Bangalore District Court
Sri.P.Surendra vs Sri.S.Venugopal on 6 January, 2022
SCCH-11 1 MVC.No.711/2017
KABC020013242017
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
BANGALORE. (SCCH-11)
DATED THIS THE 6th DAY OF JANUARY-2022
PRESENT: SRI.RAGHAVENDRA.D, B.COM, L.L.B.
I ADDL.SMALL CAUSES JUDGE & MACT
MVC No.711/2017
PETITIONER:
Sri.P.Surendra,
S/o.P.Nagappa,
Aged about 20 years,
Residing at Marimakalapalle Village,
Gangavarm Mandal,
Gandarajapalle Post,
Chittoor District.
Andhra Pradesh - 567 432.
(By Sri.D.Babu Rajendra, Adv.)
//Versus//
RESPONDENTS:
1. Sri.S.Venugopal, Major,
SCCH-11 2 MVC.No.711/2017
S/o.V.Subramani,
R/o.No.5, Hanumanthanagar,
New Thippasandra,
Bengaluru - 560 075.
2. M/s.TATA AIG Insurance Company,
'B' TATA AIG AUTO (T.A.)
08, Service Tax Registration,
No.AABCT3518QST004,
Karnataka, 2nd Floor,
J.P. & Devi, Jambekeshwari,
Arcade, No.69, Millers Road,
Bengaluru - 560 052.
(Resp.No.1 - Sri.K.N.Somaiah, Adv.)
(Resp.No.2 by Sri.V.R.Muralidhara, Adv.)
JUDGMENT
This petition is filed by the petitioner U/s.166 of Motor Vehicle Act, claiming compensation of Rs.10,00,000/- along with interest from the date of petition till its realization for injuries sustained by the petitioner.
2. The case of the petitioner in brief is that on 24.09.2016 at about 4.00 p.m., when petitioner was proceeding on his Motor Cycle bearing Regn.No.TN-23-L-7808 on the correct side of road along with his friend as a pillion SCCH-11 3 MVC.No.711/2017 rider, at Palamaner Tank Bund, at that time one Santro Car bearing Regn.No.KA-03-MN-8022 came from opposite direct at high speed in a rash and negligent manner came to wrong side of road and dashed against his motor cycle. Due to which he knocked down and sustained grievous injuries. Immediately, he was shifted to Government Hospital, Palamaner and then referred to Roya Hospital, Thirupathi, wherein he took treatment as an inpatient. The petitioner has spent Rs.1,00,000/- towards treatment, medicine, conveyance and other incidental charges.
Prior to the accident, he was hale and healthy and was working as a Mason at Bengaluru and earning a sum of Rs.15,000/- per month. Due to the accidental injuries, he suffered permanent disablement. The accident has occurred solely due to rash and negligent driving of Santro car by its driver. The respondents being the owner and insurer of the offending vehicle are jointly and severally liable to pay compensation to the petitioner.
SCCH-11 4 MVC.No.711/2017
3. In pursuance of notice, both the respondents have appeared before the tribunal and filed their respective written statements.
4. The brief contents of written statement of respondent No.1 is as under:
The respondent No.1 has filed counter to petition by denying the petition averments. He has further disputed the manner of accident, age of injured and quantum of compensation claimed under different heads. This respondent insured the vehicle claimed to be involved in the accident with TATA AIG Insurance Company and the period of insurance is from 23.04.2016 to midnight 22.04.2017 under certificate No.0155307360001 by receiving policy amount of Rs.4,019/-. Further contended that the petitioner came on two wheeler from wrong side on high speed and negligence manner. Further contended that at the time of accident the vehicle involved in the said accident duly insured with the second SCCH-11 5 MVC.No.711/2017 respondent. Hence, prayed for dismissal of petition.
