Bangalore District Court
Manjunath @ vs Munivenkatappa on 26 October, 2015
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES AT BENGALURU
(SCCH:15)
DATED: THIS THE 26th DAY OF OCTOBER, 2015
PRESENT : Smt.K.Katyayini, B.Com., LL.B.,
XIII Addl.Small Cause Judge
& Member, MACT, Bengaluru.
MVC No.5924/2013
Petitioner/s Manjunath @
Manjunatha,
S/o Munivenkatappa,
Aged about 28 years,
Residing at No.93,
Sonnenahalli,
Kolar 563 133.
No.93/5A, 2nd Cross,
Ramaswamy Layout,
Halahalli Road,
Varthur,
Bengaluru - 560 087.
(By Pleader - D.V.Chandrashekar Reddy.)
V/s
Respondent/s 1.Munivenkatappa,
S/o Muniramappa,
Sonnehalli (V),
Chakarsanahalli,
Kolar,
PIN - 563 101.
(RC owner of auto rickshaw
bearing registration
No.KA-07/8880)
(By Pleader - Sri.N.Rajesh.)
(SCCH-15) 2 MVC.5924/2013
2.Cholamandalam MS General
Insurance Co.Ltd.,
No.135/5, 2nd Floor,
15th Cross, J.P.Nagar,
3rd Phase, Bengaluru - 78.
(Policy
No.3368/00340308/000/03
Valid from 23.09.2012 to
22.09.2013)
(By Pleader - Sri.Y.P.Venkatapathi.)
3.Sri.Ananda,
S/o Munivenkatappa,
R/at Sonnenahalli Village,
Chakarasanahalli post,
Kolar Taluk & Dist-563133.
(By Pleader - Sri.Balakrishna, B.J.)
JUDGMENT
Petitioner has filed the present petition under Section 166 of MV Act seeking grant of compensation on account of injuries he has sustained in RTA.
2. Initially this petition was assigned to the Hon'ble SCCH-10 and subsequently as per the Notification No.ADMI/419/2014, it is reassigned to this Tribunal for disposal in accordance with law.
3. The brief case of petitioner is that on 21.09.2013 at about 11:30 a.m., he was proceeding in an auto bearing registration No.KA-07/8880 along with others (SCCH-15) 3 MVC.5924/2013 which was being driven by its driver by name Srinath. When they came near Purahalli village, Vemgal hobli, Kolar Taluk, the auto driver drove the same in rash and negligent manner. Lost control over it, because of which, autorickshaw turtled down.
b) Consequent to which, petitioner along with other inmates suffered severe injuries. Accident took place solely due to the rash and negligent driving of the auto driver. Therefore, 1st respondent being the RC owner and 2nd respondent being the insurer of the auto are jointly and severally liable to pay the compensation. Hence, prayed to allow the petition as sought for.
4. In response to due service of notices, 1st respondent remained exparte. 2nd respondent has put its appearance through its counsel and filed its statement of objections denying the petition averments. However, it has admitted the policy and its force on the date of accident, but has contended that its liability if any is subject to the terms and conditions of the policy such as driving licence and vehicular documents. (SCCH-15) 4 MVC.5924/2013
b) It has also called the petitioner to put strict proof with regard to jurisdiction to entertain the present petition. It has also contended that the auto did not have valid permit to ply over the accident spot and thereby there is breach of policy conditions.
c) It has also contended that there were excess passengers in the auto. Because of which the accident took place. Thus the inmates of the auto have contributed negligence in occurrence of the accident. Accordingly, it is not liable to pay the compensation. Hence, prayed to dismiss the petition against it with costs.
5. On the above said pleadings of the parties, this Tribunal has framed the following issues.
1. Whether the petitioner proves that he has sustained injury due to RTA alleged to have been occurred on 21.09.2013 at about 11:30 a.m., near Purahalli village, Vemgal Hobli, Kolar Taluk due to the rash and negligent driving of the driver of the Autorickshaw bearing No.KA-07/8880? (SCCH-15) 5 MVC.5924/2013
2. Whether the petitioner is entitled for compensation? If so, what amount & from whom?
3. What order or award?
6. Since during the trial, it is found that due to over sight, no issue is framed with regard to the defence of 2nd respondent about the jurisdiction, the following additional issue is framed.
Whether this Tribunal has territorial jurisdiction to entertain the present petition?
