Bangalore District Court
Are Not Entitled For Any Compensation vs No.1 And 3 Are Jointly And on 22 June, 2016
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 22nd day of June, 2016.
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.3206/2013
1. C. Ravikumar, ..... PETITIONER
S/o. Late R. Chinnadorai,
Aged about 54 years.
2. Smt. M. Kumari,
W/o. Late C. Ravikumar,
Aged about 45 years.
Both are residing at,
No.28, Harsha Layout,
M.S. Nagar Post,
II Cross, Subbannapalya,
Bangalore - 33.
(By Sri. T. V. Ramesh., Adv.,)
V/s
1. Kumari. Rashmi Dehima, ..... RESPONDENTS
D/o. Gowrishankar Ashopa,
Major,
R/o No.189, Indiranagar,
Double Road,
Bangalore - 38.
2. The New India Assurance
SCCH-7 2 M.V.C.No.3206/2013
Company Ltd.,
Third Party HUB,
Mahalakshmi Chambers,
M.G. Road,
Bangalore - 01.
3. Smt. G. Sunitha,
W/o. Late G. Narasimhan,
Aged about 30 years,
R/o No.40, Harsha Layout,
M.S. Nagar Post,
3rd Cross,
Subbanna Playa,
Bangalore - 33.
(R-1 - By Sri. Chandrashekar. S. N.,
Adv.,)
(R-2 - By Sri. N. Basava Reddy, Adv.,)
(R-3 - Exparte)
JUDGMENT
It is pertinent note here that, initially, the Petitioners have filed the present petition only as against the Respondents No.1 and 2 and later, as per the Order dated 10.08.2015 passed on I.A.No.VI and VII filed by the Respondent No.1, the Respondent No.3 is impleaded as party to the present petition.
2. The Petitioners have filed the present petition as against the Respondents No.1 to 3 under Section 166 of the Motor Vehicles Act, 1989, praying to award compensation of Rupees 20,00,000/- with interest and costs in respect of the death of Sri. R. Prabhakaran S/o. Sri. C. Ravikumar.
SCCH-7 3 M.V.C.No.3206/20133. The brief averments of the Petitioners' case are as follows;
a) On 18.03.2013, the deceased R. Prabhakaran was engaged and hired a Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877 at Bangalore City to transport the Lord Anjaneya Statue from Shivarapatna Village, Malur Taluk, Kolar District to M.S. Palya, Bangalore. Accordingly, R. Prabhakaran left Bangalore by sitting in the said Van to go to Shivarapatna. On the way, at about 5.40 A.M., at Chokkanadahalli Gate on Hosakote - Malur Road, the driver of the Maruthi Van G. Narasimham driven the same at high speed, in a rash and negligent manner and dashed as against on going a Bullock Cart loaded with stone slabs. Due to impact, both the occupants of the Van caught in side and sustained grievous head injuries. Both the occupants succumbed to the injuries on the spot. This accident occurred due to carelessness, rash and negligent driving of the Van by its driver. The deceased R. Prabhakaran was a hirer of Maruthi Omini Van.
b) The deceased R. Prabhakaran was just aged about 28 years. The deceased was working at Haven Solution Courier at Dommalur Branch, Bangalore and he was drawing a monthly salary of Rupees 20,000/-.
c) The deceased was the only son to them and they were entirely depending upon the earnings of deceased R. Prabhakaran. They are put to lot of mental agony and untold misery due to sudden demise of R. Prabhakaran. Now, they are virtually on streets without having any means for their livelihood. They have SCCH-7 4 M.V.C.No.3206/2013 spent Rupees 20,000/- towards transportation of dead body and towards funeral obsequies.
d) The Respondent No.1 being R.C. Owner of the Maruthi Van and the Respondent No.2 being its insurer, both are jointly and severally liable to pay compensation. Hence, this petition.
4. Initially, though the notice was duly served on the Respondent No.1, she was remained absent and hence, she was placed as exparte on 19.07.2013. Later, the Respondent No.1 has appeared before this Tribunal through her Learned Counsel and as per the Order dated 04.03.2015 passed on I.A.No.V, the exparte order is set-aside and the Respondent No.1 is taken on file. The Respondent No.1 has filed the written statement.
5. Initially, though the notice was duly served on the Respondent No.2, it was remained absent and hence, it was placed as exparte on 19.07.2013. Later, the Respondent No.2 has appeared before this Tribunal through its Learned Counsel and as per the Order dated 20.08.2013 passed on I.A.No.II, the exparte order is set-aside and the Respondent No.2 is taken on file. But, initially, inspite of giving sufficient opportunities, the Respondent No.2 had not filed the written statement. Later, as per the Order dated 07.03.2015 passed on I.A.No.II, the written statement filed by the Respondent No.2 is taken on file.
6. It is pertinent note here that, as per the Order dated 10.08.2015 passed on I.A.No.VI and VII filed by the Respondent No.1, the Respondent No.3 is impleaded as party to the present SCCH-7 5 M.V.C.No.3206/2013 petition. Though the notice was duly served on the Respondent No.3, she was remained absent and hence, she is placed as exparte on 06.10.2015.
7. The Respondent No.1 inter-alia denying the entire case of the Petitioners, has further contended as follows;
a) The petition is wholly misconceived and is not maintainable either in law or on facts of the case.
b) She was the owner of the Maruthi Van bearing Registration No.KA-03-D-4877 and the said vehicle was sold to one Mr. Narasimhan S/o Late G.Krishna Murthy, aged about 36 years R/o Harsha Layout, Subbannapalya, Banglaore-33 dated 07.10.2012 for a sum of Rupees 1,00,000/- and the same has been intimated to the New India Assurance Company Limited, who is the Respondent No.2 and she has issued delivery note in favour of the purchaser Mr. Marasimhan.
c) G. Ramesh brother of late G. Narasimhan took the special power of attorney from the earlier owner of the said vehicle, who is her, had executed a special power of attorney in favour of Ramesh G. S/o Late G. Krishna Murthy, aged about 36 years, R/o Harsha Layout, Subbannapalya, Banglaore-33 for the purpose of releasing the vehicle from the Police custody.
d) The said Narasimhan is the present owner of the alleged vehicle bearing Registration No.KA-03-D-4877 and the said vehicle was released by the concerned Police in favour of G. Ramesh S/o SCCH-7 6 M.V.C.No.3206/2013 G. Krishna Murthy and he also executed indemnity bond in favour of the Government in respect of releasing of the said vehicle with imposing the conditions and the concerned Police Inspector, Malur Police Station, had been released the vehicle in favour of the Ramesh G. dated 07.07.2013.
e) Narasimhan has not been transferred the said vehicle to his name since from the date of purchase of the said vehicle and she had intimated the said sale transaction to the concerned Respondent No.2 and also furnished necessary documents for necessary verification and the premium is being paid by the said purchaser late Mr. Narasimhan regularly to the Respondent No.2 and the Respondent No.2 had also inspected the condition of the vehicle and possession of the vehicle at the time of the receiving premium towards insurance policy, insurance is in existence/in force at the time of the accident took place, hence, she is not liable to pay any compensation.
f) The Petitioners, who is an influential person has implicated her falsely claiming Rupees 20,00,000/- compensation with malafide intention to make unlawful gain. The fact could be ascertained by the Petitioners with strict proof of the same.
g) The Petitioners have colluding with the present owner of the vehicle and intentionally not made as necessary parties in the said petition and the Petitioner is misleading this Hon'ble Court by suppressing the material facts before this Hon'ble Court, it seems to cheating her.
