Bangalore District Court
Chinna Pillai @ Chinnamma vs United India Insurance Co. Ltd on 13 April, 2022
KABC020103832020
IN THE COURT OF THE XI ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-12)
Present: Shri. MOHAMED ARIFULLA C.F.
B.Sc., LL.B.,
XI Addl. Small Causes Judge & ACMM,
Court of Small Causes,
Member, MACT-12, Bengaluru.
Dated this the 13th day of April, 2022
MVC. No.1898/2020
PETITIONER : Chinna Pillai @ Chinnamma
W/o Krishna
Aged about 53years,
R/a No.51, 28th Main,
Indira Gandhi Colony,
9th Block, Jayanagar
Near Karnataka Bank,
Bengaluru- 560069
(By Sri. Girimallaiah, Advocate)
V/s
RESPONDENTS: 1. United India Insurance Co. Ltd.,
Regional Office, T.P. Hub,
6th Floor, Krishi Bhavan,
Hudson Circle,
Nrupathunga Road, Bengaluru-560001.
(Insurer of Milk Canter KA-41-8460)
2. Mr. Lenin Jacob,
Major, S/o Achkutty,
#43, ITI Layout, 2nd Main Road,
Benson Town, Bengaluru-560046.
(R.C. Owner of Milk Canter
No. KA-41-8460
(SCCH-12) 2 MVC.No. 1898/2020
(R-1 By Sri. Purushothama,
Advocate )
(R-2 Exparte)
JUDGMENT
This is a claim petition filed by the petitioner claiming compensation of Rs.30,00,000/- under Section 166 of M.V.Act, 1989 on account of accident met by petitioner on 07.04.2020.
2. The brief facts of the case of the petitioner is that, on 07.04.2020 at about 7.30 p.m, she was going by the side of East End Main Road, Opp. Thirumala Bar, Jayanagar 9 th Block, Carefully and cautiously at that time one Milk Canter bearing Regn.No.KA-41-8460 came at high speed from reverse direction in a rash and negligent manner and dashed against the petitioner, due to which the petitioner thrown on the road. As a result of which, the Milk Canter wheel ran over on both legs of the petitioner and sustained grievous injuries all over the body and immediately, she was shifted to Sanjay Gandhi Hospital, wherein, she was treated as inpatient and underwent surgeries and Rs.1,50,000/- towards medical treatment.
3. The petitioner was hale and healthy and was a Coolie and earning Rs.16,000/- per month and was contributing her entire income for the welfare and maintenance of her family. Due to the accidental injuries, (SCCH-12) 3 MVC.No. 1898/2020 she is undergoing great mental shock, agony and financial hardship the disability had made her unable to do her day to day activities and avocation and has lost her present and future earnings. The Mico Layout Traffic Police have registered a criminal case against the driver of Milk Canter bearing No.KA-41-8460 in crime No.21/2020 under Section 279 and 338 of IPC. Therefore the respondent No.1 is the insurer and Respondent No.2 is the R.C. owner of the Milk Canter, they are jointly and severally liable to pay the compensation and hence prays to grant compensation of Rs.30,00,000/- with interest.
4. After service of notices, the respondent no.1 has appeared before this court and has filed written statement . The respondent no.2 has not appeared before this court and remained absent. Hence, he is placed as Ex.parte.
5. The respondent no.1 being the insurance company has contended that the petition filed by the Petitioner is not maintainable either in law or on facts of the case. Further it has denied all the allegations found in the petition. This respondent has issued a policy bearing No.0723843119P104681274 in favour of the 2 nd respondent in respect of vehicle bearing Reg. No. KA-41-8460 and it was valid from 12.07.2019 to 11.07.2020 and their liability if any is subjected to terms and conditions of the policy and subjected to compliance of 64-VB of Insurance Act. Further stated that the insured has not complied Sec.134(c) of the (SCCH-12) 4 MVC.No. 1898/2020 M.V. Act and the Police authorities have not complied Section 158(6) of M.V.Act. Further denied the manner of accident, age, income and avocation of the petitioner and prayed to dismiss the petition against him. However, the petitioner colluding with the police have filed a false complaint in order to get an award. In the event if the insured/Second Respondent fails to contest the petition on merits or colludes with the claimant, it may be permitted to avail all defence available open to the insured as provided under Sec.170 of the M.V. Act 1988. Further it seeks protection under section 147 and 149 (2) of M.V.Act. Further denied the age, avocation and also denied the manner of accident. The respondent no.2 is not liable to pay compensation and the claim petition of the Petitioner is liable to be dismissed against it.
