Bangalore District Court
Sri N. Purushotham Rao vs Sri Muddappa on 6 February, 2015
Before the Motor Accident Claims Tribunal at Bangalore
(SCCH-8)
Present: Shri P.J. Somashekar B.A., LL.B.,
XII Additional Small Causes Judge
and Member, M.A.C.T., Bangalore.
Dated this the 06th day of February 2015
M.V.C.No.1954/2013
Petitioner Sri N. Purushotham Rao,
S/o Late P. Narayana Rao,
Aged about 43 years,
R/at No.8/6, Sri Sai Comports,
5th Cross, Vinayakanagar,
Bangalore - 63.
(Sri V. Chandra Shekar, Advocate)
V/s
Respondents 1. Sri Muddappa,
S/o Late Narasimaiah,
Major in age,
Prop. SLNMS, No.63,
Fort B Street, Kalasipalya,
Bangalore.
(Owner of the private passenger bus
bearing No.KA-16-B-3787)
(Sri G.V. Dayananda, Advocate)
2. The Manager,
The New India Assurance Co. Ltd.,
No.1-A, S.B.I. Colony,
Above Bata Show Room,
41st Main road, J.P. Nagar 1st Phase,
Sarakki Gate, Bangalore - 78.
(Insurer of the bus bearing
No.KA-16-D-3787 Policy
No.6702002311200100000254
Valid from 07-05-2012 to 06-05-2013.
(Sri D.M. Joshi, Advocate)
2 (SCCH-8) M.V.C.No.1954/2013
JUDGMENT
This is a claim petition filed by the petitioner against the respondents under Section 166 of Motor Vehicles Act, 1989, for seeking compensation of Rs.7,00,000/- for the injuries sustained by him in a road traffic accident.
2. The brief facts of the claim petition are as under:
The petitioner in his claim petition has alleged that, on 17- 02-2013 at about 1.30 p.m., he was traveling in a Sri Lakshmi Narasimha Motor Services Private Passengers bus bearing No.KA- 16-B-3787 from Kalasipalyam to Nelamangala, when the bus was reached near Anchepalya, Dasanapura Hobli, Bangalore North Taluk, on Bangalore-Tumkur NH-4 express high way, at that time the driver of the said bus has driven the same in a rash and negligent manner in order to overtake the front KSRTC bus has dashed behind the lorry bearing No.KA-16-A-4650 which was going in front of the KSRTC bus, as a result himself and other inmates of the bus were sustained injuries. So, immediately he was shifted to Mysore Hospital, Guruguntepalya, Bangalore, wherein he took the treatment as an inpatient by spending huge amount.
3. Prior to the accident he was hale and healthy by working as a Medical Representative in a private company and getting monthly salary of Rs.25,000/-, after the accident he could not do the work as before. The accident in question was taken place on 3 (SCCH-8) M.V.C.No.1954/2013 the rash and negligent driving of the driver of the offending vehicle. Thereby, Madanayakanahally Police have registered the case against the bus driver in their police station Crime No.99/2013 for the offences punishable u/s 279 and 337 of IPC. The respondent No.1 being the owner and respondent No.2 being the insurer are jointly and severally liable to pay the compensation and prays for allow the claim petition.
4. In response of the notice, the respondents were appeared through their respective counsel and filed their written statement. The respondent No.1 in his written statement has alleged that the claim petition filed by the petitioner is not maintainable in law or on facts and he has insured the offending vehicle with the second respondent and validity of the policy from 07-05-2012 to 06-05- 2012 and he has denied the averments made in column No.1 to 6 of the claim petition and the age, avocation and income of the petitioner and he has also denied the averments made in column No.11 to 14 of the claim petition, but he has admitted the averments made in column No.14(a) to 16 of the claim petition and he has denied that the petitioner was traveling in a offending vehicle as a passenger and the driver of the said bus has driven the same in a rash and negligent manner and dashed against the lorry, as a result the petitioner was sustained injuries and took the 4 (SCCH-8) M.V.C.No.1954/2013 treatment as an inpatient by spending huge amount and prays for reject the claim petition.