SCCH-7 7 M.V.C.No.3206/2013h) Without prejudice to the above contention, petition does not disclose that, the owner of the vehicle though the Police report clearly depicted in the records maintained by the Malur Police Station in respect of the alleged accident, in such circumstances the present she is not a necessary party in the present petition hence the present petition is not maintainable against her and on this ground alone, the present petition is liable to be dismissed.
i) The Petitioner further has not produced any material to show that, she is the owner of the said vehicle at the time of accident took place, mere making allegation is not sufficient and the same is not permissible under the law to make wrongful gain.
j) The report submitted by the Petitioner along with the petition is not proper, concocted and created to support the case of the Petitioner and it cannot be presumed by any stretch of imagination. She has no knowledge of any accident being caused the Petitioner's deceased son by rash and negligent driving of the Van. The Petitioner has in collusion with the Police and RTO Authorities have filed a false complaint to claim compensation.
k) The Petitioner at paragraph 22 of the petition states that, the accident has occurred solely due to the rash and negligent driving of the Car bearing No.KA-03-D-4877 but, whereas, in the complaint dated 18.03.2013 lodged by the Narasimha brother of late Narasimhan and the Police had been registered the FIR, Charge Sheet mentioning the name of the owner is Narasimhan, and therefore, the averments of the petition, the vehicle belongs to SCCH-7 8 M.V.C.No.3206/2013 her at the time of accident took place cannot be sustained and relied on and falsely implicated her.
l) Without prejudice no contention of her the said vehicle No.KA-03-D-4877 is insured and the insurance is valid and existing.
m) The Petitioner has not given any reason for not making necessary parties as such the present owner of the particular vehicle. This goes to show that, the petition is manipulated and manufactured to claim compensation.
n) She reserves the right to file additional statement of objections, if any in the changed position of law, facts and circumstances of the case. Hence prayed to dismiss the petition with exemplary cost.
8. The Respondent No.2 inter-alia denying the entire case of the Petitioners, has further contended as follows;
a) The petition filed by the Petitioners claiming compensation of Rupees 20,00,000/- for the death of one R. Prabhakaran in the alleged accident is not maintainable under law and facts.
b) After receipt of notice in the said case, it issued a letter to the Respondent No.1 calling upon her to inform about the alleged accident and submit all the vehicle documents, Insurance Policy and D.L. particulars of the driver. In response to the said SCCH-7 9 M.V.C.No.3206/2013 letter, the Respondent No.1 submitted a reply stating that, the Maruthi Omega Cargo bearing Registration No.KA-03-D-4877 was sold to one G.Narasimham S/o. Hussain, residing at No.40, Harsha Layout, M.S. Nagar Post, 3rd Cross, Subbaiahnapalya, Bangalore - 33 on 07.10.2012 for sale consideration amount of Rupees 1,00,000/- and the said vehicle was delivered to him along with all vehicle documents including Insurance Policy. For having taken the deliver of the said vehicle, he had executed the Delivery Note on 07.10.2012 itself.
c) In the statements of wife of G. Narasimham and other witnesses before the Police clearly stated that, G. Narasimham was the owner of the said Maruthi Omega Cargo bearing Registration No.KA-03-D-4877 as on the alleged date of accident and being owner, he was driving the said vehicle for his personal work and met with an accident and died due to the injuries sustained in the accident. Therefore, the L.R.s of the deceased G. Narasimham, who was owner of the said Maruthi Omini Cargo Van as on the date of accident are necessary parties as a Respondent in the petition. The owner of the said vehicle not made as a party in the petition. Therefore, the petition is not maintainable for non-joinder of owner of the vehicle.
d) The owner of the said Van, G. Narasimham, who was ordered for making of Lord Anjaneya Idol at Shivarapatna and for transport the same, he was driving the vehicle on his own. The deceased was traveling as a passenger in the said Van.
SCCH-7 10 M.V.C.No.3206/2013e) It has issued a policy bearing Registration No.6716031120100005510 in favour of the vehicle, i.e., Maruthi Omini Cargo bearing Registration No.KA-03-D-4877. The said vehicle is a Goods vehicle and the seating capacity is only 2 including driver. The policy does not cover the risk of the deceased, who was traveling as a passenger in the said Goods Vehicle. The policy covers only one person, who employed for operation of the vehicle. The deceased was not employed in the said vehicle. Hence, it is not liable to pay any compensation.
f) The said insured has sold the vehicle to one G. Narasimham. The said G. Narasimham ought to have filed application with it for transfer of policy in favour of him and apply for transfer of R.C. before the concerned RTO within 14 days from the date of sale of the vehicle as prescribed under M.V. Act. Whereas, it has not received any such application for transport of Insurance Policy. In this circumstance, it is not liable to pay any compensation in the said case.
g) The liability of it, if any, is subject to the terms and conditions of the policy and also subject to validity of R.C., F.C. and Permit. The said Maruthi Omini was no valid F.C. as on the date of accident and the owner himself was driving the vehicle for his personal use and he did not possess the driving licence to drive the same as on the date of accident. As per the Inquest Report, he was business man, doing Mineral Water supply, not a professional driver. Hence, it is not liable to indemnify the owner/insured.
SCCH-7 11 M.V.C.No.3206/2013h) As per Condition No.1 of the policy and as per Section 134(c) of Motor Vehicles Act, the owner has to intimate about the accident immediately on its occurrence to the insurer and to produce the required documents and to co-operate with the insurer in defending the case effectively. In this case, the LRs. owner of the vehicle in question have not reported the accident nor submitted the required documents.
i) The concerned Police Authorities have not intimated about the accident to it as required under Section 158(6) of M.V. Act R/w Section 231-A of the Karnataka Motor Vehicles Rules.
j) As per the Inquest Report, the deceased was Contract Labour.
k) The Bullock Cart was loaded with stone slabs. The rider of the said Bullock Cart was riding in the Fog negligently without putting any Reflector or signal. The accident occurred due to the negligence act of the rider of the Bullock Cart. Hence, the Petitioners are not entitled for any compensation.
l) Without prejudice, the claim for compensation of Rupees 20,00,000/- is highly exaggerated without any basis. In the event, this Hon'ble Tribunal awards any compensation, the rate of interest may be restricted to 4% P.A.
m) In case, the owner/insured fails to appears and contest the case effectively, it may be permitted to defend the case on all grounds that are available under Section 170 of M.V. Act. In case, SCCH-7 12 M.V.C.No.3206/2013 the Petitioners have filed any other petition for the same cause of action in any other Court/Forum, this petition is to be dismissed with heavy cost.
n) It reserves the right to file additional statement of objections, if any, in the changed position of law, facts and circumstances of the case. Hence, prayed to dismiss the petition with costs.
9. Based on the above said pleadings, I have framed the following Issues;
ISSUES
1. Whether the Petitioners prove that, the accident occurred due to rash and negligent driving of the Maruthi Omini Cargo bearing Registration No.KA-03-D-4877 by its driver and Sri. R. Prabhakarana died due to the injuries sustained in the accident?
2. Whether the Petitioners are entitled for compensation? If so, how much and from whom?
3. What Order?
10. In order to prove their case, the Petitioners have examined the Petitioner No.1 as P.W.1 and have also examined one witness as P.W.2 by filing the affidavits as their examination-in- chief and have placed reliance upon Ex.P.1 to Ex.P.12. On the other hand, the Respondent No.2 has examined the Inspector, SCCH-7 13 M.V.C.No.3206/2013 BasaVanagudi Traffic Police as R.W.1 and has also examined its Administrative Officer as R.W.2 and has placed reliance upon Ex.R.1 to Ex.R.13. On the other hand, the Respondent No.1 herself has been examined as R.W.3 by filing an affidavit as her examination-in-chief and has placed reliance upon Ex.R.14 to Ex.R.16.
11. Heard the arguments. The Learned Counsel appearing for the Respondent No.2 has filed the written arguments.
12. In support of the submission, the Learned Counsel appearing for the Petitioners Sri. T. V. Ramesh has placed reliance upon the decision reported in, 2008 ACJ 1741 Supreme Court of India (United India Insurance Company Ltd., V/s. Suresh. K. K. and Another), wherein, it is observed that, Motor Vehicle Act, 1988, Section 147 (1) and 149 (2) (a) (i) (c) - Motor Insurance - Goods vehicle - passenger risk - policy breach of liability of Insurance Company - passenger traveling in a three wheeler goods carriage by sharing seat of the driver sustained injuries when the three wheeler overturned - no other person whether a passenger or owner of the vehicle is supposed to share the seat of driver -
whether there has been breach of condition of policy and Insurance Company is exempted from liability - Held: yes; but, in view of the fact that, claimant is a coolie who would not be in a position to release the amount of compensation from the owner, SCCH-7 14 M.V.C.No.3206/2013 Insurance Company is directed to pay the amount to the claimant and then realize the same from the owner.
