Bangalore District Court
K.N.Venkatesh @ Venkatesh vs ) H.N. Ramamurthy on 30 September, 2015
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES AT BENGALURU
(SCCH:15)
DATED: THIS THE 30th DAY OF SEPTEMBER, 2015
PRESENT: Smt.K.Katyayini, B.Com., LL.B.,
XIII Addl.Small Cause Judge
& Member, MACT, Bengaluru.
MVC No.482/2015
Petitioner/s K.N.Venkatesh @ Venkatesh,
S/o Narayanappa K.V.,
Aged about 28 years,
Permanent resident of
No.186, Ambedkarnagar,
V. Kota, Chittor District,
Andrapradesh.
Presently residing at:
Meenakshimma Road,
Near Meenakshi Temple,
T.C. Palya, K.R. Puram,
Bengaluru-36.
And also residing near
Vinayaka School,
Near Ulsoorgate Police Station,
Jopadi, Bengaluru.
(By Pleader - Sri.T. Kodandarama.)
V/s
Respondent/s 1) H.N. Ramamurthy,
S/o Subba Rao H.N.,
Major,
R/at No.48/6,
Sri Sharada Nilaya,
T-3, Deccan Terrace,
Opp.CA 8th Main,
Malleshwaram,
(SCCH-15) 2 MVC.482/2015
Bengaluru-3.
(R.C. owner of Tempo bearing
Reg.No.AP-02 V-5312)
(By Pleader - Exparte.)
2) The Manager,
Shriram General Insurance
Co. Ltd., No.302, III Floor,
S & S Corner Building,
Plot No.48, Hospital Road,
(Bowring Hospital),
(Insurer of the Tempo bearing
Reg.No.AP-02 V-5314)
Policy No.10003/31/15/454768
valid from 29.12.2014 to
28.12.2015)
(By Pleader - Sri.B.T.Rudra Murthy.)
JUDGMENT
Petitioner has filed the present petition under Section 166 of MV Act seeking grant of compensation on account of injuries he has sustained in RTA.
2. The brief case of petitioner is that on 27.01.2015 at about 08:15 p.m., he was crossing the road on N.R. Road, Near Ulsoor Gate Police Station. At that time the driver of the tempo bearing registration No.AP-02 V-5312 came with high speed in a rash and negligent manner from N.R. Junction and dashed against him. (SCCH-15) 3 MVC.482/2015
b) Because of which he fell down and suffered severe injuries all over the body. Accident took place solely due to the rash and negligent driving of the tempo driver. Therefore, 1st respondent being the RC owner and 2nd respondent being the insurer of the tempo are jointly and severally liable to pay the compensation. Hence, prayed to allow the petition as sought for.
3. In response to due service of notices, 1st respondent remained exparte. 2nd respondent has put its appearance through its counsel and filed its statement of objections to the main petition denying the petition averments. However, it has admitted the policy and its 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 vehicular documents.
b) It has also contended that the police papers reveal that the petitioner was proceeding in the negligent manner without observing vehicular movements and he was crossing the road where there was no zebra cross and he himself dashed against the tempo. Because of (SCCH-15) 4 MVC.482/2015 which on his own negligence he was exposed to the accident. Therefore, petitioner is solely responsible for the present accident. Accordingly, prayed to dismiss the petition against it with costs.
4. On the above said pleadings of the parties, this Tribunal has framed the following issues.
1. Whether the petitioner proves that he has sustained injury due to RTA alleged to have been occurred on 27.01.2015 at about 8:15 p.m., on N.R.Road, opp. to Ulsoorgate Police station, Bengaluru due to the rash and negligent driving of driver of the tempo bearing registration No.AP-02 V-5312?
2. Whether the petitioner is entitled for compensation? If so, what amount & from whom?
3. What order or award?
5. To prove the above said issues and to substantiate their respective contentions, petitioner himself has entered into witness box as PW-1. Got examined the doctor who has treated and assessed the disability as PW-2. Got exhibited 14 documents and closed his side.
