Bangalore District Court
Was Riding Pillion. It Is Pertinent To ... vs I.E on 1 June, 2016
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND ADDL.
MACT., BANGALORE, (SCCH-7)
Dated this, the 1st day of June, 2016.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com.,LL.B.(Spl.),LL.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.4800/2014
C/w. M.V.C.No.4801/2014
Smt. Sowbhagya, ..... PETITIONER IN
W/o. Emmanuel Selvaraj, M.V.C.No.4800/2014
Aged about 36 years,
R/at No.5/16,
3rd Main, 6th Cross,
Venkatapura,
Koramangala 1st Block,
Bangalore - 560 034.
And also at:
No.4, Industrial Layout,
Koramangala,
Bangalore - 95.
(By Sri. T. R. Rama Murthy, Adv.,)
V/s
1. Sri. Venkatesh, ..... RESPONDENTS IN
S/o. Late Gangdu, M.V.C.No.4800/2014
Major,
C/o. Bowring Hospital Quarters,
Shivajinagar,
2 M.V.C.NO.4801/2014
(SCCH-7)
Bangalore,
(R. C. Owner of the Maruthi Van bearing
Registration No.KA-05-M-3053)
2. M/s. New India Assurance Co. Ltd.,
Rajajinagar Branch,
No.65, Eshwari Complex,
Dr. Rajkumar Road,
Rajajinagar,
Bangalore - 560 021.
Represented by its Manager.
(Policy No.67030331130200000222,
Valid from 07.04.2013 to 06.04.2014)
(R-1 Exparte)
(R-2 By Smt. T. N. Malathi, Adv.,)
Mr. Emmanuel, ..... PETITIONER IN
S/o. K. David Selvaraj, M.V.C.No.4801/2014
Aged about 37 years,
R/at No.5/16,
3rd Main, 6th Cross,
Koramangala 1st Block,
Venkatapura,
Bangalore - 560 034.
And also at:
No.4,
Industrial Layout,
Koramangala,
Bangalore - 95.
(By Sri. T. R. Rama Murthy, Adv.,)
3 M.V.C.NO.4801/2014
(SCCH-7)
V/s
1. Sri. Venkatesh,
S/o. Late Gangdu, ..... RESPONDENTS IN
Major, M.V.C.No.4801/2014
C/o. Bowring Hospital Quarters,
Shivajinagar,
Bangalore,
(R. C. Owner of the Maruthi Van bearing
Registration No.KA-05-M-3053)
2. M/s. New India Assurance Co. Ltd.,
Rajajinagar Branch,
No.65, Eshwari Complex,
Dr. Rajkumar Road,
Rajajinagar,
Bangalore - 560 021.
Represented by its Manager.
(Policy No.67030331130200000222,
Valid from 07.04.2013 to 06.04.2014)
(R-1 Exparte)
(R-2 By Smt. T. N. Malathi, Adv.,)
COMMON JUDGMENT
As per the Order dated 06.08.2015 passed on Memo in
M.V.C.No.4800/2014, M.V.C.No.4801/2014 is clubbed with the
said M.V.C.No.4800/2014 and the common evidence is recorded
in the said case. Hence, M.V.C.No.4800/2014 and
M.V.C.No.4801/2014 are pending for consideration and disposal
before this Tribunal by passing a common Judgment.
4 M.V.C.NO.4801/2014
(SCCH-7)
2. The Petitioner in M.V.C.No.4800/2014 has filed the
said petition as against the Respondents No.1 and 2 under Section
166 of the Motor Vehicles Act, 1989, praying to award
compensation of Rupees 5,00,000/- with interest at the rate of
12% p.a., and costs.
3. The brief averments of the Petitioner's case in M.V.C.
No.4800/2014 are as follows;
a) On 05.01.2014 at about 4.30 p.m., she was proceeding
as a pillion rider in her husband's Motor Bike bearing Registration
No.KA-03-HS-8340 ridden by her husband carefully, cautiously
and while passing through Koramangala last Bus Stop towards
Venkatapura on the correct side of the said road, i.e., on
Sarjapura - Krupanidhi College Road, near Ishwarya Junction, at
that time, one Maruthi Omini Van (Ambulance) bearing
Registration No.KA-05-M-3053 driven by its driver in a rash and
negligent manner from West to East direction and dashed as
against the said Motor Bike. As a result of the forced impact, she
fell down and sustained grievous injuries all over her body and her
husband also sustained grievous injuries all over her body and
her husband also sustained grievous injuries.
b) Immediately after the accident, she was shifted to
Green View Medical Centre and got admitted there as an inpatient
and obtained necessary treatment and she was discharged with
an advise to take follow-up treatment and rest. Accordingly, she
has taken treatment as an outpatient for about one month and
5 M.V.C.NO.4801/2014
(SCCH-7)
she has incurred a sum of Rupees 50,000/- for treatment,
medicines, conveyance, etc.,
c) At the time of accident, she was hale and healthy and
working as a Senior Customer Support Executive in M/s. Zenith
Software Ltd., and drawing monthly salary of Rupees 21,247/-.
Due to the injuries sustained in the said accident, she could not
attend the duty for about 2 months and suffered loss of earnings.
d) The cause of the accident occurred on 05.01.2014 was
solely due to the rash and negligent driving of the Maruthi Van by
its driver and the Jurisdictional Police have filed a charge sheet as
against the driver under Sections 279 and 337 of IPC after
investigation. The said driver pleaded guilty for said offences and
paid fine.
e) She has not filed any other claim petition/petitions
before any other Court or Forum on the same cause of action.
Hence, this petition.
4. Though the notice was duly served on the Respondent
No.1 through paper publication, he was remained absent and
hence, he is placed as exparte on 10.07.2015.
5. In response to the notice, the Respondent No.2 has
appeared before this Tribunal through its Learned Counsel and
has filed the written statement.
6 M.V.C.NO.4801/2014
(SCCH-7)
6. The Respondent No.2 inter-alia denying the entire case
of the Petitioner in M.V.C.No.4800/2014, has further contended
as follows;
a) The petition is not maintainable either in law or on
facts.
b) The alleged accident was not within the knowledge of it
and the same was not intimated by the owner of the Ambulance
bearing Registration No.KA-05-M3053. It came to know the alleged
accident only after receipt of Summons from this Hon'ble Court. It
has called for the documents pertaining to the vehicle from the
owner of the vehicle, but, the owner of the vehicle has failed to
comply the requirement called for. He has not complied Section
134(c) of M.V. Act and conditions of policy.
c) The driver on the wheels of the Ambulance bearing
Registration No.KA-05-M-3053 was not holding a valid and
effective driving licence to drive the vehicle, which is a gross
violation of the terms and conditions of the Insurance Policy and
hence, it is not liable to pay any compensation and is not liable to
indemnify the claim of the Petitioner. The charge sheet is filed by
the jurisdictional Police under Section 3(1), R/w Section 181 of
IMV Act and it is clearly indicated in the charge sheet that, the
accused, i.e., A.1, the driver of the vehicle was not holding driving
licence to drive the vehicle at the time of accident.
