Bangalore District Court
Sri. T.S. Ravi @ Ravi Kumar vs Mr. Shankarappa on 16 February, 2017
IN THE COURT OF THE XXII ADDITIONAL SMALL
CAUSES JUDGE AND XX ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE & M.A.C.T.,
BENGALURU (SCCH-24).
Present: Smt. ZAIBUNNISA.
B.Com.LL.B.
XXII A.S.C.J. & XX A.C.M.M.
& Member MACT, Bengaluru.
Dated: This the 16th day of February, 2017
M.V.C.No.814/2015
Petitioners : 1. Sri. T.S. Ravi @ Ravi Kumar,
S/o Late Sajeeva Rao,
Aged about 48 years.
2. Smt. Bharathamma,
W/o Ravi @ Ravi Kumar,
Aged about 40 years.
Both are residing at No.22,
1st Cross, GKW Layout,
Vijayanagara 2nd Stage,
Bangalore-560040.
And also No.32,
Adinarayanapura,
Bagepalli Taluk,
Chikkaballapura District.
(Reptd By : Sri. Chikkanna. B.H.
Advocate, Bengaluru).
- Versus -
2 SCCH-24
MVC No.814/2015
Respondents: 1. Mr. Shankarappa,
S/o Reddappa,
Major in age,
Resident at Sigenahalli village,
Kappala Madagu post,
Mulabagalu Taluk,
Mulabagalu-563 131.
(R.C.Owner of Tractor and Trailer
Bearing Reg.No.KA-07-T-9071 and
KA-07-T-9072).
2. The Regional Manager,
The New India Assurance Co.Ltd,
Regional Office, No.2/B,
Unity Building, Annexe,
Mission road,
Bangalore-560 027.
(Insurer of Tractor and Trailer
Bearing Reg.No.KA-07-T-9071
and KA-07-T-9072
I/P No.71180631130200003380.
Valid from 12.11.2013 to 11.11.2014).
(R-1 by : Exparte.
R-2 by : Sri.D.M. Joshi,
Advocate, Bengaluru).
(ZAIBUNNISA)
XXII A.S.C.J. & XX A.C.M.M.
MEMBER, M.A.C.T. BENGALURU.
3 SCCH-24
MVC No.814/2015
JUDGEMENT
This claim petition is filed by the petitioners under Section 166 of the Motor Vehicles Act claiming the compensation on account of the death of Sri. Sanjay, in the Motor Vehicles Accident.
2. The case of the petitioners are as under :
That on 16.09.2014 at about 10.00 a.m., deceased Sanjay was riding his motor cycle bearing Reg.No.KA-05- JF-4674 along with friends proceeding on left side of the NH-75 road near V. Guttahalli within the limits of Mulabagal Police station, at that time the driver of the Tractor and Trailer bearing Reg.No.KA-07-T-9071 and KA-07-T-9072 came from opposite direction in high speed with rash and negligent manner, endangering human life, without observing traffic rules and regulations took right turn and dashed against the deceased motor cycle. Consequent to the terrific impact 4 SCCH-24 MVC No.814/2015 the deceased fell down and sustained severe injuries and he was succumbed to the injuries on spot.
3. Petitioners submitted that, prior to the date of accident, the deceased was hale and healthy had no vices. The deceased was aged about 20 years, he was working as priest and teaching Vedaadiyana and earning a sum of Rs.15,000/- per month. Apart from salary he used to get dakshine in a sum of Rs.100/- to Rs.200/- per day. The deceased was contributing his entire income for the maintenance of the family. The petitioners are the parents of deceased and were entirely depending on his income and they do not have any other source of income for their livelihood. It is submitted that, the petitioners have transported the body of the deceased by hiring ambulance on cost of Rs.10,000/-. It is submitted that, the body of the deceased was cremated at 5 SCCH-24 MVC No.814/2015 Adinarayanapura, Bagepalli taluk, Chikkaballapura District. The petitioner have incurred a sum of Rs.50,000/- towards transportation, funeral and obsequies ceremonies. The driver of the Tractor and Trailer bearing Reg.No.KA-07-T-9071 and KA-07-T-9072 is solely responsible for the cause of accident. The jurisdictional Mulabagal police have registered a case in Crime No.320/2014 for the offences punishable u/s 279, 304(A) of IPC and 134(a)(b) of IMV Act against the driver of the said vehicle. The 1st respondent is the R.C. Owner and 2nd respondent is the insurer of the said Tractor and Trailer. Hence, they are jointly and severally liable to pay the compensation of Rs.20,00,000/- to the petitioners with interest and costs.
