Bangalore District Court
Unknown vs Mr. Kandan on 20 February, 2020
IN THE COURT OF THE IX ADDL. SMALL CAUSES, C/c XXII
ASCJ AND ADDL. MACT., BANGALORE, (SCCH-24)
Dated this the 20th Day of February 2020
PRESENT: SMT. SUJATHA, S. B. COM., LL.B.,
IX Addl. Small Causes Judge
C/c XXII ASCJ & ACMM,
Member- MACT, Bangalore.
M.V.C. No.1740/2014
PETITIONER :
Smt. Hanumakka,
W/o C.T. Rangaswamy,
Aged abouot 65 years,
Residing at : No.11-1, 15th cross,
S.R. Nagar, Shivajinagar,
Bangalore-560027.
(By Sri. M.R. Kumara Swamy, Adv.)
-VS-
RESPONDENTS:
Mr. Kandan
S/o Kath Varan
No.126, C/o S. Ramesh,
Kannappa Building,
Chikka Devasandra,
K.R. Puram, Bangalore-560 036.
(Owner of the Motor Cycle Bearing Reg.No.KA-53-ED-728).
2 M.V.C.No.1740/2014
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2. IFFCO-TOKIO General Insurance Co. Ltd.,
KSCMF Building,
3rd Floor, Block No.8,
Cunningham Road,
Bangalore-560 052.
(Insurer of Motor Cycle bearing Reg.No.KA-53-ED-728).
Policy No.1-2BK3QPL Validity from 24.09.2013 to 23.09.2014.
(Res.1: Exparte.
(Res.2: By Sri. S.R. Murthy, Advocate, Bengaluru).
JUDGMENT
1. This petition is filed under Section 166 of I.M.V. Act.
As per the Judgment dated 29.02.2016 my learned predecessor in my office dismissed the petition. Aggrieved by the judgment dated 29.02.2016 the Petitioner has preferred MFA before Hon'ble High Court of Karnataka. As per the Judgment dated 26.03.2019 the Hon'ble High Court of Karnataka in MFA No.8294/2016(MV) remanded for fresh disposal.
2. The Brief facts of the petitioner case is that: On 02.03.2014 at about 6.30 a.m., the petitioner was crossing the road, on R.R.M. Road, infront of Pallavi Theater, Bangalore. At that time the rider of motor cycle bearing Reg.No.KA-53-ED-728 ridden the same in rash and negligent manner with high speed and dashed to the petitioner. Due to impact, the petitioner fell down and sustained grievous 3 M.V.C.No.1740/2014 SCCH-24 injuries. The petitioner stated that, immediately after the accident she was shifted to P.D. Hinduja Sindhi Hospital, Bangalore, wherein, she took treatment as an inpatient from 02.03.2014 to 06.03.2014. During the course of treatment she undergone several clinical examinations it was found that, she sustained fracture displaced shaft right humerus. The petitioner stated that, she has spent Rupees 80,000/- towards medical expense and Rs.20,000/- towards food, conveyance and nourishment expenses. The petitioner stated that, prior to the date of accident she was aged 51 years and she was doing Sari business and earning Rs.10,000/- per month. Due to accidental injuries she is not in a position to do sari business and also unable to walk as prior to the accident. Doctor has advised her to take complete bed rest for a period of 6 months. She stated that, due to loss of income and earning capacity her family is put under great hardship and she is undergoing mental shock and agony. Petitioner stated that the accident occurred due to rash and negligent act of rider of motor cycle bearing No.KA-53-ED- 728 and criminal case was registered against the rider of the Motor cycle for the offences punishable under Section 279, 337 of IPC and U/s 134(A&B) R/w Section 187 of IMV Act. Petitioner stated that the Respondent No.1 being the owner of motor cycle bearing registration No.KA-53-ED-728 and respondent No.2 being insurer of said motor cycle are jointly and severally liable to pay compensation 4 M.V.C.No.1740/2014 SCCH-24 to her. Under these circumstances, the Petitioner prayed to allow the petition.
3. After remand the counsel for petitioner and respondent No.2 appeared before the court. The counsel for petitioner taken summons to respondent No.1 through paper publication. However, inspite of service of summons through paper publication, the respondent No.1 not appeared before the court. Hence he placed exparte. The respondent No.2 filed objection to main petition.