7. To prove the above said issues and to substantiate their respective contentions, petitioner has entered into witness box as PW-1. Got examined the doctor who has given first aid in the casualty as PW-2; the SDA of CMC, Kolar to cause production of documents with regard to town limits of Kolar as PW-3 and his landlord as PW-4 to establish his residence at Bengaluru. Thus totally 4 witnesses examined and 23 documents exhibited for petitioner at Ex.P-1 to 16, 16A and 17 to 22.
b) Per contra, 2nd respondent got examined its Assistant Manager as RW-1; the SDA of RTO, Kolar as (SCCH-15) 6 MVC.5924/2013 RW-2 to cause production of permit. Got exhibited 5 documents as well as closed its side.
8. In the meanwhile on going through evidence on record, 2nd respondent got amended its written statement by pleading that place of accident situates at a distance of 16 kms from Kolar town and the auto had permit to ply only within Kolar and 10 kms radius from Kolar town limits and since place of accident situates out of the said limits, there is breach of policy conditions on permit.
9. Per contra, petitioner filed his rejoinder to the amended pleading of the 2nd respondent calling it to prove its defence with regard to territorial jurisdiction and also contending that place of accident situates within limits of 10 kms. radius from the municipal limits of Kolar and thereby it had valid permit.
10. Subsequently petitioner got impleaded 3rd respondent contending that 3rd respondent is the RC owner of the auto as on the date of accident and got amended his petition in that regard. Both 2nd and 3rd respondents have not at all disputed the said fact. Both of them have not filed any additional statement of (SCCH-15) 7 MVC.5924/2013 objections and statement of objections to the main petition respectively in that regard.
11. Heard arguments of both the sides on merits of the case and perused the record.
12. Now the findings of this Tribunal on the above said issues are answered in the;
1. Addl.Issue: Affirmative
2. Issue No.1: Affirmative.
3. Issue No.2: Petitioner is entitled for compensation amount of Rs.12,45,000/- together with interest at 8% p.a. on Rs.12,25,000/- (excluding future medical expense) from the date of petition till the realization in its entirety from 2nd respondent.
4. Issue No.3: As per final order for the following reasons.
REASONS
13. ADDL.ISSUE: Since this issue is about territorial jurisdiction and thereby the very jurisdiction of this Tribunal to entertain the present petition, this issue is taken first for consideration. There is no dispute between the parties with regard to the fact that 1st (SCCH-15) 8 MVC.5924/2013 respondent is the previous owner and 3rd respondent is the present owner of the auto.
14. It is stated in the cause title that 1st and 3rd respondents are residents of Sonenahalli, Kolar Taluk, Kolar. It is in the petition that petitioner is permanent resident of Sonenahalli village, Kolar Taluk. He has also pleaded that he is resident of Varthur of Bengaluru, the same is denied by 2nd respondent.
15. To establish his Bengaluru address, petitioner apart from his oral evidence has got adduced the oral evidence of landlord i.e. PW-4 who has deposed that petitioner is his tenant in a portion of property bearing No.93/5A, 2nd cross, Ramaswamy Layout, Arasalli road, Varthur, Bengaluru - 87, since 2011.
16. At this stage, he voluntarily deposed that in between during 2013, petitioner met with an accident, at that time he had been to his native place for around 3 months. He again voluntarily deposed that since the house let out to petitioner required alterations, they got vacated and after the necessary alterations, he is inducted as tenant.
(SCCH-15) 9 MVC.5924/2013
17. In the evidence of petitioner, he has also produced rent agreement at Ex.P-21 which is identified by PW-4 and he has also identified his signature at Ex.P- 21(a). If Ex.P-21 is gone through, it is there that PW-4 has entered into the lease agreement with the petitioner with regard to the residential premises bearing No.93/5A, 2nd cross, Ramaswamy Layout, Hallahalli Road, Varthur Bengaluru-87 i.e. 1st floor residential premises.
18. In the cross-examination of petitioner, it is elicited that he is residing in the ground floor. PW-4 in his cross-examination has deposed that due to oversight it is stated as 1st floor instead of ground floor. He has admitted the suggestion that he was present in the open Court at the time of cross-examination of petitioner in the morning session and he has given false explanation by hearing the cross-examination of petitioner by sitting in the open Court.
19. Of course the said suggestion is denied by PW-
4. Even for the sake of arguments it is accepted that PW- 4 heard the cross-examination of petitioner in the open court and gave false evidence. Then also, s far the as rest (SCCH-15) 10 MVC.5924/2013 of the evidence given by petitioner and PW-4 i.e., with regard to the fact that petitioner is tenant of PW-4, there is nothing on record to disbelieve their evidence.