7 M.V.C.NO.4801/2014
(SCCH-7)
d) The owner of the Ambulance bearing Registration
No.KA-05-M-3053 has entrusted his vehicle to such a person to
drive, who had no licence to drive for particular class and type of
vehicle at the time of accident, thereby, has violated the terms and
conditions of the policy and the provisions of M.V. Act. It is
pertinent to note her that, the owner of the Ambulance has been
charge sheeted as A.2 under Section 5(1), R/w Section 180 of IMV
Act and it is clearly indicated in the charge sheet that, the accused
A2, the owner of the vehicle has handed over his vehicle to such a
person to drive, who was not holding valid Badge to drive the
vehicle at the time of accident. Hence, it is not liable to indemnify
the owner towards the claim of the Petitioner, since, there is a
gross violation of the terms and conditions of the Insurance Policy.
e) The alleged accident was only due to the rash and
negligent driving of the rider of the Motor Cycle, in which, the
Petitioner was riding pillion. It is pertinent to note here that, as
could be seen from the spot sketch prepared by the Police, the
rider of the Motor Cycle, who was approaching the Main Road, a
Service road in a road Junction has moved his Motor Cycle even
after looking the heavy vehicle, that too, an Ambulance coming on
the Main Road, resulting in the alleged accident. It is further
pertinent to note here that, the alleged accident has taken place
on 05.01.2014, whereas, the complaint has been lodged only on
07.01.2014 and FIR registered after a delay of two days. The delay
in lodging the complaint is only to create documents to claim
compensation.
8 M.V.C.NO.4801/2014
(SCCH-7)
f) It has issued an Insurance Policy in respect of the
Ambulance bearing Registration No.KA-05-M-3053 under its
Policy No.67030331130200000222, valid from 07.04.2013 to
06.04.2014. The liability, if any, of it, shall be subject to the terms
and conditions of the said policy and any violation of the terms
there under shall absolve it from the assurance given to the
insured. Further the liability, if any of it, is subject to the driver of
the vehicle having proper, valid and effective fitness and permit to
drive the vehicle allegedly involved in the accident.
g) The quantum of compensation claimed is highly
disproportionate and exorbitant to the facts and circumstances of
the case. In the event of an award being passed as against it, the
extent of compensation is in terms of the policy and the statute,
which was in force at the time of accident. The interest on the
award passed shall not exceed 6% per annum.
h) The Petitioner may be directed to confirm that, no
other petition is filed before this MACT or before any other MACT,
on the same cause of action. The Petitioner may be directed to give
an undertaking to this Hon'ble Court that, no such petition is filed
on the same cause of action, except this petition.
i) If and when the breach of policy conditions were
observed, it should be given the right to proceed as against the
owner of the vehicle to recover the amount if any awarded by the
Tribunal, including interest.
9 M.V.C.NO.4801/2014
(SCCH-7)
j) In the event of the Respondent No.1 failing to contest
the present case, then, it may be permitted to defend the said
petition on all grounds including negligence as per Section 170 of
the Motor Vehicles Act.
k) It craves of this Hon'ble Court to amend, alter, to file
additional statement of objections in changed position of law, facts
and circumstances. Hence, prayed to dismiss the claim petition
with costs.
7. The Petitioner in M.V.C.No.4801/2014 has filed the
said petition as against the Respondents No.1 and 2 under Section
166 of the Motor Vehicles Act, 1989, praying to award
compensation of Rupees 3,00,000/- with interest at the rate of
12% p.a., and costs.
8. The brief averments of the Petitioner's case in M.V.C.
No.4801/2014 are as follows;
a) On 05.01.2014 at about 4.30 p.m., he was proceeding
on his Motor Cycle bearing Registration No.KA-03-HS-8340 along
with his wife as a pillion rider and while passing through
Koramangala last Bus Stop towards Venkatapura, carefully,
cautiously on the correct side of the said road, on Sarjapura-
Krupanidhi College Road, Ishwarya Junction, at that time, one
Maruthi Omini Van (Ambulance) bearing Registration No.KA-05-
M-3053 driven by its driver in a rash and negligent manner from
West to East direction and dashed as against his Motor Bike and
10 M.V.C.NO.4801/2014
(SCCH-7)
he and his wife, both fell down on the road and sustained grievous
injuries all over his body and his wife also sustained grievous
injuries all over her body.
b) Immediately after the accident, both were shifted to
Green View Medical Centre and got admitted as an inpatient and
after necessary treatment, he was discharged with an advise to
take follow-up treatment and rest. Accordingly, he has taken
treatment as an outpatient for about one month and he has
incurred a sum of Rupees 50,000/- for treatment, medicines,
conveyance, etc.,
c) At the time of accident, he was hale and healthy and
working as a H.R. Admn. in M/s. Devotail Furnitures Pvt. Ltd.,
and drawing monthly salary of Rupees ------/- and due to the
accident, he could not attend the duty for about one month and
suffered loss of income.
d) The cause of the accident occurred on 05.01.2014 was
solely due to the rash and negligent driving of the Maruthi Van by
its driver and the Jurisdictional Police have filed a charge sheet as
against the driver under Section 279 and 337 of IPC after
investigation. The said driver pleaded guilty for said offences and
paid fine.
e) He has not filed any other claim petition/petitions
before any other Court or Forum on the same cause of action.
Hence, this petition.
11 M.V.C.NO.4801/2014
(SCCH-7)
9. Though the notice was duly served on the Respondent
No.1 through paper publication, he was remained absent and
hence, he is placed as exparte on 10.07.2015.
10. In response to the notice, the Respondent No.2 has
appeared before this Tribunal through its Learned Counsel and
has filed the written statement.
11. The Respondent No.2 inter-alia denying the entire case
of the Petitioner in M.V.C.No.4801/2014, has further contended
as follows;
a) The petition is not maintainable either in law or on
facts.
b) The alleged accident was not within the knowledge of it
and the same was not intimated by the owner of the Ambulance
bearing Registration No.KA-05-M3053. It came to know the alleged
accident only after receipt of Summons from this Hon'ble Court. It
has called for the documents pertaining to the vehicle from the
owner of the vehicle, but, the owner of the vehicle has failed to
comply the requirement called for. He has not complied Section
134(c) of M.V. Act and conditions of policy.
c) The driver on the wheels of the Ambulance bearing
Registration No.KA-05-M-3053 was not holding a valid and
effective driving licence to drive the vehicle, which is a gross
violation of the terms and conditions of the Insurance Policy and
12 M.V.C.NO.4801/2014
(SCCH-7)
hence, it is not liable to pay any compensation and is not liable to
indemnify the claim of the Petitioner. The charge sheet is filed by
the jurisdictional Police under Section 3(1), R/w Section 181 of
IMV Act and it is clearly indicated in the charge sheet that, the
accused, i.e., A.1, the driver of the vehicle was not holding driving
licence to drive the vehicle at the time of accident.
d) The owner of the Ambulance bearing Registration
No.KA-05-M-3053 has entrusted his vehicle to such a person to
drive, who had no licence to drive for particular class and type of
vehicle at the time of accident, thereby, has violated the terms and
conditions of the policy and the provisions of M.V. Act. It is
pertinent to note her that, the owner of the Ambulance has been
charge sheeted as A.2 under Section 5(1), R/w Section 180 of IMV
Act and it is clearly indicated in the charge sheet that, the accused
A2, the owner of the vehicle has handed over his vehicle to such a
person to drive, who was not holding valid Badge to drive the
vehicle at the time of accident. Hence, it is not liable to indemnify
the owner towards the claim of the Petitioner, since, there is a
gross violation of the terms and conditions of the Insurance Policy.
e) The alleged accident was only due to the rash and
negligent driving of the Petitioner. It is pertinent to note here that,
as could be seen from the spot sketch prepared by the Police, the
Petitioner, who was approaching the Main Road, a Service road in
a road Junction has moved his Motor Cycle even after looking the
heavy vehicle, that too, an Ambulance coming on the Main Road,
resulting in the alleged accident. It is further pertinent to note
13 M.V.C.NO.4801/2014
(SCCH-7)
here that, the alleged accident has taken place on 05.01.2014,
whereas, the complaint has been lodged only on 07.01.2014 and
FIR registered after a delay of two days. The delay in lodging the
complaint is only to create documents to claim compensation.
f) It is pertinent to note here that, the Petitioner has
himself gone to the Police Station after two days from the date of
alleged accident to report the occurrence of the accident and
further was present at the time of drawing Mahazar on the next
day, which clearly establishes that, the Petitioner has not
sustained any injuries out of the alleged accident.
g) It has issued an Insurance Policy in respect of the
Ambulance bearing Registration No.KA-05-M-3053 under its
Policy No.67030331130200000222, valid from 07.04.2013 to
06.04.2014. The liability, if any, of it, shall be subject to the terms
and conditions of the said policy and any violation of the terms
there under shall absolve it from the assurance given to the
insured. Further the liability, if any of it, is subject to the driver of
the vehicle having proper, valid and effective fitness and permit to
drive the vehicle allegedly involved in the accident.
h) The quantum of compensation claimed is highly
disproportionate and exorbitant to the facts and circumstances of
the case. In the event of an award being passed as against it, the
extent of compensation is in terms of the policy and the statute,
which was in force at the time of accident. The interest on the
award passed shall not exceed 6% per annum.