Motor vehicle Act, 1988, Section 147 (1)(b)(i) - Motor insurance - Goods vehicle - Owner of goods traveling without goods -
Liability of Insurance Company - owner of goods or his representative hired a three - wheeler goods carriage and he was traveling in it but, there were no goods at the time of accident and he sustained injuries -
Insurance Company disputes its liability on the ground that, injured was a gratuitous passenger - section 147 does not provide that, owner or his representative must accompany the goods - word 'carried' qualifies the owner of goods or his representative and not the goods carried - whether a person who has hired a goods carriage would come within the purview of sub-section (1) of Section 147 although no goods as such were carried in the vehicle at the time of accident and Insurance Company is liable - Held: yes; liability of Insurance Company has, however, been negatived on some other ground. (2007 ACJ 262 (Kerala) confirmed) Motor vehicle Act, 1988, Section 147 (1) - Motor insurance - goods vehicle -
Gratuitous passenger - liability of Insurance Company - whether the tem 'any person' envisage in section 147 (1) includes any gratuitous passenger and Insurance Company is liable - held: no. (2004 ACJ 428 (SC) followed) SCCH-7 15 M.V.C.No.3206/2013
13. In support of the submission, the Learned Counsel appearing for the Respondent No.1 Sri. Chandrashekar. S. N. has placed reliance upon the decision reported in, ILR 2012 KAR 5209 (H.D. Chandrappa V/s. Smt. Hanumakka and Others), wherein, it is observed that, (A) Motor Vehicles Act, 1988 - Section 50 - Non-compliance of the mandatory requirement of the provision - validity of the sale of the vehicle - liability of the Insurance Company with regard to claim of the third parties arising out of use of transferred vehicle - Held, in M.V. Act, 1988, a clear provision has been made with regard to the liability of the insurer in case of the sale of the vehicle Section 157 deals with the transfer of certificate of insurance. According to this section, there is a deemed transfer of the policy of insurance in favour of the person to whom motor vehicle is transferred with effect from the date of its transfer.
Therefore, under the New act, a vehicle covered by a policy of insurance, though is transferred, with regard to claim of the third parties arising out of the use of such Motor Vehicle, it will not be open to the insurer to contend that, it is not liable to answer such claim on the grounds that, the vehicle has been transferred - FURTHER HELD, Therefore, the emerging legal position would be in a case where the vehicle is not covered by a policy of insurance and in a claim petition arising out of an accident involving such vehicle, if the person named as registered owner of the vehicle in the concerned register of the registering Authority contends that, he ceased to be the owner of the vehicle eon account of its sale, SCCH-7 16 M.V.C.No.3206/2013 it is for him to show and establish that, he ceased to be the owner, notwithstanding the fact that, the registration certificate is not changed into the name of the transferee and if he succeeds in doing so, then he will not be liable to answer the claim. If the fails to do so, he would be liable to answer the claim of the third parties.
B) Motor Vehicle Act, 1988 - Section 166 - Accident claim under - Judgment and Award - Finding of the Tribunal that, the Respondents No.1 and 3 are jointly and severally liable to pay the compensation -
Appealed against by Respondent No.3/Appellant - GrieVance of the appellant is that the Respondent No.2 was the registered owner of the vehicle on the date of the accident and he is not liable to satisfy the award - Sale of the vehicle by Respondent No.2 in favour of Respondent No.3/the appellant, but, registration certificate continued to be in the name of Respondent No.2 even on the date of the accident. - Respondent No.3/Appellant was in possession of the vehicle eon the date of accident - non-compliance of the Mandatory requirement of Section 50 of the Act, whether invalidates the sale - ON FACTS, HELD- In the case on hand, there is no dispute with regard to the sale of the vehicle by Respondent No.2 in favour of Respondent No.3. No doubt, the registration certificate has not been changed and it continued to be in the name of the Respondent No.2 even as on the date of the accident. - From the evidence it is clear that, Respondent No.3 as transferee of the vehicle was in possession and control of the same as on the date of the accident. Respondent No.3 did not dispute the said fact. Therefore, it would not lie in the mouth of the Respondent No.3 to SCCH-7 17 M.V.C.No.3206/2013 contend that, he is not liable to answer the claim of the third parties arising out of the use of the motor vehicle nor it lies in his mouth to contend that, since Respondent No.2 continues to be the registered owner, she should be made liable to answer the claim of the claimants in this case. - ON FACTS, FURTHER HELD, No doubt, the mandatory requirement of section 50 of M.V. Act has not been complied with. Section 50 imposes duty on transferor and transferee of the Motor Vehicles to inform the registering Authority about the transfer and seek change of the registration. Non-compliance of those requirements entails them with penal action. But, non-compliance of mandate of Section 50 does not invalidate the sale of the vehicle. Respondent No.3/appellant himself was guilty of not complying with the duty cast upon him under Section 50 of the Act. He had the benefit and use of the vehicle for over 7 years prior to the accident. He kept quiet without getting his name entered in the registration certificate concerning the vehicle in question though the transferor had handed over all necessary documents and forms duly signed. Eh had utilized the vehicle for over 7 years.
On the top of it, he had allowed the vehicle to run on the public road without taking a policy of insurance and thereby has committed violation of the provisions of Section 146 of the Act. Therefore, Respondent No.3-Appellant who is guilty of al these acts cannot be allowed to contend that, he is not liable to answer the claim of the claimants - Motor Vehicle Act, 1988 -
sections 50 and 146 Discussed.
SCCH-7 18 M.V.C.No.3206/201314. In support of the submission, the Learned Counsel appearing for the Respondent No.2 Sri. N. Basava Reddy has placed reliance upon the decisions reported in,
i) 2007 ACJ 1043 Supreme Court of India (New India Assurance Co. Ltd., V/s. Vedwati and Others), wherein, it is observed that, (A) Motor Vehicles Act, 1988 - Section 147 (1) - Motor insurance - Goods vehicle -
Passenger risk - liability of Insurance Company - whether owner of goods vehicle has any statutory responsibility to get his vehicle insured for covering any passenger traveling in the goods vehicle and the Insurance Company is liable - Held: no.
ii) ILR 2008 KAR 208 (National Insurance Company Ltd., V/s. Aishabi and Another), wherein, it is observed that, Motor Vehicles Act, 1988 - Section 147
- The expression 'owner of the goods' -
'whether a person traveling in a goods vehicle without the goods being carried by him can be brought within the expression 'owner of the goods' under Section 147 of the Motor Vehicles Act, 1988 and therefore, the Insurance Company is liable'? - GrieVance of the Insurance Company - Deceased was found traveling as a passenger in a goods vehicle not as a owner of the goods - HELD, It is an undisputed fact that, at the time of accident there were no goods in the vehicle and the deceased Mohammed Issac was traveling with other passengers in the vehicle
- Therefore, it cannot be construed that, the SCCH-7 19 M.V.C.No.3206/2013 deceased was traveling in the lorry as a owner of goods when the accident occurred - As there were no goods being carried in the vehicle in question by the deceased at the time of accident, the conclusion that, the deceased traveled as a passenger becomes inevitable - Once it is held that, the deceased was a passenger in the goods vehicle, the question of liability on the part of the Insurance Company will not arise -
Therefore, the MACT was in error in coming to the conclusion that, the deceased traveled as a owner of the goods.
iii) ILR 2011 KAR 850 Circuit Bench at Gulbarga (The Branch Manager, The New India Assurance Co. Ltd., V/s. Mahadev Pandurang Patil and Another), wherein, it is observed that, Motor Vehicles Act, 1988- Accident claim - Award of compensation - Tribunal fastening the liability on the Insurance Company in respect of death of occupant of a private car - appealed against - whether the occupants/passengers/inmates of a private car do fall within the definition of the word "third party". Held, the statutory insurance is confined to the death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place - therefore the passenger of a vehicle which is not meant for public is not covered u/s.147. The said passenger in the case of a two wheeler is the pillion rider in the case of three wheelers and four wheeler the occupants of such vehicle who are not carried in the said vehicle for hire or reward. Therefore, the insurance SCCH-7 20 M.V.C.No.3206/2013 policy taken in respect of vehicle, in which they are travelling as such passengers are not treated as third parties and such an insurance do not cover the risk of such persons. The reason is sec.147 does not require a policy to cover the risk of passengers who are not carried for hire or reward. The statutory insurance does not cover injuries suffered by occupants of the vehicle who are not carried for hire or reward and the insurer cannot be held liable under the Act. The occupants /passengers/inmates of a private vehicle do not fall within the definition of the 'third party', therefore, the legal obligation arising under Sec.147 of the Act cannot be extended to an injury or death of the owner of the vehicle, passengers in such private vehicle or a pillion rider in the case of a two wheeler. Gratuitous passengers who are not carried for hire or reward in a vehicle other than public service vehicle, cannot be construed as third parties.