4. After service of notices, the Respondent No.2 has appeared through it's counsel before the Tribunal and 6 SCCH-24 MVC No.814/2015 resisted the petition filed by the petitioners by filing the written statement. In spite of the service of the notice Respondent No.1 has remained absent. Hence, Respondent No.1 has been placed Ex-parte.
5. The respondent No.2 has field its statement of objections by denying all the petition averments. The respondent No.1 has admits the issuance of commercial Vehicle liability policy in respect of the Tractor and Trailer bearing Reg.No.KA-07-T-9071/9072 in favour of 1st respondent and the liability of this respondent if any is subject to the terms and conditions of the issuance of insurance policy and provisions of M.V. Act. The respondent No.1 has specifically denied the age, avocation, income, injuries sustained by the deceased and succumbed to the injuries, involvement of the Tractor and Trailer, name and address of the petitioners, relationship of the petitioners with the deceased, amount 7 SCCH-24 MVC No.814/2015 spent towards transportation, funeral and obsequies ceremonies and put the petitioners to strict proof of the same. The compensation claimed by the petitioners is quite fanciful and whimsical. The respondent No.2 has contended that, alleged offending vehicle is a Tractor attached with a Trailer constitute a goods carriage- Transport Vehicle, the driver of the offending Tractor and Trailer has not possessed the effective and valid driving licence to drive the class of vehicle on the date of alleged accident. Further the vehicle was not having proper and valid permit to use on the road to carry goods. The petition is bad for non-joinder of necessary and proper parties since the petitioners have not made the insurer of the motor cycle bearing Reg.No.KA-05-JF-4874 in which the deceased was going on the date of the alleged accident. This respondent also taken defence that, this tribunal has no jurisdiction to try the petition since the accident occurred within the limits of Mulabagilu police 8 SCCH-24 MVC No.814/2015 station and the petitioners are residing at Chikkaballpur District. The petition is also bad for non compliance of section 134 of MV Act by respondent No.1 and for non compliance of Section 158 (6) of MV Act by the concerned police authorities. Therefore 3rd party claim against the insurer of the vehicle is not sustainable and liability of this respondent No.2 may absorbed. In the event of grant of compensation if any rate of interest may not exceed 6% p.a. as per the law declared by the Hon'ble High Court of Karnataka in Geetha's case. Calling upon the petitioners to prove the contentions with strict proof and prays to dismiss the same with cost.
6. On the basis of the above pleadings and the rival contentions of both the parties, the following issues are framed:-
9 SCCH-24 MVC No.814/2015 ISSUES
1. Whether the petitioners prove that they are the legal representatives of the deceased Sri. Sanjay ?
2. Whether the petitioners prove that the deceased Sanjay had died due to the injuries sustained in the Road Traffic Accident that occurred on 16.09.2014 at about 10.00 a.m., while he was riding his motor cycle bearing Reg.No.KA-05-JF-4674, near V. Guttahalli gate, NH-75 road, Mulbagal Taluk, due to the rash and negligent driving of the Tractor and Trailer bearing Reg.No.KA-07-T-9071 and KA-07-T- 9072 by its driver as alleged?
3. Whether the petitioners are entitled for the compensation as claimed? If so, to what amount and from whom?
4. What order or Award?
7. In order to substantiate the case made out by the petitioners, the petitioner No.2 got herself examined as PW.1 and got marked documents at Ex.P.1 to Ex.P.14. Thereafter, the petitioners closed their side evidence.
10 SCCH-24 MVC No.814/2015
8. In order to rebut the evidence so placed on record by the petitioners, the 2nd respondent examined one witness as R.W.1 and got marked Ex.R.1 to Ex.R.19. Thereafter, respondents side evidence closed.
9. Heard the arguments. Perused the materials placed on record.
10. My findings on the above issues are as under:
Issue No.1 - In the Affirmative. Issue No.2 - In the Affirmative. Issue No.3 - Partly in the Affirmative.
