Bangalore District Court
Master.Kushal vs Sri. Pramod N on 6 January, 2022
KABC020119712017
BEFORE THE COURT OF VIII ADDITIONAL SMALL
CAUSES JUDGE AND THE MOTOR ACCIDENT
CLAIMS TRIBUNAL (SCCH5) AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY, 2022
PRESENT: SRI. KUMARA.S. B.A., LLB.,
VIII ADDL. SCJ & ACMM,
MEMBER - MACT,
BENGALURU.
M.V.C No.6541/2017
PETITIONER : Master.Kushal
S/o. Deveppa
Aged about 16 years
No.12, 3rd Main Road,
11th Cross, Maruthinagar,
Vrushabavathinagar,
Kamakshipalya,
Bengaluru - 560 079.
Rep. by minor guardian his father
Sri.Deveppa
(By Sri.Nagendra Kumar, Adv..)
V/s
2 MVC No.6541/2017
SCCH 5
RESPONDENTS : 1. Sri. Pramod N.
S/o. Nagaraju D.
Aged about 25 years
No.1833, Vijayanagar,
R.P.C.Layout, 12th Cross,
5th Main Road,
Bengaluru - 560 040.
(By Sri.B.S.Gnanaprakash, Adv.,)
2. ICICI Lombard Insurance
The Estate, 121,
Dickenson Road,
M.G.Road,
Shivachetti Gardens,
Bengaluru - 560 042.
(By Sri.A.N.Hegde, Adv.,)
3. ICICI Lombard Insurance
No.414, Veer Savarkar Marg,
Near Siddivinayaka Temple,
Prabhadevi Mumbai.
(By Sri.A.N.Hedge, Adv.,)
****
::JUDGMENT::
This is a petition is filed by the Petitioner under Sec.163(A) of M.V.Act against Respondents for seeking 3 MVC No.6541/2017 SCCH 5 compensation on account of the grievous injuries sustained by him in the Motor Vehicle Accident.
2. The brief facts of case of the Petitioner is that:
On 19.03.2016 around 7.00 p.m., one Prasanna was driving Two Wheeler Honda Activa bearing Reg.No.KA02JF3322 and minor son of the Petitioner was pillion rider and they are going towards Vatal Nagaraj Road from Hunsemara Circle, Bengaluru City with high speed, rash and negligent manner and when they reached infront of Service Road of Shoba Developers, immediately applied break presuming that it could hit to the other vehicles, as a result of which, vehicle got skid and fallen on the road, at that time, the Petitioner who is the pillion rider fall on the road and sustained grievous injuries and he was shifted to Suguna Hospital and then shifted to Multispeciality Hospital at 4 MVC No.6541/2017 SCCH 5 K.H.B. Colony, Nandini Layout, Bengaluru and was admitted as inpatient for 29 days and Petitioner lost his one year carrier as he could not attend the classes in second P.U.C. and at the time of the accident, the Petitioner was minor and working as daily wages in Mangalore Chemicals and was earning a sum of Rs.10,000/ p.m. Due to the accident, the Petitioner has lost his last finger of the left leg permanently and pain and sufferings and hence, prays for award compensation of Rs.12,30,000/ with interest and costs.
3. In pursuance of service of notice, the Respondents have appeared before the Tribunal through their respective counsels and filed their written statement.
