashtra and Others V/s Nanded-Parbhani Z.L.B.M.V Operator Sangh' reported in 2000 (2) SCC 69 has observed thus:
"According to the Learned Counsel appearing for the State of Maharashtra the expression "purpose for which the vehicle may be used" could be construed to mean that, when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of a stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for state carriage or contract carriage is used as a goods vehicle and vice versa".
18. Though this decision is rendered in the context of Section 207 of the Act, the same would thrown light to interpret the words' for a purpose not allowed by the permit' under Section 149(2)(a)(i)(c) of the Act. 'Purpose' would be construed as stage carriage, contract, carriage, goods carriage, 17 M.V.C.NO.6760/2013 (SCCH-7) private vehicle, temporary permit and soon. The terms and conditions attached t each type of permit cannot be construed as the purpose for the permit. 'Purpose' and the terms of conditions' are two different aspects. The legislature in its wisdom though it fit to restrict the defence available under Section 149(2)9a)(i)(c) of the Act 'for a purpose not allowed by the permit' and not for 'violation of any terms and conditions of the permit'. For example, if a vehicle holding goods carriage permit is carrying passengers or vice-versa. Then, it can be held that, the vehicle holding goods carriage permit is being used for a purpose not allowed by the permit. The breach of conditions of the permit would by itself cannot be characterized as the purpose to allow in the permit. In CHALLA BHARATHAMMA's case (supra), the Hon'ble Apex Court has held thus:
"12. High Court was of the view that, since there was no permit, the question of violation of any condition thereof does not arise. The view is clearly fallacious. A person without permit to ply a vehicle cannot be placed at a better pedestal vis-à- vis one who has a permit, but, has violated any condition thereof, plying of a vehicle without a permit is an infraction. Therefore, in terms of Section 149(2) defence is available to the insurer on that, aspect. The acceptability of the stand is a matter of adjudication. The question of policy being operative had no relevance for the issue regarding liability of insurer. High Court written statement, therefore, not justified in holding the insurer liable".
The said judgment is rendered in the context of 'no permit'. The motor vehicle not possessing a permit means the vehicle was not permitted to ply in the public place or in other words, there is infraction of law which 18 M.V.C.NO.6760/2013 (SCCH-7) clearly established the sue of the vehicle for a purpose not allowed in law. Hence, the said judgment of CHALLA BHARATHAMMA's case (supra) is not applicable to the facts of the present case.
21. For the aforesaid reasons, this Court is of the considered opinion that, the impugned Judgment is not fit to be sustained in much as the liability aspect is concerned. The liability fastened on the registered owner of the vehicle is set aside. The insurer/Respondent No.3 shall be liable to satisfy the award.
ii) M.F.A.No.2097/2011(MV), M.F.A.No.2096/2011 (MV), M.F.A.No.1904/2011 (MV) and M.F.A.No.2097/2011, High Court of Karnataka, Bengaluru (Moganna and Others V/s. M/s. IFFCO Tokio General Insurance Company Limited, Nagaraj V/s. IFFCO Tokio General Insurance Company Ltd., Thresa and IFFCO Tokio General Insurance Company Ltd., V/s. Santosh Kumar), wherein, it is observed that,
9. As the Insurance Policy does not contain the condition stated in Section 149 (2) (a) (i) (c) of the Act, the Tribunal has erred in absolving the Insurance Company of the liability to pay the award amounts. The Tribunal has failed to examine as to whether the Insurance Policy contained the condition stated in Section 149(2) (a) (i) (c) of the Act. Accordingly, dismissal of the claim petitions by the Tribunal as against the Insurance Company is set aside.
Respondent No.1 Insurance Company is held liable to pay the award amounts jointly and severally along with the owner of the vehicle" Respondent No.2. The impugned judgment and awards stand modified accordingly.
19 M.V.C.NO.6760/2013(SCCH-7)
iii) AIR 2000 SC 725 (State of Maharastra V/s. Nandel Parbhani ZLBMV Operator Sangh), wherein, it is observed that, (8) The aforesaid power of seizure has been conferred upon the appropriate authority, which power is in fact a sovereign power of the State and has been delegated to the police officer in discharge of their duties of law enforcement and in the enforcement of an orderly society. The power, therefore, is required to be exercised with care and caution and the power has to be exercised only when the precondition for exercise of power is fully satisfied. It is a cardinal principle of rule of construction of statue that, when the language of a status is fairly and reasonably clear, then inconvenience or hardships are valid as on the date of accident no considerations for refusing to give effect to that, meaning. It is not the contention of the Learned Counsel appearing for the State nor can it be said that, on giving a plain meaning to the words used in Section 207(1) of the Act, there will be any absurdity of would make the statue offending any proviso of the Constitution. Tindal, C. in Sussex Peerage Case (1844) 11 CL and F85, p.143, applying the rule has stated-"if the words of the statue are in themselves precise and unambiguous, then no more can be necessary than to expound those words in themselves do alone in such cases best declare the intent of the lawgiver". In Emperor V Benoarilal Sarma, AIR 1945 PC 48 p.53 Viscount Simonds held-"this Board has insisted that, in construing unambiguous works, we are not concerned with the policy involved or with the results injurious or otherwise, which may follow from giving effect to the language used". In Kanilal Sur V. Paramnidhi Sadhu Khan AIR 1957 SC 907, p.910, Gajendragadkar, J., as he then written statement held" If the words used are capable of open to the Courts to adopt any 20 M.V.C.NO.6760/2013 (SCCH-7) other hypothetical construction on the ground that, such construction is more consistent with the alleged object and policy of the Act". The intention of the legislature is required to the fathered from the language used and there fore a construction which requires for is support with additional substitution of words or which result sin rejection of words as meaningless has to be avoided. Bearing in mind, the aforesaid principles of construction of state and on examining the provisions of Section 207 of the Act, which has been quoted earlier,, they have no doubt in their mind that, the police officer would be authorized to detain a vehicle. If he has reason to believed that, the vehicle has been or in being used in contravention of Section 3 or Section 4 or Section 39 or without the permit required under subsection (1) of Section 66 or in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used. In the case in hand, we r are not concerned with the contravention of section 3 or Section 4 or Section 39 or subsection (1) of Section 66 and if we are only concerned with the question of contravention of the condition of permit. Reading the provisions as it is, the conclusion is irrespirable that, the conditions of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorize the police officer to detain the vehicle and not each and every condition of permit or being violated or contravened, the police officer would be entitled to detain the vehicle. According t the Learned Counsel appearing for the state of Maharastra, the expression purpose for which the vehicle may be used could be construed to mean that, when the vehicle is found to be carrying passengers more than the number prescribed in the permit the purpose of user is otherwise, we 21 M.V.C.NO.6760/2013 (SCCH-7) are unable to accede to this contention as in our opinion the purpose would only refer to a contingency when vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But, carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted. If the legislation on the police officer for violation of any condition of the permit, then there would not have been the necessity of adding the expression' relating to the route on which or the area in which or the purpose for which the vehicle may be used". The user of the aforesaid expression cannot be ignored nor cannot be said to be a tautology.
iv) APPELLATE CIVIL (M/s. Hanuman Transport V/s. M/s. Ruby General Insurance Co. Ltd., and Another), wherein, it is observed that,
7. It was contended that, the road from Shankarapura to Pillarkhan was not on the route sanctioned in the permit in question and therefore, the permit did not cover the plying of the bus on the road from Shankarapura to Pillarkhan and hence, it cannot be held that, the bus was plying under a stage carriage permit when the accident took place on the road between Shankarapura and Pillarkhan. We are unable to agree with this contention. 'stage carriage' is defined in Section 2 (29) of the Act, as follows:
"State carriage' means a motor vehicle carrying or adapted to carry more than six persons excluding the driver which carries passengers for hire or reward at separate 22 M.V.C.NO.6760/2013 (SCCH-7) fares paid by or for individual passengers either for the while journey or for stages of the journey.
Permit is defined in Section 2(2) of the Act as follows:
'Permit' means the document issued by the commission or a state Regional Transport Authority authorizing the sue of a transport vehicle as a contract carriage or stage carriage or authorizing the owner as a private carrier or public carrier to use such vehicle.
It goes without paying in view of these definitions that, the purpose for which a stage carriage. Fixing of the route and the timings would amount to providing restrictions in the manner of plying the vehicle as a stage carriage under the stage carriage permit. These restrictions have clearly nothing to do with the purpose for which the permit is granted. These restrictions vehicle Written Statement plying on a road which was not covered by any of the routes specified in the permit, would necessarily mean that, one of the conditions of the permit was violated at the time of accident took place. That, cannot be held to mean that, the vehicle was at that point of time, plying on the road without a stage carriage permit.
8. The Learned Advocate appearing on behalf of the insurer vehemently urged that, as pr the terms of the policy which is Ex.R.4 there was a limitation place in regard to use of the vehicle that, it should ply only under a stage carriage permit within the meaning of the Act, and in view of the fact that, the bus had plied beyond the route sanctioned to it in the permit in question, it will have to be held that, this term in the insurance policy had been violated at the point of time when the accident took place and hence, the 23 M.V.C.NO.6760/2013 (SCCH-7) insurer was not liable to pay any damages or compensation. The limitation found in the term in the policy is as follows:
"use only under a stage carriage permit within the meaning of Motor Vehicles Act, 1939".
We have already shown that, the fact that, the bus was at relevant point of time, plying on a road not covered by the route mentioned in the permit, amounts only to a breach of condition of the permit and does not affect the purpose, for which the stage carriage permit was granted i.e., to ply this vehicle as a stage carriage. It is clearly seen that, in spite of breach of such condition, the permit remained valid and the bus could continue to ply on the route mentioned in the permit under the same said permit.
Breach of a condition of the permit did not automatically invalidate the permit and make it ineffective in law. The clause in the policy does not specifically lay down anything about violating conditions of the stage carriage permit granted under the act. All that, the term required was that, the bus was to ply under a stage carriage permit granted under the Act. Such a term about the breach of the conditions of the permit could not have been, in the very nature of things, incorporate in the policy because the policy was issued on 15th May 1967 while the permit in question was granted on 12th December, 1967 it is seen that, unless a vehicle is covered by the necessary insurance as provided in the Act, no permit would be granted to a vehicle on a public road. Under these circumstances, no term in regard to breach of a condition such as plying a stage carriage under a valid stage carriage permit, but, on a route different from the route to be sanction in the permit, can be incorporated in the policy. We 24 M.V.C.NO.6760/2013 (SCCH-7) therefore, do not find any force in this contention.