The petitioners are entitled for a total compensation of Rs.13,56,000/-.
From respondent No.1 & 2.
Issue No.4 - As per final order. for the following :
11 SCCH-24 MVC No.814/2015 REASONS ISSUE No.1:
11. The petitioners alleged that, petitioners are the parents of deceased Sanjay. In order to establish the said fact the petitioner No.2 has filed her affidavit in lieu of examination-in-chief and examined as P.W.1. She reiterates all the averments and allegations made in the claim petition. During the cross-examination, the relationship of the petitioners with the deceased is not at all disputed. In order to establish their case, petitioners have produced Ration Card at Ex.P.9. The above said document clearly demonstrates that, petitioner No.1 and 2 are the parents of the decease Sanjay. When the respondents have not denied the relationship during the cross-examination and not challenged the authenticity of Ex.P.9 then there is no need to discuss much about the relationship between the deceased and the petitioners.
12 SCCH-24 MVC No.814/2015 With the help of oral evidence and document at Ex.P.9, the petitioners are successfully proved that they are the legal representatives of the deceased. Under the circumstances, the fact of the relationship of the petitioners with the deceased as the legal representatives of the deceased is duly proved by the petitioners. Accordingly, issue No.1 is answered in the affirmative. ISSUE No.2:
12. It is the case of the petitioners that, on 16.09.2014 at about 10.00 a.m, deceased Sanjay was riding his motor cycle bearing Reg.No.KA-05-JF-4674 along with friends proceeding on left side of the NH-75 road near V. Guttahalli within the limits of Mulabagal Police station. At that time the driver of the Tractor and Trailer bearing Reg.No.KA-07-T-9071 and KA-07-T-9072 came from opposite direction in high speed with rash and
13 SCCH-24 MVC No.814/2015 negligent manner and endangering human life, without observing traffic rules and regulations took right turn and dashed against the deceased motor cycle. Consequent to the terrific impact the deceased fell down and sustained severe injuries and he was succumbed to the injuries on spot. The Mulbagal police have registered a case in Crime No.320/2014 for the offences punishable under Sect.279m 304(A) of I.P.C. and Sec.134(a) and (b) of M.V. Act against the driver of the said vehicle.
13. In order to prove the actionable negligence, the petitioner No.2 has entered into witness box and got examined as P.W.1. P.W.1 in her affidavit evidence has reiterated all the averments and allegations made in the claim petition. P.W.1 has deposed that, the accident has occurred due to sole rash and negligent driving of the Tractor and Trailer bearing Reg.No.KA-07-T-9071 and KA-07-T-9072 by its driver. During the course of cross-
14 SCCH-24 MVC No.814/2015 examination she is consistent with regard to the rash and negligent manner of the driving of the tractor and trailer by its driver.
14. So for as the documentary evidence is concerned, the petitioners have relied upon various police documents produced at Ex.P.1 to Ex.P.8. Out of these documents Ex.P.1 is copy of the First Information Report, Ex.P.2 is copy of the Complaint, Ex.P.3 is copy of Mahazar, Ex.P.4 is copy of Sketch, Ex.P.5 is copy of IMV Report, Ex.P.6 is copy of Inquest Report, Ex.P.7 is copy of the Post Mortem Report and Ex.P.8 is copy of Charge Sheet. On plain reading of these documents they do demonstrate that, there was an accident in the manner alleged by the petitioners and because of the rash and negligent driving of the Tractor and Trailer bearing Reg.No.KA-07-T-9071/9072 the said accident has taken 15 SCCH-24 MVC No.814/2015 place. Ex.P.1, i.e. the copy of the First Information Report discloses that a criminal case has been registered against the driver of the Tractor and Trailer bearing Reg.No.KA-07-T-9071 and KA-07-T-9072 for the offences punishable U/sec.279, 337, 304(A) of the Indian Penal Code, Section 134(A) and (B) of MV Act. After investigation, the police have submitted the charge sheet against the driver of the Tractor and Trailer for the offences punishable under Sec. 279, 337, 304(A) of the Indian Penal Code Section 134(a) and (b) of MV Act.
