Bangalore District Court
K) This Is A Case Of Negligence On The Part ... vs No on 24 October, 2016
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 24th day of October, 2016.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com.,LL.B.(Spl.),L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.2252/2011
1. Sri. Abbayappa @ Abbaiah, ..... PETITIONER
S/o. Venkataramappa,
Aged about 45 years,
R/o. No.263, New Thippasandra,
HAL, II Stage,
Bangalore-75.
Permanent Address:
No.10. B, Chodenahalli,
Malur,
Kolar-563180.
(By Sri. T.V. Ramesh, Adv.,)
V/s
1. Sri. T. Venugopal,
Major, ..... RESPONDENTS
S/o. Thimmarayappa,
R/o. Nidagatta Village,
Santhehalli Post,
Kasaba Hobli,
Malur Taluk,
2 MVC.No.2252/2011
SCCH-7
Kolar District.
2. The United India Insurance
Company Ltd.,
Regional Office,
Krishi Bhavana,
Hudson Circle,
Nrupathunga Road,
Bangalore-01.
(R-1 Exparte)
(R-2 By Sri. L. Sreekanta Rao, Adv.,)
JUDGMENT
It is pertinent to note here that, the present petition was disposed off on merits on 12.06.2012 and thereafter, as per the Judgment in M.F.A.No.7726/2012(MV) dated 14.12.2015 passed by the Hon'ble High Court of Karnataka, the said Judgment and Award dated 12.06.2012 passed by this Tribunal is quashed and the proceedings is remanded for consideration afresh and answer as to whether or not the Claimant/Injured was appointed/engaged as a loader by the owner insurer and pass orders after extending an opportunity of reasonable hearing to the parties including recording additional evidence, if any and in accordance with law and hence, the present petition is pending before this Tribunal for consideration and disposal.
2. The Petitioner has filed the present petition as against the Respondents No.1 and 2 under Section 166 of the Motor Vehicles Act, 1989, praying to award compensation of Rupees 3 MVC.No.2252/2011 SCCH-7 6,00,000/- towards special and general damages with interest and costs.
3. The brief averments of the Petitioner's case are as follows;
a) He was working as a Coolie, i.e., loader and unloader in a Tractor and Trailer bearing Registration No.KA-08-T-3868 and KA-08-T-3869 respectively under the 1st Respondent, who is the R.C. Owner of the vehicle. Accordingly, on 06.02.2011 on the instruction given his employer, the 1st Respondent, he, after loading eucalyptus trees leaves bundles into Trailer at 1st Respondent's village to Choodagondanahalli village for unloading the same by sitting in the Trailer of the Tractor. On the way at about 9.30 p.m., at Sethanayakanahalli village, due to rash and negligent driving of the Tractor by one Chandrashekar, the link rod linking between Trailer and Tractor was broken, due to that, the Trailer capsized and he caught inside the Trailer and sustained grievous injuries. This accident occurred due to carelessness and negligent driving of the Tractor and Trailer by its driver.
b) Immediately, he was taken to R.L Jalappa Hospital, Kolar, at where, fractures of both bones of left leg are noticed and treated on a conservative line. Thereafter, he is under treatment at Sri. Vinayaka Hospital, Malur, under Dr. Imran, an Orthopedic Surgeon. He is still under treatment as an outpatient. Inspite of 4 MVC.No.2252/2011 SCCH-7 the treatment, he has not come to normal position and he may disable in future.
c) He was working as a coolie, i.e., loader and unloader under the 1st Respondent. The 1st Respondent was paying monthly salary of Rupees 8,000/- to him.
d) After the accident, till today, he is bed ridden and lost his earnings. In future, he cannot do any avocation to earn his livelihood. So far, he has spent Rupees 50,000/- towards treatment, medicine, conveyance, etc.,
e) He is entitle for a sum of Rupees 6,00,000/- towards special damages and general damages.
f) The 1st Respondent being the R.C. Owner of the Tractor and Trailer and the 2nd Respondent being its insurer, both are jointly and severally liable to pay the compensation. Hence, this petition.
4. Though the notice was duly served on the Respondent. No.1, he was remained absent and hence, he is placed as exparte on 25.07.2011.
5. In response to the notice, the Respondent No.2 has appeared before this Tribunal through its Learned Counsel. But, initially, inspite of giving sufficient opportunities, the Respondent No.2 had not filed the written statement. Later, as per the Order 5 MVC.No.2252/2011 SCCH-7 dated 08.12.2011 passed on I.A.No.I, the written statement filed by the Respondent No.2 is taken on file.
6. The Respondent No.2 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) The alleged accident occurred on 06.02.2011 at about 9.30 p.m. under jurisdictional of Malur Police Station, Kolar District. The owner of the offending vehicle residing at Nidagatta Village, Malur Taluk and the offending vehicle insurance in United India Insurance Company Limited, Chintamani Branch. Hence, the claim petition is liable to be dismissed on the aspect of jurisdiction.
b) The vehicle in question, namely, Tractor Trailer bearing No.KA-08-T-3836-3869, was covered by Farmers Package Policy bearing No.071581/47/10/96/00000009, valid from the period from 08.05.2010 to 07.05.2011.
c) The insured/Respondent No.1 had violated an important condition in the Insurance Policy and has acted in contravention of the Motor Vehicles Act, 1988, by allowing the same to be used for a commercial purpose and the driver of the insured vehicle did not possess valid and effective driving license to drive the insured vehicle. The insured vehicle, namely, Agriculture Tractor, Trailer bearing No.KA-08/T-3868-3869, was insured with it solely and only for the purpose of agriculture purpose. The fact that, as per the belated complaint dated 6 MVC.No.2252/2011 SCCH-7 07.02.2011, the insured vehicle along with the attached Trailer was so plying from Nidagatta village to Choodagondanahalli village loaded with eucalyptus trees leaves bundles, clearly goes to prove that, the vehicle Tractor was used in contravention of the Motor Vehicles Act, 1988, by allowing the same to used for commercial purpose other than the purpose of agriculture and since being insured for the said purpose of agriculture operations only. Therefore, there is express breach of violation of the terms and conditions of the policy. Therefore, it is not liable to indemnify the first Respondent and claim petition as against it, is liable to be dismissed.
d) As per Section 134(c) of M.V. Act, 1988, it is mandatory duty of the Respondent No.1 to furnish the particulars of the policy of insurance, in addition, the details about the accident, but, however, the Respondent No.1 has failed to comply with the statutory obligations and as such, the claim petition as against it, is liable to be dismissed. It prays leave to file additional objections as and when, the Respondent No.1, submits the documents.
e) It prays and reserves its right to amend its statement of objections and further, it seeks leave of this Hon'ble Court to contest the claim of the Petitioner on all grounds including actionable negligence and quantum of compensation among other grounds. This plea is supported in terms of Condition No.2 of the policy and in view of the law declared by the Hon'ble Apex Court in 7 MVC.No.2252/2011 SCCH-7 AIR 1959 SC 1331, Para 16, as well as provided under Section 170 of the M.V. Act, 1988.
f) As per Section 158(6) of M.V. Act, 1988, it is mandatory duty of the concerned Police Station to forward all the relevant documents to the concerned insurer within 30 days from the date of the information by the Malur Traffic Police Station failed to forward the documents and not complied with the statutory demand.
