Bangalore District Court
Mr. Mohanappa @ Muniyappa vs Mr.M. Gopal on 18 September, 2015
BEFORE MOTOR ACCIDENT CLAIMS TRIBUNAL,
BANGALORE. (SCCH-11)
DATED THIS 18TH DAY OF SEPTEMBER, 2015
PRESENT: SRI. GANAPATI GURUSIDDA BADAMI, B.A,LL.B(SPL).
I ADDL.SMALL CAUSES JUDGE & XXVII ACMM
M.V.C NO.3237/2014
PETITIONERS: 1. Mr. Mohanappa @ Muniyappa,
S/o. Mallappa,
Aged about 38 years.
2. Smt.Shanthamma,
W/o. Monappa @ Muniyappa,
Aged about 31 years.
Both are residing
At No.368, Near Munishwara Temple,
Sarayi Palya Main Road,
Bangalore - 560 077.
(By pleader - Sri. C.G. Asha Devi)
- V/S -
RESPONDENTS: 1.Mr.M. Gopal,
S/o. Muniyappa,
Major, R/at No.45, Saray Palya,
Thanisandra Main Road,
Arabic College,
Bangalore - 560 004.
(By pleader - Sri. M. Mahanthesha)
2. The Manager,
National Insurance Co. Ltd.,
No.1930/A, 16th 'B' Cross,
Bus Stand Road New Town,
SCCH-11 2 MVC 3237/2014
Yelahanka,
Bangalore - 560 064.
(By pleader - Sri. H.N. Keshava Prashanth)
JUDGMENT
Petitioners have filed this claim petition against the respondents claiming the compensation for the death of deceased Ravichandra S/o Mohanappa @ Muniyappa in the road traffic accident.
2) It is averred that, on 6.5.2014 at about 5:00pm, deceased Ravichandra S/o Mohanappa @ Muniyappa was peddling his cycle towards home within the limits of Banaswadi police station and he was going infront of New Town public school. At that time, the driver of water tanker bearing No.KA-06-3619/3620 started reversing said vehicle without any signal in high speed and suddenly took left turn and dashed to the deceased. Due to said impact, the deceased fell down and offending vehicle passed on the SCCH-11 3 MVC 3237/2014 middle portion of body of the deceased who sustained grievous injuries and sustained fatal injuries.
3) Immediately, after the accident, the deceased was shifted to Ambedkar hospital and from there, he was shifted to Bowring hospital and thereafter, the deceased was shifted to Victoria hospital where he succumbed to the injuries.
4) The deceased was hale and healthy prior to the accident and he was studying in 8th std in Government school and in the evening, he was distributing flowers to some houses who were regularly buying and paying once in a month and earning Rs.4,000/- per month. The deceased was supporting financially to the family. Due to sudden and untimely death of the deceased, petitioners are put to mental shock and agony. The respondents being owner and insurer of offending vehicle are jointly and severally liable to pay the compensation to the petitioners. Hence the petitioners have claimed the compensation of Rs.10,00,000/- along with interest and costs. SCCH-11 4 MVC 3237/2014
5) The respondent No1 has filed written statement and denied the contents of claim petition. The respondent No1 has admitted that, he is owner of vehicle bearing No.KA-06-3619/3620 and said vehicle was insured with respondent No2 under policy bearing No.60420031136750044769 which was in force from 5.10.2013 to 4.10.2014. At the time of the accident, the driver of said vehicle was holding valid and effective driving licence and liability shall be fixed upon the respondent No2 if claim petition is allowed. Therefore, it is prayed for dismissal of claim petition with costs.