6. On the basis of the above pleadings, my predecessors-in-office have framed the following;
ISSUES
1. Whether the Petitioner proves that, on 07.04.2020 at about 7.30 a.m, she was pedestrian and was going by the side of East End main road, Opp. Thirumala Bar, Jayanagar, 9th Block, at that time, the driver of Milk Canter bearing Reg. No. KA- 41-8460 came at a very high speed, in a rash and negligent manner and dashed to the petitioner and caused accident, due to which, the petitioner was thrown on the road and sustained grievous injuries all over the body ?
(SCCH-12) 5 MVC.No. 1898/2020
2. Whether the petitioner is entitled for compensation? If yes, How much and from whom?
3. What Order or Award?
7. In order to prove the above issues the petitioner got herself examined as P.W.1 and also got marked documents at Ex.P1 to 12 and also got examined the Doctor as P.W.2 and got marked the documents at Ex.P.13 and Ex.P.14 and closed her side.
8. On the other hand the respondent No.2 got examined the Administrative officer of insurance company as R.W.1 and got marked Ex.R.1 to 5 documents, ASI, Mico Layout PS examined as RW-2 and SDC, RTO Mysore West examined as RW-3 and got marked Ex.R6 and 7 documents and closed their side.
9. Heard arguments of both side. Perused written arguments of petitioner and perused the entire materials placed on record and my answers to the above issues are as follows:-
Issue No.1 : In the partly Affirmative Issue No.2 : In Partly Affirmative Issue No.3 : As per final order for the following;
(SCCH-12) 6 MVC.No. 1898/2020
REASONS
10. ISSUE NO.1 : According to the petitioner, on 07.04.2020 at about 7.30 p.m, she was going by the side of East End Main Road, Opp. Thirumala Bar, Jayanagar 9th Block, Carefully and cautiously at that time, one Milk Canter bearing Regn.No.KA-41-8460 came at high speed from reverse direction in a rash and negligent manner and dashed against the petitioner, due to which the petitioner thrown on the road, As a result Milk Canter wheel ran over on both legs of the petitioner sustained grievous injuries all over the body and immediately, she was shifted to Sanjay Gandhi Hospital, wherein, she was treated as inpatient and under gone operations and Rs.1,50,000/- towards medical treatment.
11. The petitioner was hale and healthy and was a doing Coolie work and earning Rs.16,000/- per month and was contributing his entire income for the welfare and maintenance of his family. Due to the accidental injuries, he is undergoing great mental shock, agony and financial hardship the disability had made him unable to do his day to day activities and avocation and has lost his present and future earnings. and hence prays to grant compensation of Rs.30,00,000/- with interest.
12. In order to prove the above facts in issue, the petitioner got examined herself as P.W.1 and he filed chief examination affidavit by reiterating the averments made in the petition and in support of her oral evidence, she got (SCCH-12) 7 MVC.No. 1898/2020 marked police and medical documentary evidence at Ex.P.1 to 12 and Ex.P13 & 14 along with other documents i.e. Ex.P.1-Copy of FIR, Ex.P.2 Copy of complaint, Ex.P.3 Certified copy of Mahazar, Ex.P.4 Certified copy of Spot Sketch, Ex.P.5 Certified copy of IMV report, Ex.P.6 Certified copy of Wound certificate, Ex.P.7 Certified copy of charge sheet, Ex.P.8 Certified copy of discharge summary, Ex.P.9 Photo, Ex.P.10 OPD records, Ex.P.11 Medical bills, Ex.P.12 Medical prescriptions. The petitioner has also examined doctor as P.W.2 and got marked Ex.P.13 Case sheet and Ex.P.14 X-ray.
13. The respondent no.1 has denied the accident and also denied the negligence of the driver of the offending vehicle. The learned counsel for respondent no.2 has argued that, the petitioner was proceeding on the road instead of footpath and therefore it was the sole negligence of the petitioner for the accident. The Ex.P1 FIR, Ex.P.2 complaint, Ex.P.3 mahazar, Ex.P.4 sketch, Ex.P.5 IMV report and Ex.P.7 charge sheet discloses that, the accident took place while the offending vehicle was proceeding in a reverse direction.