20. 2nd respondent has not let in any independent evidence to establish its defence of territorial jurisdiction. Therefore, nothing is there to disbelieve the oral evidence of petitioner supported by PW-4 and the rent agreement at Ex.P-21. Therefore, petitioner has successfully established that even he is permanent resident of Sonenahalli of Kolar Taluk, he has been residing in Bengaluru. Accordingly, this issue is answered in the affirmative.
21. ISSUE No.1:- Even 2nd respondent has denied the petition averments in his statement of objections to the main petition, it has given much importance to the breach of policy conditions on driving licence and permit, particularly on permit. Even it has denied the entire petition averments, it has not all denied the involvement of the auto in the accident.
22. On the other hand, it is in its statement of objections that there were excess passengers in the auto (SCCH-15) 11 MVC.5924/2013 and thereby because of overload, the auto driver lost control over it and accident has taken place and the same is suggested to petitioner in his cross-examination.
23. Of course, the said suggestion is denied by petitioner. But it indicates that it appears that there is no dispute between the parties with regard to the alleged accident; the date, time and place of accident; vehicle/the auto involved in the accident and the fact that petitioner was the inmate of the auto at the time of accident. So, the only point now that remained for the due consideration of this Tribunal is on whose negligent act, the accident took place.
24. To establish that petitioner himself has entered into witness box as PW-1. He has filed his affidavit evidence wherein he has reiterated the petition averments. He has specifically deposed that the accident took place solely due to rash and negligent driving of the auto driver.
25. In his cross-examination, his chief evidence is denied by way of suggestions which are in turn denied by him. However, it is elicited in his cross-examination that (SCCH-15) 12 MVC.5924/2013 there were 3 inmates in the auto including him. One is Susheelamma and another one is a lady. He has denied that there were 6 passengers in the auto. He has also deposed that they were proceeding from Sonnenahalli towards Chinthamani. The distance between accident spot and Vemagal is 1½ km. He has denied the suggestion that the distance between Vemagal and Kolar is 30 k.m. At this stage, he voluntarily deposed that it is around 6 to 7 kms.
26. It is also in his cross-examination that owner of auto is one Munivenkatappa. He does not know the residence of Munivenkatappa. He has also stated that he does not know the name of the auto driver. There were no vehicles proceeding either ahead or behind the auto. He has denied the suggestion that since auto was overloaded, the driver lost control over the vehicle and accident took place.
27. To establish its defence, even 2nd respondent got examined its Assistant Manager as RW-1 and SDA of RTO, Kolar as RW-2. But it has concentrated with regard to violation of policy conditions on driving licence and (SCCH-15) 13 MVC.5924/2013 permit. There is no independent evidence let in by 2nd respondent about the rash and negligent act of whom resulted in the present accident i.e. the defence raised on its behalf in the course of cross-examination of petitioner i.e. the over load in the auto. At this stage, it is important to go through police papers wherein no allegation is made about over load. Therefore, 2nd respondent has failed to establish its defence in that regard.
28. Above all petitioner in support of his oral evidence has also produced documents i.e. police papers at Ex.P-1 to 5 respectively the true copies of FIR with complaint, spot mahazar, statement of witnesses, MV report and charge sheet. All the police papers categorically reveal that initially the jurisdictional police have registered criminal case against the auto driver for the offences punishable under Sections 279 and 337 of IPC and after investigation, they have charge sheeted auto driver for the offences alleged including the offence punishable under Section 338 of IPC.
29. Even, 2nd respondent has took up the defence that the accident is because of over load and thereby (SCCH-15) 14 MVC.5924/2013 negligent act on the part of inmates of the auto, it has not at all specifically cross-examined about the police papers which are in consonance with the case of petitioner and also there is no mention with regard to over load. Therefore, there is nothing on record to disbelieve the oral evidence of petitioner supported by police papers at Ex.P-1 to 5.
30. In addition, there is no presumption with regard to the police papers that they are prepared by the investigating officers while discharging their official duties in investigation of a crime. Of course the said presumption is rebuttal one. But, no such rebuttal evidence is let in by 2nd respondent.
31. Therefore, if the entire evidence on record is taken in a nut shell, preponderance of probabilities much tilts in favour of the case of petitioner than the defence raised on behalf of 2nd respondent. Accordingly, petitioner with his oral evidence coupled with police papers at Ex.P- 1 to 5 have successfully proved that accident took place because of the rash and negligent driving of auto driver. (SCCH-15) 15 MVC.5924/2013
32. So far the accidental injuries, 2nd respondent has not at all raised any objections. However, to establish that petitioner with his oral evidence has also produced the medical records such as, wound certificate, discharge summary, laboratory report, hospital and medical bills and MRI scan films respectively at Exs.P-6 to 10 in his initial chief evidence and in his further evidence he has produced ultra sound investigation with films, prescriptions, hospital and medical bills at Ex.P-11 to 13 respectively.
