Bangalore District Court
Mr. Rangappa vs Mr. D.Firoz on 2 November, 2015
1 SCCH-1
MVC No. 494/2014
BEFORE THE MEMBER PRL. MOTOR ACCIDENT CLAIMS
TRIBUNAL AT BANGALORE
(S.C.C.H. - 1)
DATED THIS THE 2nd DAY OF NOVEMBER 2015
PRESENT : SRI H.P.SANDESH, B.A.L, LL.B.,
MEMBER, PRL. M.A.C.T.
MVC No.494/2014
Petitioners: Mr. Rangappa,
S/o. Narasimhappa,
Aged about 42 years,
R/at No.2818,
Hemasudeep Arcade,
3rd Floor, 15th Main,
3rd Cross, 3rd Block,
Sahakarnagar,
Bangalore - 560 092.
Permanent address:
No.56, Gorthasalli,
Bagepalli taluk,
Kolar District.
(By Sri.K.N.Harish Babu, Advocate)
Vs.
Respondents: 1. Mr. D.Firoz,
S/o. D.Ahammad,
No.10/947, Alisab Street,
Valisab Road,
Kadri village and post,
Kadri Mandal,
Ananthapur District - 515 002
(R.C. Owner of the New Bolera Maxi
Truck bearing Reg.No.AP-02-UBTR-
7615)
(Sri.Chennakesavalu, Advocate)
2. The Regional Manager,
Bajaj Alliance General Insurance
Co., Ltd.,
2 SCCH-1
MVC No. 494/2014
Ground Floor, 31, TBR Tower,
1st Cross, New Mission Road,
Near Bangalore Stock Exchange,
Bangalore - 560 027
(Insurer of the Bajaj Pulsar Motor cycle
bearing Reg.No.KA-53-EC-2787)
(I.P.No.OG-14-1807-1803-00000166,
Valid from 29.05.2013 to 28.05.2014)
(Sri.Y.P.Venkatapathi, Advocate)
*********
JUDGMENT
The petitioner has filed this petition U/s. 166 of the Motor Vehicles Act, 1989 claiming compensation of Rupees 15,00,000/- from the respondents for the injuries sustained by him in the motor vehicle accident, which took place on 07.09.2013.
2. The brief facts of the case are:
It is the case of the Petitioner that, on 07.09.2013 at about 11.00 p.m. when the petitioner was travelling in a New Bolera Maxi Truck bearing Reg.No.AP-02-UBTR-7615 proceeding from Gurthapalli Village to Bangalore Market to sell the vegetables on NH-7 road, Chickaballapura taluk, the driver of the truck driving the same in a rash and negligent manner and when it came near Hunegal village, he dashed the said vehicle against the road side parked lorry bearing Reg.No.AP-04-X-786 from back side and caused the accident. Due to the said impact the claimant along
3 SCCH-1 MVC No. 494/2014 with others fell down and sustained severe injuries. The petitioner sustained left humerus distal 1/3rd shaft fracture, left radius proximal 1/3rd shaft fracture, right side multiple abrasions all over the body.
3. It is further contended that, immediately the petitioner was shifted to Government hospital, Chickballapur wherein he took first aid treatment and then shifted to M.S.Ramaiah hospital, Bangalore wherein admitted as an inpatient, X-rays were taken and the above said fractures were confirmed and underwent surgeries and implants were inserted to his leg and hand. He got discharged on 02.11.2013 with an advice to take follow up treatment.
4. It is further contended that, prior to the accident he was hale and healthy and was doing Coolie work and was earning Rs.10,000/- p.m. Due to the accidental injuries he is not in a position to lead the normal life and he has suffered permanent disability.
5. It is further contended that, the accident in question is solely due to the rash and negligence on the part of the driver of the New Bolero Maxi truck. The Chickballapur Rural Police have 4 SCCH-1 MVC No. 494/2014 registered a case against the driver of the offending vehicle U/s.279, 337 and 338 of IPC.
6. It is further contended that, the first respondent being the RC owner and the second respondent being the insurer of the offending vehicle, both are jointly and severally liable to pay compensation to the petitioner. Hence, the petitioner prays for awarding compensation of Rs.15,00,000/- from the respondents.
7. In pursuance of this claim petition, this Court issued notice against both the respondents. Though the first respondent appeared through his counsel he has not filed written statement. The respondent No.2 appeared through its counsel and filed written statement and contended that, the Mahindra Bolero truck bearing Engine No.GLD4C59191 and Chassis No.MA1ZP2GLKD3C33867 which is alleged as plied was unregistered. The Temporary registration gets lapsed on expiry of one month from the date of the issuance. The temporary registration certificate copy does not indicate further renewal. Plying of vehicle without registration is contrary to law and the vehicle had not authorized by the competent authority to ply as road tax and permit clauses were not compelled with. Hence the petitioner has no locus standie to implead the respondent No.2. 5 SCCH-1 MVC No. 494/2014
8. It is further contended that, the policy issued in respect of the said vehicle was for the period between 29.05.2013 to 28.05.2014 only subject to the terms and conditions, exceptions and limitations and the confirmation of the compliance of Sec.64VB of the Insurance Act, 1938.
