Bangalore District Court
Nagaraj vs Cholamandalam Ms General on 11 October, 2017
IN THE COURT OF THE XXII ADDITIONAL SMALL
CAUSES JUDGE AND XX ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE & M.A.C.T.,
BENGALURU (SCCH-24).
PRESENT: Smt. Zaibunnisa
B.Com.LL.B.
XXII Addl.Small Causes Judge & XX
A.C.M.M. & Member M.A.C.T., Bengaluru.
Dated This the 11th Day of October 2017.
M.V.C.No.4887/2015
Petitioner : Nagaraj,
Aged about 45 years,
S/o Kate Siddappa,
R/at #104, Dayananda Sagar
English School Road,
Y.V. Annaiah Main Road,
Kanakapura Road,
Bengaluru-560 078.
(Reptd.: By Sri. Girimallaiah,
Advocate- Bengaluru)
- Versus -
Respondents: 1. Cholamandalam MS General
Insur. Co. Ltd.,
Unit-04, 9th Floor,
(Level-06),
Golden Heights Complex,
59th Cross,
Industrial Suburb,
Rajajinagar 4th Block,
Bengaluru-560 010.
2 SCCH-24
M.V.C.4887/2015
(Insurer of Tractor & Trailer
KA-42-T-4756 & KA-42-T-4757)
(Reptd: By Sri. Y.P. Venkatapathi,
Advocate, Bengaluru)
2. Smt. Shivamma,
W/o Jayarame Gowda,
R/o Marigowdanadoddi Village,
Malligemettilu Post,
Maralawadi Hobli,
Kanakapura Taluk,
Ramanagara District.
(R.C. Owner of Tractor & Trailer
KA-42-T-4756 & KA-42-T-4757)
(Reptd:By Sri. M. Rajanna,
Advocate, Bengaluru).
(ZAIBUNNISA)
XXII A.S.C.J. & XX A.C.M.M.,
& MEMBER, M.A.C.T.,
Bengaluru.
3 SCCH-24
M.V.C.4887/2015
JUDGEMENT
The petitioner has filed this claim petition under Section 166 of the Motor Vehicles Act claiming the compensation of Rs.8,00,000/- on account of the injuries sustained by him in the Motor Vehicles Accident.
2. The brief case of the petitioner is as under:
That on 28.09.2015 at about 11.00 a.m., the petitioner was crossing the road carefully and cautiously in front of Vnkatadri Bar near Yelachenahalli. At that time one Tractor-Trailer bearing Reg.No.KA-42-T-4756 and KA-42-T-4757 came at high speed in a rash and negligent manner and dashed against the petitioner. Due to impact, petitioner was thrown on the road, sustained severe injuries to his right ankle, right clavicle.
Immediately the petitioner was shifted to Sri Sai Ram Hospital, wherein he was treated as an inpatient and he 4 SCCH-24 M.V.C.4887/2015 has undergone skin grafting operation. The doctors who have treated him have opined that the injuries are permanent in nature and advised him not to involve in any physical strain work for a minimum period of four months. Since then the petitioner is under treatment.
3. The petitioner submitted that, the accident occurred due to rash and negligent driving of the Tractor and Trailer bearing Reg.No.KA-42-T-4756 and KA-42-T- 4757 by its driver. In this regard, the Kumaraswamy Layout Traffic Police have registered a case against the driver of Tractor-Trailer bearing Reg.No.KA-42-T-4756 and KA-42-T-4757 in Crime No.108/2015 for the offences punishable under Section 279 and 338 of IPC. After investigation police have filed the charge sheet against him. At the time of accident 1st respondent was the insurer and the 2nd respondent was the R.C. owner of the said Tractor-Trailer. Hence, both respondents are 5 SCCH-24 M.V.C.4887/2015 jointly and severally liable to pay the compensation with cost and interest at the rate of 12% p.a.
4. After service of notice of the petition, respondent No.1 and 2 appeared through their respective counsels before the Tribunal and filed the detailed statement of objection separately.