9. In view of the foregoing reasons, it will have to be held that, even at the time of accident on the said road which was not covered by the route mentioned in the permit Ex.R.3 the vehicle was plying under a valid stage carriage permit.
10. It was neatly argued on behalf of the insurer that, the purpose of the permit Written Statement to enable the vehicle to ply as a stage carriage only negligence the routes mentioned in the permit Ex.R.3 and therefore, it will have to be held that, the plying of the vehicle on the road from Shankarapura to Pillarkhan was for purpose not allowed by the permit Ex.R.3. We have already pointed out and held that, the purpose for which the stage carriage permit was granted was to enable the vehicle to ply a stage carriage as per the definition of stage carriage, found in Section 2 (29) of the Act an the other terms found in the permit amount to restrictions in the manner of plying he vehicle as a stage carriage and those restrictions would be conditions of permit only and further that, breach of such conditions would not affect the purpose for which the permit was granted. Therefore this contention cannot be accepted.
v) 1992 ACJ 306 High Court of Karnataka At Bangalore (K.V. Thimmegowda V/s. Kamalamma and Another), wherein, it is observed that, Motor Vehicles Act, 1939, Section 95 (Section 147 of 1998 Act)-Motor insurance- Liability of Insurance Company- Bus registered as a stage carriage was sent to fetch diesel and it met with accident 25 M.V.C.NO.6760/2013 (SCCH-7) resulting in death of a woman sitting on stone mantap and injuries sustained by another-contention that, Insurance Company is not liable as the vehicle was used on a route or place not covered by stage carriage permit-Bus was being used lawfully in a public place but, the place does not lie on the route on which it was permitted to operate as a stage carriage- Whether Insurance Company liable-Held :
yes; the risk arose on account of use of the vehicle in a public place.
vi) 2010 ACJ 1526 High Court of Jammu and Kashmir at Jammu (Tashi Rigzin V/s. Stanzin Jigmed and Others), wherein, it is observed that, Motor Vehicles Act, 1988, Section 149(2)-Motor Insurance-Route Permit-
Violation of-Defences available to Insurance Company- Whether violation of conditions of route permit is a defence available to Insurance Company under Section 149(2) of the Act-Held: no.
vii) 2007(3) WLN 295 (Raj) Rajasthan High Court (R.K. College V/s. Ramesh Chand and Others), wherein, it is observed that,
17. For the purpose of the present case, if the vehicle was ground on a route not covered under the permit, it might be a case of violation of conditions of permit but, it cannot be said that, by such fact alone, there occurred a breach of Insurance Policy condition. As notice, the policy condition itself has been to use the vehicle only under a contract carriage/stage permit. The defence available to the insurer under sub- clause (c) of Section 149(2) (a) (i) is of breach 26 M.V.C.NO.6760/2013 (SCCH-7) of such a policy condition that, excludes the use of vehicle for a purpose not allowed by the permit under which the vehicle is sued. It is not the case of the insurer that, the vehicle was not being used as a contract carriage or was being used for any purpose other than the envisaged by the permit EX.NA-2. Merely because the permit stated a condition that, the vehicle would not be plied on nationalized route and violation of such condition of the permit is alleged, the same is not even a remote allegation on violation of Insurance Policy conditions and is not of a defence permitted to the insurer by the statute. The principles noticed and expounded in Mohni Bai's case (Supra) do directly apply to the present case too, and the decision in Challa Bharathamma's case (supra) is of no application because that, was a case of the vehicle having no permit at all.
viii) 1971 ACJ 219 High Court of Judicature At Kerala (Kesavan Nair V/s. State Insurance Officer), wherein, it is observed that,
2. Based on this finding the argument was put forward by the insurer that, under Section 96(2) (b) (i) (c) there was no liability for the State Insurance Department. More particularly, the point made was that, there had been a breach of condition of the policy in that, the vehicle has been used for a purpose not allowed by the permit. The permit issued to the vehicle in question was one for a stage carriage as defined in section 2 (29). A stage carriage, and that, a permit had been issued as defined under Section 2 (20) of the Act, for this bus. The only question is whether the bus had been used for a purpose not allowed by the permit under which the vehicle is used. I am afraid, the argument is fallacious and confuses 27 M.V.C.NO.6760/2013 (SCCH-7) between the purpose for which the vehicle is sued and the conditions subject to which such purpose is effectuated. The purpose of the stage carriage was to carry passengers and in this case, it is obvious that, the bus was carrying passengers. If it had been used not for carrying human beings but, good like a truck there might have been user for an unwarranted purpose. On the other hand, if in carrying out the sanctioned purpose, namely transporting passengers any conditions are violated either by over speeding or overloading. For example there may be a violation of the conditions of the permit, but, one cannot say that, by that, breach, the vehicle is sued for a purpose different from the one authorized by the permit. It is clear from the ruling reported in British India General Insurance Co. Ltd V.Captain Itbar Singh and others and Mangilal V Parasram that the defenses available to an insurer are confined to those mentioned in section 9692) of the Act. The only defence put forward in the present case having been repelled by me it follows that the insurer is liable to the extent of Rupees 2,000/- in the case of each of the deceased. I must express surprise that, the Insurance Department of a welfare State should have sought to evade payment to two innocent victims by urging such a preposterous argument.
ix) ILR 1976 Karnataka 1021, High Court of Karnataka At Bengaluru (The Madras and General Insurance Co. Ltd., and Another V/s. Nanjamma and Others), wherein, it is observed that,
8. Sri Suryanarayana Rao, Learned Counsel for the insurer of the car argued that, the insurer of the Car would not be liable to pay compensation as the car was being used for a purpose other than the 28 M.V.C.NO.6760/2013 (SCCH-7) purpose for which it had been licensed. He contended that, the owner of the car was entitled to carry five passengers only and since eight passengers were being carried, it had to be held that, the car had been used for a purpose for which it was not licensed and that, therefore the insurer was not liable to pay any compensation. We do not think that, there is any substance in this contention. Under the permit issued under the Motor Vehicles Act, the owner, of the car was entitled to carry passengers.
Accordingly the passengers were being carried in the car at the time of the incident. So it cannot be said that, the car was being used for a purpose different from the one for which it had been licenced. Merely because there was over loading, we cannot say that, the car was being sued for a different purpose. This view is supported by the view expressed in the case of Kesavan Nair V. State Insurance Officer MANU/KE/0192/1971: (1971) ACJ 219 (Ker). The contention urged on behalf of the insurer of the car also fails.
x) 2000 ACJ 839 High Court of Kerala At Ernakulam (United India Insurance Co. Ltd., V/s. Sabeer Ali and Others), wherein, it is observed that, Motor Vehicles Act, 1988, Section 149
92) (a) (i) (c)-Motor Insurance-Defences available to Insurance Company- Jeep met with accident resulting in death of three passengers and several others sustained injuries-Jeep, taxi was carrying passengers more than the number allowed at the time of accident-Contention that, there was breach of a specified condition of the policy and Insurance Company is not liable -
Whether the Insurance Company is exempted from its liability-Held: no; vehicle was not being used for a purpose not 29 M.V.C.NO.6760/2013 (SCCH-7) allowed by the permit; carrying more passengers may amount to violation of permit conditions regarding number of persons to be carried in the vehicle but, it does not attract clause (c) (1996 ACJ 1178 (SC) and 1971 ACJ 219 (Kerala) followed.
xi) 2006 ACJ 2151 High Court of Uttaranchal at Nainital (National Insurance Co. Ltd., V/s. Raju Majumdar and Others), wherein, it is observed that,
11. From perusal of above, it is clear that, the section starts from the word 'no' which creates a prohibition of raising the grounds of appeal by the Insurance Company except on the grounds mentioned in Clause (a) or Clause(b) of Sub-Section (2). Sub-Clause of (c) of Sub-clause (i) of Clause
(a) of Sub section 92) of Section 149 specifically proved for the purpose not allowed by the permit under which the vehicle is sued. A motor vehicle is used only for two purposes as comes out from Section 66 of the Act itself, one for carrying the passengers another for carrying the goods. The ground under the provision of sub-
clause (c) aforesaid shall be available to the insurer only in case, if goods are being carried by the passenger, vehicle or passengers are being carried by a goods vehicle beyond the number mentioned in the permit. Then the use will be for the purpose not allowed by the permit. The breach of all the conditions of the permit is not the ground available to the insurer to file an appeal. Only those conditions which are enumerated under clause (a) of Sub-
section (2) aforesaid are only the grounds to be raised by the insurer as grounds of appeal.
30 M.V.C.NO.6760/2013(SCCH-7)
xii) (2004) 8 Supreme Court Cases 517 (National Insurance Co. Ltd., V/s. Challa Bharathamma and Others), wherein, it is observed that, A. Motor Vehicles Act, 1988-S. 149 (2)
(a) (i) (a)-Vehicle driven not covered by a permit to ply for hire or reward- Held, plying of a vehicle without a permit is an infraction-Therefore in terms of the said provision such defence is available to the insurer-High Court was of the view that, since there was no permit, the question of violation of any conditions there id not arise-Held, the view of the High Court is clearly fallacious- person without a permit to ply a vehicle cannot be placed in a better position vis-à-vis one who has a permit, but, has violated any condition thereof.
xiii) (2002) 7 Supreme Court Cases 456 (National Insurance Co. Ltd, Chandigarh V/s. Nicolletta Rohtagi and Others), wherein, it is observed that,
15. It is relevant to note that, Parliament, while enacting sub-section (2) of Section 149 only specified some of the defences which are based on conditions of the policy and therefore any other breach of conditions of the policy by the insured which does not find place in sub-section (2) of Section 149 cannot be taken as a defence by the insurer. If Parliament had intended to include the breach of other conditions of the policy as a defence, it could have easily provided any breach of conditions of Insurance Policy in sub section (2) of Section 149. If we permit the insurer to take nay other defence other than those specified in sub-section 92) of Section 149, it would mean we are adding more defences to the insurer in the statute, which is neither 31 M.V.C.NO.6760/2013 (SCCH-7) found in the Act nor was intended to be included.
xiv) MANU/HP/0942/2015 High Court of Himachal Pradesh at Shimla (Ketal Singh V/s. Narinder Kumar and Others), wherein, it is observed that,
15. Similar question arose before this Court in case titled Oriental Insurance Company Ltd, Palampur V.Bishan Dass and others, MANU/HP/0006/1988 AIR 1988 HP 26, wherein, it was held that, breach of route permit is not a breach of the mandate of Section 96 (ld) parimateria to Section 149(new) of the Act. It is apt to reproduce paragraph 2 of the said judgment hereunder.