4. The Respondent No.1 in his written statement has denied entire case of the Petitioner and denied 5 MVC No.6541/2017 SCCH 5 alleged accident, involvement of the vehicle, age, income and occupation, medical expenses of the Petitioner and contended that, the compensation claimed by the Petitioner is exorbitant and admitted that, he is the Registered Certificate Owner of Honda Activa bearing Reg.No.KA02JF3322 and all the documents are standing in his name and said vehicle in insured with the 2nd Respondent under Insurance Policy No.3005/2010775416/00/0000021634 valid from 16.10.2015 to 15.10.2016 and if at all the Petitioner is entitled for any compensation, the same has to be paid by the Respondent No.2 Insurance Company, as the vehicle was insured with the Respondent No.2 and hence, Respondent No.1 is not liable to pay compensation to the Petitioner. Hence, pray for dismiss the petition against this Respondent with costs. 6 MVC No.6541/2017
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5. The Respondents No.2 and 3 have filed their written statement and also denied the entire case of the Petitioner, denied alleged accident, issuance of policy in favour of offending vehicle and contended that, the accident occurred on 19.03.2016 and Police complaint is seem to have been filed on 11.07.2016, the delay of complaint was more than 4 months and excuse given in the said complaint cannot be believed and the delay would give rise to creates doubt about the accident and further contended that, as per the petition, the claimant was proceeding as a pillion rider in Two Wheeler, one Prasanna was riding the said vehicle and the said vehicle was skidded and both are fall on the road. Due to this reason, the claimant was sustained injuries, But, as per MLC Extract from the Suguna Hospital "Alleged H/o RTA, patient travelling with friend in two wheeler, he and his 7 MVC No.6541/2017 SCCH 5 friends hit and run by BMTC. H/o. around 7 p.m. on 19.03.2016 and said BMTC was not made as party to the proceedings and this fact has not been disclosed in the complaint and misrepresentation of facts was submitted before the Court for getting compensation and further contended that, the Police have filed charge sheet against Prasanna under Sec.279, 338 of IPC and also 3(1) Read with Sec.181 of M.V.Act and under Sec.5 R/w. Sec.180 of M.V.Act against the owner of the vehicle, Sec.187 and 192(A) of M.V.Act. The owner of the vehicle knowing fully of not holding driving license to drive the Two Wheeler, he gave the vehicle to Mr.Prasanna and said Prasanna was not having driving license to drive the offending vehicle and Police have filed charge sheet against them and in the absence of valid and effective driving license, this Respondent is not liable and as per 8 MVC No.6541/2017 SCCH 5 the complaint, the owner of the vehicle has paid Rs.35,000/ to the claimant. The compensation claimed by the Petitioner is exorbitant and excessive and hence, pray for dismiss the petition against this Respondents.
6. On the basis of the above pleadings, my learned predecessor has framed the following:
::ISSUES::
1. Whether Petitioner proves that, on 19.03.2016 at about 7.00 p.m. while he was proceeding as a pillion rider on Honda Activa bearing Reg.No. KA02JF3322, when he reached in front of the Service Road Junction of Shoba Developers, at that time, a rider of the above said vehicle suddenly applied brake, as a result of which, Petitioner fell down and he sustained grievous injuries, as mentioned in claim petition?
2. Whether the Petitioner is entitled for compensation as prayed in the 9 MVC No.6541/2017 SCCH 5 petition? If so, from which Respondent?
3. What order or award?
7. At the initial stage, the Petitioner was being a minor, his father is examined as PW1. But, during the course of trial, the Petitioner has attained age of majority and hence, chiefevidence of PW1 is discarded and Petitioner himself is examined as PW2, one witness is examined as PW3 and got marked 18 documents as Ex.P.1 to Ex.P.18 and closed is side evidence. On behalf of Respondent No.2 and 3, Orthopaedic Surgeon, Suguna Hospital is examined as RW1 and on behalf Insurance Company, its Legal Manager is examined as RW2 and Respondent No.1 himself is examined as RW3 and Respondent No.2 got marked 3 documents as Ex.R.1 to Ex.R.3 and closed their side evidence. 10 MVC No.6541/2017
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8. I have heard the arguments advanced by the learned counsel for the Petitioner and the Respondents and perused the records
9. My findings on the above Issues are as follows:
Issue No.1 : In the Affirmative
Issue No.2 : Partly in the Affirmative
Issue No.3 : As per final order for the
following:
::REASONS::
10. Issue No.1: The Petitioner inorder to prove his case, he himself examined as PW2 and in his chief examination evidence, he has reiterated petition averments. Though he has been elaborately cross examined by the Respondent No.2 and 3 counsel, but nothing is brought on record to disbelieve the evidence of PW2, the Petitioner. In the crossexamination he clearly 11 MVC No.6541/2017 SCCH 5 stated that, as on the date of accident, he was pillion rider and one Prasanna was riding the Motor Cycle and due to the sudden apply of brake by the rider, the Motor Cycle was skidded and pillion rider was fallen on the road and sustained injuries. This part of evidence is not shaken in the course of crossexamination and further he has stated that, nearly 29 days he was admitted in Raksha Hospital as inpatient and also denied to the suggestion that, offending Motor Cycle was not involved in any accident.