4. In the objection statement the Respondent No.2 stated that it has issued a policy of insurance in favour of Respondent No.1 in respect of motor cycle bearing registration No.KA-53-ED-728 and the liability of this respondent is subject to the terms and conditions of the policy of the insurance, provisions of the MV Act and valid and effective Driving Licence of the rider of the motor cycle as on the date of accident. The Respondent No.2 stated that the owner of vehicle has not complied with section 134(C) of MV Act 1988 and the jurisdictional Police have not complied with provision of 158(6) of IMV Act. Respondent No.2 seeks protection under Section 170 of IMV Act to take defence on all grounds. The respondent No.2 stated that, the rider cum owner of motor cycle bearing No.KA-53-ED-728 was not holding valid and effective DL as on the date of accident 5 M.V.C.No.1740/2014 SCCH-24 and further was not qualified for holding such DL and further not satisfied the requirements of the Rule 3 of the Central Motor Vehicles Rules 1989. The respondent No.1 knowing fully well that that he did not possess valid and effective driving licence, ridden the Motor Cycle and committed breach of terms and conditions of the policy. Hence the respondent No.2 is not liable to pay compensation to the petitioner. The respondent No.2 stated that, the rider cum owner of motor cycle bearing No.KA-53-ED-728 was having learner licence as on the date of accident, the rider of the vehicle violated the rule 3 of the Central Motor Vehicles Rules 1989. As per Rule 3(c) of Central Motor Vehicles rules 1989, owner of motor cycle did not affixed the 'L' board plate on the front and rear side of the vehicle and not accompanied with DL Holder at the time of alleged accident. Hence, the rider cum owner of the motor cycle violated the Rule 3(c) of the Central Motor Vehicle Rules 1989 and terms and conditions of the policy. The respondent No.2 stated that, further it can safely gathered from the police documents that the complaint lodged before the jurisdictional police station after lapse of two days of the alleged date of accident, which are after thought and created for the purpose of getting compensation from the Insurance Company. The Respondent No.2 stated that, the alleged accident has not taken place and the petitioner has not sustained any injuries due to alleged accident. Hence it is clear that the vehicle was not involved in the accident. The 1 st respondent has violated the terms 6 M.V.C.No.1740/2014 SCCH-24 and conditions of the policy and provision of MV Act by riding his motor cycle without having valid and effective Driving licence on the date of accident and further was not qualified for holding such driving licence and not satisfied the requirements of the Rule 3 of the Central Motor Vehicles Rules 1989. Further Respondent No.2 denied age, avocation and income of petitioner. Under these circumstances Respondent No.2 prayed to dismiss the petition.
5. On the basis of the above pleadings, issues are framed as follows:
ISSUES
1) Whether the petitioner proves that she has sustained grievous injuries in the Road Traffic Accident that occurred on 02.03.2014 at about 6.30 a.m., while she was pedestrian was crossing the road, on RRMR Road, in front of Pallavi Theater, Bangalore, due to the rash and negligent riding of the Motor Cycle bearing Reg.No.KA-53-ED-728 by its rider as alleged?
2) Whether the petitioner is entitled for the compensation as claimed? If so, to what amount and from whom?
3) What order or Award ?
6. In this case, the Petitioner got examined herself as P.W.1 and got marked 16 documents as per Ex.P1 to Ex.P16. On behalf of 7 M.V.C.No.1740/2014 SCCH-24 petitioner witness by name Dr. Manohar got examined as PW.2 and got marked 3 documents as per Ex.P.17 to Ex.P.19. The respondent No.2 examined witness by name P. Shanthakumar, ARTO, K.R.Puram as RW.1 and got marked one document as per Ex.R.1, witness by name B.S. Anand, Sub-Inspector of Police, Halasuru Gate Traffic Police station as RW.2, witness by name Girisha. M, Assistant Legal Executive of Respondent No.2 as RW.3 and got marked 4 documents as per Ex.R.2 to Ex.R.5(a), witness by name Sri. Chandan, Medical Record Technician at P.D. Hinduja Sindhu Hospital got examined as RW.4 and got marked 2 documents as per Ex.R.6 and Ex.R.7 and witness by name Dasaiah. V, PSI, Halasuru Gate Police station as RW.5 and got marked 2 documents as per Ex.R.8 and Ex.R.9.