33. In his further evidence he has also produced colour photographs and CD at Ex.P-16 and 16(a). Once again he got recalled and produced hospital and medical bills, prescriptions and echo cardiogram report at Ex.P- 18 to 20.
34. In the evidence of PW-2/doctor who has given first aid treatment, petitioner got produced inpatient file and x-ray film respectively at Ex.P-14 and 15. All the above medical documents are in corroboration with each other and in consonance with the case of petitioner that he suffered injuries in the accident.
(SCCH-15) 16 MVC.5924/2013
35. Apart from that if the cross-examination done on behalf of 2nd respondent to the petitioner and the doctor is taken note off, even it has raised objections with regard to the nature of injuries, nature of treatment, quantum of disability and medical expenditure, it has not disputed the fact of petitioner suffering injuries in the accident.
36. Accordingly, petitioner with his oral evidence and the supportive oral evidence of PW-2, the medical records observed above as well as police papers, has successfully proved that he has suffered injuries in the present accident. Therefore, issue No.1 is answered in affirmative.
37. ISSUE No.2:- In view of answering issue No.1 in affirmative, petitioner is entitled for compensation. Now, in respect of quantum. It is the case of petitioner that he was aged 28 years; working as an agriculturist and vegetable vendor and had income of Rs.15,000/- per month. To establish that petitioner apart from the oral evidence has not produced any supportive documents. (SCCH-15) 17 MVC.5924/2013
38. However, in the charge sheet, it is stated that he was aged 28 years and working as labour and in the medical records, his age is shown as 28 years. There is no cross-examination by other side about the age of the petitioner. Of course, his avocation and income is disputed. Therefore, considering the police papers and the medical records, it is thought just and proper to take the age of petitioner at 28 years as pleaded for which the proper multiplier applicable is 17.
39. In view of no substantial evidence on record and the contradictory evidence with regard to nature of avocation, it is thought just and proper to take notional income of the petitioner at Rs.6,000/- p.m. considering his age and cost of living as on the date of accident.
40. It is the case of petitioner in the accident he has suffered blunt trauma abdomen and right clavicular fracture, abrasions over right L2 and other grievous injuries all over the body; took treatment in R.L.Jalappa hospital and in Bengaluru Baptist hospital as an inpatient from 21.09.2013 to 22.10.2013; still he is continuing follow up treatment; already incurred (SCCH-15) 18 MVC.5924/2013 expenditure of Rs.6,00,000/- and became permanently disabled because of accidental injuries.
41. Petitioner has reiterated the above petition averments in his affidavit evidence. In his cross- examination his chief evidence is denied by way of suggestions which are in turn denied by him. However, it is elicited that immediately after the accident he was shifted to R.L.Jalappa hospital and after regaining conscious, he came to know that one Manju had shifted him to hospital. He has also deposed that he was shifted to Bengaluru Baptist hospital and was inpatient there for a month.
42. PW-2/the doctor has filed his affidavit evidence wherein he has stated that on going through the records and the oral say of petitioner, he came to know that petitioner has suffered injuries in road traffic accident and was diagnosed for blunt trauma abdomen and right clavicle fracture displaced fracture 2nd lift Rif left transverse prosser of L1 and L2 at liver lacention, injury to right ear pinna.
(SCCH-15) 19 MVC.5924/2013
43. It is also in his affidavit evidence that petitioner was treated surgically in the form of exploratory laparotomy with suture of Liver laceration and transfused 7 units of packed cells 4 units platelets and 16 fresh frozen plasma and was discharged on 22.10.2013.
44. It is also in his affidavit evidence that on 24.12.2014 he has examined the petitioner for assessment of disability and found that petitioner is having grievous pains and ugly surgical scar over abdomen and on right shoulder; low back pain and cannot lift heavy articles and work like before and thus petitioner is having permanent physical impairment to the lower back at 30%.
45. He has produced inpatient file and x-ray films respectively at Ex.P-14 and 15. In his cross-examination it is elicited that he is working as visiting medical officer in Bhagawan Mahaveer Jain hospital and Manipal hospital also. He is a MBBS graduate. He has got prepared his affidavit evidence.
46. It is also in his cross-examination that the injuries he has referred in his affidavit evidence are the (SCCH-15) 20 MVC.5924/2013 injuries to be treated by general surgeon, orthopedic surgeon, thorasic surgeon and neurosurgeon. He is not of any of the above. He is not the treated doctor. He has prepared his affidavit evidence basing on the discharge summary. At this stage, he voluntarily deposed that he has clinically examined the petitioner as well.