5. The brief contents of written statement of respondent No.2 is as under:
This respondent has issued a "Private Car Package"
Policy bearing No.015530736001 in respect of Car bearing No.KA-03-MN-8022, which had been cancelled prior to the date of accident, since the cheque which was issued by the owner/first respondent towards payment of premium amount was dishonoured. Therefore this respondent has been duly cancelled the aforesaid policy for non-complaince of 64-B of Insurance Act 1938. Thus, it is clear that there was no subsistence of the contract of insurance between the first respondent/owner of the vehicle and this respondent as on the date of accident. Therefore this respondent is not liable to indemnify the owner of vehicle in the case. Further this respondent denies the occurrence, mode of accident and also involvement of vehicle. This respondent had been willfully SCCH-11 6 MVC.No.711/2017 entrusted his vehicle to a person who did not possess valid and effective driving license to drive the same as on the date of accident. Similarly first respondent allowed to ply their vehicle on the road without having route permit and FC as on the date of accident. The amount claimed by the petitioner is highly exorbitant. Hence, prayed for dismissal of petition.
6. On the basis of above pleadings, my learned predecessor in office has framed the following:
ISSUES
1. Whether petitioner proves that, he sustained grievous injuries in the accident that occurred on 24.09.2016 at about 4.00 p.m., at Palamaner Tank Bund, Bengaluru-Chittoor Road, Chittoor Dist., Andhra Pradesh State, when he was riding a Motor Cycle bearing Regn.No.TN-
23-L-7808 along with his friend as a pillion rider, due to the rash and negligent driving of Santro Car bearing Registration No.KA-03-MN- 8022 by its driver?
2. Whether the petitioner is entitled for the compensation as prayed in the claim petition? If so, what is the quantum of compensation and from whom?
SCCH-11 7 MVC.No.711/2017
3. What order or award?
7. In order to prove his case, the petitioner has examined himself as PW.1 and Dr.Nagaraj.B.N examined as PW.2 and Junior Assistant of SVRRGG Hospital examined as PW.3 and got marked documents at Ex.P.1 to Ex.P.15 and closed his side of evidence. The first respondent got examined himself as RW.1 and Claims Service Manager in respondent insurance company examined as RW.2 and Manager of SBI examined as RW.3 and got marked Ex.R.1 to Ex.R.15 documents and closed their side of evidence.
8. I have heard the arguments from both sides and perused the material available on record. The learned counsel for respondent No.1 has filed written arguments. I have carefully perused the written arguments filed by the respondent No.1.
The learned counsel for respondent No.2 has relied on citations reported in:
1. (2001)3 Supreme Court Cases 151 between SCCH-11 8 MVC.No.711/2017 National Insurance Co., Ltd, Vs. Seema Malhotra and Others.
2. 2012(1) AIR KAR 65 between National Insurance Co., Ltd., Vs. Srinivasa Subbanna & another.
3. In MFA.No.9795/2010 of Hon'ble High Court of Karnataka between TATA AIG General Insurance Co., Ltd., Vs. Balaguruvaiah and others.
4. In MFA.No.100226/2016 C/w.MFA.No.100730/2016 of Hon'ble High Court of Karnataka between Smt.Padma and others Vs. Ramanjali Naidu and others.
5. AIR 2020 SC 4453 of Hon'ble Supreme Court of India between Beli Ram Vs. Rajinder Kumar and another.
6. In MFA.No.102884/2018 of Hon'ble High Court of Karnataka between Shri.Ashok Vs. Shri Yamanappa and another.
The ratio and the dictum laid down by the Hon'ble Supreme Court of India and Hon'ble High Court of Karnataka in the above reported judgments are taken into consideration to decide the above case.
SCCH-11 9 MVC.No.711/2017
9. Findings of this tribunal on the above issues are as under:-
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 has contended that on 24.09.2016 at about 4.00 p.m., at Palamaner Tank Bund, Bengaluru-Chittor Road, Chittoor District, Andhra Pradesh, he met with an accident due to rash and negligent driving of Santro Car bearing Regn.No.KA-03-MN-8022 by its driver and he sustained grievous injuries.