5. The respondent No.2 in its written statement has denied that the petitioner was traveling in a offending vehicle as a passenger and the driver of the said bus has driven the same in a rash and negligent manner and dashed against the lorry, as a result the petitioner was sustained injuries and took the treatment as an inpatient by spending huge amount and he has also denied the age, avocation and income of the petitioner and the averments made in column No.3 to 6, 8 to 14, 18, 21 and 22 of the claim petition, but he has admitted about the issuance of the policy in respect of the offending vehicle in favour of the first respondent and its validity from 07-05-2012 to 06-05-2013 and he has alleged that as on the date of the alleged accident the offending vehicle driver was not holding valid and effective driving licence to drive the same, so he is not liable to pay any compenstion to the petitioner and prays for reject the claim petition.
6. On the basis of the pleadings of the parties my Predecessor has framed the following issues.
1. Whether the petitioner proves that he has sustained grievous injuries as mentioned in column No.11, in a road traffic accident on 17-02-2013 at about 1.30 p.m., near Anchepalya, Dasanapura Hobli, Bangalore North Taluk, on Bangalore-
Tumkur NH-4 Express Highway, due to the rash 5 (SCCH-8) M.V.C.No.1954/2013 and negligent driving of the driver of the Ashok Leyland Bus bearing registration No.KA-16-B- 3787?
2. Whether petitioner is entitled for any compensation? If so to what extent and from whom?
3. What Order or Award?
7. The petitioner in order to prove his case has examined himself as PW1 and got marked the documents as Ex.P1 to Ex.P9 and he has examined two more witnesses on his behalf as PW2 and PW3 and got marked the documents as Ex.P10 to Ex.P13. The respondent No.2 has examined its Assistant Manager as RW1 and got marked the documents as Ex.R1 to Ex.R6. The respondent No.1 has not examined any witness nor marked any documents in his favour.
8. Heard arguments on both side.
9. My finding on the above issues are as under:
Issue No.1: Affirmative Issue No.2: Partly affirmative Issue No.3: As per the final order for the following.
REASONS
10. Issue No.1:
The petitioner being said to be the injured has approached the court on the ground that on 17-02-2013 at about 1.30 p.m., 6 (SCCH-8) M.V.C.No.1954/2013 he was traveling in a private bus, when the bus was reached near Anchepalya, Dasanapura Hobli, Bangalore North Taluk, on Bangalore-Tumkur NH-4 express high way, the driver of the said bus has driven the same in a rash and negligent manner in order to overtake the front KSRTC bus has dashed behind the lorry bearing No.KA-16-A-4650 which was going in front of the KSRTC bus, as a result himself and other inmates of the bus were sustained injuries. So, immediately he was shifted to Mysore Hospital, Guruguntepalya, Bangalore, wherein he took the treatment as an inpatient by spending huge amount. Thereby, he has filed the instant claim petition against the respondents.
11. The petitioner in order to prove his case has filed his affidavit as his chief examination as PW1, in which he has stated that on 17-02-2013 at about 1.30 p.m., he was traveling in a Sri Lakshmi Narasimha Motor Services Private Passengers bus bearing No.KA-16-B-3787 from Kalasipalyam to Nelamangala, when the bus was reached near Anchepalya, Dasanapura Hobli, Bangalore North Taluk, on Bangalore-Tumkur NH-4 express high way, at that time the driver of the said bus has driven the same in a rash and negligent manner in order to overtake the front KSRTC bus has dashed behind the lorry bearing No.KA-16-A-4650 which was going in front of the KSRTC bus, as a result himself and other inmates of the bus were sustained injuries. So, immediately he was shifted to 7 (SCCH-8) M.V.C.No.1954/2013 Mysore Hospital, Guruguntepalya, Bangalore, wherein he took the treatment as an inpatient by spending huge amount. The accident in question was taken place on the rash and negligent driving of the driver of the offending vehicle. Thereby, Madanayakanahally Police have registered the case against the bus driver in their police station Crime No.99/2013 for the offences punishable u/s 279 and 337 of IPC. The PW1 in his cross examination has admitted that as on the date of the alleged accident one bus was proceeding in front of the bus in which bus he was traveling and the driver of the bus has overtake the KSRTC bus which was proceeding in front of the bus and dashed against the lorry on its behind, as a result the accident was occurred and he has denied that the accident was occurred on the negligence of the lorry driver.