11. PW3 is a Doctor, who treated the Petitioner has stated that, the Petitioner has sustained injury to both lower limbs left leg degloving injury, navicular fracture right dorsum foot and ankle degloving injury with fracture of base of 5th toe and he has assessed total left leg disability at 32% and right leg disability at 22% 12 MVC No.6541/2017 SCCH 5 both lower limb for disability at 45%. Though he has been elaborately crossexamined by the Respondents counsel, but nothing is brought on record to show that, the Petitioner has not sustained any injuries in the Motor Vehicle Accident. In the crossexamination he admits that, the Petitioner has not sustained any fractures and he has not given any treatment for fractures and he has given treatment only for loss of skin and in the cross examination he stated that, he has not assessed whole body disability, but as per his knowledge, 23% disability will be calculated for the whole body.
12. Apart from the oral evidence, the Petitioner has got marked 18 documents as Ex.P.1 to Ex.P.18. Ex.P.1 is copy of Complaint filed by the father of the Petitioner stating that, his son was met with an accident on 19.03.2016, while he was travelling as pillion of the 13 MVC No.6541/2017 SCCH 5 Motor Cycle and one Prasanna was rider and his son was sustained grievous injuries and later he was admitted to Suguna Hospital and then he was admitted his son to Raksha Hospital as inpatient for 29 days and further stated that, the said Prasanna has paid Rs.35,000/ towards medical expenses and has stated that, he will pay entire medical expenses incurred by the Petitioner and after discharge from the hospital, he asked the said Prasanna to reimburse the said medical expenses, for that, the said Prasanna was refused to pay the medical expenses. Therefore, there is no other option except to approach Police and filed complaint on 11.07.2016. It clearly goes to show that, there is sufficient reason assigned for delay in lodging the complaint, since, the Petitioner and his father are at the hospital for 29 days and even owner of the vehicle was promised to reimburse 14 MVC No.6541/2017 SCCH 5 the medical expenses and later refused to reimburse the medical expenses, hence, he has lodged the complaint. Further, copy of FIR discloses that, the Police have registering the case against the Motor Cycle rider for causing accident and injuries to the Petitioner. Ex.P.2 is copy of Charge Sheet, which was also filed against the rider of the Motor Cycle, Prasanna. Ex.P.3 is copy of Hand Sketch Map pertaining to the accident spot. Ex.P.4 is copy of Spot Panchanama. Ex.P.5 is copy of IMV Report, but no damages was found on the said Motor Cycle. Ex.P.6 is copy of Wound Certificate issued by Suguna Hospital pertaining to the Petitioner, it shows that, the Petitioner has sustained degloving injury of both right and left foot and ankle, the said injuries is grievous in nature. Ex.P.7 is Laboratory Report of the Petitioner. Ex.P.8 are the Medical Bills amounting to Rs.1,21,969/. 15 MVC No.6541/2017
SCCH 5 Ex.P.9 is Discharge Summary issued by Raksha Multispeciality Hospital, which shows that, the Petitioner was admitted in the said hospital on 19.03.2016 and was discharged on 17.04.2016, it shows that, the Petitioner was admitted in the said hospital due to accidental injuries for treatment for nearly 29 days. Ex.P.10 is O.T.Replacement Slip of the Petitioner. Ex.P.11 and 12 are Photographs and CD of the injured part of leg of the Petitioner, it shows that, the Petitioner has sustained degloving injury to his left foot and ankle and appears to be grievous in nature. Ex.P.13 is attested true copy of the Election ID Card of the father of the Petitioner. Ex.P.14 is attested true copy of the Aadhar Card of father of the Petitioner. Ex.P.15 is attested true copy of the Aadhar Card of the Petitioner himself. Ex.P.16 is OPD Slip of Victoria Hospital. Ex.P.17 is Discharge Summary issued 16 MVC No.6541/2017 SCCH 5 by Raksha Multispeciality Hospital, it shows that, Petitioner was admitted in the said hospital for 29 days for accidental injuries. Ex.P.18 are Xray Films.