"2. In the present case, the use of insured vehicle in question on a route for which there was no permit does not attract Cl (c) of Sub-sec (2) of S.96 of the act which has been pressed into service to deny the statutory liability. At the highest, it is a case of breach of the condition of the permit which is not the same thing as breach of the purpose for which it was issued. The decision of Bombay High court in Raghunath Ekanth Hivale V.Shardabai Karbhari Kale, (MANU/MH/0191/1986:
1986 Acc CJ: AIR 1986 Bom 386) and those of some of the other High Courts which are referred to in para 10 of the said decision lend support to the above view. Even if such sue amounts to the breach of statutory rules then also the defences allowed by sub Sec (2) are not attracted. The decision of the Gujarat High Court in Bomanji Rustomji Ginwala V. Ibrahim Vali Master, MANU/GJ/0097/1982., MANU/GJ/0097/1982: AIR 1982 Guj 112, supports this view. The contrary view 32 M.V.C.NO.6760/2013 (SCCH-7) expressed in New India Assurance Co. Ltd., V. Samundari Roadways Co. (P) Ltd., MANU/PH/0524/1984:1985 Acc CJ 239 (punj & Har) is, with respect, not correct".
9. Learned Counsel for the appellant relied upon the judgment of the Apex Court in National Insurance Co. Ltd., V. Shalla Bharathamma & Others.
MANU/SC/0779/2004: III (2004) ACC 292 (SC), wherein, the question involved in the present lies, was not discussed by the Apex Court and therefore, is not applicable to the facts of the present case and is distinguishable.
xv) (2013) ACJ 2282 High Court of Punjab and Haryana (Future General Insurance Co. Ltd., V/s. Surjo Devi and Others), wherein, it is observed that,
1. The Insurance Company is in appeal contending that, there had been a violation of terms of permit in plying the vehicle at a place which had been not authorized to ply. The contention is that, this constitutes a violation of terms of policy. The defence which is permissible under Section 149 of the Motor Vehicles Act is with reference to the user of the vehicle for a purpose not allowed by the permit (emphasis supplied). The purpose of permit is referred under the terms of permit under Section 66 of the Motor Vehicles Act, 1988. The term may contain several other features such as the place where it will be operative. However, the term that, is relevant as constituting a violation of permit shall be restricted only to the purpose of the permit. Consequently a permit that, is necessary for user as a transport vehicle cannot make a Insurance Company liable if the user as a transport vehicle is provided by the expiry of the 33 M.V.C.NO.6760/2013 (SCCH-7) terms or there existed no permit. A violation of any other term that, the purpose for which the permit was to operate will not be a defence which will be available in the scheme of the Motor Vehicles Act. Learned Counsel refers to the decision of the Supreme Court in National Insurance Co.
Ltd V. Chella Bharathamma, MANU/SC/0779/2004: (2005-1) 139 P.L.R 102 (S.C) MANU/SC/0779/2004: AIR 2004 (S.C).4882. The Supreme Court was dealing with a situation of a vehicle which required a transport vehicle permit Written Statement being put to such use without any permit. This constituted of violation of terms of policy with regard to the purpose for which the permit was necessary. This makes the difference which the Insurance Company fails to comprehend. There are several judgments to support his view and it simple injury unfortunate that, the Insurance Company makes it point to come up on appeal on similar plea now and then. The appeal is dismissed.
xvi) 2014 ACJ 1284 High Court of Chattisgarh at Bilaspur (Bajaj Allianz General Insurance Company Limited V/s. Powel Julius and Others), wherein, it is observed that,
9. It goes without saying in view of these definitions, that, the purpose for which a stage carriage permit is granted is to enable a vehicle to ply as a stage carriage. Fixing of the route and the timings would amount to providing restrictions in the manner of plying the vehicle as a stage carriage under the stage carriage permit. These restrictions have clearly nothing to do with the purpose for which the permit is granted. These restrictions would amount to conditions of permit. The fact that, the vehicle was plying on a road which was not covered by any of the routes specified in the 34 M.V.C.NO.6760/2013 (SCCH-7) permit would necessarily mean that, one of the conditions of the permit was violated at the item when the accident took place. That cannot be half to mean that, the vehicle was at that, point of time, plying on that, road without a stage carriage permit.
10. At the highest, it is a case of breach of the condition of the permit which is not the same thing as breach of the purpose for which it was issued. Indisputably, the statutory remedy which are available to the insurer to contest the claim are confined to those provide in sub-section (2) of Section 149 of M.V. Act. The contract between the insurer and the insured may permit the insurer to avoid his liability under various circumstances. However, if those circumstances do not fall within the purview of sub section (2) of Section 149 of M.V. Act, the insurer cannot invoke them in aid and escape liability for the third party risk. The terms of the contract between the insurer and the insured, which determine their inter se rights and liability are not and should not be confused with the statutory liability of the insurer for the third party risk.
11. Matter can be looked from another angle also, if a vehicle is holding goods permit and is carrying passengers then it can be said that, the vehicle in question has been sued for a purpose not allowed by the permit. But, same is not the case where the vehicle was plied on a road not covered by the route mentioned in the permit, in as much as, that, amounts only to breach of conditions of the permit and odes not affect the purpose for which the stage carriage permit was granted.
12. In a case where vehicle was being plied without permit, the Supreme Court in case of National Insurance Co. Ltd. Vs. 35 M.V.C.NO.6760/2013 (SCCH-7) Challa Bharathamma and others, MANu/SC/0779/2004 : (2004) 8 SCC 517, has held: plying of a vehicle without a permit is an infraction, therefore, in terms of section 149 (2) of the Motor Vehicle act, defence is available to the insurer on that, aspect. Same is not the case here and the above judgment of Supreme Court is of no help to the appellant.
xvii) MANU/De/0403/2014 High Court of Delhi (City Water Supplier V/s. The New India Assurance Co. Ltd), wherein, it is observed that,
11. It is legally significant to note the findings of the Apex Court in the case of National Insurance Co. Ltd v. Swarn Singh MANU/SC/0021/2004: 2004 ACJ 1, wherein, it is held as under:
12. The summary of our findings to the various issues as raised in these petitions are as follows
(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 of 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.
36 M.V.C.NO.6760/2013(SCCH-7)
12. In view of the above dictum in Swarn Singh (Supra), the alleged deviations in the permit are not sufficient to exonerate from the liability. The stipulations in the Insurance Policy are interpreted on the basis of two concepts rule of main purpose and fundamental breach. Therefore, there is no willful breach in terms of the Insurance Policy.
13. A similar issue came before this Court in the case of New India Assurance Co. ltd Vs. Ram Partap and Others MAC.
APP.960/2011. The facts of the case in hand are similar to this case, therefore, keeping in view the decision of this Court in the above case and also the view taken by the Apex Court in Swarn Singh (supra), non permit to ply the vehicle in Delhi cannot be the basis for grant of recovery rights because the said failure is not fundamental in nature, whereas it is otherwise, as discussed above.
14. In view of the above, I am of the considered opinion that, the Id. Tribunal has wrongly granted recovery rights against the appellant. The liability lies on the insurer i.e., the Insurance Company, to pay the compensation to the claimants.
15. Accordingly, the present appeal is allowed. Statutory amount, if any, be released in favour of the appellant.
xviii) 2013 ACJ 2570 High Court of Delhi (Mahender Singh V/s. Oriental Insurance Co. Ltd., and Others), wherein, it is observed that,
9. Thus, the user of a transport vehicle for the purpose not allowed by the permit would be using a goods vehicle as a 37 M.V.C.NO.6760/2013 (SCCH-7) passenger vehicle, a passenger vehicle as a goods vehicle, etc and not each and every contravention of the condition of permit issued by the concerned Transport Authority. Thus, simply because the vehicle was driven by a person other than the permit holder cannot be said to be a user of the transport vehicle for the purpose not allowed by the permit under which the vehicle was used.
xix) AIR 2008 Supreme Court 2545 (Machindranath Kernath Kasar V/s. S. Mylarappa & Others), wherein, it is observed that,
20. The principles of natural justice demand that a person must be given an opportunity to defend his action. There are cases and cases. In a given situation, the owner of a vehicle may take the plea that, the driver had used the vehicle without his Authority or permission and in that, view of the matter, he is not liable for the tortuous acts of the driver at all. There are innumerable instances where the Insurance Company had been held to be absolved of its liability to compensate the owner of the vehicle inter-alia on the premise that, the driver did not hold a valid licence. The legal principle was evolved on the premise that, the owner had a duty to see that, the person authorized to drive the vehicle is otherwise eligible to do so or entitled to do so in law.
21. In Sitaram Motilal Kalal Vs. Santanprasad Jaishanker Bhatt (AIR 1966 SC 1697) this Court opined that, the master is vicariously liable for the acts of his servants acting in the course of his employment stating.
27. The law is settled that, a master is vicariously liable for the acts of his servant acting in the course of his employment.
38 M.V.C.NO.6760/2013
(SCCH-7)
Unless the act is done in the course of
employment, the servants act does
negligence to make the employer liable. In other words, for the master's liability to arise, the act must be a wrongful act authorized by the master or a wrongful and unauthorized mode of doing some act authorized by the maser. The driver of a car taking the Auto Rickshaw on the master's business makes him vicariously liable if he commits an accident. But, it is equally well settled that, if the servant, at the time of the accident, is not acting within the course of his employment but, is doing something for himself the master is not liable.
Thus, in appropriate cases, the liability of the driver would be primary.
xx) ILR 2000 KAR 563 (Karnataka State Road Transport Corporation V/s. Smt. Biyabi and Others), wherein, it is observed that,
7. For determining the said issues, as provided in Section 168 itself. It is incumbent upon the Claims Tribunal to hold an inquiry into the claim of compensation after affording an opportunity of being heard to the parties concerned including the insurer. Now the question to be determined is as to who are the parties in whose presence the inquiry is to be held and after determination of the amount of compensation, on whom the liability to pay the same is to be fastened.
8. The Legislative intent contained in Section 168 of the Act clearly empowers the Tribunal to specify, depending upon the facts and circumstances of the case, that, part or whole of the compensation may be required to be paid either by the driver or 39 M.V.C.NO.6760/2013 (SCCH-7) the owner or the insurer of all or any of them. But, this finding has to be recorded after hearing of the parties namely the insurer, the owner as well as the driver.