The driver of the offending vehicle hit the petitioner who was walking on the road by taking the vehicle in a reverse direction without observing the petitioner. This fact clearly discloses that, there is a gross negligence on the part of the driver of the offending vehicle. The Ex.P.4 sketch shows that, though there was a footpath and instead of proceeding on the footpath the petitioner was proceeding on the road and this fact clearly discloses that, the petitioner had not taken (SCCH-12) 8 MVC.No. 1898/2020 proper care and caution while she was proceeding on the road and there is also some negligence on the part of the petitioner. Though the petitioner has stated in her evidence that, she was not proceeding on the road and she was proceeding on the footpath but, the available records produced by the petitioner herself shows that, she was walking on the road and not on the foot path. As such, some part of contributory negligence is attributed towards petitioner. This Tribunal comes to the conclusion that the ratio of negligence on the part of the driver of the offending vehicle is at 80% and whereas, 20% of contributing negligence is attributed on the part of the petitioner. After considering all the facts and circumstances of the case, I came to the conclusion that, the petitioner has sustained injuries in the accident due to the rash and negligent driving by the driver of Milk Canter bearing No.KA-41-8460 and also due to negligence of petitioner. Accordingly, I answer Issue No.1 in the partly Affirmative.
14. ISSUE NO.2: As already discussed above, the petitioner has proved the accident and therefore, the petitioner is entitled for compensation. He has sustained compound fracture both bones of left leg and fracture both bones of right leg. He was admitted to Sanjay Gandhi hospital on 07.04.2020. On 08.04.2020 with multiple wound debridements, and external fixator was done to left leg. On 09.04.2020 under Spinal Anesthesia the fracture both bones of right leg was operated and fixed with plate and screws for (SCCH-12) 9 MVC.No. 1898/2020 fibula and interlocking nailing for Tibia fracture. On 15.04.2020 second debridement for left leg was done. On 17.04.2020 under Spinal Anesthesia free vascularised flap was done to left leg. On 05.05.2020 under spinal anesthesia skin grafting was done to the left leg and discharged on 22.05.2020 with regular follow-up advice. The P.W.2 has stated that the petitioner has sustained grievous injuries and he sustained permanent disability to the whole body 34%.
15. As far as the age of the petitioner is concerned, the petitioner has stated that she was 53 years at the time of accident. The petitioner was hale and healthy and was working as a Coolie and was earning Rs.16,000/- per month. The petitioner has not produced any document to her work. Due to the accidental injuries, she was unable to attend to her work and has lost income and future earning capacity. On considering the age and avocation of the petitioner on the date of accident, this Tribunal considers the income of the petitioner as Rs.11,000/- p.m.
16. The documents Ex.P6 i.e.,wound certificate shows that, the petitioner has sustained compound fracture both bones of left leg and fracture both bones of right leg. She was admitted to Sanjay Gandhi hospital on 07.04.2020. On 08.04.2020 with multiple wound debridements, and external fixator was done to left leg. On 09.04.2020 under Spinal Anesthesia the fracture both bones of right leg was operated and fixed with plate and screws for fibula and interlocking (SCCH-12) 10 MVC.No. 1898/2020 nailing for Tibia fracture. On 15.04.2020 second debridement for left leg was done. On 17.04.2020 under Spinal Anesthesia free vascularised flap was done to left leg. On 05.05.2020 under spinal anesthesia skin grafting was done to the left leg and discharged on 22.05.2020 with regular follow-up advice. Further P.W.2 has examined the petitioner and assessed the disability on the guidelines of Ministry of Social Justice and Empowerment issued by Government of India notification dated 05.01.2018 and he noticed that the petitioner has disability is permanent in nature and with this disability the petitioner not able to do any manual work in future and he cannot able to walk, stand and cannot able to it cross legs. On perusal of documents of petitioner, it shows that the petitioner has sustained aforementioned fractures and the P.W.2 has opined that the petitioner has got total physical disability to 34% to the whole body and the disability is permanent in nature. The petitioner is a coolie and with this disability the petitioner find difficulty to do her work. On considering the wound certificate Ex.P.6 and medical documents and the avocation of the petitioner and on considering the age of the petitioner and also relying on the principles of the ruling reported in 2011 ACJ 1 SC (Rajkumar /Vs/ Ajaykumar), the Tribunal considers the permanent functional disability of the petitioner is at 30%. The tribunal considers the age of the petitioner as 53 years on the basis of medical documents produced by the petitioner and the appropriate multiplier '11' is applicable as per Sarla Verma's case. On considering the avocation and age of the petitioner, (SCCH-12) 11 MVC.No. 1898/2020 the total loss of future income is calculated as (11,000X12X30X11/100) =Rs.4,35,600/-
17. The petitioner has sustained compound fracture both bones of left leg and fracture both bones of right leg. He was admitted to Sanjay Gandhi hospital on 07.04.2020. On 08.04.2020 with multiple wound debridements, and external fixator was done to left leg. On 09.04.2020 under Spinal Anesthesia the fracture both bones of right leg was operated and fixed with plate and screws for fibula and interlocking nailing for Tibia fracture. On 15.04.2020 second debridement for left leg was done. On 17.04.2020 under Spinal Anesthesia free vascularised flap was done to left leg. On 05.05.2020 under spinal anesthesia skin grafting was done to the left leg and discharged on 22.05.2020 with regular follow-up advice. As such, he has suffered lot of inconvenience and therefore, considering all these aspects as well as avocation of the petitioner. Hence, this Tribunal awards Rs.1,00,000/- under the head of pain and sufferings.