15. The 2nd respondent has taken defence that, the accident occurred due to the sole rash and negligence on the part of the rider of the Motor Cycle. As per sketch and other police documents the deceased has also contributed the negligence to the accident. In order to substantiate the said defence, the 2nd respondent 16 SCCH-24 MVC No.814/2015 examined the Assistant Manager as R.W.1. R.W.1 in his affidavit evidence has reiterated the contents of objection statement. During the course of cross-examination he has admitted that, the insurance company has not challenged the charge sheet before any Court. In the present case except the self testimony of the R.W.1 no document has been placed before this Tribunal to show that, there was no negligence on the part of the driver of the Tractor and Trailer. R.W.1 has admitted that, police have filed the charge sheet against the driver of said tractor and trailer. The said charge sheet has not been challenged. Further on perusal of the police documents it is appeared that, the offending Tractor-Trailer took sudden right turn without giving any signal on N.H.75 and dashed against the deceased motor cycle and caused the accident. The Ex.P.1 to 8 prima-facie discloses that, the accident has caused due to the rash and negligence of the driver of the Tractor and Trailer. Ex.P.7 is the Post-
17 SCCH-24 MVC No.814/2015 Mortem Report. Which discloses that, the death was due to head injury. The said Ex.P.7 is not disputed by the respondents. Under these circumstances, the evidence of P.W.1 coupled with Ex.P.1 to Ex.P.8 establishes that the accident has caused solely due to rash and negligent driving of the Tractor-Trailer bearing No.KA-07-T-9071 and KA-07-T-9072 by its driver. Accordingly, issue No.2 is answered in the Affirmative.
ISSUE No.3:
16. The petitioners are claiming compensation on account of the death of Mr. Sanjay, in the said Road Traffic Accident. It is stated in the claim petition as well as in the evidence of P.W.1 that the deceased was aged about 20 years and he was working as priest and teaching the Vedaadhyayana. The deceased was earning a sum of Rs.15,000/- per month. Apart from salary he
18 SCCH-24 MVC No.814/2015 was getting dakshine in a sum of Rs.100/- to Rs.200/- per day and he was contributing entire amount towards family maintenance. P.W.1 deposed that, they were depending upon the income of the deceased for their livelihood and they have no other source of income. In order to substantiate the avocation and earnings of the deceased the petitioners have not produced any documentary evidence. But, they have produced admission ticket of Karnataka Sanskrit University, Bengaluru, which shows that deceased had attended the exams of Rigveda 2nd year in the month of February- 2014. This shows that, deceased was studying Vedas from Karnataka Sanskrit University. Hence, in the absence of relevant documents and taking into consideration of the age and avocation, if the income of the deceased is inferred at Rs.8,000/- per month that would meet the ends of justice.
19 SCCH-24 MVC No.814/2015
17. As per the decision reported in 2013 ACJ 1403 between Rajesh and others V/s. Rajbir Singh and others it is held that :
"Quantum-Fatal accident- Principles of assessment - Future prospects- Whether formula for increase of income for future prospects adopted for person with permanent jobs in Sarla Verma's case 2009 ACJ 1298(SC) may also be applied to persons who were self employed or were engaged on fixed wages - Held :
yes : 50 percent of actual income (after deduction of tax) for persons below 40 years 30 percent for the age group of 40 to 50 years. 15 percent for age group of 50 to 60 years; but no addition thereafter".
On perusal of the above cited decision it is clear that, 50 percent of actual income (after deduction of tax) for the persons below 40 years and 30 percent for the age group of 40 to 50 years 15 percent for age group of 50 to 60 years is to be added.
20 SCCH-24 MVC No.814/2015
18. The learned counsel for the petitioners has relied on the decision reported in 2015 AIR SCW 3105 between Munna Lal Jain and another Vs. Vipin Kumar Sharma and others in respect of computation of the compensation and multiplier depending on the age of deceased. It is held that, "(A) Motor Vehicles Act (59 of 1988), S. 168 - Compensation -
Computation of Depends basically on evidence available in a case -
Formulas shown by courts are only guidelines for it".
"(C) Motor Vehicles Act (59 of 1988) S. 168 - Compensation -
Computation of - Multiplier -
Depend on age of deceased alone -
Age of deceased was between 26 to 36 years at time of accident -
Proper multiplier is 17".