7. Heard the arguments. The learned counsel for respondent No.2 filed written arguments. The Learned Counsel for Respondent No.3 relied on decision laid-down in ILR 1998 KAR 1934, ILR 2004 KAR 1104, 2005 ACJ 1323 SC, Rule 3(c) of the Central Motor Vehicles Rules 1989, LAWS (SC) 1995 1237 and MFA No.659/1994. This Court taken note of ratio laid down in these citations.
8. My findings on the above said issues are as under:
Issue No. 1: Partly in the Affirmative.
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Issue No. 2: Partly in the Affirmative.
Issue No. 3: As per final order
for the following:
REASONS
9. Issue No.1 : P.W.1 deposed that, on 02.03.2014 at about
6.30 a.m., she was crossing the road, on R.R.M. Road, infront of Pallavi Theater, Bangalore and at that time the rider of motor cycle bearing Reg.No.KA-53-ED-728 ridden the same in rash and negligent manner with high speed and dashed against her. P.W1 stated that, due to impact, she fell down and sustained fracture displaced shaft right humerus and injuries all over the body. P.W1 stated that, immediately after the accident she was shifted to P.D. Hinduja Sindhi Hospital, Bangalore, wherein, she took treatment as an inpatient from 02.03.2014 to 06.03.2014 and undergone surgery. P.W1 stated that said accident occurred due to rash and negligent act of rider of motor cycle bearing registration No.KA-53-ED-728.
10. In order to prove her case, P.W.1 has produced Ex.P1 FIR, Ex.P.2 Complaint, Ex.P.3 Further Statement, Ex.P.4 Charge Sheet, Ex.P.5 Mahazar, Ex.P.6 Sketch, Ex.P.7 IMV Report, Ex.P.8 Wound Certificate and Ex.P.9 Discharge Summary. In the cross-examination by the counsel for Respondent No.2 P.W.1 admitted that, she was 9 M.V.C.No.1740/2014 SCCH-24 crossing the road. She stated that, at that time she alone crossing the road. P.W1 stated that she observed the motor cycle at 10 feet distance. PW.1 stated that, 2 days after the accident her son Puttaraju has lodged the complaint. She stated that, at the time of filing compliant the registration number of motor cycle has been mentioned as KA-05-ED-728. P.W1 denied the suggestion that, by colluding with owner, the motor cycle bearing No.KA-53-ED-728 has been falsely implicated in the accident case.
11. In this case on going through Ex.P.1 FIR and Ex.P.2 Complaint it is noticed that one Puttaraju has lodged the complaint on 04.03.2014 and based on said complaint Halasuru Gate Traffic Police have registered Crime No.7/2014 against the rider of motor cycle bearing registration No.KA-05-ED-728 for the offences punishable under Sections 279 and 337 of IPC and U/s 134(A&B), r/w 187 of IMV Act. Ex.P.3 is the copy of further statement of complainant stating that, in the complaint the registration number of vehicle has been falsely mentioned as KA-05-ED-728 instead of KA- 53-ED-728. Ex.P.5 Spot Mahazar and Ex.P.6 Sketch reveals that the accident occurred infront of Pallavi Theatre on RRMR Road near road median. Ex.P.5 and 6 reveals that, in the accident spot there is no provision for the pedestrian to cross the road. Further RW.5 the Investigating Officer also stated that as per Ex.P.6 the accident occurred on one way road and there is no pedestrian cross in the 10 M.V.C.No.1740/2014 SCCH-24 said place. The petitioner admitted that, she was crossing the road and as per Spot Mahazar, Sketch and evidence of RW.5 there is no provision for pedestrian to cross the road and the accident occurred near road median, hence it makes clear that the petitioner crossed the road wherein there is no provision for the pedestrian cross the road. As such there is contributory negligence on the part of Petitioner to the accident. In Ex.P.7 IMV Report the Motor Vehicle Inspector reported that front left side head light doom of the motor cycle sustained damages. Ex.P.8 Wound Certificate issued by P.D. Hinduja Sindhi Hospital, reveals that the Petitioner has sustained lacerated wound over the nose measuring 3x1 cms, multiple abrasion over the right arm, right shoulder, right knee, Fracture of pelvic bone, inferior pubic rami and