6) The respondent No2 has filed written statement and denied the contents of claim petition. It is admitted that, the respondent No2 has issued insurance policy in respect of water tanker, but original copy of insurance policy is with the respondent No1who is called upon to produce the same. The liability of the respondent No2 is subject to the terms and conditions of insurance policy and provisions of Motor Vehicles Act. The person who was driving the vehicle has no relation in force as on the date of SCCH-11 5 MVC 3237/2014 accident to drive the vehicle. The driver of offending vehicle was not holding valid and effective driving licence and owner of said vehicle entrusted the said vehicle to such person who has no valid and effective driving licence and thereby violated terms and conditions of insurance policy. The police have filed charge sheet against the driver of said vehicle by name Mr.K.V.Ravikumar S/o Venkateshappa who was driving offending vehicle and at the time of the accident, he was having driving licence bearing No.KA40 20120000511 to drive motor cycle without gear, light motor vehicle, tractor non transport only and same was valid for the period from 27.1.2012 to 26.1.2032 issued by RTO Chikkaballapur by which it is clear that, he was not having valid and effective driving licence to drive LMV Transport vehicle as on the date of the accident and respondent No1 violated terms and conditions of insurance policy. The offending vehicle was used without valid fitness certificate in public place which is clear violation of terms and conditions of insurance policy and provisions of Motor Vehicles Act. The respondent No2 seeks protection under section 147 and 149 of Motor Vehicles Act. The respondent SCCH-11 6 MVC 3237/2014 No1 has not complied the mandatory requirements of section 134(c) of Motor Vehicles Act and jurisdictional police have not complied the mandatory requirements of section 158(6) of Motor Vehicles Act. Petitioners are not entitled to claim any interest on non pecuniary damages as per decision of Hon'ble Supreme Court reported in 1995 ACJ 366. On the date of alleged accident, the driver of offending vehicle was driving the same slowly, carefully and cautiously on the correct side with signals. The alleged accident has taken place due to negligence on the part of the deceased who contributed to the said accident. The claim petition filed by the petitioner is false, malicious, incorrect and malafide and it is nothing, but abuse of process of law and it is an attempt to waste precious time of this court. The petitioners have not approached this court with clean hands and true facts and they are trying to mislead this court. The respondent No2 seeks permission to take all defences available to the insured under section 170 of Motor Vehicles Act apart from the defences available under section 149 of Motor Vehicles Act in case, insured placed exparte. The compensation claimed SCCH-11 7 MVC 3237/2014 by the petitioners is highly excessive, exorbitant and exaggerated. Therefore, it is prayed for dismissal of claim petition with costs.
7) Petitioner No1 himself examined as PW1 and also examined Sri.Tayappa S/o Thippanna as PW2 and got marked ExP.1 to 11 and closed the evidence. The respondent No2 examined Sri.Hanumantharayappa S/o Hanumanthaiah, and Sri.Shivakumar as RW 1and 2 and got marked ExR.1 to 5 and closed the evidence. Though sufficient time has been granted to the respondent No1, he has not adduced any evidence. Hence, respondent No1 side evidence is taken as nil.
8) Heard the arguments of learned counsel for petitioner and learned counsel for respondents and perused the evidence on record.
9) On the basis of the pleadings of the parties, following issues have been framed:
1. Whether petitioners prove that, on 6.5.2014 at about 5:00pm, when deceased Ravichandra was peddling his SCCH-11 8 MVC 3237/2014 cycle towards home infront of New Town Public School, at that time, the driver of water tanker bearing No.KA-06-2619 and 3620 taken reverse without any signal with high speed and suddenly took left turn and dashed to the deceased by which he succumbed to the injuries in the hospital?
2. Whether respondent No2 proves that, as on the date of the accident, driver of offending vehicle was not holding valid and effective driving licence and said vehicle was not having fitness certificate and respondent No1 violated terms and conditions of insurance policy?
3. Whether petitioners are entitled for the compensation prayed in the claim petition? If so, what is quantum of compensation and from whom?
4. What order and award?
10) My findings on the above issues are as under:
Issue No.1 Affirmative;
Issue No.2 Negative;
Issue No.3 tly Partly Affirmative; the petitioner is entitled for compensation of Rs.4.54,500/- with interest @ 6% p.a. from the date of petition till complete realisation, from respondent No.2.
Issue No.4
As As per final order for the following:
SCCH-11 9 MVC 3237/2014
REASONS
11) Issue No1: PW1 has stated that, on 6.5.2014 at about 5:00pm, his deceased son Ravichandra S/o Mohanappa @ Muniyappa was peddling his cycle towards home within the limits of Banaswadi police station and he was going infront of New Town public school. He has stated that, at that time, the driver of water tanker bearing No.KA-06-3619/3620 started reversing said vehicle without any signal in high speed and suddenly took left turn and dashed to the deceased who fell down and offending vehicle passed on the middle portion of body of the deceased who sustained grievous injuries. He has stated that, the deceased was taken to Dr.Ambedkar hospital and from re, he was shifted to Bowring hospital and thereafter, the deceased was taken to Victoria hospital where he succumbed to the injuries.