Further Held: If the risk of an occupant of a car, in mate of a vehicle or passenger in a private car is to be covered, additional premium has to be paid. If no additional premium is paid, their risk is not covered. The statutory liability u/s.146 & 147 of the Act has to be read with the terms of the policy issued u/s.146 of the Act. On facts held: Therefore, in the facts of this case, the court is satisfied, as the insured has not paid additional premium and Insurance Company has not collected any additional premium, the risk of the occupants of a private car was not covered. Therefore, liability foisted on the Insurance Company cannot be sustained - Motor Vehicles Accident, 1988 - Chapter XI - Section 145
(g) - Definition of "Third party" - Sections 146, 147 - Discussed.
SCCH-7 21 M.V.C.No.3206/2013iv) 2010 ACJ 1980 High Court of Karnataka (Gulnaz Jaleel V/s. Syed Jaleel and Another), wherein, it is observed that, Motor Vehicles Act, 1988, Section 147 (1) Motor insurance - Goods vehicle -
passenger risk - Gratuitous passenger -
Liability of Insurance Company - claim for death of son by owner of truck when the vehicle skidded and turned turtle due to negligent driving by father of the deceased and husband of the claimant - Contention that, Insurance Company was liable as there was payment of extra premium covering risk of persons traveling in goods vehicle - Act does not enjoin any statutory liability on owner to get his goods vehicle insured for any passenger traveling in it, Insurance Company would not be liable therefore - 'Any person' envisaged under Section 147 shall not include any gratuitous passenger -
owner of truck who is the claimant failed to establish that, deceased was employed as cleaner on the vehicle - Whether Insurance Company is liable - Held: no; deceased traveled in goods vehicle as a family member and neither as an employee nor owner of goods.
v) M.F.A.No.6751 of 2013 (MV) (Mr.Nazeer @ Nazeer Ahmed V/s. Mr.Chandrashekar Gowda and New India Assurance Co. Ltd.,), wherein, it is observed that,
9. Further, so far as the submission of the learned counsel appearing for appellant that, the direction issued to the Respondent No.1/owner to indemnify the award amount is liable to be set aside and is to be fastened on the insurer is concerned, it can be seen that, the Tribunal, after critical evaluation of SCCH-7 22 M.V.C.No.3206/2013 the oral and documentary evidence available on file, has recorded a specific finding of fact at paragraph 18 of its judgment, placing reliance on Section 56 of the Motor Vehicles Act and Ex.R.5, Form No.38 issued by the concerned RTO, stating that, the offending vehicle was not having valid Fitness Certificate, at the time of accident on 22.03.2010. The said reasoning given by Tribunal is just and proper and does not call for interference, for the reason that, in the absence of valid Fitness Certificate, there is no valid registration at all and hence, the Insurer cannot be held liable. Further, Section 56 of the Motor Vehicles Act is very clear in stating that, a Transport vehicle shall not be deemed to be validly registered for the purpose of Section 39, unless it carries a Certificate of Fitness in such form containing such particulars and information as may be prescribed by the Central Government issued by the Prescribed Authority. Therefore, I do not find any justification or goods ground as such made out by appellant to interfere in the direction issued by the Tribunal to the Respondent/owner to indemnify the award amount. For the foregoing reasons, the appeal filed by appellant is dismissed on the ground of delay and laches as also on merits.
vi) 2008 ACJ 2144 Supreme Court of India (National Insurance Company Ltd., V/s. Kaushalaya Devi and Others), wherein, it is observed that, Motor Vehicles Act, 1988, Section 147 (1) - Motor insurance - Goods vehicle -
Gratuitous passenger - Liability of Insurance SCCH-7 23 M.V.C.No.3206/2013 Company - Death of passenger in truck due to its rash and negligent driving - deceased was a vegetable dealer and he was traveling in the truck for collecting empty vegetable boxes - Whether Insurance Company is liable - Held: no; he was not traveling in the truck as owner of goods, viz., vegetables; he was traveling for a purpose other than the one for which he was entitled to travel in public carriage goods vehicle.
vii) 2012 ACJ 98 High Court of Karnatka, Circuit Bench at Gulbarga (Gopal and Others V/s. Shivasharanappa and Others), wherein, it is observed that, Motor Vehicle Act, 1988, Section 147(1)
(b) (i) read with section 2(13) and Karnataka Motor Vehicles Rules, 1989, rule 100 -
Motor insurance - Goods vehicle - passenger risk - liability of Insurance Company - 29 persons boarded a truck transporting stones, vehicle met with accident resulting in 22 of them sustaining injuries and 0 succumbed to their injuries - Victims were traveling in the truck along with their food grains and they had paid freight charges -
Contention that, Insurance Company is liable under I.M.T. 37-A refers to owner of goods or his representative traveling along with the goods in a goods vehicle - Food grains carried by the passengers constitute personal luggage and are not goods within the definition of section 2 (13) - recitals in Panchanama do not suggest that, all the 22 victims were traveling along with their goods as 3 of the deceased persons were aged between 12 and 15 - Whether the Tribunal was justified in absolving Insurance Company from liability - Held: yes;
SCCH-7 24 M.V.C.No.3206/2013claimants have failed to prove that, they were authorized passengers traveling in a goods vehicle (2003 ACJ 1 (SC) followed.
15. My answers to the above said Issues are as follows;
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative,
The Petitioners are
entitled for compensation
of Rupees 12,17,145/-
with interest at the rate
of 8% p.a. 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
16. ISSUE NO.1 :- The P.W.1, who is the Petitioner No.1 has stated in his examination-in-chief that, on 18.03.2013, his son, namely, R.Prabhakaran was engaged and hired a Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877 at their Subbanna Palya, Bangalore - 33 to bring Lord Anjaneya Statue from Shivarapatna Village, Malur Taluk, Kolar District and accordingly, on 18.03.2013, his son was going to Shivarapatna Village, in a Maruthi Omini Cargo Van from Bangalore City at about 5-45 a.m., near Chokkanadahalli Gate on Hosakote - Malur Road, Maluru Taluk, Kolar District, the driver of the Maruthi Van SCCH-7 25 M.V.C.No.3206/2013 G.Narasimham driven the same at high speed, in a rash and negligent manner and dashed as against on going a Bullock Cart loaded with stone slabs and due to impact, his son and the driver caught inside the Omini Car sustained grievous head injuries and succumbed to the injuries on the spot. He has further stated that, he came to know the accident and he rushed to the Government Hospital, Malur and after Postmortem examination at Government Hospital Malur, the body was handed over to them by Malur Police. He has further stated that, he came to know that, the accident occurred due to carelessness, rash and negligent driving of the Maruthi Omini Cargo Van by G.Narasimham and the Malur Police have registered a case as against the driver of the Matuhi Van.
17. No doubt, the P.W.1 is not an eye witness of the accident in question. Further, he has stated in his cross- examination that, his son has not given any order to make idol and the vehicle, which caused the accident is a goods vehicle and he has no documents to show that, his son was taking the said vehicle on hire basis. He has further stated that, he has no knowledge about the release of the said vehicle by the wife of Narasimham and he does not know that, brother of Narasimham was also used the said vehicle for distribution of Cocacola business. He has further stated that, he does not know that, the said Ramesh was released the Omini Vehicle after its accident. The R.W.3, who is the Respondent No.1, has stated in her examination-in-chief that, the Car bearing Registration No.KA-03-D-4877 is falsely implicated.
