Bangalore District Court
Sri. Mohammed Ishaq @ Ishaq vs Sri.Bore Gowda on 31 March, 2016
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES AT BENGALURU
(SCCH:15)
DATED: THIS THE 31st DAY OF MARCH, 2016
PRESENT : Smt.K.Katyayini, B.Com., LL.B.,
XIII Addl.Small Cause Judge
& Member, MACT, Bengaluru.
MVC No.483/2015
Petitioner/s Sri. Mohammed Ishaq @ Ishaq
S/o. Mohammed Ibrahim
and Smt.Rashida Begum
Aged about 38 years
Residing at No.14/2,
Hosahalli Main Road,
Padarayanapura,
Bengaluru.
And also residing at
No.15, 13th C Cross,
Hosahalli Main Road,
JJR Nagar,
Bengaluru - 26.
(By Pleader - Sri.T.Kodanda Rama.)
V/s
Respondent/s 1. Sri.Bore Gowda
S/o. Channe Gowda
Major
No.228, Pipe Line Road,
Srinagar, Bengaluru - 50.
And also No.19, Pipeline,
Kalappa Layout, Srinagar,
Bengaluru - 19.
(R.C.Owner of the Tempo
Bearing Reg.No.KA-16-3267)
(SCCH-15) 2 MVC.483/2015
(By Pleader - Sri.G.Desu Reddy.)
2. The Manager
The Oriental Insurance Co. Ltd.,
D.O.VIII, No.22, D.V.G.Road,
V.C.Plaza, Basavanagudi,
Bengaluru - 04.
(Insurer of the Tempo bearing
Reg.No.KA-16-3267
Policy No.421800/31/2015/00029
Valid from 04.09.2014 to
03.09.2015)
(By Pleader - Sri.R.S.Srikanta Reddy.)
JUDGMENT
Petitioner has filed the present petition under Section 166 of MV Act seeking grant of compensation on account of injuries he has sustained in RTA.
2. The brief case of petitioner is that on 31.12.2014 at about 7:00 p.m., he was crossing the road on Binny Mill Tank Bund Road, near CAR HQ Gate from west to east direction. At that time, the driver of Tempo bearing registration No.KA-16/3267 came with high speed in a rash and negligent manner from Binny Mill Circle at high speed and dashed to him.
b) Because of which he fell down and suffered severe injuries all over the body. Accident took place is (SCCH-15) 3 MVC.483/2015 solely due to the rash and negligent driving of tempo driver. Therefore, 1st respondent being the RC owner and 2nd respondent being the insurer of the tempo are jointly and severally liable to pay the compensation. Hence, prayed to allow the petition as sought for.
3. In response to due service of notices, both the respondents have put their appearance through their respective counsels and filed their separate statement of objection to the main petition denying the petition averments.
b) 1st respondent has admitted his ownership over the tempo and also contended that he was the driver at the time of accident and there was no negligence on his part and he was proceeding with due care and caution. The petitioner was crossing the road where there was no zebra cross that too without observing vehicular movements and therefore, the accident if any is because of the negligent act of petitioner himself.
c) He has also contended that the tempo was duly insured with 2nd respondent and he had valid and effective driving licence and the tempo also had valid (SCCH-15) 4 MVC.483/2015 documents were in force. Therefore, the liability should be saddled on the 2nd respondent. Hence, prayed to dismiss the petition against him with costs.
d) 2nd respondent of course has admitted the policy and its force as on the date of accident, but has contended that its liability if any is subject to the terms and conditions of the policy such as driving licence and vehicular documents.
e) It has specifically contended that the tempo driver did not possess valid and effective driving licence and the tempo was also not at all having valid and effective vehicular documents. Therefore, there is breach of policy conditions.
f) It has also contended that the accident if any is because of the negligent act of the petitioner in crossing the road where there was no zebra cross that too without following traffic rules and regulations. Because of which on his own negligence he was exposed to the accident. Therefore, petitioner is not entitled for the compensation. Accordingly, prayed to dismiss the petition against it with costs.
(SCCH-15) 5 MVC.483/2015
4. On the above said pleadings of the parties, this Tribunal has pleased to frame the following issues.
1. Whether the petitioner proves that he has sustained injury due to RTA alleged to have been occurred on 31.12.2014 at about 7:00 p.m., on Binny Mill Tank Bund Road, near Car HQ Gate, Bengaluru due to the rash and negligent driving of the driver of Tempo bearing registration No.KA-16/3267?
2. Whether the petitioner is entitled for compensation? If so, what amount & from whom?
3. What order or award?
5. To prove the above said issues and to substantiate their respective contentions, petitioner himself has entered into witness box as PW-1. He got examined the doctor who has treated and assessed the disability as PW-2 and the investigating officer to cause production of police papers and to give evidence as PW-3. Totally got exhibited 19 documents and closed his side.
b) Per contra, 1st respondent himself has entered into witness box as RW-1. He has produced 7 documents at Ex.R-1 to 7 and closed his side.