13. Further, to disprove the case of the Petitioner, the Respondents have examined 3 witnesses as RW1 to RW3. RW1 is Dr.Nagaraj, who has produced MLC Extract and copy of Police Intimation from Suguna Hospital, which are marked as Ex.R.1 and Ex.R.2. In his evidence he has stated that, MLC Extract was written by Dr.Suraj who is still working in the hospital and he has written as per the say of the patient or his attendants and as per patient say, the history of the accident mentioned in MLC "alleged history of RTA, patient travelling with friend riding in two wheeler behind his friend hit and run by BMTC, history of BMTC tyres run over both foot". But, in the crossexamination by the 17 MVC No.6541/2017 SCCH 5 Petitioner counsel, he has stated that, as per Ex.R.1, the Petitioner has not given any history of accident and in this case, there is no crush injury for both legs. But, his evidence is not helpful to the case of the Respondents, since, the claim of the petition filed under Sec.163(A) of M.V.Act and not under Sec.166 of the M.V.Act.
14. Further, the Legal Manager of the Respondent Insurance Company is examined as RW2 and in his chiefexamination evidence, he has reiterated the written statement averments and produced copy of Policy, which is marked as Ex.R.3 and also admits that, as on the date of accident, one Prasanna was riding the Motor Cycle and he has not personally verified through his Company whether the said rider had a driving license.
15. RW3, is Respondent No.1 and he has reiterated the written statement averments and in his 18 MVC No.6541/2017 SCCH 5 chiefexamination evidence and in the crossexamination by the Petitioner counsel, he admits that, the Police have filed charge sheet against his brother, Prasanna, who is the rider of the Motor Cycle and also admits that, the Police have also filed charge sheet against him as Accused No.2 and he does not know whether Prasanna had a driving license and also admits that, the Police have filed charge sheet against him for entrusting the vehicle to the rider, who had not possessed driving license and he has also stated that, he has not lodged any complaint for false implication of the Motor Cycle and has not produced any documents to show that, his Motor Cycle was not involved in the accident.
16. Further, on behalf of Respondents, 3 documents have been marked as Ex.R.1 to Ex.R.3. Ex.R. 1 and Ex.R.2 are the copy of MLC Extract and 19 MVC No.6541/2017 SCCH 5 Police Intimation. Nodoubt, in Ex.R.1 it is mentioned that, 'alleged H/o. RTA, patient travelling with friend riding in two wheeler behind his friend, hit and run by BMTC, h/o. BMTC tyres run over both foot'. Though, the hospital authorities have written the said fact in their MLC Extracts, but the Respondents have not proved the said writing in the MLC Extract. As RW1 admits that, the injured Petitioner has not given any details regarding the history of the accident and further the Police intimation at Ex.R.2, discloses that, as on the date of accident itself, the hospital authorities have intimated the fact of the accident to the nearest jurisdictional Police. Ex.R.3 is copy of Policy Schedule of the Motor Cycle and the said Policy is Two Wheeler Vehicles Package Policy valid from 16.10.2015 to 15.10.2016. The alleged accident was occurred on 19.03.2016. Hence, as 20 MVC No.6541/2017 SCCH 5 on the date of accident, the Insurance Policy of the offending Motor Cycle was valid and is in force.