9. It is further contended that, the petitioner was travelling as gratuitous passenger in goods vehicle and his claim that he was going along with vegetable is absolutely false. The petitioner has to prove the same.
10. It is further contended that, at the time of the accident MR.Harinath Reddy was its driver apparently as per police documents and the accused driver Mr.Gopalakrishna has been substituted as Mr.Harinath Reddy who had no valid and effectives driving license to drive the class of the vehicle and the first respondent knowingfully has well entrusted the vehicle to the person who did not posses valid and effective driving license to drive the said vehicle. Hence the petition is liable to be dismissed.
11. It is further contended that, the alleged accident caused due to the wrongly parked lorry bearing No.AP 04x786, which was without following parking guidelines that have been enshrined in the law and it was parked on the main road, the driver of the lorry, owner and the insurer are necessary and proper 6 SCCH-1 MVC No. 494/2014 parties to the proceedings. The petitioner has to prove the negligence or at least contributory negligence on the part of the driver of the alleged lorry.
12. It is further contended that, the insured has not reported the alleged cause of action and also has not furnished the vehicle and driver particulars and the permit, FC etc., and also has not intimated and forwarded the notice issued in the said case to the respondent No.2 and hence he has deprived the opportunity to the 2nd respondent to effectively contest its case.
13. It is further contended that, the Petitioner has to prove that the accident was occurred due to the rash and negligence on the part of the driver of the New Bolero Maxi Truck. Also has to prove that, the driver of the said was having valid and effective driving license at the time of the accident, the nature of injuries, the treatment taken in the hospital, the amount spent towards medical expenses on account of accidental injuries and the disabilities suffered by him and also his age and earnings. The respondent has reserved the right to file additional statement of objections in the changed circumstances U/s. 170 of MV Act. Hence, prayed to dismiss the Petition.
14. Based on the pleadings, this Court has framed the following:-
7 SCCH-1 MVC No. 494/2014 ISSUES
1. Whether the petitioner proves that, he sustained grievous injuries in a Motor Vehicle Accident that occurred on 07.09.2013 at about 11.00 p.m. Near Hunegal Village, NH-7 Road, Chikkaballapura, within the jurisdiction of Chikkaballapura Police Station on account of rash and negligent driving of the New Bolera Maxi Truck bearing Reg. No. AP-02-UBTR-7615 by its driver?
2. Whether the Petitioner is entitled for compensation? If so, how much and from whom?
3. What order or Award?
15. The petitioner in order to prove his case has examined himself as PW.1 and got marked the documents Ex.P1 to Ex.P9. The petitioner also examined the Doctor as PW.2 and he got marked the documents Ex.P10 and 15. On the other hand, the 2nd respondent has examined its Legal Executive as RW.1 and he got marked the document Ex.R1 to 5. Also examined one witness as RW.2.
16. Based on the pleadings and the evidence available on record, I record my findings on the above issues as under:-
1. Issue No.1 : In the Affirmative
2. Issue No.2 : Partly in the Affirmative
3. Issue No.3 : As per final order for the following:
8 SCCH-1 MVC No. 494/2014 REASONS
17. Issue No.1: It is the case of the Petitioner that, on 07.09.2013 at about 11.00 p.m. when the petitioner was travelling in a New Bolero Maxi Truck bearing Reg.No.AP-02-UBTR-7615 proceeding from Gurthapalli Village to Bangalore Market, to sell the vegetables on NH-7 road, Chickaballapura taluk, the driver of the truck drove the same in a rash and negligent manner and when he came near Hunegal village dashed against the road side parked lorry bearing Reg.No.AP-04-X-786 from back side and caused the accident. It is the contention of the petitioner that, the accident in question is solely due to the rash and negligence of the driver of the Bolera Maxi Truck.
18. The petitioner in order to prove his case, has examined himself as PW.1 and has filed an affidavit reiterating the averments of the Petition and also relied upon the documents such as F.I.R., Charge sheet, Mahazar, Sketch as Ex.P1 to Ex.P4.
19. The PW.1 was subjected to cross examination and in the cross examination it is elicited that, they were 4 in numbers including the driver and the accident took place at 12.00 in the mid night. He was coming from Bagepalli to Bangalore. The driver of their vehicle in the rash and negligent manner went and dashed against the lorry which was parked on the left side of the road. He 9 SCCH-1 MVC No. 494/2014 saw the lorry before the accident. He admits that, there is a service road near the place where the lorry was parked. Also admits that, the accident was occurred in the main road of NH and he did not observe whether they have put any symbol or signal about parking of the vehicle. The police came and recorded his statement in the hospital. Immediately after the accident he went to Chikkaballapura hospital and thereafter to Victoria hospital, Abhaya hospital and Ramaiah hospital.
20. The respondent No.2 has examined one witness as RW.1 who is the Executive Legal in the 2nd respondent Insurance Company. He says in the affidavit that, the Temporary registration certificate gets lapsed on expiry of one month from the date of the issuance and nonrenewable as per Sec.43 of MV Act. Plying of vehicle without Registration is contrary to law. The vehicle had not authorized by the competent authority to ply as it needs payment of road tax and compliances. The RW.1 also got marked the documents i.e. letter sent to insured, receipt and returned postal cover as Ex.R3 to 5.