18. But, based on the said evidence of P.W.1, which is elicited from his mouth by the Respondents as well as the evidence SCCH-7 26 M.V.C.No.3206/2013 of R.W.3, the above said oral version of P.W.1, which has been stated by him in the examination-in-chief, cannot be thrown away, as, to corroborate their case as well as the oral version of P.W.1, the Petitioners have produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Charge Sheet, Ex.P.4 Spot Panchanama, Ex.P.5 Spot Hand Sketch, Ex.P.6 MVI Report, Ex.P.7 Inquest and Ex.P.8 Postmortem Report, which clearly disclosed that, due to very high speed, rash and negligent manner of driving of the offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877 by its driver itself, i.e., deceased G.Narsimham, the said road traffic accident was taken place, which dashed to the Bullock Cart loaded with stone slabs and due to the said impact, the deceased R.Prabhakaran S/o. C.Ravikumar, who was traveling in the said offending Maruthi Omini Cargo Van as well as deceased driver G.Narasimham had sustained severe grievous injury and succumbed to the accidental injuries on the way to the Hospital, which is clear from the following discussion. Further more, the P.W.1 in his cross- examination has clearly stated that, the said deceased G.Narasimham was driving the vehicle along with mineral water business and they have paid hire amount to the same Narasimham for transportation of the idol and the brother of the Narasimham has lodged a complaint before the Police and as on the date of the accident, his son was traveling in the vehicle as a passenger to take the idol. He has further stated that, since 10 years, he knows Narasimhan as he was his neighbour and his son had hired the vehicle for transportation of Anjaneya idol and the hire charges was fixed at Rupees 2,000/- and Narasimhan himself was driving the Omini vehicle. Further, the Petitioners have also examined one SCCH-7 27 M.V.C.No.3206/2013 witness as P.W.2, who has stated in his examination-in-chief that, he knows R.Prabhakaran S/o. C.Ravikumar and he and R.Prabhakaran are the members of Harsha Layout Residential Welfare Association, Harsha Layout, Subbannapalya, Bangalore - 33 and there are 50 members in their Welfare Association, which is constituted and registered to look out the welfare of their layout and from their Welfare Association, they were started constructing Lord Anjaneya Temple at their Harsha Layout and accordingly, on 18.03.2013, they engaged and hired a Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877 at their Harsha Layout, Subbanna Palya, Bangalore - 33 to bring Lord Anjaneya Statue from Shivarapatna Village, Malur Taluk, Kolar District and to bring statue they engaged R.Prabhakaran from their Association and sent him in Maruthi Omini Cargo Van from their Layout and on the way at about 5.45 a.m., near Chokkandahalli Gate, on Bangalore - Malur Road, Malur Taluk, Kolar District, the driver of Maruthi Cargo Van G.Narasimham driven the same at high speed, in a rash and negligent manner and dashed as against on going Bullock Cart loaded with stone slabs and due to impact, R.Prabhakarn and driver caught inside the Omini Car, sustained grievous head injuries and succumbed to the injuries on the spot. He has further stated in his cross-examination that, since 2 years, Harsha Layout Residential Welfare Association is in existence and on behalf of the said Association, he has hired the Maruthi Omini Cargo Van. From the said evidence of P.W.2, it is made crystal clear that, due to the negligence on the part of the deceased G.Narasimham, who was a driver of the offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877, the said road traffic accident was SCCH-7 28 M.V.C.No.3206/2013 taken place, which dashed to Bullock Cart, which was loaded with stones and due to the said impact, R.Prabhakaran and the said driver caught inside the offending Omini Car and sustained head injuries and succumbed to the injuries. No question or suggestions put to P.W.1 by the Respondents during the course of cross- examination in respect of their specific defence.
19. The contents of Ex.P.1 FIR and Ex.P.2 Complaint clearly disclosed that, the younger brother of the deceased driver of the offending Maruthi Omini Cargo Van bearing Registration No.KA-03- D-4877, i.e., G.Narasimham, has lodged Ex.P.2 Complaint before the Malur Police Station as against his deceased elder brother Narasimham.G., who was driving the offending Maruthi Omini Cargo Van by alleging that, on 18.03.2013 at 5-40 a.m., his deceased elder brother Narasimham.G. was driving the said offending Maruthi Omini Cargo Van with very high speed, rash and negligent manner, near Chokkandahalli Gate, Malur Taluk, Malur - Hosakote Road and dashed to the Bullock Cart, wherein, slabs were loaded and due to the said impact, he and R.Prabhakaran S/o. C.Ravikumar, who was traveling in the said offending Maruthi Omini Cargo Van caught inside the Omini Car and had sustained severe grievous injury and they were shifted to Malur Government Hospital through 108 Ambulance and they succumbed to the accidental injuries on the way to the Hospital and as such, he prayed to take necessary legal action as against the person, who was running the said Bullock Cart and the driver of the offending Omini Car and based on Ex.P.2 Complaint, the said Police have registered a criminal case as against the deceased driver SCCH-7 29 M.V.C.No.3206/2013 Narasimham.G. of the said offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877 for the offences punishable under Section 279 and 304(A) of IPC under Crime No.63/2013. The contents of Ex.P.1 FIR and Ex.P.2 Complaint further clearly disclosed that, there is no delay as such in lodging Ex.P.2 Complaint by the complainant in respect of the said road traffic accident. It is also clear from the contents of Ex.P.1 Complaint and Ex.P.2 Complaint that, at the time of accident, the deceased R.Prabakaran was traveling in the said offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877.
20. The contents of Ex.P.4 Spot Panchanama, Ex.P.5 Spot Hand Sketch and Ex.P.6 Ex.P.8 MVI Report further clearly disclosed that, the entire negligence is on the part of the deceased Narasimham.G., who was driving the offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877 and the said offending Omini Car as well as the deceased driver are very much involved in the said road traffic accident, wherein, the R.Prabhakaran S/o. C.Ravikumar, who was traveling in the said offending Omini Car succumbed to the accidental injuries on the way to the Hospital. It is also clear from the contents of the said material evidence that, if the driver of the offending Maruthi Omini Car could have taken a little care while driving the offending Car, he could have avoided the said road traffic accident and he could have saved his life as well as deceased R.Prabhakaran S/o. C.Ravikumar. The damages caused to the said offending Omini Car are clearly mentioned in Ex.P.6 MVI Report, which clearly disclosed about the terrific impact of the said accident. It is also clearly SCCH-7 30 M.V.C.No.3206/2013 mentioned in Ex.P.6 MVI Report that, the said accident was not occurred due to any mechanical defects of the said offending vehicle.
21. The contents of Ex.P.7 Inquest and Ex.P.8 Postmortem Report further clearly disclosed that, in the said road traffic accident, the deceased R.Prabhakaran S/o. C.Ravikumar had sustained grievous injuries all over his body and due to which itself, he succumbed to the injuries. It is also clearly mentioned in Ex.P.8 Postmortem Report that, the cause of death is due to hypovelerine shock due to injuries to major organs as a result of crush injury and head injury to chest and abdomen.
22. The contents of Ex.P.3 Charge Sheet further clearly disclosed that, since, during the course of investigation, it is found that, due to very high speed, rash and negligent manner of driving of Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877 by its driver Narasimham.G, the said road traffic accident was taken place on 18.03.2013 at about 5-45 a.m., near Chokkandahalli Gate, Malur - Hosakote Road, which was proceeding towards Shivarapattana, which dashed to the Bullock Cart on its behind and due to the said impact, the entire front portion of the offending Omini Car was fully damaged and R.Prabhakaran, who was sitting in the front seat of the said Omini Van and the driver Narasimham.G. had sustained grievous injuries and he succumbed to the injuries on the way to the Hospital and the rider of the Bullock Cart and Ox had also sustained injuries and as such, after thorough investigation, the Investigation Officer has filed an abated Charge Sheet as against the deceased driver of SCCH-7 31 M.V.C.No.3206/2013 the offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877 for the offences punishable under Section 279, 337 and 304 (A) of IPC. It is clear from the contents of Ex.P.3 Charge Sheet that, at the time of accident, the deceased R.Prabhakaran S/o. C.Ravikumar was traveling in the said offending Maruthi Omini Cargo Van bearing Registration No.KA-03- D-4877 and due to the said impact, he succumbed to the accidental injuries on the way to the Hospital.
23. 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 Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877 by the driver itself, the said road traffic accident was taken place, wherein, the R.Prabhakaran S/o. C.Ravikumar had sustained severe grievous injuries all over his body and succumbed to the injuries on the way to the Hospital and he was traveling in the said offending Maruthi Omini Cargo Van. Accordingly, I answered Issue No.1 in the Affirmative.
24. ISSUE NO.3 :- The P.W.1 has stated that, his son R.Prabhakaran was aged 26 years. The Petitioners have produced Ex.P.9 Adhar Card relating to the deceased, which disclosed that, the birth year of the deceased is 1987. The Petitioners have also produced Ex.P.11 Birth Certificate relating to the deceased, which disclosed that, the date of birth of the deceased is on 18.06.1987. The date of accident is on 18.03.2013. On perusal of the said dates, it appears that, at the time of accident, the deceased was 26 years SCCH-7 32 M.V.C.No.3206/2013 old. Hence, the age of the deceased is considered as 26 years at the time of accident.