As per the above cited decision the age of the deceased is to be considered for the multiplier.
21 SCCH-24 MVC No.814/2015
19. In the present case the monthly income of the deceased is taken at Rs.8,000/-. As per the petition the deceased was aged about 20 years at the time of his death. During the cross-examination of P.W.1 respondent has suggested that, age of the deceased at the time of accident was more than 30 years. The Post Mortem Report at Ex.P.7 and the Ration Card at Ex.P.9 shows the age of the deceased was 20 years. Except suggesting that the deceased was aged more than 30 years as on the date of accident, the respondents have not made any rebuttal evidence. Under such circumstances it is proper to consider the age of deceased as between 20 to 22 years at the time of accident. As per above cited decision, 50% of the income of the deceased is to be added to his monthly income. Then, it comes (Rs.8,000 + Rs.4,000/-) to Rs.12,000/- per month. Admittedly, the deceased was the bachelor. Thus, as per the decision reported in 2009 ACJ 1298 between Sarala Verma & Others V/s Delhi 22 SCCH-24 MVC No.814/2015 Transport Corporation and others, ½ of the income is to be deducted towards his personal and living expenses. Thereby, this Tribunal is of the considered opinion that, the monthly income of the deceased is to be considered as (Rs.12,000 - Rs.6,000)= Rs.6,000/- per month. As per Sarala Verma case the appropriate multiplier is '18'. So the loss of dependency works out to (Rs.6,000 - X 12 X
18) = Rs.12,96,000/-. Hence, a sum of Rs.12,96,000/- is awarded under the head loss of dependency.
20. Admittedly the petitioner No.1 is the father and petitioner No.2 is the mother of deceased. No doubt they have lost love and affection of the deceased. Taking into consideration of the said fact, this Tribunal is of the considered view that, it would be just and proper to award a compensation of Rs.40,000/- under the head loss of love and affection.
23 SCCH-24 MVC No.814/2015
21. It is the evidence of the P.W.1 that, body of the deceased was cremated at Adinarayanapura, Bagepalli Taluk, Chikkaballapura District and transported the body of the deceased in ambulance by spending Rs.10,000/-. P.W.1 has deposed that, they have spent Rs.50,000/- towards transportation, funeral and obsequies ceremonies. In this regard the petitioners have not produced any material evidence. It is pertinent to note that, the petitioners must have spent money towards transportation of body to the Mulbagal Government Hospital and from there to the burial ground at Adhinarayanapura, Chikkaballapura District as stated by them and must have spent money for funeral and obsequies ceremony. Hence, in the absence of proof, a sum of Rs.20,000/- is awarded towards Transportation of body, Funeral and obsequies ceremony. Thus, the petitioners are entitled for the compensation under the following heads:
24 SCCH-24 MVC No.814/2015
1. Loss of dependency. Rs. 12,96,000/-
2. Loss of love and Rs. 40,000/-
affection.
3. Transportation Rs. 20,000/-
expense, funeral and obsequies ceremony..
Total Rs. 13,56,000/-
So, the petitioners are entitled for a total compensation of Rs.13,56,000/- (Rupees Thirteen Lakhs Fifty Six Thousand only) with interest at the rate of 8% per annum from the date of petition, till the date of realization.