11. In order to prove rash and negligent driving of Santro Car bearing Regn.No.KA-03-MN-8022 by its driver, the petitioner has examined himself as PW.1. In his chief examination he has deposed that due to rash and negligent driving of car by its driver the accident occurred. On perusal of cross-examination of PW.1 nothing has been elicited from SCCH-11 10 MVC.No.711/2017 the mouth of PW.1 to disprove the case of petitioner.
12. Further, in order to prove accident, the petitioner has produced Ex.P.1 FIR and Ex.P.2 Complaint and Ex.P.3 translated copy of complaint. On perusal of Ex.P.2, one of his friend by name Sri.Vijayakumar, S/o.Sri.Narayanappa has lodged a complaint with police on 24.09.2016. After registering the case Police went near place of accident and drew up Ex.P.6 & 7 Sketch by narrating place of accident. Ex.P.8 Wound certificate, it shows that petitioner has sustained grievous injuries in the road traffic accident. After completion of investigation, the police have filed charge sheet at Ex.P.4 against the driver of offending vehicle for the offences punishable U/s.279 & 337 of IPC and R/w.Sec.146, 196 and Sec.3 and R/w.181 of M.V.Act. The respondents nothing placed before the tribunal to prove negligence of petitioner. On perusal of record the respondent not seriously disputed the accident. Under these circumstances, relying upon the oral evidence of PW.1 coupled with the documents SCCH-11 11 MVC.No.711/2017 produced as per Exs.P.1 to P.7, this tribunal is of the opinion that the accident has occurred due to rash and negligent driving of Santro Car bearing Regn.No.KA-03-MN-8022 by its driver and same has resulted in grievous injuries to the Petitioner. Accordingly, Issue No.1 held in the Affirmative.
13. Issue No.2: In view of held issue No.1 in the Affirmative, the petitioner is entitled for compensation. To assess the compensation, the Tribunal has to look into several factors like injury, pain and suffering sustained by the petitioner and amount spent by the petitioner towards medical expenses, food and extra nourishment and medical attendants, conveyance, loss of income during treatment, disability, loss of amenities etc., let me discussion one by one.
(a) Towards injury and pain and suffering:-
The petitioner has contended that due to accident he has sustained compound Type III B fracture of distal third right SCCH-11 12 MVC.No.711/2017 femur and underwent open reduction and internal fixation with implants and was treated conservative line of treatment for his head injury and discharged with an advice to take regular follow up treatment. In order to prove injuries caused to him, he has produced Ex.P.8- Wound Certificate, which reveals that petitioner has sustained grievous injuries and doctor has opined that injuries are simple in nature. The petitioner has produced Discharge Summary issued by SVRRGG Hospital at Ex.P.9 and diagnosed that compound type III B left both bone fracture with distal 3rd ORIF with distal femur LCP But in Ex.P13 case sheet mentioned as fracture of right femur. On perusal of this document, it shows that, the petitioner took treatment as an inpatient in the said hospital. So, on perusal of records, the petitioner took treatment in the hospital as an inpatient and the petitioner examined the doctor as PW.2 Dr.Nagaraj.B.N and got marked documents at Ex.P.10 & 11. PW.2/doctor has deposed that he examined the petitioner for assessment of physical disability SCCH-11 13 MVC.No.711/2017 of right lower limb at 41% and to the whole body at 14%. By considering the injury and facts and circumstances of the case, the tribunal is of the view that the compensation of Rs.45,000/- is just and reasonable towards pain and suffering.
(b) Towards Medical Expenses: The petitioner has not produced any medical bills. Hence he is not entitle for compensation under this head.
(c) Towards food, extra nourishment and medical attendant charges: On perusal of the records, the accident occurred on 24.09.2016 and the petitioner took treatment as an inpatient in the hospital. On perusal of evidence, the petitioner was inpatient at SVRRGG Hospital as he has sustained grievous injuries. So, during the time of treatment the petitioner also required good food and extra nourishment.