18. The petitioner has sustained compound fracture both bones of left leg and fracture both bones of right leg. He was admitted to Sanjay Gandhi hospital on 07.04.2020. On 08.04.2020 with multiple wound debridements, and external fixator was done to left leg. On 09.04.2020 under Spinal Anesthesia the fracture both bones of right leg was operated and fixed with plate and screws for fibula and interlocking nailing for Tibia fracture. On 15.04.2020 second debridement (SCCH-12) 12 MVC.No. 1898/2020 for left leg was done. On 17.04.2020 under Spinal Anesthesia free vascularised flap was done to left leg. On 05.05.2020 under spinal anesthesia skin grafting was done to the left leg and discharged on 22.05.2020 with regular follow-up advice. As such, considering the avocation of the petitioner and injuries sustained by him, he might have required rest for three months. Therefore, the total period for treatment is considered to be as three months. This Tribunal awards Rs.33,000/- under the head of Loss of income during the period of treatment.
19. The petitioner has produced the medical bills at Ex.P.11 medical bills towards the treatment taken by him worth Rs.77,310/- and also took follow up treatment. Hence, this Tribunal awards Rs.80,000/- towards medical, conveyance, nutrition and attendant charges.
20. The petitioner has sustained c compound fracture both bones of left leg and fracture both bones of right leg. He was admitted to Sanjay Gandhi hospital on 07.04.2020. On 08.04.2020 with multiple wound debridements, and external fixator was done to left leg. On 09.04.2020 under Spinal Anesthesia the fracture both bones of right leg was operated and fixed with plate and screws for fibula and interlocking nailing for Tibia fracture. On 15.04.2020 second debridement for left leg was done. On 17.04.2020 under Spinal Anesthesia free vascularised flap was done to left leg. On 05.05.2020 under spinal anesthesia skin grafting was done to the left leg (SCCH-12) 13 MVC.No. 1898/2020 and discharged on 22.05.2020 with regular follow-up advice and on considering all these facts, this tribunal awards Rs.50,000/- under the head of Loss of future happiness and amenities.
21. The petitioner has sustained compound fracture both bones of left leg and fracture both bones of right leg. He was admitted to Sanjay Gandhi hospital on 07.04.2020. On 08.04.2020 with multiple wound debridements, and external fixator was done to left leg. On 09.04.2020 under Spinal Anesthesia the fracture both bones of right leg was operated and fixed with plate and screws for fibula and interlocking nailing for Tibia fracture. On 15.04.2020 second debridement for left leg was done. On 17.04.2020 under Spinal Anesthesia free vascularised flap was done to left leg. On 05.05.2020 under spinal anesthesia skin grafting was done to the left leg and discharged on 22.05.2020 with regular follow-up advice. P.W.2 has stated that on recent examination of the petitioner has to undergo one more surgery for the removal of implant for which he has to spent Rs.20 to 25 thousand. On considering all these facts, this tribunal awards Rs.15,000/- under the head of Future medical expenses.
As already discussed above in the issue no.1 the contributory negligence is also attributed in this case, therefore contributory negligence of the petitioner would be 20% and that of the offending vehicle at 80%.