anterior column fracture right side and blunt injury on abdomen pelvis. The doctor opined that, injury No.1, 2 and 4 are simple and injury No.3 is grivious in nature. Ex.P.9 Discharge Summary reveals that the Petitioner has taken treatment at P.D. Hinduja Sindi Hospital as an inpatient from 02.03.2014 to 06.03.2014 and she undergone surgery on 04.03.2014. In this case the respondent No.2 got examined witness by name Chandan, Medical Record Technician of P.D. Hinduja Sindi Hospital as RW.4. He has produced Ex.R.6 Copy of MLC Register Extract and Ex.R7 Copy of Police Intimation. These documents reveals that the MLC was registered at P.D. Hinduja Sindi Hospital, Bengaluru and the accident information was sent from P.D. Hinduja 11 M.V.C.No.1740/2014 SCCH-24 Sindi Hospital to Sub-Inspector of Police, S.R.Nagar Police station on 02.03.2014. Further as per Ex.P.4 the Investigating Officer after the investigation has filed Charge Sheet against Kandan, the rider of motor cycle bearing bearing registration No.KA-53-ED-728 for the offences punishable under Sections 279 and 338 of IPC and U/s 134(A&B) r/w 187 of IMV Act. Under the circumstances the oral evidence of P.W.1 and documentary evidence produced by the petitioner makes clear that, the motor cycle bearing registration No.KA-53-ED-728 involved in the accident and there is some extent of contributory negligence on the part of Petitioner to the said accident, which is attributed at 10% and in the said accident the petitioner has sustained injuries. For the aforesaid reasons, I have answered Issue No.1 partly in the Affirmative.
12. Issue No. 2: P.W.1 stated that in the accident she sustained lacerated wound over the nose measuring 3x1 cms, multiple abrasion over the right arm, right shoulder, right knee, Fracture of pelvic bone, inferior pubic rami and anterior column fracture right side and blunt injury on abdomen pelvis and immediately after the accident she was shifted to P.D. Hinduja Sindi Hospital, Bangalore wherein she has taken treatment as an inpatient from 02.03.2014 to 06.03.2014 and undergone surgery on 04.03.2014. In support of her contention P.W.1 has produced Ex.P.8 Wound Certificate and Ex.P.9 Discharge Summary. Further the petitioner got examined 12 M.V.C.No.1740/2014 SCCH-24 witness by name Dr. Manohar, of P.D. Hinduja Sindi Hospital P.D. Hinduja Sindi Hospital Hospital as PW.2 and he has produced Ex.P.17 Case Sheet. On going through these documents it is clear that the Petitioner has sustained injuries to nose, right arm, blunt injury to abdomen and fracture displaced shaft right humerus and she has taken treatment at P.D. Hinduja Sindi Hospital as an inpatient from 02.03.2014 to 06.03.2014 and she undergone plating of right humerus under brachial block on 04.03.2014. Under such circumstances, by considering injuries sustained by the Petitioner and treatment taken by her and hospitalization, I am of the opinion that, it is reasonable to award Rupees 50,000/- under the head of pain and suffering.
13. P.W.1 stated that, she has spent a sum of Rupees 1,00,000/- towards medicine, Rupees 20,000/- towards food, conveyance and nourishment expenses and Rupees 30,000/- towards attendant charges. In this regard P.W.1 has produced Ex.P.14 Medical bills 48 in numbers to the tune of 46,249/- and Ex.P.15 Prescriptions 11 in numbers. In the cross-examination by the counsel for Respondent No.2 PW.1 denied the suggestion that in order to claim compensation she got created medical bills. As already discussed in the accident the Petitioner sustained sustained injuries to nose, right arm, blunt injury to abdomen and fracture displaced shaft right 13 M.V.C.No.1740/2014 SCCH-24 humerus and she has taken treatment as an inpatient for a period of 5 days and undergone surgery. Under the circumstances there is no reason to disbelieve the medical bills produced by the petitioner. As such I am of the opinion that, it is reasonable to award Rupees 46,249/- under the head of medical expenses and Rupees 10,000/- under the head of special diet, Conveyance & other incidental charges.
