Bangalore District Court
Pradeep V.M vs Reliance Gen. Ins.Co.Ltd on 24 July, 2017
IN THE COURT OF THE XXII ADDITIONAL SMALL
CAUSES JUDGE AND XX ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE & M.A.C.T.,
BENGALURU (SCCH-24).
PRESENT: Smt. Zaibunnisa
B.Com.LL.B.
XXII Addl.Small Causes Judge & XX
A.C.M.M. & Member M.A.C.T., Bengaluru.
Dated This the 24th Day of July, 2017.
M.V.C.No.1685/2015
Petitioner : Pradeep V.M.,
S/o Muniraju,
Aged about 23 years,
Residing at:
No.62/2, 1st Main, 1st Cross,
Venkatala, Yelahanka,
Bangalore-560 064.
(Reptd.: By Sri. B.K. Vasudevamurthy,
Advocate- Bengaluru)
- Versus -
Respondents: 1. Reliance Gen. Ins.Co.Ltd.,
East Wing, 5th Floor,
No.28, Centenary Building,
M.G. Road,
Bangalore-560 001.
(Policy No.1409542338001050)
(Reptd: By Sri. A.N. Hegade,
Advocate, Bengaluru)
2 SCCH-24
M.V.C.1685/2015
2. Ramakrishna B.N.,
S/o Late Nagappa,
No.14, 2nd Floor, 3rd Cross,
Chikkatoguru Gate,
Electronic City Post,
Bangalore-560 100.
(Owner of the vehicle)
(Placed Ex-parte).
(ZAIBUNNISA)
XXII A.S.C.J. & XX A.C.M.M.,
& MEMBER, M.A.C.T.,
Bengaluru.
3 SCCH-24
M.V.C.1685/2015
JUDGEMENT
The petitioner has filed this claim petition under Section 166 of the Motor Vehicles Act claiming the compensation of Rs.10,00,000/- on account of the injuries sustained by him in the Motor Vehicles Accident.
2. The brief case of the petitioner is as under:
That on 29.11.2014 at about 6.30 a.m., the petitioner being a rider of the Motor Cycle bearing Reg.No.KA-03-HQ-1981 was going on the extreme left side of the service road of BB road near Kendriya Vihar Apartments very carefully and cautiously by observing the traffic rules and regulations, at that moment all of a sudden one car bearing Reg.No.KA05-AE-748 driven by its driver in a rash and negligent manner, endangering to human life at high speed, came from the same direction and while taking sudden full left turn and dashed the 4 SCCH-24 M.V.C.1685/2015 petitioner's vehicle from the back side. Due to impact the petitioner fell down and sustained small multiple abrasions over the upper and lower limbs, displaced fracture of 2nd, 3rd, 4th MT, neck of right foot, 5th MTP joint dislocation of right foot and injuries all over the body. Immediately he was shifted to the Apurva Hospital, wherein he took treatment as an inpatient.
Multiple operations were done and implants were fixed to the fractured sites. The petitioner was spent more than a sum of Rs.1,20,000/- towards medical and other allowances.
3. The petitioner submitted that, the petitioner was hale and healthy at the time of accident and he being the PF Analyst at Deutsche Bank, was earning a salary of Rs.14,000/- per month. Now because of this accident, the petitioner become disabled to continue his work and he is not in a condition to work permanently, so as to 5 SCCH-24 M.V.C.1685/2015 earn for his lively hood and he is deprived of all the amenities. It is submitted that, the accident is only due to the rash and negligent driving of the driver of the Car bearing Reg.No.KA-05-AE-748. In this regard the police have registered a case and filed charge sheet against the driver of the said car in Crime No.203/2014 under Section 279 and 338 of Indian Penal Code. The respondents being the insurer and insured respectively of the said vehicle are jointly and severally liable to pay the compensation to the petitioner with interest.
4. After service of notice of the petition, respondent No.1 appeared through its counsel before the Tribunal and filed the detailed statement of objections. Respondent No.2 remained absent and he has been placed Ex-parte.