g) The Petitioner has played fraud on this Hon'ble Court and have effectively misrepresented to the concerned Authorities and have manipulated the records as to have implicate the Tractor-Trailer bearing No.KA-08-T-3868-3869. In view of the fraud and misrepresentation, the petition is liable to be dismissed.
h) The Petitioner is put to strict proof that, he has not filed any other petition in any other Forum/Tribunal/Authorities on the same cause of action.
i) The policy so issued was in respect of the use and covering of the liability of the Insurance Company, whilst the vehicle, Tractor is being used for agricultural purpose only. Further, as per the Registration Certificate and as well the policy of insurance so issued in respect of the subject vehicle, Tractor, the seating capacity being one only, the one and only purpose authorized and entitled to travel in the said Tractor is the driver only and none else. The vehicle, Tractor-Trailer, at the material 8 MVC.No.2252/2011 SCCH-7 time of accident was being plied by Mr. Chandrashekar S/o. Venkateshappa, at Seethanayakanahalli Village and the Petitioner as per complaint, the Petitioner was traveling as an occupant in the said Tractor-Trailer, clearly goes to prove that, the vehicle Tractor was used in contravention of the Motor Vehicles Act, 1988, by allowing the same to used for commercial purpose, other than the purpose of agriculture and since being insured for the said purpose of agriculture operations only. The said vehicle, Tractor- Trailer is not constructed or adopted to carry any persons, as in the present case, wherein, the Petitioner was said to be traveling as an unauthorized passenger sitting seated on the eucalyptus trees leaves bundles loaded in the Trailer, at the material time of accident. Therefore, it is not liable to indemnify the first Respondent and claim petition as against it, is liable to be dismissed.
j) The Respondent No.1, having sought and opted for coverage of insurance and not paid any premium as to cover the risk of employees by paying additional premium. The premium so paid and the cover sought are in respect of only own damage and third party. As such, in view of the fact that, the Respondent No.1 had not sought or had not paid any premium to cover the risk of employees, it is not liable to pay any compensation to the Petitioner.
k) This is a case of negligence on the part of the Petitioner, while the Petitioner was traveling as an unauthorized passenger seated on the eucalyptus trees leaves bundles loaded 9 MVC.No.2252/2011 SCCH-7 on the Trailer and as such, the Petitioner is not entitled to any compensation from it. In view of this factual situation, the petition is to be dismissed in limine. Hence, the Petitioner be put to strict proof of the same. However, if the Hon'ble Court were to award compensation to the Petitioner, the same is to be directed to be paid by the owner/driver of Tractor-Trailer bearing No.KA-08-T- 3868/3869. This is evident from the Police records, particularly, the complaint, wherein, it clearly goes to prove that, the accident had occurred while the Petitioner was traveling as an occupant seated on the eucalyptus trees leaves bundles loaded in the Trailer. Therefore, the petition is liable to be rejected in limine.
l) The amount of Rupees 6,00,000/- with interest and costs claimed by the Petitioner in the petition is more excessive, exorbitant and exaggerated and the Petitioner is not entitled for the same from it. Hence, prayed to dismiss the petition with costs.
7. Based on the above said pleadings, my Learned Predecessor-in-Office has framed the following Issues;
ISSUES
1. Whether the Petitioner proves that on 06.02.2011 at about 9.30 p.m. on instruction of his employer after loading eucalyptus trees leaves bundles into Trailer and Tractor bearing Reg.No.KA-
08-T-3868 & KA-08-T-3869 in order to go Choodagondanahalli Village, on the way to Seethanayanakanahalli Village, Malur Taluk, Kolar District, within the jurisdiction of Malur Police Station, at 10 MVC.No.2252/2011 SCCH-7 that time driver of the said Tractor and Trailer bearing Reg.No.KA-08-T-3868 & KA-08-T-3869 drove the said vehicle in rash and negligent manner on account of the same link rod linking between Trailer and Tractor was broken due to Trailer capsized and Petitioner caught inside? If so, whether the Petitioner proves that he sustained grievous injuries was due to alleged accident?
2. Whether the Petitioner proves that he is entitled for compensation? If so, how much and from whom?
3. What Order or Award?
8. In order to prove his case, the Petitioner himself has been examined as P.W.1 and also examined two witnesses as P.W.2 and P.W.3 by filing the affidavits as their examination-in- chief and has placed reliance upon Ex.P.1 to Ex.P.11. On the other hand, the Respondent No.2 has examined its Assistant Managers as R.W.1 and R.W.2 by filing the affidavits as their examination-in-chief and has placed reliance upon Ex.R.1 to Ex.R.5.
9. Heard the arguments. The Learned Counsel appearing for the Respondent No.2 has filed the written arguments.
10. In support of the submission, the Learned Counsel appearing for the Petitioner Sri. T.V. Ramesh has placed reliance upon the decisions reported in, 11 MVC.No.2252/2011 SCCH-7 (2001) 8 Supreme Court Cases 56 (Nagashetty V/s. United India Insurance Co. Ltd., and Others), wherein, it is observed that,
12. The policy is for a Tractor. The "effective driving licence" is thus for a Tractor. The restriction on a learner driving the Tractor when used to transporting goods, shows that, the policy itself contemplates that, the Tractor could be used for carriage of goods. The Tractor by itself could not carry extra premium for a Trailer. The restriction placed on a person holding a permanent license to drive a Tractor can drive even when the Tractor is used for carrying goods. When the policy itself so permits, the High Court was wrong in coming to the conclusion that, a person having a valid and effective driving license to drive a Tractor would become disqualified to drive the Tractor if a Trailer was attached to it.
11. In support of the submission, the Learned Counsel appearing for the Respondent No.2 Sri. L. Sreekanta Rao has placed reliance upon the decisions reported in,
i) M.F.A.No.8921/2009 (WC) C/w M.F.A.No.8922/2009 (WC) High Court of Karnataka, Bangalore (National Insurance Company Limited V/s. Shivaraj and Another and National Insurance Company Limited V/s. Ramesh and Another), wherein, it is observed that,
6. The case of the appellant is that, the vehicle in question was used for non-agricultural purpose. The said fact could be seen from the complaint made by the insured himself on 12 MVC.No.2252/2011 SCCH-7 22.05.2005 that, when claimants were returning after unloading bricks the vehicle met with an accident. The same stand has been reiterated in the legal notice issued to Respondent No.2 on 18.05.2005. This fact that, while the claimants were returning to village after unloading bricks in the Housing Board has been admitted by the claimants in their evidence before the Commissioner. The policy issued to Respondent No.1 is farmer's package policy. As per the policy it covers the risk of coolies engaged for agricultural purpose only. The risk of coolies engaged for agricultural purpose in the tractor is covered for compensation as per the judgment of the Division Bench of this Court in the case of National Insurance Company Ltd., Vs Sri Maruthi and Others reported in ILR 2011 Kar.4139. The said decision is not applicable to the instant case as the vehicle in question was used for non agricultural i.e., transporting bricks.