12) In the cross examination of PW1, he has admitted that, he has not witnessed the accident and his son alone was going on the cycle. He has admitted that, the SCCH-11 10 MVC 3237/2014 road is having width of 12 feet at the place of the accident and accident taken place in the middle of the road.
13) PW2 who is eye witness to the accident has stated about rash and negligent driving by the driver of offending vehicle. In the cross examination of PW2, he has admitted that, deceased Ravichandra was alone on his bicycle at the time of the accident. He has admitted that, water tanker was fixed to the tractor and water tanker was filled with water. He has stated that, he has seen the accident at the distance of 200 meters. He has admitted that, petitioners requested him to give evidence in the court and for that reasons, he is giving evidence before court.
14) Learned counsel for respondent insurance company has submitted in his arguments that, offending vehicle is a tractor and trailer and respondent No1 has taken goods carriage commercial policy and respondent No2 has issued goods carriage commercial policy. He has submitted that, respondent No2 examined RW1 who has stated that, the driver of offending vehicle was having light SCCH-11 11 MVC 3237/2014 motor vehicle non transport, light motor vehicle without gear, light motor vehicle with gear and he was not holding driving licence to driver light motor vehicle transport and insurance company is not liable to pay the compensation to the petitioners. He has also contended that, the respondent No1 entrusted the vehicle to such person who was not having valid and effective driving licence and violated terms and conditions of insurance policy and respondent No2 is not liable to pay any compensation to the petitioners and only owner of offending vehicle is liable to pay the compensation to the petitioners. He has also submitted that, the respondent No2 filed an application seeking direction to the respondent No1 to produce driving licence and this court has given direction to the respondent No1 and said order is not complied and respondent No1 has not produced driving licence. He has not submitted that, driver of offending vehicle was not qualified to drive the vehicle in question and there is clear violation of terms and conditions of insurance policy and respondent No1 alone is liable to pay the compensation to the petitioners. SCCH-11 12 MVC 3237/2014 Therefore, he prayed for dismissing claim petition against the respondent No2.
15) Learned counsel for petitioner has contended that, the accident taken place due to rash and negligent driving by the driver of offending vehicle. He has submitted that, the petitioners have examined eye witness to the accident who has stated that, the accident taken place due to rash and negligent driving by the driver of offending vehicle.
16) On perusal of evidence of PW1, he is not an eye witness to the accident and he came to know from others about the accident from some others.
17) The petitioners have examined PW.2 who is witnessed the accident and has stated that, on 6.5.2014 at about 5.00 pm., deceased Ravichandra was riding his bicycle on the left side in front of the New Town Public School, Sarai Palya main road, Thanisandra main road, at that time, the driver of water tanker tractor bearing SCCH-11 13 MVC 3237/2014 Regn.No.KA-06-3619/3620 driven the said vehicle in rash and negligent manner endangering public life and dashed to the bicycle. He has stated that, due to said impact, deceased sustained grievous injuries and taken to Hospital and he died in the Victoria Hospital.
18) The petitioners have produced true copy of F.I.R and complaint which are marked at Ex.P.1 and 2 and as per the said documents, on 6.5.2014 at about 5.00 pm., when the deceased was riding bicycle, at that time, the driver of water tanker tractor bearing Regn.No.KA-06- 3619/3620 dashed the said vehicle to the deceased. The petitioners have also produced hand sketch map which is marked at Ex.P.3 and as per the said document, the deceased was riding cycle on Sarayipalya Main Road, at that time, the driver of water tanker tractor bearing Regn.No.KA-06-3619/3620 driven the said vehicle in rash and negligent manner and dashed to the cyclist who died in the Hospital. The petitioners have produced panchanama which is marked at Ex.P.4. The petitioners SCCH-11 14 MVC 3237/2014 have produced IMV report which is marked at Ex.P.5 and as per the said document, no visible damages noticed to the tractor trailer. The petitioners have produced true copy of charge sheet which is marked at Ex.P.8 and as per the said document, the police have filed charge sheet against the driver of water tanker tractor bearing Regn.No.KA-06- 3619/3620 for the offences punishable under section 279, 304(A) of IPC and Section 187 of Motor Vehicle Act. On perusal of the police documents, they reveal that, accident has taken place due to rash and negligent driving by the driver of the offending vehicle. So, I answer issue No.1 in Affirmative.