12. The petitioner in support of his oral evidence has produced the documents marked as Ex.P1 to Ex.P13. Ex.P2 is the information filed by one Srinivasa P., son of Papanna in which he has stated that on 17-02-2013 himself and his wife were proceeding in a private bus i.e., Sri Lakshmi Narasimha bus from Kalasipalyam towards their native place, the driver of the bus has driven the same in a rash and negligent manner, when the bus was reached near Anchepalya bus stop, the bus driver has overtake the KSRTC bus which was proceeding in front of the bus and suddenly took the bus towards right side and dashed behind 8 (SCCH-8) M.V.C.No.1954/2013 the lorry which was proceeding in front of the bus, as a result himself and other inmates of the bus were sustained injuries. So based on the information Madanayakanahally Police have registered the case against the bus driver in their police station Crime No.99/2013 for the offences punishable u/s 279, 337 and 338 of IPC. Though the learned counsel for the respondent No.2 has cross-examined the PW1, but nothing is elicited to disbelieve the evidence of the PW1 and he has also suggested the PW1 that the accident in question was taken place on the negligence of the lorry driver for which he has denied the same. If at all the accident was taken place on the negligence of the lorry driver nothing is prevented to the bus driver nor the owner of the offending vehicle to lodge the complaint against the lorry driver nor challenge the FIR and charge sheet filed by the I.O., but the reasons best known to the respondent No.2 has not filed any complaint against the lorry driver nor challenged the charge sheet filed against the offending vehicle driver and moreover the respondent No.2 has not examined the driver of the bus to show that the accident in question was taken place on the rash and negligent driving of the lorry driver, if that is so the matter would have been different, but the reasons best known to the respondent No.2 has not examined the driver of the bus to prove that the accident in question was taken place on the negligence of the lorry driver. In the absence of 9 (SCCH-8) M.V.C.No.1954/2013 the materials on record, it is clear that the Ex.P1 and Ex.P2 are remained unchallenged. Ex.P3 is the panchanama clearly reflects about the rash and negligent driving of the bus driver. Ex.P6 is the discharge summary clearly reflects that the petitioner soon after the accident has got admitted to the hospital and took the treatment as an inpatient in connection of the injuries in a road traffic accident. Ex.P8 is the wound certificate clearly reflects that the petitioner has sustained the injuries in a road traffic accident. Ex.P9, Ex.P11 to Ex.P13 are clearly reflects that the petitioner has took the treatment as an inpatient in connection of the injuries sustained by him in a road traffic accident said to have been taken place on 17-02-2013. So, the documents marked as Ex.P1 to Ex.P13 are coupled with the oral evidence of PW1. The respondent No.2 being the insurer has not examined the driver of the bus to disbelieve the oral and documentary evidence of the petitioner. Though, the respondent No.2 has examined its Assistant Manager as RW1, but his evidence will not help the second respondent to prove its defence. On the other hand, the petitioner has proved his case through oral and documentary evidence that the accident in question was taken place on the rash and negligent driving of the offending vehicle driver. Hence, I answer this issue in the affirmative.
10 (SCCH-8) M.V.C.No.1954/2013
13. Issue No.2:
The PW1 being the injured in his evidence has clearly stated that on 17-02-2013 he was traveling in a private bus as a passenger, the driver of the said bus has driven the same in a rash and negligent manner and dashed behind the lorry, as a result he has sustained the following injuries;
1) Compound communited fracture of both bones left leg.