7. Secondly, as per the definition of Central Motor Vehicles Rules the Tractor-trailer is to be used for transporting material relating to agriculture only and not for any other purpose. In the instant case, the vehicle in question was used for transporting bricks which is not an agricultural purpose. Therefore, the insurer is not liable to indemnify the owner and pay compensation. However liability is to be fastened against Respondent No.1, who is the owner of the vehicle as per the judgment of this Court referred to above in MFA No.10478/2008 and other connected matters.
ii) M.F.A.No.40/2010 (MV) High Court of Karnataka, Bangalore (National Insurance Company Limited V/s. Smt. Bellamma and Others), wherein, it is observed that, 13 MVC.No.2252/2011 SCCH-7
8. On the basis of the facts, the provisions which are applicable to this case are Rule 100 of the Karnataka Motor Vehicle Rules 1989.
According to Rule 100, no person shall be carried in nay goods vehicle provided that, the owner or the hirer or a bonafide employee of the owner or the hirer of the vehicle carried free of charge or a police officer in uniform traveling on duty may be carried in a goods vehicle, the total number of persons so carried in the light transport goods vehicle having registered laden weight less than 990 kgs not more than one, in any other light transport goods vehicle not more than three and in any goods vehicle not more than seven persons. Whether these persons provided under Rule 100 whether they can travel in the cabin or in the carriage has been interpreted in Cholleti Bharatamma's case stated supra where it has been held that, persons who are permitted as per Rule 100 should travel in the cabin and not in the carriage, because carriage is meant for goods and persons are not classified as goods for specific purpose. Even to travel in the cabin Sub-Rule4 shows that, unless an area of not less than 0.40 square meter of the floor of the vehicle is kept open for each person. In view of the provisions of Sub-Rule 4 which clarifies the position that, even in the cabin no person can share the seat meant for driver. If he is permitted to sit depending upon the laden weight of the vehicle for which their shall be provision for sitting from one person to another person. When such being the position, the question as to that, whether he could travel o the goods in the carriage has been answered that, it is impossible which cannot be considered which is in contravention of Rule 100 and also the conditions stipulated in the policy. By advertently or inadvertently even if the policy premium is collected to cover one or two persons 14 MVC.No.2252/2011 SCCH-7 as a package policy, that, cannot legalize to travel in the carriage. Under this circumstance, provisions ether in the Act or Rules which are ultimate and undisputable. Accordingly, I find force in the case of the appellant and evidence of PW2 and Ex.P.3-Complaitn and FIR which undisputedly and unequivocally proves that, the deceased Shamanna was traveling on the goods in the carriage which is impermissible.
Accordingly, liability cannot be fastened on the Insurance Company. Hence the insurance company is discharged from liability. Award is to be satisfied by the owner.
iii) M.F.A.No.2305/2008 (MV) High Court of Karnataka, Bangalore (United India Insurance Company Limited V/s. Hanumakka and Others), wherein, it is observed that,
7. In the claim petition, the claimants contended that, at the time of accident, the deceased was proceeding in the trailer attached to the tractor as an employee of the insured and on this basis it was contended that, risk of such employee carried in the vehicle is statutorily required to be covered under the policy. The vehicle involved in the accident is a tractor attached with a trailer. Now in the light of the decision of the Division bench in the case of national Insurance Company V/s Maruthi (2011 (2) KCCR 241) it is clear that, a tractor attached to the trailer is a goods vehicle and it is meant for carrying on agricultural operations, otherwise permitted to be used for any other purposes. In the case on hand, it is not the contention of the insured that, the tractor-trailer was permitted to be used for any other purposes. The policy issued by the appellant is also a miscellaneous and special type vehicle and it is an agricultural package policy. If once a 15 MVC.No.2252/2011 SCCH-7 tractor attached with the trailer is termed as a goods carriage, an employee carried in such goods carriage is statutorily required to be converted in the policy issued in terms of Section 147. In her evidence P.W.1-Hanumakka, has reiterated her stand that, the deceased was proceeding in the trailer attached to the tractor as an employee of the insured. In the cross- examination, P.W.1 has stated that, at the time of accident, she was also sitting in the trolley attached to the tractor along with her husband. According to her, at that time, they were proceeding along with pooja articles in the trailer,. In the further cross-examination, it is elicited that, the trolley attached to the tractor was empty. However, she has again turn around and has stated that, at that time, the trolley was filled with sand. She has admitted the suggestion that, at the time of accident they were proceeding to bring Dasara Pooja articles. It is further elicited from her that, sand and other articles were carried in the trolley. The answer elicited from P.W.1 in the cross-
examination, gains corroboration from the contents of the complaint lodged by her before the Police. Even in the first Information Report, copy of which is marked as Ex.P.1, registered on the basis of the complaint of P.W.1, it is clearly stated that, at the time of accident, the deceased was proceeding in the trailer attached to the tractor for purchasing the dasara pooja articles. Thus, from the above, it is clear that, at the time of accident, the deceased was not proceeding as an employee of the insured. On the other hand, they were proceeding in the vehicle to buy dasara pooja articles and there was also no acceptable evidence to establish that, the deceased was an employee of the insured. The aforesaid evidence further establishes that, at the time of accident, the vehicle was not being used for agricultural operations. On the other 16 MVC.No.2252/2011 SCCH-7 hand, it was being used for carrying persons to bring pooja articles for dasara festival.
8. The insurer has produced Ex.R.2, the driving licence extract in respect of V.Manju. In the first Information Report, it is clearly sated that, Manjuanth son of Venkatappa, was the driver of the vehicle at the time of accident. Manjunath is none other than the son of the owner of the vehicle namely Venkatappa. As per Ex.R.2, the driver possessed a licence to drive motor cycle and light motor vehicle non-
transport only. The licence was issued on 17.02.2006 and valid up to 16.02.2006. From this it is very clear that, the driver did not possess a licence to drive a transport vehicle. The Tribunal while considering this aspect of the matter, has held that, since the unladden weight of the tractor-trailer does not exceed the weight mentioned in the definition or light motor vehicle under Section 2 (21) of the Motor Vehicles Act, the vehicle in question was a light motor vehicle and since the light motor vehicle includes the transportation vehicle also, he was competent to drive the said vehicle. This finding recorded by the Tribunal is perverse, illegal and is contrary to the provisions of law as well as the decisions of the Apex Court and this Court. No doubt, the definition of light motor vehicle found in Section 2(21) includes a transport vehicle also, if it answered the other condition regarding weight of the vehicle, however, as per Section 10(2) of M.V. Act, while issuing the driving licence, the Authorities are required to specify the category of the vehicles permitted to drive. There is a clear prohibition under Section 3 of the Motor Vehicles Act, for a person to drive a transport vehicle unless his driving licence specifically authorizes him to drive such transport vehicle. Ex.R.2 the extract of driving licence of the driver clearly specifies that, the licence is authorized to 17 MVC.No.2252/2011 SCCH-7 drive only a light motor vehicle, which is a non- transport vehicle. The definition of light motor vehicle takes in its hold both transport and non- transport vehicle. The only criterion is the gross or unladden weight of the vehicle for distinguishing the vehicle from light motor vehicle and a heavy motor vehicle. Nevertheless, when the authority while issuing the driving licence has specifically mentioned that, the licensee is authorized to drive a light motor vehicle which is a non-transport vehicle, as a corollary the licence specifically stated that, the licensee is not authorized to drive a light motor vehicle which answers the description of a transport vehicle. Therefore, the licence issued in favour of the driver of the vehicle in question authorizes him only to drive a light motor vehicle which is a non-transport vehicle and since the vehicle in question, the tractor with trailer answers the description of the goods carriage, is a transport vehicle, as such, the driver of the vehicle did not possess a valid and effective driving license at the time of accident, to drive the class and type of vehicle involved in the accident.