22. Now coming to the question of liability. In view of the findings on issue No.1, the accident has occurred due to the negligent driving of the Tractor and Trailer bearing Reg.No.KA-07-T-9071 and KA-07-T-9072 by its driver. The 2nd respondent has forcefully contended that, the alleged offending vehicle is a tractor attached with a 25 SCCH-24 MVC No.814/2015 trailer constituted goods carriage Transport Vehicle. The driver of the said offending vehicle has not possessed the effective and valid driving licence to drive the particular class of vehicle on the date of alleged accident. The said vehicle is covered under the Commercial vehicle liability only policy and the owner of the vehicle knowingly allowed such a driver to driver the Tractor, who had no licence to drive Transport vehicle, thereby committed the breach of terms and conditions of the policy. Therefore this 2nd respondent is not liable to indemnify the insured and to pay compensation to the petitioners. In this respect examined the Assistant Manager of the 2nd respondent as R.W.1. This R.W.1 in his affidavit evidence has reiterated the written statement averments. R.W.1 has produced Ex.R.1 i.e., the Authorization Letter, Ex.R.2 i.e., Copy of the Insurance Policy, Ex.R.3 i.e., copy of the Mahazar, Ex.R.4 i.e., Copy of the Charge Sheet, Ex.R.5 i.e., copy of the Sketch, Ex.R.6 i.e., copy of the 26 SCCH-24 MVC No.814/2015 IMV Report, Ex.R.7 i.e., Copy of the notice issued to the owner of the offending vehicle, Ex.R.8 i.e., Postal Acknowledgment, Ex.R.9 i.e., copy of the Letter Issued to the RTO, Kolar by the 2nd respondent, Ex.R.10 i.e., Counter Foil of the Postal Order, Ex.R.11 i.e., Postal Acknowledgment, Ex.R.12 i.e., copy of the Another Letter issued to the RTO, Kolar by the 2nd respondent, Ex.R.13 i.e., Postal Acknowledgment, Ex.R.14 i.e., D.L. Extract, Ex.R.15 i.e., 'B' Register Extract pertaining to the Tractor-Trailer, Ex.R.16 i.e., Letter received from Gudiyattam Branch, Ex.R.17 i.e., copy of the R.C. Book of Tractor-Trailer with proposal form for package policy, Ex.R.18 i.e., Copy of the notice issued to the driver of the offending vehicle and Ex.R.19 i.e., Postal Receipt. During the course of cross-examination of R.W.1, it is pointed out that the policy at Ex.R.2 bears signature of this witness but not the signature of owner of the vehicle and the said policy contains the different handwritings, said 27 SCCH-24 MVC No.814/2015 suggestions are denied but it is admitted that, the offending vehicle's FC is for the period from 17.07.2008 to 17.07.2023. Therefore suggested that recently they have inserted the condition in the policy that same is issued for commercial vehicle and originally policy not issued to commercial vehicle. He admitted that, they have not challenged the charge sheet that same is falsely indicating that the offending vehicle came and dashed from back side nor sought the police for reinvestigation into the crime. He also admitted that, they have not challenged the charge sheet before any court of law.
23. Apart from the above said materials the learned counsel for the 2nd respondent has relied on the unreported judgments passed in:-
28 SCCH-24 MVC No.814/2015 (1) M.F.A.No.847/2011 between Smt. G.C. Shashikala and Others Vs. Smt. Gowramma and Others. Wherein it is held that, "-----------the driver had licence to drive LMV transport vehicle, though there was no specific endorsement to drive a particular type of vehicle involved in the accident. Whereas, the driver was driving a transport vehicle, He had no licence to drive transport vehicle. He had licence to drive non-transport vehicle. As such the question of interference by this Court in the finding recorded by the Tribunal to that effect given by the tribunal does not arise".
(2) M.F.A.No.11107/2012 between The New India Assurance Co.ltd., Vs., Smt. Doddamma and Another. Wherein it is held that:
"4.The vehicle which met with the accident is covered by the policy which is commercial in nature as per Ex.R.1. In the circumstances, to drive the commercial vehicle tractor trailer one should possess effective DL to drive the commercial vehicle. Ex.R.1 is the endorsement issued 29 SCCH-24 MVC No.814/2015 for 20 years and under the M.V.Act, the DL for 20 years will be issued for non- transport vehicle. The Insurance Company is not liable to pay the compensation since the driver of the vehicle was not having valid DL".
On the other hand the learned counsel for the petitioner has relied on Civil Appeal No.5826 of 2011 between Mukund Dewangan Vs. Oriental Insurance Co.Ltd., etc. Wherein it is held at para 20 of the judgment that:
" 20. The learned Judges having considered the entire materials and relevant provisions of the MV Act and conflict of decisions of various High Courts and this Court on the question of defences available to the insurance company in defending the claims of the victims of the accident arising due to the harsh and negligent driving of the vehicle which is insured with the insurance companies, proceeded to record the following summary of findings: (Swaran Singh case, SCC pp. 341-42, para 110) 110. (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third-party risks is a social welfare legislation to extend 30 SCCH-24 MVC No.814/2015 relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of Act have to be so interpreted as to effectuate the said object".