21. In the cross examination he admits that, he has not signed the objection and also the vakalath and he cannot tell who has signed the WS. He admits that, the policy was issued even prior to registration and there is a condition in the terms and conditions that if the vehicle is not registered after the issuance of 10 SCCH-1 MVC No. 494/2014 policy within the stipulated time the policy is not valid. The witness verified the policy and says no such condition. It is elicited that, the accused in FIR is having LMV licence and the chargesheeted driver is not having the Driving License. The police while filing the charge sheet have not filed any charge sheet against the driver that he was not having the valid Driving License. It is suggested that, both the FIR driver and the chargesheet driver are having the Driving License and the same was denied. It is suggested that, while giving the first information the driver name is wrongly mentioned and the same is corrected in the chargesheet and it was filed against the person who drove the vehicle and the same was denied. He says, their Investigating Officer has not given any reasons for change of driver. Witness volunteers that their investigation officer has not given any report. He says, for change of the driver they have not taken any legal action. The notice sent by them was not served against the owner the same was returned. It is suggested that, in ordered to absolve their liability he is giving false evidence before the court even though he is not having any competency to give evidence before the court and the same was denied. He admits that, the Ex.R.1 does not contain the seal the same is on letterhead. It is suggested that the signature available in Ex.R.1 is created and the same was denied. 11 SCCH-1 MVC No. 494/2014
22. The respondents have also examined PSI as RW.2. In his evidence he says that, after receiving the records he has verified the records and there was a temporary registration number in respect of the vehicle involved in the accident. He cannot tell the validity of the Temporary Registration Number. The vehicle belongs to Andhra Pradesh. 2 vehicles are involved in the accident and the offending vehicle is Bolero and another vehicle is lorry. He has not collected the permit of the said vehicle. The vehicle was insured with Bajaj Alliance Insurance Company. There is no any Registration number in the policy since it was a new vehicle. The used to seize the vehicle which are involved in the accident and the same will be shown in the PF list and so also in the chargesheet. They enquired the person who alleged the accident. He has not collected the Driving License of Harinatha Reddy. In the FIR there is a mention that one Harinatha Reddy was driving the Bolero vehicle. They have not seized the Driving License of the Harinatha Reddy. He has not examined the Rangappa who is the Petitioner herein. He did not verify whether the persons who were traveling in the vehicle and also Harinatha Reddy are the residents of same village or not. The vehicle belongs to Firoz of Andhra Pradesh. The Firoz is the resident of Kadiri village Anantapura District, Andhra Pradesh. He admits that, the vehicle was got released by Firoz. He has verified the Driving License of Gopalakrishna. The driver Gopalakrishna was not having the licence to drive the goods 12 SCCH-1 MVC No. 494/2014 vehicle but he is having Driving License to drive the transport vehicle. It is suggested that, Harinatha Reddy was not having the Driving License and hence in his place Gopalakrishna was arrived as accused and the same was denied. He admits that, they have not produced the Driving License of Harinatha Reddy or Gopalakrishna before the Magistrate Court. Also admits that, the chargesheet has not been filed against Firoz about no permit and no registration certificate. In the cross examination made by the petitioner counsel it is elicited that, the Gopalakrishna was having valid Driving License to drive the Bolero vehicle. The Harinatha Reddy gave the statement that one Gopalakrishna was driving the vehicle. Further in the complaint there is a reference that they were carrying the vegetables in the Bolero vehicle. He admits that, in the border they issue temporary permit. During my investigation he came to know that Gopalakrishna was driving the vehicle. He did not find any defect in the RC, permit and DL.
23. Now let me appreciate the oral and documentary evidence available before the court.
24. On perusal of the evidence of PW.1 it is his case that, the accident was occurred due to the negligence on the part of the driver of the Bolero Maxi Truck who went and dashed against the parked vehicle. The respondents have not disputed the very fact that the Bolero vehicle driver went and dashed against the parked 13 SCCH-1 MVC No. 494/2014 vehicle. There is no dispute with regard to the fact of negligence on the part of the driver of the truck. In the cross examination of PW.1 also nothing is elicited to disbelieve the version of PW.1. In the evidence of RW.1 and 2 also they have not disputed the very fact of negligence. They only concentrated regarding the validity of the driving licence. In the absence of any contra evidence this court has to accept the version of PW.1 that, the driver of the Bolero Maxi Truck has caused the accident since he went and dashed against the parked lorry. When the accident was on account of the rash and negligence driving of the driver of the Bolero Maxi truck and when there is no any rebuttal evidence as against the evidence of PW.1 and documentary evidence which are marked as Ex.P1 to 4 and in the cross examination RW.1 and 2 have also not disputed the said marked documents and police have also investigated the matter and filed the charge sheet against the driver of the Bolero Maxi truck in terms of Ex.P2, hence it is a fit case to arrive for a conclusion that, the accident was occurred on account of the negligence of the driver of the Bolero Maxi Truck. Hence I answer issue No.1 in the Affirmative.