5. The 1st and 2nd respondents submitted that, the petition is not maintainable either in law or on facts. They have denied the age, occupation, income, injuries sustained, treatment taken, amount spent, permanent disability and loss of income alleged to be sustained by the petitioner, date, time and place of accident, rash and negligent driving of the Tractor-Trailer by its driver and to put the petitioner to strict proof of the same.
6 SCCH-24 M.V.C.4887/2015
6. The 1st respondent specifically submitted that, this respondent has issued the policy in favour of 2nd respondent against his Tractor-Trailer bearing Reg.No.KA-42-4756 and T-4757, however the liability shall be strictly subject to the terms and conditions of the policy. It is submitted that, the driver of offending vehicle had no driving licence to drive the commercial vehicle, though he had licence to drive tractor for agricultural purpose. Further submitted that, the offending vehicle was insured for agriculture purpose but it has been used for commercial purpose, hence there is breach of policy conditions and the premium was not paid for commercial purpose. It is submitted that, the petitioner was crossing the road where he is not permitted to cross and there is total negligence on his part in occurrence of accident. If the compensation is granted, it shall be reduced to an extent of contributory negligence of the petitioner. It is submitted that, the 7 SCCH-24 M.V.C.4887/2015 claim made by the petitioner is highly exaggerated and in the event of award rate of interest shall be grant to 6% per annum or below. Accordingly the 1st respondent prayed to dismiss the petition.
7. The 2nd respondent submitted that, she is the registered owner of the Tractor-Trailer bearing Reg.No.KA-42-T-4756 and KA-42-T-4757, the said vehicle was insured with the 1st respondent and the policy was valid from 19.04.2015 to 18.04.2016. Further submitted that, the driver of the said vehicle was having valid and effective driving licence to drive the same on the date of accident. It is submitted that, in the event of awarding compensation, same shall be indemnified by the 1st respondent. Accordingly the 2nd respondent prayed to dismiss the petition.
8 SCCH-24 M.V.C.4887/2015
8. On the basis of above pleadings and the rival contentions of both the parties, the following issues are framed:-
ISSUES
1. Whether the petitioner proves that, he has sustained grievous injuries in a Road Traffic Accident that occurred on 28.09.2015 at about 11.00 a.m., infront of Venkatadri Bar, near Yelachenahalli, Bengaluru, due to rash and negligent driving of the Tractor & Trailer bearing Reg.No.KA-42-T-4756 & KA-42-T-
4757 by its driver?
2. Whether the petitioner is entitled for the compensation as claimed?
If so, to what amount and from whom ?
3. What order or award?
9. In order to substantiate the case made out by the petitioner, the petitioner got himself examined as P.W.1 and two witnesses examined as P.W.2 to P.W.3 9 SCCH-24 M.V.C.4887/2015 and got marked documents at Ex.P.1 to Ex.P.12. Thereafter, the petitioner closed his side evidence.
10. In order to rebut the evidence so placed on record by the petitioner, the 1st respondent examined two witnesses as R.W.1 and R.W.2 and got marked documents at Ex.R.1 to Ex.R.3. Respondent No.2 has not chosen to adduce evidence.
11. Heard the arguments. Perused the materials placed on record along with the rulings.
12. My findings on the above issues are as under:
Issue No.1 - In the Affirmative.
Issue No.2 - Partly in the Affirmative.
The petitioner is entitled
for a total compensation
of Rs.1,99,000/-, from
the respondent No.1 and
2.