(SCCH-15) 5 MVC.482/2015
b) Per contra, 2nd respondent has got examined its Legal Officer as RW-1. Got exhibited 2 documents and closed its side. Heard both the sides on merits of the case. In support of his oral arguments, counsel for petitioner has filed memo along with the xerox copies of decisions reported in;
1) 2014 ACJ 864,
2) ILR 2014 KAR 191,
3) 2008 AIR SCW 3251,
4) 2001 ACJ 843,
5) 2013 AIR SCW 3941,
6) 2004 ACJ 1, and
7) the unreported judgment passed by Hon'ble High Court of Karnataka, Bengaluru in MFA.No.7018/2010 dated 26 August, 2011 as th well as
8) the judgment of the Hon'ble High Court of Punjab and Haryana pass in the case of National Insurance Company Limited Vs. Kamlesh Kaur (LAWS (P & H) -2006-3-471).
c) On the other hand, counsel for 2nd respondent has filed memo with xerox copies of the judgments of the Hon'ble High Court of Karnataka, Bengaluru passed in;
1. MFA.9582/2007(MV),
2. MFA.8742/2008(MV) and
3. MFA.7723/2011(MV).
This Tribunal has carefully gone through the above observed reported decisions and unreported judgment as well as perused the record.
(SCCH-15) 6 MVC.482/2015
6. Now the findings of this Tribunal on the above said issues are answered in the;
1. Issue No.1: Affirmative.
2. Issue No.2: Petitioner is entitled for compensation amount of Rs.4,43,000/- together with interest at 9% p.a. from the date of petition till the realization in its entirety from 1st respondent.
3. Issue No.3: As per final order for the following reasons.
REASONS
7. ISSUE No.1:- As observed above, 1st respondent remained exparte. If the above observed pleadings of the parties are taken into consideration, absolutely there is no dispute between the parties with regard to the alleged accident; the date, time and place of the accident; the vehicle involved in the accident and the driver of the vehicle as well as the fact that petitioner was the pedestrian at the time of accident. So, the only point now that remained for the consideration of this Tribunal for the proper adjudication of this issue is the rash and negligent act.
(SCCH-15) 7 MVC.482/2015
8. To establish his case as observed above, petitioner himself has entered into witness box as PW-1. He has also filed his affidavit evidence wherein he has reiterated the above observed petition averments. He has specifically deposed that accident took place solely due to the rash and negligent driving of the tempo driver.
9. In his cross-examination his chief evidence is denied by way of suggestions which are in turn denied by him. However, it is elicited that he saw the tempo before the accident at a distance around 10 feet. Basing on that, it is questioned to him that how the vehicle was coming whether with speed, for which he has deposed yes.
10. Basing on that one more question is posted to him to the effect that even observing the vehicle coming with high speed, whether he tried to cross the road, for which he has stated that there was signal for him to move. He has denied the suggestion that there was no zebra cross at the accident spot.
11. To the question that as per the spot sketch at Ex.P-3 shown to him, there is no zebra cross, for which he has deposed that but there was zebra cross at the (SCCH-15) 8 MVC.482/2015 spot. At this stage it is important to go through the spot mahazar at Ex.P-3 which reveals that there is no zebra cross at all.
12. However, it is an important to note that at best from Ex.P-3, 2nd respondent can prove that the petitioner was proceeding on the place where he was not supposed to cross the road which at best can attract the violation of traffic rules and regulations. But so far that negligence resulting in the present accident, 2nd respondent is required to prove that independently with other cogent and corroborative evidence.
13. To establish its defence as observed above, 2nd respondent got examined its legal officer as RW-1 who has field his affidavit evidence wherein he has reiterated the statement of objections averments of 2nd respondent. But he has concentrated only with regard to the defence of 2nd respondent on breach of policy conditions.
14. He has specifically deposed that as per the charge sheet there is charge sheet/allegation for no FC and no permit to establish that there is violation of policy conditions. He has not at all deposed a single word about (SCCH-15) 9 MVC.482/2015 the negligent act on the part of petitioner if any in occurrence of the accident.
15. On the other hand, petitioner apart from his oral evidence has also produced police papers such as true copies of FIR with complaint, spot mahazar, spot sketch, motor vehicle examination report and charge sheet respectively at Ex.P-1 to 5.
16. All the police papers categorically reveal that the jurisdictional police have initially registered the criminal case against the tempo driver for the offences punishable under Section 279 and 337 of IPC and after the investigation they have charge sheeted the tempo driver for the offences punishable under Section 279 and 338 of IPC and Section 190 with 192 and Section 14 with 56 of MV Act for violation of no FC and no permit.