25. ISSUE No.2:
It is the case of the petitioner that, on account of the accident he has sustained the grievous injuries and suffered the permanent disability. Immediately he was shifted to Government 14 SCCH-1 MVC No. 494/2014 hospital, Chickballapur wherein First aid treatment and then shifted to M.S.Ramaiah hospital, Bangalore wherein admitted as an inpatient and underwent surgeries and implants were inserted to his leg and hand.
26. It is also his case that, he was hale and healthy and was working as coolie and was earning Rs.10,000/- p.m. and due to the accidental injuries he became permanently disabled. Petitioner in order to substantiate his contention has relied upon 2 Discharge summaries, 9 prescriptions, Medical bills to the tune of Rs.4,13,374/-, X-ray which are marked as Ex.P5 to 9.
27. The petitioner also examined the Doctor as PW.2 and in his evidence he says that, petitioner has suffered the type 1 fracture of the left Humerus distal 1/3rd with radial nerve palsy, open type 2 fracture of the left of proximal radius, multiple rib fractures with heamopneumothorax. The doctor has opined that the above injuries are grievous in nature. Petitioner has sustained other non-grievous injuries i.e. CLW over Face and chest and sepsis with Multi-organ dysfunction syndrome. The petitioner was shifted to M.S Ramaiah hospital for further management of the fracture and he underwent open reduction and internal fixation with plate and screws for the left humerus facture and closed reduction and internal fixation with intramedullary nail for the left open radius fracture on 24.09.2013 along with Tracheostomy for 15 SCCH-1 MVC No. 494/2014 prolonged ventilator care in ICU. Again he was subjected to surgery and chest tube was removed on 03.10.2013 and he underwent physiotherapy and rehabilitation in ward. The doctor has opined that, he has suffered total disability of left upper limb 38% and total disability to whole body as 13%.
28. In the cross examination of PW.2 he admits that, the movement of humerous is in co-ordination of shoulder joint and there is no any injury to shoulder joint and shoulder joint is stabilized by ligaments. He admits that, the range of movements of shoulder requires ligaments, nerves and muscles. The power of muscles are explained in the form of grading. He admits that, in Ex.P14 there is no detail of disability assessment and only clinical findings are mentioned. He admits that, the fracture is united and he has not tested the strength of the bone. He says, there is no need of testing the strength of the bone to assess the disability.
29. Now let me appreciate both oral and documentary evidences available before the court under the different heads:
30. PAIN AND SUFFERINGS:
It is the case of the petitioner that, on account of the accident he has suffered disability. On perusal of 2 Discharge summaries which are marked as Ex.P5 & 6 discloses that, has suffered the type 1 fracture of the left Humerus distal 1/3rd with radial nerve palsy, open type 2 fracature of the left of proximal 16 SCCH-1 MVC No. 494/2014 radius, multiple rib fractures with heamopneumothorax and he has subjected to surgery twice. The X-ray which is produced as Ex.P9 also confirms that, the petitioner had fractures of left humerous radious. Also recent x-ray which is marked as Ex.P15 shows that the fracture is united. For having taken note of the same, I am of the opinion that, petitioner is entitled for compensation of Rs.50,000/-. Hence, I award Rs.50,000/- under the Head Pain and Sufferings.
31. LOSS OF FUTURE EARNINGS ON ACCOUNT OF DISABILITY:
a) Disability:
Regarding the disability is concerned the petitioner has relied upon the evidence of the Doctor PW.2 who assessed the disability of 13% to whole body. For having taken note of the injuries suffered i.e. type 1 fracture of the left Humurus distal 1/3rd with radial nerve palsy, open type 2 fracture of the left of proximal radius, multiple rib fractures with heamopneumothorax and he was subjected to surgery twice, the disability assessed by the doctor as 13% is on the higher side, hence accept the evidence of the PW.2 to the extent of 12% since there is no mal-union and the Doctor has categorically stated that, fractures are united. Hence I have taken the disability as 12% which would be just and reasonable.
17 SCCH-1 MVC No. 494/2014
b) Income:
The Petitioner claims that, he was hale and healthy and doing coolie and was earning Rs.10,000/- p.m. Due to the accidental injuries he became permanently disabled. To prove the same he has not produced any documentary proof with regard to his avocation, though he claims that he was doing coolie. In the absence of documentary evidence that he was earning Rs.10,000/- p.m., this court can take his income as Rs.6,000/- p.m. since the accident has occurred in the year 2013. Hence I have taken petitioner income as Rs.6,000/- p.m.
c) Age & multiplier:
The Petitioner claims that he was aged about 42 years at the time of the accident and he has relied upon only the medical records and no documentary proof is produced with regard to his age. Hence this court has relied upon the immediate document which came into existence i.e. Discharge Summaries which are marked as Ex.P5 and 6 in which the age of the petitioner is mentioned as 42 years. Hence I accept the age of the petitioner as 42 years. Having taken note of the petitioner's age as 42, the relevant multiplier applicable between the age group of 41 to 45 is
14.