Issue No.3 - As per final order,
for the following :
10 SCCH-24
M.V.C.4887/2015
REASONS
ISSUE No.1:
13. In order to prove the negligence on the part of the driver of the Tractor-Trailer bearing Reg.No.KA-42-T- 4752 and KA-42-4757 the petitioner himself entered into the witness box and filed affidavit in lieu of examination- in-chief and got examined as P.W.1. He reiterates the averments and the allegations made in the claim petition that, on 28.09.2015 at about 11.00 a.m., he was crossing the road carefully and cautiously in front of Venkatadri Bar near Yelachenahalli, at that time one Tractor-Trailer bearing Reg.No.KA-42-T-4756 and KA-42-T-4757 came at high speed in a rash and negligent manner and dashed against him. Due to impact, he was thrown on the road and sustained severe injuries. Further case of the petitioner is that, the Kumaraswamy Layout Traffic police have registered a criminal case in Crime No.108/2015 for 11 SCCH-24 M.V.C.4887/2015 the offences punishable under Section 279 and 338 of Indian Penal Code. Apart from the above said oral evidence the petitioner has relied upon the copies of police documents which are produced at Ex.P.1 to Ex.P.6. Out of which, Ex.P.1 is the First Information Report, Ex.P.2 is the Complaint, Ex.P.3 is the Mahazar, Ex.P.4 is the IMV Report, Ex.P.5 is the Charge Sheet and Ex.P.6 is the Wound Certificate. During the course of cross-examination, P.W.1 denied the suggestion of 1st respondent that, he was crossing the road hurriedly without observing the moving vehicles when there was no signal and dashed against the respondent's vehicle. Further denied the suggestion that, the accident occurred due to his own negligence, but the false case has been filed by creating the documents against the tractor in collusion with the police. Except the said suggestions nothing worthwhile material has been 12 SCCH-24 M.V.C.4887/2015 elicited from the mouth of this witness to discredit his version made in the examination-in- chief.
14. In support of his case petitioner has examined one eyewitness to the accident as P.W.3. P.W.3 in his affidavit evidence deposed that, on the date and place of accident he was going by the side of footpath. Further deposed that, petitioner after crossing 3/4th of the road, one Tractor bearing Reg.No.KA-42-T-4756 and KA-42- 4757 came at high speed from his right side in a rash and negligent manner and dashed against him. Further deposed that, due to which the petitioner thrown on the road, tractor wheel ran over his right foot, thereby the petitioner sustained crush injuries to his right foot and sever injuries to his right shoulder. During the course of cross-examination he has denied the suggestion put forth by the 1st respondent that, he has not witnessed the accident and it was not due to rash and negligent driving 13 SCCH-24 M.V.C.4887/2015 of the Tractor-Trailer, but in order to help the petitioner he has deposed falsely. During the course of cross- examination, P.W.3 deposed that after the accident he has shifted the injured petitioner to the hospital and he shown the accident spot to the police when they called him over phone. Except the suggestions, nothing worthwhile material has been elicited from the mouth of this witness which is adverse to the interest of the petitioner.
15. The 1st respondent, apart from denying the rash and negligent driving of the Tractor-Trailer bearing Reg.No.KA-42-T-4756 and KA-42-T-4757 by its driver has taken specific defence that, the petitioner has crossed the road where he is not permitted to cross and total negligence is on his part in occurrence of accident. In order to prove said defence the 1st respondent has examined the Assistant Manager as R.W.1. R.W.1 in his 14 SCCH-24 M.V.C.4887/2015 affidavit evidence deposed that, as per the police documents, complaint is filed belatedly and as per case sheet the petitioner had fall at home and got injuries and also availed compensation from Chief Minister's relief fund. Hence, the claim of the petitioner about the alleged accident is not believable. In order to substantiate the said aspects, the 1st respondent has not placed any material evidence except basing upon the case sheet produced on behalf of the petitioner. Whereas in his further chief examination through additional affidavit, P.W.1 deposed that, the tractor driver approached and requested him in the hospital not to lodge complaint against him and also he had promised to bear all hospital charges and medical expenses, thereafter he did not turn up to the hospital and not paid any amount for his treatment. Hence, he has lodged the complaint after 3 days of the accident. P.W.1 in his further evidence deposed that, he practiced to write only his name in 15 SCCH-24 M.V.C.4887/2015 Kannada except that, he did not know to read or write but totally illiterate. Further deposed that, since he was very poor and unable to pay entire hospital bills, he got prepared the requisition through an attender of fellow patient to avail concession in hospital bills. As such, said person has prepared the application and he had put his signature on it, but he does not know the contents of letter and the alleged contents of the said requisition that 'he fell in the house due to which he sustained injuries is' not correct.