The petitioner has produced Discharge Summary issued by SVRRGG Hospital at Ex.P.9, which shows that the petitioner SCCH-11 14 MVC.No.711/2017 was admitted from 24.10.2016 to 05.11.2016 i.e., for a period of 13 days. Considering the said fact the Tribunal is of the view that compensation of Rs.400/- per day for 13 days to a sum of Rs.5,200/- is just and reasonable towards food, extra nourishment and medical attendant.
(d) Towards Conveyance: The petitioner is the resident of Marimakalpalle Village, Gangavarm Mandal, Gandarajapalle Post, Chittoor District, Andhra Pradesh. The accident occurred at Palamaner Tank Bund, Bengaluru- Chittoor Road, Chittoor District, Andhra Pradesh. He has admitted for treatment at SVRRGG Hospital. In order to prove this aspect the petitioner has produced Discharge Summary as per Ex.P.9. Considering the injuries and facts of the case, the tribunal is of the view that the compensation of Rs.10,000/- is just and proper towards conveyance charges.
(e) Towards loss of income during treatment: The SCCH-11 15 MVC.No.711/2017 petitioner has contended that he was working as a Mason at Bengaluru and was earning a sum of Rs.15,000/- per month. In order to prove his income, the petitioner has not produced any documents to show that he was earning Rs.15,000/- per month. In the absence of positive documents regarding his occupation and income, this tribunal will consider notional income. Due to the accidental injuries, the petitioner might have not attended his regular work at least for a period of 2 months.
The Hon'ble High Court of Karnataka fixed notional income of the year 2016 at Rs.9,500/- per month for determination of income before Lok Adalat for the Districts coming under the Hon'ble High Court of Karnataka, Principal Benches, Bengaluru. So, in view of fixing of notional income by the Hon'ble High Court of Karnataka, it is just and proper to this Tribunal to follow the notional income as fixed by the Hon'ble High Court of Karnataka to decide the cases before this Tribunal also. Case SCCH-11 16 MVC.No.711/2017 on hand the petitioner has not produced any relevant document to prove his income. Accordingly, the notional income of petitioner during the year 2016 treated as Rs.9,500/- per month as fixed by the Hon'ble High Court of Karnataka. Accordingly, the petitioner is entitled for Rs.19,000/- (9,500/- x 2) towards loss of income during treatment.
f) Towards Permanent Disability:
The petitioner has contended that due to the accident, he was inpatient at SVRRGG Hospital, and sustained permanent disablement. The petitioner also examined Dr.Nagaraj.B.N, working as an Orthopeadic Surgeon at SOADS Hospital, Bengaluru as PW.2. PW.2/Doctor examined the patient clinically and radiologically to assess disabilities and he diagnosed that petitioner has sustained compound type III B fracture of distal third right femur and underwent open reduction and internal fixation with 5 holed locking compression plate on 21.10.2016 and discharged with an SCCH-11 17 MVC.No.711/2017 advice to take follow up treatment. The doctor has assessed total physical disability of left lower limb at 41% and to the whole body at 14%. In order to prove his disability, the doctor has not produced assessment report, but he has produced clinical report and X-ray films marked at Ex.P.10 &
11. By considering the oral and documentary evidence and facts and circumstances of the case, it appears that the petitioner can do his work with difficulty. Therefore, considering all these aspects, the functional disability is assessed at 11%.
14. In order to prove age of the petitioner, he has not produced any documents before the tribunal. But as per Ex.P.8 Wound Certificate, age of petitioner is mentioned as 19 years as on the date of accident. Hence, the same is taken into consideration for applying multiplier and multiplier 18 is applicable as per Smt. Sarla Verma case. As per ratio laid down in Raj Kumar V/s. Ajay kumar and another, this SCCH-11 18 MVC.No.711/2017 tribunal not deducted personal expenses of petitioner out of his gross income. Hence, future earning capacity of the petitioner due to permanent disability works out as under :
Annual Income before accident : (9,500/- x 12) = Rs.1,14,000/-
Loss of future earning p.a. (11% of prior annual income) Rs.12,540/-.