25. The P.W.1 has stated that, his son was working at Avon Solutions Logistics Pvt. Ltd., Dommalur Branch, Bangalore City and his son was drawing a monthly salary of Rupees 7,465/-. The Petitioners have produced Ex.P.12 Pay Slip relating to the deceased issued by Avon Solutions and Logistics Pvt. Ltd., Chennai, which disclosed that, the deceased was joined the said Company on 15.04.2008 and Gross Salary is of Rupees 7,465/- and Net Salary is of Rupees 6,723/-. The P.W.1 in his cross-examination has stated that, his deceased son failed in SSLC. From this, it appears that, the deceased was an educated person. No doubt, the Petitioners have not examined the employer of the deceased to prove the contents of Ex.P.12 Pay Slip. But, it no way affected to consider the avocation and income of the deceased at the time of accident, as, at the time of accident, the deceased was 26 years old and it is clear from the contents of Ex.P.12 Pay Slip that, since, 15.04.2008, he was working in the said Company and he lost the Gross Salary of Rupees 7,465/-. Furthermore, even now a day, the Coolie can get minimum wages of Rupees 8,000/- p.m. Therefore, the salary of Rupees 7,465/- p.m., as shown in Ex.P.12 Pay Slip is not an exorbitant and unreasonable. Therefore, the income of the deceased is considered as Rupees 7,465/- p.m.., at the time of accident.
26. The P.W.1 has stated that, the Petitioner No.2 is his wife and the deceased R.Prabhakaran is his son. The Petitioners have produced Ex.P.9 Adahar Card relating to the deceased, Ex.P.10 SCCH-7 33 M.V.C.No.3206/2013 Ration Card and Ex.P.11 Birth Certificate. From the contents of the said material documents as well as the oral version of P.W.1, which is narrated above, it clearly goes to show that, the Petitioner No.1 is a father and the Petitioner No.2 is a mother of the deceased R.Prabhakaran. As this Tribunal has already observed and come to the conclusion that, while answering Issue No.1, the deceased R.Prabhakaran S/o. C.Ravikumar succumbed to the accidental injuries in road traffic accident, which was taken place on 18.03.2013 at 5.45 a.m., near Chokkandahalli Gate on Bangalore - Malur Road, Malur Taluk, Kolar District. Since, the Petitioner No.1 is a father and the Petitioner No.2 is a mother of the deceased, they are considered as the legal representatives of the said deceased. But, the Petitioner No.1, who is a father of the deceased cannot be considered as a dependent upon the said deceased at the time of accident, as, it is well settled principle of law that, the father cannot be considered as a dependent upon the said deceased son. Furthermore, the P.W.1 in his cross-examination has clearly stated that, he is Salesman in NTC, which clearly disclosed that, the Petitioner No.1, who is a father of the deceased is still working and getting income. Therefore, the Petitioner No.2, who is a mother of the deceased, can only be considered as a dependent upon the said deceased.
27. The P.W.1 has stated that, his son had bright future prospects of getting time bound promotions and increments and they were entirely depending upon the earnings of his late son and they are put to lot of mental agony and untold misery due to sudden demise of his late son.
SCCH-7 34 M.V.C.No.3206/201328. While answering Issue No.1 this Tribunal has already observed and come to the conclusion that, the deceased R.Prabhakaran S/o. C.Ravikumar succumbed to the accidental injuries on the way to the Hospital in the road traffic accident, which was taken place on 18.03.2013 at 5.40 a.m. While discussing above, this Tribunal has further observed and come to the conclusion that, the Petitioners No.1 and 2 are the legal representatives of the deceased and the Petitioner No.2, who is a mother is depending upon the said deceased. Hence, the Petitioners being parents of the deceased are entitled for compensation under the following heads in view of death of their son R.Prabhakaran S/o. C.Ravikumar.
29. As per the decision reported in 2013 ACJ 1403 (Rajesh and Others V/s Rajbir Singh and Others) and as the deceased was aged 26 years at the time of accident, towards future prospects 50% of the income has to be added. So, 50% of Rupees 7,465/- comes to Rupees 3,732-50. Therefore, the income of the deceased comes to Rupees 11,197-50 p.m. (Rs.7,465/- + 3,732-50).
30. The Petitioner No.2 is considered as a dependent of the deceased. Therefore, deceased left behind one dependent. As per the principles laid down in ILR 2012 KAR 2859 (New India Assurance Co. Ltd., represented by Senior Division Manager V/s Sri.David. T. and Another), whenever there is a sole claimant, deduction of 50% towards personal expenses is proper. Therefore, considering the number of the dependent, i.e., 1, 50% of the income has to be deducted towards personal expenses of the deceased, i.e., Rupees 5,598-75 (50% of Rs.11,197.50). Therefore, SCCH-7 35 M.V.C.No.3206/2013 loss of dependency comes to Rupees 5,598-75 (Rs.11,197-50 (-) Rs.5,598-75). The multiplier corresponding to the age of the deceased, i.e., 26 years, is 17 as per Sarala Varma's Case. Therefore, loss of dependency comes to Rupees 11,42,145/- (Rs.5,598-75 x 12 x 17). Therefore, the Petitioners are entitled for Rupees 11,42,145/- towards loss of dependency due to death of R.Prabhakaran S/o. C.Ravikumar.
31. The P.W.1 has stated that, after P.M. Examination at Government Hospital, Malur, the body was handed over to them by Malur Police, in turn, they took the dead body and buried the same at Bangalore City and they have spent Rupees 30,000/- towards transportation of dead body and towards funeral obsequies. In this regard, the Petitioners have not produced any scrap of paper.
32. As per the principles laid down in the decision reported in 2013 ACJ 1403 (Rajesh and Others V/s Rajbir Singh and Others), loss of love and affection has to be compensated by awarding Rupees 25,000/- and funeral expenses should be Rupees 25,000/-. As this Tribunal has already observed that, the Petitioner No.1 is a father and the Petitioner No.2 is a mother of the deceased. Hence, the Petitioners are entitled for a sum of Rupees 25,000/- towards loss of love and affection and Rupees 25,000/- towards funeral expenses.
33. It is just, proper and necessary to award a sum of Rupees 5,000/- towards transportation expenses of the dead body of deceased and Rupees 20,000/- towards loss of estate. Hence, the Petitioners are entitled for Rupees 5,000/- towards transportation SCCH-7 36 M.V.C.No.3206/2013 expenses of the dead body of the deceased and Rupees 20,000/- towards loss of estate.
34. In this way, the Petitioners are entitled for the following amount of compensation:-
Sl. No. Compensation heads Compensation amount
1. Loss of Dependency Rs. 11,42,145-00
2. Funeral Expenses Rs. 25,000-00
3. Loss of Love and affection Rs. 25,000-00
4. Expenses of transportation Rs. 5,000-00 of dead body
5. Loss of Estate Rs. 20,000-00 TOTAL Rs. 12,17,145-00
35. In all, the Petitioners are entitled for total compensation of Rupees 12,17,145/- along with interest at the rate of 8% per annum on the above said sum from the date of petition till payment.
36. The R.W.3, who is the Respondent No.1 has stated in her examination-in-chief that, she was the registered owner of Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877 and it was sold to one Mr.Narasimhan S/o. G.Krishna Murhty for a sum of Rupees 1,00,000/- and the same has been intimated to the New India Assuance Company Limited, i.e., the Respondent No.2. She has further stated that, she has issued delivery note in favour of the purchaser Mr.Narasimhan and she has executed a Special SCCH-7 37 M.V.C.No.3206/2013 Power of Attorney in favour of the Ramesh.G. S/o. Late G.Krishna Murthy, who is a friend of Late G.Narasimhan for the purpose of releasing the vehicle from the Police custody. She has further stated that, the said Narasimhan is the present owner of the alleged vehicle bearing Registration No.KA-03-D-4877 and the said vehicle was released by the concerned Police in favour of the G.Ramesh S/o. Late G.Krishna Murthy and he also executed Indemnify Bond in favour of the Government in respect of releasing the said vehicle and he released the said vehicle on 07.07.2013. She has further stated that, the said Narasimhan has not been transferred the said vehicle to his name since from the date of purchase of the said vehicle and she has intimated the said sale transaction to the concerned Respondent No.2. She has further stated that, she has no knowledge of any accident being caused by the present owner by rash and negligent driving of the Van. The Respondent No.1 has produced Ex.R.14 Delivery Note dated 07.10.2012, Ex.R.15 Letter dated 03.06.2013 and Ex.R.16 Endorsement dated 07.10.2012.