19) Issue No.2:- Respondent No.2 has taken contention that, as on the date of accident, the driver of offending vehicle was not holding valid and effective driving licence and said vehicle was not having fitness certificate and respondent No.1 has violated the terms and conditions of insurance policy. The respondent No.2 examined RW.1 who has stated in evidence that, as per driving licence SCCH-11 15 MVC 3237/2014 extract, K.B.Ravikumar driver was permitted to drive LMV motor cycle with gear, LMV non-transport car, LMV tractor non transport and they will issue driving licence to the driver to drive the tractor and trailer. He has stated that, driver of the tractor trailer commercial vehicle requires permit and should possess tractor trailer transport driving licence and as per Ex.R.2, the driver was not qualified to drive the tractor trailer commercial. In the cross- examination of RW.1, he has stated that, at the time of issuing driving licence they will conduct examination and at that time, drivers of tractor will bring both tractor and trailer, but in this case, the driver had not brought trailer at the time of examination and in case only tractor is brought at the time of examination, the driving licence will be issued only for the purpose of agricultural purpose and in case, tractor and trailer brought at the time of examination, driving licence will be issued for agricultural purpose and in case of commercial use, they will issue permit which will have yellow board. He has stated that, they will issue driving licence on the basis of requisition made in the application. They will issue driving licence for SCCH-11 16 MVC 3237/2014 non transport for the period of 20 years and driving licence for transport for the period of 3 years. RW.1 has produced driving licence extract of driver by name K.B. Ravikumar and as per the said document, he was having driving licence for LMV motor cycle with gear, LMV non-transport car, LMV tractor non transport for the period from 27.01.2012 to 26.01.2013. In the decision relied upon by the learned counsel for respondent No.1 reported in Nagashetty V/s United India Insurance Company Limited and others, A.I.R 2001 SC 3356, the Hon'ble Supreme Court has held that, the person having driving licence to drive the tractor does not become disqualified to drive tractor if trailer is attached to it, insurance company cannot be absolved that as on the grounds that licence to drive tractor becomes ineffective if trailer is attached to tractor is attached to it. In the said decision, Hon'ble Supreme Court has also held as under:
Merely because a trailer is added either to a tractor or to a motor vehicle by itself does not make that tractor or motor vehicle remains a tractor or motor vehicle. If a person has a valid and effective driving licence driving licence to drive a tractor or a motor SCCH-11 17 MVC 3237/2014 vehicle, he continues to have a valid and effective driving licence to drive that tractor or motor vehicle even if a trailer is attached to it and some goods are carried in it. In other words a person having a valid and effective driving licence to drive a particular category of vehicle does not become disabled to drive that vehicle merely because, a trailer is added to that vehicle.