(SCCH-15) 6 MVC.483/2015
c) On the other hand, 2nd respondent got examined its Deputy Manager as RW-2. Got exhibited 6 documents at Ex.R-8 to 13 and closed its side.
d) Heard both the sides on merits. In addition, the respective counsels for both the respondents have also filed their written arguments as well.
e) In support of his arguments, counsel for petitioner has also filed memo along with the xerox copies of the decisions reported in,
1) 2014(4) TAC 676 (SC),
2) 2009(1) KAR LJ 634,
3) 2007 ACJ 176,
4) 2008 ACJ 721,
5) AIR 2013 SC 2262,
6) 2006 ACJ 1424,
7) ILR 2014 KAR 191,
8) AIR 2009 SC 2819,
9) 2011(4) SC 693,
10) ILR 2003 KAR 493 and also the unreported judgments passed in,
1) MFA.No.6311/2014 and
2) MFA.No.405/2012 C/w 4879/2012.
f) Counsel for 2nd respondent has produced xerox copies of the decisions reported in,
1) 2009 ACJ KAR page 293,
2) ILR 2013 KAR page 5097,
3) 1994 ACJ Orissa page 1303, (SCCH-15) 7 MVC.483/2015
4) 2008 ACJ SC page 2654,
5) 2009 AIR SCW page 4801,
6) AIR 2009 SC page 208,
7) 2007 ACJ page 661,
8) 2005 ACJ Delhi page 1968, and
9) 2014(3) AKR page 113.
g) This Tribunal has carefully gone through the above observed reported decisions and unreported judgments as well as written arguments filed on behalf of respective parties and perused the record.
6. Now the findings of this Tribunal on the above said issues are answered in the;
1. Issue No.1: Partly in Affirmative.
2. Issue No.2: Petitioner is entitled for compensation amount of Rs.1,17,000/- together with interest at 9% p.a. from the date of petition till the realization in its entirety from 2nd respondent.
3. Issue No.3: As per final order for the following reasons.
REASONS
7. ISSUE No.1:- If the above observed pleadings of the parties are taken into consideration, even both the respondents have denied the case of the petitioner, they have also contended that the accident if any is because of (SCCH-15) 8 MVC.483/2015 the negligent act of the petitioner in crossing the road where there was no zebra cross that too without observing vehicular movements and the traffic and thus petitioner on his own negligence was exposed to the accident.
8. During the course of evidence one more defence raised on behalf of respondents that because of the epilepsy petitioner has, he has fell down and suffered injuries all over the body.
9. So, as absolutely there is no dispute between the parties with regard to the alleged accident; the date, time and place of accident; vehicle involved in the accident as well as driver of the vehicle at the time of accident and the fact that the petitioner was the pedestrian.
10. Therefore, for the proper adjudication of the present issue now the only point that remained for the due consideration of this Tribunal is the rash and negligent act of whom resulted in the present accident.
11. To establish that, as observed above, petitioner himself has entered into witness box as PW-1. He has filed his affidavit evidence wherein he has reiterated the (SCCH-15) 9 MVC.483/2015 petition averments. In his cross-examination his chief evidence is denied by way of suggestions which are in turn denied by him.
12. However, for 2nd respondent it is elicited that he was crossing the road at the time of accident and there was no zebra cross. He has also admitted the suggestion that there was traffic. He has denied the suggestion that the accident took place on his own negligence, since he had lost conscious in the process of crossing the road because of epilepsy he has.
13. To establish their defence with regard to the negligent aspect 1st respondent himself has entered into witness box as RW-1. He has filed his affidavit evidence wherein he has stated that he was the driver of the tempo at the time of accident and with due care and caution, he was proceeding and when he reached near the accident spot petitioner all of a sudden came from the right side of the road and climbed the divider and fell down on the road from the divider.
14. He has also deposed that immediately he parked his vehicle at a little bit distance approximately around (SCCH-15) 10 MVC.483/2015 10 feet from the petitioner and went near the petitioner to see as to what was happened and found the petitioner lying on the road in a pool of blood.
15. He has also deposed that immediately the Chamrajpet Traffic Police who was on his duty at Sirsi Circle came to the place of incident and requested him to assist him to take the petitioner to KIMS Hospital and on humanitarian ground, he accompanied the Chamrajpet traffic police and took the petitioner to KIMS Hospital for first aid treatment who further referred the petitioner to NIHMANS.
16. It is also in his affidavit evidence that thereafter Chamrajpet police told him that the petitioner might have fallen on the road due to fits and as such on the instructions of Chamrajpet police he left the petitioner to the hospital and came near the vehicle where he has parked and further on the directions of the Chamrajpet police stating that they do not have jurisdiction and referred him to approach the Chickpet police station.
17. He has also deposed that as per the advise of Chamrajpet police, he had been to Chickpet police (SCCH-15) 11 MVC.483/2015 station and met the Writer of Chickpet police Statioin by name Mr.Shivram and narrated all the real facts before him and also requested him to refer to Chamrajpet police station for any further reference.
18. It is also in his affidavit evidence despite of the said fact, the Chickpet police for the reasons best known to them, have foisted a false case against him and implicated his vehicle. Therefore, there is no truth in the petitioner's case and his vehicle is not involved in the accident and the present accident is self-fall because of the epilepsy petitioner has.
19. In his cross-examination for petitioner, it is elicited that he did not make any complaint before the higher authority about the investigation officer refusing his complaint. He has deposed that he does not know if it is suggested that himself is charge sheeted for the present accident.
20. It is also in his cross-examination that he is not appearing before the criminal Court. He has admitted the suggestion that he has furnished the copy of vehicular documents in the police station. At this stage he (SCCH-15) 12 MVC.483/2015 voluntarily deposed that but they have received those documents by putting him under threat.
21. It is also in his affidavit evidence that Chamrajpet police accompanied him to Chikkapet traffic police station. At this stage he voluntarily deposed that Chamrajapet police asked him to help them to shift the injured to Kempegowda hospital and there in the hospital, Chamrajpet police told that the present accident falls within the jurisdiction of Chikkapet police station and called the Chickpet police over phone.
22. It is also in his affidavit evidence that he took the injured in the auto to the hospital. At this stage he voluntarily deposed that Chamrajpet police also came with him. However, to establish his contentions observed above, he has not let in any supportive oral evidence either oral or documentary.
23. In support of its defence 2nd respondent got examined its deputy manager as RW-2 who has filed her affidavit evidence wherein she has deposed that the accident took place is because of the negligent act of the (SCCH-15) 13 MVC.483/2015 petitioner himself and there is no fault on the part of tempo driver i.e. 1st respondent.
24. But it is important to note that she is not an eye witness to the accident and whatever she has deposed is admittedly based on records. Hence, her evidence with regard to the manner of the accident as well as rash and negligent act remained nothing but hearsay evidence.
25. In support of his oral evidence as noted above, petitioner has also produced police papers such as true copies of FIR with complaint, spot mahazar, spot sketch MV report and charge sheet respectively at Ex.P-1 to 4 and 13 and in the evidence of PW-3 the investigating officer he got produced the other police papers such as true copy of the notice under Section 133 of MV Act, reply thereto, notice issued to the relatives of the accused about his arrest, bail bond and indemnity bond respectively at Ex.P-15 to 19.
26. The police papers categorically reveal that the jurisdictional police have initially registered the criminal case against the 1st respondent for the offences punishable under Section 279 and 337 of IPC and after (SCCH-15) 14 MVC.483/2015 the investigation they have charge sheeted for the offences punishable under Sections 279 and 338 of IPC.
27. PW-3 has deposed that after the investigation he has charge sheeted the tempo driver/1st respondent with regard to the present accident. In his cross-examination it is suggested that the accident took place on 31.12.2014 and he came to know about the accident on 02.01.2014. He has denied the suggestion that he came to know about the accident on the very day i.e. 31.12.2014 itself. But to substantiate that, 2nd respondent has not let in any defence evidence.
28. Moreover, there is presumption with regard to the police papers that they are prepared by the investigating officers while discharging their official duties in investigation of a crime. Of course, the said presumption is rebuttal one. But, no such rebuttal evidence is let in by the other side.
29. Therefore, there is nothing on record to discard the oral evidence of petitioner supported by the oral evidence of PW-3 and the police papers that the present accident is because of the negligence of the tempo driver. (SCCH-15) 15 MVC.483/2015
30. However, in view of an admitted fact that the petitioner was crossing the road where there was no zebra cross and thus he was not supposed to cross the road at the accident spot, it is thought just and proper to levy the contributory negligence on the part of petitioner at 10%.
31. So far petitioner suffering injuries in the present accident, petitioner with his oral evidence has also produced medical records such as true copies of wound certificate, emergency case record of head and spine trauma, discharge summary, hospital and medical bills and prescriptions respectively at Ex.P-5 to 9 and the disability certificate at Ex.P-14 in his evidence.
32. He has also got produced OPD book, case sheet and OPD book respectively at Ex.P-10 to 12 in the evidence of PW-2. All the above observed medical records are in consonance of the case of petitioner about his suffering injuries in the present accident.
33. Moreover, if the line of cross-examination of both the respondents to the petitioner and the doctor is taken note off, it is clear that even they have raised (SCCH-15) 16 MVC.483/2015 objections with regard to the nature of injuries, nature of treatment, quantum of disability and quantum of medical expenditure, they have not at all denied the fact of petitioner suffering injuries in the accident.
34. So, petitioner with his oral evidence and the supportive oral evidence of PWs-2 and 3 and the medical records as well as the police papers noted above has successfully established that the present accident took place is because of the negligent driving of the tempo driver and he has suffered injuries in the present accident. In view of levying the contributory negligence on the part of petitioner at 10%, this issue is answered partly in the affirmative.
35. ISSUE No.2:- In view of answering issue No.1 partly in the affirmative, petitioner is entitled for compensation. Now, in respect of quantum. It is the case of petitioner that he was aged 38 years, was a coolie and had income of Rs.12,000/- per month. To establish that petitioner apart from his oral evidence has not produced any specific age proof document.
(SCCH-15) 17 MVC.483/2015
36. However, it is in the charge sheet and in the medical records that he is aged 38 years and 52 years respectively. In the cross-examination it is suggested that in Ex.P-5 to 7 i.e. the wound certificate and emergency case record of head and spine trauma and discharge summary, it is stated that petitioner was aged 52 years. Of course, he has denied the suggestion.
37. But as per Ex.P-6 and 7 his age is shown as 52 years. Therefore, considering the contradictory evidence on record, it is thought just and proper to take the age of petitioner in between 38 years and 52 years i.e. 45 years, for which the proper multiplier applicable is 14.
38. With regard to his avocation and income petitioner has not produced any supportive evidence. However, it is the case of petitioner that he is a coolie. Therefore, considering his nature of avocation and his age as well as const of living on the date of accident, it is thought just and proper to take the notional income of the petitioner at Rs.7,500/- per month.
39. It is the case of petitioner that in the accident he has suffered injuries as stated in the wound certificate (SCCH-15) 18 MVC.483/2015 and discharge summary; took treatment in NIMHANS Hospital, Victoria Hospital and other private clinics, Bengaluru; still is under treatment and has already incurred Rs.75,000/-.
40. It is also his case that he became permanently disabled because of accidental injuries. Petitioner has reiterated the above observed petition averments in his affidavit evidence. In his cross-examination his chief evidence is denied by way of suggestions which are in turn denied by him.
41. PW-2/the doctor has filed his affidavit evidence wherein he has stated that petitioner was referred from NIMHANS hospital and admitted in Victoria hospital on 02.01.2015 at around 1:25 p.m. with the history of RTA dated 31.12.2014.
42. He has also deposed that on examination it is found that petitioner has suffered right side hemopneumothorax for which ICD insertion was done. CT brain done at NIHMANS reveals diffuse pneumocephalus with right frontal sulcal SAH with (SCCH-15) 19 MVC.483/2015 occipital bone fracture; was treated surgically and was discharged on 08.01.2015 and was on regular follow up.
43. It is also in his affidavit evidence that he has examined the petitioner for assessment of disability on 04.11.2015. On clinical examination it is found that petitioner is having permanent physical impairment and he is referred to Disability Board for awarding percentage of disability.
44. He has produced OPD book of first admission, case sheet and OPD book with regard to follow up treatment respectively at Ex.P-10 to 12. In his cross- examination he has admitted the suggestion that as per Ex.P-11, the history of injury is mentioned as patient found unconscious on the road on 31.12.2014.
45. At this stage he voluntarily deposed that after petitioner regaining consciousness, he narrated about the history of injury and it is recorded in page No.17 on 05.01.2015 i.e. at Ex.P-11(a) as per which petitioner has suffered RTA.
46. It is also in his cross-examination that on examination patient showed signs of cognitive (SCCH-15) 20 MVC.483/2015 impairment. There was no evidence of motor sensory impairment. But it does not mean that petitioner has no impairment. At this stage he voluntarily deposed that he has noted down in follow up treatment record also that there is symptom of cognitive impairment, but no physical disability. Therefore, he has referred the patient/petitioner to the medical board for assessment of cognitive disability.
47. If the documents produced on behalf of petitioner are taken note off, Ex.P-5 is the wound certificate and Ex.P-6 is the emergency case record of head and spine trauma of NIMHANS hospital which reveals that the petitioner brought to their hospital with the history of RTA dated 31.12.2014 and was discharged on 01.01.2015.
48. It is also there that in the meanwhile petitioner was diagnosed for no external injuries. But had altered sensorium. CT scan of brain revealed diffuse pneumouphalus by frontal SAH occipital bone fracture, extending up to foramen masnum which is mild head injury.
(SCCH-15) 21 MVC.483/2015
49. Ex.P-7 is the discharge summary issued by Victoria Hospital which shows that petitioner was in the said hospital as an inpatient on 02.01.2015 and was discharged on 08.01.2015; in the mean while he was diagnosed for moderate head injury + pneumocephalus injury; was treated conservatively with ICD insertion which was removed after 3 days.
50. Ex.P-11 is the case sheet is in corroboration with the contents of Ex.P-7 the discharge summary and thereby the oral evidence of PW-2 as well. Ex.P-11 reveals that the petitioner was on regular follow up.
51. So, it can be safely held in the accident petitioner has suffered mild head injury with bone fracture managed both conservatively and surgically was in the hospital till 08.01.2015 for a period of 9 days and was discharged medically stabled condition.
52. To prove the medical expenditure, petitioner apart from his oral evidence has also produced at Ex.P-8 the hospital and medical bills totally 8 in nos. amounting to Rs.2,502/-. All the bills are of NIMHANS Hospital and Vicotria hospital as well as private medical stores. They (SCCH-15) 22 MVC.483/2015 are all in computerized form, duly sealed and signed as well as in the name of the petitioner.
53. Moreover, if the nature of injuries, nature of treatment and inpatient period are taken into consideration, even petitioner took treatment in government set ups, it appears that he has incurred more expenditure than of that. Hence, it is thought just and proper to award medical expenditure at Rs.10,000/- including the bills at Ex.P-8 series.
54. Even PW-2 has deposed that there is symptom of cognitive impairment and the petitioner was referred medical board, admittedly there is no evidence on record about the quantum of disability. Therefore, considering the nature of injuries and the age of petitioner as well as the nature of avocation, it is thought just and proper to award reasonable compensation for loss of amenities and comforts.
55. In the result, petitioner is entitled for compensation under the heads mentioned below and the amount stated against them.
Pain and Sufferings Rs. 30,000/-
(SCCH-15) 23 MVC.483/2015
Loss of income during laid up Rs. 25,000/-
period, Diet, Nourishment and etc. Attendant charges, Conveyance, Rs. 25,000/-
other Incidental Charges and etc.
Medical Expenditure Rs. 10,000/-
Loss of Amenities and Comfort Rs. 40,000/-
Total: Rs.1,30,000/-
56. Considering the cost of living on the date of accident, it is thought fit to award interest at 9% p.a. from the date of petition till realization of the compensation amount in its entirety.
57. Now, in respect of liability. There is no dispute between the parties with regard to the fact that 1st respondent is the RC owner and 2nd respondent is the insurer of the tempo. 2nd respondent has admitted the policy and its force as on the date of accident. Of course, it has contended that its liability if any is subject to the terms and conditions of the policy such as driving licence and vehicular documents.
58. During the course of evidence it has concentrated only with regard to the breach of policy conditions on driving licence as well as FC. It is the evident on record that as on the date of accident the vehicle had no valid FC and it was expired. But it is important to note that as (SCCH-15) 24 MVC.483/2015 per Ex.P-4 the MV report the accident is not because of any mechanical defect. So, as on the date of accident, the tempo was in the road worthy condition.
59. Moreover, petitioner has placed his reliance on the decision reported in ILR 2014 KAR 191 wherein the Hon'ble High Court of Karnataka has held that;
"MOTOR VEHICLES ACT,1988 - SECTION 173(1) - Accident claim - Judgment and Award - Liability fastened on the owner of the offending vehicle but not on the Insurer - Appealed against - Contention of the insurer is that the offending vehicle did not possess fitness certificate at the relevant time and therefore, they are not liable to pay compensation - HELD, The life of an insurance Policy issued in respect of a motor vehicle will be valid for one year and for every next year either it has to be renewed or new policy has to be obtained. Therefore, the insurer at every time of insuring a vehicle and issuing policy or renewing such policy should verify whether the vehicle has possessed all the necessary certificates including the fitness certificate. The Insurance Companies cannot blindly insure motor vehicles and collect premium and thereafter contended that the vehicle did not possess fitness certificate at the relevant point of time and therefore they are not liable to pay compensation to the claimants. This attitude of the insurer cannot be encouraged any longer.
-FURTHER HELD, It is no doubt true as per Ex.R-1 an endorsement issued by the RTO, the fitness certificate of the offending vehicle was not in (SCCH-15) 25 MVC.483/2015 force as on the date of accident. If that is so the insurer should not have insured the vehicle for the period during which vehicle did not possess the fitness certificate. The insurer cannot say they would insure a vehicle irrespective of the fact that whether it has a fitness certificate or not and collect premium and when it comes to liability, their liability is subject to vehicle possessing fitness certificate."
60. He has also relied on the judgment passed by the Hon'ble High Court of Karnataka, Bengaluru in MFA.No.6311/2014(MV) (i.e. Regional Manager, Oriental Insurance Co. Ltd., Vs. Smt. Dimple @ Rashmi Sethi and others) wherein it is held that;
"2. Questioning the liability to satisfy the award as well as the excessive grant of compensation, the insurer has filed this appeal. On liability, it is contended that the driver of the vehicle did not possess a fitness certificate. In the absence of a fitness certificate, the insurer cannot be held liable to satisfy the award. The Tribunal on relying the judgment of the Division Bench of this Court in the case of New India Assurance Company Limited vs. Sri.Srinivasa Murthy and others in MFA No.6621/2006 (MV) c/w MFA No.2304/2006 (MV) wherein it is held that a mere non-possession of fitness certificate is not a reason to deny the compensation to the claimant. Following the said judgment, it was held that the insurer is liable to satisfy the award. Under these circumstances, we do not find any merit in the contention that the absent of fitness certificate would absolve the insurer from satisfying the award. Hence, the said contention is rejected."(SCCH-15) 26 MVC.483/2015
61. Therefore, in view of the MV report at Ex.P-4 that the accident is not because of the mechanical defect if any and thereby it can be safely held that the tempo was in the road worthy condition as on the date of accident and in view of the above noted decisions, 2nd respondent cannot shrink its liability on breach of policy condition on FC.
62. So far the driving licence, 1st respondent in his evidence has produced Ex.R-4, the notarized copy of the driving licence extract which reveals that the tempo driver has licence to drive LMV, LMV-GV, 3W-CAB, 3W- GV and LMV CAB and the validity for (non transport) is till 31.05.2015 and for (transport) it is till 05.01.2018.
63. The date of accident is 31.12.2014. It is evident on record and also an admitted fact that transport licence should be renewed once in 3 years. It is also an admitted fact the tempo involved in the present accident is the transport vehicle. As per Ex.R-4, the date of issue of licence for LMV-GV is 03.07.2012. Basing on that it is the arguments for 2nd respondent that as on the date of accident, the licence was expired and it was not renewed. (SCCH-15) 27 MVC.483/2015
64. In the evidence of RW-2 i.e. the officer of 2nd respondent, the certified copy of the driving licence of the tempo driver is produced and the same is exhibited as Ex.R-11 which reveals that the holder is authorized to drive LMV, LMV-GV and LMV CAB and the validity for non transport is till 31.05.2015 and for transport it is 15.07.2013.
65. It is the explanation given by RW-2 in her cross- examination for 1st respondent that before 02.07.2015 i.e. the validity period for LMV-GV from the date of issue i.e. 03.07.2012, since the holder took driving licence for cab during 2007 and thereafter he took endorsement for LMV-GV, it cannot be said that it will be valid for 3 years from the date of issue and it only up to the validity date stated in the original driving licence i.e. up to 15.07.2013 as per Ex.R-11.
66. Prima facie the said explanation cannot be accepted. Even for the sake of arguments, it is accepted, then also, in view of the decision relied on by the counsel for petitioner reported in AIR 2008 SUPREME COURT 1418 (National Insurance Company Ltd. v. Annappa (SCCH-15) 28 MVC.483/2015 Irappa Nesaria & Ors.) wherein the Hon'ble Apex Court has held that;
"Motor Vehicles Act (59 of 1988), Ss 2(21), 49 - Central Motor "Vehicle Rules (1989) Form 4 (Before its amendment in 2001). - Light motor vehicle - covers light passenger carriage vehicle" and "light goods carriage vehicle" - Driver possessing LMV licence - cannot be said to not possess effective licence to drive Matador van having Goods Carriage permit - Insurance company cannot shrink its liability to pay compensation.
In para No.8 of the said decision it is also held that;
"A light goods carriage" having not been defined in the Act, the definition of the light motor vehicle clearly indicates that it takes within its umbrage, both a transport vehicle a non transport vehicle."
67. He has also placed his reliance on the decision reported in 2009(1) Kar.L.J.634 (New India Assurance Company Limited, Bengaluru V. Chikkappaiah alias Chikkapa and others) wherein the Hon'ble High Court of Karnataka, Bengaluru has held that;
"MOTOR VEHICLES ACT, 1988, Sections 9(10), (14), (21) and (47), 3, 5, 149(2)(a)(ii) and 170 - "light motor vehicle" - Scope of definition of - It covers both light transport or goods vehicle and non transport vehicle
- Therefore, licence issued to person to drive "light motor vehicles (non-transport) is valid and effective for driving light transport or goods vehicle also -
Where offending vehicle involved in accident was "light motor vehicle" used for transporting goods, insurer cannot avoid his liability to satisfy award of (SCCH-15) 29 MVC.483/2015 compensation on ground that driving of such vehicle by person holding licence to drive light motor vehicle (non - transport_) amounted to breach of condition of policy of motor insurance".
68. He has also relied on the decision reported in 2007 ACJ 176 (M. Balasubramanya V. Pradyumna and others) wherein the Hon'ble High Court of Karnataka at Bengaluru has held that;
"Motor Vehicles Act, 988, 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 Ambassador car whether it is LMV non-transport or transport would remain the same so far as third 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. (2004 ACJ 1 (SC) followed".
69. He has relied on the decision reported in 2008 ACJ 721, wherein the Hon'ble Apex Court has held that;
"Motor Vehicles Act, 1988, Sections 149(2)(a)(ii), 2(21), 2(47) and 3 and Central Motor Vehicles Rules, 1989, Rule 14 - Motor insurance - Driving licence - Liability of insurance company - Driver had licence to drive "light motor vehicle" but he was driving a van which had a goods carriage permit- Insurance company seeks to avoid its liability on the ground that driver did not possess an effective licence to drive a transport vehicle - Tribunal held that driver was authorized to drive the vehicle as the (SCCH-15) 30 MVC.483/2015 unladen weight of the vehicle is less than 7500 kg - High Court did not accept the contention of insurance company that it has no liability on the ground that there is violation of terms and conditions of the policy - contention that High Court failed to consider that "light motor vehicles" cannot be a "transport vehicle" - failed to consider that "light motor vehicle" cannot be a "transport vehicle" - "Transport vehicle" has now been substituted for "medium goods vehicle" and "heavy goods vehicle." In form 4 but 'light motor vehicle' continued to cover both, light passenger carriage vehicle and light goods carriage vehicle 'Whether a driver who had valid licence to drive a light motor vehicle was authorized to drive a light goods vehicle as well - Held: yes; insurance company is liable".
70. He has also relied on the decision of the Apex Court reported in AIR 2013 SUPREME COURT 2262 (S. Iyyappan V. M/s United India Insurance Compnay Ltd & Anr.) wherein it is held that;
"Motor Vehicles Act (59 of 1988), Ss.149, 146 - Liability of insurer - Accident involving Maxi Cab and cycle - Driver of Maxi Cab holding valid licence to drive light motor vehicle - But did not have endorsement to drive Maxi Cab - Mere absence of endorsement does not exonerate insurer of its statutory liability to pay compensation."
71. He has placed his reliance on the decision reported in 2006 ACJ 1424 (Vijay Kumar Bansal and another Vs. Vinokd Kumar Raid and another) wherein (SCCH-15) 31 MVC.483/2015 the Hon'ble High Court of Madhya Pradesh at Jabalpura has held that;
"Motor Vehicles Act, 1988, sections 149(2)(a)(ii), 2(21), 2(35) and 2(47) - Motor insurance
- Driving licence - Liability of Insurance company - Insurance company disputed its liability on the ground that driver was holding a licence to drive light motor vehicle but was driving a Tempo which was a transport vehicle and licence of the driver had no endorsement authorizing him to drive transport vehicle - Tribunal exonerated insurance company - Unladen weight of Tempo did not exceed 7500 Kgs. - Whether Tempo which was used as a public service vehicle was a transport vehicle and covered under the definition of light motor vehicle, driver had a valid licence and insurance company is liability - Held:
yes; no further endorsement authorizing to driver a transport vehicle is required. (2000 ACJ 319 (SC) and 2002 ACJ 854 (MP) followed".
72. He has also relied on the decision reported in 2014(4) TAC 676 (SC) wherein the Hon'ble Apex Court has held that;
"Motor Vehicles Act, 1988, Sections 147 and 173- Motor insurance-Driving licence-Light Motor vehicle- Absence of endorsement for driving goods vehicle - liability of insurance company-Driving licence of driver was for driving a light motor vehicle-offending vehicle was light goods vehicle-High Court held that there was breach of policy condition and gave recovery rights in favour of Insurance Company - Light motor vehicle covers both "light passenger carriage vehicle" and "light goods carriage vehicle" - Insurance company cannot disown its liability - There was no breach of policy condition entitling (SCCH-15) 32 MVC.483/2015 Insurance Company to recover rights- Impugned order of High Court set aside and that of Tribunal restored."
73. Per contra counsel for 2nd respondent has relied on the decision reported in 2008 ACJ 2654 wherein the Hon'ble Apex Court has held that;
"Motor Vehicles Act, 1988, sections 149(2)(a)(ii) and 15(1) first proviso - motor insurance - Driving licence - Liability of insurance company driving licence of the driver of offending vehicle had expired about 3 years prior to the accident and it was got renewed after the date of accident - Tribunal found that violation of terms of policy has not been proved and insurance company is liable to indemnify the insured - High Court in appear held that amount of compensation is payable by insurance company and it may recover the same from driver and owner of the vehicle - Driving licence is renewable from the date of its renewal when application for renewal of licence is made more than 30 days after its expiry - Whether the driver of offending vehicle had a valid licence on the date of accident and insurance company is liable to indemnify the insured - Held: no. (2204 ACJ I (SC), 2006 ACJ 1336 (SC) and 2007 ACJ 1967 SC) relied".
74. The above noted decision on which 2nd respondent relied on is about the application filed for renewal of the license beyond 30 days. So far the decisions noted above on which the petitioner relied on are about the authority of the LMV driving licence holder (SCCH-15) 33 MVC.483/2015 to drive the goods vehicle and all those decisions are in support of the petitioner.
75. In the present case on hand, it is evident on record and it is an admitted fact that the tempo driver had valid and effective LMV driving licence as on the date of accident. Therefore, even the contention of 2nd respondent that as on the date of accident, the tempo driver had no valid driving licence to drive the goods vehicle, then also in view of the above decisions, 2nd respondent cannot disown its liability basing on violation of policy conditions on driving licence. So, 1st respondent being the RC owner is liable to pay the compensation and 2nd respondent being the insurer is liable to indemnify the said liability.
76. Since contributory negligence of 10% is levied on the petitioner, he is not entitled for that much of compensation amount. So, petitioner is entitled for compensation of (Rs.1,30,000/- minus Rs.13,000/-) Rs.1,17,000/- together with interest at 9% p.a. from the date of petition till the realization of the compensation in (SCCH-15) 34 MVC.483/2015 its entirety from 2nd respondent. Issue No.2 is answered accordingly.
77. ISSUE No.3:- From the above discussions, this Tribunal proceeds to pass the following order.
ORDER The present petition filed by the petitioner under Section 166 of MV Act is hereby allowed in part with costs.
In the result, petitioner is entitled for compensation amount of Rs.1,17,000/- together with interest at 9% p.a. from the date of petition till the realization in its entirety from 2nd respondent.
2nd respondent shall deposit the compensation amount together with interest and cost within 30 days from today.
On deposit of compensation amount, since the compensation amount is meager, entire compensation amount together with interest and cost is ordered to be released in favour of the petitioner through an account payee cheque without awaiting further orders.
Advocate fee is fixed at Rs.2,000/-.
Draw a decree accordingly.
(Dictated to the stenographer, transcribed by him, corrected and then pronounced in the open Court by me on this the 31st day of March, 2016.) (K.KATYAYINI), XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.
(SCCH-15) 35 MVC.483/2015ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PETITIONER:
PW1: Sri. Mohammed Ishaq @ Ishaq PW2: Dr. Srihari B.B.
LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENTS:
RW1: Sri. Bore Gowda Rw2: Ms.Lynetta Suara LIST OF DOCUMENTS EXHIBITED ON BEHALF OF PETITIONER:
Ex.P1 : True copy of FIR with Complaint, Ex.P2 : True copy of spot mahazar, Ex.P3 : True copy of spot sketch, Ex.P4 : True copy of IMV report, Ex.P5 : True copy of wound certificate, Ex.P6 : Emergency case record of head and spine trauma, Ex.P7 : Discharge summary, Ex.P8 : Hospital and medical bills (8 in nos.) amounting to Rs.2,502/-, Ex.P9 : Prescriptions (5 in nos.). Ex.P10 : OPD book ( at the time of admission), Ex.P11 : Case sheet, Ex.P12 : OPD book ( with regard to follow-up-treatment), Ex.P13 : True copy of charge sheet Ex.P14 : Disability Certificate Ex.P15 : True copy of Notice under Sec 133 of MV Act Ex.P16 : True copy of Reply to Ex.P15 Ex.P17 : True copy of Notice issued to the relatives of the accused about his arrest Ex.P18 : True copy of Bail Bond Ex.P19 : True copy of Indemnity Bond LIST OF DOCUMENTS EXHIBITED ON BEHALF OF RESPONDENTS:
Ex.R1 : Notarized copy of RC (original shown for perusal), Ex.R2 : Notarized copy of policy (original shown for (SCCH-15) 36 MVC.483/2015 perusal), Ex.R3 : Notarized copy of permit (original shown for perusal), Ex.R4 : Notarized copy of driving licence extract (certified copy shown for perusal), Ex.R5 : Notarized copy of Taxation card (original shown for perusal), Ex.R6 : Notarized copy of FC tax paid receipt (original shown for perusal), Ex.R7 : Notarized copy of Emission certificate (original not shown for perusal).
Ex.R8 : Authorization letter,
Ex.R9 : Certified copy of policy,
Ex.R10 : Certified copy of "B" register extract pertains to
vehicle no.KA-16-3267,
Ex.R11 : Certified copy of driving licence extract pertains to
the holder by name Boregowda s/o Channegowda, Ex.R12 : Certified copy of MLC register extract, Ex.R13 : Certified copy of emergency case record for Head and Spine Trauma pertains to petitioner.
Ex.R14 : Driving licence
Ex.R15 : Driving licence
(K.KATYAYINI),
XIII Addl. Judge & Member MACT
Court of Small Causes,
Bengaluru.
(SCCH-15) 37 MVC.483/2015
31/03/2016:
Judgment pronounced in the open court (vide separate order) ORDER The present petition filed by the petitioner under Section 166 of MV Act is hereby allowed in part with costs.
In the result, petitioner is entitled for compensation amount of Rs.1,17,000/- together with interest at 9% p.a. from the date of petition till the realization in its entirety from 2nd respondent.
2nd respondent shall deposit the compensation amount together with interest and cost within 30 days from today.
On deposit of compensation amount, since the compensation amount is meager, entire compensation amount together with interest and cost is ordered to be released in favour of the petitioner through an account payee cheque without awaiting further orders.
Advocate fee is fixed at Rs.2,000/-. Draw a decree accordingly.
(K.KATYAYINI) XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.(SCCH-15) 38 MVC.483/2015
AWARD SCCH NO.15 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA: BENGALURU CITY MVC No.483/2015 Petitioner/s Sri. Mohammed Ishaq @ Ishaq S/o. Mohammed Ibrahim and Smt.Rashida Begum Aged about 38 years Residing at No.14/2, Hosahalli Main Road, Padarayanapura, Bengaluru.
And also residing at No.15, 13th C Cross, Hosahalli Main Road, JJR Nagar, Bengaluru - 26.
(By Pleader - Sri.T.Kodanda Rama.) V/s Respondent/s 1. Sri.Bore Gowda S/o. Channe Gowda Major No.228, Pipe Line Road, Srinagar, Bengaluru - 50.
And also No.19, Pipeline, Kalappa Layout, Srinagar, Bengaluru - 19.
(R.C.Owner of the Tempo Bearing Reg.No.KA-16-3267) (By Pleader - Sri.G.Desu Reddy.)
2. The Manager (SCCH-15) 39 MVC.483/2015 The Oriental Insurance Co. Ltd., D.O.VIII, No.22, D.V.G.Road, V.C.Plaza, Basavanagudi, Bengaluru - 04.
(Insurer of the Tempo bearing Reg.No.KA-16-3267 Policy No.421800/31/2015/00029 Valid from 04.09.2014 to 03.09.2015) (By Pleader - Sri.R.S.Srikanta Reddy.) WHEREAS, this petition filed on ______________ by the petitioner/s above named under Section 166 of the M.V.Act, 1988, praying for compensation of Rs.________________(Rupees _____________________ _______________________________________________________ for the injuries sustained by the petitioner/death in a motor accident caused by vehicle bearing No. WHEREAS, this claim petition coming up before K.Katyayini, Judge, Member-MACT, Bengaluru, in the presence of Shri Advocate for petitioner/s and of Shri Advocate for respondent.
ORDER The present petition filed by the petitioner under Section 166 of MV Act is hereby allowed in part with costs.
(SCCH-15) 40 MVC.483/2015
In the result, petitioner is entitled for compensation amount of Rs.1,17,000/- together with interest at 9% p.a. from the date of petition till the realization in its entirety from 2nd respondent.
2nd respondent shall deposit the compensation amount together with interest and cost within 30 days from today.
On deposit of compensation amount, since the compensation amount is meager, entire compensation amount together with interest and cost is ordered to be released in favour of the petitioner through an account payee cheque without awaiting further orders.
Advocate fee is fixed at Rs.2,000/-.
Given under my hand and seal of the Court this the ......... day of ......................2016.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA:
BENGALURU.
By the Petitioners By the Respondent Court fee paid on petition Court fee paid on Powers Court fee paid on I.A. Process Pleaders Fee:
Total Decree Drafted Scrutinised by:
Decree Clerk: Sheristedar:
MEMBER M.A.C.T.
MOTOR ACCIDENT CLAIMS
TRIBUNAL
(SCCH-15) 41 MVC.483/2015