15. From the above it is clear that, all the authorities are in agreement that, even for fastening the liability of compensation on the master the Tribunal has to record a finding that, the accident had taken place because of the negligence of the driver. Certainly unless such a finding is recorded the master cannot be held to be a joint tort feasor and consequently vicariously liable.
xxi) ILR 1986 KARNATAKA 2254 (General Manager, KSRTC V/s. Vijayalaxmi), wherein, it is observed that, Motor Vehicles Act, 1939 (Central Act No.4 of 1939-Section 110A-Non-joinder of driver-Not fatal to the action owner's liability being vicarious-Tort of the servant in the course of employment must be established.
HELD:
The Owner's liability is the vicarious liability of the Master for the tortuous act of the servant in the course of employment. They are both in the position of joint tort- feasors and their liability is joint and several. Where damage is caused to a person by two or more wrong doers they may either be joint tort feasors or independent tort feasors. A case of vicarious liability is a case of joint tort-feasors.
Indeed, the word 'vicarious' itself lexicographically means one that, takes the place of another. Vicarious liability means that, one person takes the place of another so far as the liability is concerned. Thereof, is therefore, no substance in the contention 40 M.V.C.NO.6760/2013 (SCCH-7) that, in an action against the master for the tortuous act of the servant, the latter himself is a necessary party and that, his non-joinder is fatal to the action. The case being one of joint and several liabilities the master alone can be sued; but, of course, in the action the tort of the servant, in the course of the employment must be established.
xxii) M.F.A.No.10674/2012 (MV) High Court of Karanataka at Bangalore (Smt. Kamalamma V/s. Nagesha and Another), wherein, it is observed that,
3. In the case on hand, the Insurance Company has been exonerated negligence the ground that, accident took place when the insured vehicle was plying beyond territorial limits of the permit. Therefore, the impugned award needs modification.
xxiii) M.F.A.No.30274/2010 (MV) High Court of Karanataka Gulbarga Bench (Rehmat Bee and Others V/s. Nagesha and Liyaqat Ali), wherein, it is observed that,
5. On hearing Learned Counsel, I am of the considered view that, the plea of the appellant is to be accepted. In the case of Chandamma and others was passed after taken into consideration the previous judgment of the Division Bench of this Court in the case of K.V.Thimmegowda Vs. Kamalamma reported in ILR 1991, KAR 4127. In so holding the Division Bench held that, the plea of violation of permit conditions is not permissible to be taken by the insurer under sub section 2 of Section 159 of the Act. Therefore, in law the insurer is not exempted to pay the compensation. However, the subsequent judgment relied by the insurer in the case of B.T.Venkatesh Vs. 41 M.V.C.NO.6760/2013 (SCCH-7) Jagadeesh Kumar and Ors, a contrary view has been taken. The earlier judgment of this Court in Chandamma's case as well as K.V.Thimemgowda's case has not been referred to in the judgment. The judgment in B.T.Venkatesh case has been passed on the facts and circumstances of that, case. On law being declared in a judgment the same becomes precedent to be followed.
However, in a given case where law has already been declared by coordinate bench or superior court, the same would act as a precedent to be applied to the existing case. Where the existing judgment does not refer to the earlier judgment on the question of law, the subsequent judgment cannot be considered as a precedent or as law binding. Such a judgment has to be considered as a judgment delivered in the facts and circumstances of the case. A judgment passed without reference to the earlier judgments on a question of law would be considered as "per incuriam". In view of the fact that, the earlier law laid down in the said two judgments of this Court have not been referred to in the subsequent judgment, the subsequent judgment relied on by the insurer cannot be considered as laying down the correct law. Under these circumstances applying Chandamma's case it has to be held that, the finding of the Tribunal so far as fastening liability on the owner is concerned is misplaced. The same is reversed. The insurer is liable to satisfy the claim in terms of the aforesaid judgment.
xxiv) M.F.A.No.200838/2014 (MV) High Court of Karanataka at Kalaburagi Bench (Smt. Kamalamma V/s. Nagesha and Another), wherein, it is observed that,
7. perused the grounds urged appeal memorandum, the judgment and award 42 M.V.C.NO.6760/2013 (SCCH-7) passed by the Tribunal and also the decisions relied upon by the Learned Counsel appearing for the Respondent/claimant. Looking to the material placed on record so also the legal position in the decisions relied upon by the Learned Counsel for the Respondent No.1, the Tribunal has correctly held that, there is no violation of the conditions of the policy and correctly fastened the liability of the Insurance Company to pay the Complainant amount with interest. Perusing the decisions relied upon by the Learned Counsel and principles annunciated, it cannot be said that, there is a violation of the terms and conditions of the Insurance Policy. Hence, so far as the said contention of the appellant is concerned, it has no merit.
16. My answers to the above said Issues are as follows;
Issue No.1 : In the Affirmative, Issue No.2 : Partly in the Affirmative, The Petitioner is entitled for compensation of Rupees 2,09,660/- with interest at the rate of 9% p.a. (excluding future medical expenses of Rupees 20,000/-) from the date of the petition till the date of payment, from the Respondent No.1.
Issue No.3 : As per the final Order, for the following;
REASONS
17. ISSUE NO.1 :- The P.W.1, who is the mother as well as the minor guardian of the Petitioner has stated in her 43 M.V.C.NO.6760/2013 (SCCH-7) examination-in-chief that, on 04.02.2013, her daughter along with her and her father Sri. Krishnappa were traveling in a City Taxi Car bearing Registration No.KA-53-6368 and they were coming from Tiptur towards Bangalore and the driver of the City Taxi drove his vehicle in a rash and negligent manner, met with an accident around 5.45.p.m on N.H.206 in between Kotenayakanahalli Gate and Bommanahalli Gate involving another Tayota Etios Liva Car bearing Registration No.KA-02-MH- 975, coming in a direction from Bangalore towards Tiptur and due to the said impact, her daughter and her father have sustained grievous injuries. She has further stated that, immediately, with the help of public, her daughter and her father were taken to Tiptur Government Hospital, wherein, after the first-aid treatment, due to severe injury of her daughter and as per the advise of the Doctor of the Tiptur Government Hospital, her daughter and her father were taken to Sanjay Gandhi Institute of Trauma and Orthopedics Hospital, Bangalore, for further treatment. She has further stated that, her daughter was admitted in the Sanjay Gandhi Institute of Trauma and Orthopedics and after the admission, team of the Doctors, who conducted so many tests and X-ray and after it was diagnosed that, her daughter was suffering, tenderness in right thigh M/3 region shows fracture of shaft femur, abnormal movements present at the junction of proximal and middle third of femur, abrasion over left forehead and elbow and other grievous injuries to all over the body. She has further stated that, her daughter was an inpatient in the said Sanjay Gandhi Institute of Trauma and Orthopedics from 04.02.2013 to 07.03.2013 for about 30 days and after necessary treatment, discharged with an advise for follow-up treatment. She has further stated that, the accident was due to rash and negligent driving of the driver of the City Taxi Car bearing Registration No.KA-53- 44 M.V.C.NO.6760/2013 (SCCH-7) 6368, owned by M/s. Meeru Car Company and the jurisdictional Tiptur Rural Police have registered a case in their Crime No.141/2013.
18. It is pertinent to note here that, though the accident was taken place on 04.02.2013 at 5.45 p.m., the Complainant, who is an inmate and driver of another Car has lodged a complaint in respect of the accident in question on 06.02.2013 at 5.00 p.m., which disclosed that, there is 2 days delay in lodging the said complaint. Further, the P.W.1 has clearly stated in her cross-examination that, at the time of accident, the driver of the Taxi was proceeding on the right side of the road and at that time, the Toyota Etios Liva Car came from opposite side on the left side and it was suddenly taken right side and as such, their driver took the Taxi on left side and again the said Car driver took his Car on the right side and due to which, the accident was taken place. She has further admitted that, they were traveling in the Taxi as unauthorized passengers and they have not produced the Wound Certificate issued by the Tiptur Government Hospital. It is pertinent to note her that, the Petitioner has produced Ex.P.4 Wound Certificate relating to Sanjay Gandhi Hospital and she has not produced the Wound Certificate relating to the Tiptur Government Hospital, wherein, she had taken initial treatment. Further, there is over writings in the Discharge Summary, which is available in Ex.P.12 Case Sheet. The same has been clearly admitted by the P.W.1 in her cross-examination by saying that, there are over writings in the Discharge Summary issued by the Sanjay Gandhi Hospital. Further, the R.W.2, who is the authorized representative of the Respondent No.1, has stated in his examination-in-chief that, the City Taxi Car bearing Registration No.KA-53-6368, which was met with an accident on 02.02.2013, 45 M.V.C.NO.6760/2013 (SCCH-7) was also fitted with the GPRS system and was not being driven in a rash and negligent manner. He has further stated that, the DSE had tampered with the GPS/GPRS tracking device fitted to the Taxi Car bearing Registration No.KA-53-6368 with the intention of not being tracked and the last tracked location of the Taxi Car bearing Registration No.KA-53-6368 was on 02.02.2013 at 04.34 hours at Royal Meenakshi Mall, Bannerghatta Road, Bangalore, with its ODO meter reading at 271456.19 Km and the meter reading at the time of accident was 274278 KM and the DSE had tampered with the GPS tracking system and had illegally traveled in the Taxi for a distance of 2820 KM between 02.02.2013 and 04.02.2013 without the knowledge or consent of the Respondent No.1. He has further stated that, the Petitioner Baby Trisha Nayak and her mother Smt. Nayak are related to DSE Mr. D.N. Ravichandran and the maternal grandfather of the Petitioner Sri. Krishnappa was also involved traveling in the Meru Taxi and has filed another claim in MVC NMo.683/2014 pending on the file of the MACT, Bangalore and this fact is accepted by the DSE D.N. Ravichandran in his complaint to SHO, Tiptur Rural Police Station, dated 09.02.2013. He has further stated that, the alleged accident taken place due to sole negligence of the Respondent No.3 and her driver, who was driving the vehicle without following traffic rules in a rash and negligent manner and contributed to the accident to a greater extent, as such, the Respondent No.2 is not liable to pay any compensation to the Petitioner. He has further stated that, the details of the accident are given by the DSE in his complaint to the Tiptur Rural Police station on 09.02.02013 and there is a contributory negligence on the part of the driver of the vehicle bearing Registration No.KA-02-MH-975 and the driver of that vehicle and the Insurer of that vehicle are not made parties to this claim. He has further stated that, the delay in lodging of the 46 M.V.C.NO.6760/2013 (SCCH-7) FIR also shows that, collusion has happened, in which, only the DSE is booked whereas to this claim the DSE Mr. D.N. Ravichandran has not been made a party, since he is a relative of the claimant and this shows collusion on the part of the claimants' guardian also. He has further stated that, the driver of the Respondent No.1 vehicle has lodged a complaint to the Tiptur Rural Police Station against the driver of the vehicle bearing Registration No.KA-02-MH-0975, but, the Police Authorities have not properly investigated the matter and they have not taken any action as against the driver of the vehicle bearing Registration No.KA-02-MH-0975 and the Petitioner is not transparent to disclose the relevant documents/facts pertaining to other vehicle involved in the alleged accident of KA-02-MH-0975. He has further stated that, the owner of the said vehicle bearing Registration No.KA-02-M.H-0975 willfully and knowingly handed over the possession of the vehicle, who had not possessed valid and effective driving license. He has further stated that, in the charge sheet, it is very clearly mentioned that, there is involvement of two vehicles since the accident and hence, there is contributory negligence by the driver of the vehicle bearing Registration No.KA- 02-MH-0975 and the Insurance Company of that vehicle is also a necessary party. To consider the evidence of R.W.2, the Respondent No.1 has produced Ex.R.7 Police Complaint dated 09.02.2013, Ex.R.8 Complaint, Ex.R.9 Mobile Data Terminal Activity Report along with Certification and Ex.R.10 Taxi Subscription Agreement with Driver Subscriber Entrepreneur. Further, the Petitioner has not produced the MLC Extract and Police Intimation. Further, the Petitioner has not examined the eye witness on her behalf to consider the accident in question, which caused to her.