14. P.W.1 stated that, at the time of accident she was aged 51 years and she doing Sari business, thereby earning Rs.10,000/- per month. PW.1 stated that, due to accidental injuries she sustained permanent disability and not in a position to do her work. In the cross-examination by the counsel for Respondent No.2 PW.1 denied that she was not doing any sari business. It is to be noted that, as per Ex.P.12 Voter ID Card at the time of accident the age of Petitioner was 56 years. In medical records her age is mentioned as 70 years and in the cause title of petition her age is mentioned as 65 years. In all the documents her age is shown differently. In her evidence affidavit sworn on 24.01.2015, petitioner stated that her age is 66 years. It is to be noted that based on the entry found in Ex.P.12 Voters ID which is issued for address proof, the court cannot come to conclusion that the date of birth of petitioner mentioned in voter's ID is genuine date of birth. Under circumstances it is just 14 M.V.C.No.1740/2014 SCCH-24 and proper to considered the age of petitioner as on the date of accident as 65 years and same is considered for the purpose of calculation of multiplier. As the Petitioner has not produced any documents to prove her income this Court opines it is reasonable to consider the notional income of the Petitioner as Rs.5,000/- p.m.,
15. P.W.1 stated that due to the accidental injury she sustained permanent disability and thereby sustained loss of earning capacity. In support of her case the Petitioner got examined Dr. Manohar. C.V, Associate Orthopedic Surgeon at Sindhi Hospital as P.W.2. He deposed that he examined the Petitioner on 20.07.2015 for the purpose of disability assessment. P.W.2 stated that the Petitioner sustained pain and stiffness of right shoulder and elbow thereby she sustained 38% disability to right upper limb and 13% to the whole body. P.W.2 has produced Ex.P.17 Case sheet, Ex.P.18 OPD Card, Ex.P.19 X-ray. In the cross-examination by the counsel for Respondent No.2 P.W.2 stated that he has given treatment to the petitioner and nearly 6 to 9 months is required for union of her fracture. P.W2 stated that, till this day fracture is not united. When the counsel for Respondent No.2 suggested that, as the petitioner is aged about 70 years there is no chance of union of fracture, PW.2 stated that, it may be true. In the case on hand the Doctor has not assessed functional disability of the Petitioner. As per the evidence on record the Petitioner has sustained fracture shaft of right 15 M.V.C.No.1740/2014 SCCH-24 humerus and she undergone plating of right humerus under brachial block and at the time of accident the age of Petitioner was 65 years. Such being the case, by looking into the injuries sustained by the Petitioner, the evidence of Doctor and by considering the medical records, the percentage of permanent disability to the whole body of Petitioner is taken as 8%. This Court has already considered the notional income of Petitioner as Rupees 5,000/- per month. As on the date of accident, the age of Petitioner was 65 years at the time of accident. For the age of 65 years, the multiplier is "7" as per the decision reported in: 2009 ACJ 1298 Sarala Varma Vs. Delhi Transport Company. So, the loss of permanent physical disability would be Rupees 5,000 x 12 x 7 x 8/100 = Rupees 33,600/-. For the aforesaid reasons, the Petitioner is entitled for compensation of Rupees 33,600/- under the head of permanent disability.
16. P.W.2 deposed that the fracture is not still healed and petitioner needs re-surgery open reduction internal fixation with bone grafting, which will cost approximately Rs.70,000/- to Rs.80,000/-. It is to be noted that, as per Ex.P.9 Discharge Summary and Ex.P.17 IP case sheet and as per the evidence of Doctor the petitioner undergone plating of right humerus under brachial block on 04.03.2014. As per the evidence available on record, at the time of accident the age of petitioner was 65 years and now she is aged about 70 years. As 16 M.V.C.No.1740/2014 SCCH-24 such, the evidence of PW.2 doctor stating that she needs open reduction internal fixation with bone grafting is not acceptable. Hence, she is not entitled for compensation head of future medical expenses.