Hence the petitioner is entitled for the compensation of Rs.1,20,960/-(6,000x12x14x12/100) which is rounded off to 18 SCCH-1 MVC No. 494/2014 Rs.1,21,000/-. Hence I award Rs.1,21,000/- under the Head of Loss of Earnings due to disability.
32. MEDICAL EXPENSES:
The petitioner has produced Medical bills to the tune of Rs.4,13,374.42/- which are marked as Ex.P8 and 96 prescriptions which are marked as Ex.P7. In the cross examination of PW.1 it is suggested that, the medical bills are created for the purpose of claiming more compensation and the same was denied. The PW.1 categorically says that, injuries are healed but he is having pain and subjected to surgery and took follow up treatment at MS Ramaiah hospital. The Doctor has not given any letter for future operations. It is suggested that, the medical bills of the M.S.Ramaiah hospital are included in the final bill and the same was denied. It is the claim of the petitioner that, he has spent Rs.8,00,000/- towards medical and other incidental expenses. Only he has produced medical bills to the tune of Rs.4,13,374/-for having admitted in the hospital. The bills also includes the final bill of Abhaya hospital for having admitted as an inpatient from 08.09.2013 to 09.09.2013 for a period of 2 days and also M.S.Ramaiah from 24.09.2013 to 02.11.2013 and again admitted in the same hospital from 11.11.2013 to 13.11.2013 and these bills also includes pharmaceutical bills for having purchased the medicines.
19 SCCH-1 MVC No. 494/2014
33. The bills Nos. 7, 15 to 37 amounting to Rs.32,636.63/- appears tobe included in the final bill of M.S.Ramaiah hospital dated 09.09.2013 to 17.09.2013 amounting to Rs.1,89,346.00/-. Hence these bills cannot be accepted. Also bill Nos. 59, 60 and 63 amounting to Rs.19,200/- are not supported by any prescriptions or any documents, hence these bills cannot be accepted. Hence I accept the medical bills to the tune of Rs.3,61,536/-.(4,13,374.42- 51,836.00(32,636+19,200)). Hence I have accepted the medical bills of Rs.3,61,538/- which is rounded off to Rs.3,62,000/-. Hence I award Rs.3,62,000/- under the head Medical expenses.
34. TRAVELING, CONVEYANCE, FOOD AND NOURISHMENT AND OTHER INCIDENTAL EXPENSES:
During the treatment period the Petitioner must have spent amount towards traveling, conveyance, food and nourishment and other incidental expenses. The petitioner was an inpatient at MS Ramaiah hospital from 09.09.2013 to 17.09.2013 for a period of 9 days at the first instance and again at the same hospital, for a period of 34 days from 24.09.2013 to 02.11.2013. Again admitted in the same hospital from 11.11.2013 to 13.11.2013 for a period of 3 days and also underwent surgeries. Hence I award Rs.20,000/-
under the head traveling expenses, conveyance charges, attendant charges and other incidental expenses. 20 SCCH-1 MVC No. 494/2014
35. LOSS OF INCOME DURING THE PERIOD OF TREATMENT:
It is important to note that, he was an inpatient for a period of total 46 days at M.S.Ramaiah hospital and he has sustained type segmental fracture of both bones of right leg and other injuries. The PW.1 has not placed any documentary evidence before the court to prove that presently he is not working. Hence for having taken note of nature of injuries he has suffered, I am of the opinion that he could not work for a period 4 months. Hence, I award an amount of Rs.30,000/-(6,000x5) under the head Loss of earnings during the period of treatment.
36. LOSS OF AMENITIES IN LIFE:
The petitioner is aged about 42 years and he has suffered permanent disability and this court has fixed 12% disability to whole body. On account of his age being 42 years, I am of the opinion that, the Petitioner is entitled for an amount of Rs.20,000/- on the head loss of amenities in life since he has to lead his rest of life with the disability of 12%.
37. FUTURE MEDICAL EXPENSES:
The doctor in his evidence says that, removal of screw may cost Rs.30,000/-. For having taken note of the amount mentioned by PW.4 that the removal of implant will cost Rs.30,000/-, and 21 SCCH-1 MVC No. 494/2014 considering his evidence, I award Rs.20,000/- under the head future medical expenses.
The details of compensation, I propose to award are as under:
Sl.
Head of Compensation Amount
No.
1. Pain and Sufferings Rs. 50,000.00
2. Loss of future earnings due to Rs. 1,21,000.00
disability (6,000x12x14x12/100)
3. Medical expenses Rs. 3,62,000.00
4. Traveling, conveyance, food and Rs. 20,000.00
nourishment, attendant charges
and other incidental expenses.