Multiplier applicable with reference to age - 18 Loss of future earnings - (12,540/- x 18) = Rs.2,25,720/-. The petitioner is entitled for Rs.2,25,720/- under the head of loss of future earning capacity.
(g) Deprivation of Future Amenities:-
The doctor has opined that the petitioner sustained compound type III B fracture of distal third right femur and he is unable to do his day-today activities as earlier. By considering the facts and circumstances of the case, the tribunal is of the view that compensation of Rs.10,000/- is just and reasonable under the head deprivation of SCCH-11 19 MVC.No.711/2017 future amenities.
(g) Towards Future Medical Expenses:
The doctor/PW.2 has opined that the petitioner needs another surgery for removal of implants, the estimate of this surgery is around Rs.60,000/-. By considering the facts and circumstances of the case Rs.20,000/- is just and reasonable under the head deprivation of future medical expenses.
15. Therefore, the petitioner is entitled for compensation as follows:
Sl.No. Particulars Amount
a. Towards injury pain and suffering Rs.45,000/-
b. Towards food and extra Rs.5,200/-
nourishment and medical
attendant
c. Towards conveyance Rs.10,000/-
d. Towards loss of income during Rs.19,000/-
treatment
e. Towards loss of future earning Rs.2,25,720/-
capacity
f. Deprivation of future amenities Rs.10,000/-
SCCH-11 20 MVC.No.711/2017
g. Towards Future Medical Rs.20,000/-
Expenses
Total compensation Rs.3,34,920/-
Hence, the petitioner is entitled for compensation of Rs.3,34,920/- with interest @ 9% per annum from the date of petition till its realization.
16. The learned counsel for respondent insurance company vehemently argued that the respondent No.2 issued a "Private Car Package" Policy bearing No.015530736001 in respect of Car bearing Regn.No.KA-03-MN-8022 which had been cancelled prior to the date of accident since the cheque which was issued by the owner/first respondents towards payment of premium amount was dishonoured. Hence, the said policy was cancelled. In order to prove their contention, Claims Service Manager of respondent No.2 examined as RW.2. In his chief examination also deposed that they have cancelled the policy issued in favour of Car bearing Regn.No.KA-03-MN-8022. The insurance company has SCCH-11 21 MVC.No.711/2017 produced Ex.R.8 - Cheque bearing No.382936 of State Bank of India issued by Venugopal.S i.e., respondent No.1. Ex.R.9 is the endorsement issued by Axis Bank, wherein it is mentioned as "Exceeds arrangement". On perusal of Ex.R.9 it was issued on 06.04.2016. RW.2 in his cross examination, he has deposed that after dishonour of cheque, they have issued a notice to the respondent, but he did not remember the date of issue of notice to the respondent No.1. Further RW.2 in his cross examination, he has deposed that he is ready to produce the copy of notice issued to respondent No.1. But the respondent No.2 did not produce any copy of notice issued to the respondent No.1 owner of vehicle. There is no material before the tribunal to show that the insurance company had intimated the dishonour of cheque to respondent No.1. The insurance company also examined the Manager of State Bank of India, Jeevanbhimanagar Branch, Bengaluru as RW.3. The bank manager produced bank statement of respondent No.1 and said document marked as Ex.R.15. RW.2 admitted that SCCH-11 22 MVC.No.711/2017 Ex.R.8 Cheque belongs to their bank and it belongs to the respondent No.1. Further in his chief examination he has deposed that they have deducted the cheque return charges of Rs.343.50. Further in his evidence, he has deposed that on 06.04.2016 there was Rs.25,551/- balance in the account of respondent No.1. Further in his evidence, he has deposed that he did not know how the cheque was dishonoured, though there was sufficient balance in the account of respondent No.1. So, on perusal of evidence of RW.3 and Ex.R.15 Bank statement, it is crystal clear that there was sufficient balance at the time of presentation of cheque to the respondent No.1's bank for collection. Case on hand, the insurance company immediately after dishonour of the cheque they have not informed to the respondent No.1 regarding cancellation of policy.