17. So, the police papers are clear consonance with the case of petitioner. Above all, there is presumption with regard to the police papers that they are prepared by the investigating officer while discharging their official duties in investigation of a crime. Of course, the said (SCCH-15) 10 MVC.482/2015 presumption is rebuttal one. But no such rebuttal evidence let in by 2nd respondent.
18. Even 2nd respondent has contended that the present accident is because of the sole negligence of petitioner, there is no specific cross-examination for 2nd respondent about the police papers which are in support of the case of petitioner about the negligent driving of the tempo driver.
19. Moreover, when 2nd respondent has placed its reliance on the police papers to establish its defence on breach of policy conditions, it cannot go beyond the police papers for the rest of allegations. Accordingly, petitioners with his oral evidence coupled with the police papers at Ex.P-1 to 5 has successfully proved that the present accident is because of the negligent driving of tempo driver.
20. So far petitioner suffering injuries in the present accident, absolutely there is no dispute. However, to establish that petitioner with his oral evidence has produced medical records such as true copies of wound certificate, discharge summary, hospital and medical (SCCH-15) 11 MVC.482/2015 bills, prescriptions and x-ray films respectively at Ex.P-6 to 10 in his evidence.
21. He has also got adduced the oral evidence of doctor who has treated and assessed the disability as PW-2 and got produced the medical records such as inpatient record, out patient record, x-ray film and disability evaluation certificate respectively at Ex.P-11 to 14 through PW-2. All the medical records observed above, are in clear consonance with the case of petitioner.
22. Moreover, if the cross-examination conducted on behalf of petitioner and the doctor is taken note off, even 2nd respondent has raised objections with regard to the nature of injuries, nature of treatment, quantum of disability as well as quantum of medical expenditure, it has not at all disputed the fact of petitioner suffering injuries in the accident.
23. Therefore, petitioner with his oral evidence coupled with the oral evidence of PW-2, the supportive medical records observed above and the police papers as well has successfully established that he has suffered (SCCH-15) 12 MVC.482/2015 injuries in the present accident. Accordingly, this issue is answered in affirmative.
24. ISSUE No.2:- In view of answering issue No.1 in affirmative, petitioner is of course entitled for compensation. Now, in respect of quantum. It is the case of petitioner that he was aged about 28 years, was a mason and had income of Rs.15,000/- per month. Petitioner has reiterated the above observed petition averments in his affidavit evidence.
25. To prove his age he has not produced any specific age proof document. However, in the charge sheet and in the medical records his age is shown as 28 years and 22 years respectively. There is no cross- examination by the other side about the age of the petitioner. Hence, considering the contradictory evidence let in by the petitioner himself through the charge sheet and in the medical records, it is thought just and proper to take age of petitioner at 28 years, for which the proper multiplier applicable is 17.
26. So far the avocation and income of the petitioner once again petitioner has not produced any supportive (SCCH-15) 13 MVC.482/2015 document apart from his oral evidence. Therefore, considering the age of the petitioner and the cost of living on the date of accident, it is thought just and proper to take the notional income of the petitioner at Rs.7,500/- p.m.
27. It is the case of petitioner that in the accident he has suffered injuries as stated in the wound certificate and discharge summary. He took treatment in St. Martha's Hospital, Bengaluru and other hospitals as inpatient; still he is under treatment and has already incurred expenditure at Rs.1,25,000/-.
28. It is also his case that hHe became permanently disabled because of the accidental injuries. Petitioner has reiterated the above observed petition averments. In his cross-examination his chief evidence is denied by way of suggestions which are in turn denied by him.
29. PW-2 the doctor who has treated and assessed the disability has filed his affidavit evidence wherein he has stated that petitioner was admitted to their hospital with the history of RTA dated 27.01.2015. On examination it is found that petitioner has suffered (SCCH-15) 14 MVC.482/2015 multiple abrasions present over the right leg, left knee joint and left hip region, lacerated wound present over the right ankle bone deep, bimalleolar fracture of the right ankle and fracture of proximal phalanx of 5th toe of the right foot which are grievous in nature.
30. It is also in his affidavit evidence that petitioner was treated surgically in the form of open reduction with internal fixation with tubular plating for bimalleolar fracture right ankle on 29.01.2015 and wound debridement and suturing was done. For other injuries conservative management is done. Petitioner was discharged on 31.01.2015 in stable condition with advice for regular follow-up.