37. On perusal of the said evidence of R.W.3 as well as the contents of Ex.R.14 to Ex.R.16, it appears that, according to the Respondent No.1, at the time of accident, she is not a registered owner of the offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877, as, she had already sold it to the deceased driver Narasimhan on 07.10.2012 for a sum of Rupees 1,00,000/- and by issuing Delivery Note and Endorsement for having receipt of the payment and as such, she no way concerned to the said vehicle, which involved in the said accident.
SCCH-7 38 M.V.C.No.3206/201338. But, based on the said oral version of R.W.3 as well as the contents of Ex.R.14 to Ex.R.16, it cannot be said that, at the time of accident, the deceased driver Narasimhan was a R.C. Owner of the offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877 and the Respondent No.1 no way related to the said offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877, as, though Ex.R.14 Delivery Note is dated 07.10.2012 at 7.30 p.m., and it is containing signature of the deceased driver, who signed on 07.10.2012 itself, which is very much prior to the date of accident and Ex.R.16 Endorsement is also dated 07.10.2012 is also much prior to the date of accident, as admitted by the R.W.3, who is a Respondent No.1 as well as from the contents of Ex.R.1 Special Power of Attorney executed by the Respondent No.1 in favour of Sri.Ramesh.G., which executed on 28.06.2013, Ex.R.2 Indemnity Bond dated 07.07.2013 executed by the G.Ramesh, Ex.R.3 Notice under section 133 of the M.V. Act dated 22.04.2013 issued by the Malur Police to the said G.Ramesh and Ex.R.4 Reply to Notice under Section 133 of M.V. Act dated 24.04.2013 issued by the said Ramesh.G, to the said Malur Police, which have been produced by the R.W.1, who is an Investigation Officer of the Crime No.63/2013, which is relating to the present accident in question, clearly disclosed that, as a Special Power of Attorney Holder of the Respondent No.1, who was a registered owner of the offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877, the said Ramesh.G. has released the said offending Maruthi Omini Cargo Van from the custody of the Police, which was seized by the said Police relating to the SCCH-7 39 M.V.C.No.3206/2013 present accident in question, clearly implies that, though the Respondent No.1 is having Ex.R.14 to Ex.R.16 on 07.10.2012 itself, the said offending Maruthi Omini Cargo Van was legally transferred in the name of the deceased Narasimhan through concerned RTO Authority at the time of accident. Further, Ex.R.15 Letter dated 03.06.2015 is issued by the Complainant, who is a brother of the deceased Narasimhan, which is after the accident, which is clear from its contents itself. Therefore, merely based on the contents of Ex.R.14 to Ex.R.16, which have been produced by the Respondent No.1, it cannot be said that, at the time of accident, the Respondent No.1 has already sold the offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877.
39. Further, the R.W.1, who is an Investigating Officer, has clearly stated that, at the time of accident, Smt.Rashmi Thahima was the owner of the offending vehicle, who has given Special Power of Attorney to Ramesh.G. as per Ex.R.1 in respect of the said offending vehicle and as such, he issued Notice under Section 133 of M.V. Act to the said Ramesh.G. on 20.04.2013. From this material evidence, it is further made crystal clear that, through her Special Power Attorney Holder, the Respondent No.1 got released the offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877 from the custody of the Police, as, she was a registered owner of the offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877 at the time of accident. No doubt, the R.W.1 has stated that, the complainant in the complaint has stated that, the vehicle, which involved in the alleged accident, belongs to him and the wife of the complainant has also given SCCH-7 40 M.V.C.No.3206/2013 statement by stating that, the said vehicle owned by them. But, based on the said oral version of R.W.1, it cannot be said that, at the time of accident, the deceased driver was a owner of the offending Maruthi Omini Cargo Van bearing Registration No.KA-03- D-4877, as, the Respondent No.2 has produced Ex.R.12 Inquest along with Statement of G.Sunitha W/o. Narasimham, who is the Respondent No.3, which clearly disclosed that, no way it is stated by the Respondent No.3, who is a wife of the deceased driver that, the offending vehicle is purchased by her deceased husband from the Respondent No.1. She has not stated anything about the purchase of the offending vehicle by her deceased husband from the Respondent No.1. The very release of the offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877 by the Special Attorney Holder of the Respondent No.1 from the custody of the Police clearly implies that, the defence taken by the Respondent No.1 that, she was not a owner of the offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877 at the time of accident, is only an after thought and only to avoid her liability to pay compensation, which involved in the present petition, she has taken such defence. Therefore, whatever the evidence stated by the R.W.3, who is the Respondent No.1 cannot be believed and accept.
40. Further, immediately after Ex.R.14 to Ex.R.16, the Respondent No.1 has not intimated about the sale of the offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877 to the said Insurance Company, i.e., the Respondent No.2. The Respondent No.2 has produced Ex.R.9 Motor Claim Form dated 27.08.2013 through R.W.2 submitted by the Respondent No.1 SCCH-7 41 M.V.C.No.3206/2013 reporting the accident in question, wherein, it is mentioned that, she is not a owner of the vehicle at the time of accident. Except Ex.R.14 to Ex.R.16, the Respondent No.1 has not produced any authenticated documents to show that, immediately after the execution of Ex.R.14 to Ex.R.16, i.e., on 07.10.2012, she informed to the Insurance Company about the sale of the offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877 to the deceased Narasimhan. From this, it is made crystal clear that, for the first time, through Ex.R.9 Motor Claim Form dated 27.08.2013, the Respondent No.1 brought to the notice of the Insurance Company that, she is not a owner of the offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877 at the time of accident. To consider the same, except Ex.R.14 to Ex.R.16, no legal acceptable documents issued by the concerned Authority are produced by the Respondent No.1, which is very much fatal to consider the defence taken by her in respect of the liability.
41. Further, the Respondent No.2 has produced Ex.R.6 B- Register Extract relating to the offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877, which disclosed that, the Respondent No.1 is a registered owner of the offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877. The Respondent No.2 has also produced Ex.R.7 Insurance Policy relating to the offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877, which is also standing in the name of the Respondent No.1 as insured. The R.W.3, who is a Respondent No.1 has stated in her cross-examination that, for selling and purchase of the said business, they have maintaining SCCH-7 42 M.V.C.No.3206/2013 the registers and she has records to show that, as on 07.10.2012, she has sold the said Maruthi Van to Sri. Narasimhan, i.e., the deceased driver. If really, as per Ex.R.14 Delivery Note and Ex.R.16 Endorsement dated 07.10.2012, the Respondent No.1 has sold the offending Maruthi Omini Cargo Van bearing Registration No.KA-03- D-4877 in favour of the deceased Narasimhan, she could have definitely intimated about the same to the Insurance Company, i.e., Respondent No.2 and the deceased Narasimhan, who also intimated to the Respondent No.2 to transfer the said Ex.R.17 Insurance Policy in his name for the risk that, he has purchased the said offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877 as per Ex.R.14 and Ex.R.16. But, no such register is produced by the Respondent No.1. Under such circumstances, based on Ex.R.6 B-Register Extract and Ex.R.7 Insurance Policy, it can be safely held that, at the time of accident, the Respondent No.1 was a registered owner of the offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877.
42. From the above said material evidence, it is made crystal clear that, at the time of accident, the Respondent No.1 was a Registered Owner of the offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877.
43. As this Tribunal has already observed about the production of Ex.R.7 Insurance Policy along with the terms and conditions by the Respondent No.2 through R.W.2, who is its Administrative Officer. The R.W.2 has clearly stated in his examination-in-chief that, the Maruthi Omini Cargo Van bearing SCCH-7 43 M.V.C.No.3206/2013 Registration No.KA-03-D-4877 was insured with their Insurance Company for a period from 29.08.2012 to 28.12.2013. He has further stated in his cross-examination that, the Respondent No.1 is a Registered Owner of the offending vehicle, as per Ex.R.6 B- Register Extract and Ex.R.7 Insurance Policy. He has further clearly admitted that, as on the date of the accident, the Respondent No.1 is a registered owner of the offending vehicle and she has executed Special Power of Attorney in favour of Ramesh, who got released the offending vehicle from the custody of the Police. From this material evidence, it is clearly proved that, at the time of accident, the Respondent No.1 was a registered owner and the Respondent No.2 was an insurer of the offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877 and its Insurance Policy was valid, which covers the date of accident.