16. On perusal of records produced by the petitioner i.e., Ex.P.1, a copy of First Information Report reveals that, the petitioner has sustained injuries in the accident occurred due to rash and negligent driving of the Tractor-Trailer bearing Reg.No.KA-42-T-4756 and KA- 42-4757 and the complaint has been lodged after lapse of three days of accident. But the reason for late complaint 16 SCCH-24 M.V.C.4887/2015 is clearly mentioned in the complaint that, the driver of tractor has promised to bear medical expenses, but later he did not turn up hence, he lodged the complaint belatedly after 3 days from the date of accident. The 1st respondent has not disputed the police documents. But on the basis of a requisition available with case sheet, it is only disputed that the petitioner has not sustained any injuries in the alleged accident, but due to self fall in his home he taken treatment and falsely implicated the insured vehicle to get the compensation. Whereas this defense is not taken in its statement of objection nor he has produced any supportive materials in this respect. In the absence of any cogent and contradictory evidence, the version of P.W.1 is to be believed. Ex.P.1, the First Information Report is prepared on the basis of complaint lodged as per Ex.P.2. The Mahazar produced at Ex.P.3 and the oral evidence of P.W.3 supports the case of the petitioner. These records discloses that, the Criminal 17 SCCH-24 M.V.C.4887/2015 Case has been registered against the driver of the Tractor-Trailer bearing Reg.No.KA-42-T-4756 and KA-42- T-4757 for the offences punishable under Sec.279 and 337 of the Indian Penal Code, Section 187, 134(b) of Motor Vehicles Act. After investigation, the police have filed the charge sheet against the driver of the said Tractor-Trailer for the offences punishable under Sec.279 and 338 of Indian Penal Code, Section 134 (b) r/w 187 of Motor Vehicles Act. The said charge sheet is not at all disputed by any of the respondents. It is not the case of the 1st respondent that, petitioner and 2nd respondent colluded with each other and filed the false case to get compensation. If at all the insured vehicle is implicated or the petitioner has filed false case against the driver of the Tractor, definitely he would have challenged the same before the concerned authority. But no such materials are placed in this case. Moreover petitioner got examined the eyewitness of the incident as stated above, who 18 SCCH-24 M.V.C.4887/2015 clearly deposed about the manner of accident and injuries sustained by the petitioner in the said accident. Under these circumstances, the evidence of P.W.1 and P.W.3 coupled with the contents of Ex.P.1 to Ex.P.6 establishes that the accident has caused solely due to rash and negligent driving of the Tractor-Trailer bearing Reg.No.KA-42-T-4756 and KA-42-T-4757 by its driver and the petitioner has sustained injuries in the said accident. Accordingly, issue No.1 is answered in the Affirmative.
ISSUE No.2:
17. The petitioner submitted that, he has sustained injuries in the said accident. He has relied upon Ex.P.6, i.e., the Wound Certificate issued by Sanjay Gandhi Institute of Trauma and Orthopaedic, Bengaluru. Ex.P.6 reveals that, the petitioner had sustained the following injuries:
19 SCCH-24 M.V.C.4887/2015
1. Deep abrasion present dorsum right foot- from toes to let part of ankle. Loss of skin present over let of ankle joint, bones exposed.
(PIRA right foot) Tenderness presence right clavicle.
X-ray shows fracture of clavicle right distal end.
As per Ex.P.6 the above injuries are grievous in nature. There is no much dispute with regard to the injury sustained by the petitioner. In view of the findings recorded on issue No.1, the petitioner has suffered injuries because of the actionable negligence on the part of the driver of the Tractor-Trailer bearing Reg.No.KA-42- T-4756 and KA-42-T-4757. Hence, the petitioner is entitled for the compensation.
18. It is stated in the petition, as well as in the evidence that, the petitioner has taken first aid at Sri Sai Ram Hospital and later taken treatment at Sanjay Gandhi Hospital as an inpatient for 31 days. P.W.1 20 SCCH-24 M.V.C.4887/2015 deposed that, he has undergone operation, skin grafting and his right clavicle treated with cuff and coller. Further deposed that, he was discharged with an advise to come to OPD after one week as such he has taken follow-up treatment. Taking into consideration of the nature of injuries, duration of the treatment as an in and out patient, I am of the considered opinion that, the petitioner has suffered severe pain because of the said accidental injuries. Hence, the petitioner is entitled for a sum of Rs.30,000/- towards pain and sufferings.