5. Loss of income during the period Rs. 30,000.00
of treatment(Rs.6,000x5)
6. Loss of amenities in life Rs. 20,000.00
7. Future medical expenses Rs. 20,000.00
Total Rs. 6,23,000.00
In all the Petitioner is entitled for compensation of Rs. 6,23,000/-
38. INTEREST:
Relying upon a judgment of the Apex Court reported in 2013 AIR SCW 5375 (Minu Rout and others Vs. Satya Pradyumna Mohapatra and others), with regard to interest at the rate of 9% p.a. on the compensation amount, in para 13 of the judgment, the Apex Court held that Insurance Company is also liable to pay interest at the rate of 9% p.a. from the date of application till the date of payment and also by following the principles laid down in 22 SCCH-1 MVC No. 494/2014 (2011) 4 SCC 481 : (AIR 2012 SC 100) (Municipal Council of Delhi Vs. Association of Victims of Uphaar Tragedy). In view of the above judgments with regard to the rate of interest, and also it is settled law that while awarding interest on the compensation amount, the Court has to take into account the rate of interest of the nationalized bank and the rate of interest at 9% cannot said to be on the higher side. Accordingly, the petitioner is entitled to interest at the rate of 9% p.a.
39. LIABILITY:
The counsel appearing for the respondent No.2 in his written arguments has contended that, the Temporary registration certificate gets lapsed on expiry of one month from the date of the issuance and non-renewal as per Sec.43 of MV Act plying of vehicle without registration is contrary to law. The temporary authorization was effective and valid from 30.05.2013 till 28.06.2013 as per temporary Registration certificate. The alleged date of accident is 07.09.2013 and the cover note and authorization expired by the time of the alleged accident. Hence respondent No.2 has no obligation of any kind and not liable to indemnify any amount to the 1st respondent.
40. It is also contended that, the alleged vehicle was a new commercial vehicle and had no registration no., and also no necessary valid permit. The contract through the cover note 23 SCCH-1 MVC No. 494/2014 makes it mandatory to the 1st respondent to use the vehicle only with necessary Registration certificate and permit. Hence, the permit clause of the contract has been breached.
41. The respondent also has taken contention that, the petitioner was employed in Bengaluru with the builders as admitted in his evidence and even bank pass book of him indicates he is a private employee. Further contended that, he had no land and had no vegetable with him as claimed while travelling in the said goods vehicle. He was travelling as a gratuitous passenger in goods vehicle and his claim that he was going along with vegetables is absolutely false. No risk of passenger travelling in the said vehicle was covered under the alleged contract and the respondent has no obligation, as it is not permitted to cover the risk of the passenger in goods vehicle.
42. The counsel in his arguments has vehemently contended that, in the cross examination PW.1 has admitted that, one Mr.Gopalakrishna who has been substituted and made as accused and Mr.Harinath Reddy was not having effective driving license to drive the goods of vehicle. Mr.Harinath Reddy has license to drive the motor cycle with gear and LMV and he was not having the driving license to drive the goods vehicle i.e. LMV transport. Hence it is presumed and adverse inference to be drawn 24 SCCH-1 MVC No. 494/2014 against the 1st respondent that, Mr.Gopalakrishna had no license and the petition is liable to be dismissed.
43. It is further contended that, Mr.Gopalakrishna was not driving the said vehicle and also had no valid and effective driving license to drive at the time of the alleged accident and knowingfully well the 1st respondent entrusted the vehicle to the person who do not possess the valid and effective driving license and hence the insurance company is not liable to pay compensation.
44. It is contended that, the alleged accident caused due to the wrongly parked lorry bearing No.AP 04 X 786 without following parking guidelines that has been enshrined in the law. The driver of the said lorry since had parked his lorry not in accordance with law and as it was on the main road. Hence the driver of the lorry, owner and the insurer have been necessary and property parties to the proceedings. The remedy to the petitioner is available only against them and not against this respondent.
45. It is contended that, there is no obligation of the 1st respondent to pay any compensation to the petitioner as there is no assertion that the 1st respondent had authorized the accused driver to carry passenger in the goods vehicle or any gratuitous passenger in the vehicle. Hence accused driver is alone liable to compensate to the petitioner. No doubt it is a beneficial legislation 25 SCCH-1 MVC No. 494/2014 as it is well known should not be construed in such a manner so as to bring within its ambit and benefit which was not contemplated by the legislature to be given to the party. It is presumed that, the vehicle is used to carry the petitioner as per the instructions of the 1st respondent, then the 1st respondent has breached the permit conditions of the policy and the permit clause and thereby the insured has lost the right to seek indemnification. Hence the petition is not maintainable against the 2nd respondent.
46. The counsel also relied upon the judgment reported in 2003 ACJ 1931(National Insurance Co., Ltd., Vs. Ajit Kumar and others). In this judgment it is held that, "Liability of insurance company cannot be fixed when the person who has sustained the injuries travelling in a goods vehicle as passenger." Counsel also relied upon the judgment reported in 2004 ACJ 428 (National Insurance Co., Ltd., and Baljit Kaur and others). In the judgment it is held that, "Gratuitous passenger - Passenger risk -
Liability of insurance Co., - Whether risk of passengers carried for hire or reward or gratuitously in a goods is covered and insurance company is liable for death of any such passenger and held that, no liability."
26 SCCH-1 MVC No. 494/2014 The respondent also relied upon the judgment reported in 2008 ACJ 268 (National Insurance Co., Vs.Cholleti Bharatamma and others). In this judgment it is held that, "Whether insurance company is liable for the death of or injuries sustained by passengers travelling in goods vehicle gratuitously and held as no liability."