Thus a permanent licence holder having an effective valid and effective driving licence to drive a tractor can drive even when the tractor is used for carrying goods. When the policy is used for carrying goods. When the policy itself so permits, a person having a valid and effective driving licence to drive a tractor would not become disqualified to drive the tractor if a trailer was attached to it. Therefore, insurance company is liable to pay compensation. Insurance Company cannot be absolved from liability for reasoning that, driver who has licence to drive tractor cannot be said to have valid driving licence to drive transport vehicle.SCCH-11 18 MVC 3237/2014
It is clear from the said decision that, if a person had valid driving licence to drive tractor or motor cycle, he continues valid licence to drive motor cycle. It is also clearly held in the said decision that, a person having driving licence to drive tractor because the trailer is added to that vehicle. It is also held that, the permanent licence holder have effective driving licence to carrying goods and the insurance policy cannot absolved from liability for the reason that, driver was holding driving licence to drive tractor was not qualified to drive tractor with trailer. In the light of the principles laid down by the Hon'ble Supreme Court, I hold that, the contention regarding driving licence taken by the respondent No.2 is not acceptable. Even in one more decision reported in the Oriental Insurance Co., Ltd., V/s Sri. Chennabasavaiah and others, 2012(2) MACR 739 (Kar), Hon'ble High Court has held that, the driver who had driving licence to drive the vehicle prior to the date of amendment of Rule 14 of the Karnataka Motor Vehicle Rules are entitled to drive light motor vehicle of both transport and non- transport, including light goods carriage vehicle, provided the unladen weight of the said vehicle is less than 7500 kgs. In this case also, the driver was holding driving licence to drive the vehicle and RW.1 has stated in his evidence that, the driver was SCCH-11 19 MVC 3237/2014 holding driving licence as per Ex.R.2. As per the said document, the driver was having driving licence to drive LML tractor non- transport which was valid from 27.01.2012 to 26.01.2013 in view of the principles laid down by the Hon'ble Supreme Court reported that the insurance company is liable to pay the compensation. In the light of principles laid down in the above said decision, I hold that, contention of insurance company is not acceptable. So, I answer issue No.2 in Negative.
20) Issue No.3:- PW.1 has stated in his evidence that, at the time of accident, his son was hale and healthy and aged about 15 years and studying in 9th standard at Thanisandra Government High School, Bengaluru district.
He has stated that, they have lost their beloved son in the accident and due to sudden death of their son, they are in great mental shock. Petitioners have produced Ex.P.9 which is progress card of their deceased son for the year 2013-14 and as per the said document, the deceased was born on 8.4.2000 and he was studying in Government Higher Primary School, Southern Division, Thanisandra, Bangalore. Petitioners have also produced Aadhar card SCCH-11 20 MVC 3237/2014 which is marked at Ex.P.10 and as per said document, he was born on 8.4.2000. The deceased was aged about 14 years as on the date of accident and he was minor and he was non-earning member of the family. In a decision reported in (Oriental Insurance Company Ltd., Vs. Reena Awasthi and others) 2011 ACJ 1261, the deceased boy was aged 8 years and school student and Hon'ble High court of Allahabad awarded compensation of Rs.1,54,500/-. In one more decision reported in (Jitender Kumar and another Vs. Oriental Insurance Company Ltd., and another) 2010 ACJ 242 in which the deceased was a boy aged 3 years and claimants were parents and tribunal has assessed notional income of Rs.15,000/- per annum and 1/3rd is deducted towards personal expenses of the deceased, adopted multiplier of 15 and awarded compensation of Rs.1,50,000/- plus Rs.2,500/- towards loss of estate and Rs.2,000/- towards funeral expenses and Appellate Court allowed Rs.2,25,000/- towards pecuniary damages, Rs.75,000/- for non-pecuniary damages and Rs.75,000/- towards future prospects. Award of Rs.1,54,500/- enhanced to Rs.3,75,000/-. SCCH-11 21 MVC 3237/2014
21) The learned counsel for petitioner relied upon by the decision of Hon'ble Supreme Court reported in Krishna Gopal and another V/s Lala and others in Civil Appeal No.7137/2013. In the said decision, Hon'ble Supreme Court relied upon decision reported in Lata Wadhwa and others V/s State of Bihar and others. In the said decision, Hon'ble Supreme Court has held that, the compensation determined for the children of all age groups could be double as in its view the determination made was grossly inadequate and the observation was further made that loss of children it recoupable and no amount of money compensate to the parents and the contribution of children will be taken at Rs.24,000/- per month and contribution of child taken at Rs.12,000/- per annum appears on the lower side. It is also observed in page No.30 of the judgment that, prior to the accident, it was fixed at Rs.50,000/- and it will be just to take notional income at Rs.30,000/- for taking the age of parents. In this case, the age of the petitioner No.2 who is mother is shown as 31 years. By following the principles laid down in the said decision, the notional income of deceased is taken at Rs.30,000/- SCCH-11 22 MVC 3237/2014 and by applying the multiplier of Rs.15,000/-, the compensation is Rs.4,50,000/- is awarded under the head of loss of dependency. The compensation of Rs.2000/- is awarded under the head of funeral expenses as per second schedule of Motor Vehicles Act and Rs.2,500/- is awarded under the head of loss of estate.