14. So, he was shifted to Mysore Hospital, Goruguntepalya, Bangalore, wherein he took the treatment as an inpatient and underwent the surgery and discharged from the hospital on 22-02- 2013, with an advice to take follow up treatment and as per the advice of the doctor he took the follow up treatment for a period of 6 months by spending huge amount of Rs.1,00,000/- towards hospitalization charges and Rs.50,000/- towards food and nourishment and Rs.25,000/- towards conveyance charges. Prior to the accident he was hale and healthy working as a Area Sales Manager at SRS Meditech Ltd., Bangalore and getting monthly salary of Rs.25,000/-, due to the accidental injuries he could not do the work as before. The PW1 in his cross examination has denied that he has sustained only simple injuries in a road traffic accident said to have been taken place on 17-02-2013 and he was not undergone any surgery, but he has admitted that one Dr. 11 (SCCH-8) M.V.C.No.1954/2013 Ramesh and Kiran were conducted the surgery and he has not produced any document to show that doctor has advised him to take 6 months bed rest for the injury sustained by him in a road traffic accident and he has produced the pay slip to show that he was working as a Medical Representative, but he has not produced the appointment letter and he has not produced any document to show that he was getting monthly income of Rs.25,000/- relating to account extract as his monthly salary credited to his account and he has also admitted that Ex.P6 nowhere discloses that he was underwent the surgery.
15. The PW2 in his evidence has stated that the petitioner has met with an accident and took the treatment at Mysore Hospital and produced the inpatient records marked as Ex.P11. The PW2 in his cross examination has denied that he has created the documents and placed before the court in order to help the petitioner.
16. The PW3 being the Orthopaedic Surgeon at Victoria Hospital, in his evidence has stated that the petitioner has met with an accident said to have been taken place on 17-02-2013, as he has sustained the following injuries;
1) Compound communited fracture both bones left leg.
17. So, he underwent OR & IF with IL nail. He has recently examined the petitioner on 18-12-2014 for disability assessment 12 (SCCH-8) M.V.C.No.1954/2013 with complaint of pain left leg, difficult to squatting, climbing upstairs, stand on affected limb, difficult to do routine activities. So, he has found the following disabilities.
Tenderness over left knee, restriction of the joint movement of left knee flexion - extension 15 degree normal 2.125 degree. Difficult to squat on floor, climb upstairs, walk o slope kneel.
18. The radiological showed the fracture is united with implants in situ. So, the petitioner has sustained the permanent physical disability to an extent of 22% of left lower limb and 11% of the whole body. One more surgery is required for removal of implants. The PW3 in his cross examination has admitted that he was taken the x-ray, when he was approached for his assessment of disability found that the fracture is united and based on the discharge summary, he has assessed the disability of the petitioner, but he has admitted in the discharge summary has not mentioned about the surgery which was undergone by the petitioner and he has denied that the petitioner has not undergone any surgery, as he has sustained only simple injuries and he has admitted that the fracture is united.
19. The PW1 being the injured in his evidence has clearly stated that he has sustained the compound communited fracture of both bones left leg in a road traffic accident and also stated about the difficulties facing by him after the accident. The PW3 13 (SCCH-8) M.V.C.No.1954/2013 being the Orthopaedic Surgeon in his evidence has clearly stated about the complaints and disability of the petitioner after the accident. So, the evidence of the PW3 corroborate the evidence of the PW1. Ex.P8 is the wound certificate issued by the Mysore Hospital, Bangalore clearly reflects that the petitioner has sustained the following injuries;
1) Fracture of both bones of left leg.