The counsel appearing for the respondent also relied upon the judgment reported in 2008 ACJ 1718 (National Insurance Co., Vs. Aishabi and another) and in this judgment Hon'ble High Court held that, "there were no goods carried by him at the time of accident; expression owner of goods presupposes that person will have to travel with the goods in order to come within the expression 'owner of the goods'. In this case deceased was a travelling as a passenger"
The counsel has also relied upon the judgment reported in ILR 2009 KAR 2921 (Bajaj Allianz General Insurance Co., LTd., Vs. B.C.Kumar and another. In this judgment Hon'ble High Court of Karnataka held that, "To assess the evidence before it independently of any finding of the criminal court on the question of the driver pleading guilty. At the most, the circumstance of the driver pleading guilty may be considered as one of the pieces of
27 SCCH-1 MVC No. 494/2014 evidence to support the case of the claimant. But the Tribunal should not place implicit reliance only the circumstance of the driver having pleaded guilty before the criminal court."
The counsel also relied upon the judgment of Division Bench of Karnataka High Court which held that, "Fraud and Justice Never Dwell together -
Further held that, even though the owner of the vehicle in unmistakable terms has admitted the incident, that admission has no value in the eye of law. He has admitted something which he has no knowledge and which he has not seen and if the fraud is proved the company is not liable to pay compensation."
The counsel also relied upon the judgment reported in ILR 2012 KAR 228 (M/s. Oriental Insurance Co., LTd., Vs.Mookambika and another). In this judgment it is held that, "The goods vehicle cannot be used for transportation of the passengers and intention of the legislation to classify the vehicle as goods vehicle, is one for transportation of the goods." Counsel also relied upon the judgment reported in 2004 ACJ 1903(Pramod Kumar Agrawal and another Vs. Mushtari Begum and others). In this judgment Hon'ble Supre Court held that, "The risk of passenger carried for hire or reward in a truck is covered and insurance 28 SCCH-1 MVC No. 494/2014 company liable for death of fare paying passenger and held no.
The counsel also relied upon the judgment reported in 2014 AIR SCW 5065 (Manohar Lal Sharma Vs. The Principal Secretary & Others). In this judgment it is held that, "Driver not possessing valid license - Accident vehicle also used after expiry of temporary registration - Insurance company is not liable for compensation."
47. Now let me appreciate both oral and documentary evidence available before the court in keeping the principles laid down in the judgment referred supra. The PW.1 petitioner who is the injured in his evidence he says that, he was proceeding along with vegetables to sell the same in the market. In the cross examination of PW.1 he says that, he is having bank account at Vijaya Bank, M.G. Road, Bangalore. He has given details of his avocation while opening the account. At the time of opening the account he was supplying the tea in the real estate agency shop. He admits that, the account was opened on 16/12/2013. He also admits that, in his evidence that, he is not having any agriculture land. It is suggested that, in order to claim compensation he is falsely deposing before the court that he was carrying the vegetables in the truck though he was a passenger and the said suggestion was denied.
29 SCCH-1 MVC No. 494/2014
48. In the evidence of RW.1 he has spoken about the temporary registration was lapsed and the PW.1 was traveled as a passenger and there was no valid and effective driving license. In the cross examination he admits that, the accused in FIR is having LMV license and the charge-sheeted driver is not having the Driving License. Also admits that, the police while filing the charge sheet have not filed any charge sheet against the driver that he was not having the valid Driving License. Also admits that, their Investigating Officer has not given any reasons for change of driver. Witness volunteers that their Investigation Officer has not given any report. Also he admits that, for change of the driver they have not taken any legal action. Also he admits that, the notice sent by them was not served against the owner the same was returned. He admits that, the Ex.R.1 does not contain the seal and the same is on the letterhead.
49. In the evidence of RW.2 he says that, he cannot tell the validity of the Temporary registration number. He admits that, the Bolero vehicle is also a goods vehicle and there is no any Registration number in the policy since it was a new vehicle. He further admits that, he has not collected the Driving License of Harinatha Reddy. He admits that, in the FIR there is a mention that one Harinatha Reddy was driving the Bolero vehicle and they have not seized the Driving License of the Harinatha Reddy. He 30 SCCH-1 MVC No. 494/2014 also admits that, in the spot mahazar there is no any reference about the vegetables are spilling at the spot and he did not verify whether the persons who were traveling in the vehicle and also Harinatha Reddy are the residents of same village or not. He further admits that, the driver Gopalakrishna was not having the license to drive the goods vehicle but he is having Driving License to drive the transport vehicle. He further admits that the complainant in his further statement has mentioned the name of Gopalakrishna. He also admits that, the chargesheet has not been filed against Firoz about no permit and no registration certificate. Also in the cross examination he admits that, in the complaint there is a reference that they were carrying the vegetables in the Bolero vehicle. Further admits that, he did not find any defect in the RC, permit and DL.