17. On going through above oral and documentary evidence produced by the Petitioner, it clearly appears that, on 19.03.2016 at about 7.00 p.m. while Petitioner was proceeding as a pillion rider on Honda Activa bearing Reg.No.KA02JF3322, when he reached in front of the Service Road Junction of Shobha Developers, at that time, a rider of the said vehicle suddenly applied brake, as a result of which, Petitioner fell down and sustained grievous injuries, as mentioned in claim petition. Hence, the Petitioner has proved Issue No.1. Accordingly, Issue No.1 is answered in the affirmative.
18. Issue No.2: This issue is related to the entitlement of the compensation on account of the grievous injuries sustained by the Petitioner in Motor 21 MVC No.6541/2017 SCCH 5 Vehicle Accident. The Petitioner in his pleadings and in his evidence has stated that, he has sustained grievous injuries in the Motor Vehicle Accident and has spent Rs.3,80,000/ towards medical expenses and as on the date of accident, he was minor aged about 16 years and due to the accidental injuries, he has lost one year class of II PUC and also stated that, he was working as daily wages at Mangalore Chemicals and earning Rs.10,000/ p.m. It is the duty of the Petitioner to prove his age, avocation and income. As per the Police and medical records, it appears that, the Petitioner was minor aged about 16 years as on the date of accident, but he has not produced any documents regarding his age proof. Since, this claim petition is filed under Sec.163(A) of M.V.Act, the annual income is restricted to Rs.40,000/ per annum. Though, the Petitioner has claimed that, he 22 MVC No.6541/2017 SCCH 5 was earning Rs.10,000/ p.m. but the said fact cannot be considered as the Petitioner has not placed any materials regarding his avocation and income. Therefore, this Tribunal has assessed the age of the Petitioner as on the date of accident is 16 years and his income is considered as Rs.3,300/ p.m. and as per the evidence of PW3, the Doctor, who is Consultant Plastic Surgeon has stated that, the Petitioner has sustained left leg disability at 32% and right leg disability at 22% and both lower limb for disability is 45%. But, he has not assessed the whole body disability. In the crossexamination he volunteers that, as per his knowledge, the Petitioner has sustained 23% whole body disability. The Petitioner has sustained grievous injuries to his left leg and right leg, which are degloving injuries. As per Ex.P.6, the Petitioner has sustained degloving injury of both right and left foot and 23 MVC No.6541/2017 SCCH 5 ankle. The injuries sustained by the Petitioner is evident from Ex.P.6 Wound Certificate, Ex.P.9 Discharge Summary, Ex.P.11 and Ex.P.12 Photographs with CD, Ex.P.18 Xray Films and supported by oral evidence of Petitioner and Doctor, who are examined as PW2 and PW3 respectively.
19. Considering the nature of the injuries, it is just and proper to award a sum of Rs.50,000/ towards pain and sufferings. As per Ex.P.9 Discharge Summary, the Petitioner was admitted as inpatient for a period of 29 days at Raksha Multispeciality Hospital. Considering the duration of treatment, a sum of Rs.50,000/ is awarded towards conveyance, nourishment and attendant charges. As per Ex.P.8 the Medical Bills are amounting to Rs.1,21,969/.
24 MVC No.6541/2017
SCCH 5
20. Considering the degloving injuries to both right and left foot and ankle and disability as stated by the Doctor and on account of the discomfort and unhappiness the claimant has to undergo in his future life, it is just and proper to award a sum of Rs.50,000/ towards loss of amenities.