(SCCH-12) 14 MVC.No. 1898/2020 The calculation table stands as follows;
01 Loss of future Rs.4,35,600=00
income :
02 Pain and sufferings Rs.1,00,000=00
:
03 Loss of income Rs. 33,000=00
during treatment
period. :
04 Medical, conveyance, Rs. 80,000=00
Nutrition and
Attendant charges :
05 Loss of future Rs. 50,000=00
happiness and
amenities :
06 Future medical Rs. 15,000=00
expenses
:
Total Rs. 7,13,600=00
20% contributory -Rs. 1,42,720=00
negligence is deducted
Total Rs. 5,70,880=00
22. He has canvassed judgment of The Hon'ble Supreme Court reported in Civil Appeal Nos.7220-7221 of 2011 between Beli ram V/s Rajendra Kumar and Another, wherein, it is held;
18. The Delhi High Court in Tata AIG General Insurance Co. Ltd. v.
Akansha & Ors.6 found that the driving licence having expired led to the natural finding that there (SCCH-12) 15 MVC.No. 1898/2020 was no valid driving licence on the date of the accident. The initial onus was discharged by the insurance company in view of the licence not being valid on the date of the accident. The onus, thereafter, shifted to the owner/insured to prove that he had taken sufficient steps to ensure that there was no breach of the terms and conditions of the insurance policy. Since no evidence had been led in this behalf, a presumption was drawn that there was willful and conscious breach of the terms and conditions of the insurance policy.
19. The Allahabad High Court in The Oriental Insurance Co. Ltd. v.
6 2015 SCC OnLine 6758 : (2015) 2 TAC 52 Manoj Kumar & Ors.7 again dealt with the case of an expired driving licence. The endeavour to rely on the principle set forth in a fake licence case was held not applicable in the case of an expired licence since the owner was supposed to be aware that the driving licence of the driver had expired and, thus, it was held that it was the duty of the owner to have ensured that the driver gets the licence renewed within time. In the absence of a valid driving licence, the vehicle was being driven in breach of the condition of the policy, requiring the vehicle to be (SCCH-12) 16 MVC.No. 1898/2020 driven by a person who is duly licensed, and thus, there was breach of Section 149(2) (a)(ii) of the MV Act, the consequence being that the insurance company could not he held liable.
20. The last judgment is of the Himachal Pradesh High Court in National Insurance Co. Ltd. v. Hem Raj & Ors. 8 This was, once again, a case of an originally valid licence, which had expired, there was no question of a fake licence.
It was opined that the conclusions to be drawn from the observations of the judgment in the Swaran Singh9 case of this Court, were that the insurance company can defend an action on the 7 (2015) 111 ALR 275 (authored by Krishna Murari, J., as he then was) 8 :
2012 ACJ 1891 (authored by Deepak Gupta, J., as he then was) 9 (supra) ground that the driver was not duly licensed on the date of the accident, i.e., an expired licence having not been renewed within thirty (30) days of the expiry of the licence as provided in Sections 14 & 15 of the MV Act.
In this context it was observed that the Swaran Singh.10 case did not deal with the consequences if the licence is not renewed within the period of thirty (30) days. If the driving licence is not renewed within thirty (30) days, it was (SCCH-12) 17 MVC.No. 1898/2020 held, the driver neither had an effective driving licence nor can he said to be duly licenced. The conclusion, thus, was that the driver, who permits his licence to expire and does not get it renewed till after the accident, cannot claim that it should be deemed that the licence is renewed retrospectively.
23. We have reproduced the aforesaid observations as it is our view that it sets forth lucidly the correct legal position and we are in complete agreement with the views taken in all the three judgments of three different High Courts with the culmination being the elucidation of the correct legal principle in the judgment in the Hem Raj11 case.