50. Having considered the evidence of both PW.1, RW.1 & 2 it is clear that, in the FIR it is mentioned that one Harinath Reddy was driving the vehicle and the same has been admitted by RW.2 in the evidence. Also he categorically admits that, they have not seized the DL of Harinath Reddy. Also it is important to note that, RW.2 categorically admits in the spot mahazar that, there is no any reference about vegetables are spilling at the spot. Driver Gopalakrishna was not having the license to drive the calss of vehicle but he is having the license to drive the transport vehicle. 31 SCCH-1 MVC No. 494/2014 Hence it is clear that, there is no any substance before the court that, the petitioner was carrying the vegetables in the Bolero vehicle. There is no any sign of spilling of the vegetables at the spot as deposed by the RW.2. Mere making the statement that, he was carrying the vegetables is not enough. PW.1 also categorically admits in the cross examination that, he is not having any agricultural land also only claims that, he was taking the vegetables to sell the same in the market. No document is placed before the court that, the driver who has been arrayed while filing the charge sheet was having the DL to drive the transport vehicle and it is an admitted fact by the RW.2 that, it is goods vehicle and it is not disputed. Having taken note of the material available on record it is clear that, the petitioner was travelling as a passenger and not as a goods vehicle owner. Since he has categorically admitted that, he was not having any agricultural land. Also it is not his case that, he was carrying the vegetables by purchasing the same from outside to sell the same at the market. Also there is no valid Registration certificate as on the date of the accident. Principles laid down in the judgment referred supra are aptly applicable to the case on hand that the insurance company is not liable to pay the compensation if the petitioner has traveled as gratuitous passenger and also no valid DL in respect of the goods vehicle and also it is a clear case of implication of the driver. RW.2 says that, in the FIR it is mentioned that, Harinath Reddy was 32 SCCH-1 MVC No. 494/2014 driving the vehicle and while filing the charge sheet Gopalakrishna arrayed as a driver based on the further statement. Hence it is nothing but an implication made in collusion with the police that, the driver has been arrayed who is not driving the vehicle at the time of the accident and even though he has been arrayed he was not having the DL to drive the goods vehicle. Also there is a clear breach of terms and conditions of the policy and the person was permitted to drive the vehicle is not having the valid and effective driving license and there is a clear volition of terms and conditions of the policy. Hence I am of the opinion that, the insurance company is not liable to pay the compensation. Liability is to be fixed on the driver as well as the owner and the driver has not been made as party to the proceedings. In the absence of driver is not been made as party to the proceedings, the owner who has authorized the person who is not having the valid license has to be paid the compensation to the victim and hence I have fixed the liability on the owner and 2nd respondent is exonerated from the liability. Hence, this issue is answered accordingly.
51. Issue No.3: In the result, I proceed to pass the following:
ORDER The petition is partly allowed with cost against respondent No.1 alone.
The petitioner is entitled for total compensation of Rs.6,23,000/-.
33 SCCH-1 MVC No. 494/2014 Out of the total compensation amount, petitioner is entitled for interest at the rate of 9% per annum only on Rs.6,03,000/- from the date of petition till realization.
The respondent No.1 is liable to pay the compensation along with interest to the petitioner within 2 months from the date of this order.
Since the petitioner has incurred medical expenses of Rs.3,62,000/-, I deem it just and proper to release 70% amount out of the total compensation so awarded in favour of the petitioner with proportionate interest and the balance amount 30% shall be invested in fixed deposit for a period of 5 years in the name of the petitioner in any of the nationalised bank of the choice of the petitioner. Interest on F.D. is payable on maturity.
Petition against respondent No.2 is dismissed. Advocate's fee is fixed at Rs.1,000/-
Draw an award accordingly.
(Dictated to the Stenographer, transcribed by her, corrected, signed and then pronounced by me in the open court dated this the 02nd day of November 2015) (H.P.SANDESH) Member, Prl. M.A.C.T., Court of Small Causes, Bangalore.
********** ANNEXURES Witnesses examined on behalf of the petitioners:
PW.1 : Rangappa PW.2 : Ravikumar T.V.
Witnesses examined on behalf of the respondents :
RW.1 : Manoj V.G. RW.2 : Nayaz Beig 34 SCCH-1 MVC No. 494/2014 Documents marked on behalf of the petitioners:
Ex.P-1 : FIR Ex.P-2 : Chargesheet Ex.P-3 : Mahazar Ex.P-4 : Sketch Ex.P-5 & 6 Discharge summaries (2 in nos.) Ex.P-7 : Prescriptions (96 in nos.) Ex.P-8 : Medical bills (130 in nos.) for Rs. 4,13,374/- Ex.P-9 : X-ray Ex.P-10 to P13: 4 case sheets Ex.P-14 : Follow up treatment document Ex.P-15 : 10 X-ray films
Documents marked on behalf of the respondents:
Ex.R-1 : Authorisation Letter
Ex.R-2 : Policy copy
Ex.R-3 : Letter sent to insured
Ex.R-4 : Receipt
Ex.R-5 : Returned postal cover
(H.P.SANDESH)
Member, Prl. M.A.C.T.,
Court of Small Causes ,Bangalore.
*S.D.*
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