20. So, the above said injury is grievous in nature. Ex.P6 is the discharge summary clearly reflects that the petitioner soon after the accident has got admitted to the Mysore Hospital, wherein he took the treatment as an inpatient from 17-02-2013 to 22-02- 2013 for a period of 6 days, in which also it is clear that the petitioner has sustained compound communited fracture both bones left leg. Ex.P9, Ex.P10 to Ex.P13 are clearly reflects that the petitioner has took the treatment in connection of the injury sustained by him in a road traffic accident and he was undergone the surgery and implants in situ. The learned counsel for the respondent No.2 while cross examination of the PW1 and PW3 has suggested that the petitioner has not undergone any surgery for which they have denied the same, but whereas Ex.P9, Ex.P11 to Ex.P13 are clearly reflects that the petitioner has sustained the fracture of both bones left leg and he was undergone the surgery and implants in situ. So considering the injury sustained by the 14 (SCCH-8) M.V.C.No.1954/2013 petitioner in a road traffic accident and the evidence of PW1 and PW3 as well as duration of treatment, it is just and necessary to grant just compensation to the petitioner in the following heads;
a)Pain and suffering.
The PW1 being the injured in his evidence has clearly stated that he has sustained compound communited fracture both bones left leg in a road traffic accident said to have been taken place on 17-02-2013 and took the treatment as an inpatient for a period of 6 days and he has undergone surgery. PW3 being the Orthopaedic Surgeon in his evidence has clearly stated about the complaints and disability of the petitioner after the accident. So considering the evidence of the PW1 and PW3 and the injuries sustained by the petitioner as well as the duration of treatment he would have sustained pain and agony for which, it is just and necessary to award compensation of Rs.50,000/- for the above head, it will meet the ends of justice. Hence, Rs.50,000/- is awarded for the above head.
b) Loss of income during laid up period:
The PW1 being the injured in his evidence has stated that prior to the accident he was hale and healthy by working as a medical representative and getting monthly income of Rs.25,000/- after the accident he could not do the work as before. The PW1 in his cross examination has admitted that he has not produced any 15 (SCCH-8) M.V.C.No.1954/2013 document to show that he was appointed as medical representative and he has admitted that his salary use to credited to his account, but the reasons best known to him has not placed the account extract to show that he was drawing monthly salary of Rs.25,000/-
and the said salary was credited to his account maintained in the bank, but he has produced the salary certificate marked as Ex.P7, but the reasons best known to him has not examined the author of the document to show that he was getting monthly salary of Rs.25,000/-, as the PW1 in his cross examination has admitted that he will examine the officer of the company to show that he was getting monthly salary of Rs.25,000/-, but the reasons best known to him has not examined any of the officers in the company where he was working as a medical representative to show his monthly income of Rs.25,000/-. In the absence of the materials on record, it is very difficult to believe the income of the petitioner as alleged in the claim petition. So considering the age and skill of the petitioner and the present life condition, it is just and necessary to consider the monthly notional income of Rs.8,000/- it will meet the ends of justice. Ex.P8 is the wound certificate clearly reflects that the petitioner has sustained compound communited fracture of both bones left leg. Ex.P6 is the discharge card clearly reflects that he has sustained the grievous injury and took the treatment as an inpatient for a period of 6 days. So, the petitioner might have lost 16 (SCCH-8) M.V.C.No.1954/2013 income for a period of three months. So three months income comes to Rs.24,000/-. So Rs.24,000/- is granted for the above head.
c) Medical expenses The PW1 being the injured in his evidence has stated that he has sustained the injury in a road traffic accident and took the treatment as an inpatient by spending huge amount, but on record the petitioner has produced the medical bills worth of Rs.29,830/- as per Ex.P9. Though the learned counsel for the respondent has disputed the medical bills produced by the petitioner, but nothing is placed on record to show that the medical bills produced by the petitioner are not relating to the injury sustained by him in a road traffic accident. So, in the absence of the materials on record, it is clear that the petitioner has took the treatment in connection of the injury sustained by him in a road traffic accident. Therefore, Rs.29,830/- is granted for the above head.