47. He has admitted the suggestion that he has commented on pain and scars on the complaints of petitioner. He has admitted the suggestion that he has commented about those complaints in first half of para No.5 in his affidavit evidence.
48. A question is posed to him that who is competent person to assess the disability with regard to L1 and L2, for which he has deposed that it can be assessed by him as well as neurosurgeon surgeon also. Basing on that, one more question is posed to him to the effect that, what are the prescribed tests to assess the disability with regard to pain, scars L1 and L2 fracture, for which he has deposed that, petitioner cannot lift weight as before. He has admitted the suggestion that he has not stated the grade of pain.
(SCCH-15) 21 MVC.5924/2013
49. Based on the above observations, it is questioned that then, how he has assessed the disability at 30%, for which he has stated that petitioner cannot lift more weight. He has admitted the suggestion that he has not given the calculation with regard to the assessment of disability, he has arrived at.
50. But he has denied the suggestion that without any clinical examination, radiological examination and competency as well as without following the guidelines, he has stated the disability. It is also in his cross- examination that he has not taken any opinion or report from any of the surgeons before assessing the disability. He has also deposed that he has stated only physical impairment and not the functional disability.
51. If the documents produced by petitioner are taken note off, Ex.P-6 is the wound certificate issued by R.L.Jalappa hospital which reveals that petitioner was admitted to their hospital on 21.09.2013 at about 11:45 a.m. with the history of road traffic accident on the very day. It is also there that petitioner was diagnosed for communited fracture of right mid clavicle, displaced (SCCH-15) 22 MVC.5924/2013 fracture of right 2nd rib and contusion or laceration or an infarct related to right renal artery which is grievous in nature.
52. Ex.P-7 is discharge summary of Bengaluru Baptist hospital which reveals that petitioner was admitted on 22.09.2013 and was discharged on 22.10.2013; was diagnosed for blunt trauma abdomen and right clavicular fracture; was treated surgically in the form of exploratory laparotomy under general anesthesia on 22.09.2013 and was discharged in stable condition.
53. Ex.P-10 is MRI scan films; Ex.P-11 is ultra sound investigation with films; Ex.P-12 is prescriptions and Ex.P-14 is inpatient file of Bengaluru Baptist hospital. The contents therein are in corroboration with the contents of Ex.P-6 and 7 noted above. Ex.P-15 is x- ray films.
54. All the above medical documents are in corroboration with each other and with the oral evidence of PW-2 observed above. Ex.P-16 is colour photographs of the petitioner which shows surgical scars on the abdomen and both shoulders. All these medical records (SCCH-15) 23 MVC.5924/2013 are in corroboration with each other and with the oral evidence of petitioner.
55. So if the entire evidence is taken in a nut shell, it can be safely held that in the accident petitioner has suffered blunt trauma abdomen and right clavicular fracture; was treated surgically; was inpatient for a period of 31 days; has ugly surgical scar on abdomen and both shoulders and was on regular follow up.
56. To prove the medical expenditure, petitioner with his oral evidence has produced Ex.P-9, the hospital and medical bills with regard to initial treatment including inpatient period, totally 82 in nos. amounting to Rs.7,14,060/-. Subsequently, in his further evidence, he has also produced hospital and medical bills at Ex.P- 13, 15 in numbers amounting to Rs.5,887/-.
57. Thereafter, he has also produced Ex.P-18, the hospital and medical bills, 6 in numbers amounting to Rs.3,406/-. The bills at Ex.P-13 and 18 are with regard to follow up treatment. All the said bills are in the name of petitioner and they are computerized bills with paid seals and they are all original bills.
(SCCH-15) 24 MVC.5924/2013
58. There is no mention of corporate bill in the inpatient bill of Baptist hospital. Therefore, it appears that entire medical expenditure is borne by petitioner. Moreover, if the nature of injuries suffered, the nature of treatment, inpatient period, the hospitals wherein petitioner took treatment are private hospitals are taken note off, there is nothing on record to disbelieve the said medical expenditure. Accordingly, petitioner is entitled for medical expenses at Ex.P-9, 13 and 18 series, totally amounting to Rs.7,23,353/- rounded off to Rs.7,25,000/-.
59. It is in the evidence of PW-2 that petitioner is having disability because of fracture at 30%. It is in his cross-examination that there is no concept of whole body disability in case of spinal fracture and it is only pertains to the limbs. Nothing has been produced by other side to disprove the said evidence of PW-2.