9. As noticed supra, the driver of the vehicle at the time of accident, was none other that the son of the insured. This indicates that, the owner of the vehicle had permitted his son to drive the vehicle despite knowing that, his son does not possess a valid licence to drive the tractor-trailer. Thereby the insured has deliberately violated the terms and conditions of the policy by permitting a person not possessing a valid and effective driving license to drive the vehicle in question and has also permitted the use of tractor-trailer for a purpose other than agricultural operations. The deceased carried in the vehicle was not an employee of the insured at that, time,. Thus, the insured ahs violated all 18 MVC.No.2252/2011 SCCH-7 the major terms and conditions of the policy, as such, the insured is not liable to indemnify the insured in respect of the claim arising out of the death of the person carried in the said vehicle In that, view of the matter, the Tribunal is not justified in fastening the liability to satisfy the award on the insurer. The Learned Counsel for the Respondent-claimant relying on the several decisions of the Supreme Court contended that, since the provisions of M.V. Act requires a compulsory insurance to cover the risk of the third parties, in order to protect the interest of third parties, it is necessary to direct the insurer to satisfy the award and then to recover the same from the insured. No doubt in hoast of decisions the Apex Court has directed the insurer to satisfy the award even after finding that, the insurer is not liable to indemnify the insured and has permitted the insurer to recover the same from the insured. However, in all such cases, the Apex Court has exercised its extraordinary jurisdiction under Articles 136 and 142 of the constitution of India. However, this Court has no such extraordinary power, as such, it is not proper for this Court to direct the insurer otherwise not liable to indemnify the insured to first satisfy the award and then to recover the same from the insured. In the case on hand, the deceased was not even a third party, as according to the claimant, the deceased was proceeding in the vehicle as an employee of the insured, while the finding of this court is that, he was traveling as a passenger in the goods vehicle. In this view of the matter the finding of the Tribunal that, insurer is liable to satisfy the award is perverse and illegal, as such it cannot be sustained. However, it is made clear that, the claimants are entitled to recover the compensation amount as quantified by the Tribunal from the owner of the offending vehicle, 19 MVC.No.2252/2011 SCCH-7 since he is vicariously liable for the acts of the driver.
12. My answers to the above said Issues are as follows;
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative,
The Petitioner is entitled
for compensation of
Rupees 1,88,000/- with
interest at the rate of 6%
p.a. (excluding future
medical expenses of
Rupees 10,000/-) from the
date of the petition till the
date of payment, from the
Respondent No.1.
Issue No.3 : As per the final Order,
for the following;
REASONS
13. ISSUE NO.1 :- The P.W.1, who is the Petitioner has
stated in his examination-in-chief that, he was working as a coolie i.e., loader and unloader in a Tractor and Trailer bearing Registration No.KA-08-T-3868 and KA-08-T-3869 respectively under the Respondent No.1, who is the R.C. Owner of the said vehicle and accordingly, on 06.02.2011, on the instructions given by his employer the Respondent No.1, himself after loading eucalyptus trees leaves bundles in to Trailer at Respondent No.1's 20 MVC.No.2252/2011 SCCH-7 Village to Choodagondahalli Village for unloading the same by sitting in the Trailer of the Tractor at about 9.30 p.m., at Seethanayakanahalli Village and due to rash and negligent driving of the Tractor by one Chandrashekar, the link rod linking between the Trailer and Tractor was broken and due to that, the Trailer capsized and he caught inside the Trailer and sustained grievous injuries. He has further stated that, immediately, he was shifted to R.L. Jalappa Hospital, Kolar and in the Hospital, the injuries are noticed, i.e., swelling, tenderness and abnormal mobility of left leg and multiple abrasions over left hand. He has further stated that, in the Hospital, after taking X-ray of left leg, fracture both bone of the left leg tibia and fibula were confirmed and he was treated on conservative line by applying POP Cast and thereafter, he followed the treatment at Nallampatti an Ayurvedic Centre at Tamil Nadu. He has further stated that, this accident occurred due to carelessness, rash and negligent driving of Tractor and Trailer by its driver and the Malur Police have registered a case as against the driver of the Tractor and Trailer.
14. The P.W.1 in his cross-examination has also clearly stated that, since, one year, he was working under Venugopal, i.e., the Respondent No.1 and around two tons of Nilagiri leaves were loaded to the Tractor at the time of accident and the said leaves were loaded up to Trailer level and he was sitting in the Trailer upon the Nilagiri leaves at the time of accident and he cannot say exact speed of the vehicle prior to the accident and the Choodagondanahalli is situated at a distance of 7 mile from the house of the Respondent No.1.
21 MVC.No.2252/2011SCCH-7
15. It is further pertinent to note here that, the Petitioner has examined the Respondent No.1 as P.W.3, who has stated in his examination-in-chief that, he is working as an agriculturist and at the time of accident, he was a registered owner of the Tractor and Trailer bearing Registration No.KA-08-T-3868 and KA- 08-T-3869 and at the time of accident, i.e., on 06.02.2011, Chandrashekar was a driver and Abbayappa was a coolie of the said Tractor and Trailer. He has further stated that, at the time of accident, eucalyptus leaves were transported in the said Tractor and Trailer to his relative for the agriculture purpose and the Petitioner was doing agricultural work under him at the time of accident. He has further stated that, after the accident, he lodged a complaint before the Police, wherein, he has stated in the complaint that, the Petitioner was working as a coolie under him in his Tractor and Trailer. He has further stated in his cross- examination that, he has given a complaint before the Police in respect of the accident in question and 3 months before the accident, the Petitioner was working with him and at the time of accident, his Tractor and Trailer was moving on the public road with a load of Nilagiri leaves from Nidagatta to Choodagondanahalli to Krishnappa for his use of Agricultural purpose and not his agriculture use and at the time of accident, the Petitioner was sitting in the Trailer on Nilagiri leaves. From the said evidence of P.W.3, it is further made crystal clear that, at the time of accident, the Petitioner was working as a coolie under the Respondent No.1 and the Petitioner was traveling in the offending Tractor and Trailer and the Petitioner was traveling by sitting on the eucalyptus trees leaves at the time of accident and the 22 MVC.No.2252/2011 SCCH-7 Respondent No.1 was a R.C. Owner of the offending Tractor and Trailer bearing Registration No.KA-08-T-3868 and KA-08-T-3869.