"(ii) An insurer is entitled to raise a defence in a claim petition filed under Section-163-A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149 (2)(a)(ii) of the said Act".
"The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2) (a) (ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy 31 SCCH-24 MVC No.814/2015 regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time".
"(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid the liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunal 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".
Further in (2001) 8 Supreme Court Cases 56 between Nagashetty Vs. United India Insurance Co.Ltd., and Others. Wherein it is held that:
" Motor Vehicles Act, 1988 - Ss.147, 140, 141, 149, 156 & 168 and 2(14), 2(44), 2(46) & 2(47) - Motor accident -
32 SCCH-24 MVC No.814/2015 Insurer's liability to pay compensation
- When a person holds a permanent licence to drive tractor-then merely because he was driving a tractor which had a trailer attached to it and was being used for carrying goods at the time of accident, held, it cannot be said that the tractor was being used as a goods vehicle for driving which the driver had no valid licence - In the insurance policy issued for a tractor, an additional premium for a trailer having been taken and the policy having contemplated transportation of goods also, held, insurance company was liable to pay compensation to the LR of the deceased victim of the accident".
Further in 2013 AIR SCW 3941 between S. Iyyapan Vs. M/s United India Insurance Company Ltd., & Anr. Wherein it is held that:
"(A) Motor Vehicles Act (59 of 1988) -
S.149 - Liability of insurer - Defence of violation of condition of policy - Does not absolve insurer of its statutory liability to pay compensation to third party- Defence available under S.149 only safeguards interest of insurer in 33 SCCH-24 MVC No.814/2015 certain circumstances by enabling it to recover same from insured".
I have gone through the above said oral and documentary evidence. In the light of the decisions relied on by the parties and after going through the above materials, it clearly appears that, the police have not charge sheeted the driver of the Tractor for not possessing DL to drive the offending vehicle and said charge sheet is very much verified by the insurance company but it has not challenged the same before any authority. Under the guise of not holding proper licence to drive the insured vehicle, the insurance company cannot defeat the rights of the 3rd parties to seek compensation since same will defeat the paramount object of the social legislation, which is brought into force to give compensation to the victims of the accidents arising out of use of the motor vehicles as rightly pointed by the learned counsel for the 34 SCCH-24 MVC No.814/2015 petitioner by relying upon the decisions supra. In view of the above said decisions passed by Hon'ble High Courts and Hon'ble Supreme Courts, I am of the opinion that, the 2nd respondent company has to prove strictly that, the accident occurred because of not holding the valid licence by the driver of the offending vehicle. In the case on hand admittedly the Insurance Company has not proved the said aspect that accident occurred due to the reason of not holding valid licence by the drover of the Tractor and Trailer. In the above said decision it is aptly held by the Hon'ble Supreme Court on the liability of the insurer to pay compensation that when a person holds a permanent licence to drive tractor, then merely because he was driving a tractor which had a trialoer attached to it and was being used for carrying goods at the time of accident then it cannot be said that the tractor was being used as a goods vehicle and to drive the same the driver had no valid licence. If the insurance policy issued for 35 SCCH-24 MVC No.814/2015 the tractor, an additional premium for a trailer having been taken and the policy having contemplated transportation of goods also. Under such circumstances insurance company cannot absolve from its liability but liable to pay compensation to the LRs of the deceased victim of the accident. The 2nd respondent except relying on the unreported judgments he has not produced any other satisfactory materials to consider its defence. Therefore relying upon the above said opinions expressed in the decisions produced for petitioners supra, I am of the opinion that, the insurance company cannot deny it's liability to pay compensation to the petitioners in the case on hand. The 2nd respondent has admitted the issuance of insurance policy and its force at the time of accident. Respondent No.1 is the R.C. Owner and respondent No.2 is the insurer of the Tractor and Trailer bearing Reg.No.KA-07-T-9071 and KA-07-T-9072. Hence, I came to conclusion that, the respondents No.1 36 SCCH-24 MVC No.814/2015 and 2 are jointly and severally liable to pay the compensation to the petitioners. Accordingly, issue No.3 is answered partly in the affirmative. Issue No.4:
24. For the foregoing reasons and the discussions as stated above, the petition filed by the petitioners deserve to be allowed in part with costs.
