Bangalore District Court
Thimmegowda @ Anil Kumar vs D.Nagendra on 12 August, 2015
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES AT BENGALURU
(SCCH:15)
DATED: THIS THE 12th DAY OF AUGUST, 2015
PRESENT : Smt.K.Katyayini, B.Com., LL.B.,
XIII Addl.Small Cause Judge
& Member, MACT, Bengaluru.
MVC No.1493/2013
Petitioner/s Thimmegowda @ Anil Kumar,
S/o Srikante Gowda,
Aged about 21 years,
R/at Thorebommanahalli,
C.A.Kere Hobli,
Maddur Taluk,
Mandya District.
Working at:
No.48/43, 6th main road,
Jnanajyotinagar,
Jnanabharathi,
Bengaluru - 560 056.
(By Pleader - Sri.Bomme Gowda,B.)
V/s
Respondent/s 1.D.Nagendra,
S/o Lingaiah,
No.252, 2nd Cross,
Swarna Sandra,
Mandya,
Mandya District - 571 401.
(RC owner of the bus bearing
No.KA-20-A-3861).
(By Pleader - Exparte.)
2.National Insurance Co.Ltd.,
Regional Office,
(SCCH-15) 2 MVC.1493/2013
2nd Building, M.G.Road,
Bengaluru - 560 001.
(Policy No.
602401/31/11/6300010808)
Valid on 12.03.2012 to
11.03.2013)
(By Pleader - Smt.Manjula N.Tejaswi.)
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. Initially this petition was assigned to the Hon'ble SCCH-10 and subsequently as per the notification No.ADMI/419/2014 dated 06.05.2014, it is reassigned to this Tribunal for disposal in accordance with law.
3. The brief case of petitioner is that on 26.09.2012 at about 10:30 p.m., he was traveling in the bus bearing registration No.KA-20 A-3861. The said bus was being driven by its driver on K.M.Doddi - Halaguru main road near Karakahalli Basagowda's land. At that time, driver of bus drove it in rash and negligent manner.
b) Because of which, he along with few persons fell down and suffered severe injuries all over the body. (SCCH-15) 3 MVC.1493/2013 Accident took place solely due to negligent driving of bus driver. Therefore, 1st respondent being the RC owner and 2nd respondent being the insurer of the bus are jointly and severally liable to pay the compensation. Therefore, prayed to allow the petition as sought for.
4. In response to due service of notices, 1st respondent remained exparte. 2nd respondent has appeared through its counsel and filed its statement of objections denying the petition averments.
b) It has also contended that petitioner is resident of Thorebommanahalli, C.A.Kere Hobli, Maddur Taluk; accident took place on K.M.Doddi - Halagur road near Karkalli Basave Gowda's land, Maddur and RC owner of the bus i.e. 1st respondent is also resident of Mandya and the policy with regard to the bus is also issued by Mandya branch. Therefore, as per the decision reported in by the Hon'ble High Court of Karnataka in 2013 ILR Karnataka, this Tribunal has no jurisdiction to try the present petition.
c) However, it has admitted the fact that 1st respondent is the RC owner of the bus, the policy and its (SCCH-15) 4 MVC.1493/2013 force 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 the vehicular documents. It has contended that there is delay of 11 days in lodging the complaint. There is no fault on the part of bus driver in occurrence of the accident. Therefore, prayed to dismiss the petition against it with costs.
5. On the above said pleadings of the parties, my learned predecessor in office i.e. the then presiding officer of SCCH-10 was pleased to frame the following issues out of which it is ordered that 2nd issue be treated as preliminary issue.
1. Whether petitioner proves that he has sustained injuries in the motor vehicle accident that occurred on 26.09.2012 at about 10:30 p.m. on K.M.Doddi - Halaguru road, Basavegowda's land, Karkahalli, within the jurisdiction of K.M.Doddi police station on account of rash and negligent driving of the bus bearing registration No.KA-20 A-
3861 by its driver as alleged in the petition?
(SCCH-15) 5 MVC.1493/2013
2. Whether 2nd respondent proves that this Court has no jurisdiction to try the petition?
3. Whether petitioner is entitled to the compensation? If so, what is the quantum and from whom?
4. What order?
6. Subsequently, petitioner got amended the petition by inserting his working address in the cause title for which 2nd respondent filed its additional statement of objections denying the contention of the petitioner that he is working in the address stated in cause title.