21. The Petitioner was aged about 16 years and had no independent source of income. Since, this petition is filed under Sec.163(A) of M.V.Act, this Tribunal is considered the age of the Petitioner at 16 years as on the date of accident and the multiplier applicable to the age group of 16 years is 18, as per the ratio laid down by Hon'ble Apex Court in a decision reported in 2009 ACJ 1298 in between Sarla Verma and Ors. V/s. Delhi Transport Corporation and Ors. Case and this Tribunal 25 MVC No.6541/2017 SCCH 5 has assessed notional income of the Petitioner at Rs.3,300/ p.m. and it is multiplied by 12. PW3, the Doctor who examined the Petitioner has stated that, Petitioner has sustained total left leg disability at 32% and right leg disability at 22% both lower limb for disability at 45%. But, he has not assessed the whole body disability in his evidence. However, in the cross examination by the Respondents counsel, he stated that, the Petitioner has sustained whole body disability at 23%. Hence, this Tribunal has assessed total physical disability of 23% to the whole body.
Therefore, the loss of future income works out as under;
3,300/x12x18x23% = Rs.1,63,944/.
26 MVC No.6541/2017
SCCH 5
22. Accordingly, the Petitioner is entitled for compensation as detailed below: Sl.No. Head of Compensation Amount in Rs.
1. Loss of future income 1,63,94400
2. Pain and Sufferings 50,00000
3. Conveyance, Nourishment and 50,00000 Attendant Charges
4. Medical Expenses 1,21,96900
5. Loss of amenities in life 50,00000
6. Future medical expenses 50,00000 Total 4,85,91300
23. Accordingly I hold that, the Petitioner is entitled for total compensation of Rs.4,85,913/ with interest at the rate of 9% p.a. (excluding future medical expenses of Rs.50,000/) from the date of petition till its realization.
27 MVC No.6541/2017
SCCH 5
24. In this case, the Respondents have contended that, there was a delay of 4 months in lodging the complaint regarding the accident, hence, it would create doubt about the accident. But, on perusal of records it is proved that, the alleged accident was occurred on 19.03.2016 as per complaint and FIR. The Complaint and FIR shows that, the complaint was lodged only on 11.07.2016 nearly more than 3 months, the complaint was lodged. On perusal of Ex.P.1 Complaint, the complainant who is the father of the Petitioner has clearly stated reason for delay caused in lodging the complaint. According to the version of the complainant, injured Petitioner accompanied by his father was taking treatment at different hospital and admitted as inpatient nearly 29 days in hospital and even owner of the Motor Cycle has paid Rs.35,000/ towards medical expenses 28 MVC No.6541/2017 SCCH 5 and assured to pay entire medical expenses. But, after discharge from the hospital, the said rider/owner has refused to reimburse the medical expenses. Hence, with no other option, they have filed complaint against the rider of the Motor Cycle.
25. In this regard, the Petitioner has counsel has relied on judgment to show that, delay in lodging the complaint cannot be main ground for rejecting the claim petition. In Civil Appeal No.1926/2011 (arising out of S.L.P. (C) No.11974/2008 in case of Ravi V/s. Badrinarayan and Others in Para 20 Hon'ble Apex Court held that, "It is well settled that delay in lodging FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to first 29 MVC No.6541/2017 SCCH 5 rush to the Police Station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the Police Station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. In cases of delay, the Courts are required to examine the evidence with a closer scrutiny and in doing so; the contents of the FIR should also be scrutinized more carefully. If Court finds that, there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the 30 MVC No.6541/2017 SCCH 5 claim case cannot be dismissed merely on that ground.
In para 21 it is held that, "The purpose of lodging the FIR in such type of cases is primarily to intimate the Police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to 31 MVC No.6541/2017 SCCH 5 regain a certain level of tranquility of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons".
26. In the instant case also, on perusal of FIR and Complaint, there is sufficient and cogent reasons have assigned for delay in lodging the complaint. Therefore, delay in lodging FIR is not fatal to the case of the Petitioner in the present case.