19. It is the evidence of P.W.1 that, he had spent a sum of Rs.50,000/- towards medical, conveyance, attendant and nourishment expenses. But he has lost some of medical bills and produced only available bills. In this regard petitioner has produced 11 Medical Bills amounting to Rs.15,175/- and 2 Prescriptions at Ex.P.9. During the course of cross-examination P.W.1 denied the 21 SCCH-24 M.V.C.4887/2015 suggestions put by the 1st respondent that, the owner and driver of the Tractor-Trailer have provided treatment to him and they have paid Rs.10,000/- towards medical expenses. But he has deposed that, they have given Rs.5,000/-. P.W.1 shows his ignorance as to the suggestion that, the bills at Sl.No.3 to 11 are included in Inpatient bill. P.W.2, the doctor in his cross-examination admitted that, out of the medical expenses incurred by the petitioner, a sum of Rs.6,308/- was reimbursed from the Chief Minister Relief Fund. But the 1st respondent has not at all rebutted the said medical records with cogent oral or documentary evidence. Taking into consideration of the nature of the injury and the treatment as an inpatient, outpatient and reimbursement taken by the petitioner from Chief Minister Relief Fund, I am of the opinion that the petitioner is entitled for a sum of Rs.8,867/- towards Medical expenses.
22 SCCH-24 M.V.C.4887/2015
20. It is the case of the petitioner that, immediately after the accident he was shifted to Sri Sai Ram Hospital, after first aid he was shifted to Sanjay Gandhi Hospital, wherein he was treated as an inpatient for 31 days. P.W.1 deposed that, he took follow-up treatment as per advise of doctors. In order to prove said aspects P.W.1 has produced Ex.P.7 the Discharge Summary, issued by Sanjay Gandhi Institute of Trauma and Orthopedics, Bengaluru. Ex.P.7 shows that, the petitioner was admitted as an inpatient from 28.09.2015 to 29.10.2015 for a period of 31 days. During this period the petitioner must have spent money for food and nourishment. Except the said document petitioner has not produced any other material evidence. The nature of injuries necessitates the follow-up treatment for physiotherapy and attendant. By considering the above said oral and documentary evidence and having regard to all the above said aspects, I am of the considered opinion 23 SCCH-24 M.V.C.4887/2015 that, the petitioner is entitled for the compensation of Rs.25,000/- towards food and nourishment expenses, attendant and conveyance charges.
21. It is stated in the petition as well as in the evidence of P.W.1 that, prior to the accident he was doing welding/fabrication work and earning a sum of Rs.10,000/- per month. After the accident due to injuries he is not able to do any manual work and lost earnings. In order to show his avocation and income, petitioner has not produced any material evidence nor examined his employer. Under such circumstances the income shown by the petitioner is seems to be at higher side and it cannot be considered as his exact and regular income. However, considering the age and avocation of the petitioner, I am of the opinion that, if the income of the petitioner is inferred at Rs.7,000/- per month that would meet the ends of justice. The evidence of P.W.1 24 SCCH-24 M.V.C.4887/2015 and medical documents reveals that the petitioner has taken treatment as an inpatient for 31 days and taken follow-up treatment. Taking all these facts into consideration, I am of the considered opinion that, the petitioner could not do his normal activities for a period of three months. Hence, the compensation of Rs.21,000/- (i.e., Rs.7,000/- X3 ) is awarded towards loss of income during the period of treatment.
22. It is the evidence of P.W.1 that, after the accident he is not able to walk, stand long time, sit in crossed leg, climb stairs and he is limping while walk, there is abnormal deformity and restriction of movement in his right foot and getting severe pain if he walk little distance. P.W.1 deposed that, due to accidental injuries he has sustained permanent disability, not able to do any manual work including welding fabrication work, thereby he has lost future earnings. The petitioner in support of 25 SCCH-24 M.V.C.4887/2015 his evidence got examined P.W.2 Dr. Prakashappa T.H., Professor of Orthopedics at S.I.T.O., Bengaluru. P.W.2 deposed that, on 28.09.2015 he has examined the petitioner who came to hospital with history of RTA and found crush injury right foot. Further deposed that, X- ray was taken and POP slab was applied, regular dressing was done and on 15.10.2015 under spinal anesthesia the raw area over the right foot was covered with skin graft. Further deposed that, lastly he examined the petitioner clinically and radiologically on 09.11.2016 and assessed the disability. P.W.2 assessed total permanent physical disability to the whole body from right lower limb at 15% to the petitioner and deposed that, the said disability is permanent in nature and with this disability petitioner finds difficulty to do manual work. He has produced Case Sheet and X-ray film at Ex.P.10 and Ex.P.11. During the course of cross- examination P.W.2 admitted that, petitioner has not 26 SCCH-24 M.V.C.4887/2015 sustained any fracture but he has sustained crush injury and it is not mentioned in the records produced by him that, the petitioner has sustained crush injury, but it is mentioned as injury only. He further admitted that, the crush injury is now healed and also admitted that, skin grafting to the petitioner is done by the plastic surgery section. He denied that, 1/3rd of the disability assessed to the particular limb are to be considered as disability to the whole body. On considering the materials placed on record, evidence of P.W.2 that fractures sustained by the petitioner are united and also considering the condition of the petitioner, it appears that the disability shown by P.W.2 is seems to be at higher side to the injury sustained by the petitioner. Therefore it is just and proper to consider the whole body disability at 8%. So, there is loss of future income of Rs.560/-(Rs.7,000X8%) per month. In the cause title the age of the petitioner is shown as 45 years. In order to show his exact age, 27 SCCH-24 M.V.C.4887/2015 petitioner has not produced any material evidence. The medical records shows the age of petitioner was 45 years at the time of accident. Whereas the leanred counsel for 1st respondent though suggested during the course of cross-examination that, petitioner is not aged about 45 years but he is more than 55 years old, but he is deposing falsely. In support of his denial, the 1st respondent has not produced any materials. Considering the available materials on record, his age is considered as 45 years at the time of accident and the proper multiplier to be adopted in the case on hand is '14'. Thus, the petitioner is entitled for the compensation of (Rs.560/-x12x14) Rs.94,080/- towards Loss of Future Earnings.
23. The injuries sustained by the petitioner shows that he must have sustained major pain and suffering. The accident has put him into discomfort and he has lost 28 SCCH-24 M.V.C.4887/2015 the amenities of life to some extent. Taking all these facts into consideration, the petitioner is entitled for a compensation of Rs.20,000/- towards Loss of Amenities of Life. Thus I am of the considered opinion that, it would be both fair and justifiable to award the compensation under the following heads :
1. Pain and suffering Rs. 30,000=00
2. Medical expenses. Rs. 8,867=00
3. Food and Nourishment Rs. 25,000=00 expenses, Conveyance and Attendant Charges.
4. Loss of income during Rs. 21,000=00 treatment period.
5. Loss of future earnings. Rs. 94,080=00
6. Loss of amenities of life. Rs. 20,000=00 Total: Rs. 1,98,947=00 So, the petitioner is entitled for a total compensation of Rs.1,98,947/-, which is rounded of to Rs.1,99,000/-
(Rupees One Lakh Ninety Nine Thousand only) with interest at the rate of 8% per annum from the date of petition till the date of realization.
29 SCCH-24 M.V.C.4887/2015
24. It is held supra by this Tribunal that, the accident has occurred due to the rash and negligent driving of the Tractor-Trailer bearing Reg.No.KA-42-T- 4756 and KA-42-T-4757 by its driver. The 1st respondent has taken specific defence that, the driver of said tractor- trailer had no driving licence to drive the commercial vehicle, though he had licence to drive tractor for agricultural purpose. Further submitted that, the offending vehicle was insured for agriculture purpose but it has been used for commercial purpose, hence there is breach of policy conditions and the premium was not paid for commercial purpose. Hence this respondent has no obligation of indemnification and prayed to dismiss the petition. In order to substantiate the said defence the 1st respondent has examined two witnesses as R.W.1 and R.W.2.
30 SCCH-24 M.V.C.4887/2015
25. R.W.1-Anand M., the Assistant Manager of 1st respondent company in his affidavit evidence apart from reiterating the defence raised in the objection statement deposed that, the tractor is used for commercial purpose it was supposed to have permit to ply as transport vehicle. Hence, the tractor-trailer should have been insured as commercial vehicle and there was need for holding permit. Further deposed that, the 2nd respondent has failed and neglected to discharge his obligations under the contract of insurance. He has produced copy of policy at Ex.R.1. During the course of cross- examination he has denied that, though the driver of tractor was having valid D.L., his company, to avoid its liability to pay compensation denying that the driver had no valid D.L. It is also suggested that the owner of the vehicle has not violated any conditions therefore his company is liable to pay compensation to the petitioner.
31 SCCH-24 M.V.C.4887/2015
26. R.W.2-Nagaraj S. Nayak, Motor Vehicle Inspector, Regional Transport Office, Raichur in his evidence deposed that, D.L. as per Ex.R.3 is issued to drive tractor for agricultural purpose only and it cannot be used for commercial purpose, if it can be used for commercial purpose separate endorsement shall be made in D.L. R.W.2 has produced Authorization Letter and D.L Extract at Ex.R.2 and Ex.R.3. During the course of cross-examination, R.W.2 deposed that, the driver Ningappa had availed D.L. on 07.03.2014 to drive Tractor and Trailer and it is for non-commercial purpose and the validity of said D.L. is upto 06.03.2034 and he admitted that, the said driver has possessed D.L. to drive tractor and trailer for agricultural purpose, but denied that, driver has D.L. to drive both transport and non-transport vehicles. In the later part he admitted that, one can use the said D.L. to transport only agricultural products.
32 SCCH-24 M.V.C.4887/2015
27. In support of his contention the learned counsel for the petitioner has relied on the following decisions:
1. 2017 ACJ 1362, in Lal Singh Marabi Vs. National Insurance Co. Ltd., and others, it is held that:
" Motor Vehicles Act, 1988, section 149(2) (a) (ii) - Motor insurance -
Driving licence - Liability of insurance company - Pay and recover order - Minibus turned turtle and a passenger sustained injuries - Driver of offending minibus had no valid licence at the time of accident - Whether insurance company is liable
- Held: no; insurance company directed to pay the compensation to claimant and recover the amount from owner and driver of the minibus".
2. AIR 2017 Supreme Court 1822 in Kempaiah and Others Vs. S.S. Murthy and Another, it is held that:
" (B) Motor Vehicles Act (59 of 1988), S. 147 - Liability of insurer - Breach of policy condition - Driver of offending vehicle having no valid licence on date of accident - Failure by insured to take reasonable care 33 SCCH-24 M.V.C.4887/2015 regarding policy condition relating to disqualification of driver - Insurer, not liable - However, insurer directed to satisfy award and thereafter recover amount from owner of vehicle".
3. 2004 ACJ 1 in National Insurance Co.Ltd., Vs. Swarna Singh and Others, it is held that:
"Motor Vehicles Act, 1988, section 149 (1) and (2) - Motor insurance - Defences available to insurance company -
Liability of insurance company- Whether the insurance company is liable to satisfy the award in favour of third party at the first instance and then to recover the awarded amount from the owner or driver of the vehicle even where the insurance company could establish breach of terms of policy on the part of the owner of the vehicle - Held: yes; this position is holding the field for a long time; doctrine of stare decisis persuades not to deviate."
Further held that:
"Motor Vehicles Act, 1988, section 149 (2) (a) (ii) - Motor insurance - Diving licence - Defences available to insurance company - Driver possessing 34 SCCH-24 M.V.C.4887/2015 licence for one type of vehicle but found driving another type of vehicle- Whether liability of insurance company would depend upon the fact that driver not possessing requisite type of licence was the main or contributory cause of accident or not - Held: yes; insurer will not be allowed to avoid its liability merely on technical breach of conditions concerning driving licence".