7. To prove its case with regard to preliminary issue, petitioner himself has entered into witness box as PW-1; got exhibited 2 documents i.e. notarized copies of salary certificate and pay slips.
8. When the matter is posted for hearing on preliminary issue, as observed above, this petition was transferred from SCCH-10 to this Tribunal. On going through the records, since it appeared that the contention of petitioner that he is working in Bengaluru (SCCH-15) 6 MVC.1493/2013 is a fact and thereby 2nd issue is mixed question of law and fact, it is ordered that 2nd issue be taken along with other issues.
9. To prove the above said issues and to substantiate their respective contentions, petitioner has entered into witness box as PW-1. He has got examined medical record officer, BGS hospital as PW-2. Got exhibited 13 documents. Thus including 2 documents exhibited at the time of evidence on 2nd issue i.e. the preliminary issue, petitioner totally got examined 2 witnesses; got exhibited 15 documents and closed his side.
b) Per contra, 2nd respondent got examined District Vector Borne Disease Control Officer as RW-1 to cause production of MLC register extract; the RTO, Mandya to cause production of 'B' register extract and permit as RW-2 and its Administrative Officer as RW-3 and got exhibited 4 documents.
c) In the cross-examination of petitioner, his affidavit is got exhibited for 2nd respondent by way of confrontation. Thus, 2nd respondent got examined totally (SCCH-15) 7 MVC.1493/2013 3 witnesses; got exhibited 5 documents and closed its side. Heard arguments of both the sides on merits of the case.
d) In support of his oral arguments, counsel for petitioner filed memo along with xerox copy of the decision reported in 2009(4) AIR Kar.R.193. Per contra, counsel for 2nd respondent filed memo along with xerox copies of the decisions reported in 2007 AIR SCW 3591 and ILR 2003 KAR 3602. This Tribunal has carefully gone through the above reported decisions and perused the record.
10. Now the findings of this Tribunal on the above said issues are answered in the;
1. Issue No.1: Affirmative
2. Issue No.2: Negative
3. Issue No.3: Petitioner is entitled for compensation amount of Rs.6,46,000/- together with interest at 8% p.a. from the date of petition till the realization in its entirety from 2nd respondent.
4. Issue No.4: As per final order for the following reasons.
(SCCH-15) 8 MVC.1493/2013REASONS
11. ISSUE No.2:- It is the case of 2nd respondent that since, the place of residence of petitioner, 1st respondent and the place of accident as well as the policy issuing branch office are out of the limits of this Tribunal, this Tribunal has no territorial jurisdiction of this Tribunal.
12. However, to prove that this Tribunal has jurisdiction to entertain the present petition, petitioner during his evidence on this issue has produced Ex.P-1 and 2 respectively the notarized copies of the salary certificate and pay slips for the month of July and August, 2012 issued by Preethi Cad Consulting Engineers and at the time of evidence on merits, he has also produced the original salary certificate and pay slips at Ex.P-9 and 10.
13. Ex.P-2/10 are pay slips for the month of July and August, 2012 which reveal the net salary of the petitioner was Rs.6,500/-. Of course, petitioner has not got examined the author of Ex.P-1/9 and 2/10. In the (SCCH-15) 9 MVC.1493/2013 cross-examination of petitioner affidavit executed by him/petitioner is confronted suggesting that as per Ex.R- 1, he was working at Radian Surveys, situated at No.715, Home Plaza, 3rd Floor, 3rd main, Dr.Modi hospital road, Mahalaxmipuram, Bengaluru.
14. At this stage, petitioner voluntarily deposed that MD of the said company is one of the friends of MD, Preethi Cad Consultant Engineers. Therefore, on the request of said company he was shifted to Radian Surveys and worked there for a month. Of course, the said explanation is denied by 2nd respondent by way of suggestion which is in turn denied by him.
15. However, to substantiate the said denial of the explanation of petitioner, 2nd respondent has not let in any evidence. On the other hand Ex.P-1/9 and 2/10 support the case of petitioner that he was working in Bengaluru as on the date of accident.
16. Admittedly, under Section 166(2) of MV Act, a claim petition seeking compensation can be filed before the Tribunal within whose jurisdiction, the claimants resides or carries on business. Since, petitioner has (SCCH-15) 10 MVC.1493/2013 established that he was working in Bengaluru within the limits of this Tribunal, 2nd respondent has failed to prove that this Tribunal has not territorial jurisdiction to entertain this petition. Accordingly, Issue No.2 is answered in the negative.