In result, I proceed to pass the following:
ORDER The Petition filed under Section 166 of the Motor Vehicles Act by the petitioners is hereby allowed in part with costs.
The petitioner is awarded a total
compensation of Rs.13,56,000/-
(Rupees Thirteen Lakhs Fifty Six
Thousand only) with interest at the rate
of 8% per annum from the date of
petition, till deposit.
The Respondents No.1 and 2 are jointly and severally liable to pay the compensation awarded in this case to the petitioners.
37 SCCH-24 MVC No.814/2015 The Respondent No.2 shall deposit the said compensation amount into the Tribunal within 60 days from the date of this order.
Out of the compensation award amount, the petitioner No.1 is entitled for a sum of Rs.3,56,000/- and the petitioner No.2 is entitled for a sum of Rs.10,00,000/- with proportionate interest.
Out of the compensation awarded 50% of the award amount of the petitioner No.1 and 2 shall be kept in Fixed Deposit in their respective names in any of the Nationalised Bank or Scheduled Bank for a period of 5 years free from encumbrance with liberty to draw the accrued periodical interest. Remaining compensation amount shall be disbursed to the petitioner No.1 and 2 respectively.
Advocate's fee is fixed at Rs.1,000/-. Draw award accordingly.
(Dictated to the stenographer directly on Computer, typed by her, corrected by me and then pronounced in the open court on this the 16th day of February 2017).
(ZAIBUNNISA) XXII A.S.C.J. & XX A.C.M.M., & MEMBER, M.A.C.T., Bengaluru.
38 SCCH-24 MVC No.814/2015 ANNEXURE Witnesses examined on behalf of the Petitioners:
P.W.1 - Smt. Bharathamma.
Witnesses examined on behalf of the Respondents:
R.W.1 - C.K. Surya Prakash.
Documents marked on behalf of the Petitioners:
Ex.P.1 - Copy of First Information Report.
Ex.P.2 - Copy of Complaint.
Ex.P.3 - Copy of Mahazar.
Ex.P.4 - Copy of Sketch.
Ex.P.5 - Copy of IMV Report.
Ex.P.6 - Copy of Inquest Report.
Ex.P.7 - Copy of Post Mortem Report.
Ex.P.8 - Copy of Charge Sheet.
Ex.P.9 - Copy of Ration Card.
Ex.P.10 - Copy of Identity Card of 1st petitioner
issued by his employer.
Ex.P.11 - Vedadhyayana Study Certificates.
& 12
Ex.P.13 - Examination Halt ticket of 2nd year
Rugvedamula exam.
Ex.P.14 - Salary Certificate of 1st petitioner.
Documents marked on behalf of the Respondents:
Ex.R.1 - Authorization Letter of R.W.1 Ex.R.2 - Copy of the Insurance Policy of Tractor No.KA-07-T-9071 with conditions.
Ex.R.3 - Copy of the Spot Mahazar.
Ex.R.4 - Copy of the Charge Sheet.
39 SCCH-24
MVC No.814/2015
Ex.R.5 - Copy of the Sketch.
Ex.R.6 - Copy of the IMV Report.
Ex.R.7 - Copy of the Notice issued to the owner
of the offending vehicle.
Ex.R.8 - Postal Acknowledgment.
Ex.R.9 - Copy of the Letter issued to RTO, Kolar
by the 2nd respondent for History
Sheet of DL.
Ex.R.10 - Postal Order Counter Foil. Ex.R.11 - Postal Acknowledgment. Ex.R.12 - Copy of the Letter issued to RTO, Kolar by the 2nd respondent for Hisotry Sheet of offending vehicle. Ex.R.13 - Postal Acknowledgment. Ex.R.14 - D.L. Extract.
Ex.R.15 - 'B' Register Extract of Tractor-Trailer. Ex.R.16 - Letter Issued by Gudiyattam Branch of insurance company to 2nd respondent. Ex.R.17 - Proposal Form of owner of the vehicle. Ex.R.18 - Copy of the Notice issued to driver of the offending vehicle.
Ex.R.19 - Postal Receipt.
(ZAIBUNNISA) XXII A.S.C.J. & XX A.C.M.M., & MEMBER, M.A.C.T., Bengaluru.