d) Loss of future earning:
The PW1 being the injured in his evidence has clearly stated that he has sustained compound communited fracture both bones left leg in a road traffic accident said to have been taken place on 17-02-2013 and took the treatment as an inpatient for a period of 6 days and he was undergone the surgery. The PW3 being the
17 (SCCH-8) M.V.C.No.1954/2013 Orthopaedic Surgeon in his evidence has clearly stated about the complaints and disability of the petitioner after the accident. According to him the petitioner has sustained permanent physical disability to an extent of 22% of left lower limb and 11% of whole body. The PW3 in his cross examination has admitted that the fracture is united. So, considering the evidence of the PW1 and PW3 and the medical records and the injury sustained by the petitioner and duration of treatment as well as his avocation, it is just and necessary to consider the disability of 8% of the whole body instead of 11%, it will meet the ends of justice. So, his income is already considered as Rs.8,000/- per month. Ex.P8 is the wound certificate and Ex.P6 is the discharge summary clearly reflects that as on the date of the alleged accident his age was 43 years. The petitioner in his claim petition itself he has clearly stated that as on the date of the alleged accident his age was 43 years. Therefore, his age is taken into consideration as 43 years as on the date of the alleged accident. So by virtue of the Sarlaverma Vs. Delhi Transport Corporation Ltd., reported in 2009 ACJ 1298 the multiplier applicable is 14. So the loss of future earning is works out as under;
Rs.8,000X12X14X8/100=1,07,520/-.
Hence, the petitioner is entitled for Rs.1,07,520/- for the above head.
18 (SCCH-8) M.V.C.No.1954/2013
e) Loss of amenities, conveyance, food and nourishment, attendant charges:
The PW1 being the injured in his evidence has clearly stated that he has sustained the injury in a road traffic accident said to have been taken place on 17-02-2013 and took the treatment as an inpatient for a period of 6 days and he has also took the treatment as an outpatient and undergone the surgery. The PW3 being the Orthopaedic Surgeon in his evidence has clearly stated about the complaints and disability of the petitioner after the accident. So considering the evidence of PW1 and PW3 and duration of treatment as well as the complaints and disability of the petitioner after the accident, it is just and necessary to grant Rs.30,000/- for the above head, it will meet the ends of justice. So Rs.30,000/- is granted for the above head.
f) Future medical expenses:
The PW1 being the injured in his evidence has clearly stated that he has sustained grievous injury and undergone surgery. The PW3 being the Orthopaedic Surgeon in his evidence has stated that one more surgery is required for removal of implants. The learned counsel for the respondent No.2 while cross examination of the PW3 has suggested, since the petitioner has not undergone any surgery, so the question of removal of implants does not arise for
19 (SCCH-8) M.V.C.No.1954/2013 which he has denied the same. Ex.P3 is the x-ray clearly reflects that the implants in situ. So considering the Ex.P13 and the medical records and the injury sustained by him in a road traffic accident and the evidence of the PW1 and PW3, it is just and necessary to grant Rs.15,000/- for the above head, it will meet the ends of justice. So Rs.15,000/- is granted for the above head.
21. Thus the total award stands as follows:
1.Pain and suffering Rs. 50,000-00
2.Loss of income during laid up Rs. 24,000-00 period
3.Medical bills Rs. 29,830-00
4.Loss of future earning Rs. 1,07,520-00
5.Loss of amenities, conveyance, Rs. 30,000-00 food and nourishment, attendant charges etc.
6.Future medical expenses Rs. 15,000-00 Total Rs. 2,56,350-00
22. The respondent No.1 being the owner of the offenidng vehicle in his written statement has stated that he has insured the vehicle with the respondent No.2. So, he is not liable to pay any compensation to the petitioner, but whereas the respondent No.2 being the insurer in his written statement has alleged that as on the date of the alleged accident the offending vehicle driver was not holding valid and effective driving licence and the owner of the offending vehicle has violated the terms and conditions of the policy.
