Bangalore District Court
Rathnamma vs Shiva Ramakrishnan.B on 6 January, 2016
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS TRIBUNAL,
BANGALORE CITY. SCCH-14
PRESENT: BASAVARAJ CHENGTI., B.Com.,LL.B.,(spl)
Member, MACT,
XVI ADDL. JUDGE,
Court of Small Causes,
BANGALORE.
MVC No.364/2015
Dated this the 6th day of January 2016
Petitioners : 1. Rathnamma
M/o Muniraju
Aged about 40 years,
2. Muniraju
S/o late Muniyappa,
Aged about 45 years,
3. Pavithra.M
D/o Muniraju,
Aged about 15 years,
All are Residing at
No.27, Gowdanapalya,
Murali Krishna School road,
Bangalore-61.
Petitioner no.3 is minor,
and Hence Rep by her mother
and natural guardian 1st petitioner.
V/s (By pleader Sri RGC)
Respondents 1. Shiva Ramakrishnan.B
S/o Balakrishna S
No.47/2, 17th cross, Kanakanagar,
V.Nagenahalli main road,
R.T nagar post,
Bangalore-32.
(RC owner of Car)
(By pleader Sri BKK)
SCCH-14 2 MVC No.364/2015
2. Future General India Ins.,Co.Ltd.,
Pasadena No.18/1, 3rd floor,
Ashoka Pillar road,
1st block, Jayanagara,
Bangalore-11.
(Insurer of the Car)
(By pleader Sri VSN)
XVI ADDL. JUDGE,
Court of Small Causes & MACT.,
BANGALORE.
SCCH-14 3 MVC No.364/2015
JUDGMENT
This claim petition is filed by the petitioner U/Sec.166 of Motor Vehicles Act for grant of compensation for the death of Mohan.M S/o Muniraju in a road traffic accident.
2. Brief averments of the petition are as under:
The petitioner no.1 and 2 are the parents and petitioner no.3 is the sister of the deceased Mohan who was aged 23 years, was a salesman at Private Soap Factory, Bangalore and was earning Rs.12,000/- per month. On 11.01.2015 at about 01.45 A.M., the deceased Mohan was traveling in Car bearing No.KA-04-D-2520 from Bangalore to Kanakapura. When, he reached near Kanakapura Taluk, Ramanagara District, at that time, the driver of the said vehicle drove the same at a very high speed, in a rash and negligent manner, without observing the traffic rules, endangering to human life and dashed against the road side tree. As a result, the deceased Mohan sustained severe head injuries and other multiple fracture injuries all over the body and died on the spot. After postmortem, the dead body was handed over to the petitioners. They have spent more than Rs.2,00,000/- towards transportation of dead body, funeral and obsequies ceremonies, etc., Prior to the accident, the deceased was hale and health. Due to untimely death of Mohan, the petitioners are put to great financial loss, mental agony and loss of love and affection. They have lost their dependency and estate. Harohalli police have registered Cr.No.12/2014 against the driver of the Car bearing No.KA-04-D-2520 for the offence punishable U/Sec.279, 304(A) of SCCH-14 4 MVC No.364/2015 IPC. The respondents are the owner and insurer of the said car and are liable to pay compensation. Hence, the petitioners have sought for awarding compensation of Rs.25,00,000/- with cost and interest.
3. In pursuance of the notice, the respondents have appeared before the Court through their respective counsel and filed their statement of objections separately. The respondent No.1 has denied the case of the petitioner as false and contended that the claim made by the petitioners is wholly misconceived and unsustainable in law or on facts. He has further contended that he never authorised the person who was driving the vehicle at the time of accident to drive the vehicle and also never authorised the driver to carry any other person in the vehicle, that one Pradeep Kumar was the regular and authorised driver and the deceased Santhosh Kumar took the car without his permission and caused the accident. He has stated that he is RC owner of the car bearing No.KA-04-D-2520 which met with accident and the said car was duly insured with the respondent No.2 and the policy was in force on the date of accident, that the alleged driver of the car bearing No.KA-04-D-2520 was holding valid and effective driving licence on the date of accident, that the car was having valid permit and FC on that day. He has denied the age, occupation and income of the deceased and has contended that the compensation claimed by the petitioners is on higher side and exorbitant. He has urged that if the court comes to a conclusion that the petitioner is entitled for compensation, then liability may be fastened on the insurance SCCH-14 5 MVC No.364/2015 company. Hence, he has sought for dismissal of the claim petition with cost as against him.
The respondent No.2 has also denied the averments of the petition as false and has contended that the petition is not maintainable either law or on facts. He has admitted the issuance of the policy in favour of the respondent No.1 in respect of the car bearing No.KA-04-D-2520, but he has denied involvement of the said car in the alleged accident. He has contended that the driver of the car was driving the vehicle without having driving licence in rash and negligent manner and dashed against road side tree, that the accident was a self accident of the deceased and hence, the petitioners are not entitled for any compensation, that the insured and the police have not complied their mandatory duty and the insured has committed breach of terms and conditions of the policy, that the compensation claimed by the petitioners is excessive, exorbitant and same is against principles of computation of damage. Hence, he has sought for dismissal of the petition with costs.