17. ISSUE No.1:- Even 2nd respondent has denied the entire case of petitioner, it has also contended that there is delay of 11 days in lodging the complaint and there is no negligence on the part of bus the driver, in the course of evidence, it has took up the defence that petitioner was on top roof of the bus and thereby on his own negligence, he was exposed to the accident.
18. So, there is no dispute between the parties with regard to the alleged accident; the date, time and place of accident; the bus involved in the accident as well as driver of the bus at the time of accident as well as the fact that petitioner was traveling in the bus. Hence, now the only point that remained for the due consideration of this Tribunal is the rash and negligent aspect.
19. It is in the police papers and also in the MLC extract that at the time of accident, petitioner was on top (SCCH-15) 11 MVC.1493/2013 roof of the bus. For that matter, in the cross-examination of petitioner, he himself has admitted that he along with other persons was on the top roof of the bus.
20. At this stage, he voluntarily stated that on the request of owner and the conductor, since there was no place in the bus, they were on the top roof of the bus. So, absolutely it is an admitted fact that at the time of accident, petitioner was on the top roof of the bus.
21. To establish its defence that because petitioner was on top roof of the bus, on his negligence, the accident took place, counsel for 2nd respondent as observed above, placed her reliance on the decision reported in 2007 AIR SCW 3591 (Oriental Insurance Co.Ltd. v. Premlata Shuka and Ors) wherein the Hon'ble Supreme Court has held that;
"(B) Evidence Act (1 of 1872), S.61 - Motor Vehicles Act, (59 of 1988), S.168 - Contents of document - Once part of contents are admitted in evidence - Party bringing same on record cannot be permitted to contend that other contents contained in rest part thereof had not been proved - FIR brought on record for purpose of proving motor accident - Could be relied upon to fix liability of driver of offending vehicle as well - Order of High Court holding driver guilty by ignoring FIR on (SCCH-15) 12 MVC.1493/2013 ground that FIR has not been legally proved - Liable to be set aside."
22. But in the present case on hand, petitioner is not denying the fact that he was on the top roof of the bus and admittedly he is not disputing the police papers and the MLC extract on which 2nd respondent is relying to prove its defence that petitioner was on the top of the bus. On the other hand, petitioner himself has admitted the said fact. Therefore, the above decision is not applicable to the facts and circumstances of the case on hand.
23. She has also relied on the decision reported in ILR 2003 KAR 3602 (Smt.Shivleela and others vs Karnatka State Road Transport corporation, by Mangaing Director, Bengaluru), wherein Division Bench of Hon'ble High Court of Karnataka has held that;
"Motor Vehicles Act, 1988 (Central Act No.59/1988) - Section 173(1) - Travelling on the roof of the bus - percentage of contributory negligence on the part of driver and conductor - Contributory negligence on the part of the driver may vary depending on whether the driver knows about the presence of the person on the roof or he is unaware of the same - But in so far as the passenger is concerned - He takes a risk by traveling in breach of the law and he must share the (SCCH-15) 13 MVC.1493/2013 consequences flowing there from - On facts - HELD
- Based on the material facts and the evidence on record, the Tribunal rightly rejected the case of the claimants that the deceased was forced to go to the roof the bus - The conductor and the driver have to ensure that there was no body on the roof of the bus either for travel or for any other purpose - This part of the duty was evidently in the facts and circumstances, neglected by the driver and the conductor - The percentage of negligence contributed by the deceased and the driver and conductor of the KSRTC is in the ratio of 50:50".
24. So, above decision is helpful 2nd respondent with regard to levy contributory negligence on the part of petitioner in traveling on the top roof of the bus. But to meet the defence of 2nd respondent, counsel for petitioner has placed his reliance on the decision reported in 2009(4) AIR KAR R.193 (New India Assurance Co., Bengaluru versus Jayashree alias Laxmi and Ors.) wherein Division Bench of Hon'ble High Court of Karnataka has held that;
"Motor Vehicles Act (59 of 1988), S.147 - Karnataka Motor Vehicles Rules (1989), Rr.148, 123
- Liability of insurer - 'Passenger" - Defined under Rules - passenger traveling on roof of offending bus
- No attempt made by driver or person in charge of vehicle to stop passengers from traveling on roof - Violation of R.123 invites penal action - ACCIDENT occurred on account of use of offending public service bus - Deceased being passenger under (SCCH-15) 14 MVC.1493/2013 S.147 of said Act and covered under insurance policy - Insurer liable to pay compensation.