14 M.V.C.NO.4801/2014
(SCCH-7)
i) The Petitioner may be directed to confirm that, no
other petition is filed before this MACT or before any other MACT,
on the same cause of action. The Petitioner may be directed to give
an undertaking to this Hon'ble Court that, no such petition is filed
on the same cause of action, except this petition.
j) If and when the breach of policy conditions were
observed, it should be given the right to proceed as against the
owner of the vehicle to recover the amount if any awarded by the
Tribunal, including interest.
k) In the event of the Respondent No.1 failing to contest
the present case, then, it may be permitted to defend the said
petition on all grounds including negligence as per Section 170 of
the Motor Vehicles Act.
l) It craves of this Hon'ble Court to amend, alter, to file
additional statement of objections in changed position of law, facts
and circumstances. Hence, prayed to dismiss the claim petition
with costs.
12. Based on the above said pleadings, I have framed the
following Issues;
ISSUES
In M.V.C.No.4800/2014
1. Whether the Petitioner proves that,
the accident occurred due to rash
15 M.V.C.NO.4801/2014
(SCCH-7)
and negligent driving of the
Maruthi Omini (Ambulance)
Bearing Reg.No.KA-05-M-3053 by
its driver and in the said accident,
she sustained injuries?
2. Whether the Petitioner is entitled
for compensation and damages? If
so, how much and from whom?
3. What Order?
In M.V.C.No.4801/2014
1. Whether the Petitioner proves that,
the accident occurred due to rash
and negligent driving of the Maruthi
Omini (Ambulance) Bearing
Reg.No.KA-05-M-3053 by its driver
and in the said accident, he
sustained injuries?
2. Whether the Petitioner is entitled for
compensation and damages? If so,
how much and from whom?
3. What Order?
13. In order to prove their respective case, the Petitioner in
M.V.C.No.4800/2014 herself has been examined as P.W.1 by filing
an affidavit as her examination-in-chief and has placed reliance
upon Ex.P.1 to Ex.P.8, Ex.P.12 and Ex.P.13 and the Petitioner in
M.V.C.No.4801/2014 himself has been examined as P.W.2 by
filing an affidavit as his examination-in-chief and has placed
reliance upon Ex.P.9 to Ex.P.11, Ex.P.14 and Ex.P.15. On the
16 M.V.C.NO.4801/2014
(SCCH-7)
other hand, the Respondent No.2 has examined its Administrative
Office as R.W.1 by filing an affidavit as his examination-in-chief
and has placed reliance upon Ex.R.1 to Ex.R.16.
14. Heard the arguments. The Learned Counsel appearing
for the Petitioner has filed the written arguments.
15. In support of the submission, the Learned Counsel
appearing for the Petitioners in both the cases, Sri. T. R. Rama
Murthy has placed reliance upon the decisions reported in,
i) 2014 ACJ 2873 Supreme Court of India at New
Delhi (Kulwant Singh and Others V/s. Oriented Insurance Co.
Ltd), wherein, it is observed that,
Motor Vehicles Act, 1988 Section 149
(2) (a) (ii)-Motor Insurance-Driving licence-
Liability on Insurance Company-pay and
recover order-Insurance company disputes
its liability on the ground that, driver had
licence to drive light motor vehicle but, he
was driving a goods vehicle-Tribunal
mulcted liability on the Insurance Company
on the ground that, offending vehicle was
'light goods vehicle' and driver had a valid
driving licence - High Court observed that
'light motor vehicle' cannot be equated with
'light goods vehicle', there was breach of
policy as driver did not have valid and
effectively driving licence and granted
recovery rights to Insurance Company-
Whether a person holding driving licence to
drive 'light motor vehicle' was authorized to
drive 'light goods vehicle' and there was no
17 M.V.C.NO.4801/2014
(SCCH-7)
breach of Insurance Policy- Held" yes" order
of High Court set aside and Tribunal's order
restored. (2013 ACJ 1944(SC) and 2008
ACJ 721 (SC) followed.
ii) 2015 ACJ 389 High Court of Karnataka at
Bangalore (Iffco-Tokio General Insurance Co. Ltd., V/s. K.
Prabhakar Reddy and Another), wherein, it is observed that,
Motor Vehicles Act, 1988 Section 149
(2) (a) (i)-Motor Insurance-Driving licence-
Liability of Insurance Company-Insurance
Company disputes the liability on the
ground that, there was charge sheet filed
against the driver of offending vehicle under
section 3(1) read with section 181 of the
Motor Vehicles Act for non-possession of
driving licence- Insurance Company neither
examined the Investigating Officer nor any
concerned officials to prove the contents of
charge sheet-Charge sheet is no evidence to
prove that, drive had no valid driving licence
as it is only a report alleging offences
against the accused- Vehicle was covered
under a valid Insurance Policy at the time of
accident- Whether Insurance Company is
exempted from liability- Held: no (1999 ACJ
171 (SC) and 2004 ACJ 677(Karnataka)
relied.
iii) 2015 ACJ 1018 High Court of Karnataka at
Gulbarga Bench (Branch Manager, National Insurance Co. Ltd.,
V/s. Basavaraj and Another), wherein, it is observed that,
Motor Vehicles Act, 1988 Section 149
(2) (a) (ii)-Motor Insurance-Driving licence-
Liability of insurance company- Insurance
18 M.V.C.NO.4801/2014
(SCCH-7)
Company disputes in liability on the ground
that, driver was not holding a valid driving
licence at the time of accident; driver was
charge sheeted for contravention of sections
3 and 181 of the Motor Vehicles Act and
driver did not furnish particulars of driving
licence as per provisions of Section 134 of
the Motor Vehicles Act- Framing of charge
sheet is to sufficient to hold that, driver was
not holding a valid licence - Section 133
casts duty on owner of vehicle to furnish
particulars on demand by any Police officer
but, the provision is not applicable to the
Insurance Company raising a claim of
breach of conditions of policy- Insurance
Company neither filed any application
against owner or driver to produce licence
nor particulars were obtained from the
concerned Transport Authority to prove
that, driver was not holding a valid licence -
whether Insurance Company failed to prove
breach of condition of policy and Tribunal
was justified in holding the Insurance
Company liable-Held: yes.
iv) 2015 ACJ 852 High Court of Karnataka At
Bangalore (A. Sandhya Sudhakaran and Others V/s. Oriental
Insurance Co. Ltd., and Another), wherein, it is observed that,
Motor Vehicles Act, 1988 S.149(2) (a)
(ii) read with Sections 3,2 (21), 2(47) and
10- Motor Insurance- Driving licence -
Liability of Insurance Company- Insurance
Company disputes its liability on the
ground that, driver of offending water
tanker did not possess a valid and effective
driving licence - Driver had licence to drive
light motor vehicle without authorization to
19 M.V.C.NO.4801/2014
(SCCH-7)
drive goods vehicle but, he was driving a
light goods vehicle- Unladen weight of
vehicle is 3,300 kg-Combined reading of
sections 2 (21) 2(47) and 10 would indicate
that, vehicle having unladen weight of less
than 7.500 kg falls under category of light
motor vehicle- Whether driver was having a
valid and effective driving licence and
Tribunal was justified in fastening liability
on the Insurance Company- Held: Yes.
v) AIR 2015 Kerala 190 Full Bench (National
Insurance Company Ltd., Ernakulam V/s. Jisha K. P.),
wherein, it is observed that,
Motor Vehicles Act, (59 of 1988),
S.149(2) (a) (ii)-Kerala Motor Vehicles Rules
(1989), R.6-Liability of Insurance Company-
Absence of badge with driver of transport
vehicle-Not sufficient to exonerate
Insurance Company from liability to pay
compensation to claimant.