4. On the basis of above pleadings, the following issues were framed:
ISSUES
1. Whether the petitioners prove that Mohan S/o Muniraju died due to injuries sustained by him in an accident occurred on 11.01.2015 at about 01.45 a.m., near Devara Kaggalahalli Village, NH-209 road, Harohalli Hobli, Kanakapura Taluk, Ramanagara District, arising due to SCCH-14 6 MVC No.364/2015 rash and negligent driving of driver of Car bearing No. KA-04-D-2520?
2. Whether the petitioners are entitled for compensation? If so, how much and from whom?
3. What Order or Award?
5. During the evidence, the petitioners have examined the petitioner no.2 as PW.1 and got marked documents as Ex.P1 to 12. The respondent no.2 has examined his officer as RW.1 and got marked documents as Ex.R1 to 6. The respondent no.1 has examined himself as RW.2 and got marked documents as Ex.R7 to 12.
6. Heard the arguments. The petitioners have relied upon following rulings:
1. 2013 ACJ 1944: S.Iyayapan Vs., United India Ins.,Co.Ltd., & Anr.,
2. 2014 ACJ 2148: Oriental Ins.,Co.Ltd., Vs., Gulam Mohammad (deceased) & Ors.,
3. 2014 ACJ 1112: A.N.Balakrishnan Vs., Indulekha & Ors.,
4. 2014 ACJ 1180: Kuruvailla Vs., Jijo Joseph
5. 2014 ACJ 2124: Oriental Ins., Co.Ltd., Vs., Shahnawaz & Ors., The respondent no.1 has relied upon following rulings:
1. MFA No.14889/07 c/s 12221/17(MV) :
National Ins.,Co.Ltd., Vs., Smt.G.C.Ramadevi & Ors.,
2. AIR 2013 SC 2262: S.Iyyapan Vs., M/s United India Ins.,Co.Ltd., & Anr., SCCH-14 7 MVC No.364/2015 The respondent No.2 has relied upon following rulings:
1.MFA 32560/2011 (Md.Haneef Vs Mallayya @ Mallappa)
2.MFA 21079/2009 C/w 745/2009 (OICL Vs Smt.Ruksana Begum @ Aashabee)
3.MFA 30903/2009 (NICL Vs Nagamma & Ors)
4. MFA 7648/2009 (Vishwanath Shetty Vs Vincent Pinto & Ano)
5. 2008 ACJ 1307 (Sardari & Ors Vs Sushil Kumar & Ors) I have gone through the said rulings and perused the records.
7. My findings on the above issues are as under:-
Issue No.1 : In affirmative.
Issue No.2 : In affirmative, for Rs.18,43,000/-
from the respondent No.1.
Issue No.3 : As per final order :
for the following:
REASONS
8. ISSUE NO.1: PW-1 Muniraju for the petitioner, RW-1 Shankar for the respondent No.2 and RW-2 Shiva Ramakrishnan for himself i.e., the respondent No.1 have deposed before court. Ex.P1 to 12 for the petitioners, Ex.R1 to 6 for the respondent No.2 and Ex.R7 to 12 for the respondent No.1 are got marked.
9. It is the case of the petitioners that the deceased Mohan was traveling in car bearing No.KA-04-D-2520 on 11.01.2015 and the said car was driven by its driver in a rash and negligent manner and accident has occurred at about 01.45 am, on Bangalore-Kanakapura road, near Devara Kaggalahalli village, SCCH-14 8 MVC No.364/2015 Kanakapura Taluk, Ramanagara Dist, that due to the accident, the driver and said Mohan sustained severe head injuries and fracture injuries and died on the spot. The respondent No.1 has not denied the occurrence of accident, but the respondent No.2 has denied the involvement of the insured car in the accident, but evidence of RW-1 goes against the pleading of the respondent No.2 in respect of the occurrence of the accident and involvement of said car in the accident. PW-1, RW-1 and 2 have deposed about the occurrence of accident and death of driver of the car and of Mohan due to the injuries sustained by them in the accident. None of them is an eyewitness to the accident. Hence, their evidence regarding manner of accident is inadmissible. But, their evidence regarding death of Mohan due to injuries sustained by him in the accident is admissible and believable. No other vehicle is involved in the accident. Panchanama at Ex.P2 reveals that the said car was found in damaged condition after hitting the road side tree. IMV report at Ex.P3 confirms the damages caused to the said car. Its brake system was in order. It is opined by the IMV authority that the accident was not due to mechanical defects of the vehicle. The sketch at Ex.P4 indicates the manner in which the accident has occurred. It corroborates the evidence of PW-1 as to manner of accident. FIR was lodged at 08.30 am., on the same day. There is no delay in lodging complaint. Harohalli police have registered Cr.No.12/2015, investigated the matter and filed abated charge sheet against the deceased driver of car bearing No.KA-04-D-2520. There is nothing on record to disbelieve the contents of charge sheet. Evidence of PW-1 is corroborated by the contents of police SCCH-14 9 MVC No.364/2015 records at Ex.P1 to 4 and 7 regarding manner of accident. On the basis of said evidence, it can be believed that the car was driven in high speed, in rash and negligent manner and was dashed against a road side tree. There is no evidence to believe that the driver of the said car was driving it slowly and cautiously and he had reason to drive away the car out of the road. The respondents have not produced any evidence to believe that there was no negligence on the part of the driver of the car and the accident has occurred due to some other reason. On the contrary, the respondent No.2 has pleaded that the car was driven by its driver in rash and negligent manner. Therefore, I hold that the accident has occurred due to negligence of the driver of the car bearing No.KA-04-D-2520.