20 (SCCH-8) M.V.C.No.1954/2013
23. The RW1 being the Assistant Manager of the respondent No.2 in his evidence has stated that as on the date of the alleged accident the offending vehicle driver was not holding valid and effective driving licence, but he has admitted about the issuance of the policy in respect of the offending vehicle in favour of the first respondent and he has stated that the owner of the offending vehicle has violated the terms and conditions of the policy, since the owner has plied the vehicle in the place where there was no permit. So, he is not liable to pay any compenstion to the petitioner. The RW1 in his cross examination has admitted that as on the date of the alleged accident the policy was in existence and he has also admitted that the vehicle is holding permit, but the owner has no right to ply the vehicle in the place of accident, as there was no permit and he has admitted that the accident was taken place at Anchepalya, but he has denied that there was an one program for which the police have diverted the vehicle through Hesaraghatta road.
24. The respondent No.2 has produced the documents marked as Ex.R1 to Ex.R6. Now the question arises whether the respondent No.1 being the owner can ply the vehicle in the place where there was no permit to ply the vehicle. So, this court drawn its attention on Section 2 (31) of M.V. Act reads like thus; 21 (SCCH-8) M.V.C.No.1954/2013 (31) "Permit" means a permit issued by a State or Regional Transport Authority or an authority prescribed in this behalf under this Act authorising the use of a motor vehicle as a transport vehicle.
25. In the above provision, it is clear that the permit has to be issued by the State or Regional Transport Authority or an authority prescribed in this behalf under this Act authorising the use of a motor vehicle as a transport vehicle. So this court drawn its attention on Section 66 of M.V. Act reads like thus;
Necessity for permits. - (1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used;
26. In the above provision, it is clear that no owner of a motor vehicle shall use or use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of 22 (SCCH-8) M.V.C.No.1954/2013 a permit granted or countersigned by a Regional or State Transport Authority. In the instant case Ex.R3 is the endorsement of renewal of stage carriage permit clearly reflects that the offending vehicle has got permit for the route from Sira to Bangalore and back via Kotta, Gidaganahalli, Dabbeghatta, Madhugiri, Gundhihalli, Puruvara, Byalya, Kodagadala, Arudi cross, Allipura, Arudi, Doddebelavangala, Hejjaji, SM Temple, Hessaraghatta, Dasarahalli, Jalahalli and back to perform one round trip per day by one vehicle on single point tax basis. Ex.R3 clearly reflects that the place of accident has not been shown.
27. The learned counsel for the petitioner while cross examination of the RW1 has suggested that there is a function at Anchepalya, thereby the police have diverted the vehicle through Hesaraghaata, if that is nothing is prevented to the petitioner to examine any independent witness to prove the said facts. Now the question arises whether diverting of the route by the police and if any accident occurred, whether the insurance company is liable to pay compensation, if the said facts is not comes within the purview of Section 66(3) M.V. Act. If the facts comes within the purview of Section 66(3) of M.V. Act then only the owner can ply the vehicle, but in the instant case it is not the facts as per Section 66(3) of the M.V. Act. So, it is clear that the owner has plied the vehicle in the place where the vehicle was not holding the permit, that itself is 23 (SCCH-8) M.V.C.No.1954/2013 clear that the owner of the offending vehicle has violated the policy conditions. Therefore, this court drawn its attention on the decision reported in 2011 AAC 3034 (KAR) in between New India Assurance Co. Ltd., Vs. M. Sureshappa and another in which it is held that;
"(B) Motor Vehicles Act (59 of 1988), Section 149 -
Liability of insurer - Breach of permit conditions - Vehicle involved plied beyond permitted limits - Owners has also not obtained fitness certificate to ply vehicle - Owner having committed violation of conditions of permit - Insurer cannot be fastened with liability to indemnify the claimant."
28. In the above said decision the insurance company has challenged the award passed by the Tribunal and his lordship held that owner has committed breach of permit conditions as the autorickshaw involved in the accident has been plied beyond the limits permitted under the permit as the insurer has examined the RTO of Haveri in his evidence clearly reveals the vehicle involved in the accident had been permitted to ply in Guttal Village and within 10 kms. The said Guttal village and the radius of 10 kms. comes within the Ranebennur Taluk of Haveri District and the accident was taken place at Mylar village in Hoovinahadagali Taluk of 24 (SCCH-8) M.V.C.No.1954/2013 Bellary District and the permit conditions did not allow the owner to ply outside the district.