31. It is also there in his affidavit evidence that on 01.08.2015 he has examined the petitioner for assessment of disability. On clinical examination and radiological examination as well as on the complaints of the petitioner it is found that fracture is united with implants in situ. Petitioner is in need of one more surgery for removal of implants, which may cost around Rs.25,000/-.
(SCCH-15) 15 MVC.482/2015
32. He has also deposed that petitioner is having permanent physical impairment to the whole body at 11.5%. He has produced inpatient record, outpatient record, x-ray films and disability evaluation certificate respectively at Ex.P-11 to 14 in his chief evidence.
33. In his cross-examination he has deposed that petitioner is on physiotherapy. To the question that since as per their evidence, petitioner is on physiotherapy, there is every likelihood of improvement in restriction of movements, for which he has answered that since six months have already been elapsed, there is less possibility.
34. He has admitted the suggestion that with the disability he has assessed, the petitioner can do his day to day work. At this stage he voluntarily deposed that but he feels difficulty to sit on ground. He again voluntarily deposed that he heard that petitioner is a mason, so it affects his functional ability.
35. If the medical records produced by the petitioner are gone through Ex.P-6 and 7 are the wound certificate and discharge summary issued by St. Martha's (SCCH-15) 16 MVC.482/2015 Hospital. Ex.P-11 is the inpatient record and Ex.P-12 is the outpatient record produced by the PW-2, the doctor. The x-ray films at Ex.P-10 are in corroboration with Ex.P- 6, 7, 11 and 12 and all those medical records are also in consonance with the oral evidence of PW-2 noted above about the injuries, treatment, inpatient period and the condition of the petitioner.
36. Therefore, if the entire evidence is taken in a nut shell, it can be safely held that petitioner has suffered fracture injuries in the accident; was treated surgically; he was inpatient in the hospital for 5 days; fracture is united with implants in situ and thus he is in need of one more surgery for removal of implants.
37. To prove the medical expenditure petitioner has produced Ex.P-8 the hospital and medical bills totally 45 in nos. amounting to Rs.34,315/-. All the bills are of St. Martha's Hospital bill cum receipts and they are computerised bills in the name of petitioner and they are duly sealed and signed. Moreover, there is in the cross- examination with regard to the reimbursement and there is no mention that those bills are corporate bills. (SCCH-15) 17 MVC.482/2015
38. Moreover, if the nature of injuries suffered by the petitioner; surgeries he has undergone; inpatient period and the fact that the hospital wherein he took treatment is a private set up, there is nothing on record to discard the said medical expenditure. On the other hand, it appears that petitioner has incurred more expenditure than of that. Hence, it is thought just and proper to award medical expenditure at Rs.40,000/- including the bills at Ex.P-8 series.
39. It is in the evidence PW-2 that the petitioner has whole body disability at 11.5%. But he has not at all stated particular limb disability. It is also in the cross- examination of PW-2 that petitioner can do his day to day work with little difficulty. Of course, he has deposed that but he feels difficultly to sit on ground which will affect the functional ability of petitioner, since he is mason by profession.
40. Therefore, considering the evidence of PW-2 and the age of petitioner, it is thought just and proper to take the whole body disability at 10%, for calculation of loss of (SCCH-15) 18 MVC.482/2015 future earning, loss of amenities and comforts as well as for permanent physical impairment.
41. It is in the evidence of PW-2 that petitioner is in need of one more surgery for removal implants. Hence, it is thought just and proper to award some reasonable compensation for future medical expenses as well. In the result, petitioner is entitled for compensation under the heads mentioned below and the amount stated against them.
Pain and Sufferings Rs. 40,000/-
Loss of income during laid up period Rs. 20,000/-
Attendant charge, Diet, Conveyance, And other charges Rs. 20,000/-
Medical Expenditure Rs. 40,000/-
Future Medical Expenditure Rs. 20,000/-
Loss of Future earning capacity Rs.1,53,000/-
(7,500 x 12 x 10/100 x 17)
Loss of Amenities & Comfort Rs. 50,000/-
For Permanent Disability Rs.1,00,000/-
Total: Rs.4,43,000/-
42. Petitioner has sought interest at the rate of 12% p.a. Considering the cost of living on the date of accident, it is thought just and proper to award interest at 9% p.a. from the date of petition till the realization of compensation amount in its entirety. (SCCH-15) 19 MVC.482/2015
43. Now, in respect of liability. Absolutely there is no dispute between the parties with regard to the fact that 1st respondent is the RC owner and 2nd respondent is the insurer of the tempo. Of course, 1st respondent remained exparte. However, 2nd respondent has admitted the policy and its force on the date of accident.