25. In the decision reported in 2004 ACJ 889, the Hon'ble High Court of Karnataka, Bengaluru has held that;
"Negligence - Travelling on roof top - Passenger travelling on the roof of bus fell down when driver applied brakes suddenly and died - Defence that deceased was travelling on the roof without permission of the conductor or driver and without a ticket - Another passenger deposed that the deceased loaded his tin sheets on the top, he was allowed to sit on the roof and there were some other passengers also, driver was driving the bus at high speed and he applied brakes suddenly - Deceased has loaded tin sheets on the roof of bus which could not have been done without knowledge of driver and conductor who would have collected fare - Tribunal held that driver was rash and negligent in causing the accident and there was no contributory negligence of the deceased
- Tribunal's finding upheld in appeal."
26. It is in 2012 ACJ 1968 where the Hon'ble High Court of Karnataka, Bengaluru has held that;
"Motor Vehicles Act, 1988, section 123(2) - Negligence - Contributory negligence - Travelling on roof top - Whether compensation payable to the passenger travelling on roof of the bus is reducible to the extent of his contribution to the accident and consequential loss - Held: yes; no contributory negligence or fixed percentage of contribution could be attributed to a passenger merely because he was travelling on roof of the bus; such travelling is negligent but unless the negligent act contributes to the accident and consequential loss, the passenger (SCCH-15) 15 MVC.1493/2013 cannot be denied compensation percentage of contribution may be decided on the basis of evidence in each case;.
27. In 2014 ACJ 813 wherein the Hon'ble High Court of Judicature at Gauhati, Shillong Bench has held that;
"Negligence - Re ipsa loquitur - Bus took a sharp turn at high speed, a passenger sitting near the back door was jerked out of the vehicle and he sustained fatal inures - Defence that deceased without permission of the driver or conductor and without their notice claimbed on the roof top of bus and died due to his own negligence - Brother of the deceased and 2 other witnesses who were travelling in the bus deposed that deceased was travelling inside the bus occupying a seat near rear door and he fell down from the moving bus but they did not see how the deceased fell down and denied the suggestion that deceased fell down form roof top - Investigating Officer deposed that the deceased was hanging behind the bus and investigation of insurance company deposed that the deceased fell down from roof top of the bus - There is no contradiction in the deposition of two defence witnesses, none of them had witnessed the accident and their evidence is based on hearsay - Even if it is accepted that deceased was on roof top, it can be presumed that he was allowed to travel as such and drier was expected to take care that person who was on roof top may not fall down or meet with any accident - Tribunal relying upon the defence witnesses dismissed the claim - Bald statements of investigators cannot be accepted for want of corroboration from conductor, driver or handyman or any co-passenger - Doctrine of re ipsa loquitur is applicable - Tribunal's finding set aside and held that deceased was travelling as a passenger in the bus; case remitted back to the Tribunal to ascertain the amount of compensation."(SCCH-15) 16 MVC.1493/2013
28. So, as observed above the decision of the Hon'ble High Court of Karnataka reported in ILR 2003 KAR 3602 is helpful to the 2nd respondent to levy contributory negligence on the part of petitioner, the sum and substances of the subsequent decisions observed above which are recent ones, is that 2nd respondent is required to establish that such travelling is negligent since it contributed to the accident.
29. But except the police papers and the MLC extract, 2nd respondent has not let in any evidence establish that by sitting on the roof top of the bus petitioner has contributed his negligence in occurrence of the accident by doing or non-doing something. Admittedly, 2nd respondent has not examined any eye witness.
30. On the other hand, to prove his case, petitioner apart from his oral evidence, has produced the police papers i.e. the true copes of FIR with complaint, crime detail form, seizer mahazar, MV report and charge sheet respectively at Ex.P-1A, 2A and 3 to 5. All the police (SCCH-15) 17 MVC.1493/2013 papers categorically reveal that the jurisdictional police have registered criminal case against the bus driver for the offences punishable under Sections 279 and 337 of IPC as well as 187 of IMV Act and after the investigation, they have charge sheeted the bus driver for the offences punishable under Sections 279, 337 and 338 of IPC as well as 187 of MV Act which support the case of petitioner that accident took place because of negligent driving of the bus.
31. Even 2nd respondent has contended that because of his own negligence, petitioner fell down from the roof of the bus and there is no negligence on the part of driver of bus in occurrence of the accident, as observed above, it has not let in evidence to prove that on his own negligence, petitioner fell down from the top roof of the bus.