16. The R.W.1, who is the Assistant Manager of the Respondent No.2 has stated in his examination-in-chief that, at the time of accident, the insured vehicle was transporting Nilagiri leaves and the Petitioner having sustained injuries while proceeding by sitting on the Nilagiri leaves bundles and the Respondent No.1 is the owner of the said offending Tractor and Trailer bearing Registration No.KA-08-T-3868 and KA-08-T-3869. He has further clearly admitted in his cross-examination that, as per the contents of FIR, it is mentioned that, the Respondent No.1 was proceeding with eucalyptus leaves bundles, which is belonging to his friend and as per the Police records, it is mentioned that, the Petitioner was proceeding in a Trailer as a coolie. The R.W.2, who is also the Assistant Manager of the Respondent No.2, has also stated in his cross-examination that, as per the Police Records, the Petitioner was traveling in the Trailer and as per the Police Records, i.e., FIR and Charge Sheet, the Petitioner was traveling as a coolie in the Trailer.
17. The Petitioner has produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Charge Sheet and Ex.P.4 Mahazar.
18. The contents of Ex.P.1 FIR and Ex.P.2 Complaint clearly disclosed that, the Respondent No.1, who is a R.C. Owner of the offending Tractor and Trailer bearing Registration No.KA- 08-T-3868 and KA-08-T-3869 had lodged Ex.P.2 Complaint before 23 MVC.No.2252/2011 SCCH-7 the Malur Police as against the driver of the offending Tractor and Trailer by alleging that, Chandrashekar S/o. Venkatesh was a driver under him in respect of the said offending Tractor and Trailer and on 06.02.2011 at night eucalyptus trees leaves were transported in his Tractor and Trailer to his friend's village, which is situated at Choodagondanahalli Village and at 9.30 p.m., the driver of his Tractor had driven it with very high speed in a rash and negligent manner and due to which, the Tractor and Trailer turtle down and due to which, his driver Chandrashekar and coolie Sri. Abbayappa S/o. Venkatramappa, i.e., the Petitioner, had sustained fracture injuries on their legs and he gathered the said accidental information through phone and gave first-aid treatment to them at Government Hospital and as per the advice of Doctors, they were shifted to Jalappa Hospital, Kolar and as such, he prayed to take necessary legal action as against the driver and based on Ex.P.2 Complaint, the said Police have registered a Criminal case as against the driver of the Tractor and Trailer for the offences punishable under Section 279 and 337 of IPC under Crime No.21/2011. From the contents of the said Ex.P.1 FIR and Ex.P.2 Complaint, it clearly goes to show that, at the time of accident, the eucalyptus trees leaves were transporting in the Trailer, wherein, the Petitioner was sitting as a coolie in the said Trailer and the said offending Tractor and Trailer were belonging to the Respondent No.1.
19. It is also clear from the contents of Ex.P.4 Mahazar that, the offending Tractor and Trailer bearing Registration No.KA-
24 MVC.No.2252/2011SCCH-7 08-T-3868 and KA-08-T-3869 are very much involved in the said road traffic accident.
20. The contents of Ex.P.3 Charge Sheet disclosed that, on 06.02.2011 at 9.30 p.m., eucalyptus trees leaves were transported in the offending Tractor and Trailer bearing Registration No.KA- 08-T-3868 and KA-08-T-3869, which was driven by its driver Chandrashekar and the Petitioner was sitting on the said eucalyptus trees leaves, which was transporting in the said offending Trailer and due to the negligent act of the said Tractor and Trailer by its driver, the road traffic accident was taken place, when it was proceeding from Nidagatta Village to Choodagondanahalli Village and due to the said impact, the Petitioner fell down from the Trailer and had sustained severe grievous injuries on his left leg and simple injury on his left head.
21. The Respondent No.2 has also produced Ex.R.3 Complaint, Ex.R.4 Charge Sheet and Ex.R.5 'B' Register Extract.
22. From the above said material evidence, both oral and documentary, one thing is clear that, at the time of accident, the eucalyptus trees leaves were transporting in the offending Tractor and Trailer bearing Registration No.KA-08-T-3868 and KA-08-T- 3869 and the said offending Tractor and Trailer was owned by the Respondent No.1 and the Petitioner was traveling as a coolie under the Respondent No.1 by sitting on the eucalyptus trees leaves, which were transporting in the offending Tractor and Trailer bearing Registration No.KA-08-T-3868 and KA-08-T-3869 25 MVC.No.2252/2011 SCCH-7 and the said offending Tractor and Trailer bearing Registration No.KA-08-T-3868 and KA-08-T-3869 was proceeding at the time of accident from Nidagatta Village towards Choodagondanahalli Village, i.e., from the land of the Respondent No.1 to the land of his friend.
23. It is clear from the contents of Ex.P.1 FIR and Ex.P.2 Complaint that, at the time of accident, the driver of the Tractor and Trailer bearing Registration No.KA-08-T-3868 and KA-08-T- 3869 was driving it with very high speed, rash and negligent manner and due to his negligence itself, the said road traffic accident was taken place and the Petitioner had sustained grievous injuries, when he was proceeding on the said offending Trailer by sitting on the eucalyptus trees leaves.
24. The contents of Ex.P.4 Mahazar and Ex.P.5 IMV Report further clearly disclosed that, the said offending Tractor and Trailer bearing Registration No.KA-08-T-3868 and KA-08-T-3869 are very much involved in the said road traffic accident and the entire negligence is on the part of the driver of the offending Tractor. The damages caused to the offending Tractor and Trailer are clearly mentioned in Ex.P.5 MVI Report, which disclosed the terrific impact of the said road traffic accident. It is also clearly mentioned in Ex.P.5 MVI Report that, the said accident was not occurred due to the mechanical defects of the said offending Tractor and Trailer.
26 MVC.No.2252/2011SCCH-7
25. The contents of Ex.P.6 Wound Certificate disclosed that, with a history of road traffic accident, the Petitioner was brought to R.L. Jalappa Hospital and Research Center, Kolar, on 07.02.2011 at 12.30 a.m. and on examination, it is found that, he had sustained injuries, i.e., swelling, tenderness and abnormal mobility present over left leg and X-ray shows fracture of both bones of left leg and multiple abrasion over left hand i.e., one grievous injury and one simple injury.
26. The contents of Ex.P.7 Old OPD and Ex.P.18 Old X-ray Film with report, which is produced by the P.W.2, clearly disclosed that, as an outpatient, he took treatment to the said accidental injury at R.L. Jalappa Hospital, Kolar. The P.W.2 has also clearly stated in his examination-in-chief that, he has examined and treated the Petitioner with alleged history of road traffic accident, which occurred on 06.02.2011 and he sustained open type fracture of left leg both tibia and fibula, which disclosed that, he was admitted in the R.L. Jalappa Hospital, Kolar, wherein, X-rays were taken, examination were done and injuries were confirmed. He has further clearly stated in his cross-examination that, the Petitioner has taken treatment in the said Hospital as an outpatient.
27. From the said medical evidence, it is made crystal clear that, in the said road traffic accident, the Petitioner had sustained one grievous injury and one simple injury.