He has canvassed judgment of The Hon'ble Supreme Court reported in 2013 ACJ 2129 SC between United India Insurance Company Ltd V/s. Sujata Arrora and Others, wherein, it is held;
Motor Accident Act- Claim of compensation-injury- accident claim-
court view hold that since
respondent owner entrusted
offending van to respondent who
was not holding valid driving licence at the time of accident. Respondent violated conditions of insurance policy and insurance company is not liable to indemnify the respondent-
(SCCH-12) 18 MVC.No. 1898/2020
owner in accordance of terms of
policy- held; In light of aforesaid finding claims tribunal in our opinion rightly directed that amount should be paid by owner and driver of vehicle only- not liability was fastened on insurance company as at relevant point of time van was being driven by person who was not holding valid driving licence-
certainly amounted violation of condition of insurance policy single judge of High Court proceed on wrong assumption and it otherwise giving rise to filing of present appeal- Findings of single judge that even if driver was having fake licence would not exonerate the insurance company as he was not negligent in driving, or certainly erronous -driving without driving licence or with fake licence and driving vehicle negligently are two different aspect of matter- holding valid driving licence is required of law- if vehicle was being driven by person holding valid driving licence but rashly and negligently matter of evidence- very fact which stood established that licence of driver Jagadish was fake one would completely exonerate the insurance company- court or also forfeited in our view. In light of two judgments of court reported SCALE National Insurance Co. Ltd verses wherein, it has been that in case it is found that offending vehicle was driven by driver who was either holding licence or fake licence that it amount to violation of terms and conditions of (SCCH-12) 19 MVC.No. 1898/2020 policy. In such circumstances, no liability can be fastened on insurance company- Appeal allowed.
The facts and circumstances of the above reported judgment and the facts and circumstances of the present case on hand are entirely different.
24. The Ex.P.7 charge sheet discloses that, the driver of the offending vehicle was not possessing driving license a the time of accident. The learned counsel for the petitioner has argued that, though the driver of the offending vehicle was not possessing driving licence, the insurer is required to pay the compensation and recover the same from the insured, as the policy was valid as on the date of accident. He has canvassed judgment of The Hon'ble Supreme Court reported in 2018 Acj 2163 between Shamanna and Another V/s Oriental Insurance Co. Ltd and others, wherein, it is held;
Motor Accident Act, 1988, section 149 (2) (a) (ii) - Motor insurance -
Driving licence- liability of insurance company- pay and recover under-
Tribunal held that the driver of the offending vehicle was not holding a valid driving licence at the time of accident, since there was a violation of policy conditions directed the insurance company to pay and recover- High Court observed that under Article 142 of constitution only Supreme Court is vested with power to direct the insurance company to pay and recover - High Court (SCCH-12) 20 MVC.No. 1898/2020 reversed the order passed by the Tribunal and held that only the owner of offending vehicle is liable to make the payment of compensation awarded by the Tribunal- Whether the Tribunal was justified in directing the insurance company to pay compensation and then recover the amount from the owner of the offending vehicle-
Held : yes. Where driver did not possess a valid driving licence and there is breach of policy condition, pay and recover can be ordered in the case of third party risks;
insurance company directed to recover the amount from the owner of vehicle by initiating proceedings before the executing court without filing suit.
He has also canvassed the judgment of The Hon'ble Supreme Court of India reported in 2019 ACJ 2401 between Parminder Singh V/s New India Insurance Company Limited and Others, wherein, it is held;
Motor Accident Act, 1988, section 149 (2) (a) (ii) - Motor insurance -
Driving licence- Fake licence-
liability of insurance company- pay and recover order - insurance company disputes its liability on the ground that driver of both offending vehicles were driving without valid driving licence- licensing clerk from RTO deposed that driving licence produced had not been issued in the name of these drivers but, to other persons - Tribunal exempted insurance company from liability-
(SCCH-12) 21 MVC.No. 1898/2020 whether High Court was justified in absolving insurance company from liability but directing it to pay compensation and then recover the amount from owners and drivers of the vehicle- held: Yes.
The learned counsel for the respondent no.2 has argued that, the driver of the offending vehicle was not possessing the D.L. at the time of the accident and therefore, the insurer is not liable to pay compensation.
25. However, the Hon'ble Supreme Court in the judgment reported in 2021 SCC Online SC 1060 between Kurvan Ansari @ Kurvan Ali and another V/s. Shyam Kishore Murmu and another, wherein, it is held that;
B. Motor Vehicles Act 1988-S-149- Liability of owner of offending vehicle to pay compensation when driver having no valid D.L held entire compensation shall be paid to appellants by R-2 insurance company which can recover the same from R-1 owner of the offending vehicle (motor cycle) by entitling appropriate proceedings as driver has no valid driving licence.
In the above reported judgments the Hon'ble Supreme Court has made a proposition of law that, in case of absence of driving license at the time of accident, the insurance company is liable to satisfy the award and then recover the (SCCH-12) 22 MVC.No. 1898/2020 amount from the owner and in the present case on hand also the driver of the offending vehicle was not possessing D.L. at the time of the accident and such being the case, the insurance company is liable to satisfy the award and then recover the amount from the respondent No.1.