22) The calculation table stands as follows:-
1) Towards funeral expenses Rs. 2,000/-
2) Loss of estate Rs. 2,500/-
3) Loss of dependency Rs. 4,50,000/-
Total Rs. 4,54,500/-
Therefore, in total the petitioners are entitled to
compensation of Rs.4,54,500/- with simple interest @ 6% p.a. from the date of petition till complete realisation.
23) Since insurance policy was in force as on the date of accident, the respondent No2 is liable to pay the compensation to the petitioners. Hence, the petitioners are entitled for awarded compensation of Rs.4,54,500/- with simple interest at 6% p.a. from the date of petition till complete SCCH-11 23 MVC 3237/2014 realisation from respondent No.1. Accordingly, I answer this issue No.3 in the partly affirmative.
24) Issue No.4: In view of answers to issues No.1 to 3, I proceed to pass the following:
O R D E R The petition filed under Section 166 of M.V. Act is partly allowed with costs.
The petitioners are entitled for compensation of Rs.4,54,500/-with interest at the rate of 6% p.a. from the date of petition till complete realization from respondent No.2.
The respondent No.2 is hereby directed to deposit the entire awarded amount with accrued interest, within one month, from the date of this award.
On deposit of compensation amount, Rs.2,27,250/- is apportioned to the share of petitioner No.1 and Rs.2,27,250/- is apportioned to the share of petitioner No.2. SCCH-11 24 MVC 3237/2014
On deposit of apportioned amount of Rs.2,27,250/- to the share of petitioner No.1, Rs.1,00,000/- shall be deposited in the name of petitioner No.1 in any nationalized or scheduled bank for the period of 5 years, failing to furnish particulars, same shall be deposited at Karnataka Bank Limited, City Civil Court Branch, Bangalore and remaining amount of Rs.1,27,250/- shall be released to the petitioner No.1 by means of account payee cross cheque on proper identification and endorsement.
On deposit of apportioned amount of Rs.2,27,250/- to the share of petitioner No.2, Rs.1,00,000/- shall be deposited in the name of petitioner No.2 in any nationalized or scheduled bank for the period of 5 years, failing to furnish particulars, same shall be deposited at Karnataka Bank Limited, City Civil Court Branch, Bangalore and remaining amount of Rs.1,27,250/- shall be released to the petitioner No.2 by means of account payee SCCH-11 25 MVC 3237/2014 cross cheque on proper identification and endorsement.
Accrued interest on the awarded amount shall be released to the petitioner No.2 by way of account payee crossed cheque, on proper identification and verification.
Advocate fee is fixed at Rs.1,000/-. Draw award accordingly.
(Typed to my online dictation by the Stenographer and corrected by me, then pronounced in Open court on this 18th day of September 2015.) (GANAPATHI GURUSIDDA BADAMI) I ADDL.SMALL CAUSES JUDGE & XXVII ACMM ANNEXURE WITNESSES EXAMINED FOR PETITIONERS:
PW.1 - Mohanappa
PW.2 - Thayappa
DOCUMENTS MARKED FOR PETITIONERS:
Ex.P.1 - True copy of F.I.R
Ex.P.2 - True copy of Complaint
SCCH-11 26 MVC 3237/2014
Ex.P.3 - True copy of hand sketch map
Ex.P.4 - True copy of Panchanama
Ex.P.5 - True copy of IMV report
Ex.P.6 - True copy of inquest panchanama
Ex.P.7 - True copy of PM report
Ex.P.8 - True copy of Charge sheet
Ex.P.9 - Progress card
Ex.P.10 - Notarized copy of Aadhaar card Ex.P.11 - Notarized copy of ration card WITNESSES EXAMINED FOR RESPONDENTS :
RW.1 - H. Hanumantharayappa
RW.2 - Shivakumar
DOCUMENTS MARKED FOR RESPONDENTS :
Ex.R.1 - Authorization letter
Ex.R.2 - Driving licence extract
Ex.R.3 - Insurance policy
Ex.R.4 - Office copy of letter
Ex.R.5 - Postal acknowledgement
I ADDL.SCJ. & MACT.