The Insurance Company will have to
prove that, absence of a badge with driver of
transport vehicles was so a fundamental
breach which has contributed to the cause
of the accident. Therefore, any technical
violation of the rules cannot help the
Insurance Company in such cases. The
provision under S.149(2)(a)(ii) used the
words 'duly licenced" therefore the minor
breach cannot help the Insurance Company
to avoid liability to pay compensation to
claimant. Therefore a mere technical
violation like absence of a badge could not
lead to such a situation, whereby the
insurer can avoid liability of the third party.
20 M.V.C.NO.4801/2014
(SCCH-7)
vi) 2016 ACJ 383 High Court of Judicature at
Hyderabad (Chakali Swaroopa and Others V/s. Mohd. Ghouse
and Another), wherein, it is observed that,
Motor Vehicles Act, 1988 Section149(2)
(a) (ii)- Read with Section 2 (21) and 10(2)
(Defendant)-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 IMV (Tribunal) is one
and the same-No material on record to
establish that, proximate cause for the
accident was not 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
(2013 ACJ 1944 (SC) and 2014 ACJ 2875
(SC) followed.
16. My answers to the above said Issues are as follows;
M.V.C.No.4800/2014
21 M.V.C.NO.4801/2014
(SCCH-7)
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative,
The Petitioner is
entitled for compensation
of Rupees 36,427/- with
interest at the rate of 8%
p.a. from the date of the
petition till the date of
payment, from the
Respondent No.1.
Issue No.3 : As per the final Order,
M.V.C.No.4801/2014
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative,
The Petitioner is
entitled for compensation
of Rupees 46,887/- with
interest at the rate of 8%
p.a. from the date of the
petition till the date of
payment, from the
Respondent No.1.
Issue No.3 : As per the final Order,
for the following;
REASONS
17. ISSUE NO.1 IN BOTH THE CASES :- The P.W.1, who
is the Petitioner in M.V.C.No.4800/2014 has stated in her
examination-in-chief that, on 05.01.2014 at about 4.30 p.m.,
22 M.V.C.NO.4801/2014
(SCCH-7)
while she was proceeding as a pillion rider in Motor Bike bearing
Registration No.KA-03-HS-8340 ridden by her husband carefully,
cautiously on the correct side of the road, i.e., on Sarjapura-
Krupanidhi College Road, near Ishwarya Junction and at that
time, one Maruthi Omni (Ambulance) bearing Registration No.KA-
05-M-3053 driven by its driver in a rash and negligent manner
from West to East direction and dashed as against their Motor
Bike and as a result of the forced impact, her and her husband
both fell down and sustained injuries all over her body. She has
further stated that, immediately after the accident, they were
shifted to Green View Medical Centre and got admitted there as
inpatient. She has further stated that, the said accident was
caused due to rash and negligent driving of Maruthi Omni
(Ambulance) bearing Registration No.KA-05-M-3053 and upon the
complaint lodged by her husband, the jurisdictional Police have
filed a Charge Sheet as against the driver of the said Van after
investigation.
18. The P.W.2, who is the Petitioner in
M.V.C.No.4801/2014, who is the husband of the Petitioner in
M.V.C.No.4800/2014, has also stated the same evidence of P.W.1,
in his examination-in-chief.
19. It is pertinent to note here that, though the said road
traffic accident was taken place on 05.01.2014 at 4.30 p.m., the
complaint was lodged in respect of the said road traffic accident
on 07.01.2014 at 7.00 p.m., which disclosed that, there is 3 days
delay in lodging the complaint in respect of the said road traffic
23 M.V.C.NO.4801/2014
(SCCH-7)
accident. In this regard, the P.W.1 in her cross-examination has
stated that, there is 2 days delay in lodging the complaint.
Further, the P.W.2 in his cross-examination has stated that, 2
days after the accident, he has lodged a complaint before the
Police. The Petitioners have produced Ex.P.1 FIR and Ex.P.2
Complaint, which also clearly disclosed that, the Petitioner in
M.V.C.No.4801/2014 has lodged Ex.P.2 Complaint before the
jurisdictional Police in respect of the said road traffic accident on
07.01.2014. From this, it appears that, there is 3 days delay in
lodging the complaint by the Petitioner in M.V.C.No.4801/2014 in
respect of the said road traffic accident. Further, the Petitioners
have not produced the driving licence relating to the Petitioner in
M.V.C.No.4801/2014 to show that, he was having a valid and
effective driving licence to ride the Motor Cycle bearing
Registration No.KA-03-HS-8340. In this regard, the P.W.2 in his
cross-examination has stated that, at the time of accident, he was
having a valid driving licence to ride the Motor Cycle. Further, the
Respondent No.2 has examined its Administrative Officer in Legal
Department as R.W.1, who has stated in his examination-in-chief
that, the accident has occurred due to negligence on the part of
the rider of the Motor Cycle also and as could be seen from the
spot sketch prepared by the Police, the rider of the Motor Cycle,
who was approaching the Main Road from a Service Road in a
Road Junction, has moved his Motor Cycle even after looking the
heavy vehicle, that too, an Ambulance coming on the Main Road,
resulting in the alleged accident and the alleged accident has
taken place on 05.01.2014, whereas the complaint has been
lodged only on 07.01.2014 and FIR registered after a delay of two
24 M.V.C.NO.4801/2014
(SCCH-7)
days and the delay in lodging the complaint is only to create
documents to claim compensation. To consider the same, the
Respondent No.2 has produced Ex.R.2 Charge Sheet, Ex.P.14
Statement of Enyan Selvaraj, Ex.R.15 Statement of Sri
M.S.Devakumar and Ex.R.16 Statement of Smt. Soubhagya.