2016 ACJ 383, in Chakali Swaroopa and Others, Vs. Mohd, Ghouse and Another, it is held that:
"Motor Vehicles Act, 1988, section 149(2) (a) (ii) read with section 2 (21) and 10 (2) (d)- Motor insurance - Driving licence - Liability of Insurance company - Insurance company disputes its liability on the ground that driver of offending vehicle was possessing licence to drive light motor vehicle (non transport) but he was driving tractor-trolley which is a light motor vehicle but a transport vehicle - Driver had licence to drive LMV and he was driving same class/type of vehicle - Driving skill required to drive LMV (NT) and LMV(T) is one and the same - No material on record to establish that proximate cause for the accident was not 35 SCCH-24 M.V.C.4887/2015 having a valid and effective driving licence - Whether mere absence of obtaining necessary endorsement/ badge on the licence by itself would amount to fundamental breach of policy so as to absolve insurance company from liability - Held: no; section 10 (2) (d) does not specifically provide different forms of licences in respect of light motor vehicle".
The respondent insurance company, failed to establish that non obtaining an endorsement in the D.L. to drive commercial vehicle by the driver of Tractor-Trailer was so fundamental breach which has contributed to the cause of the accident and for no endorsement in the D.L. of the drier of offending vehicle to drive commercial vehicle, the insurer is to be exonerated from its liability"; this is what held by Hon'ble Apex court recently in the above stated decisions relied on by the petitioner. Under such circumstances of the case I am of the opinion that the 1st respondent company cannot be exonerated from its 36 SCCH-24 M.V.C.4887/2015 liability from paying compensation to the petitioner who is 3rd arty to the contract of insurance between respondent no. 1 and 2. Respondent No.1 has admitted the issuance of policy and its force at the time of accident. Hence, respondent No.1, the insurer and respondent No.2, the R.C. Owner of the said Tractor- Trailer, are jointly and severally liable to pay the compensation to the petitioner. Accordingly, issue No.2 is answered partly in the Affirmative. ISSUE No.3:
28. For the foregoing reasons and the discussions as stated above, the petition filed by the petitioner deserves to be allowed in part with costs.
In result, I proceed to pass the following:
ORDER The claim petition filed under Section 166 of the Motor Vehicles Act by the petitioner is hereby allowed in part with costs.
37 SCCH-24 M.V.C.4887/2015 The petitioner is awarded a total compensation of Rs.1,99,000/-
(Rupees One Lakh Ninety Nine Thousand only) with interest at the rate of 8% per annum from the date of petition till the date of realization.
The respondent No.1 and 2 are jointly and severally liable to pay the compensation awarded in this case to the petitioner.
The respondent No.1 shall deposit the said compensation amount into the Tribunal within 60 days from the date of this order.
The petitioner is at liberty to withdraw the entire compensation amount with accrued interest.
Advocate's fee is fixed at Rs.1,000/-
Draw award accordingly.
(Dictated to the stenographer directly on computer, typed by her, corrected by me and then pronounced in the open court on this the 11th day of October, 2017).
(ZAIBUNNISA) XXII A.S.C.J. & XX A.C.M.M., & MEMBER, M.A.C.T., Bengaluru.
38 SCCH-24 M.V.C.4887/2015 ANNEXURE Witnesses examined on behalf of the Petitioner :
P.W.1 - Nagaraj. P.W.2 - Dr. Prakashappa T.H. P.W.3 - Karthik.
Witnesses examined on behalf of the Respondents:
R.W.1 - Anand M. R.W.2 - Nagaraj S. Nayak.
Documents marked on behalf of the Petitioner:
Ex.P.1 - Copy of the First Information Report. Ex.P.2 - Copy of the Complaint. Ex.P.3 - Copy of the Mahazar. Ex.P.4 - Copy of the IMV Report. Ex.P.5 - Copy of the Charge Sheet. Ex.P.6 - Copy of the Wound Certificate. Ex.P.7 - Discharge Summary. Ex.P.8 - 11 Medical Bills.
Ex.P.9 - 2 Prescriptions.
Ex.P.10 - Case Sheet.
Ex.P.11 - One X-ray Film.
Ex.P.12 - Accident Register Extract. Documents marked on behalf of the Respondents:
Ex.R.1 - Copy of the Insurance Policy. Ex.R.2 - Authorization Letter of P.W.2. Ex.R.3 - D.L. Extract.
(ZAIBUNNISA) XXII A.S.C.J. & XX A.C.M.M., & MEMBER, M.A.C.T., Bengaluru.