44. But, it has contended that its liability if any is subject to the terms and conditions of the policy such as driving licence and vehicular documents. To establish that apart from the oral evidence of its officer/RW-1 it has placed its reliance on the police papers which are in clear support of its defence on no FC and no Permit to the tempo at the time of accident.
45. To disprove the police papers, petitioner has not let in any evidence. On the other hand, petitioner has placed his reliance on the police papers to establish its case on the negligence of the tempo driver resulting in the accident. So, he cannot go beyond the police papers for the rest of the contents therein.
46. To meet that, counsel for petitioner has placed his reliance on the aforesaid reported judgments wherein (SCCH-15) 20 MVC.482/2015 the Hon'ble High Court of Delhi in the decision reported in 2014 ACJ 864 (Bajaj Allianz General Insurance Co. Ltd. V. Vibhishan Mahto and others) held that;
"Motor Vehicles Act, 1988, section 149 (2) (a)
(i) (c) - Motor Insurance - Permit - Violation of -
Liability of insurance company - Insurance company disputes its liability on the ground that driver possessed licence to drive transport vehicle but he did not possess proper authorisation card containing name, photo and other particulars of driver as per condition of the permit - There are more than 100 conditions attached to the issuance of permit and contravention of each and every condition of permit would not allow the insurance company to avoid its liability - As per section 149(2) (i) (a)
(c) insurance company can avoid its liability only if vehicle was being used for a purpose not allowed by the permit under which the vehicle was being used for a purpose not allowed by the permit under which the vehicle was being used
-Whether there was violation of permit condition and insurance company is exempted from liability - Held:no [2013 ACJ 2570 (Delhi) relied]."
47. It is also observed in the decision reported in ILR 201 KAR 191 (Shri. Rangappa @ Rangappa Shety vs. Shri. Jayaramaiah and Another) wherein the Hon'ble High Court of Karnataka held that;
"MOTOR VEHICLES ACT,1988 - SECTION 173(1) - Accident claim - Judgment and Award - Liability fastened on the owner of the offending vehicle but not on the Insurer - Appealed (SCCH-15) 21 MVC.482/2015 against - Contention of the insurer is that the offending vehicle did not possess fitness certificate at the relevant time and therefore, they are not liable to pay compensation - HELD, The life of an insurance Policy issued in respect of a motor vehicle will be valid for one year and for every next year either it has to be renewed or new policy has to be obtained. Therefore, the insurer at every time of insuring a vehicle and issuing policy or renewing such policy should verify whether the vehicle has possessed all the necessary certificates including the fitness certificate. The Insurance Companies cannot blindly insure motor vehicles and collect premium and thereafter contended that the vehicle did not possess fitness certificate at the relevant point of time and therefore they are not liable to pay compensation to the claimants. This attitude of the insurer cannot be encouraged any longer.
-FURTHER HELD, It is no doubt true as per Ex.R-1 an endorsement issued by the RTO, the fitness certificate of the offending vehicle was not in force as on the date of accident. If that is so the insurer should not have insured the vehicle for the period during which vehicle did not possess the fitness certificate. The insurer cannot say they would insure a vehicle irrespective of the fact that whether it has a fitness certificate or not and collect premium and when it comes to liability, their liability is subject to vehicle possessing fitness certificate."
48. He has also relied on the decision reported in 2008 AIR SCW 3251 (Oriental Insurance Co. v. (SCCH-15) 22 MVC.482/2015 Zaharulnisha & Ors.) wherein the Hon'ble High Court of Allahabad has held that;
"(C) Motor Vehicles Act (59 of 1988),S.149(4) and (5) - Liability of insurer - Violation of provisions of Act - May result in absolving insures - But same may not necessarily hold good in case of third party - Liability of insurer to satisfy decree passed in favour of third party is statutory."
49. He has also placed his reliance on the decision reported in 2001 ACJ 843 (New India Assurance co. Ltd. V. Kamla and others) wherein Hon'ble Supreme Court of India, New Delhi it is held that;
"The Motor vehicles Act 1988, sections 149(2)(a) and 149(4) - Motor insurance - policy - Breach of Third party risk - liability of insurance company - Whether the insurance company is liable to pay to the third parties irrespective of the fact that there has been any breach or violation of the policy conditions - Held: yes. But the insurance company can recover from the insured the amount so paid to the third parties if as per the policy conditions the insurer had no liability to pay such sum."
Para No.22. To repeat, the effect of the above provisions is this: When a valid insurance policy has been issued in respect of a vehicle as evidenced by a certificate of insurance the burden is on the insurer to pay to third parties, whether or not there has been any breach or violation of the policy conditions. But the amount so paid by the insurer to third parties can be allowed to be recovered from the insured (SCCH-15) 23 MVC.482/2015 if as per the policy conditions the insurer had no liability to pay such sum to the insured."
50. He has also placed his reliance on the decision reported in 2013 AIR SCW 3941 (S. Iyyapan v. M/sk. United India Insurance Company Ltd. & Anr.) wherein Hon'ble Supreme Court of India has held that;
"(A) Motor Vehicles Act (59 of 1988), S.149 -
Liability of insurer - Defence of violation of condition of policy - Does not absolve insurer of its statutory liability to pay compensation to third party - Defences available under S. 149 only safeguards interest of insurer in certain circumstances by enabling it to recover same from insured".
51. He has also placed his reliance on the decision reported in 2004 ACJ 1 (National Insurance Co. Ltd. V. Swaran Sign and others) wherein Hon'ble Supreme Court of India has held that;
"Motor Vehicles Act, 1988, sections 149(2), 149 (7), 174 and 168(3) - Motor insurance - Award - Execution of - Tribunal on adjudication of the claim concludes that insurance company has satisfactorily proved its defences - Whether the Tribunal can direct that insurance company is liable to be reimbursed by the insured for the amount of compensation and other amounts which it has been compelled to pay to third party - Held: yes; and whether the money due to the insurance company from the insured is recoverable on a certificate issued by the Tribunal to the collector in the same manner as arrears of land revenue - Held: yes; but the (SCCH-15) 24 MVC.482/2015 certificate will be issued for the recovery after insured fails to deposit the amount within 30 days from the date of announcement of the award by the Tribunal."
52. So, the sum and substance of the above decisions is that the insurance company cannot shrink its liability on the violation of policy conditions against 3rd parties and it is bound under Section 149 of MV Act to pay the compensation to the 3rd party and the amount so paid by the insurer to third parties can be allowed to be recovered from the insured if as per the policy conditions the insurer had no liability to pay such sum to the insured.
53. But in the decision reported in ILR 2012 Karn. 5241 (The Oriental Insurance Co., Ltd., vs. Sri. K.C.Subramanyam and Another), the division bench of the Hon'ble High Court of Karnataka has held that;
"MOTOR VEHICLES ACT, 1988, - CHAPTERS XI AND XII - Liability of the Insurance companies under concept of ' Pay and recover' - Applicability to the cases falling under Section 149(1) and 149(2) of the Act - Intention of the Parliament in introducing Section 149(7) - HELD, The condition precedent for application of the rule 'pay and recover' is, there should be a valid policy of insurance and there is no breach of the terms and conditions of the (SCCH-15) 25 MVC.482/2015 policy........... ON FACTS, FUTHER HELD, The Apex Court after holding that the insurer has no obligation to pay, but still has directed the insurer to pay and recover from the insured. Such a direction is issued by virtue of the power conferred on the Apex Court under Article 142 of the Constitution, which power neither this Court nor the Tribunal can exercise. Therefore, it is not the law laid down by the Apex Court under Article 141 of the Constitution that when the insurer is not liable to pay still he can be directed to pay and recover."
54. Moreover, in the decision reported in ILR 2014 KAR 2358 (Sri.Appayachari vs. K.Vadivel and Another), wherein the Hon'ble High Court of Karnataka referred both the above observed decisions and held that;
"MOTOR VEHICLES ACT, 1988 - SECTION 173(1) Driver of the offending vehicle did not possess valid driving licence to drive the transport vehicle - Liability fixed on the owner of the offending vehicle - Insurer is absolved from liability - Appeals filed by the claimants for enhancement and also for fixing the liability on the Insurer - Plea of "Pay and Recover" - HELD , Principle of "Pay and Recover" not applicable to the facts of the case. - Insurer is entitled to raise a defence in terms of Section 149(2)(a)(ii) of the Act of breach of policy conditions to avoid its liability. - When Insurer having raised a defence as provided under Section 149(2) and successfully proved that it is not required to indemnify the claim, it cannot be saddled with the liability to pay the amount and recover the same from the insured. - The direction of the Hon'ble Apex Court in the case of National Insurance Co., Ltd., vs. Swarn Singh and Others reported in 2004 ACJ 1 directing the insurance companies to satisfy the awards and granting leave to recover the same from owners of the offending (SCCH-15) 26 MVC.482/2015 vehicle, should not be construed as a precedent. - FURTHER HELD, Insurer wound be entitled to take umbrage under Section 149(2)(a)(ii) by raising a defence that driver of the vehicle involved in the accident was not that driver of the vehicle involved in the accident was not duly licensed or in other word, did not possess a driving licence to drive said vehicle. If such defence is raised, naturally onus lies on the Insurer. Thus, in the facts and circumstances of each case, it will have to be examined as to whether such a defence was raised at the first instances by the Insurer and if having raised such a plea, has it been proved by the Insurer to stave off its liability. -........"
55. So, the sum and substance of the above decisions is that the insurer is entitled to take the defence available under Section 149(2) of MV Act and the condition precedent for application of the rule 'pay and recover' is, there should be a valid policy of insurance and there is no breach of the terms and conditions of the policy and the pay and recover order passed by the Hon'ble Apex Court is by exercising the power under Article 142 of the Constitution which cannot be passed by either the Hon'ble High Courts or the Tribunals.
56. In the present case on hand, admittedly petitioner is 3rd party. Therefore, basing on the aforesaid decisions on which the petitioner's counsel placed his reliance, this Tribunal if holds that 2nd respondent (SCCH-15) 27 MVC.482/2015 insurance company cannot shrink its liability against petitioner who is third party, then in view of those decisions itself, this Tribunal should order for pay and recover if the insurance company proves that as per the policy conditions it has no liability to pay such sum.
57. But, this Tribunal cannot pass such order as it is constitutional power which is not vested with this Tribunal as held in the above decision of the Hon'ble High Court of Karnataka reported in ILR 2012 Karn. 5241 and ILR 2014 KAR 2358.
58. In support of his arguments on it defence of breach of policy conditions on permit, the counsel for 2nd respondent has placed his reliance on the decisions of the Hon'ble High Court of Karnataka, Bengaluru passed in MFA.9582/2007 (MV) (Sri.B.T.Venkatesh Vs. Sri.Jagadeesh Kumar and others) dated 24.08.2012 wherein it is held that;
"6. So far as fastening the liability on insurance company is concerned, the findings of the Tribunal is clear that, there is violation of the policy conditions by the owner and driver of the offending autorickshaw which is insured with the 3rd respondent - insurance company. In the light of the policy conditions being violated, the question of (SCCH-15) 28 MVC.482/2015 fastening the liability n the insurance company to indemnify the liability of paying compensation does not arise for consideration. Accordingly, the findings of the Tribunal in restricting the liability to pay the compensation on the owner of the offending autorickshaw appears to be just and proper and same does not call for any interference in this appeal. Accordingly, the appeal filed by the claimant fails on both the grounds and it is dismissed without any order as to costs".
59. It is observed in the judgment dated 09.10.2012 passed in MFA.8742/2008 (MV) (Oriental Insurance Co. Ltd. Vs. K.C.Papanna and another) that;
"4. In view of the violation of the terms of the permit necessarily the insurer would not be held liable to satisfy the award....."
60. It is held in the judgment passed in MFA.7723/2011 (MV) dated 08.10.2013 (Smt.Kempamma Vs. Ramesh and another) that;
"3..........the words used in section 149(kk2)(a)(i)(c) would indicate that ''if there is nay violation of permit condition or offending vehicle being used contrary to permit' then only the said defence is available to the insurer. He would elaborate his submission by contending that clause (c) has to be understood to the use of vehicle and it is in this context the word "Permit" has to be read and not otherwise...."
"5.............Tribunal has absolved the insurer of indemnifying the claim on the ground that there was (SCCH-15) 29 MVC.482/2015 violation of permit condition and has directed the owner to indemnify the claim."
"7............As to whether violation of permit condition would be a defence available to the insurer or not, is no more res Integra as held in the case of National Insurance Co. Ltd., Vs Challa Bharathamma an do there reported in 2004 ACJ 2094 where under similar factual matrix was present and their Lordships having adjudicated such a claim has answered as under:
"11.........
12. High Court was of the view that since there was no permit, the question of violation of any condition there does not arise. The view is clearly fallacious. A person without permit to ply a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Plying of a vehicle without a permit is an infraction. Therefore, in terms of section 149(2) defence is available to the insurer on that aspect. The acceptability of the stand is a matter of adjudication. The question of policy being operative had no relevance for the issue regarding liability of insurer. High Court was, therefore, not justified in holding the insurer liable".
10. Tribunal on appreciation of evidence tendered by the insurer has found as per Ex.R-3 the permit condition stipulating that offending vehicle ought to have plied within stipulate the jurisdiction of Channpatna Taluk and at the time of accident it was plying at Malavali Taluk. Hence, there was violation of permit condition. In that view of the matter Tribunal was fully justified in absolving the insurer of its liability and there is no error much less material irregularity committed by tribunal calling for interference at the hands of this court." (SCCH-15) 30 MVC.482/2015
61. So, the dictum laid down in the above judgments is that under Section 149(2)(i)(c), the defence is available to the insurance company to take the defence of breach of policy conditions on permit and if it prove that, the liability cannot be saddled on it.
62. Therefore, even the decisions on which the counsel for petitioner has placed his reliance appears to be helpful to it in view of the fact that he is a third party. But in all the said decisions, it is also held that if the insurance company is not liable to pay the compensation in terms of the policy, then it should be allowed to recover the amount so paid from the insured which order cannot be passed by this Tribunal.
63. Therefore, as per the above judgments on which 2nd respondent has placed its reliance, in view of admitted breach of policy conditions on breach of policy conditions on no permit as per the charge sheet, liability cannot be fastened on 2nd respondent. Therefore, 1st respondent being the RC owner alone is liable to pay the compensation.
(SCCH-15) 31 MVC.482/2015
64. So, petitioner is entitled for compensation of Rs.4,43,000/- together with interest at 9% p.a. from the date of petition till the realization of the compensation in its entirety from 1st respondent. Accordingly, issue No.2 is answered.
65. ISSUE No.3 :- From the above discussions, this Tribunal proceeds to pass the following order.
ORDER The present petition filed by the petitioner under Section 166 of IMV Act is hereby allowed in part with costs.
In the result, petitioner is entitled for compensation amount of Rs.4,43,000/- together with interest at 9% p.a. from the date of petition till the realization of the compensation amount in its entirety from 1st respondent.
1st 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.2,00,000/- in Karnataka Bank City Civil Court Branch, Bengaluru for a period of 5 years and the remaining compensation amount together with interest and costs ordered to be released to the petitioner individually through an (SCCH-15) 32 MVC.482/2015 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 30th day of September, 2015.) (K.KATYAYINI), XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PETITIONER:
PW1: K.N. Venkatesh @ Venkatesh PW2: Dr. Sandeep Subbaiah
LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENTS:
RW1: Yellappa B.P. LIST OF DOCUMENTS EXHIBITED ON BEHALF OF PETITIONER:
Ex.P1 : True Copy of FIR with complaint Ex.P2 : True Copy of Spot mahazar Ex.P3 : True Copy of spot Sketch Ex.P4 : True Copy of motor vehicle report Ex.P5 : True Copy of charge sheet Ex.P6 : True Copy of wound certificate Ex.P7 : Discharge Summary Ex.P8 : Hospital and medical bills 45 in nos. amounting to Rs.34,315/-
Ex.P9 : Prescriptions (23 in nos.) Ex.P10 : X-ray films (6 in nos.) (SCCH-15) 33 MVC.482/2015 Ex.P11 : Inpatient record, Ex.P12 : Out patient record, Ex.P13 : X-ray films (3 in nos.), Ex.P14 : Disability evaluation certificate.
LIST OF DOCUMENTS EXHIBITED ON BEHALF OF RESPONDENTS:
Ex.R1 : Authorization Letter Ex.R2 : True copy of Policy (K.KATYAYINI), XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.