27. Another contention taken by the Respondents that, there is no rash and negligence on the part of rider of the Motor Cycle. It is settled principles of law that, under Sec.163(A) of M.V.Act, the claimant shall not be required to plead or establish that, claimant shall not be 32 MVC No.6541/2017 SCCH 5 required to step or establish that death or permanent disability in respect of which, the claim has been made out in wrongful act or negligence of the default of owner of the vehicle or vehicles concerned or any other person. Hence, inview of provisions of Sec.163(A) of the M.V.Act, the involvement of the vehicle in the accident and negligence on the part of the driver is not required to be proved by the claimant.
28. In a decision reported in 2015 Kant. MAC 1 (SC) Supreme Court in between United India Insurance Co. Ltd., V/s. Sunil Kumar and another wherein it is held that, "Motor Vehicles Act, 1988, Sec.163A No fault liabilityclaim of compensation Scope of Sec.163(A)Injury sustained by claimant in road accident Liability under Sec.163(A) of ActOn 33 MVC No.6541/2017 SCCH 5 principle of no faultNo question as to who is at faultNo inquiry permissible under Sec.163(A) of ActNo provision for apportionment of liability prescribed in Sec.163(A) Death or permanent disablement, if occurred in course of user of vehicle insured Insurer or owner of offending vehicle liable to pay compensation which is statutory obligation". (Para8) Therefore, the contention taken by the Respondent No.2 and 3 in its written statement objection is not sustainable.
29. Further, the Respondents have taken specific contention that, the rider of the Motor Cycle was riding the said offending Motor Cycle without driving license, as on the date of accident and Respondent No.1 has allowed the rider to ride the vehicle without driving license and 34 MVC No.6541/2017 SCCH 5 Police have also filed charge sheet against the rider of the offending Motor Cycle and Respondent No.1, who is the owner of the Motor Cycle for the offences punishable under Sec.3(1) R/w. Sec.181 of M.V.Act for driving the vehicle without driving license and under Sec.5 R/w. Sec.180 of M.V.Act for allowing the rider to ride the vehicle without driving license and hence, policy conditions are violated and hence, Insurance Company is not liable to pay compensation to the Petitioner. On perusal of Ex.P.2 Charge Sheet, the Police have filed charge sheet against the rider of the Motor Cycle for the offences punishable under Sec.3(1) R/w. Sec.181 of M.V.Act and against the Respondent No.1, who is the owner of the Motor Cycle for the offences punishable under Sec.5 R/w.Sec.180 of M.V.Act for allowing the rider to ride the Motor Cycle without driving license. But, 35 MVC No.6541/2017 SCCH 5 either the Petitioner nor the Respondent No.1 or the rider of the Motor Cycle have not produced any driving license to show that, as on the date of accident, the rider of the offending Motor Cycle had valid driving license as on the date of accident. Therefore, on going through the entire materials on record, the Respondent No.2 Insurance Company has proved that, rider was rode the Motor Cycle without driving license, as on the date of accident, hence, terms and conditions of the policy are violated and Respondent No.2 and 3 Insurance Company is not liable to pay compensation to the Petitioner.
30. Further, the Respondent No.2 counsel argued that, since there was no driving license for rider of the Motor Cycle, even in recent judgment of the Hon'ble Apex Court, pay and recovery cannot be ordered against the Insurance Company and has relied upon judgment of 36 MVC No.6541/2017 SCCH 5 Hon'ble Apex Court reported in Civil Appeal Nos.7220 7221/2011 in case of Beliram V/s. Rajinder Kumar and Another.
31. I have gone through the above said judgment relied upon by the Respondents, wherein Hon'ble Apex Court has absolved the Insurance Company from liabiity, since the driver had no driving license as on the date of accident, terms and conditions of the policy are violated and directed the owner of the vehicle to pay compensation.
32. Further, the Respondent No.2 and 3 counwel relied upon judgment of Hon'ble High Court of Karnataka, Dharwad Bench dated 22.04.2021 in MFA No.100226/2016 (MV) and MFA No.100730/2016 in case of Smt.Padma and Others V/s. Ramanjali Naidu 37 MVC No.6541/2017 SCCH 5 and others, wherein Division Bench of Hon'ble High Court of Karnataka has held that, "A person who had no driving license or not renewed for 30 days, the driver neither had effective driving license nor capable nor said to be duly licenced".