17. The respondent No.1 examined before the tribunal and he has deposed that his vehicle was duly insured with respondent No.2. He has produced Ex.R.1 & 2 Original Policy. SCCH-11 23 MVC.No.711/2017
On perusal of the said documents, the policy was valid as on the date of accident. On perusal of oral and documentary evidence placed by both the parties as on the date of presentation of cheque, there was sufficient balance in the bank account maintained by the respondent No.1. The respondent No.2 has not taken any steps by informing the respondent No.1 regarding dishonour of the cheque. The respondent No.1 for the next year i.e., year of 2017, he has also issued a Cheque in favour of insurance company as per Ex.R.11 for Renewal of his policy. But the said cheque was rejected. The respondent No.2 insurance company has not placed any materials before the tribunal to show that they have immediately after the dishonour they have informed to respondent No.1. On perusal of record there is a mistake on the part of insurance company and respondent No.1 unaware about the cancelation of insurance policy till rejecting of EX.R11 and R12.
18. The learned counsel for the respondent relied upon SCCH-11 24 MVC.No.711/2017 the decisions reported in:-
In (2001)3 Supreme Court Cases 151 between National Insurance Co., Ltd, Vs. Seema Malhotra and Others.
" A. Insurance Act, 1938 - Ss.64-VB, 2(9) and 2-D - Assumption of risk by insurer - Contract of insurance, held, consists of a reciprocal promise, therefore if the insured fails to pay the promised premium or his cheque is returned dishonoured by the bank, the insurer is under no obligation to perform his part of the contract, except in relation to his statutory liabilities in respect of third parties - Further, held, in case insurer has disbursed the amount insured to the insured before cheque was dishonoured, insurer is entitled to be reimbursed - Deceased insuring Maruthi Car and paying premium by cheque on 21.12.1993 - Accident occurring on 31.12.1993 as a result of which insured dying and car wrecked on 10-1-1994 appellant insurance company receiving intimation from bank that cheque had been dishonoured - On 20.1.1994 appellant company informing business concern of insured that policy had been cancelled with immediate effect - State Consumer Commission rejecting claim of respondents (widow and children of insured) for loss of vehicle - Held, High Court erred in allowing appeal of respondents on the basis that appellant had not cancelled the policy w.e.f, the date of issue of the cheque - Contract Act, 1872, Ss.54, 52 and 51 - Reciprocal promise and contract of insurance - Motor Vehicles Act, 1988, Ch.XI.
B. Contract Act 1872 - Ss.25 and 65 - Where premium remains unpaid because cheque of insured is returned dishonored, held, contract of amount, before the dishonouring of the cheque, he is entitled to reimbursement - Words and Phrases - "Bill of exchange".SCCH-11 25 MVC.No.711/2017
C. Insurance - Generally - Profit in insurance business, held, consists of premium paid where no accident or damage occurs - Therefore to require insurance company to bear entire loss or damages when no premium has been paid (as in case of dishonoured cheque) would be against principles of equity)."
In 2011(3) KCCR 342 of Hon'ble Supreme Court of India between National Insurance Co., Ltd., Vs. Srinivas & Another, wherein it is held that:
"Motor Vehicles Act, 1988 - Section 147: Insurer- Liability of - whether the insurer can be fastened with the liability, of payment of compensation in question? - Since, the cheque issued towards the premium of the insurance policy was dishonoured on 19.06.1996., subsequently as notice dated: 04.7.96, regarding the cancellation of the said policy was served on 10.7.96, by which the policy was cancelled, rendering non- existence of the contract, consequently absolving the insurer to indemnify the liability of the owner of the vehicle, thus the insurer cannot be fastened with the liability, of payment of compensation in question".
I have carefully perused the above reported judgments with due respect of Hon'ble Supreme Court of India, the facts and circumstances of the above reported judgments and case on hand are different. Hence these judgments not helpful to the case of respondent No.2.