10. Evidence of PW-1 and contents of inquest panchanama and PM report at Ex.P5 and 6 disclose that the said Mohan died due to injuries sustained by him in the accident. He was found dead in the car bearing No.KA-04-D-2520 in the place of accident. Since, there is no delay in lodging complaint, it can not be said that the said Mohan died due to some other reason somewhere else. Moreover, it is not the defence of the respondents that the said Mohan died due to some other reason in some other place. The evidence of PW-1 and contents of Ex.P1 to 7 substantiate the averments of the petition that the said Mohan died on 11.01.2015 at about 01.45 am., in an accident arising out of rash and negligent driving of the driver of car bearing No.KA-04-D-2520. Evidence of RW-1 and 2 and contents of Ex.R1 to 12 are not sufficient to rebut the same. Hence, I hold that the petitioners have succeeded to prove this issue and I answer the same in affirmative.
SCCH-14 10 MVC No.364/201511. ISSUE NO.2: The petitioners are claiming compensation from the respondents stating that they are the parents and sister of the deceased Mohan. PW-1 Muniraju has deposed that he is the father and other petitioners are the mother and sister of the deceased Mohan. His evidence is not denied in cross-examination. Copy of Inquest report, copy of ration card and of voter IDs of the petitioner No.1 and 2 are at Ex.P5, 7 to 11 which corroborate the evidence of PW-1 regarding the relationship between the petitioners and the deceased. The petitioner No.1 and 2 are the parents and the petitioner No.3 is minor sister of the deceased. There is nothing on record to disbelieve the oral evidence of PW-1 and contents of Ex.P5, 7 to 11. The said documents are public documents and are believable. Hence, I am of the opinion that the petitioners are the LRs and dependents of the deceased Mohan. They are entitled to claim compensation for unnatural death of deceased Mohan.
12. PW-1 Muniraju has stated that the deceased was aged 23 years, was working as a salesman in the private soap factory at Uttarahalli, Bangalore and was earning Rs.12,000/- per month. In cross-examination, he has stated that the deceased was unmarried and he studied up to PUC. He has further stated that he is having 4 children. He has admitted that the deceased was born in 1991. The age of the deceased is shown as 23 years in inquest report and in PM report. His age is mentioned in ration card as 22 years. The said ration card was issued on 17.09.2013. It means, the deceased was aged 23 years on the date of accident. Copy of voter ID at SCCH-14 11 MVC No.364/2015 Ex.P11 and copy of Transfer Certificate at Ex.P12 go to show that the deceased Mohan was born on 21.01.1991. There is nothing on record to disbelieve the date of birth of the deceased mentioned in the voter ID and Transfer Certificate. Hence, I hold that the deceased was born on 21.01.1991. It means, he was aged 23 years on the date of accident. Appropriate multiplier for the said age is 18.
13. The Investigating Officer while drawing inquest mahazar, has recorded the occupation of the deceased as sales boy in soap factory. There is no evidence to disbelieve the information recorded by the IO during investigation. The occupation of the deceased is mentioned as sales boy in soap factory in the complaint. The contents of complaint and Inquest mahazar corroborate the oral evidence of PW-1 which collectively establish that the deceased was a salesman in soap factory. But, there is no corroboration to the evidence of PW-1 regarding the income of the deceased. The petitioners have not produced salary slip, salary certificate or bank statement of the deceased. They ought to have examined the manager or competent person of the soap factory to establish the income of the deceased. In the absence of the cogent evidence, the income of the deceased shall have to be assessed notionally. I am of the opinion that if the income of the deceased is considered as Rs.8,000/- pm, it will meet the ends of justice. Annual income of the deceased comes to Rs.96,000/-. Since, he was aged 23 years at the time of accident, 50% of the amount shall be added to the income towards future prospects as held in Munalal Jain case by Hon'ble Supreme Court. After addition of 50% amount, the gross SCCH-14 12 MVC No.364/2015 income of the deceased comes to Rs.1,44,000/- pa., The petitioners are the LRs and dependents of the deceased. They are 3 in nos. Hence, 1/3rd amount shall have to be deducted towards personal expenses of the deceased. 1/3rd of Rs.1,44,000/- is Rs.48,000/- and after deduction of said amount, net income of the deceased comes to Rs.96,000/-pa., The petitioners have lost their dependency due to the death of the deceased in road traffic accident. Their loss of dependency would be Rs.96,000X18=Rs.17,28,000/-.
14. The petitioners are the parents and sister of the deceased. The parents have lost their son and the petitioner No.3 has lost her brother. They have lost love and affection and estate of the deceased. They have spent amount for transportation of dead body and funeral expenses. Therefore, I am of the opinion that the petitioners are entitled for a compensation of Rs.45,000/- towards loss of love and affection, Rs.45,000/- towards loss of estate and Rs.25,000/- towards transportation of dead body and funeral expenses. Thus, the petitioners are entitled for just and reasonable compensation as under:
1. Loss of dependency Rs.17,28,000/- 2 Loss of love and affection Rs. 45,000/- 3 Loss of estate Rs. 45,000/-
4 Transportation of dead body Rs. 25,000/-
and funeral expenses Total Rs.18,43,000/-
The petitioners are further entitled for interest @ 9% p.a., from the date of petition till the date of payment.
SCCH-14 13 MVC No.364/201515. The respondents are the owner and insurer of car bearing No.KA-04-D-2520. The accident has occurred due to rash and negligent driving of the driver of said car. Hence, the respondents are jointly and severally liable to compensate the petitioners, but the respondent No.1 has contended that the person who was driving his car was not his driver, that he has not authorized him to drive the said car, that the deceased driver of the car has taken away the vehicle without his consent or knowledge, that one Pradeep Kumar was the driver of the said car and the deceased driver has not informed the regular driver before taking away his car and therefore, he is not liable to pay any compensation to the petitioners. He has further contended that his car was duly insured with the respondent No.2 and it was having valid permit and FC on the date of accident, that the deceased driver of the car was holding a valid and effective driving license to drive the same. Hence, he has sought for fixing the liability of payment compensation and interest upon the respondent No.2 if court comes to the conclusion to award compensation to the petitioners.
16. The respondent No.2 has admitted the issuance of the policy in favour of the respondent No.1 in respect of car bearing No.KA-04-D-2520, that the policy was in force as on the date of accident, but he has contended that the driver of the car was not holding a valid and effective driving license on the date of accident. He has further contended that the car involved in the accident is a commercial vehicle and deceased driver of the car was holding a driving license to drive a LMV (NT) which was not valid license to SCCH-14 14 MVC No.364/2015 drive the car involved in the accident. He has further contended that the respondent No.1 has violated the terms and conditions of the policy and hence, he is not liable to indemnify him and to compensate the petitioners.
17. The respondent No.2 has examined his officer as RW-1 and got marked documents as Ex.R1 to 6, whereas the respondent No.1 has examined himself as RW-2 and got marked Ex.R7 to 12. RW-1 Shankar is the officer of the respondent No.2 and he has deposed as per defence of his employer. RW-2 Shiva Ramakrishnan has deposed as per his defence. In cross examination, RW-1 has stated that the insured vehicle is a LMV (Transport), that unladen weight of the said vehicle is 990 Kgs. He has admitted that the police have not charge sheeted the driver of the car for not holding valid license. He has shown ignorance that the charge sheeted driver was not employed under the respondent No.1 and said driver took away the car unauthorisedly and without consent or knowledge of the respondent No.1. RW-2 has stated in cross examination that he is running a transport company and there are many cars attached to his transport company, that one Pradeep Kumar is the regular driver to car bearing No.KA-04-D- 2520 who informed him about the accident. He has admitted as to issuance of the notice U/s 133 of the M.V.Act by the police and submitting his reply to the said notice. He has further admitted that car bearing No.KA-04-D-2520 is a commercial vehicle and it can be driven by a person holding license to drive LMV(Transport) with badge, that the deceased Santhosh Kumar was holding license to drive a LMV (NT) only. He has denied the suggestion that SCCH-14 15 MVC No.364/2015 the deceased Santhosh Kumar was working as driver under him and he has taken away the said car with his valid permission.
18. Copy of insurance policy of car bearing No.KA-04-D-2520 are at Ex.R1 and 9 and they reveal that the respondent No.2 has issued a commercial motor insurance comprehensive policy in favour of the respondent No.1 in respect of car bearing No.KA-04- D-2520 and the policy was in force on the date of accident. Driver clause of the policy reads as under;
"Drivers Clause; Any person including insured ; Provided that a person driving holds an effective driving license at the time of the accident and is not disqualified from holding or obtaining such a license. Provided also that the person holding an effective learner's license may also drive the vehicle when not used for the transport of goods at the time of the accident and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicle Rules 1989".
19. Ex.R2 and R10 are copies of permit, Ex.R3 is copy of 'B' register extract and Ex.R4 is the DL extract of Santhosh Kumar. These documents reveal that the respondent No.1 is the owner of car bearing No.KA-04-D-2520, that the said car was having a valid permit on the date of accident, that the deceased Santhosh Kumar was holding a valid and effective driving license to drive a LMV(NT) from 12.07.2011 to 11.07.2031, that the said Santhosh Kumar was not holding any badge or license to drive a LMV (transport) vehicle.
SCCH-14 16 MVC No.364/201520. Ex.R5 is the copy of notice dated 02.03.2015 issued by the respondent No.2 to the respondent No.1 and Ex.R6 is the copy of postal acknowledgment which disclose that the respondent No.2 has called upon the respondent No.1 to produce vehicular documents and the notice was duly served upon the respondent No.1. It is not the case of the respondent No.1 that he has complied the notice at Ex.R5. But, non compliance of said notice is not a ground to fix the liability of payment of compensation on the respondent No.1.
21. Ex.R7 is copy of statement given by Pradeep Kumar before investigating officer wherein he has stated as under;
£Á£ÀÄ ²æà gÁªÀÄPÀʵÀÚ£ï, © ©£ï ¨Á®PÊÀµÀÚ gÀªgÀ À ¨Á¥ÀÄÛ PÉJ- 04-r- 2520 lAiÀÄmÉÆà Jnøï PÁgÀ£ÀÄß ¨ÁrUÉUÉ Nr¸ÀÄwÛzÀÄÝ, ¥Àæw ¢£À gÁwæ PÁgÀ£ÀÄß ªÀÄ£ÉAiÀÄ°è ¤°è¹PÉƼÀÄîwÛzÉÝ. JA¢£ÀAvÉ ¢£ÁAPÀ 10-01-2015 gÀAzÀÄ gÁwæ PÁgÀ£ÀÄß ªÀÄ£ÉAiÀÄ°è ¤°è¹zÉ.Ý CzÉà ¢£À gÁwæ 10-00 UÀAn ¸ÀĪÀiÁjUÉ £À£Àß CPÀÌ ²ÃªÀÄw vÀļÀ¸ÀªÀÄß gÀªÀgÀ ªÀÄUÀ ¸ÀAvÉÆõï PÀĪÀiÁgï §AzÀÄ, ºÉÆgÀUÀqÉ ºÉÆÃV §gÀÄvÉÛÃ£É PÁgÀÄ vÉUÉzÀÄPÉÆAqÀÄ ºÉÆÃUÀÄvÉÛÃ£É JAzÀÄ ºÉý, £Á£ÀÄ ¤°è¹zÀ lAiÀÄmÉÆà Jnøï PÁgÀÄ £ÀA.PÉJ- 04- r- 2520 gÀ£ÀÄß ¸ÀAvÉÆõï PÀĪÀiÁgï vÉUÉzÀÄPÉÆAqÀÄ ºÉÆÃzÀ. CvÀ£À eÉÆvÉ CªÀ£À ¸ÉßûvÀ ªÉÆúÀ£À PÀÆqÀ EzÀ.Ý ¸ÀAvÉÆõï PÀĪÀiÁgï ¸ÀºÀ PÁgÀÄ ZÁ®PÀ£ÁVzÀÝjAzÀ, CUÁUÉÎ PÁgÀÄ vÉUÉzÀÄPÉÆAqÀÄ ºÉÆÃUÀÄwÛzÀ.Ý On perusal of above statement, it reveals that the deceased Santhosh Kumar has taken away the car bearing No.KA-04-D- 2520 of the respondent No.1 with due permission of Pradeep Kumar, that the said Santhosh Kumar used to take away the said car on and often. It means, Santhosh Kumar was alternate driver on the said car.
SCCH-14 17 MVC No.364/201522. Ex.R12 is the copy of attendance register and it reveals that Pradeep Kumar was driving car bearing No.KA-04-D-2520 on regular basis, but it does not mean that the deceased Santhosh Kumar was not working as driver under the respondent No.1. RW.2 has admitted that many cars are attached to his transport company. It means, the respondent no.1 was running several cars other than the one mentioned in Ex.R12. The contents of Ex.R12 disclose that car bearing No.KA-04-D-2520 was not on regular shift on 10.01.2015 and 11.01.2015. RW-1 has deposed that the said car was attached to ARM Embedded technology Pvt Ltd company. Ex.R12 does not disclose that the said car was attached to said company. The respondent No.1 has not examined any officer of said company to corroborate his evidence. He has not examined Pradeep Kumar to prove his defence. Ex.R7 and 12 are not sufficient to hold that the deceased Santhosh Kumar was not working as driver under the respondent No.1 and he was not authorized to take away the car on the date of accident. It is an admitted fact that Santhosh Kumar was driving the car of the respondent no.1 at the time of accident. An inference can be drawn that he was working under the respondent no.1. Oral evidence of RW.2 and contents of Ex.R7 to 12 are not sufficient to rebut the said inference. The respondent no.1 has failed to produce best evidence before the court to establish that the deceased Santhosh Kumar was not working as driver under him. Contents of Ex.R7 are not proved by legal evidence. The respondent ought to have examined Pradeep Kumar and the investigation officer to prove the contents of said statement. In the absence of their evidence, it SCCH-14 18 MVC No.364/2015 cannot be held that Pradeep Kumar was the regular driver and deceased Santhosh Kumar took away the said car without knowledge or consent of Pradeep Kumar and of the respondent no.1. Moreover, Ex.R7 discloses that Santhosh Kumar has taken away the car with due knowledge and consent of Pradeep Kumar. Therefore, I disbelieve the evidence of RW.2 regarding occupation of Santhosh Kumar. Under the facts and circumstances of the case, I hold that Santhosh Kumar was working as a driver under the respondent no.1.
23. RW-1 Shankar has deposed as per the defence of the respondent No.2. Copy of driving license Extract at Ex.R4 corroborate the oral evidence of RW-1. The respondent No.1 has not disputed the correctness of the driving license extract at Ex.R4, but he has contended that the said driving license was valid and sufficient to drive car bearing No.KA-04-D-2520. RW-2 has admitted that the said car is a commercial vehicle. Copy of policy at Ex.R1 and 9 disclose that it was a commercial vehicle policy. The said car was driven by the deceased Santhosh. As per Ex.R4, the said Santhosh was holding a license to drive a LMV (NT). Therefore, it can be held that the deceased Santhosh was holding a driving license to drive a LMV (NT) as on the date of accident. Admittedly, the vehicle involved in the accident is a LMV (Transport) i.e., a LMV cab. Thus, the deceased was not holding a license to drive a LMV(Transport) and he was not holding any badge.
SCCH-14 19 MVC No.364/201524. In rulings relied upon by the respondent No.1, it is held that when there is any violation regarding license, liability of payment of compensation shall be fixed on the insurance company and it shall be made recoverable from the owner. In Iyyappan case, Hon'ble Supreme Court has held as under;
"Motor Vehicle Act, 1988, section 149 (2)(a)(ii) motor insurance- driving licence -liability of insurance company - driver had license to drive light motor vehicle, he was driving maxicab which is a light motor vehicle but it was being used as a commercial vehicle-whether insurance company can disown its liability on the ground that driver although duly licensed to drive light motor vehicle but there was no endorsement in the license to drive light motor vehicle used as commercial vehicle- held; no; insurance company may proceed against insured for recovery of amount if there is any violation of condition of insurance policy".
In ruling reported in 2014 ACJ 2148, Hon'ble High Court of Himachal Pradesh has held as under;
"Motor Vehicle Act, 1988, section 149 (2)(a)(ii) read with section 2(21) motor insurance -driving licence -liability of insurance company - insurance company disputes its liability on the ground that offending truck does not fall within the definition of light motor vehicle whereas its driver was possessing license to drive a light motor vehicle-gross weight of the vehicles as given in registration certificate is 6000 kg and in terms of section 2 (21) it is a light motor vehicle-SCCH-14 20 MVC No.364/2015
insurance company has not discharged its onus to prove that driver was not holding a valid license to drive the offending vehicle whether driver was competent to drive the offending vehicle and insurance company is liable Held;
yes".
In ruling reported in 2014 ACJ 1112, Hon'ble High court of Kerala has held as under;
"Motor Vehicle Act, 1988, section 147 motor insurance policy breach of badge liability of insurance company tribunal directed the insurance company to pay and recover on the ground that driver did not possess a badge on the date of accident-whether there was breach of policy condition and tribunal was justified in granting recovery rights to the insurance company -held; no; absence of a badge for the driver is not a violation of policy condition and it can not be a ground for absolving the insurance company from liability".
In ruling reported in 2014 ACJ 1180, Hon'ble High court of Kerala has held as under;
"Motor Vehicle Act, 1988, section 3 and 149 (2)(a)(ii) motor insurance driving licence -badge-liability of insurance company driver was not having authorisation /badge to drive transport goods vehicle involved in the accident though he was having license to drive a vehicle of the same type distinction between 'effective license' occurring in section 3 and 'is not duly licensed' occurring in section 149(2) (a)(ii) has to be drawn for the purpose of avoidance of liability to the third parties and SCCH-14 21 MVC No.364/2015 indemnification of the insured-It is not sufficient that insurance company proves that driver had no effective license on the date of accident from holding license or that mere fact of there being no effective license is not sufficient unless insurance company is also able to prove that breach of condition of driving licence is so fundamental as to have contributed to the cause of accident-whether insurance company is exempted fro liability-held; no ; no finding that absence of badge/authorisation in any way contributed to the cause of accident; breach can not be said to be fundamental it any amount to an infraction of section 3 inviting persecution of the person; case law discussed".
In ruling reported in 2014 ACJ 2124, Hon'ble High court of Delhi has held as under;
"Motor Vehicle Act, 1988, section 149 (2)(a)(ii) motor insurance- driving licence liability of insurance company pay and recover order driver had license to drive light motor vehicle (NT) but he was driving a TATA sumo registered as tourist taxi- insurance company disputed its liability on the ground that owner gave the vehicle to be driven by a person who did not possess a valid driving licence to drive commercial transport vehicle- tribunal found that vehicle was covered within the category of LMV and insurance company is not entitled to take the plea of breach of terms and conditions -whether the tribunal was justified in saddling liability on the insurance company -held no but insurance company can not avoid its liability towards third party; insurance SCCH-14 22 MVC No.364/2015 company bound to satisfy the award and then recover the amount from the owner and driver in execution of this very judgment without having recourse to independent civil proceeding.
The principles laid down in the said rulings are not applicable to facts and circumstance of this case. Our Hon'ble High court has categorically held in rulings relied upon by the respondent No.2 that insurance company is absolved from payment of compensation if the owner has violated the terms and conditions of the policy. Hon'ble court in recent ruling in MFA No.32560/2011 has held as under;
So from the aforesaid discussion of the provisions of Section 2(21) of the Act and the amendment to the Central Motor Vehicles Rules which came into effect from 28.03.2001, it is necessary for a person who drive a light motor vehicle for (commercial) transport must have a specific licence in this regard. As could be seen from the provisions of Section 3 of the Act, it is provided no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle. Therefore, if a person has authority to drive the commercial transport vehicle, he must have a licence as contemplated under the Rules amended, which came into effect from 28.03.2001. If he does not have such a licence, there would be contravention of the Act. He does not have competency to drive such vehicle and thereby there would be breach of conditions of the policy, for which the insurer has to be exempted from the liability. It is only the Apex Court, which has got authority to direct the insurer by exercising powers under Article 142 of the Constitution and such powers are not available to this Court or any other Courts.SCCH-14 23 MVC No.364/2015
In the facts on hand, the driver had no licence to drive transport vehicle, which was used for carrying passengers. Therefore, he had no competency to drive such vehicle. Thereby, there is breach of the conditions of the policy. The tribunal was justified in directing owner to pay the compensation. In that view of the matter, the point is answered in the negative.
25. The said ruling is aptly applicable to this case. It is the recent Judgment of our own Hon'ble High court. This court is bound to follow the same. Hence, I am of the opinion that the deceased was not holding a valid and effective driving license to drive car bearing No. KA-04-D-2520. He was holding a license to drive a LMV (NT). He was not holding a badge to drive a commercial vehicle. He was not holding a license to drive a transport vehicle. The said car is a commercial vehicle. Hence, the respondent No.1 has violated the terms and conditions of the policy by allowing the deceased to drive his car. The respondent No.2 is absolved from indemnifying the respondent No.1. The burden to pay compensation to the petitioners is upon the respondent No.1. He shall deposit the amount and interest before the court within one month. The petition as against the respondent No.2 is liable to be dismissed. Hence, I answer the issue as above.
26. ISSUE NO.3: In view of above discussion and findings, I proceed to pass the following:
ORDER The petition filed by the petitioners U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.SCCH-14 24 MVC No.364/2015
The petitioners are entitled for a compensation of Rs.18,43,000/- with interest @ 9% per annum from the date of petition till the date of payment.
The respondent No.1 is liable to pay to the above said petitioners a compensation of Rs.18,43,000/- with interest. He is directed to deposit the amount before court within one month from the date of order.
The petitioners are entitled to share of compensation amount as under:
The petitioner no.1 : Rs.10,43,000/- The petitioner no.2 : Rs.5,00,000/-. The petitioner no.3 : Rs.3,00,000/-.
After deposit, Rs.5,00,000/- out of the share of the petitioner no.1 and Rs.2,00,000/- out of the share of the petitioner no.2 shall be deposited in their respective names in any nationalized, scheduled or Co- operative bank for a period of 3 years. Remaining amount and interest of the petitioner no.1 and 2 shall be released in their favour through account payee cheque with proper identification.
Entire share of the petitioner No.3 shall be deposited in her name under the guardianship of the petitioner No.1 in the above said bank till she attains majority.SCCH-14 25 MVC No.364/2015
The claim petition as against the respondent No.2 is dismissed without cost.
Advocate's fee is fixed at Rs.5,000/-.
Draw award accordingly.
(Dictated to the Stenographer, directly on computer and then corrected by me and pronounced in the open court, on this the 6th day of January 2016.) (Basavaraj Chengti) XVI ADDL.JUDGE, Court of Small Causes & MACT., Bangalore.SCCH-14 26 MVC No.364/2015
ANNEXURE WITNESSES EXAMINED AND DOCUMENTS MARKED FOR PETITIONERS AND RESPONDENTS:
PW.1 Muniraju Respondents : RW.1 Shankar RW.2 Shiva Ramakrishnan.B Ex.P1 - Copy of FIR with complaint E.xP2 - Copy of Spot panchanama Ex.P3 - Copy of IMV report Ex.P4 - Copy of Sketch
Ex.P5 - Copy of Inquest Report with statement of witnesses Ex.P6 - Copy of PM report Ex.P7 - Copy of Charge Sheet Ex.P8 - Copy of Ration Card Ex.P9 - Copy of Voter ID of Rathnamma Ex.P10- Copy of Voter ID of Muniraju Ex.P11- Copy of Voter ID of Mohan Ex.P12- Copy of TC of Mohan Respondents Ex.R1 -Copy of Policy Ex.R2 -Copy of Permit Ex.R3 -Copy of B Register Extract Ex.R4 -Copy of DL Extract Ex.R5 -Copy of Letter sent to owner Ex.R6 -Copy of Postal Acknowledgement Ex.R7 - Copy of Statement of driver Ex.R8 - Copy of R.C. Card Ex.R9 - Copy of Insurance Policy Ex.R10- Copy of Permit Ex.R11- Copy of Tax Paid Receipt Ex.R12- Copy of Attendance Register XVI ADDL.JUDGE, Court of Small Causes & MACT., BANGALORE.SCCH-14 27 MVC No.364/2015
Dt.06.01.2016 P-RGC R1-BKK R2-VSN For Judgment Order pronounced in open court vide separate judgment.
ORDER The petition filed by the petitioners U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioners are entitled for a compensation of Rs.18,43,000/- with interest @ 9% per annum from the date of petition till the date of payment.
The respondent No.1 is liable to pay to the above said petitioners a compensation of Rs.18,43,000/- with interest. He is directed to deposit the amount before court within one month from the date of order.
The petitioners are entitled to share of compensation amount as under:
The petitioner no.1 : Rs.10,43,000/- The petitioner no.2 : Rs.5,00,000/-. The petitioner no.3 : Rs.3,00,000/-. After deposit, Rs.5,00,000/- out of the share of the petitioner no.1 and Rs.2,00,000/- out of the share of the petitioner no.2 shall be deposited in their respective names in any nationalized, scheduled or Co- operative bank for a period of 3 years. Remaining amount and interest of the petitioner no.1 and 2 shall be released in their favour through account payee cheque with proper identification.SCCH-14 28 MVC No.364/2015
Entire share of the petitioner No.3 shall be deposited in her name under the guardianship of the petitioner No.1 in the above said bank till she attains majority.
The claim petition as against the respondent No.2 is dismissed without cost.
Advocate's fee is fixed at Rs.5,000/-. Draw award accordingly.
XVI ADDL.JUDGE, Court of Small Causes & MACT., BANGALORE.SCCH-14 29 MVC No.364/2015
AWARD SCCH NO.14 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA : BANGALORE CITY MVC No.364/2015 Petitioners : 1. Rathnamma M/o Muniraju Aged about 40 years,
2. Muniraju S/o late Muniyappa, Aged about 45 years,
3. Pavithra.M D/o Muniraju, Aged about 15 years, All are Residing at No.27, Gowdanapalya, Murali Krishna School road, Bangalore-61.
Petitioner no.3 is minor, V/s and Hence Rep by her mother and natural guardian 1st petitioner.
(By pleader Sri RGC) Respondents 1. Shiva Ramakrishnan.B S/o Balakrishna S No.47/2, 17th cross, Kanakanagar, V.Nagenahalli main road, R.T nagar post, Bangalore-32.
(RC owner of Car) (By pleader Sri BKK) Future General India Ins.,Co.Ltd.,
2. Pasadena No.18/1, 3rd floor, Ashoka Pillar road, SCCH-14 30 MVC No.364/2015 1st block, Jayanagara, Bangalore-11.
(Insurer of the Car) (By pleader Sri VSN) WHEREAS, this petition filed on by the petitioner/s above named U/sec.166 of the M.V.C. Act, praying for the compensation of Rs.
(Rupees ) for
the injuries sustained by the petitioner/Death of in a
motor Accident by vehicle No.
WHEREAS, this claim petition coming up before
Sri/Smt.Basavaraj Chengti, XVI Addl.Judge, Court of Small Causes, Bangalore, in the presence of Sri/Smt. Advocate for petitioner/s and of Sri/Smt. Advocate for respondent.
ORDER The petition filed by the petitioners U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioners are entitled for a compensation of Rs.18,43,000/- with interest @ 9% per annum from the date of petition till the date of payment.
The respondent No.1 is liable to pay to the above said petitioners a compensation of Rs.18,43,000/- with interest. He is directed to deposit the amount before court within one month from the date of order.
The petitioners are entitled to share of compensation amount as under:
SCCH-14 31 MVC No.364/2015The petitioner no.1 : Rs.10,43,000/- The petitioner no.2 : Rs.5,00,000/-. The petitioner no.3 : Rs.3,00,000/-. After deposit, Rs.5,00,000/- out of the share of the petitioner no.1 and Rs.2,00,000/- out of the share of the petitioner no.2 shall be deposited in their respective names in any nationalized, scheduled or Co- operative bank for a period of 3 years. Remaining amount and interest of the petitioner no.1 and 2 shall be released in their favour through account payee cheque with proper identification.
Entire share of the petitioner No.3 shall be deposited in her name under the guardianship of the petitioner No.1 in the above said bank till she attains majority.
The claim petition as against the respondent No.2 is dismissed without cost.
Advocate's fee is fixed at Rs.5,000/-. Given under my hand and seal of the Court this day of 2016.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA: Bangalore.SCCH-14 32 MVC No.364/2015
By the __________________________________ Petitioner/s Respondent No.1 No.2 __________________________________ Court fee paid on petition 10-00 Court fee paid on Powers 01-00 Court fee paid on I.A. Process Pleaders Fee _____________________________ Total Rs. ____________________________ Decree Drafted Scrutinised by MEMBER, M.A.C.T. METROPOLITAN: BANGALORE Decree Clerk SHERISTEDAR SCCH-14 33 MVC No.364/2015