60. However, considering the nature of injuries and the evidence of PW-2 that he has not taken the opinion of surgeon of the particular field, it is thought just and proper to take disability at 20% for calculation of loss of (SCCH-15) 25 MVC.5924/2013 future earning, loss of amenities and comfort as well as permanent physical impairment.
61. Considering the surgical ugly scars on abdomen and both shoulders, it is thought just and proper to award reasonable compensation in that regard. In the result, petitioner is entitled for compensation under the heads mentioned below and the amount stated against them.
Pain and Sufferings Rs. 40,000/-
Loss of income during laid up Rs. 40,000/-
period, Diet, Nourishment and etc.
Attendant charges, Conveyance, Rs. 40,000/-
other Incidental Charges and etc.
Medical Expenditure Rs.7,25,000/-
Future Medical Expenditure Rs. 20,000/-
Loss of Future Income Rs.2,44,800/-
(6,000 x 12 x 20/100 x 17)
Loss of Amenities and Comfort Rs. 60,000/-
Permanent Physical Impairment Rs. 75,000/-
Total: Rs.12,44,800/-
rounded off to Rs.12,45,000/-.
62. Considering the cost of living on the date of accident, it is thought fit to award interest at 8% p.a. from the date of petition till realization of the compensation amount in its entirety.
(SCCH-15) 26 MVC.5924/2013
63. Now, in respect of liability. There is no dispute between the parties with regard to the fact that 1st respondent is the previous RC owner, 3rd respondent is the present owner and 2nd respondent is the insurer of the auto. Of course, 1st respondent remained exparte. 3rd respondent even put his appearance through his counsel, he has not filed any statement of objections and contested the matter.
64. However, 2nd respondent has admitted the policy and its force as on the date of accident, but has contended that its liability if any is subject to the terms and conditions of the policy such as driving licence and vehicular documents. It has specifically contended that the auto driver did not possess valid and effective driving licence to drive class of vehicle involved in the accident at the time of accident.
65. It has also contended that they was over load of passengers in the auto. One more defence raised on behalf of 2nd respondent is that auto did not have valid permit to ply over the accident spot and therefore, there is breach of policy conditions.
(SCCH-15) 27 MVC.5924/2013
66. To establish its defence on breach of policy conditions, 2nd respondent got examined its Assistant Manager as RW-1 who has filed his affidavit evidence wherein he has stated that driver was authorized to drive only transport three wheeler autorickshaw and not transport autorickshaw with effect from 05.04.2010.
67. It is also in his affidavit evidence that as per driving licence extract issued by RTO, the expiry date of the said driving licence for transport vehicle would be 03.04.2013 and the said licence for transport vehicle since has been stated as valid till 29.10.2015, date of renewal date is 30.10.2013. Thus as on the date of accident i.e., on 21.09.2013 there was no licence to accused driver to drive the transport vehicle, including the three wheeler transport auto.
68. He has also deposed that since 1st respondent is the RC owner had entrusted knowingly and consciously the auto to the driver who had no valid and effective driving licence and therefore, there is breach of policy conditions.
(SCCH-15) 28 MVC.5924/2013
69. But 2nd respondent even got examined SDA in the office of RTO, Kolar, got produced only true copy of permit pertains to auto and not the driving licence particulars. In the evidence of RW1 also it has produced only the certified copy of Form No.42 i.e. permit. It has not produced any document to establish its defence that too oral evidence of RW-1 observed above with regard to the driving licence.
70. On the other hand, if the evidence on record is taken note off, as per Ex.P-5, the charge sheet, there is no allegation about driving licence. Therefore, 2nd respondent has failed to establish its defence on breach of policy conditions with regard to driving licence.
71. So far the other defence that auto was overloaded i.e. excess passengers in the auto at the time of accident. As observed above, it has not at all let in any evidence in that regard and there is also no allegation in the charge sheet at Ex.P-5 about excess passenger in the auto at the time of accident. Therefore, 2nd respondent has also failed to establish the said defence.
(SCCH-15) 29 MVC.5924/2013
72. So far the defence raised on behalf of 2nd respondent about permit of the auto to ply over the accident spot at the time of accident, as observed above with the oral evidence of RW-1 its Assistant Manager, 2nd respondent has got examined SDA in the office of RTO, Kolar and got produced certified copy of the permit at Ex.R-5.
73. If Ex.R-3 and 5 i.e. the permit are taken note off, admittedly the auto had permit as on the date of accident to ply within the limits of Kolar town and 10 kms. radius from the town limit of Kolar.