SCCH-11 26 MVC.No.711/2017
19. The respondent insurance company i.e., respondent No.2 has contended that as on the date of accident, there was no driving license to drive the car. The police have filed Charge sheet against the driver of car for the offences punishable U/s.279, 337 of IPC and U/s.146 & 196 and Sec.3 R/w.181 of M.V.Act as per Ex.R.10. As per police documents at the time of accident, the driver did not possess driving license. RW.1 in his cross examination, he has admitted that the police have filed charge sheet against the driver of his car by name S.Ranjeeth Kumar and they did not challenge the same before competent forum. Further in cross examination, he has admitted that at the time of accident, the Rajeeth Kumar was driving the car, but he has denied that the driver of car did not possess valid driving license. Further in his cross examination, he has admitted that except Ex.R.6 license there is no other documents. Further in his cross examination admitted that the driving license of Rajeeth Kumar valid from 03.01.2019 to 11.06.2038. Further he has admitted that the SCCH-11 27 MVC.No.711/2017 date of accident was 24.09.2016. Further in his cross examination, he has admitted that filing of charge sheet against Ranjeeth Kumar for the offence punishable U/s.146 R/w.196 & S.3, 181 of M.V.Act. Further he has admitted that he has pleaded guilty before the JMFC Court and paid fine. The respondent No.1 has produced Ex.R.6 Copy of Driving license of Ranjeeth Kumar. As per the said documents, the driving license is valid from 03.01.2019 to 11.06.2038. The respondent No.1 has not produced the copy of driving license to show that as on the date of accident, the Ranjeeth Kumar possessed the Driving license. As per the admission of RW.1 itself, it is crystal clear that they have pleaded guilty and paid fine before the court. So, on perusal of evidence of RW.1 and documents placed by the respondent No.1 at the time of accident the driver i.e., Ranjeeth Kumar did not possess valid driving license to drive the car and violated the policy conditions.
20. The Hon'ble Supreme Court of India in between Beli SCCH-11 28 MVC.No.711/2017 Ram Vs. Rajinder Kumar in Civil Appeal No.7220-7221 of 2011 decided on 23.09.2020, wherein Hon'ble Supreme Court of India held at Para No.22 as follows:
"22. We have reproduced the aforesaid observations as it is our view that it sets forth lucidly the correct legal position and we are in complete agreement with the views taken in all the three judgments of three different High Courts with the culmination being the elucidation of the correct legal principle in the judgment in the Hem Raj 11 case".
The Hon'ble High Court of Karnataka in MFA.No.100226 of 2016 between Smt.Padma and other Vs. Sri.Ramanjali Naidu and others, wherein Hon'ble High Court of Karnataka held that owner is liable to pay compensation to the claimants and absolving the liability saddled on the insurance company.
21. The learned counsel for respondent No.2 has relied on Judgment of Hon'ble High Court of Karnataka in MFA.No.102884/2018 (MV) between Shri Ashok Vs. Shri Yamanappa and another, wherein it is held as follows: SCCH-11 29 MVC.No.711/2017
"12. From Ex.P.1 - FIR and Ex.P.6 - Charge Sheet, it is seen that driver of Car is charge sheeted under Sections 3 and 181 of Motor Vehicles Act, 1988. In the absence of any evidence by claimants to show that, driver of car was having a valid and effective driving license to drive the vehicle on the date of accident, the finding of Tribunal absolving liability of insurer to pay compensation cannot be interfered with, as non-possession of any license to drive vehicle would be a fundamental breach. Therefore the instant case would not attract principle of pay and recover."
In view of ratio laid down by the Hon'ble Supreme Court of India and Hon'ble High Court of Karnataka, respondent No.1 being owner is liable to pay compensation and the respondent No.2 being insurer is absolved from payment of liability to the petitioner. So, the respondent No.1 being owner is liable to pay compensation to petitioner. Accordingly, Issue No.2 is held Partly in the Affirmative.