6 SCCH-24 M.V.C.1685/2015
5. The 1st respondent submitted that, the petition is not maintainable either in law or on facts. The 1st respondent admitted the issuance of policy in respect of Car bearing Reg.No.KA-05-AE-748 and calls upon the 2nd respondent to produce the same and also the liability if any is subject to terms and conditions of the policy of insurance issued. The 1st respondent submitted that, the car bearing Reg.No.KA-05-AE-748 is a Transport vehicle and specific licence is required to drive the class of vehicle, but in this case the driver/owner of the said vehicle has no valid and effective driving licence at the time of accident to drive the same. Further submitted that, the driving licence of the said driver was lapsed much prior to the accident and it was renewed after the accident i.e., on 02.02.2015 and it is clear that, the owner has willfully violated the terms and conditions of the policy. The 1st respondent submitted that, the said car was used without having valid permit and fitness 7 SCCH-24 M.V.C.1685/2015 certificate and it is the clear violation of the policy conditions. Further submitted that, the owner of the vehicle and the jurisdictional police have failed to comply the statutory demands as per Section 134(c) and 158(6) of M.V. Act, 1988. The 1st respondent has denied the rash and negligent driving of the same by its driver, age, occupation, income, injuries sustained, treatment taken, amount spent towards medical and other expenses, permanent disability and loss of earnings sustained by the petitioner, registration of the case against the driver of the Car and put the petitioner to strict proof of the same. The 1st respondent submitted that, the insured car is not at all involved in any accident and it is intentionally implicated in collusion with the driver and other authorities. The accident occurred due to rash and negligent riding of the Motor Cycle by the petitioner, who was riding the same unmindfully, without observing the traffic. It is submitted that, the compensation claimed by 8 SCCH-24 M.V.C.1685/2015 the petitioner is highly exorbitant and without any basis. Further submitted that, the petitioner is not entitled for payment of any interest whatsoever for the period of delay caused by claimant in furnishing the medical documents, disability certificate and any other documents. Accordingly the 1st respondent prayed to dismiss the petition with costs.
6. On the basis of the above pleadings and the rival contentions of both the parties, the following issues are framed:-
ISSUES
1. Whether the petitioner proves that, he has sustained injuries in a Road Traffic Accident that occurred on 29.11.2014 at about 6.30 a.m., near Kendriya Vihar Apartments, B.B. Road, Yelahanka, Bengaluru City, due to rash and negligent driving of the Car bearing Reg.No.KA-05- AE-748 by its driver?
9 SCCH-24 M.V.C.1685/2015
2. Whether the petitioner is entitled for the compensation as claimed?
If so, to what amount and from whom?
3. What order or award?
7. In order to substantiate the case made out by the petitioner, the petitioner got himself examined as P.W.1 and one witness examined as P.W.2 and got marked documents at Ex.P.1 to Ex.P.13. Thereafter, the petitioner closed his side evidence.
8. In order to rebut the evidence so placed on record by the petitioner, the 1st respondent has examined two witnesses as R.W.1 and R.W.2 and got marked documents at Ex.R.1 to Ex.R.3.
9. Heard the arguments. Perused the materials placed on record.
10. My findings on the above issues are as under:
10 SCCH-24 M.V.C.1685/2015 Issue No.1 - In the Affirmative.
Issue No.2 - Partly in the Affirmative.
The petitioner is entitled for a total compensation of Rs.3,02,100/-, from the respondent No.2.
Issue No.3 - As per final order,
for the following :
REASONS
ISSUE No.1:
11. In order to prove the negligence on the part of the driver of the Car bearing Reg.No.KA-05-AE-748, the petitioner himself entered into the witness box and filed affidavit in lieu of examination-in-chief and got examined as P.W.1. He reiterates the averments and the allegations made in the claim petition that, on 29.11.2014 at about 6.30 a.m., he was riding the Motor Cycle bearing Reg.No.KA-03-HQ-1981 on the extreme left side of the service road of BB road near Kendriya Vihar Apartments 11 SCCH-24 M.V.C.1685/2015 very carefully and cautiously by observing the traffic rules and regulations, but the driver of the car bearing Reg.No.KA05-AE-748 driven all of a sudden came in a rash and negligent manner, endangering to human life at high speed, from the same direction and while taking sudden full left turn dashed to the petitioner's vehicle from the back side. Further deposed that, Due to impact he fell down and sustained fractures and multiple injuries all over the body. It is the case of the petitioner that, the Yelahanka Traffic police have registered a criminal case and filed charge sheet against the driver of the Car bearing Reg.No.KA-05-AE-748 in Crime No.203/2014 for the offences punishable under Section 279, 338 of Indian Penal Code. During the course of cross-examination, P.W.1 denied the suggestions put forth by the 1st respondent that, the accident occurred due to his negligent riding who suddenly took right turn. It is the case of the petitioner that, the driver of the car 12 SCCH-24 M.V.C.1685/2015 came from his back side and dashed to his motor cycle. The said aspect is also suggested and admitted by P.W.1 during the cross-examination that, as per sketch produced at Ex.P.5, his motor cycle was going ahead and car was coming from his back side. Except the said suggestions nothing worthwhile material has been elicited from the mouth of this witness to discredit his version made in the examination-in- chief.