74. So, to prove the breach of policy conditions on permit, 2nd respondent is required to establish that place of accident is beyond the town limits of Kolar and 10 kms radius from the Kolar town limits. Of course, there is no dispute between the parties with regard to the fact that place of accident is out of town limits of Kolar.
75. So, the only point that remained for consideration is whether the place of accident is beyond 10 kms radius or within 10 kms. radius from the Kolar town limits. With regard to that, it is in the evidence of PW-3 that SDA, (SCCH-15) 30 MVC.5924/2013 CMC, Kolar that Purahalli village of Vemagal Hobli of Kolar Taluk does not fall within the limits of CMC. Arahalli and Sangondahalli villages come within the limits of their CMC and they are situated on Kolar to Vemagal road and both the said villages come within 8 kms from Kolar. Purahalli situates around 10 kms from Kolar town.
76. It is in his cross-examination that Vemagal village situates at a distance of 8 kms. The said village also does not come within the limits of their CMC. He has denied the suggestion that the distance between Vemagal and Kolar town is around 16 kms. He does not know the distance between Purahalli and Vemagal. But Purahalli situates after Vemagal.
77. On the other hand, it is in the evidence of RW-2, the SDA of the office of RTO, Kolar that as per Ex.P-5 there is no permit for the auto to ply over Purahalli village, Vemagal Hobli, Kolar Taluk. However, he has admitted in his cross-examination that as per Ex.P.5, the vehicle has permit to ply within the town limits of Kolar (SCCH-15) 31 MVC.5924/2013 town and 10 kms. radius from the municipal limits of Kolar i.e. 10 kms. extra from the town limits of Kolar.
78. He has also deposed that he does not know the Kolar Town limits on Vemagal road. But he has admitted the suggestion that the town limits comes within the jurisdiction of Municipality and not the RTO. The distance between Kolar town to Arahalli is around 6 to 7 kms. He does not know if it is suggested that the distance between Arahalli and Purahalli is around 2 kms. He has denied the suggestion that the accident spot comes within 10 kms radius from Kolar town. However, to a court question he has deposed that he knows Purahalli since it is within their limits, it is around 13 kms. from Kolar.
79. But admittedly it is in the police papers i.e. FIR at Ex.P-1 that the accident spot situates at a distance of 3 kms. towards north to the police station. It is in the spot mahazar at Ex.P-2 that near the accident spot there is mile stone which shows that Kolar is at a distance of 6 kms. and Vemagal is at a distance of 2 kms. (SCCH-15) 32 MVC.5924/2013
80. PW-3 has produced Ex.P-17, the true copy of gazette notification with regard to town limits of Kolar town wherein it is stated that towards north of the Kolar town there is Sangondahalli of Kolar Kasaba Hobli. As observed above it is in the evidence of PW-3 that Arahalli and Sangondahalli are situated on Kolar to Vemagal road and they are within the limits of their CMC.
81. It is in the FIR as observed above that accident spot situates at 3 kms. from their station. It is there in Ex.P-2/spot mahazar that Vemagal is at a distance of 2 kms. and Kolar is at a distance of 16 kms. from the accident spot. It is in the evidence of PW-3 as observed above that Purahalli village situates at a distance of 16 kms. from Kolar town and Vemagal situates at a distance of 8 kms. But as observed above, it is 16 kms. as per police papers. However, he has specifically deposed that Purahalli situates after Vemagal.
82. If the police papers are taken into consideration, it appears that evidence of PW-3 is correct since from the accident spot Vemagal is at a distance of 2 kms. and Kolar is at a distance of 16 kms. Therefore, it appears (SCCH-15) 33 MVC.5924/2013 that distance between Kolar and Vemagal is 14 kms. as per police papers.
83. Based on the police papers, it is suggested on behalf of 2nd respondent to PW-3 that distance between Vemagal and Kolar is around 16 kms. from the accident, but from the accident to Kolar is 16 kms. Therefore, since it is in the police papers that accident spot situates towards northern side of Vemagal village, it can be safely held that the distance between Kolar to Vemagal is 14 kms.
84. As observed above, it is in the evidence of PW-3 that Sangondahalli comes within town limits of CMC. As observed, it is in Ex.P-17, the gazette notification that the town limits of Kolar is extended starting from 77, 78, 14, 16, 17, 87, 18, 19, 22, 40 of Sangondahalli runs upto tank bed of Kodikannur tank along with survey numbers 219, 220, 221 of Kodikannur village. So evidence of PW-3 is supported by Ex.P-17 that angondahalli which situates towards northern side of Kolar towards Vemagal village falls within the limits of Kolar town.