44. But, based on the grounds that, as on the date of accident, the Respondent No.1 was a registered owner and the Respondent No.2 was an insurer of the offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877, it cannot be come to the conclusion that, both the Respondent No.1 being a registered owner and the Respondent No.2 being an insurer are jointly and severally liable to pay the above said compensation and interest to the Petitioners, as, it is clearly stated by the R.W.2 in his examination-in-chief that, their Insurance Company issued notice to the Respondent No.1 on 27.06.2013 calling upon her to submit the vehicle documents and driving licence of the driver, but, she has not submitted the driving licence of the driver and even the Circle Inspector of Police and also to the wife of the driver, i.e., the SCCH-7 44 M.V.C.No.3206/2013 Respondent No.3 have not submitted driving licence particulars of the deceased driver in spite of issuance of letters. He has further stated that, the driver of the Maruthi Omega Cargo drove the vehicle without holding driving licence and caused the accident and the owner of the vehicle knowingly, intentionally violated the terms and conditions of the policy and Fitness Certificate of the Maruthi Omega Cargo is not valid as on the date of accident and the F.C. valid up to 17.08.2011 and thereafter, not renewed and hence, the Respondent No.2 is not liable to indemnify the owner. To consider the same, the Respondent No.2 has produced Ex.R.7 Insurance Policy along with terms and conditions, Ex.R.8 Office copy of Letter dated 27.06.2013, Ex.R.10 Letter dated 19.11.2014, Ex.R.11 Office copy of Letter dated 18.11.2014 along with Counter Foil of Postal Order and Ex.R.12 Certified copy of Inquest along with Statement of G.Sunitha W/o. Narasimhan and Ex.R.13 Postal Acknowledgments 3 in numbers. From the contents of the said material documents, it clearly goes to show that, the Respondent No.2 is an insurer, who has made prompt efforts for collecting the driving licence relating to the deceased driver of the offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877, but, it has not secured the driving licence. Neither the Respondent No.1 nor the Respondent No.3, who is a wife of the deceased driver did not care to produce the driving licence relating to the deceased to show that, at the time of accident, he was having a valid and effective driving licence to drive such class of offending vehicle. Further, though the notice was duly served on the Respondent No.3, she remained absent and hence, she is placed as exparte. The non-appearance of the Respondent No.3 clearly implies that, she SCCH-7 45 M.V.C.No.3206/2013 has indirectly admitted the entire evidence taken by the Respondent No.2 in respect of the driving licence of her deceased husband. Further more, the R.W.1, who is an Investigating Officer has clearly stated that, he has not colleted the driving licence of the driver, who is an Accused in the said criminal case, during the course of investigation and since, the driver is died, he has not collected the driving licence of the said driver. From the said material evidence, it is made crystal clear that, at the time of accident, the deceased driver of the offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877 was not having a valid and effective driving licence to drive such class of offending vehicle.
45. On perusal of the contents of Ex.R.6 B-Register Extract, which clearly goes to show that, the F.C. relating to the offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877 is a Goods Vehicle and its F.C. is valid till 17.08.2011. The R.W.1, who is the Investigation Officer, has clearly stated that, as per the records, F.C. relating to the offending vehicle was not valid at the time of accident. It is also clear from the contents of Ex.P.7 Insurance Policy that, the offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877 is a Goods Carrying Vehicle and its seating capacity is 1 + 1 including driver and no 3rd party covered and it covered only driver and the cleaner. While answering Issue No.1, this Tribunal has already observed and come to the conclusion that, at the time of accident, the deceased R.Prabhakaran S/o. C.Ravi Kumar was traveling in the offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877 to bring Lord Anjaneya Statue from Shivarapatna Village Malur SCCH-7 46 M.V.C.No.3206/2013 Taluk, Kolar District. The P.W.1, who is a father of the deceased, has also stated in his cross-examination that, on the date of accident, his son was traveling in the said vehicle as a passenger to take the idol. Admittedly, the said deceased is not a driver or cleaner in the offending vehicle at the time of accident. From this, it appears that, the deceased is a 3rd party to the said offending vehicle. Therefore, as per the terms and conditions of Ex.R.7 Insurance Policy, the deceased, who is a 3rd party, is not covered under the risk. From this, it is made crystal clear that, at the time of accident, the deceased was gratuitous passenger. Therefore, even though the Insurance Policy relating to the offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877 was valid as on the date of the accident, the Respondent No.2 being an insurer is not liable to pay the above said compensation and interest to the Petitioners by indemnifying the Respondent No.1, who was a registered owner of the said offending vehicle at the time of accident. Since, as on the date of accident, F.C. relating to the offending vehicle was not valid and since, the deceased not covered under the risk of 3rd party, the Respondent No.1 being a registered owner of the offending Maruthi Omini Cargo Van bearing Registration No.KA-03-D-4877 at the time of accident, she alone is liable to pay the above said compensation and interest to the Petitioners. Hence, the petition filed by the Petitioners as against the Respondents No.1 is liable to be allowed and it is liable to be rejected as against the Respondents No.2 and 3. In view of the above said reasons and findings on Issues, the principles enunciated in the decisions cited by the Learned Counsels appearing for the Petitioners and the Respondent No.1 are not SCCH-7 47 M.V.C.No.3206/2013 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.2 are aptly applicable to the present facts and circumstances of the case on hand. Hence, Issue No.2 is answered accordingly.
46. ISSUE NO.3 :- For the aforesaid reasons, I proceed to pass the following, ORDER The petition filed by the Petitioners 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 Petitioners under Section 166 of the Motor Vehicles Act, 1989, is hereby dismissed without costs as against the Respondents No.2 and 3.
The Petitioners are entitled for compensation of Rupees 12,17,145/- with interest at the rate of 8% p.a. from the date of the petition till the date of payment, from the Respondent No.1.
The Respondent No.1 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this Order.
SCCH-7 48 M.V.C.No.3206/2013The Petitioners shall share the said compensation and interest in the ratio of 30:70.
In the event of deposit of compensation and interest, 50% shares relating to the Petitioners No.1 and 2 shall be released in their favour respectively, through account payee cheques, on proper identification.
Remaining 50% shares relating to the Petitioners No.1 and 2 shall be kept in FD in their respective names, in any nationalized Bank of their choice, for a period of 3 years.
Advocate's fee is fixed at Rupees 1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then, pronounced by me in the open Court on this, the 22nd day of June, 2016.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONERS :-
P.W.1 : Sri. C. Ravikumar
P.W.2 : Sri. Sathish
SCCH-7 49 M.V.C.No.3206/2013
2. DOCUMENTS MARKED BY THE PETITIONERS :-
Ex.P.1 : True copy of FIR
Ex.P.2 : True copy of Complaint
Ex.P.3 : True copy of Charge Sheet
Ex.P.4 : True copy of Spot Panchanama
Ex.P.5 : True copy of Spot Hand Sketch
Ex.P.6 : True copy of MVI Report
Ex.P.7 : True copy of Inquest
Ex.P.8 : True copy of Postmortem Report
Ex.P.9 : True copy of Aadhar Card
of Prabhakaran.R.
Ex.P.10 : True copy of Ration Card
Ex.P.11 : Birth Certificate
Ex.P.12 : Pay Slip
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
R.W.1 : N. R. Venkatesh
R.W.2 : Sushil Tiwari
R.W.3 : Rashmi Dehima
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
Ex.R.1 : Notarized Xerox copy of Special Power of Attorney undated Ex.R.2 : Notarized Xerox copy of Indemnity Bond dated 07.07.2013 Ex.R.3 : Notarized Xerox copy of Notice under Section 133 of M.V. Act dated 22.04.2013 Ex.R.4 : Notarized Xerox copy of Reply to Notice under Section 133 of M.V. Act dated 24.04.2013 Ex.R.5 : Authorization Letter dated 17.02.2016 Ex.R.6 : B-Register Extract relating to Vehicle bearing Registration No.KA-03- D-4877 Ex.R.7 : True copy of Insurance Policy along with terms and conditions SCCH-7 50 M.V.C.No.3206/2013 Ex.R.8 : Office copy of Letter dated 27.06.2013 Ex.R.9 : Motor Claim Letter dated 27.08.2013 Ex.R.10 : Office copy of Letter dated 19.11.2014 Ex.R.11 : Office copy of Letter dated 18.11.2014 along with Counter Foil of Postal order Ex.R.12 : Certified copy of Inquest along with Statement of G.Sunitha W/o. Narasimham Ex.R.13 : Postal Acknowledgment (3 in nos.) Ex.R.14 : Delivery Note dated 07.10.2012 Ex.R.15 : Letter dated 03.06.2013 Ex.R.16 : Endorsement dated 07.10.2012 (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.