22. Issue No.3: In view of the findings given on the above said issues, I proceed to pass the following:
ORDER The claim petition filed by the petitioner Under Section 166 of Motor Vehicles Act is hereby partly SCCH-11 30 MVC.No.711/2017 allowed with cost.
The petitioner is entitled for total compensation amount of Rs.3,34,920/- (Rupees Three Lakhs Thirty Four Thousand Nine Hundred and Twenty only) with interest at 9% p.a., from the date of petition till realization.
The petition against the respondent No.2, insurer is hereby dismissed.
Respondent No.1 being owner is liable to pay the compensation to the petitioner and deposit the said compensation amount within a period of one month from the date of award.
Out of said compensation, 60% shall be released to petitioner and remaining 40% balance amount shall be deposited in the name of petitioner in any Nationalized or Scheduled Bank nearer to his place for three years without encumbrance. He is entitled for interest that accrues on FD periodically.
After deposit of compensation amount with interest thereon disburse amount as mentioned above as per guidelines laid down by Hon'ble High Court in MFA.No.2509/2019 (ECA) and as per General Circular SCCH-11 31 MVC.No.711/2017 No.2/2019 dated 19.8.2019.
The petitioner hereby directed to produce particulars of his Bank Account, with name of Bank, IFSC Code, Account Number with copy of First Page of Bank Pass Book which contained compulsorily photographs of petitioner, which is duly attested by concerned Bank. Further petitioner shall produce PAN Card/Aadhaar Card.
In case of deposit of awarded amount with interest thereon by respondent, the petitioner is entitled to receive amount as mentioned above after expiry of period provided for filing an appeal.
Bank shall not advance loan on such FD, and shall not cause premature release of FD without permission from the Tribunal.
Bank shall release amount along with interest thereon in favor of petitioner on proper verification and identification or credit said amount to his account after expiry of three years period of deposit, without waiting for further order of court.
The Advocate fee is fixed at Rs.1,000/-.
SCCH-11 32 MVC.No.711/2017Draw up award accordingly.
(Dictated to the stenographer over computer, corrected and pronounced by me in open court on this 6th day of January, 2022.) (D.RAGHAVENDRA) I ADDL.SMALL CAUSES JUDGE & ACMM ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONERS:
PW.1 - Sri.P.Surendra
PW.2 - Dr.Nagaraj.B.N
PW.3 - Sri.Mastan Ali
DOCUMENTS MARKED FOR PETITIONERS:
Ex.P1 FIR
Ex.P2 Complaint
Ex.P3 Translated copy of Complaint
Ex.P4 Charge Sheet
Ex.P5 AIR Report
Ex.P6 Sketch
Ex.P7 Translated copy of Sketch
Ex.P8 Wound Certificate
SCCH-11 33 MVC.No.711/2017
Ex.P9 Discharge Summary
Ex.P10 Clinical Report
Ex.P11 X-ray films
Ex.P12 Authorization letter
Ex.P13 Case Sheet
Ex.P14 1 X-ray film
Ex.P15 3 Photographs
LIST OF WITNESSES ON BEHALF OF RESPONDENTS :
RW.1 Sri.S.Venugopal RW.2 Sri.Arun.S RW.3 Sri.Neeraj Kumar
LIST OF DOCUMENTS ON BEHALF OF RESPONDENTS :
Ex.R1 Original Policy
Ex.R2 Notarized copy of DL of 1st respondent
Ex.R3 Particulars of vehicle engine and chassis
number
Ex.R4 Notarized copy of DL of owner
Ex.R5 Notarized copy of RC
Ex.R6 Notarized copy of DL of driver
Ex.R7 Authorization letter
SCCH-11 34 MVC.No.711/2017
Ex.R8 Original Cheque
Ex.R9 Memo
Ex.R10 Charge Sheet
Ex.R11 Original Cheque
Ex.R12 Renewal of insurance
Ex.R13 Certificate of insurance & policy
Ex.R14 Account Statement from 1.03.16 to 30.09.16
Ex.R15 Statement of Account
I ADDL.SCJ. & MACT.