29. In the instant case also the owner of the offending vehicle has plied the vehicle behind the limits permitted under the permit. Therefore, the decision as stated above is directly applicable to the case on hand. The Ex.R4 is the judgment passed by the SCCH-4 relating to the insurer which was arisen in the same accident, in that case also the clam petition was came to be dismissed against the insurer and the claim petition was allowed against the owner of the offending vehicle, but the reasons best known to the first respondent though, he has appeared through his counsel and filed the written statement, but he has not cross examined the RW1 nor the PW1 to PW3 or led evidence. So, it is clear that he has violated the policy conditions, that is the reason why, he has not led any evidence nor placed any materials to show that he was not violated the terms and conditions of the policy. So one thing is clear that the respondent No.1 being the owner of the offending vehicle has violated the policy conditions. Therefore, the respondent No.2 being the insurer is not liable to pay any compensation. Hence, the petition against respondent No.2 is deserves to be dismissed. The respondent No.1 alone is liable to pay the compensation with interest at the rate of 6% p.a. from the 25 (SCCH-8) M.V.C.No.1954/2013 date of the claim petition till its realization. In the result, the issue No.2 is answered as partly in the affirmative.
30. Issue No.3:
In view of my finding on issue Nos.1 & 2, I proceed to pass the following:
ORDER The petition filed by the petitioner under section 166 of M.V. Act as against the respondent No.2 is hereby dismissed.
The petition filed by the petitioner under section 166 of M.V. Act as against the respondent No.1 is partly allowed, with costs. The petitioner is entitled for compensation of Rs.2,56,350/- together with interest at the rate of 6% p.a. from the date of the claim petition till its realisation.
The respondent No.1 being the owner is directed to deposit the entire compensation amount with interest at the rate of 6% p.a. from the date of the claim petition till its realisation within a period of 30 days from the date of this order.
On deposit of the compensation amount together with interest, 40% of the amount shall be deposited in the name of the petitioner in any nationalised or scheduled bank of his choice for a period of three years and the remaining 60% shall be released to him by means of A/c payee cheque on proper identification. The 26 (SCCH-8) M.V.C.No.1954/2013 petitioner is at liberty to withdraw the periodical interest accrued on his deposit amount from time to time.
The expenses to be incurred for future medication shall not carry any interest.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
Dictated to the stenographer, transcript thereof, corrected by me and then pronounced in the open court on this the 06th day of February 2015.
(P.J. Somashekar), XII Addl. Judge-Member, MACT, Bangalore.
ANNEXURE List of the witnesses examined on behalf of petitioner:
PW1 Sri N. Purushotham Rao PW2 Sri Manjunath PW3 Dr. Ramesh B.
List of the documents exhibited on behalf of petitioner:
Ex.P1 True copy of Complaint Ex.P2 True copy of FIR Ex.P3 True copy of Panchanama Ex.P4 True copy of IMV Report Ex.P5 True copy of Charge sheet Ex.P6 Discharge summary Ex.P7 Pay slip Ex.P8 True copy of Wound Certificate 27 (SCCH-8) M.V.C.No.1954/2013 Ex.P9 Bill receipt Ex.P10 Authorization letter Ex.P11 Inpatient records Ex.P12 Outpatient book Ex.P13 2 X-ray films
List of the witnesses examined on behalf of respondents:
RW1 C.K. Surya Prakash List of the documents marked on behalf of respondents:
Ex.R1 Authorization letter
Ex.R2 Certified copy of Policy
Ex.R3 Certified copy of Permit endorsement
Ex.R4 Certified copy of Judgment and Award in MVC
2064/2013
Ex.R5 Copy of the notice issued to the owner
Ex.R6 Postal acknowledgment
(P.J. Somashekar),
XII Addl. Judge-Member, MACT,
Bangalore.