17. Hence, the petitioner is entitled for total compensation of Rupees 1,39,849/- under different heads as below.
1. For pain & sufferings, mental agony. Rupees 50,000.00
2. Actual medical expenses Rupees 46,249.00
3. For Special diet and Conveyance. Rupees 10,000.00
4. Permanent disability Rupees 33,600.00 Total Rupees 1,39,849.00
18. In this case the Respondent No.2 Insurance Company contended that the rider of motor cycle was having LLR and he was not riding the motor cycle with a person who is having Driving Licence as such the insured violated the terms and conditions of the policy. Hence the respondent No.2 is not liable to pay compensation to the petitioner. In this regard the respondent No.2 got examined witness by name P. Shantha Kumar, ARTO, K.R.Puram as RW.1. He deposed that, Kandan had Lerner's Licence to ride Motor Cycle With Gear with effect from 23.09.2013 to 22.03.2014. He obtained permanent Driving licence on 06.03.2014. In the cross examination 17 M.V.C.No.1740/2014 SCCH-24 by the counsel for petitioner RW.1 admitted that, as on 02.03.2014 rider had valid Lerner's Licence (LLR).
19. The respondent No.2 got examined witness by name B.S. Anand, Sub-Inspector of Police, Halasuru Gate Traffic Police, Bengaluru as RW.2. He deposed that, he investigated the Crime No.7/2014 and after investigation he filed charge sheet. He stated that at the time of accident the rider Kandan had LLR which was valid with effect from 23.09.2013 to 22.03.2014. He stated that he has issued notice U/s 133 of MV Act to the owner of the vehicle on 05.03.2014. He stated that the owner of the vehicle has produced the copy of LLR, Insurance policy and Driving licence of person who was travelling along with rider Kandan. He stated that, he has not taken the copy of Driving Licence of another person who was travelling along with Kandan. He stated that, in the charge sheet he has not mentioned that the rider of motor cycle was proceeding along with a person who is having permanent Driving Licence. However RW.2 stated that, a person who was proceeding along with Kandan has been cited as whiteness No.4 / CW.4 in the charge sheet.
20. The respondent No.2 got examined Assistant Legal Executive as RW.3. He deposed that the rider of motor cycle bearing No.KA- 53-ED-728 was not having valid driving licence as on the date of 18 M.V.C.No.1740/2014 SCCH-24 accident. RW.3 stated that, the rider cum owner of motor cycle bearing No.KA-53-ED-728 was having Lerner's Licence and as on the date of accident and he did not affixed the "L" board plate on the front and the rear side of the vehicle and not accompanied with DL holder at the time of alleged accident. As such owner of the vehicle has violated the terms and conditions of the policy. RW.3 has produced Ex.R.2 copy of Insurance policy, Ex.R.3 copy of notice issued to the owner of the vehicle, Ex.R.4 postal receipt, Ex.R.5 unserved copy of notice and Ex.P.5(a) postal cover. In the cross- examination by the counsel for petitioner RW.3 admitted that at the time of accident the rider had LLR. He denied the suggestion that the pillion rider had Permanent driving licence. He voluntarily stated that, there was no pillion rider in the motor cycle. RW.3 stated that, he giving evidence before the court based on the police documents. When the counsel for petitioner suggested that, in the police records it is mentioned that, pillion rider was travelling in the motor cycle, RW.3 stated that, it is false.
21. The respondent No.2 got examined another witness by name Sri. Dasaiah. V, PSI, Halasuru Gate Traffic Police station, Bengaluru as RW.5. He has produced Ex.R.8 Notice issued U/s 133 of IMV Act and Ex.R.9 Reply to notice. RW.5 stated that, the rider had LLR. In Ex.R.9 there is no recital that the rider was accompanied with a person who is having driving licence. RW.5 stated that, he does not 19 M.V.C.No.1740/2014 SCCH-24 know that whether there is a recital in Panchanama that the rider of motor cycle has affixed "L" board. In the cross examination by the counsel for respondent No.2 RW.5 that there is no recital in Ex.P.6 that "L" board was affixed to the motor cycle. He admitted that, there is no recital in Charge sheet whether the rider has affixed "L" board to the motor cycle. He denied the suggestion that the rider of motor cycle not affixed 'L' board to the said vehicle.
22. In the case on hand, the evidence on record makes clear that, the respondent No.1 is the owner cum rider of motor cycle bearing Reg.No.KA-53-ED-728. Further it is also noticed that, as on the date of accident the respondent No.1 had Lerner's Licence. Inspite of service of summons the respondent No.1 not chosen to appear before the court. RW.2 and RW.5 deposed that, the rider of motor cycle was accompanied with a person who was having DL,however, both of them have not produced copy of DL pertaining to person who alleged to have been travelling along with rider of motor cycle. Further both of them specifically stated that there is no recital in the charge sheet that the rider of the motor cycle was accompanied with a person who is having driving licence. There is no evidence on record to show that as on the date of accident the respondent No.1 accompanied with a person who is having valid Driving Licence.