32. 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 (SCCH-15) 18 MVC.1493/2013 presumption is rebuttal one. But no such rebuttal evidence is let in by 2nd respondent.
33. So far as injuries, there is no dispute between the parties. On the other hand, it is the very contention of 2nd respondent that because of his own negligence, petitioner had fallen down from roof of the bus. Of course, 2nd respondent has denied the nature of injuries and the treatment as well as quantum of disability and the medical expenditure, but it has not at all denied the fact of petitioner suffering injuries in the present accident.
34. Apart from that to prove the accidental injuries, petitioner with his oral evidence has also got medical records such as, wound certificate, discharge summary, hospital and medical bills at Ex.P-6 to 8 in his evidence and in the evidence of PW-2, he got produced the inpatient file at Ex.P-13. All those medical records are in support of the case of petitioner with regard to his suffering injuries in the accident. Therefore, issue No.1 is answered in affirmative.
(SCCH-15) 19 MVC.1493/2013
35. ISSUE No.3:- In view of answering issue No.1 in affirmative, petitioner is entitled for compensation. Now, in respect of quantum. It is the case of petitioner that he was aged 21 years; working as survey operator in private company and had income of Rs.6,500/- per month.
36. To establish his age, petitioner has produced notarized copy of voters ID at Ex.P-11 wherein his date of birth is shown as 15.08.1992. Date of accident is 26.09.2012. So, on the date of accident, as per Ex.P-11, petitioner was aged 21 years.
37. It is also shown in the police papers and medical records that his age is 20 and 22 years respectively. There is no cross-examination by the other side about those documents with regard to the age of petitioner. So, there is nothing to disbelieve the said evidence. Accordingly, the age of petitioner is taken as 22 years, for which the appropriate multiplier applicable is 18.
38. To prove his avocation and income, petitioner as observed above, has produced Ex.P-1/9 and 2/10. Ex.P- 2/10 are the pay slips for the month July and August, (SCCH-15) 20 MVC.1493/2013 2012 which reveal the net salary of the petitioner was Rs.6,500/- p.m.
39. Of course, petitioner has not got examined the author of Ex.P-1/9 and 2/10. However, if the age of petitioner and the cost of living on the date of accident are taken note off, there is nothing on record to discard his income at Rs.6,500/- p.m. Hence, his income is accepted as Rs.6,500/- p.m.
40. It is the case of petitioner that he has suffered injuries as stated in the wound certificate. He took treatment in K.M.Doddi, hospital, Mandya Government hospital, NIMHANS Hospital, Bengaluru and Prashanth Nursing home and BGS Global hospital, Bengaluru. He was treated as an inpatient.
41. It is also his case that he is still on follow up treatment. He became permanently disabled because of accidental injuries. Petitioner has reiterated the above petition averments in his affidavit evidence. His chief evidence is denied by way of suggestions, which are in turn denied by him.
(SCCH-15) 21 MVC.1493/2013
42. In support of his case, petitioner got examined PW-2 and got produced inpatient file at Ex.P-13. The said inpatient file is of BGS Global hospital. If the documents produced by petitioner are taken into consideration, Ex.P-6 is the wound certificate and Ex.P-7 is the discharge summaries, 2 in nos. issued by BGS Global hospital reveals that petitioner was admitted with the history of road traffic accident on 26.09.2012.
43. It is also there that petitioner was admitted to the said hospital on 02.10.2012 and was discharged on 23.10.2012; he was diagnosed for multiple contusions, subarachnoid hemorrhage, bilateral upper limbs thrombophlebitis with epidermal necrosis which is grievous in nature.
44. Discharge card at Sl.No.2 in Ex.P-7 series is issued by Prashanth Nursing Home wherein it is stated that petitioner was in the hospital from 27.09.2012 till 02.10.2012. It is also there that petitioner was diagnosed for moderate head injury with SDH with Small underlying in contusion over parietal area of left. (SCCH-15) 22 MVC.1493/2013
45. Ex.P-13 is inpatient file of BGS Global hospital. The contents at Ex.P-13 are in corroboration with discharge summary of the said hospital at Sl.No.1 in Ex.P-7 series observed above. Therefore, if the entire evidence is taken into consideration, it can be safely held that petitioner has suffered moderate head injury. He was inpatient from 26.09.2012 to 23.10.2012 i.e., for 27 days and was treated conservatively.
46. To prove the medical expenditure, petitioner with his oral evidence has produced Ex.P-8, the hospital and medical bills totally 38 in nos. amounting to Rs.4,85,789/-. Bill at Sl.No.1 is inpatient bill wherein it is stated patient type is self pay and other bills at Sl.No.2 to 34 are of BGS hospital, cash receipts of NIMHANS hospital and BGS hospital pharmacy bills.
47. All those bills are in the name of petitioner. There is nothing on record to disbelieve those bills. Morevoer, if the nature of injuries, the inpatient period, the hospital wherein he took major treatment is a private set up are taken note off, nothing is there to discard the said medical expense.
(SCCH-15) 23 MVC.1493/2013
48. Moreover, there is no cross-examination with regard to medical reimbursement. Hence, petitioner is entitled for the hospital and medical bills at Ex.P-7 series amounting to Rs.4,85,789/- rounded off to Rs.4,86,000/-.
49. Even petitioner has contended that he became permanently disabled because of accidental injuries, he has not let in any supportive doctor's evidence. Therefore, considering the nature of injury, it is just and proper to award compensation under the head loss of amenities and comfort.
50. In the result, petitioner is entitled for compensation under the heads mentioned below and the amount stated against them.
Pain and Sufferings Rs. 50,000/-
Loss of income during laid up Rs. 30,000/-
period, Diet, Nourishment and etc.
Attendant charges, Conveyance, Rs. 30,000/-
other Incidental Charges and etc.
Medical Expenditure Rs.4,86,000/-
Loss of Amenities and Comfort Rs. 50,000/-
Total: Rs.6,46,000/-
51. Considering the cost of living on the date of accident, it is thought fit to award interest at 8% p.a. (SCCH-15) 24 MVC.1493/2013 from the date of petition till realization of the compensation amount in its entirety.
52. 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 bus. 2nd respondent has of course contended that its liability if any is subject to the terms and conditions of the policy such as driving licence and vehicular documents.
53. However, even 2nd respondent got examined 3 witnesses and got exhibited 5 documents, but has concentrated only with regard to the alleged negligence of petitioner in occurrence of the accident but it has not let in any evidence with regard to its defence on breach of policy conditions.
54. On the other hand, if the entire evidence on record is taken into consideration as per Ex.P-5, the jurisdictional police have charge sheeted the bus driver for the offences punishable under Sections 279, 337 and 338 of IPC as well as 187 of MV Act.
(SCCH-15) 25 MVC.1493/2013
55. There is no allegation with regard to either driving licence or vehicular documents. So, it appears that the bus driver did possess valid and effective driving licence and the bus also had valid and effective documents which were in order and in force as on the date of accident.
56. The one more defence of 2nd respondent appears to be of the exceeding passengers in the bus. It is in the evidence of RW-2 and 3 respectively the RTO and the Administrative Officer of 2nd respondent and also in the documents at Ex.R-2 and 3 i.e. the B register extract and the permit of the bus that its seating capacity is 48 plus
2.
57. RW-3 in his cross-examination has deposed that he does not know the number of passengers in the bus. Of course, he has voluntarily deposed that he will produce the documents in that regard. But admittedly no such document is produced for 2nd respondent.
58. However, it is also in the cross-examination of RW-3 that so far, the only claim petition they found with regard to the present accident is the present claim (SCCH-15) 26 MVC.1493/2013 petition. Admittedly, under the policy, 2nd respondent is liable to indemnify the liability of 1st respondent up to the seating capacity.
59. Therefore, in view of the above evidence that this is the only petition 2nd respondent has found till date which comes within the seating capacity number i.e. with 48 plus 2, 2nd respondent has failed to establish any violation of policy conditions. 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.
60. Hence, petitioner is entitled for compensation of Rs.6,46,000/- together with interest at 8% p.a. from the date of petition till the realization of the compensation in its entirety from 2nd respondent. Issue No.2 is answered accordingly.
61. ISSUE No.4:- 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.
(SCCH-15) 27 MVC.1493/2013In the result, petitioner is entitled for compensation amount of Rs.6,46,000/- together with interest at 8% 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 petitioner shall deposit Rs.50,000/- in Karnataka Bank, City Civil Court Branch, Bengaluru for a period of 5 years and the remaining 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 12th day of August, 2015.) (K.KATYAYINI), ERROR: syntaxerror OFFENDING COMMAND: %ztokenexec_continue STACK:
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