47 M.V.C.NO.6760/2013(SCCH-7)
19. But, based on the above said grounds as well as the evidence elicited from the mouth of P.W.1, non-production of MLC Register and Police Intimation by the Petitioner, the evidence of R.W.2 and the contents of Ex.R.7 to Ex.R.10, it cannot be thrown away the above said oral evidence of P.W.1 which has been stated by her in her examination-in-chief and it cannot be said that, there was negligence or contributory negligence on the part of the Complainant in driving the Tayota Etios Liva Car bearing Registration No.KA-02-MH-975 in the commission of the said road traffic accident and there was no negligence on the part of the driver of the City Taxi Car bearing Registration No.KA-53-6368, i.e., the Respondent No.4, wherein, the Petitioner was traveling, as, to consider her case as well as the oral evidence of P.W.1, the Petitioner has produced Ex.P.1FIR, Ex.P.2 Complaint, Ex.P.3 Spot Panchanama, Ex.P.4 Wound Certificate, Ex.P.5 MVI Report, Ex.P.6 Charge Sheet, Ex.P.11 X-ray Films 3 in numbers and Ex.P.12 Case Sheet along with Discharge Summary and has also produced Ex.P.14 Case Sheet through P.W.2, who is one of the treated Doctor, which clearly disclosed that, at the time of accident, the driver of the offending City Taxi Car bearing Registration No.KA-53-6368, i.e., the Respondent No.4, was driving it in a very high speed, rash and negligent manner, wherein, the Petitioner was traveling in it, which dashed to the said Tayota Etios Liva Car bearing Registration No.KA-02-MH- 975, which was coming on the opposite direction and due to the said impact, the Petitioner had sustained one grievous injury and by admitting as an inpatient from 04.02.2013 to 07.03.2013, i.e., 32 days, she took treatment to the said accidental injuries at Sanjay Gandhi Hospital and on 04.02.2013 at 10.30 p.m., itself she was brought to the Hospital for treatment and there was no negligence on the part of the Complainant in driving the said 48 M.V.C.NO.6760/2013 (SCCH-7) Tayota Etios Liva Car bearing Registration No.KA-02-MH-975 and if the driver of the offending City Tax bearing Registration No.KA- 53-6386 could have taken a little care while driving it on the National High Way Road by observing the on-coming and on-going vehicles, he could have avoided the said road traffic accident, which is clear from the following discussion. Furthermore, the P.W.1, who is the mother of the Petitioner, was also traveling the said offending City Car along with the Petitioner and her father and as such, she is an eye witness and hence, whatever the evidence stated by her in the present petition can very well be looked into for consideration of the case made out by the Petitioner in the present petition. Further, the P.W.1 in her cross- examination has clearly stated that, the name of the driver is Ravichandra and her father known to him and she, her daughter and her father were traveling in the said Taxi and they have paid charges to the Taxi from Chikkamagalur to Bengaluru and at the accidental spot, one Car was coming on opposite direction and due to the negligence on the part of the driver of their Taxi, the accident was taken place. She has further clearly stated that, the driver of the Tayota Etios Liva Car bearing Registration No.KA-02- MH-975 had lodged a complaint before the Tiptur Police and immediately after the accident, her daughter was shifted to Tiptur Government Hospital and gave treatment to her. From the said evidence of P.W.1, it is further made crystal clear that, the entire negligence is on the part of the driver of the offending City Tax bearing Registration No.KA-53-6386 and there was no negligence on the part of the driver of the Toyato Etios Car, who lodged a complaint. Further, the P.W.1 in her cross-examination has clearly stated that, due to the negligence on the part of the driver of their Taxi, the accident was taken place and since in the Wound Certificate issued by the Sanjay Gandhi Hospital, it is mentioned 49 M.V.C.NO.6760/2013 (SCCH-7) that, the road traffic accident near one km to K.B. Cross towards Tumkur on Tumkur Tiptur Road, Tumkur District and the Petitioner sustained grievous injuries and in this regard, she has produced the medical documents relating to Sanjay Gandhi Hospital. From this, it appears that, though the P.W.1 has been cross-examined by the Respondents, nothing has been elicited from her mouth to consider their specific defence. Further, though the R.W.1 in his cross-examination has stated that, they have appointed an Investigator in respect of the alleged accident, no such Investigation Report is produced by the Respondent No.1. In this regard, the R.W.1 has further clearly stated that, he has not produced any Investigation Report. Further, the R.W.2 in his- cross-examination has clearly stated that, he is not in a position to say the name of the person, who had received the information about the accident in question and they have not taken information about the accident in writing and he has no direct information personally and they have not challenged the filing of the charge sheet as against the driver of their Company, before any Appellate Court. He has further clearly stated that, they have not taken any penal action as against the said driver. He has further clearly stated that, in the Reply Notice under Section 133 of M.V. Act, they have mentioned the name of the driver i.e., Ravichandra and they have trained their drivers, how to handle the vehicle and also injured after the accident and now the said Ravichandra is not working as he was removed from their Company and the offending vehicle is still in the guarage and the offending vehicle is still in their custody. From the evidence of R.W.2, it appears that, at the time of accident, the City Tax bearing Registration No.KA-53-6386 was owned by the Respondent No.1 and at the time of accident, it was driven by the Respondent No.4. If really, there was no negligence on the part of 50 M.V.C.NO.6760/2013 (SCCH-7) the Respondent No.4 in the commission of the said road traffic accident and the entire negligence is on the part of the driver of the said City Tax bearing Registration No.KA-53-6386, the Respondent No.1 could have definitely lodged a complaint as against the driver of the City Tax bearing Registration No.KA-53- 6386 with the jurisdictional Police, immediately after the accident. But, no such legal attempt has been made by the driver of the offending City Taxi Car, i.e., the Respondent No.4. Further, the very registration of the criminal case as well as the very filing of the charge sheet, i.e., Ex.P.6, as against him by the said Police based on Ex.P.2 Complaint, is not challenged by the Respondent No.4 by preferring an appeal or revision before the Hon'ble Appellate Court. From this, it is made further clear that, the entire negligence is on the part of the driver of the offending City Taxi bearing Registration No.KA-53-6386 in causing the said road traffic accident, who is the Respondent No.4.
20. The contents of Ex.P.1 FIR and Ex.P.2 Complaint disclosed that, the inmate of the Toyato Etios Liva Car bearing Registration No.KA-02-MH-975 had lodged Ex.P.2 Complaint before the Tiptur Rural Police as against the Respondent N.4, who was a driver of the offending City Taxi bearing Registration No.KA- 53-6386, by alleging that, on 04.02.2013 at 5.45 p.m., wherein, the driver of the offending Car came from Tiptur with very high speed, rash and negligent manner on opposite direction and dashed to their Car negligently and due to the said impact, their Car caused damages and he sustained grievous injuries on his chest, back, neck and left knee and Sindhu, who was traveling in the said Car had also sustained fracture injury on left chest and he had caused grievous injuries to his head and the driver of the offending Car D.N. Ravichandra and the child, who were traveling 51 M.V.C.NO.6760/2013 (SCCH-7) in the offending Car had also sustained injuries in the said road traffic accident and they were shifted to Tiptur Government Hospital for treatment and thereafter, they have shifted to Bangalore Columbia Asia Hospital and due to Hospitalization, the delay is caused in lodging the complaint and hence, he prayed to take necessary legal action as against the driver of the Car and based on the said Ex.P.2 Complaint, the said Police have registered a criminal case as against the driver of the offending Car for the offences punishable under Sections 279 and 337 of IPC under Crime No.11/2013. It is very much clear from the contents of Ex.P.1 FIR and Ex.P.2 Complaint that, the reason for delay in lodging the complaint is clearly explained by the complainant as Hospitalization.
21. The contents of Ex.P.3 Spot Panchanama and Ex.P.5 MVI Report disclosed that, the entire negligence is on the part of the driver of the offending City Taxi bearing Registration No.KA- 53-6386 in the commission of the said road traffic accident and there was no negligence on the part of the Complainant in driving his Toyato Etios Liva Car bearing Registration No.KA-02-MH-975 and the said Cars are very much involved in the said road traffic accident along with their respective drivers and if the driver of the offending City Taxi bearing Registration No.KA-53-6386 could have taken a little care while driving the said Car at the time of accident, he could have avoided the said road traffic accident. The damages caused to both the Cars are shown in Ex.P.9 MVI Report, which clearly disclosed about the terrific impact of the said road traffic accident. It is also clearly mentioned in Ex.P.9 MVI Report that, the said accident was not occurred due to any mechanical defects of the said Car.
52 M.V.C.NO.6760/2013(SCCH-7)
22. The contents of Ex.P.4 Wound Certificate disclosed that, with a history of road traffic accident near one kilometer of K.B. Cross towards Tumkur District, the Petitioner was brought to Sanjay Gandhi Hospital on 04.02.2013 at 10.30 p.m. itself and on examination, it is found that, she had sustained the injuries, i.e., tenderness right thigh M/3 region, shows fracture shaft femur right, which is grievous in nature.