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23. In the case on hand the respondent No.2 insurance company has contended that the respondent No.1 being the RC owner of the motor cycle had Lerner's licence and at the time of accident he was not accompanied with a person who is having valid driving licence. As such, the insurance company is not liable to pay compensation to the petitioner. It is to be noted that, as already stated as on the date of accident respondent No.1 had Lerner's Licence to ride motor cycle. At this juncture it is relevant to rely upon the judgment passed by Hon'ble High Court of Karnataka - Dharawad bench in MFA.20655/2011 (MV) between The Senior Divisional Manager National Insurance Company V/s Sri. Jyothiba Appaji Shigate and others. In view of the ratio laid down in the above said judgment the respondent No.2 cannot exonerate the liability on the ground that the respondent No.1 violated the terms and conditions of the insurance policy as he was not accompanied with a person having Driving Licence. Respondent No.2 admitted the issuance of Insurance Policy to motor cycle bearing registration Reg.No.KA-53-ED-728. This court already came to conclusion that there is 10% contributory negligence on the part of Petitioner to the accident. There is no dispute that as on the date of accident the policy was in force. This Court gone through the decision laid down by the Hon'ble High Court of Karnataka in M.F.A.No.103557/2015 (MV). In the said Judgment the Hon'ble High Court of Karnataka observed that the rate of 21 M.V.C.No.1740/2014 SCCH-24 interest is to be 6% p.a., keeping in line with statutory ceiling limit. Under the circumstances, Respondent No.1 being the RC owner and Respondent No.2 being the Insurer of offending vehicle are jointly and severally liable to pay 90% of compensation to the Petitioner with interest at the rate of 6% P.A. from the date of petition till realization. Accordingly, Issue No. 2 is answered partly in the Affirmative.
24. Issue No. 3: In view of above discussions, I proceed to pass the following:
ORDER The petition filed by the Petitioner under Sec.166 of I.M.V Act is hereby partly allowed with costs.
The petitioner is entitled for total compensation of Rupees 1,39,849/- along with future interest at the rate of 6% p.a. from the date of petition till realization of entire amount.
The respondent No.2 being the Insurer of offending vehicle is directed to deposit compensation amount within two months from the date of award.
Entire compensation amount is ordered to be released in favour of Petitioner through E- Payment with proper identification.
The Advocate's fee is fixed at Rupees 1,000/-.22 M.V.C.No.1740/2014
SCCH-24 Draw award accordingly.
(Dictated to the stenographer directly on computer, corrected by me and then pronounced in the open Court on 20.02.2020).
(SUJATHA S), IX ASCJ C/c XXII ASCJ & ACMM, Court of Small causes, Member- MACT, Bangalore.
ANNEXURE I. LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER/S;
P.W.1: Hanumakka
PW.2: Dr. Manohar. C.V
II. LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONER/S:
Ex.P1 FIR
Ex.P2 Complaint
Ex.P3 Statement
Ex.P4 Charge sheet
Ex.P5 Mahazar
Ex.P6 Sketch
Ex.P7 IMV Report
Ex.P8 Wound Certificate
Ex.P9 Discharge summary
Ex.P10 Photogarph
Ex.P11 1-CD.
Ex.P12 Voter ID card of Hanumakka.
Ex.P13 X-ray.
Ex.P14 48-Medical bills.
Ex.P15 11-Prescriptions.
Ex.P16 3-X-ray films.
23 M.V.C.No.1740/2014
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Ex.P17 Case sheet.
Ex.P18 Out patient card.
Ex.P19 x-ray.
III. LIST OF WITNESSES EXAMINED FOR THE
RESPONDENTS:
RW.1 P. Shanthakumar.
RW.2 B.S. Anand.
RW.3 Gireesha. M
RW.4 Chandan.
RW.5 Dasaiah. V.
IV. LIST OF DOCUMENTS MARKED ON BEHALF OF
RESPONDENTS:
Ex.R.1 Driving Licence extract of Kandan.