(SCCH-15) 34 MVC.5924/2013
85. Of course, there is no specific evidence on record to show the distance between the Sangondahalli and Kolar. However, PW-3 has specifically deposed that Sangondahalli and Arahalli comes within 8 kms. from Kolar town which is not disputed by 2nd respondent. So, the accident spot as observed above situates at a distance of 16 kms. from Kolar. As per evidence of PW-3 Sangondahalli comes within 8 kms. from Kolar.
86. Therefore, it can be safely held that the distance from Sangondahalli towards accident spot appears to be within 8 kms. i.e. within 10 kms. radius from the Kolar town limits including the area of Sangondanahalli. Therefore, as per evidence on record it is clear that the accident spot falls within 10 kms. radius from Kolar town thereby the auto had permit to ply over the accident spot.
87. Accordingly, the defence raised on behalf of 2nd respondent about the breach of policy conditions of permit holds no water. Therefore, 1st respondent being previous RC owner and 3rd respondent being present owner of the auto are liable to pay the compensation and (SCCH-15) 35 MVC.5924/2013 2nd respondent being the insurer is liable to indemnify the said liability.
88. So, petitioner is entitled for compensation of Rs.12,45,000/- together with interest at 8% p.a. on Rs.12,25,000/- (excluding future medical expense) from the date of petition till the realization of the compensation in its entirety from 2nd respondent. Issue No.2 is answered accordingly.
89. ISSUE No.3:- From the above discussions, this Tribunal proceeds to pass the following order.
ORDER The present petition filed by the petitioner under Section 166 of MV Act is hereby allowed in part with costs.
In the result, petitioner is entitled for compensation amount of Rs.12,45,000/- together with interest @ 8% p.a. on Rs.12,25,000/- (excluding future medical expense) from the date of petition till the realization in its entirety from 2nd respondent.
2nd respondent shall deposit the compensation amount together with interest and cost within 30 days from today.
On deposit of compensation amount petitioner shall deposit Rs.2,00,000/- in Karnataka Bank, City Civil Court Branch, (SCCH-15) 36 MVC.5924/2013 Bengaluru for a period of 5 years and the remaining compensation amount together with interest and cost is ordered to be released in favour of the petitioner through an account payee cheque without awaiting further orders.
Advocate fee is fixed at Rs.2,000/-.
Draw a decree accordingly.
(Dictated to the stenographer, transcribed by him, corrected and then pronounced in the open Court by me on this the 26th day of October, 2015.) (K.KATYAYINI), XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PETITIONER:
PW1: Manjunath PW2: Dr.P.N.Prakash PW3: Naveen S.D. PW4: M.Narayanaswamy
LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENTS:
RW1: G.Suresh RW2: B.A.Dayanandsagar LIST OF DOCUMENTS EXHIBITED ON BEHALF OF PETITIONER:
Ex.P1 : True copy of FIR with Complaint, Ex.P2 : True copy of spot mahazar, Ex.P3 : True copy of statements of witnesses (3 in nos.), Ex.P4 : True copy of IMV report, (SCCH-15) 37 MVC.5924/2013 Ex.P5 : True copy of charge sheet, Ex.P6 : True copy of wound certificate, Ex.P7 : Discharge summary, Ex.P8 : Laboratory report. Ex.P9 : Hospital and medical bills (82 in nos.) amounting to Rs.7,14,060/-, Ex.P10 : MRI scan films (9 in nos.).
Ex.P11 : Ultra sound investigation with films,
Ex.P12 : Prescriptions (8 in nos.),
Ex.P13 : Hospital and medical bills (15 in nos.) amounting
to Rs.5,887/-.
Ex.P14 Inpatient file
Ex.P15 X-ray film
Ex.P16 Colour photographs 3 in nos.,
Ex.P16(a) CD.
Ex.P16A: Authorization Letter
Ex.P17 : True copy of notification No.HUD 464 MLR 95
dtd.12.10.1995.
Ex.P18 : Hospital and medical bills (6 in nos.) amounting
to Rs.3,406/-,
Ex.P19 : Prescriptions (6 in nos.),
Ex.P20 : Echocardiogram report,
Ex.P21 : Original rent agreement.
Ex.P.22: Original TC
LIST OF DOCUMENTS EXHIBITED ON BEHALF OF RESPONDENTS:
Ex.R1 : Authorisation letter, Ex.R2 : True copy of policy, Ex.R3 : Certified copy of form No.42/permit. Ex.R4 : Authorization letter, Ex.R5 : True copy of permit of the vehicle bearing No.KA-07-8880 in the name of Munivenkatappa S/o Muniramappa of Sonnenahalli of Kolar taluk.
(K.KATYAYINI), XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.