26. The learned counsel for the respondent no.2 has canvassed a judgment of our Hon'ble High Court, Dharwad Bench in MFA No.100226 of 2016 (MV) and MFA No.100730 of 2016 dated 22.08.2021 between Smt. Padma and others V/s. Ramanjali Naidu and others and he has also canvassed judgement of our Honble High Court of Karnaaka, Dharwad Bench in in MFA No.23290 of 2012 (MV) C/w MFA No.23291 and 23292 of 2012 dated 10.08.2018 between The Branch Manager, Cholamandalam MS General Insurance co Ltd V/s Smt. Tulasawwa and others, in which, our Hon'ble High Court has made a proposition of law that, in case of absence of driving licence, the liability cannot be fastened against insurer and the owner is liable to pay compensation and pay and recover formula cannot be applied. However, the Hon'ble Supreme Court in its recent judgment of Kurvan Ansari @ Kurvan Ali held that though the driver of the offending vehicle was not possessing driving licence, the entire compensation shall be paid to the petitioners by insurance company by keeping it open to the insurance company to recover the same from (SCCH-12) 23 MVC.No. 1898/2020 the insured. As such, the argument of learned counsel for the respondent no.2 holds no water.
27. In view of the above discussion, I come to the conclusion that the Petitioner is entitled for compensation of Rs.7,62,000/- along with interest at the rate of 6% p.a., from the date of filing of petition till realization. The respondent No.1 is liable to pay compensation and whereas, the respondent no.2 insurance company is liable to satisfy the award and then recover the amount from the respondent No.1. Hence I answer the issue no. 1 and 2 in the partly affirmative.
28. ISSUE NO.3 : In view of the above discussion on Issue no.1 and 2, I proceed to pass the following;
ORDER The petition filed by the petitioner U/Sec. 166 of M.V Act is hereby partly allowed with cost.
The petitioner is entitled for the compensation of Rs.5,70,880/- along with 6% interest from the date of petition till realization.
Petitioner is entitled for entire award amount. Out of his award amount, 50% shall be deposited in the name of petitioner in any Nationalized (SCCH-12) 24 MVC.No. 1898/2020 Bank/Scheduled Bank for a period of 3 years and remaining 50% shall be paid to the petitioner no.1.
The respondent No.2 is liable to pay compensation and whereas, the respondent no.1 insurance company is liable to satisfy the award and then recover the amount from the respondent No.1.
Respondent No.1 is directed to deposit the compensation amount within a period of two months from the date of award.
Advocate fee is fixed at Rs. 1,000/- . Draw an award accordingly.
(Dictated to the Stenographer directly on computer and printout taken by her, then corrected and pronounced by me in the open court on this the 13th day of April, 2022) (Mohamed Arifulla C.F) XI Addl. Small Causes Judge & ACMM, Bengaluru.
ANNEXURES List of witnesses examined for the petitioners:
P.W.1 : Chinnapillai @ Chinnamma P.W.2 : Dr. Prakashappa T.H.
List of documents got marked for the petitioners:
Ex.P.1 : Copy of FIR
Ex.P.2 : Copy of complaint
Ex.P.3 : Certified copy of Mahazar
Ex.P.4 : Certified copy of Spot Sketch
Ex.P.5 : Certified copy of IMV report
Ex.P.6 : Certified copy of Wound certificate
(SCCH-12) 25 MVC.No. 1898/2020
Ex.P.7 : Certified copy of Charge sheet
Ex.P.8 : Discharge summary
Ex.P.9 : Photo
Ex.P.10 : OPD records
Ex.P.11 : Medical bills (22 nos)
Ex.P.12 : Medical prescriptions (5 nos)
Ex.P.13 : Case sheet
Ex.P.14 : X-ray
List of witnesses examined for the respondents:
R.W.1 : Savitha M.S. R.W.2 : Prakash R.W.3 : Sathish Kumar S
List of documents marked for the respondents:
Ex.R.1 : Authorization letter Ex.R.2 : Policy copy Ex.R.3 : Copy of charge sheet Ex.R.4 : Copy of reply to notice U/s133 of MV Act Ex.R.5 : Copy of notice to owner Ex.R.6 : Authorization letter Ex.R.7 : DL extract (Mohamed Arifulla C.F) XI Addl. Small Causes Judge & ACMM, Bengaluru.