20. But, based on the said grounds, it cannot be thrown
away the above said oral version of P.W.1 and P.W.2, which has
been stated by them in their examination-in-chief, as, to consider
their specific case as well as their oral version, the Petitioner in
M.V.C.No.4800/2014 has produced Ex.P.1 FIR, Ex.P.2 Complaint,
Ex.P.3 Charge Sheet, Ex.P.4 Spot Hand Sketch, Ex.P.5 Spot
Panchanama, Ex.P.6 Wound Certificate, Ex.P.7 MVI Report and
Ex.P.12 Radiological Report and the Petitioner in
M.V.C.No.4801/2014 has produced Ex.P.9 Wound Certificate,
Ex.P.10 X-ray Film and Ex.P.14 Radiological Report, which clearly
disclosed that, there was no negligence on the part of the rider of
the Motor Cycle bearing Registration No.KA-03-HS-8340, i.e., the
Petitioner in M.V.C.No.4801/2014, wherein, the Petitioner in
M.V.C.No.4800/2014 was proceeding as a pillion rider, i.e., the
husband and wife and the entire negligence is on the part of the
driver of the offending Maruthi Omni (Ambulance) bearing
Registration No.KA-05-M-3053 in the commission of the said road
traffic accident and even there is no contributory negligence on
the part of the Petitioner in M.V.C.No.4801/2014 in the
commission of the said road traffic accident and in the said road
traffic accident, the Petitioner in M.V.C.No.4800/2014 had
sustained injuries to left heal and ankle contusion with pain,
25 M.V.C.NO.4801/2014
(SCCH-7)
which is simple in nature and the Petitioner in
M.V.C.No.4801/2014 had sustained injury to left elbow with
undisplaced fracture radial head, which is grievous in nature,
which is clear from the following discussion. Furthermore, the
P.W.2, has clearly denied the suggestions put to him by the
Respondent No.2 in his cross-examination that, at the time of
accident, he was coming from the Service Road and entering into
the Main Road at the time of accident and he abruptly entering
into the Main Road from Service Road and due to his own
negligence itself, the alleged accident was taken place and only to
get more compensation, he is giving false evidence by producing
concocted documents. Though the P.W.1 and P.W.2 have been
cross-examined by the Respondent No.2, nothing has been elicited
from their mouth to consider its defence. To consider the above
said oral version of R.W.1, nothing is available on record on behalf
of the Respondent No.2. More so, the medical documents
produced by both the Petitioners clearly disclosed that,
immediately after the accident, both the Petitioners have taken
treatment to the accidental injuries. Furthermore, the Petitioner in
M.V.C.No.4801/2014 in the Complaint itself, has clearly narrated
the reason for delay in lodging the complaint in respect of the road
traffic accident by stating that, after the accident, they were taken
by the local Auto Driver to Green View Hospital and they were
undergoing treatment till now, that is why, the delay in giving the
complaint.
21. The contents of Ex.P.1 FIR and Ex.P.2 Complaint
clearly disclosed that, the Petitioner in M.V.C.No.4801/2014 has
26 M.V.C.NO.4801/2014
(SCCH-7)
lodged Ex.P.2 Complaint before the Adugodi Police as against the
driver of Maruthi Omni (Ambulance) bearing Registration No.KA-
05-M-3053 by alleging that, on 05.01.2014 at 4.30 p.m., when he
was proceeding as a rider along with his wife as a pillion rider on
his Motor Cycle bearing Registration No.KA-03-HS-3053 to
Venkatapura, Koramangala, near Ishywara Junction, the
Ambulance came from Krupanidhi Junction with very high speed,
rash and negligent manner by its driver and dashed to his Motor
Cycle from its behind and due to the said impact, both of them
fell down along with the Motor Cycle and had sustained injuries
and with the help of the driver of the said Ambulance and Auto
Rickshaw, they were shifted to Green View Hospital for treatment,
wherein, first-aid treatment given to them and thereafter, the
driver of the Abmulance refused to give further treatment to them
and as such, the delay is caused in lodging the complaint and
hence, he prayed to take necessary legal action as against the
driver of the Ambulance and based on the complaint, the Police
have registered a criminal case as against the driver of the
Maruthi Omni (Ambulance) bearing Registration No.KA-05-M-
3053 for the offences punishable under section 279 and 337 of
IPC under Crime No.2/2014. From this, it is made crystal clear
that, the Petitioner in M.V.C.No.4801/2014 had given reasons for
delay in lodging the complaint in Ex.P.2 Complaint itself.
22. The contents of Ex.P.4 Spot Hand Sketch and Ex.P.5
Spot Panchanama and Ex.P.7 MVI Report, clearly disclosed that,
there was no negligence on the part of the Petitioner in
M.V.C.No.4801/2014 in riding the Motor Cycle bearing
27 M.V.C.NO.4801/2014
(SCCH-7)
Registration No.KA-03-HS-3053, but, the entire negligence is on
the part of the driver of the offending Maruthi Omni (Ambulance)
bearing Registration No.KA-05-M-3053 and if the driver of the
offending Maruthi Omini Van had taken a little care, he could
have avoided the said road traffic accident, which caused to both
the Petitioners, when they were proceeding on the Motor Cycle and
Maruthi Omni (Ambulance) bearing Registration No.KA-05-M-
3053 as well as its driver are very much involved in the
commission of the said road traffic accident is clearly proved from
the contents of Ex.P.4 Spot Hand Sketch and Ex.P.5 Spot
Panchanama. It is also clearly mentioned in Ex.P.7 MVI Report
that, the said accident was not occurred due to any mechanical
defects of the said vehicles.
23. The contents of Ex.P.6 Wound Certificate and Ex.P.12
Radiological Report disclosed that, in the said road traffic
accident, the Petitioner in M.V.C.No.4800/2014 had sustained
injury to left heal and ankle contusion with pain, which is simple
in nature and she had taken treatment to the said injury at Green
View Medical Centre and as per Ex.P.12 Radiological Report, she
had sustained soft tissue injury. From this, it is made crystal clear
that, in the said road traffic accident, the Petitioner had sustained
simple injury.
24. The contents of Ex.P.9 Wound Certificate, Ex.P.10 X-
ray Film and Ex.P.14 Radiological Report disclosed that, the
Petitioner in M.V.C.No.4801/2014 had sustained injury to left
elbow with undisplaced fracture radial head, i.e., fracture neck of
28 M.V.C.NO.4801/2014
(SCCH-7)
radius, which is grievous in nature and he had taken treatment to
the said accidental injuries at Green View Medical Centre. From
this it appears that, in the said road traffic accident, the Petitioner
in M.V.C.No.4801/2014 had sustained grievous injury in the said
road traffic accident.
25. The contents of Ex.P.3 Charge Sheet disclosed that,
since during the course of investigation, it is found that, due to
very high speed rash and negligent manner of driving of the
offending Maruthi Omni (Ambulance) bearing Registration No.KA-
05-M-3053 by its driver, the said road traffic accident was taken
place on 05.01.2014 at 4.30 p.m., near Ishwarya Junction, which
was proceeding from Krupanidhi College from Sarjapura Road,
which dashed to the Motor Cycle bearing Registration No.KA-03-
HS-8340, wherein, the Petitioner in M.V.C.No.4800/2014 was
proceeding as a pillion rider and the Petitioner in
M.V.C.No.4801/2014 was proceeding as a rider and the said
offending Ambulance dashed to the said Motor Cycle on its behind
and due to the said impact, both the Petitioners fell down along
with the Motor Cycle and the Petitioner in M.V.C.No.4800/2014
had sustained simple injury and the Petitioner in
M.V.C.No.4801/2014 had sustained grievous injury and the driver
of the said offending Ambulance was not having a badge to drive
such class of Ambulance at the time of accident and its owner had
allowed the said driver to drive the offending Ambulance, who was
not having a valid driving licence and as such, after thorough
investigation, the Investigating Officer has filed a charge sheet as
against the driver and owner of the offending Ambulance for the
29 M.V.C.NO.4801/2014
(SCCH-7)
offences punishable under Section 279, 337 and 338 of IPC and
Section 3(1) R/w 181, 5(1) and 180 of IMV Act. There is no
allegation leveled by the Investigating Officer in Ex.P.3 Charge
Sheet as against the Petitioner in M.V.C.No.4801/2014 about his
negligence in riding the Motor Cycle bearing Registration No.KA-
03-HS-8340.
26. It is pertinent to note here that, through R.W.1, the
Respondent No.2 has produced Ex.R.2 Charge Sheet, Ex.R.11
Order Sheet of C.C.No.331/2014, Ex.R.12 Accusation of Annappa.