12. Apart from the above said oral evidence the petitioner has relied upon the copies of police documents which are produced at Ex.P.1 to Ex.P.7. Out of which, Ex.P.1 is the First Information Report, Ex.P.2 is the Complaint, Ex.P.3 is the Wound Certificate, Ex.P.4 is the Charge Sheet, Ex.P.5 is the Sketch, Ex.P.6 is the Mahazar and Ex.P.7 is the IMV Report. Ex.P.1, the First Information Report is prepared based on the complaint as per Ex.P.2. These records discloses that, the 13 SCCH-24 M.V.C.1685/2015 Criminal Case has been registered against the driver of the Car bearing Reg.No.KA-05-AE-748 for the offences punishable under Sec.279 and 337 of the Indian Penal Code. After investigation, the police have filed the charge sheet against the driver of the said Car for the offences punishable under Sec.279 and 338 of Indian Penal Code. Thus, the contents of the above said police documents prima-facie establishes the rash and negligence on the part of the driver of the Car bearing Reg.No.KA-05-AE- 748 in causing the accident to the petitioner.
13. The 1st respondent apart from denying the rash and negligent driving of the Car bearing Reg.No.KA-05- AE-748, has taken specific defence that, the accident occurred due to rash and negligent riding of the Motor Cycle by the petitioner, as he was riding the same unmindfully, without observing the traffic. The 1st respondent has examined two witnesses as R.W.1 and 14 SCCH-24 M.V.C.1685/2015 R.W.2. R.W.2, the legal officer of the 1st respondent company in his affidavit evidence admitted the charge sheet filed against the driver of the Car bearing Reg.No.KA-05-AE-748 and he has not whispered anything to deny the rash and negligent driving of the said car by its driver. R.W.2 concentrates only on the invalid driving licence of the driver of the car at the time of accident. The 1st respondent has not examined the driver of the said car nor disputed the police documents. In the absence of any satisfactory rebuttal evidence, the version of P.W.1 and the documentary evidence are to be believed. Under these circumstances, the evidence of P.W.1 coupled with the contents of Ex.P.1 to Ex.P.7 establishes that the accident has caused solely due to rash and negligent driving of the Car bearing Reg.No.KA- 05-AE-748 by its driver and the petitioner has sustained injuries in the said accident. Accordingly, issue No.1 is answered in the Affirmative.
15 SCCH-24 M.V.C.1685/2015 ISSUE No.2:
14. The petitioner submitted that, he has sustained injuries in the said accident. He has relied upon Ex.P.3, i.e., the Wound Certificate issued by Apurva Hospital, Bengaluru. Ex.P.3 reveals that, the petitioner had sustained the following injuries:
1. Small Multiple Abrasion over the upper and lower limbs.
2. Displaced fracture of 2nd, 3rd and 4th MT neck right foot.
3. 5th MTP joint dislocation right foot.
As per Ex.P.3, the above said injuries are grievous in nature. There is no much dispute with regard to the injuries sustained by the petitioner. In view of the findings recorded on issue No.1, the petitioner has suffered injuries because of the actionable negligence on the part of the driver of the Car bearing Reg.No.KA-05- 16 SCCH-24 M.V.C.1685/2015 AE-748. Hence, the petitioner is entitled for the compensation.
15. It is stated in the petition, as well as in the evidence that, the petitioner has taken treatment at Apurva Hospital, Bengaluru as an inpatient for 4 days. During that period petitioner underwent surgery with external fixations and he has taken bed rest as per the advise of the doctor. Taking into consideration of the nature of injuries, duration of the treatment as an in and out patient, I am of the considered opinion that, the petitioner has suffered severe pain because of the said accidental injuries. Hence, the petitioner is entitled for a sum of Rs.20,000/- towards pain and sufferings.
16. It is the evidence of P.W.1 that, he had spent Rs.1,20,000/- towards medical and other allowances. In this regard the petitioner has produced 16 Medical Bills amounting to Rs.57,036/- at Ex.P.9. The above said 17 SCCH-24 M.V.C.1685/2015 medical records are not at all rebutted by the respondent with cogent evidence. Taking into consideration of the nature of the injuries and the treatment as an inpatient, outpatient, I am of the opinion that the petitioner is entitled for a sum of Rs.57,036/- towards Medical expenses.