Hence, Hon'ble High Court of Karnataka held that, insured/owner is liable to pay compensation to the claimants and absolved Insurance Company from liability. Therefore, the said judgments relied upon by the Insurance Company is amply applicable to the facts and circumstances of the case. Hence, in the instant case, it is evident that, the rider of the offending vehicle had not driving license at the time of the accident. Hence, since the policy terms and conditions are violated, Respondent No.2 and 3 Insurance Company are not liable to pay 38 MVC No.6541/2017 SCCH 5 compensation to the Petitioner. Therefore, the Respondent No.1 being the insured/owner of the offending Motor Cycle shall pay the above said compensation amount with interest within two months from the date of this order. Accordingly I answer Issue No.2 partly in affirmative.
33. Issue No.3: For the reasons assigned to Issues No.1 and 2, I proceed to pass the following:
::ORDER::
The petition filed by the Petitioner under Sec.163(A) of the M.V. Act, 1989 is partly allowed with cost.
The Petitioner is entitled for compensation of Rs.4,85,913/ (Rupees Four Lakhs Eighty Five Thousand Nine Hundred Thirteen Only) with interest at the rate of 9% p.a. (excluding future medical expenses of Rs.50,000/) from the date of petition till its realization, from Respondent No.1.39 MVC No.6541/2017
SCCH 5 The claim of the petition against the Respondent No.2 and 3 Insurance Company, is hereby dismissed.
The Respondent No.1 shall deposit above said compensation amount with interest within two months from the date of this order.
The Petitioner is entitled to get release 70% of the award amount through epayment directly to the Petitioner account by obtaining the Bank A/c details and remaining 30% shall be kept in Fixed Deposit in any Scheduled Bank for a period of three years, in his name.
The Advocate Fee is fixed at Rs.1,000/. Draw award accordingly. (Dictated to the stenographer, transcript thereof is corrected and then pronounced by me in the Open Court on this the 6th day of January, 2022) (KUMARA.S.) VIII ADDL. JUDGE & ACMM, MEMBER, MACT, BENGALURU.40 MVC No.6541/2017
SCCH 5 ::A N N E X U R E::
LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER: PW1 : Sri. Deveppa (PW1 evidence is discarded) PW2 : Sri. Kushal PW3 : Sri. Peddi Manjunath LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONER: Ex.P.1 : Copy of FIR with Complaint Ex.P.2 : Copy of Charge Sheet Ex.P.3 : Copy of Sketch Ex.P.4 : Copy of Mahazar Ex.P.5 : Copy of IMV Report Ex.P.6 : Copy of Wound Certificate Ex.P.7 : Lab Reports (10 in Nos.) Ex.P.8 : Original Bills from Raksh Farma with Advance Receipts Ex.P.9 : Discharge Summary Ex.P.10 : OT Replacement Slips (4 in Nos.) Ex.P.11 : 4 Photos with CD & Ex.P.12 Ex.P.13 : Notarized copy of Election ID Card and & Aadhar Card Ex.P.14 41 MVC No.6541/2017 SCCH 5 Ex.P.15 : Notarized copy of Aadhar Card of Petitioner Ex.P.16 : Outpatient Record Ex.P.17 : IP File Ex.P.18 : Xray Films LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENTS: RW1 : Dr. Nagaraj RW2 : Smt. Anagha G.R. RW3 : Sri. Pramod LIST OF DOCUMENTS MARKED ON BEHALF OF THE RESPONDENTS: Ex.R.1 : Copy of MLC Extract Ex.R.2 : Copy of Police Intimation Ex.R.3 : Copy of the Policy issued to the vehicle bearing Reg.No.KA02JF3322 (KUMARA. S.) VIII ADDL. JUDGE & ACMM, MEMBER, MACT, BENGALURU.