Ex.R.2 Copy of Insurance Policy
Ex.R.3 Notice issued U/s 133 of MV Act.
Ex.R.4 Postal receipt.
Ex.R.5 Unserved copy of notice.
Ex.R.5(a) Postal cover.
Ex.R.6 Notarized copy of MLC Register Extract
Ex.R.7 Notarized copy of police intimation.
(SUJATHA S),
IX ASCJ C/c XXII ASCJ & ACMM,
Court of Small causes,
Member- MACT, Bangalore.
24 M.V.C.No.1740/2014
SCCH-24
SCCH-24
AWARD
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA: BANGALORE CITY M.V.C. No.1740/2014 PETITIONER :
Smt. Hanumakka, W/o C.T. Rangaswamy, Aged abouot 65 years, Residing at : No.11-1, 15th cross, S.R. Nagar, Shivajinagar, Bangalore-560027.
(By Sri. M.R. Kumara Swamy, Adv.)
-VS-
RESPONDENTS:
Mr. Kandan S/o Kath Varan No.126, C/o S. Ramesh, Kannappa Building, Chikka Devasandra, K.R. Puram, Bangalore-560 036. (Owner of the Motor Cycle Bearing Reg.No.KA-53-ED-728).
2. IFFCO-TOKIO General Insurance Co. Ltd., KSCMF Building, 3rd Floor, Block No.8, Cunningham Road, Bangalore-560 052.25 M.V.C.No.1740/2014
SCCH-24 (Insurer of Motor Cycle bearing Reg.No.KA-53-ED-728). Policy No.1-2BK3QPL Validity from 24.09.2013 to 23.09.2014.
(Res.1: Exparte.
(Res.2: By Sri. S.R. Murthy, Advocate, Bengaluru).
WHEREAS, this petition filed on by the Petitioner/s above named U/s.166 of the M.V.Act praying for the compensation of Rs. (Rupees ) for the injuries sustained by the Petitioner/ Death of in a Motor Accident by Vehicle No. WHEREAS, this claim petition coming up before Sujatha.S, IX Addl.Small Causes Judge, C/c XXII ASCJ & ACMM. Judge, Member, Bangalore, in the presence of Sri./Smt. Advocate for Petitioner/s and of Sri./Smt. Advocate for Respondent.
ORDER The petition filed by the Petitioner under Sec.166 of I.M.V Act is hereby partly allowed with costs.
The petitioner is entitled for total compensation of Rupees 1,39,849/- along with future interest at the rate of 6% p.a. from the date of petition till realization of entire amount.
The respondent No.2 being the Insurer of offending vehicle is directed to deposit 26 M.V.C.No.1740/2014 SCCH-24 compensation amount within two months from the date of award.
Entire compensation amount is ordered to be released in favour of Petitioner through E-
Payment with proper identification.
The Advocate's fee is fixed at Rupees 1,000/-.
Given under my hand and seal of the Court this day
of 2020.
MEMBER
MOTOR ACCIDENT CLAIMS TRIBUNAL
METROPOLITAN AREA: BANGALORE.
By the
Petitioner/s Respondent/s
No.1 No.2
Court fee paid on
Petition
Court fee paid on
Power
Court fee paid on I.A.,
Process
Pleaders Fee
Total Rs.
Decree drafted Scrutinized by MEMBER, MACT,
METROPOLITAN AREA: B'LORE
Decree Clerk Sheristedar
27 M.V.C.No.1740/2014
SCCH-24
20.02.2020
(Judgment pronounced in the open Court.
Vide separate Orders) ORDER The petition filed by the Petitioner under Sec.166 of I.M.V Act is hereby partly allowed with costs.
The petitioner is entitled for total compensation of Rupees 1,39,849/- along with future interest at the rate of 6% p.a. from the date of petition till realization of entire amount.
The respondent No.2 being the Insurer of offending vehicle is directed to deposit compensation amount within two months from the date of award.
Entire compensation amount is ordered to be released in favour of Petitioner through E-
Payment with proper identification.
The Advocate's fee is fixed at Rupees 1,000/-. Draw award accordingly.
(SUJATHA. S) IX ASCJ, C/c XXII ASCJ & ACMM Court of Small causes, Member-MACT, Bangalore.