V. relating to C.C.No.331/2014 and Ex.R.13 Accusation of A. N.
Kumar relating to C.C.No.331/2014. On perusal of the contents of
the said material documents, it clearly goes to show that, the
driver and owner of the said offending Ambulance were pleaded
guilty in respect of the said offences punishable under Section
279, 337 and 338 of IPC, Section 3(1) R/w 181 and Section 5 R/w
Section 180 of IMV Act and paid fine amount in the said criminal
case. From this material evidence, it is made crystal clear that,
whatever the allegations made by the Investigating Officer in
Ex.P.3 and Ex.R.2 Charge Sheet as against the driver and owner
of the said offending Ambulance are clearly admitted by them.
Under such circumstances, it can be safely held that, the entire
negligence is on the part of the driver of the offending Maruthi
Omni (Ambulance) bearing Registration No.KA-05-M-3053 in the
commission of the said road traffic accident.
27. From the above said material evidence, both oral and
documentary, it is clearly proved that, the entire negligence is on
30 M.V.C.NO.4801/2014
(SCCH-7)
the part of the driver of the offending Maruthi Omni (Ambulance)
bearing Registration No.KA-05-M-3053 in the commission of the
said road traffic accident and there was no negligence on the part
of the Petitioner in M.V.C.No.4801/2014 and in the said road
traffic accident, the Petitioner in M.V.C.No.4800/2014 had
sustained simple injury and the Petitioner in M.V.C.No.4801/2014
had sustained grievous injury. Accordingly, I answered Issue
No.1 in both the cases in the Affirmative.
28. ISSUE NO.2 IN BOTH THE CASES :-
29. ISSUE NO.2 IN M.V.C.NO.4800/2014 :- The P.W.1
has stated that, she was hale and healthy on the date of accident
and was working as a Customer Support Executive in M/s, Zenith
Software Ltd., and drawing salary of Rupees 21,247/-. In this
regard, the Petitioner has produced Ex.P.13 Salary Slip for the
month of February 2014, which disclosed that, the Petitioner was
working as a Senior Customer Support Executive at Zenith
Software Ltd., by drawing a Gross salary of Rupees 21,247/- and
Net salary of Rupees 19,927/-. From the said material evidence, it
is considered that, at the time of accident, the income of the
Petitioner was of Rupees 21,247/- per month.
30. The P.W.1 has stated that, she got admitted in Green
View Medical Centre as an inpatient and after taking necessary
treatment, she was discharged with an advise to take bed rest and
follow-up treatment for 2 months.
31 M.V.C.NO.4801/2014
(SCCH-7)
31. No doubt, while answering Issue No.1, this Tribunal
has already observed and come to the conclusion that, the entire
negligence is on the part of the driver of the offending Maruthi
Omni (Ambulance) bearing Registration No.KA-05-M-3053 in the
commission of the said road traffic accident and in the said road
traffic accident, the Petitioner had sustained injury to left heal
ankle contusion with pain, i.e., soft tissue injury, which is simple
in nature. The same is clear from the contents of Ex.P.6 Wound
Certificate and Ex.P.12 Radiological report. But, only based on the
contents of Ex.P.6 Wound Certificate and Ex.P.12 Radiological
report as well as the oral version of P.W.1, it cannot be believed
and accept the case made out by the Petitioner as well as her oral
version that, she was admitted as an inpatient in Green View
Medical Centre to take treatment to the said accidental injury and
she was advised to take bed rest and follow-up treatment and she
took follow-up treatment for 2 months as per the advise of the
treated Doctors and due to which, she could not attend the Office
for 2 months and lost salary, as, except Ex.P.6 Wound Certificate
and Ex.P.12 Radiological Report, the Petitioner has not produced
any discharge summary or case sheet issued by the said Green
View Medical Centre to show the line of treatment given to her to
the said accidental injury by admitting as inpatient. Further, the
length of treatment taken by her in the said Hospital is also not
disclosed by the Petitioner. Furthermore, no authenticated
document is issued by her employer is produced by the Petitioner
to show that, after the accident, she could not attend the Office for
2 months and she suffered loss of salary. Furthermore, the
Petitioner has not examined the treated Doctor. Furthermore, the
32 M.V.C.NO.4801/2014
(SCCH-7)
Petitioner has not stated anything about the difficulties and
disability, which has been suffering by her due to the said
accidental injury. Hence, the Petitioner is not entitled for
compensation under different heads.
32. However, in the said road traffic accident, the
Petitioner had sustained injury to left heel and ankle contusion
with pain, i.e., soft tissue injury, which is simple in nature and
immediately she had taken treatment to the said injury at Green
View Hospital, which is clear from the above said medical
documents, the Petitioner is entitled for global compensation.
33. By considering the same, this Tribunal feels that, it is
just, proper and necessary to award global compensation of
Rupees 20,000/- to the Petitioner.
34. The P.W.1 has stated that, she has spent a sum of
Rupees 50,000/- for treatment, medicines, conveyance and other
incidental expenses. In this regard, the Petitioner has produced
Ex.P.8 Medical Bills 12 in numbers, which is amounting of Rupees
16,427/-. In the road traffic accident, the Petitioner had sustained
injury to left heel and ankle contusion with pain, which is simple
in nature and as per Ex.P.12 Radiological Report, it was diagnosed
soft tissue injury. The Petitioner has taken treatment at Green
View Medical Centre. Considering the nature of the injury and the
treatment taken by the Petitioner to the said injury, the possibility
of spending the said amount for the medicines cannot be doubted.
33 M.V.C.NO.4801/2014
(SCCH-7)
Therefore, it is necessary to award the said actual medical
expenses of Rupees 16,427/- to the Petitioner.
35. In all, the Petitioner is entitled for total compensation
of Rupees 36,427/- (Rupees 20,000/- + Rupees 16,427/-) along
with interest at the rate of 8% per annum on the above said sum
from the date of petition till payment.
36. ISSUE NO.2 IN M.V.C.NO.4801/2014 :- The P.W.2
has stated that, he got admitted in Green View Medical Center as
an inpatient and after taking necessary treatment, he was
discharged with an advise to take bed rest with follow-up
treatment and he took follow-up treatment for about 2 months. He
has further stated that, he was hale and healthy on the date of
accident and was working as a Senior Sales Executive at M/s.
Dovetal Furnitures Pvt., Ltd., and drawing salary of Rupees
22,000/- per month. He has further stated that, due to the
injuries sustained in the accident, he could not attend the Office
for 2 months and he suffered loss of salary.
37. No doubt, while answering Issue No.1, based on Ex.P.9
Wound Certificate, Ex.P.10 X-ray Film, Ex.P.14 Radiological
Report, this Tribunal has already observed and come to the
conclusion that, in the said road traffic accident, the Petitioner
had sustained fracture neck of radius, which is grievous in
nature. But, based on the said oral version of P.W.2 as well as the
contents of the said medical documents that, the Petitioner is not
entitled for compensation under different heads, as, except Ex.P.9
34 M.V.C.NO.4801/2014
(SCCH-7)
Wound Certificate, Ex.P.10 X-ray Film and Ex.P.14 Radiological
Report, the Petitioner has not produced discharge summary and
case sheet issued by Green View Medical Centre to show that, by
admitting as an inpatient in the said Hospital, he took treatment
to the said accidental injuries. Even, the Petitioner has not
disclosed the line of treatment and length of treatment given to
him to the said accidental injury in the said Hospital. Further, the
Petitioner has not examined the treated Doctors to consider the
line of treatment and length of treatment. Further the Petitioner
has not produced any medical documents to show that, he had
taken regular follow-up treatment as per the advise of treated
Doctors. Further, the Petitioner has not disclosed his actual age at
the time of accident. Further, no authenticated documents are
produced by the Petitioner to consider his actual age, avocation
and income at the time of accident. Further, the Petitioner has not
disclosed the difficulties and disabilities, which have been
suffering by him due to the said accidental injury. Hence, the
Petitioner is not entitled for compensation under different heads.