27 MVC.No.2252/2011SCCH-7
28. The contents of Ex.P.3 Charge Sheet disclosed that, since during the course of investigation, it is found that, due to very high speed, rash and negligent manner of driving of the offending Tractor and Trailer bearing Registration No.KA-08-T- 3868 and KA-08-T-3869 itself, the said road traffic accident was taken place on 06.02.2011 at 9.30 p.m., near PPW Bricks Factory, Seethanayakanahalli Village, when he was proceeding from Nidagatta Village towards Choodagondanahalli Village for transporting of eucalyptus tress leaves in the offending Trailer and due to which, the Tractor and Trailer turtle ups and down and the Petitioner, who was sitting on the eucalyptus trees leaves, which were transporting in the offending vehicle fell down and had sustained grievous injuries on his left leg and simple injury on his left side head and after thorough investigation, the Investigating Officer has filed a charge sheet as against the driver of the Tractor and Trailer for the offences punishable under Section 279 and 338 of IPC.
29. From the above said material evidence, both oral and documentary, it is clearly proved that, the offending Tractor and Trailer bearing Registration No.KA-08-T-3868 and KA-08-T-3869, which was owned by the Respondent No.1 are very much involved in the said road traffic accident, wherein, the Petitioner had sustained one grievous injury and one simple injury, when he was traveling in the offending Tractor and Trailer bearing Registration No.KA-08-T-3868 and KA-08-T-3869 by sitting on the eucalyptus trees leaves, which were transporting in the said offending Trailer, as a coolie under the Respondent No.1, which was proceeded from 28 MVC.No.2252/2011 SCCH-7 Nidaghatta Village to Choodagondanahalli Village, i.e., from the land of the Respondent No.1 to the land of his friend. Accordingly, I answered Issue No.1 in the Affirmative.
30. ISSUE NO.2 :- The P.W.1 has not produced any authenticated documents to consider his actual age at the time of accident. But, the above said Police and medical documents clearly disclosed that, at the time of accident, the Petitioner was 40 years old. Hence, the age of the Petitioner is considered as 40 years at the time of accident.
31. The P.W.1 has stated that, he was an agricultural coolie under the first Respondent and he was getting monthly salary of Rupees 8,000/- per month from the Respondent No.1. The Petitioner has not produced any authenticated documents to consider his income. However, while answering Issue No.1, this Tribunal has already observed and come to the conclusion that, the Petitioner was working as a coolie under the Respondent No.1. The P.W.3, who is the Respondent No.1 has stated in his examination-in-chief that, at the time of accident, i.e., 06.02.2011, Chandrashekar was a driver and Abbyappa, who is the Petitioner, was a coolie in the said Tractor and Trailer and the Petitioner was doing agricultural work under him at the time of accident and since 4 years before the accident, the said Abbyappa, the Petitioner was working under him. It is also clear from the said oral evidence of P.W.3 that, at the time of accident, the Petitioner was working as a coolie under the Respondent No.1 in the Tractor and Trailer bearing Registration No.KA-08-T-3868 and KA-08-T-
29 MVC.No.2252/2011SCCH-7 3869. But, the P.W.3 has not stated anything about the wages or salary paid by him to the Petitioner at the time of accident. From this, it is made crystal clear that, no acceptable material evidence is available on record on behalf of the Petitioner to consider his income at the time of accident. However, the accident was taken place on 06.02.2011 and during the said period, a coolie can get minimum wages of Rupees 150/- per day and by considering the same, in the absence of material evidence, this Tribunal feels that, it is just, proper and necessary to consider the notional income of the Petitioner is of Rupees 4,500/- per month at the time of accident. Hence the notional income of the Petitioner is considered as Rupees 4,500/- per month at the time of accident.
32. The P.W.1 has stated that, in R.L. Jalappa Hospital, Kolar, he was treated on conservative line by applying POP Cast and thereafter, he availed the treatment at Nallampatti Ayurvedic Centre at Tamil Nadu. By considering the oral evidence of P.W.1 and P.W.2 coupled with the contents of Ex.P.6 Wound Certificate and Ex.P.7 Out Patient Records, this Tribunal has already observed and come to the conclusion that, in the said road traffic accident, the Petitioner had sustained swelling tenderness and abnormal mobility of left leg and multiple abrasions over left hand i.e., one grievous injury and one simple injury and he took treatment to the said accidental injuries at R.L. Jalappa Hospital and Research Centre as an outpatient. It is pertinent to note here that, the P.W.2, who is a treated Doctor, has clearly stated in his examination-in-chief that, the Petitioner went against medical advice for non-surgical Rx of fractures from traditional bone 30 MVC.No.2252/2011 SCCH-7 setters (natti treatment). It is further pertinent to note here that, as per Ex.P.6 Wound Certificate and Ex.P.7 Out Patient Record, the Petitioner had sustained open type I displaced fracture BB mid 3rd left leg and at the time of giving treatment as an inpatient at R.L. Jalappa Hospital and Research Centre, the severe of injury is explained to the Petitioner, but, he was not ready for surgery and he wants conservative treatment for fracture from traditional bone setter and hence, he was discharged as against medical advice, however consequences of stiffness, shortening of limb length discrepancy, difficulties and activities explained to the Petitioner and it is also advised the Petitioner for surgery CRIF with IMIL nailing with left tibia. From this medical evidence, it is made crystal clear that, as against the medical advice, the Petitioner was discharged from R.L. Jalappa Hospital. Even, the Petitioner has not produced any medical documents relating to Nalampatti Ayurvedic Center at TamilNadu to show that, after discharge from R.L. Jalappa Hospital, he took Ayurvedic treatment to the said accidental injuries. Based on this, it can be safely held that, the Petitioner has not taken proper and timely required treatment to the said accidental injuries.
33. The P.W.1 has stated that, inspite of the treatment, he has not come to normal position and now, he cannot sit, squat, climb the stairs, lift any weights and do any work on his left leg and there is a disability and impediment in his left leg. He has further stated that, the left tibia is mal-united and there is a severe pain in his left leg till today. He has further stated that, after the accident, till today, he is bed ridden and lost his earnings 31 MVC.No.2252/2011 SCCH-7 and in future, he cannot do the agricultural labour work, which is a hard labouring one due to disability and impediment and he is physically and functional disabled.
34. The P.W.2, who is a treated Doctor has stated in his examination-in-chief that, on 15.11.2011, he has examined the Petitioner for the assessment of disability, clinically and with X- rays and he complaints of pain in left knee and left ankle, shortening of left leg, difficulty to walk for long time difficulty in climbing stair case, sitting cross leg and using Indian type of toilet. He has further stated that, on examination, he has shortening of left lower limb by 7 cms, restriction of range of motion of left knee and left ankle, he has decreased muscle power of left leg and deformity of left leg at mid 1/3rd. He has further stated that, X-ray of the left leg showing mal-united fracture, tibia and fibula with decreased ankle joint space. He has further stated that, by using modified Kesslers Formula and Guidelines and Gazette Notification Regn.No.DL.33004/99, June, 13th 2001, issued by Ministry of Social Justice, Government of India, the disability of left lower limb is 50% and whole body is 25%. He has further stated that, in view of the said disability from left lower limb to injured and the injured being agricultural coolie by occupation finds difficulty in dong and performing his previous occupation. The P.W.2 has produced Ex.P.9 Recent OPD Card, Ex.P.10 Recent X-ray film with Radiological Report and Ex.P.11 Disability Certificate.