23. The contents of Ex.P.11 X-ray Films 3 in numbers and Ex.P.12 Case Sheet along with Discharge Summary disclosed that, with a history of road traffic accident, the Petitioner brought to Sanjay Gandhi Hospital on 04.02.2013 and on examination, it is diagnosed that, proximal 1/3rd shaft of right femur fracture + compartment syndrome right leg and during the course of treatment, ORIF with DCP and fascitomy to right leg done on 07.02.2013 and implants were interested, split skin grafting done for fascitomy wounds and by admitting as an inpatient from 04.02.2013 to 07.03.2013, i.e., for 32 days, she took treatment to the said accidental injuries at Sanjay Gandhi Hospital. The P.W.2, who is one of the treated Doctors, has also stated by producing Ex.P.14 Case Sheet that, the Petitioner came to their Hospital on 04.02.2013 with alleged history of road traffic accident and she sustained injury to right femur with compartmental syndrome of right leg complained of pain, swelling and inability to move splints was given and hemodynamically stabilized. He has further stated that, the Petitioner had injuries, i.e., fracture shaft of right femur proximal 1/3rd and compartmental syndrome right leg and she got discharged on 07.03.2013.
24. From the said medical evidence, it is made crystal clear that, in the said road traffic accident, the Petitioner had sustained 53 M.V.C.NO.6760/2013 (SCCH-7) one grievous injury and by admitting as an inpatient from 04.02.2013 to 07.03.2013, i.e., for 32 days, she took treatment to the said accidental injuries at Sanjay Gandhi Hospital.
25. The contents of Ex.P.6 Charge Sheet disclosed that, since during the course of investigation, it is found that, the entire negligence is on the part of the driver of City Taxi bearing Registration No.KA-53-6386, as, at the time of accident, on 04.02.2013 at 5.45 a.m., he was driving it with very high speed, rash and negligent manner on N.H. Road, in the middle of Kotenayakanahalli Gate and Bommanahalli Gate and he dashed to another Car bearing Registration No.KA-02-MH-975, which was coming on opposite direction from Bangalore towards Tiptur on the left side of the said road and due to the said impact, the Complainant has sustained grievous injuries and simple injuries and the Petitioner, who was traveling in the offending City Taxi Car has sustained grievous injury on her right thigh and at the time of accident, the offending City Taxi Car was not having a valid permit to ply on the accidental road and he has not obtained any permission from his Company, i.e., the Respondent No.1 and as such, after thorough investigation, the Investigating Officer has filed a charge sheet as against the driver of the offending City Taxi Car, i.e., the Respondent No.4 for the offences punishable under Sections 279, 337 and 338 of IPC and Section 192(a) and 197 of M.V. Act. There is no allegation leveled by the Investigating Officer in Ex.P.6 Charge Sheet as against the Complainant, who was a driver of another Car bearing Registration No.KA-02-MH-975, about his negligence in the commission of the said road traffic accident.
54 M.V.C.NO.6760/2013(SCCH-7)
26. From the above said material evidence, both oral and documentary, it is clearly proved that, due to very high speed, rash and negligent manner of driving of the offending City Taxi bearing Registration No.KA-53-6386 by its driver, i.e., the Respondent No.4 itself, the said road traffic accident was taken place and the said offending City Taxi bearing Registration No.KA- 53-6386 as well as its driver, i.e., the Respondent No.4, are very much involved in the said road traffic accident and at the time of accident, the Petitioner was traveling in the offending City Taxi bearing Registration No.KA-53-6386 and due to the said impact, she had sustained grievous injury and there was no negligence on the part of the driver of Toyota Etios Liva Car bearing Registration No.KA-02-MH-975 in the commission of the said road traffic accident. Accordingly, I answered Issue No.1 in the Affirmative.
27. ISSUE NO.2 :- The Petitioner has not produced any authenticated documents to consider her actual age at the time of accident. The above referred Police and medical documents clearly disclosed that, at the time of accident, the Petitioner was 7 years old. Hence, the age of the Petitioner is considered as 7 years at the time of accident.
28. The P.W.1 has stated that, at the time of accident, her daughter was studying in 1st Standard in Sri International Public School at Kanakapura Main Road, Bangalore South Taluk. She has further stated in her cross-examination that, when her daughter was studying in 1st Standard, the accident was taken place and now her daughter is studying in 4th Standard. The Petitioner has produced Ex.P.8 Certificate issued by Sri International Public School, Tataguni, which disclosed that, at the 55 M.V.C.NO.6760/2013 (SCCH-7) time of accident, the Petitioner was studying in 1st Standard. As this Tribunal has already observed and come to the conclusion that, at the time of accident, the Petitioner was 7 years old. From this material evidence, it is clearly proved that, at the time of accident, the Petitioner was a student of 7 years old, who was a non-earning member.
29. The P.W.1 has stated that, her daughter underwent surgery on 27.02.2013 and also for skin grafting for her right thigh and after necessary treatment, she was discharged with an advice for follow-up treatment. She has further stated that, her daughter was also treated as an outpatient in the K.C. General Government Hospital at Malleshwaram and as per the Doctor advise of said K.C. General Hospital and Rajiv Gandhi Hospital, now also her daughter is taking follow-up treatment in both the Hospitals. The P.W.2 has stated that, the Petitioner underwent surgery on 07.01.2013 in the form of ORIF with DCP for right femur fascitomy of right leg and on 27.03.2013 split skin graft for fascitomy wounds under GA and after surgery, the Petitioner was put on antibiotics, analgesics and physiotherapy and the Petitioner got discharged on 07.03.2013 with an advice to come for follow-up treatment. Based on the contents of Ex.P.4 Wound Certificate, Ex.P.12 Case Sheet along with Discharge Summary, Ex.P.14 Case Sheet and Ex.P.11 X-ray Film, this Tribunal has already observed and come to the conclusion that, in the said road traffic accident, the Petitioner had sustained the injuries, i.e., tenderness right thigh M/3 region shows fracture shaft femur right and it is finally diagnosed during the course of treatment that, she had sustained Proximal 1/3rd shaft of right femur fracture + compartment syndrome right leg and by admitting as an inpatient from 04.02.2013 to 07.03.2013, i.e., 32 days, she 56 M.V.C.NO.6760/2013 (SCCH-7) took treatment to the said accidental injury at Sanjay Gandhi Hospital. It is also clearly mentioned in Ex.P.12 Case Sheet along with Discharge Summary and Ex.P.14 Case Sheet that, during the course of treatment, ORIF with DCP and fascitomy to right leg done on 07.02.2013 and implants were inserted, split skin graft done for fasciotomy wounds. It is also clearly mentioned in the said medical documents that, at the time of discharge, the Petitioner was advised to take follow-up treatment along with medication, for non-weight bearing on right lower limb, right knee, ankle, toes, right hip, mobilization, physiotherapy and to continue foot drop splint till further advice and to review OPD after 4 weeks. The Petitioner has also produced Ex.P.7 Out Patient Card, which disclosed that, even after discharge from the Hospital, she had taken regular follow-up treatment at K.C. General Hospital, Bangalore. Since the Petitioner had sustained one grievous injury in the said road traffic accident, when she was 7 years old and implants are inserted to the fracture site of the Petitioner, the Petitioner is very much required the regular follow-up treatment to the said accidental injury as per the advice of the treated Doctors. Hence, the nature of the injury sustained by the Petitioner in the said road traffic accident, the line of treatment, the length of treatment and follow-up treatment taken by the Petitioner to the said accidental injury can very well be believed and accept.
30. The P.W.1 has stated that, due to the said accident, her daughter did not attend the school from February 4th 2013 to April 10th for about 3 months and during her school day, she was good in academic and other sports and cultural activities and the injuries sustained by her as impaired her studies and other activities. She has further stated that, still now her daughter is suffering pain, difficulty in holding weight, walking, standing, 57 M.V.C.NO.6760/2013 (SCCH-7) climbing steps, sit, squat and she required help for doing her personal day to day activity and also she required one more surgery for removal of implants. The P.W.2 has stated that, on 06.07.2015, the Petitioner came for disability assessment and he noted the points, i.e., range of movements of right knee, hip and ankle restricted, healed scar mark over right hip noted, skin healed with secondary intention noted on right leg associated with swelling, associated with pain on movements knee and ankle, daily activities cross leg sitting, squatting for using Indian toilets were found to be difficulty in right limb, X-ray femur shows fracture united with implants in situ. By considering the mobility component in respect of active range of movements of hip, knee and ankle, muscle power of hip, knee and ankle, stability components evaluating of clinical method of evaluation and additional points and based on the Guidelines given by the Ministry of Social Justice and Empowerment, Government of India, the P.W.2 has opined that, the Petitioner has got permanent physical disability for limb is 35% and to the whole body is 11.66%. He has further stated that, the said injuries are permanent in nature and the Petitioner will have difficulty in doing daily routine activities. The P.W.2 has produced Ex.P.15 OPD Notes and Ex.P.16 Recent X-ray Films.
31. But, based on the said oral evidence of P.W.1 and P.W.2 coupled with the contents of medical documents, it cannot be believed and accept that, due to the said accidental injuries, the Petitioner is suffering from permanent physical disability for limb is 35% and to the whole body is 11.66%, as, the P.W.2 has not specifically assessed the permanent physical and functional disability of the Petitioner by considering the nature of injury, line of treatment and the age of the Petitioner and the Petitioner has 58 M.V.C.NO.6760/2013 (SCCH-7) not produced the disability certificate issued either by the P.W.2 or the treated Doctor or any other competent Doctor. Further, at the time of accident, the Petitioner was 7 years old and she was a student and she has only produced Ex.P.8 Letter issued by the School Authority, which only disclosed that, the Petitioner has not attended classes from February 2013 to April 2013 and she was met with an accident on February 3rd and they have not referred anything about the inability to attend the classes by the Petitioner even after taking the said treatment. Further, the P.W.1, in her cross-examination has clearly admitted that, now the injuries are healed up. She has further clearly stated that, when her daughter was studying in 1st Standard, the accident was taken place, now she is studying in 4th Standard. From the said evidence of P.W.1, it is made crystal clear that, due to the said accidental injuries, the Petitioner has not lost any academic year and she has not lost any education. Further, the P.W.2, who has treated the Petitioner as one of the team of the treated Doctors, has stated in his cross- examination that, now the fractures are united and fracture shaft of right femur proximal right 1/3rd is a upper 1/3rd and now the blood circulation in right leg is normal with compartmental squeal and now there is mild swelling and no problem for blood circulation. Further, the P.W.2 has clearly admitted that, as per the Guidelines, to assess the range of movements, 0.140 degree, but, as per her evidence she has assessed 0.120 degree. He has further stated that, the implants of the Petitioner can be removed immediately. From the said evidence of P.W.2, it is further made crystal clear that, now the fracture is united and there is no problem for blood circulation and the P.W.2 has not properly assessed the disability by mentioning the proper degrees and if the implants are removed, the said extent of disability will be definitely reduced. Therefore, the said extent of 11.66% permanent physical 59 M.V.C.NO.6760/2013 (SCCH-7) disability as assessed by the P.W.2 in respect of the injury sustained by the Petitioner in the said road traffic accident is on higher side.
32. However, in the said road traffic accident, the Petitioner had sustained one grievous injury and by admitting as an inpatient from 04.02.2013 to 07.03.2013, i.e., 32 days, she took treatment to the said accidental injuries at Sanjay Gandhi Hospital and at the time of accidental, the Petitioner was 7 years old and she was a student and the Petitioner is still having implants in situ at fracture site, by considering the said factors, this Tribunal feels that, due to the said accidental injuries, the Petitioner is suffering from permanent physical and functional disability of 8% to the whole body, which is believable and acceptable one. Hence, the Petitioner is entitled for compensation under the following heads.
33. Due to the said road traffic accident, as per Ex.P.4 Wound Certificate, the Petitioner had sustained grievous injury. At the time of accident, the Petitioner was 7 years old. Further, the Petitioner is suffering from permanent physical and functional disability of 8% to the whole body due to the accidental injury. Hence, the Petitioner has to suffer future unhappiness due to the said injury in her tender age.
34. In the decision reported in 2013 ACJ 2445 (Mallikarjun V/s. Divisional Manager, National Insurance Company Ltd.,), the assessment of compensation in case of children suffering disability is considered as Rupees 1,00,000/- for permanent disability up to 10%. As this Tribunal has already come to the conclusion that, due to the accidental injury, the 60 M.V.C.NO.6760/2013 (SCCH-7) Petitioner, who was a minor of 7 years at the time of accident and as such, she is a non-earning member and she is suffering from permanent physical and functional disability of 8% to the whole body. Hence, the Petitioner is entitled for Rupees 1,00,000/- towards pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience, discomfort and loss of amenities in life on account of permanent disability.
35. The P.W.1 has stated that, at the time of Hospitalization and during the treatment period, she spent about Rupees 70,000/- towards medicines and also another sum of Rupees 20,000/- for conveyance, nourishment, etc. In this regard, the Petitioner has produced Ex.P.9 Medical Prescriptions, 29 in numbers and Ex.P.10 Medical Bills 46 in numbers, which is amounting of Rupees 46,660-29. No doubt, there is no date and signature in some of Ex.P.9 Medical Prescriptions. In this regard, the P.W.1 in her cross-examination has stated that, there is no dates and signatures in some of Ex.P.9 Medical Prescriptions. But, it no way affects to consider the amount covered under Ex.P.10 Medical Bills, as, they are the original bills. Hence, the amount covered under Ex.P.10 Medical Bills can very well be taken into for consideration. The Petitioner has taken treatment at Sanjay Gandhi Hospital, wherein, she was taken treatment as an inpatient from 04.02.2013 to 07.03.2013, i.e., for 32 days. Considering the nature of the injury and line of treatment given to the Petitioner and length of treatment, the possibility of spending the said amount for the medicines cannot be doubted. Therefore, it is necessary to award the said actual medical expenses of Rupees 46,660-29, which is rounded off Rupees 46,660/- to the Petitioner.
61 M.V.C.NO.6760/2013(SCCH-7)
36. At the time of accident, the Petitioner was studying in 1st Standard. Due to the road traffic accident, the Petitioner had sustained grievous injury and by admitting as an inpatient for 32 days, she took treatment to the accidental injury. As this Tribunal has already come to the conclusion that, due to the accidental injury, the Petitioner is suffering from permanent physical and functional disability of 8% to the whole body. Further, by producing Ex.P.8 Letter dated 20.02.2015 issued by Sri International Public School, Bangalore, the Petitioner has proved that, she has not attended the class from 04.02.2013 to 10.04.2013, i.e., for 66 days, from the date of accident. From this, it appears that, from the date of accident, for a period of 66 days, the Petitioner was not attended the classes regularly and not participated in any curricular activities. Hence, it is just, proper and necessary to award a sum of Rupees 25,000/- towards loss of curricular activities.
37. The P.W.1 has stated that, her daughter is still undergoing medical treatment and hence, she has to incur future medical expenses as well as other incidental expenses. The P.W.2, who is one of the treated Doctor has stated that, the Petitioner requires surgery in the form of implant with approximate cost of Rupees 25,000/- in their Hospital. The P.W.2 in his cross- examination has further stated that, the implants of the Petitioner can be removed immediately. It is clearly mentioned in Ex.P.12 Discharge Summary about insertion of ORIF with DCP and fascitomy to right leg done on 07.02.2013 during the course of treatment, which disclosed about the insertion of implants in situ to the Petitioner. The said implants have to be removed and therefore, the Petitioner requires the amount for future medical expenses. Neither the Petitioner nor P.W.2 produced the 62 M.V.C.NO.6760/2013 (SCCH-7) estimation for removal of implants. However, in the absence of the estimation and by considering the evidence of P.W.1 and P.W.2, this Tribunal feels that, it is just, proper and necessary to award future medical expenses of Rupees 20,000/- to the Petitioner.
38. By considering the age of the Petitioner, nature of injuries, line of treatment and period of treatment in the Hospital by admitting as an inpatient, this Tribunal feels that, it is just, proper and necessary to award a sum of Rupees 6,000/- towards attendant charges, Rupees 6,000/- towards conveyance expenses and Rupees 6,000/- towards food, nourishment and diet etc.,
39. In this way, the Petitioner is entitled for the following amount of compensation:-
Sl. No. Compensation heads Compensation amount
1. Pain and suffering already Rs. 1,00,000-00 undergone and to be suffered in future, mental and physical shock, hardship, inconvenience, discomfort and loss of amenities in life on account of permanent disability
2. Actual Medical Expenses Rs. 46,660-00
3. Loss of curricular activities Rs. 25,000-00
4. Future Medical expenses Rs. 20,000-00
5. Attendant Charges Rs. 6,000-00
6. Conveyance Rs. 6,000-00
7. Food, Nourishment & Rs. 6,000-00 Diet charges TOTAL Rs. 2,09,660-00
40. In all, the Petitioner is entitled for total compensation of Rupees 2,09,660/- along with interest at the rate of 9% per 63 M.V.C.NO.6760/2013 (SCCH-7) annum on the above said sum (excluding future medical expenses of Rupees 20,000/-) from the date of petition till payment.
41. The P.W.1 has stated that, the Respondents are liable to pay the compensation to her daughter.
42. While answering Issue No.1, this Tribunal has already come to the conclusion that, due to very high speed, rash and negligent manner of driving of the offending City Taxi bearing Registration No.KA-53-6386 by its driver, i.e., Respondent No.4 itself, the said road traffic accident was taken place and the said offending City Taxi bearing Registration No.KA-53-6386 as well as its driver, i.e., the Respondent No.4, are very much involved in the said road traffic accident and at the time of accident, the Petitioner was traveling in the offending City Taxi bearing Registration No.KA-53-6386 and due to the said impact, she had sustained grievous injury and there was no negligence on the part of the driver of Toyota Etios Liva Car bearing Registration No.KA- 02-MH-975 in the commission of the said road traffic accident.
43. The Petitioner in the cause title of the petition has clearly mentioned that, the Respondent No.2 is an Insurer of the offending City Taxi bearing Registration No.KA-53-6386 and its Policy No.270108/31/17/6700008693, valid from 23.05.2012 to 23.05.2013 and the Respondent No.3 is a R.C. Owner of the Toyota Etios Liva Car bearing Registration No.KA-02-MH-975. The R.W.1, who is the Deputy Manger of the Respondent No.2 Insurance Company, has stated in his examination-in-chief that, they are producing the certified true copy of the passenger carrying vehicle 'B" policy bearing Registration No.270108/31/12/6700008693 covering the Mahendra Logan 64 M.V.C.NO.6760/2013 (SCCH-7) City Taxi bearing Registration No.KA-53-6386, valid from 00.00 Hrs on 23.05.2012 to Midnight of 22.05.2013 issued in the name of M/s. Meru Cab Company Pvt., Ltd., who is the insured/Respondent No.1. The Respondent No.2 has also produced Ex.R.1 Insurance Policy, Ex.R.2 Permit relating to vehicle bearing Registration No.KA-53-6386, Ex.R.3 'B' Register Extract relating to vehicle bearing Registration No.KA-53-6386 and Ex.R.4 Certified Copy of Extract of Driving Licence relating to Ravichandra D.N., i.e., the Respondent No.4. He has further stated in his cross-examination that, they have issued the Insurance Policy to the offending vehicle. The R.W.2, who is an authorized representative of the Respondent No.1, has stated in his examination-in-chief that, the person driving the vehicle bearing Registration No.KA-53-6386 belonging to the Respondent No.1 was Mr. D.N. Ravichandran and Meru Taxi with No.KA-53- 6386 is insured with the Respondent No.2 under its Policy bearing No.268108/31/17/6700008693 for the period from 23.05.2012 to 22.05.2013 and the said policy was in force at the time of accident. The Respondent No.2 has produced Ex.R.11Certificate of Registration and Certificate of Fitness Book relating to the vehicle bearing Registration No.KA-53-6386, Ex.R.12 Permit relating to the vehicle bearing Registration No.KA-53-6386, Ex.R.13 Tax Book relating to vehicle bearing Registration No.KA-53-6386 and Ex.R.14 Insurance Policy vehicle bearing Registration No.KA-53- 6386 along with terms and conditions. He has further stated in his cross-examination that, the Insurance Policy relating to the offending vehicle was taken in the name of Meru Cab and in the Reply Notice under Section 133 of M.V. Act, they have mentioned the name of the driver, i.e., Ravichandra and the offending vehicle is still in their custody. From the said material evidence, which is very much available on record, it is clearly proved that, at the time 65 M.V.C.NO.6760/2013 (SCCH-7) of accident, the Respondent No.1 was a R.C. Owner and the Respondent No.2 was an Insurer of the City Taxi bearing Registration No.KA-53-6386 and its Insurance Policy was valid, which covers the date of accident and the Respondent No.4 was a driver of the said offending City Taxi Car and he was having a valid and effective driving license to drive such class of offending City Taxi Car. Even, there is no allegation leveled by the Investigating Officer in Ex.P.6 Charge Sheet as against the Respondent No.4 that, at the time of accident, he was not having a valid and effective driving license to drive such class of offending City Taxi Car. It is also clear from the above referred oral evidence that, at the time of accident, the Respondent No.1 was a R.C. Owner of Toyota Etios Liva Car bearing Registration No.KA-02- MH-975. Under such circumstances, it can be safely held that, the Respondent No.3, who was a R.C. Owner of the Toyota Etios Liva Car bearing Registration No.KA-02-MH-975 no way liable to pay any compensation and interest to the Petitioner as ordered. Further, since the Respondent No.4 is a driver of the offending City Taxi bearing Registration No.KA-53-6386, he is also not liable to pay any compensation to the Petitioner in the present petition. Hence, the point for consideration in respect of liability is only as against the Respondents No.1 and 2.
44. No doubt, while discussing above, this Tribunal has already observed and come to the conclusion that, at the time of accident, the Respondent No.1 was a R.C. Owner and the Respondent No.2 was an Insurer of the offending City Taxi bearing Registration No.KA-53-6386 and it was valid, which covers the date of accident and the driver of the offending City Taxi bearing Registration No.KA-53-6386 was also having a valid and effective driving license to drive such class of offending City Taxi Car, who 66 M.V.C.NO.6760/2013 (SCCH-7) is the Respondent No.4. But, based on the same, it cannot be said and come to the conclusion that, the Respondent No.1 being a R.C. Owner and the Respondent No.2 being an Insurer of the offending City Taxi bearing Registration No.KA-53-6386 are jointly and severally liable to pay the above said compensation and interest to the Petitioner, as, the Respondent No.2, who is an Insurer of the said offending City Taxi Car has specifically contended and proved that, the Respondent No.1 has violated the terms and conditions of the Insurance Policy and as such, it is not liable to indemnify the Respondent No.1, which is clear from the following discussion.
45. The R.W.1 has stated that, as per the Charge Sheet, the driver of the offending Mahendra Logan City Taxi bearing Registration No.KA-53-6386 was Mr. D.N. Ravi Chandra S/o. Ninge Gowda, who was charged for the offences under Sections 279, 337 and 338 of IPC and under Section 192(a) and 197 of M.V. Act by the jurisdictional Tiptur Police Station, as such, he has violated the provisions of the permit issued to the holder and the Permit No.KA-53-CT-431-08-09 dated 26.08.2013 issued in the name of M/s. V. Link Taxies Pvt., Ltd., in respect of Mahendra Logan City Taxi bearing Registration No.KA-53-6386, the seating capacity is 4 + 1 including Driver and valid from 13.06.2008 to 12.06.2013 and the said holder is authorized to drive the said Taxi within 25 kms radius from the limits of Bangalore City Corporation Area only. He has further stated that, the said vehicle was allegedly met with the accident on 04.02.2013 at about 5.45 p.m. near N.H.206, when they were coming from Tumkur, K.B. Cross Road towards Shivamoga through Kotanayakahalli Kasaba Hobli, Tiptur Taluk, Tumkur District, which falls under outside the jurisdiction as permitted in the permit as stated above 67 M.V.C.NO.6760/2013 (SCCH-7) resulting in the clear cut violations of the provisions of the M.V. Act, State and Central Rules and also beach of terms and conditions of the policy. He has further stated that, it is producing the Certified Copy of 'B' Extract dated 29.04.2013 issued by RTO, Krishnarajapura, Banglaore-560049 in the name of M/s. V. Link Taxies Pvt., Ltd., for the offending Mahendra Logan City Taxi bearing Registration No.KA-53-6386. As this Tribunal has already observed about the production of Ex.R.12 Permit and Ex.R.3 'B' Register Extract relating to the vehicle bearing Registration No.KA- 53-6386, i.e., the offending City Taxi Car. On the other hand, the R.W.2 has stated that, even in the eventuality of the area and route violate as that violation of the permit by the DSE is not a violation of the permit, which enables the Respondent No.2 to escape liability and it is more so because the violation was without the consent or knowledge of the Respondent No.1. The Respondent No.1 has also produced Ex.R.112 Permit relating to the said offending City Taxi bearing Registration No.KA-53-6386 through R.W.2. The R.W.2 has further stated in his cross- examination that, the offending City Taxi bearing Registration No.KA-53-6386 was valid at the time of accident in respect of 24 kms from Bangalore City. The contents of Ex.R.2 and Ex.R.12 Permit relating to the offending City Taxi bearing Registration No.KA-53-6386 clearly disclosed that, the said Car was permitted to ply on the area, for which, the permit is valid within 25 kms., radius limits Bangalore City Corporation area only, which is valid from 13.06.2008 to 12.06.2013. The date of accident is on 04.02.2013. From this, it appears that, as on the date of accident, the period of permit of the said City Taxi was valid, but, the place of accident is admittedly near Kotenayakanahalli Gate and Bommanahalli Gate, Kasaba Hobli, Tiptur Taluk, Tumkur District, which is not coming within the limits of Bangalore City 68 M.V.C.NO.6760/2013 (SCCH-7) Corporation Area. When it is specifically mentioned in Ex.R.2 and Ex.R.12 Permit that, the offending City Taxi bearing Registration No.KA-53-6386, was permitted to play within 25 kms radius from the limit of Bangalore City Corporation area and when the accident in question was taken place outside the said limits, it is a clear violation of the terms and conditions of the admitted Insurance Policy. Based on the evidence of R.W.2, the Respondent cannot be escape from its liability, which involved in the present petition by making allegation as against the driver, i.e., the Respondent No.4. Further Ex.R.1 and Ex.R.14 Insurance Policy relating to the offending City Taxi bearing Registration No.KA-53- 6386 is standing in the name of the Respondent No.1 at the time of accident. From this, it is made crystal clear that, the Respondent No.1, who is the R.C. Owner and the Respondent No.4, who is the driver of the offending City Taxi bearing Registration No.KA-53-6386 have clearly violated the terms and conditions of the said Insurance Policy by plying it in the area outside the permit limits. Hence, the question of pay and recovery does not arise at all. Therefore, the Respondent No.2, who is an Insurer of the City Taxi Car bearing Registration No.KA-53-6386, is not liable to indemnify the Respondent No.1 and the Respondent No.1 being the R.C. Owner of the offending City Taxi bearing Registration No.KA-53-6386 is alone liable to pay the above said compensation and interest to the Petitioner.
46. Under the above said facts and circumstances as well as the reasons given, this Tribunal has come to the conclusion that, the petition filed by the Petitioner is liable to be allowed as against the Respondent No.1 and it is liable to be dismissed as against the Respondents No.2 to 4. In view of the above said reasons and findings on Issues, the principles enunciated in the 69 M.V.C.NO.6760/2013 (SCCH-7) decisions cited by the Learned Counsel appearing for the Petitioner are not applicable to the present facts and circumstances of the case on hand. On the other hand, the principles enunciated in the decisions cited by the Learned Counsel appearing for the Respondent No.1 are aptly applicable to the present facts and circumstances of the case on hand. Hence, Issue No.2 is answered accordingly.
47. ISSUE NO.3 :- For the aforesaid reasons, I proceed to pass the following, ORDER The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs as against the Respondent No.1.
The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby dismissed as against the Respondents No.2 to 3 without costs.
The Petitioner is entitled for
compensation of Rupees 2,09,660/-
with interest at the rate of 9% p.a.
(excluding future medical expenses of Rupees 20,000/-) from the date of the petition till the date of payment, from the Respondent No.1.
70 M.V.C.NO.6760/2013(SCCH-7) The Respondent No.1 shall deposit the said compensation and interest in this Tribunal, within two months from the date of this Order.
In the event of deposit of compensation and interest, 50% shall be released in the name of the guardian of the Petitioner through account payee cheque, on proper identification.
Remaining 50% shall be kept in FD in the name of the Petitioner, in any nationalized Bank of the choice of her guardian, till she attains the age of majority.
Advocate's fee is fixed at Rupees 1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by her, corrected and then, pronounced by me in the open Court on this, the 8th day of February, 2017.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
71 M.V.C.NO.6760/2013(SCCH-7) ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONER :-
P.W.1 : Swetha Nayak
P.W.2 : Dr. Chidanand. K.J.
2. DOCUMENTS MARKED BY THE PETITIONER :-
Ex.P.1 : True copy of FIR
Ex.P.2 : True copy of Complaint
Ex.P.3 : True copy of Spot Panchanama
Ex.P.4 : True copy of Wound Certificate
Ex.P.5 : True copy of MVI Report
Ex.P.6 : True copy of Charge Sheet
Ex.P.7 : Outpatient Card
Ex.P.8 : Letter dated 20.02.2015
Ex.P.9 : Medical Prescriptions (29 in nos.)
Ex.P.10 : Medical Bills (46 in nos.)
Ex.P.11 : X-ray Films (3 in nos.)
Ex.P.12 : Case Sheet along with Discharge Summary Ex.P.13 : Notarised Xerox Copy of Election Identity Card relating to Shwetha. K. Ex.P.14 : Case Sheet Ex.P.15 : OPD Notes Ex.P.16 : Recent X-ray film
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
R.W.1 : A. Ghani
R.W.2 : Vijay Kumar
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
Ex.R.1 : Certified Copy of Insurance Policy Ex.R.2 : Certified Copy of Permit relating to Vehicle bearing Registration No. No.KA-53-6386 Ex.R.3 : Certified Copy of B Register Extract relating to Vehicle bearing Registration No.KA-53-6386 Ex.R.4 : Certified Copy of Extract of Driving Licence relating to Ravichandra. D.N. Ex.R.5 : Authorization Letter dated 20.05.2013 72 M.V.C.NO.6760/2013 (SCCH-7) Ex.R.6 : Notarized Xerox Copy of Identity Card relating to Vijay Kumar Ex.R.7 : Office Copy of Police Compliant dated 09.02.2013 Ex.R.8 : True Copy of Complaint Ex.R.9 : Mobile Date Terminal Activity Report along with Certification Ex.R.10 : Taxi Subscription Agreement with Driver Subscriber Entrepreneur Ex.R.11 : Certificate of Registration and Certificate of Fitness Book relating to Vehicle bearing Registration No.KA-53 6386 Ex.R.12 : Permit relating to Vehicle bearing Registration No.KA-53-6386 Ex.R.13 : Tax Book relating to Vehicle bearing Registration No.KA-53-6386 Ex.R.14 : Insurance Policy relating to Vehicle bearing Registration No.KA-53-6386 along with Terms and Conditions (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.