38. However, in the said road traffic accident, the
Petitioner had sustained injury to left elbow joint, i.e., fracture of
radius and immediately after the accident, he took treatment to
the said accidental injury at Green View Medical Centre, which is
clear from the above said medical documents. Hence, this
Tribunal feels that, it is just, proper and necessary to award global
compensation of Rupees 30,000/- to the Petitioner, which is fair
and reasonable. Hence, the Petitioner is entitled for global
compensation of Rupees 30,000/-.
35 M.V.C.NO.4801/2014
(SCCH-7)
39. The P.W.2 has stated that, he has spent a sum of
Rupees 50,000/- for treatment, medicines, conveyance and other
incidental expenses. In this regard, the Petitioner has produced
Ex.P.11 Medical Bills 11 in numbers, which is amounting of
Rupees 16,887/-. In the road traffic accident, the Petitioner had
sustained injury to left elbow with un-displaced fracture radial
head, which is grievous in nature and as per Ex.P.14 Radiological
Report, it was diagnosed fracture neck of radius. The Petitioner
has taken treatment at Green View Medical Centre. Considering
the nature of the injury and the treatment taken by the Petitioner
to the said injury, the possibility of spending the said amount for
the medicines cannot be doubted. Therefore, it is necessary to
award the said actual medical expenses of Rupees 16,887/- to the
Petitioner.
40. In all, the Petitioner is entitled for total compensation
of Rupees 46,887/- (Rupees 30,000/- + Rupees 16,887/-) along
with interest at the rate of 8% per annum on the above said sum
from the date of petition till payment.
41. The P.W.1 and P.W.2 have stated that, the Respondent
No.1 was the R.C. Owner of the said offending Maruthi Omni
(Ambulance) bearing Registration No.KA-05-M-3053 and insured
the same with the Respondent No.2 and the policy was in force on
the date of accident and hence, both the Respondents are jointly
and severally liable to pay the compensation.
36 M.V.C.NO.4801/2014
(SCCH-7)
42. While answering Issue No.1, this Tribunal has already
come to the conclusion that, the entire negligence is on the part of
the driver of the offending Maruthi Omni (Ambulance) bearing
Registration No.KA-05-M-3053 in the commission of the said road
traffic accident and there was no negligence on the part of the
Petitioner in M.V.C.No.4801/2014 and in the said road traffic
accident, the Petitioner in M.V.C.No.4800/2014 had sustained
simple injury and the Petitioner in M.V.C.No.4801/2014 had
sustained grievous injury.
43. The Petitioners in the cause title of both the petitions
have clearly mentioned that, the Respondent No.1 was a R.C.
Owner and the Respondent No.2 was an insurer of the offending
Maruthi Omni (Ambulance) bearing Registration No.KA-05-M-
3053 and its Policy No.67030331130200000222, valid from
07.04.2013 to 06.04.2014. The Respondent No.2 in its written
statement has clearly stated that, it has issued an Insurance
Policy in respect of the Ambulance bearing Registration No.KA-05-
M-3053 and its Policy No. 67030331130200000222, valid from
07.04.2013 to 06.04.2014. Further, the Respondent No.2 has
produced Ex.R.4 Insurance Policy along with terms and
conditions, relating to offending Maruthi Omni (Ambulance)
bearing Registration No.KA-05-M-3053, which disclosed that, at
the time of accident, the Respondent No.1 was a R.C. Owner and
the Respondent No.2 was an insurer of the said offending Maruthi
Omni Ambulance and its Insurance Policy was valid, which covers
the date of accident.
37 M.V.C.NO.4801/2014
(SCCH-7)
44. But, based on the said grounds, it cannot be came to
the conclusion that, both the Respondent No.1 and Respondent
No.2 are jointly and severally liable to pay the above said
compensation and interest to both the Petitioners, as, the R.W.1
has stated in his examination-in-chief that, the driver of the
offending Maruthi Omni (Ambulance) bearing Registration No.KA-
05-M-3053 was not holding a valid and effective driving licence to
drive the vehicle, which is gross violation of the terms and
conditions of the Insurance Policy and hence, their Insurance
Company is not liable to pay any compensation and it is not liable
to indemnify the claim of the Petitioners and the charge sheet is
filed by the jurisdictional Police under Section 3(1) R/w Section
181 of IMV Act and it is clearly indicated in the charge sheet that,
the driver of the vehicle was not holding a driving licence to drive
the vehicle at the time of accident. He has further stated that, the
owner of the Ambulance bearing Registration No.KA-05-M-3053
has entrusted his vehicle to such person to drive, who had no
licence to drive for particular class and type of vehicle at the time
of accident and thereby, has violated the terms and conditions of
the policy and provisions of M.V. Act and the owner of the
Ambulance has been charge sheeted under Section 5(1) R/w 180
of IMV Act. He has further stated that, it is clearly indicated in the
charge sheet that, the owner of the vehicle has handed over his
vehicle to such a person to drive, who was not holding a valid
badge to drive the vehicle at the time of accident and hence, their
Insurance Company is not liable to indemnify the owner towards
the claim of the Petitioner and since there is a gross violation of
the terms and conditions of the Insurance Policy. Further the
38 M.V.C.NO.4801/2014
(SCCH-7)
Respondent No.2 has produced Ex.R.3 'B' Register Extract,
relating to the vehicle Registration No.KA-05-M-3053, Ex.R.5
Letter dated 16.10.2015 issued to Sri. A.N.Kumar S/o. R. A.
Narayan along with Postal Receipt, Ex.R.6 Letter dated
16.10.2015 issued to Sri. Venkatesh along with Postal Receipt,
Ex.R.7 Letter Dated 16.10.2015 issued to Sri. Annappa V. S/o.
Venkatesh along with Postal Receipt, Ex.R.8 Letter dated
16.10.2015 to Public Information Officer, Sakaleshpura, RTO
under RTI along with Postal Order Counter File and Postal
Receipt, Ex.R.9 Letter dated 11.12.2014, Ex.R.10 Unserved
Returned Postal Cover, Ex.R.10(a) Letter Kept in Ex.R.9 and
Ex.10(b) Postal Acknowledgement annexed to Ex.R.10, which
clearly disclosed that, the Respondent No.2 has made a prompt
efforts to know that, whether the driver of the said offending
Maruthi Omni (Ambulance) bearing Registration No.KA-05-M-
3053 was having a valid and effective driving licence to drive such
class of offending Maruthi Omni Ambulance at the time of
accident. No doubt, the Petitioner in M.V.C.No.4801/2014 had
produced Ex.P.15 History Sheet for Drivers relating to Annappa.