32 MVC.No.2252/2011SCCH-7
35. But, based on the above said oral evidence of P.W.1 and P.W.2 coupled with the contents of the above said medical documents, it cannot be believed and accept that, due to the said accidental injuries, the Petitioner is suffering from disability of left lower limb 50% and whole body is 25%, as, while discussing above, this Tribunal has already come to the conclusion that, the Petitioner is discharged from R.L. Jalappa and Research Centre as against the medical advice and even he has not produced the medical documents relating to Nalampatti Ayurvedic Center, Tamilnadu to show that, after discharge from R.L. Jalappa and Research Centre, he took Ayurvedic treatment to the accidental injuries without any delay. Further, the P.W.2 in his cross- examination has clearly stated that, the Petitioner has not attended their Hospital from 07.11.2011 to 15.11.2011 and the Petitioner got discharged against medical advice. He has further clearly admitted that, at the initial stage, they have not measured lower limbs and he cannot say the Petitioner had taken treatment from the traditional bone setter for resulting mal-union. If the Petitioner had taken proper, required and timely treatment to the said accidental injuries as per the advice of the treated Doctors, he is not suffering from permanent disability to an extent of 25% to the whole body as stated by the P.W.2 in his evidence. Furthermore, the P.W.2 has not specifically assessed the permanent physical and functional disability of the Petitioner, which is arising out of the said accidental injuries by considering his nature of work. Therefore, the said extent of 50% disability of left lower limb and 25% to the whole body as stated by the P.W.2 cannot be believed and accept.
33 MVC.No.2252/2011SCCH-7
36. However, in the said road traffic accident, the Petitioner had sustained swelling, tenderness and abnormal mobility of left leg, multiple abrasions over left hand, i.e., one grievous injury and one simple injury and immediately, he took treatment to the said accident al injuries at R.L. Jalappa Hospital and he was 40 years old and he was a coolie at the time of accident. By considering the same, this Tribunal feels that, due to the said accidental injuries, the Petitioner is definitely suffering from permanent physical and functional disability to some extent. By considering the same, it is considered that, due to the said accidental injuries, the Petitioner is suffering from permanent physical and functional disability of 15% to the whole body, which is believable and acceptable one. Hence, the Petitioner is entitled for compensation under the following heads.
37. As this Tribunal has already come to the conclusion that, the permanent physical and functional disability of the Petitioner is of 15%. This would certainly come in the way of the future life of the Petitioner and thereby, his income to that extent would be definitely reduced. Therefore, the Petitioner is entitled for future loss of income arising out of the permanent physical and functional disability of 15%.
38. As this Tribunal has already come to the conclusion that, the age of the Petitioner was 40 years at the time of accident. The multiplier corresponding to the said age as per Sarala Varma's case is 15.
34 MVC.No.2252/2011SCCH-7
39. As the Petitioner is suffering from permanent physical and functional disability of 15% to the whole body. The notional income of the Petitioner is already considered as Rupees 4,500/- per month. Therefore, the loss arising out of the said 15% disability for monthly income of Rupees 4,500/- by applying multiplier 15 comes to Rupees 1,21,500/-, i.e., (Rs.4,500/- x 12 x 15 x 15%).
40. As per Ex.P.6 Wound Certificate and evidence of P.W.1 and P.W.2, the Petitioner had sustained one grievous injury and one simple injury. The Petitioner had taken treatment to the said accidental injuries as an outpatient at R.L. Jalappa Hospital and Research Centre on 07.02.2011, which is clear from the contents of Ex.P.7 Outpatient Record. Due to the said injuries, the Petitioner could have definitely suffered a lot of pain and agony during the course of treatment. Considering the said aspects, it is just, proper and necessary to award a sum of Rupees 30,000/- towards pain and suffering.
41. As it is already observed that, the age of the Petitioner was 40 years. He has to lead remaining his entire life with 15% permanent physical and functional disability, which comes in the way of enjoyment of life. Therefore, it is just and proper to award a sum of Rupees 10,000/- towards loss of amenities of life to the Petitioner.
42. The Petitioner had sustained one grievous injury and one simple injury and he took treatment to the said accidental 35 MVC.No.2252/2011 SCCH-7 injuries as an outpatient and he could not do any work at least for 3 months and thereby, he deprived the income. Therefore, at the rate of Rupees 4,500/- per month, a sum of Rupees 13,500/- is awarded towards loss of income during the laid up period.
43. The P.W.1 has stated that, he spent Rupees 30,000/- towards treatment, medicine, conveyance etc. But, to consider the same, the Petitioner has not produced any Medical Prescriptions and Medical Bills. In this regard, the P.W.1 has clearly admitted in his cross-examination that, he has not produced any Medical Bills of Rupees 30,000/-. Hence, the Petitioner is not entitled for any compensation towards medical expenses.
44. The P.W.1 has stated that, he is in need of Rupees 20,000/- towards his future treatment. The P.W.2 has stated that, the Petitioner requires one more surgery for correction of mal- union and the cost being Rupees 50,000/- to Rupees 60,000/-. No doubt, it is clear from the contents of Ex.P.7 Outpatient Record that, the Petitioner was discharged as against the medical advise. In this regard, the P.W.2 in his cross-examination has clearly admitted that, the Petitioner got discharged against medical advise. But, based on the said ground, the claim made by the Petitioner in respect of the future medical expenses cannot be rejected, as, in the said road traffic accident, the Petitioner had sustained one grievous injury and one simple injury and as an outpatient, he took treatment to the said accidental injuries at R.L. Jalappa Hospital and Research Centre. Further, the P.W.2 in his cross-examination has clearly stated that, he cannot say, since 36 MVC.No.2252/2011 SCCH-7 the Petitioner has taken treatment from traditional bone setter and therefore, fractures are resulted in mal-union. By considering the nature of injuries and line of treatment, this Tribunal feels that, it is just, proper and necessary to award future medical expenses of Rupees 10,000/- to the Petitioner.
45. As the Petitioner had taken treatment as an outpatient and he had sustained one grievous injury and one simple injury, by considering the same, this Tribunal feels that, it is necessary to award a sum of Rupees 1,000/- towards conveyance charges, Rupees 1,000/- towards attendant charges and Rupees 1,000/- towards food, nourishment and diet charges etc.,
46. In this way, the Petitioner is entitled for the following amount of compensation:-
Sl. No. Compensation hands Compensation amount
1. Loss of future income Rs. 1,21,500-00 arising out of 15% Disability
2. Pain and sufferings Rs. 30,000-00
3. Loss of amenities of life Rs. 10,000-00
4. Loss of income during laid Rs. 13,500-00 up period
5. Future medical expenses Rs. 10,000-00
6. Conveyance Rs. 1,000-00
7. Attendant Charges Rs. 1,000-00
8. Food, Nourishment & Rs. 1,000-00 Diet charges TOTAL Rs. 1,88,000-00 37 MVC.No.2252/2011 SCCH-7
47. In all, the Petitioner is entitled for total compensation of Rupees 1,88,000/- along with interest at the rate of 6% per annum on the above said sum (excluding future medical expenses of Rupees 10,000/-) from the date of petition till payment.
48. While answering Issue No.2, this Tribunal has already come to the conclusion that, the offending Tractor and Trailer bearing Registration No.KA-08-T-3868 and KA-08-T-3869, which was owned by the Respondent No.1, are very much involved in the said road traffic accident, wherein, the Petitioner had sustained one grievous injury and one simple injury, when he was traveling in the offending Tractor and Trailer bearing Registration No.KA- 08-T-3868 and KA-08-T-3869 by sitting on the eucalyptus trees leaves as a coolie under the Respondent No.1, which was proceeded from Nidaghatta Village to Choodagondanahalli Village, i.e., from the land of the Respondent No.1 to the land of his friend.
49. The P.W.3, who is the Respondent No.1 has clearly stated that, at the time of accident, he was a registered owner of Tractor and Trailer bearing Registration No.KA-08-T-3868 and KA- 08-T-3869 and at the time of accident, i.e., 06.02.2011, Chandrashekar was a driver and Abhayappa, the Petitioner was a coolie in the said Tractor and Trailer under him and the Petitioner was working as a coolie under him in the Tractor and Trailer since 4 years before the accident. The R.W.1, who is the Assistant Manager of Respondent No.2, has produced Ex.R.5 'B' Register Extract relating to the offending Tractor and Trailer bearing Registration No.KA-08-T-3868 and KA-08-T-3869. The 38 MVC.No.2252/2011 SCCH-7 Respondent No.2 has also produced Ex.R.1 Copy of Policy relating to the offending Tractor and Trailer bearing Registration No.KA- 08-T-3868 and KA-08-T-3869. He has further admitted in his cross-examination that, as per Ex.R.1, premium of Rupees 5,900/- was collected from the insured and the said premium is in respect of Tractor and Trailer. From the said material evidence, it is made crystal clear that, at the time of accident, the Respondent No.1 was a R.C. Owner and the Respondent No.2 was an Insurer of offending Tractor and Trailer and its Insurance Policy was valid, which covers the date of accident. Further, there is no allegation leveled by the Investigating Officer in Ex.P.3 Charge Sheet as against the driver of the offending Tractor and Trailer that, he was not having a valid and effective driving licence to drive such class of offending Tractor and Trailer at the time of accident.
50. But, based on the said grounds, it cannot be said and come to the conclusion that, the Respondent No.1 being a R.C. Owner and the Respondent No.2 being an Insurer of the offending Tractor and Trailer bearing Registration No.KA-08-T-3868 and KA- 08-T-3869, are jointly and severally liable to pay the above said compensation and interest to the Petitioner, as, while answering Issue No.1, this Tribunal has already observed and come to the conclusion that, the Petitioner was working as a coolie under Respondent No.1 at the time of accident and at the time of accident, eucalyptus trees leaves were transporting in the offending Trailer and the Petitioner was sitting on the said eucalyptus trees leaves, which were transporting in the said offending Trailer from Nidaghatta Village to Choodagondanahalli 39 MVC.No.2252/2011 SCCH-7 Village, i.e., from the land of Petitioner to the land of his friend and it is not established by the Petitioner No.1 by adducing acceptable material evidence that, the said eucalyptus trees leaves were transporting in the offending Trailer to the land of his friend without any fare and it was only for the purpose of agricultural use. It is pertinent to note here that, in Ex.R.1 Copy of Insurance Policy, it is clearly mentioned that, the use of the Tractor and Trailer was only for agricultural and forestry purpose. It is also not the case of the Respondent No.1 that, he was also cultivating the land of his friend and as such, at the time of accident, he was transporting the eucalyptus trees leaves from his land to the land of his friend through the offending Tractor and Trailer. Furthermore, the P.W.3, who is the Respondent No.1 in his cross- examination, has clearly stated that, his Tractor and Trailer were moving on the public road with a load of Nilagiri leaves near Nidaghatta to Choodagondanahalli Krishnappa for use of agricultural purpose and not for his agricultural use. From this material evidence, it is made crystal clear that, at the time of accident, the offending Tractor and Trailer were not using by the Respondent No.1 for his agricultural and forestry purpose, but, the eucalyptus trees leaves were transporting through the offending Trailer attached to the offending Tractor on the public road for the use of agricultural purpose by the friend of the Respondent No.1. Hence, it can be safely held that, the Respondent No.1, who was a R.C. Owner of offending Tractor and Trailer has clearly violated the terms and conditions of admitted Ex.R.1 Insurance Policy. Therefore, the Respondent No.1 being a R.C. Owner of the offending Tractor and Trailer bearing 40 MVC.No.2252/2011 SCCH-7 Registration No.KA-08-T-3868 and KA-08-T-3869 is alone liable to pay the above said compensation and interest to the Petitioner and the Respondent No.2 is not liable to pay any compensation and interest to the Petitioner by indemnifying the Respondent No.1. Hence, the petition filed by the Petitioner as against the Respondent No.1 is liable to be allowed and it is liable to be rejected as against the Respondent No.2. In view of the above said reasons, the principles enunciated in the decision cited by the Learned Counsel appearing for the Petitioner are not applicable to the present facts and circumstances of the case on hand. On the other hand, the principles enunciated in the decisions cited by the Learned Counsel appearing for the Respondent No.2 are aptly applicable to the present facts and circumstances of the case on hand. Hence, Issue No.3 is answered accordingly.
51. ISSUE NO.4 :- For the aforesaid reasons, I proceed to pass the following;
ORDER The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs as against the Respondent No.1.
The petition filed by the Petitioner under Section 166 of the Motor 41 MVC.No.2252/2011 SCCH-7 Vehicles Act, 1989, is hereby dismissed as against the Respondent No.2 without costs.
The Petitioner is entitled for compensation of Rupees 1,88,000/-
with interest at the rate of 6% p.a. (excluding future medical expenses of Rupees 10,000/-) from the date of the petition till the date of payment, from the Respondent No.1.
The Respondent No.1 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this Order.
In the event of deposit of compensation and interest, entire amount shall be released in the name of the Petitioner through account payee cheque, on proper identification.
Advocate's fee is fixed at Rupees 1,000/-.
42 MVC.No.2252/2011SCCH-7 Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by her, corrected and then, pronounced by me in the open Court on this, the 24th day of October, 2016.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONER :-
P.W.1 : Sri. Abbayappa
P.W.2 :: Dr. Imran Hussain
P.W.3 : Sri. Venugopal
2. DOCUMENTS MARKED BY THE PETITIONER :-
Ex.P.1 : C.C. of FIR
Ex.P.2 : C.C. of Complaint
Ex.P.3 : C.C. of Charge Sheet
Ex.P.4 : C.C. of Mahazar
Ex.P.5 : C.C. of IMV Report
Ex.P.6 : C.C. of Wound Certificate
Ex.P.7 : Old OPD Card
Ex.P.8 : Old X-ray film
Ex.P.9 : Recent OPD Card
Ex.P.10 : X-ray film with Radiological Report
Ex.P.11 : Disability Certificate
43 MVC.No.2252/2011
SCCH-7
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
R.W.1 : Sri. C.A. Chandrashekar
R.W.2 : Sri. K.S. Ravindra
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
Ex.R.1 : Copy of Policy
Ex.R.2 : Letter addressed to Respondent No.1
Ex.R.3 : Copy of Complaint
Ex.R.4 : Copy of Charge Sheet
Ex.R.5 : B-Register Extract
(INDIRA MAILSWAMY CHETTIYAR)
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.