17. It is the case of the petitioner that, immediately after the accident he was shifted to Apurva Hospital, wherein admitted as an inpatient for 4 days. P.W.1 deposed that, after discharge from the hospital, he took bed rest for about 4 months as advised by the doctor. In order to prove the said aspects P.W.1 has produced Ex.P.8 the Discharge Summary, issued by Apurva Hospital. Ex.P.8 shows that, the petitioner was admitted as an inpatient from 29.11.2014 to 02.12.2014. During this period the petitioner must have spent money for food and nourishment. Except the said document 18 SCCH-24 M.V.C.1685/2015 petitioner has not produced any other material evidence. The nature of injuries necessitates the follow-up treatment and attendant. By considering the above said oral and documentary evidence and having regard to all the said aspects, I am of the considered opinion that, the petitioner is entitled for the compensation of Rs.15,000/- towards food and nourishment expenses, attendant and conveyance charges.
18. It is stated in the petition as well as in the evidence of PW.1 that, at the time of accident he being a PF Analyst at Deutsche Bank and drawing a salary of Rs.14,000/- per month. In order to show his avocation and income, petitioner has produced Bank Statement and 4 Pay Slip at Ex.P.10 and Ex.P.11. As per the Bank Statement the total salary credited to his account for the month of September is Rs.9,166/-, for the month of October and November is Rs.12,000/- each and for the 19 SCCH-24 M.V.C.1685/2015 month of December credited Rs.11,994/-. The said salary credited to the Bank Account of the petitioner is supported by the 4 pay slips produced at Ex.P.11. From the above said materials it reveals that, the petitioner was working at Ranstand India Private Limited as on the date of accident. The amount credited by Ranstand India Private Limited towards salary of the petitioner varies from month to month as shown in Ex.P.10 and Ex.P.11. Except the said documents, the petitioner has not produced any material evidence nor examined his employer to show his avocation and income at the rate of Rs.14,000/- per month as contended by him. Hence, it cannot be concluded that, the petitioner was earning Rs.14,000/- per month at the time of accident regularly. But if the salary of the said four months i.e., from September-2014 to December-2014 is considered and taken together, the average salary of the petitioner comes to Rs.11,290/- per month. Hence, I am of the opinion 20 SCCH-24 M.V.C.1685/2015 that, if the income of the petitioner is inferred at Rs.11,290/- per month that would meet the ends of justice. The evidence of P.W.1 and medical documents reveals that the petitioner has taken treatment as an inpatient for 4 days. P.W.1 deposed that, after discharge from the hospital, he took bed rest for about 4 months as he has been advised by the doctor and lost earnings for that period and still he is taking the treatment on OPD basis. In this regard petitioner has not produced any leave certificate. Ex.P.10 and Ex.P.11 i.e., the Bank Statement and Pay Slips shows that, the petitioner has drawn salary regularly even after the accident i.e., for the month of December-2014. Hence I am of the opinion that, the petitioner has not lost any income due to the accident during the period of treatment and bed rest. Thus, the petitioner is not entitled for the compensation towards loss of income during the period of treatment.
21 SCCH-24 M.V.C.1685/2015
19. It is the evidence of P.W.1 that, because of the accidental injuries he is having severe pain at his fractured sites, cannot do any simple or hard work, get swelling and pain at fractured sites if he do any small work also. Further deposed that, he cannot run, move on his right foot, cannot move fingers, ankle and leg and to bend backward and forward. Further deposed that, he is unable to continue his work and not in a position to work permanently, so as to earn for his lively hood and he is deprived of all the amenities. Further deposed that, due to his 4 months absence, his employer has terminated him from the job and now he is job less. The petitioner in support of his evidence got examined P.W.2 Dr. S.A. Somashekar, the Orthopedic Surgeon of Bowring and Lady Curzon Hospital, Bengaluru. P.W.2 deposed that, he examined the petitioner clinically and radiologically on 16.09.2016 for the assessment of disability. Further deposed that, on examination he 22 SCCH-24 M.V.C.1685/2015 found petitioner walks with limping and diffused swelling of right foot, surgical scars due to the secondary healing of right foot. Further deposed that, X-ray shows united fractures of 2nd, 3rd and 4th metatarsal nails and relocated 5th MTP joint. Further deposed that, the petitioner has suffered the total disability in respect of right lower limb at 23% and 12% in respect of whole body. During the course of cross-examination P.W.2 deposed that, he has not given treatment to the petitioner. He has denied the suggestions that, as per the Government of India Guidelines for fracture of one metatarsal the whole body disability would be considered as 1%. Further denied that, only 1/3rd of disability of the particular limb will be considered as the whole body disability. He has produced OPD Card and one X-ray Film at Ex.P.12 and Ex.P.13. Considering the evidence of P.W.2 that fracture sustained by the petitioner is united, materials placed on record and also considering the condition of the 23 SCCH-24 M.V.C.1685/2015 petitioner, it appears that the disability shown by P.W.2 is seems to be at higher side to the injuries sustained by the petitioner. Therefore it is just and proper to consider the whole body disability at 8% i.e., 1/3rd of the disability to particular limb. So, there is loss of future income of Rs.903/-(Rs.11,290 X 8%) per month. In the cause title the age of the petitioner is shown as 23 years. The medical records of the petitioner and police records shows the age of the petitioner as 23 years at the time of accident. Petitioner has not produced any materials to show his correct age. Considering the materials on record the age of the petitioner is considered as 23 years at the time of accident and the proper multiplier to be adopted in the case on hand is '18'. Thus, the petitioner is entitled for the compensation of (Rs.903/-x12x18) Rs.1,95,048/- towards Loss of Future Earnings.
24 SCCH-24 M.V.C.1685/2015
20. The injuries sustained by the petitioner shows that he must have sustained major pain and suffering. The accident has put him into a lot of discomfort and he has lost the amenities of life to some extent. Taking all these facts into consideration, the petitioner is entitled for a compensation of Rs.15,000/- towards Loss of Amenities of Life. Thus I am of the considered opinion that, it would be both fair and justifiable to award the compensation under the following heads :
1. Pain and suffering Rs. 20,000=00
2. Medical expenses. Rs. 57,036=00
3. Food and Nourishment Rs. 15,000=00 expenses, Conveyance and Attendant Charges.
4. Loss of future earnings. Rs. 1,95,048=00
5. Loss of amenities of life. Rs. 15,000=00 Total: Rs. 3,02,084=00 So, the petitioner is entitled for a total compensation of Rs.3,02,084/-, which is rounded of to Rs.3,02,100/-
(Rupees Three Lakhs Two Thousand and One Hundred 25 SCCH-24 M.V.C.1685/2015 only) with interest at the rate of 8% per annum from the date of petition till the date of realisation.
21. It is held supra by this Tribunal that, the accident has occurred due to the rash and negligent driving of the Car bearing Reg.No.KA-05-AE-748 by its driver. The 1st respondent has taken specific defence that, the car bearing Reg.No.KA-05-AE-748 is a Transport vehicle and specific licence is required to drive the class of vehicle, but in this case the driver/owner of the said car has no valid and effective driving licence at the time of accident to drive the same. Further submitted that, the driving licence of the said driver was lapsed much prior to the accident and it was renewed after the accident i.e., on 02.02.2015 and it is clear that, the owner has willfully violated the terms and conditions of the policy. In order to substantiate the said defence, the 1st respondent has examined two witnesses as R.W.1 26 SCCH-24 M.V.C.1685/2015 and R.W.2. R.W.1, the Superintendent of RTO, Electronic City, Bengaluru in her evidence deposed that, Ramakrishna B.N. had got licence from their office to drive the motor cycle with gear and LMV vehicle. Further deposed that, the vehicle bearing Reg.No.KA-05-AE-748 is the Motor Cab and no licence was issued to drive the said vehicle to Ramakrishna B.N. from her office. She has produced the Authorization Letter and D.L. Extract at Ex.R.1 and Ex.R.2. During the course of cross- examination R.W.1 admitted that, as per Ex.R.2 the driver had D.L. to drive LMV, which is valid till the year 2013. She also admitted that, on 21.11.2014 the said driver had D.L. to drive LMV, which is given by her office. She further deposed that, on the basis of D.L. issued by her office, driver can obtain badge and D.L. to drive LMV- Transport and HTV and admitted that, if the said driver obtained any badge or further D.L. from any other RTO the same would not reflected in the records of her office 27 SCCH-24 M.V.C.1685/2015 and same would be available in the office of Ministry of Road Transport and High Ways and the said information can be obtained by anybody through website. She admitted that, though LMV and LMV Cab are coming under same category and their registered laden weight is same, but one is non transport and another one is a transport vehicle.
22. R.W.2, the Legal Officer of the 1st respondent company in his affidavit evidence deposed that, Ramakrishna B.N., the driver of Motor Cab bearing Reg.No.KA-05-AE-748 having DL i.e., authorized to drive MCWC from 01.06.2011 to 31.05.2031, LMV from 08.11.2013 and LMV Cab i.e., LMV (TR) from 02.02.2015 to 01.02.2018. The accident occurred on 29.11.2014. Further deposed that, as per Xerox copy of RC and permit, the alleged offending vehicle was motor cab. On the date of accident the driver was not having valid and 28 SCCH-24 M.V.C.1685/2015 effective DL to drive motor cab, hence the 1st respondent is not liable to pay the compensation. He has produced the copy of policy at Ex.R.3. During the course of cross- examination he admitted that, the policy produced at Ex.R.3 issued in respect of LMV Transport and the insured vehicle is a passenger car. He further admitted that, at the time of accident, the said driver had D.L. to drive LMV but no D.L. to drive transport vehicle. He denied that, the drivers who are holding LMV-Non Transport D.L. can also drive the Cab for their own use. He further admitted that, at the time of accident, no passengers were traveling in the offending car, but denied that, the said driver was possessing D.L. to drive Cab, but he deposing falsely to escape from the liability that, the driver of the said car has possessed no D.L. to drive the Cab as on the date of accident. He also denied that, Ex.R.2 is created through R.W.1 in support of their defence.
29 SCCH-24 M.V.C.1685/2015
23. The learned counsel for the petitioner has relied on the following decisions:
1. 2004 ACJ 1 in the National Insurance Co.Ltd., Vs. Swaran Singh and Others held that:
"Motor Vehicles Act, 1988, section 149 (1) and (2) - Motor insurance - Defences available to insurance company - Liability of insurance company- Whether the insurance company is liable to satisfy the award in favour of third party at the first instance and then to recover the awarded amount from the owner or driver of the vehicle even where the insurance company could establish breach of terms of policy on the part of the owner of the vehicle - Held: yes; this position is holding the field for a long time; doctrine of stare decisis persuades not to deviate."
Further held that:
"Motor Vehicles Act, 1988, section 149 (2) (a) (ii) - Motor insurance - Diving licence - Defences available to insurance company - Driver possessing licence for one type of vehicle but found driving another type of vehicle- Whether liability of insurance company would depend upon the fact that driver not 30 SCCH-24 M.V.C.1685/2015 possessing requisite type of licence was the main or contributory cause of accident or not - Held: yes; insurer will not be allowed to avoid its liability merely on technical breach of conditions concerning driving licence".
2. 2006 ACJ 2825 in Mahamooda and Others Vs. United India Insurance Co.Ltd., and Others held that, "Motor Vehicles Act, 1988, section 149(2) (a) (ii) - Motor insurance -
Driving licence - Learner's licence - Liability of insurance company -
Whether the insurance company is liable when offending vehicle is driven by a person holding learner's licence - Held: yes".
3. 2007 ACJ 176 in M.Balasubramanya Vs. Pradyumna and Others held that:
Motor Vehicles Act, 1988, section 149 (2) (a) (ii) - Motor insurance -
Driving licence - Liability of insurance company - Driver had licence to drive LMV, but had no licence to drive LMV- transport -
Tribunal exonerated the insurance company- Skill of driving an Ambassador car whether it is LMV non-transport or transport would remain the same so far as third 31 SCCH-24 M.V.C.1685/2015 parties are concerned - Whether insurance company is liable - Held:
yes; when a person is entitled to drive LMV he is entitled to drive other types of vehicles coming under LMV category".
4. 2014 ACJ 2736 in The Manager, Oriental Insurance Co.Ltd., Vs. Prasanna Kumar S. and Others, held that:
"Motor Vehicles Act, 1988, sections 147 (1) and 149 (2) (a) (ii) - Motor insurance - Driving licence - Estoppel - Liability of Insurance Company - Insurance Company disputes its liability on the ground that driver was neither holding a valid licence to drive a taxi nor possessed a valid badge to drive the passenger carrying commercial vehicle- Contention that insurance company had settled the own damage claim of the owner of offending vehicle with respect of the accident before Consumer Forum therefore it is estopped from avoiding its liability to compensate the injured-claimant-
Judgment of Consumer Forum was not challenged by the insurance company - Consumer Forum discussed the validity of the driving licence of the driver while passing the order and insurance company cannot
32 SCCH-24 M.V.C.1685/2015 avoid its liability when the vehicle was covered under a valid policy at the time of accident- Whether insurance company is liable - Held;
yes".
5. 2012 ACJ 1909, in Branch Manager, National Insurance Co.Ltd., Vs. Janaki and Others held that:
"Motor Vehicles Act, 1988, section 149 (2) (a) (ii) - Motor insurance- Driving licence - Badge- Liability of Insurance company - Tourist taxi was driven by a relation of its owner for private purpose - Vehicle met with accident resulting in the death of its driver and a passenger sustained injuries - Insurance company disputes its liability on the ground that driver had no badge to drive a tourist taxi - Insurance company admitted that there is no prohibition in the policy for using a tourist taxi for personal use and policy does not require badge as only effective driving licence is stated therein - Official of transport office stated that if tourist taxi is used for private purpose, driver need not have a badge - Whether Tribunal was justified in concluding that driver had an effective driving licence and fastening liability on the insurance company - Held: yes".
33 SCCH-24 M.V.C.1685/2015
24. On the other hand the learned counsel for the 1st respondent has relied on the following decisions:
1. 2009 ACJ 1411, in Oriental Insurance Co.Ltd., Vs. Angad Kol and Others held that:
"Motor Vehicles Act, 1988, section 149(2) (a) (ii) read with sections 2 (21) and 14(2) - Motor insurance -
Driving licence - Liability of insurance company- Delivery auto, a goods vehicle, dashed against a person and she sustained fatal injuries - Insurance company seeks to avoid its liability on the ground that driver did not possess a valid and effective driving licence - Driver had licence to drive 'LMV' whereas he was driving a goods transport vehicle
- Definition of 'LMV' brings within its umbrage both ' transport vehicle' or 'omnibus' but a distinction between an effective licence granted for transport vehicle and passenger motor vehicle exists- Distinction between a 'LMV' and a 'transport vehicle' is evident- Licence to the driver was granted for 20 years, a presumption arises that it was meant for the purpose of a vehicle other than a transport vehicle- had the licence been granted for transport vehicle, the tenure thereof could not 34 SCCH-24 M.V.C.1685/2015 have exceeded 3 years - Whether the driver had a valid and effective licence and insurance company is liable- Held: no; insurance company directed to pay compensation to the claimants with right to recover the amount from owner and driver of the vehicle".
2. 2008 ACJ 2161 in New India Assurance Co.Ltd., Vs. Roshanben Rahemansha Fakir and Another, held that:
Motor Vehicles Act, 1988, section 3, 14 and 149 (2) (a) (ii) read with Central Motor Vehicles Rules, 1989, rule 41 - Motor insurance - Driving licence - Liability of insurance company- Driver of offending vehicle had licence to drive a three wheeler which was not meant to be used to drive a transport vehicle but he was driving a goods carrying public carrier, an autorickshaw delivery van- Vehicle was a commercial vehicle and was not being used for a private purpose - Whether the driver possessed a valid driving licence and the insurance company is liable -
Held: no; Apex Court in exercise of its jurisdiction under Article 142 of the Constitution directed the insurance company to satisfy the award and 35 SCCH-24 M.V.C.1685/2015 recover the amount from the owner".
3. AIR 2000 Himachal Pradesh 91 in New India Assurance Co. Ltd., Vs. Suraj Parkash and Others held that:
"Motor Vehicles Act (59 of 1988), Ss. 147, 3(1), 2(47)- Motor accident - Insurer's liability - Determination - Insurance found to be in respect of vehicle registered as a taxi - Vehicle involved in accident thus could be said to be 'Public Service Vehicle' - But licence to driver not containing endorsement to drive transport vehicle- Thereby he could not be said to be possessed of valid licence - Insurer could not be saddled with liability for payment of compensation".
4. 2015 ACJ 2423, in National Insurance Co. Ltd., Vs. Nagamma and others held that:
"Motor Vehicles Act, 1988, section 149 (2) (a) (ii) - Motor insurance -
Driving licence - Liability of insurance company - Insurance company disputes its liability on the ground that driver of offending vehicle was possessing licence for driving light motor vehicle but he was 36 SCCH-24 M.V.C.1685/2015 driving a transport vehicle - Contention that offending vehicle was a light motor vehicle and there was no infirmity if it was not specified on the licence that its holder was entitled to drive a transport vehicle- Whether a driver holding licence to drive light motor vehicle is not authorized to drive a transport vehicle without a specific endorsement to that effect on his licence and insurance company is exempted from liability - Held: yes".
5. ILR 2015 KAR 2064, in Mohammed @ Mohd. Haneef Vs. Mallayya @ Mallappa and Another held that:
"Motor Vehciles Act, 1088 - Accident claim - Judgment and Award -
Liability imposed on the owner of the vehicle to pay the compensation - Appealed against - Whether a person holding a licence to drive a LMV (NT) vehicle has the authority to drive the LMV (TP) vehicle and whether the insurer is liable to indemnify the owner? - HELD, A person holding a licence to drive a LMV (NT) vehicle has no authority or competence to drive the LMV (TP) vehicle".
37 SCCH-24 M.V.C.1685/2015 I have gone through the decisions relied on by the parties in the light of facts and circumstances appeared during the course of the trial. The decisions relied on by the learned counsel for the 1st respondent are more relevant and recent in that point of time rather than the decisions held on for petitioner. Under such circumstances, I am of the opinion that, due to the invalid licence that was holding by the driver of the offending Car at the time of accident, the owner of the said vehicle violated the terms and conditions of the policy and the provisions of M.V. Act. Therefore Insurance Company is not liable to indemnify the owner and respondent No.2 is liable to pay the compensation to the petitioner. Accordingly issue No.2 is answered partly in the Affirmative. ISSUE No.3:
25. For the foregoing reasons and the discussions as stated above, the petition filed by the petitioner
38 SCCH-24 M.V.C.1685/2015 deserves to be allowed in part with costs against the 2nd respondent.
In result, I proceed to pass the following:
ORDER The claim petition filed under Section 166 of the Motor Vehicles Act by the petitioner is hereby allowed in part with costs against the 2nd respondent.
The petition against the 1st respondent is dismissed.
The petitioner is awarded a total compensation of Rs.3,02,100/-
(Rupees Three Lakhs Two Thousand and One Hundred only) with interest at the rate of 8% per annum from the date of petition till the date of realization.
The respondent No.2 is liable to pay the compensation awarded in this case to the petitioner.
The respondent No.2 shall deposit the said compensation amount into the Tribunal within 60 days from the date of this order.
39 SCCH-24 M.V.C.1685/2015 Out of the compensation amount awarded, 25% shall be kept in fixed deposit in any of the Nationalized or Scheduled Bank in the name of petitioner for a period of five years. The remaining amount with accrued interest shall be disbursed to the petitioner.
Advocate's fee is fixed at
Rs.1,000/-
Draw award accordingly.
(Dictated to the stenographer directory on computer, typed by her, corrected by me and then pronounced in the open court on this the 24th day of July, 2017).
(ZAIBUNNISA) XXII A.S.C.J. & XX A.C.M.M., & MEMBER, M.A.C.T., Bengaluru.
ANNEXURE Witnesses examined on behalf of the Petitioner :
P.W.1 - Pradeep V.M. P.W.2 - Dr. S.A. Somashekar.
40 SCCH-24 M.V.C.1685/2015 Witnesses examined on behalf of the Respondents:
R.W.1 - Kavitha S. R.W.2 - Santhoshkumar B.L.
Documents marked on behalf of the Petitioner:
Ex.P.1 - Copy of the First Information Report.
Ex.P.2 - Copy of the Complaint. Ex.P.3 - Copy of the Wound Certificate. Ex.P.4 - Copy of the Charge Sheet. Ex.P.5 - Copy of the Sketch. Ex.P.6 - Copy of the Mahazar. Ex.P.7 - Copy of the IMV Report. Ex.P.8 - Discharge Summary. Ex.P.9 - 16 Medical Bills. Ex.P.10 - Bank Statement. Ex.P.11 - 4 Pay-Slips. Ex.P.12 - OPD Card. Ex.P.13 - One X-ray Film.
Documents marked on behalf of the Respondents:
Ex.R.1 - Authorization Letter of R.W.1. Ex.R.2 - D.L. Extract of the driver of offending vehicle.
Ex.R.3 - Copy of the Insurance Policy.
(ZAIBUNNISA) XXII A.S.C.J. & XX A.C.M.M., & MEMBER, M.A.C.T., Bengaluru.