V. S/o. Venkatesh along with Letter dated 28.01.2016 issued by
ARTO, Sakaleshpur. Further, the Respondent No.2 has not
produced the driving licence relating to the driver of the said
offending Maruthi Omni (Ambulance). In this regard, the R.W.1 in
his cross-examination has stated that, they have not produced the
copy of driving licence relating to the driver of offending vehicle
and they have not obtained the driving licence extract relating to
the driver of offending vehicle to the RTO. He has further stated
that, the unladen weight of the offending vehicle is 750 kgs as per
39 M.V.C.NO.4801/2014
(SCCH-7)
Ex.R.3, which is less than 7500 kgs. But, based on the said
evidence, it cannot be said that, at the time of accident, the driver
of the offending Maruthi Omni (Ambulance) was having a valid
and effective driving licence to drive such class of offending
vehicle, as, in Ex.P.3 and Ex.R.2 Charge Sheet, it is clearly alleged
by the Investigating Officer as against the driver of the offending
Maruthi Omni Ambulance that, at the time of accident, he was not
having a badge to drive such class of offending vehicle. More so,
the contents of Ex.P.11 Order Sheet, Ex.P.12 Accusation of
Annappa. V. and Ex.P.13 Accusation of A. N. Kumar clearly
disclosed that, the driver and the owner of the said offending
Maruthi Omni (Ambulance) have clearly admitted in the criminal
case, which is relating to the accident in question that, at the time
of accident, the driver of the offending Maruthi Omni (Ambulance)
was not having a valid and effective driving licence to drive such
class of offending vehicle and its owner had allowed the said driver
to drive such vehicle without having valid and effective driving
licence and badge. Whatever the allegations leveled by the
Investigating Officer in Ex.P.3 and Ex.R.2 Charge Sheet under
Section 279, 337 and 338 of IPC and Section 3(1), R/w 181 5(1)
and 180 of MV Act, which clearly admitted by the driver and
owner of the offending Maruthi Omni (Ambulance) bearing
Registration No.KA-05-M-3053 in the criminal case, which is
relating to the present road traffic accident. Furthermore, the
R.W.1 in his cross-examination has clearly stated that, the
offending vehicle is a Motor Cab and the same has been clearly
mentioned in Ex.R.3 'B' Register Extract. Since the offending
Maruthi Omni (Ambulance) bearing Registration No.KA-05-M-
40 M.V.C.NO.4801/2014
(SCCH-7)
3053 was a motor cab, the driver of the said vehicle was required
to had a valid and effective driving licence with badge to drive
such class of vehicle. From this material evidence, it is made
crystal clear that, at the time of accident, the driver of Maruthi
Omni Ambulance was not having a valid and effective driving
licence to drive such class of vehicle. Under such circumstances,
it can be safely held that, the Respondent No.1 being a R. C.
Owner of the offending Maruthi Omni Ambulance has violated the
terms and conditions of Ex.R.4 Insurance Policy. Hence, the
Respondent No.2, who is an insurer of the said offending Maruthi
Omni Ambulance is not liable to pay any compensation to both
the Petitioners by indemnifying the Respondent No.1. The
Respondent No.1 being the R. C. Owner of the offending Maruthi
Omni (Ambulance) bearing Registration No.KA-05-M-3053 is alone
liable to pay the compensation and interest to both the Petitioners.
Hence, the petitions filed by both the Petitioners are liable to be
partly allowed as against the Respondent No.1 and they are liable
to be dismissed as against the Respondent No.2. In view of the
above said reasons and findings on Issues, the principles
enunciated in the decisions cited by the Learned Counsel
appearing for the Petitioners are not applicable to the present
facts and circumstances of the case on hand. Hence, Issue No.2
in M.V.C.No.4800/2014 and M.V.C.No.4801/2014 are
answered accordingly.
45. ISSUE NO.3 IN M.V.C.No.4800/2014 :- For the
aforesaid reasons, I proceed to pass the following;
41 M.V.C.NO.4801/2014
(SCCH-7)
ORDER
The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs as against the Respondent No.1.
The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby dismissed as against the Respondent No.2.
The Petitioner is entitled for compensation of Rupees 36,427/- with interest at the rate of 8% p.a. from the date of the petition till the date of payment, from the Respondent No.1.
The Respondent No.1 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this Order.
In the event of deposit of compensation and interest, entire
amount shall be released in favour of the Petitioner through account payee cheque, on proper identification.
42 M.V.C.NO.4801/2014(SCCH-7) Advocate's fee is fixed at Rupees 1,000/-.
Original copy of the Judgment shall be kept in M.V.C.No.4800/2014 and the copy of the same shall be kept in M.V.C.No.4801/2014.
Draw award accordingly.
46. ISSUE NO.3 IN M.V.C.NO.4801/2014 :- For the aforesaid reasons, I proceed to pass the following;
ORDER The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs as against the Respondent No.1.
The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby dismissed as against the Respondent No.2.
The Petitioner is entitled for compensation of Rupees 46,887/- with 43 M.V.C.NO.4801/2014 (SCCH-7) interest at the rate of 8% p.a. from the date of the petition till the date of payment, from the Respondent No.1.
The Respondent No.1 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this Order.
In the event of deposit of
compensation and interest, entire
amount shall be released in favour of the Petitioner through account payee cheque, on proper identification.
Advocate's fee is fixed at Rupees 1,000/-.
Original copy of the Judgment shall be kept in M.V.C.No.4800/2014 and the copy of the same shall be kept in M.V.C.No.4801/2014.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by her, corrected and then, pronounced by me in the open Court on this, the 1st day of June, 2016.) 44 M.V.C.NO.4801/2014 (SCCH-7) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONERS :-
P.W.1 : Smt. Sowbhagya
P.W.2 : Sri. Emmanuel
2. DOCUMENTS MARKED BY THE PETITIONERS :-
Ex.P.1 : True Copy of FIR
Ex.P.2 : True Copy of Complaint
Ex.P.3 : True Copy of Charge Sheet
Ex.P.4 : True Copy of Spot Hand Sketch
Ex.P.5 : True Copy of Spot Panchanama
Ex.P.6 : True copy of Wound Certificate
Ex.P.7 : True copy of MVI Report
Ex.P.8 : Medical Bills (12 in nos.)
Ex.P.9 : True copy of Wound Certificate
Ex.P.10 : X-ray Film
Ex.P.11 : Medical Bills (11 in nos.)
Ex.P.12 : True copy of Radiological Report
Ex.P.13 : Salary Slip
Ex.P.14 : Radiological Report
Ex.P.15 : True copy of History Sheet for Drivers
relating to Annappa.V. S/o. Venkatesh along with Letter dated 28.01.2016 issued by ARTO, Sakaleshpur
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
R.W.1 : Sushil Tiwari
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
Ex.R.1 : Authorization Letter 45 M.V.C.NO.4801/2014 (SCCH-7) Ex.R.2 : True copy of Charge Sheet Ex.R.3 : B-Register Extract relating to Vehicle bearing Registration No.KA-05-M-3053 Ex.R.4 : True copy of Insurance Policy along with terms and conditions Ex.R.5 : Office copy of Letter dated 16.10.2015 issued to Sri.A. N. Kumar S/o. R. A. Narayan along with Postal Receipt Ex.R.6 : Office copy of Letter dated 16.10.2015 issued to Sri. Venkatesh along with Postal Receipt Ex.R.7 : Office copy of Letter dated 16.10.2015 issued to Sri. Annappa. V. S/o. Venkatesh along with Postal Receipt Ex.R.8 : Office copy of Letter dated 16.10.2014 to Public Information Officer, Sakaleshpura, RTO under RTI along with Postal Order Counter File and Postal Receipt Ex.R.9 : Office copy of Letter dated 11.12.2014 Ex.R.10(a) : Copy of Letter kept in Ex.R.9 Ex.R.10(b) : Postal Acknowledgement annexed to Ex.R.10 Ex.R.11 : Certified copy Order Sheet of C.C.No.331/2014 Ex.R.12 : Certified copy of Accusation of Annappa. V. relating to C.C.No.331/2014 Ex.R.13 : Certified copy of Accusation of A. N. Kumar relating to C.C.No.331/2014 Ex.R.14 : Certified copy of Statement of Sri. Enyan Selvaraj Ex.R.15 : Certified copy of Statement of Sri. M. S. Devakumar Ex.R.16 : Certified copy of Statement of Smt. Soubhagya (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore