Bangalore District Court
Chaitra M vs Oriental Insurance Co Ltd on 30 October, 2024
KABC020131882020
BEFORE THE COURT OF XXIV ADDITIONAL SMALL
CAUSES JUDGE, THE MOTOR ACCIDENT CLAIMS
TRIBUNAL & A.C.J.M. (SCCH-26) AT BENGALURU
DATED THIS THE 30th DAY OF OCTOBER 2024
PRESENT : SRI. APPASAB NAIK,
B.A.L.L.B.(Spl)
XXIV ADDL. SCJ & ACJM &
MEMBER-MACT BENGALURU.
M.V.C.No.2807/2020 c/w M.V.C.No.2808/2020 to 2810/2020
PETITIONER Baby Bhagya. M,
IN D/o. Monappa,
MVC No.2807/2020 Aged 5 years,
No.74, Sasuveghatta,
Shivakumara Swamy Layout,
Chikkabanavara Post,
Hesaraghatta Hobli,
Bengaluru - 560 090.
As petitioner is a minor,
she is represented by her father,
Sri. Monappa as a natural guardian.
[
(By Sri.R.C.S - Advocate)
PETITIONER Sri. Ashok,
IN S/o. Late Gunjalappa,
MVC No.2808/2020 Aged 20 years,
Tarabanahalli shed, Shiva Kumar
Layout road, Behind, Chamundi temple,
Bengaluru.
(By Sri.R.C.S - Advocate)
SCCH - 26 2 MVC No.2807/2020
to 2810/2020
PETITIONER Baby Chaitra. M,
IN D/o. Monappa,
MVC No.2809/2020 Aged 6 years,
No.74, Sasuveghatta road,
Near Chamundeshwari temple,
Shivakumara Swamy Layout,
Chikkabanavara,
Hesaraghatta Hobli,
Bengaluru - 560 090.
As petitioner is a minor,
she is represented by her father,
Sri. Monappa as a natural guardian.
(By Sri.R.C.S - Advocate)
PETITIONER Sri. Lakshman @ Laxman,
IN S/o. Bheemaraya,
MVC No.2810/2020 Aged 25 years,
No.37/1, Devaraj Building,
Chokkasandra main road,
Near Sri Venkateshwara Bakery,
Chokkasandra, T.Dasarahalli,
Bengaluru North - 560 057.
(By Sri.R.C.S - Advocate)
--- VS ---
RESPONDENTS 1. The Oriental Insurance Co., Ltd.,
IN ALL THE No.44/45, Leo Shopping Complex,
CASES Residency Road, Bengaluru.
(Policy No.413502/31/2020/7562
valid from 04.02.2020 to 03.02.2021)
(By Sri. V.S.N - Advocate)
2. Sri. R. Amul, S/o. Ravi,
No.21, Bajanai Koil Street,
Karadikuppam, Walaja taluk,
Vellor District,
SCCH - 26 3 MVC No.2807/2020
to 2810/2020
Tamil Nadu.
(Exparte)
****
:: COMMON JUDGMENT ::
The petitions filed by the petitioners under Section 166 of the Motor vehicles Act are clubbed together as they are arising out of the same accident and the cause of action in ALL the cases is one and the same.
2. The brief facts of the petitioners are as under:
It is the case of the minor petitioner's father in MVC No.2807/2020, MVC No.2809/2020 and Petitioners in MVC No.2808/2020 and MVC No.2810/2020 that on 09.05.2020 at about 7.20 pm., when they were occupants of goods vehicle (tempo) bearing reg.No.KA-05-B-6346 and were proceeding from Lakshmipura side to Bengaluru - Tumkuru NH - 48 service road. When they reached near Madanayakanahalli bus stop, near Lakshmipura cross, at that time, a lorry bearing reg.No.TN-25-R-2422 came from Bengaluru side driven by its driver towards Lakshmipura cross in a high speed, in a zigzag manner and hit to the rear SCCH - 26 4 MVC No.2807/2020 to 2810/2020 end of a car bearing reg.No.KA-05-Z-2153 and further hit to a goods vehicle bearing reg.No.KA-05-B-6346. Due to the impact, the goods vehicle hit to the two wheeler bearing reg.No.KA-04-HY-0764. As a result, the petitioners who was occupants of the tempo sustained injuries all over their body.
Immediately after the accident, minor petitioners were shifted to Lifeline Hospital after first aid treatment, they were taken to Sapthagiri Hospital wherein they took treatment as an outpatient and they have spent Rs.20,000/- each towards treatment and connected expenses.
Immediately after the accident, petitioners in MVC No.2808/2020 and MVC No.2810/2020 were shifted to Lifeline Hospital after first aid treatment, they were taken to Sapthagiri Hospital wherein they took treatment as an inpatient and they have spent Rs.50,000/- and Rs.1,00,000/- respectively towards treatment and connected expenses.
On the date of accident, Petitioner in MVC
No.2808/2020 was aged about 20 years, earning
SCCH - 26 5 MVC No.2807/2020
to 2810/2020
Rs.20,000/- by working as a Mason and the petitioner in MVC No.2810/2020 was aged about 25 years, earning Rs.20,000/- by working as a driver.
The Nelamangala traffic police have registered a case against the driver of the Car under their crime No.153/2020 under Section 279, 337 IPC. Hence, they have prayed to allow their petition.
3. The notice of the petitions have been duly served on Respondent No.1 and 2 in all the cases. The Respondent No.2 has not appeared before this Tribunal. Hence, Respondent No.2 has been placed exparte in all the cases. Respondent No.1 has appeared before this tribunal and filed its written statement in all the cases.
4. The respondent No.1 has contended that, the petition is not maintainable either in law or on facts of the case. It has contended that, the petitioner is bad for non joinder of necessary and proper parties for the adjudication of the petition and the drivers of the car bearing reg.No.KA-05-Z-2153 and Goods tempo bearing reg.No.KA-05-B-6346 without valid driving licence driven SCCH - 26 6 MVC No.2807/2020 to 2810/2020 the said vehicles on the date of accident and also the rider of the motor cycle bearing reg.No.KA-04-HY-0764 ridden the same without wearing helmet and without valid driving licence on the date of accident. It has contended that, the 2nd respondent made a proposal for motor policy of insurance in respect of the lorry bearing reg.No.TN-25-R- 2422 and remitted premium amount by way of cheque and issued a cheque in favour of this respondent. On receipt of the said cheque the insurance company issued a Insurance policy, the said Insurance policy was issued subject to realization of premium paid by cheque. On presentation of said cheque for encashment through its bankers, the same was returned UN-encashed with a bank endorsement 'funds insufficient'. Further contended that, as the premium amount paid by the 2nd respondent by way of cheque waws disnonoured, the respondent cancelled the police since inception and was not on risk on the date of accident, as such respondent is not a necessary party to the said proceedings nor there cannot be any liability on this respondent and petition has against SCCH - 26 7 MVC No.2807/2020 to 2810/2020 this respondent may kindly be rejected. With these contentions it has prayed to dismiss the petition in all the cases.
5. On the basis of the above pleadings, the learned predecessor in office has framed the following issues :
::COMMON ISSUES IN MVC 2807/2020 & MVC 2809/2020::
1. Whether the Petitioner proves that she sustained injuries when she was proceeding in a goods vehicle (tempo) bearing reg.No.KA-05-B-
6346 on 09.05.2020, at about 07.20 pm., at Bengaluru - Tumkur NH-48 service road, Madanayakanahalli bus stop, near Lakshmipura cross, Bengaluru, due to rash and negligent driving of the driver of the Lorry bearing Reg. No.TN-25-R-2422 ?
2. What compensation petitioner is entitled ?
3. What Order ?
::COMMON ISSUES IN MVC 2808/2020 & MVC 2810/2020::
1. Whether the Petitioner proves that he sustained injuries when he was proceeding in a goods vehicle (tempo) bearing reg.No.KA-05-B-
6346 on 09.05.2020, at about 07.20 pm., at Bengaluru - Tumkur NH-48 service road, Madanayakanahalli bus stop, near Lakshmipura cross, Bengaluru, due to rash and negligent driving of the driver of the Lorry bearing Reg.
SCCH - 26 8 MVC No.2807/2020
to 2810/2020
No.TN-25-R-2422 ?
2. What compensation petitioner is
entitled ?
3. What Order ?
6. In order to prove the actionable negligence, the father of minor Petitioners in MVC No.2807/2020 and MVC No.2809/2020 has examined himself as PW.1 and got marked 14 documents as Ex.P.1 to Ex.P.14. The petitioner in MVC No.2808/2020 has examined himself as PW.2 and got marked 6 documents as Ex.P.15 to Ex.P.20. The petitioner in MVC No.2810/2020 has examined himself as PW.3 and got marked 8 documents as Ex.P.21 to Ex.P.28. One Medical record officer has examined in MVC No.2807/2020 and MVC No.2809/2020 as PW.4 and got marked 2 documents as Ex.P.29 to 30, in MVC No.2808/2020 as PW.5 and got marked 4 documents as Ex.P.31 to 34 and in MVC No.2810/2020 has examined as PW.6 and got marked 4 documents as Ex.P.35 to Ex.P.38. Dr.Nagaraj.B.N. has examined as PW.7 in MVC No.2810/2020 and got marked Ex.P.39 and 40. On the other hand, Assistant Manager of the respondent No.1 has SCCH - 26 9 MVC No.2807/2020 to 2810/2020 examined as RW.1 in all the cases and got marked 10 documents as Ex.R.1 to 10 and closed their side evidence.
7. Heard the arguments from all the sides. Perused the entire records.
8. The learned counsel for petitioner has relied on the following citations reported in:
1998 ACJ 123 2000 ACJ 630 2008 ACJ 222 2020 ACJ 1778
9. The learned counsel for respondent No.1 has relied on the following citations reported in :
SLP No.6043 of 199 decided at 01.04.1991 2021 ACJ 611 ILR 2009 KAR 2776 ILR 2009 KAR 2789 2008 ACJ 725
10. My findings to the above issues are as under:
Issue No.1 in : In the Affirmative
ALL the cases
Issue No.2 in : Partly in the affirmative
ALL the cases
Issue No.3 in : As per final order for the
ALL the cases following:
SCCH - 26 10 MVC No.2807/2020
to 2810/2020
REASONS
11. ISSUE NO.1 IN ALL THE CASES:
As already stated supra the father of minor Petitioners in MVC No.2807/2020 and MVC No.2809/2020 in order to prove the actionable negligence, he has got examined as PW-1. He has filed affidavit for his chief examination. He has got marked 14 documents as Ex.P.1 to Ex.P.14. He has reiterated the averments of the petition in his affidavit filed for his examination-in-chief. Similarly, the Petitioner in MVC No.2808/2020 has examined himself as PW.2 and got marked 6 documents as Ex.P.15 to Ex.P.20. The petitioner in MVC No.2810/2020 has examined himself as PW.3 and got marked 8 documents as Ex.P.21 to Ex.P.28.
12. All the PW.1 to PW.3 in support of their version, they have produced true copy of FIR, complaint, spot panchanama, rough sketch, IMV report and charge-sheet at Ex.P.1 to 5 and 7.
13. I have perused Ex.P.1 to 5 and 7. From these documents, it is clear that the accident took place on SCCH - 26 11 MVC No.2807/2020 to 2810/2020 09.05.2020 at about 9.00 pm., and the FIR in crime No.0153/2020 came to be registered on the day of accident at Nelamangala police station for the offences punishable u/s 279, 337 of IPC against the driver of Lorry bearing reg.No.TN-70-AB-4070. Further the records reveal that thereafter the police conducted investigation and filed charge-sheet against the driver of Lorry bearing reg.No.TN- 25-R-2422 for the offences punishable u/s 279 and 337 of IPC. Ex.P.3 is the spot panchanama which describes the scene of offence. Ex.P.4 is the spot sketch which shows that the accident occurred on Tumkur - Bangalore NH - 48 service road. Ex.P.5 is the IMV report which discloses that, for the vehicle No.1 - TN-25-R-2422 front bumper, front shape, left side head light and front wind screen glass (2) broken. For the vehicle No.2 - KA-04-HY-0764 head light assembly, front both side indicator, fuel tank show shield right side, crash guard right side and handle bar damaged. For the vehicle No.3 - KA-05-Z-2153 front wind screen glass cracked, top hood, rear bumper damaged and dislocated, rear dickey door, rear right side tail lamp, rear SCCH - 26 12 MVC No.2807/2020 to 2810/2020 wind screen glass and right side rear portion body damaged and for the vehicle No.4 - KA-05-B-6346 front bumper, front both side head, indicator, front shape, front wind screen glass broken, cabin completely damaged, dash board, steering system, radiator fan damaged, engine damaged and chassis frame at left side front portion damaged. It has also opined that, the cause of accident was not due to any mechanical defects of the said motor vehicles.
14. The learned counsel for the respondent No.1 has cross examined PW-1 to 3. I have perused the entire cross- examination of PW-1 to 3 and they have denied that accident occurred due to tempo not by Lorry. Moreover, the learned counsel for the Respondent No.1 has not elicited anything from the mouth of PW.1 and 3 to disbelieve their version.
15. On the other hand, though the respondent No.1 has not challenged about the cause of accident. Therefore, there is nothing on record to show that the charge-sheet filed by the police is collusive or defective in nature.
SCCH - 26 13 MVC No.2807/2020
to 2810/2020
Moreover, it is settled law that the term "rashness and negligence" has to be construed lightly while deciding a petition for claim of compensation under the MV Act as compare to the word "rashness and negligence" as finds mention in the Indian Penal Code. This is because the provisions of M.V.Act dealing with compensation are benevolent legislation and not a penal one. Therefore, on over all appreciation of evidence, I am of the opinion that the accident occurred due to the sole negligence on the part of the driver of Lorry bearing reg.No.TN-25-R-2422 which belong to respondent No.2. Accordingly, I answer issue No.1 in the Affirmative in all the cases.
16. ISSUE NO.2 IN MVC No.2807/2020: In view of discussion made while answering issue No.1 in the affirmative, the minor petitioner is entitled for compensation. To assess the compensation, the Tribunal has to look into several factors like injury, pain and suffering sustained by the petitioner and amount spent by the petitioner towards medical expenses, food and extra nourishment and medical SCCH - 26 14 MVC No.2807/2020 to 2810/2020 attendants, conveyance, loss of income during the treatment, disability, loss of amenities etc.
17. The natural guardian/father of minor petitioner has contended that due to accident his daughter sustained grievous injuries. In order to prove the injuries caused to her, he has produced Ex.P.6 wound certificate. On perusal of Ex.P.6 it is clear that the petitioner sustained like laceration on forehead, laceration in inner surface of upper lip, laceration in right temporal region and laceration wound in right ear pinna and also doctor opines that injury No.1 is simple in nature and injuries No.2, 3 and 4 are grievous injuries. It is relevant note that the father of minor petitioner has not examined doctor to show the degree of her disability caused due to the accident. Absolutely there is nothing on record to show that the petitioner is having permanent disability due to the accident.
18. Petitioner has examined medical Record Officer at Sapthagiri Hospital has examined as PW.4 and got marked MLC extract at Ex.P.29.
SCCH - 26 15 MVC No.2807/2020
to 2810/2020
19. It is relevant to note that age of petitioner is shown as 5 years as on the date of accident. In this regard PW.1 has produced Ex.P.8 the copy of Aadhar card of petitioner. As per this document the date of birth of petitioner is shown as 12.02.2015 and the accident took place on 09.05.2020. Therefore, it is clear that as on the date of accident the petitioner was aged about 5 years.
20. At this juncture, it is relevant to refer the decision reported in 2013 ACJ 2445 between Master Mallikarjun V/s Divisional Manager, The National Insurance Company Ltd and another, the Hon'ble Supreme Court held as follows:
If the disability is upto 10% to the whole body R s . 1 lakh, above 10% and upto 30% to the whole body, Rs. 3 lakhs: upto 60%, Rs. 4 lakhs, Upto 90% Rs.5 lakhs and above 90% it should be Rs. 6 lakhs. For all other heads in addition to the actual expenditure for treatment, attendant etc.,
21. In the instant case the petitioner has not examined doctor to prove the degree of his disability. As SCCH - 26 16 MVC No.2807/2020 to 2810/2020 already stated supra, absolutely there is nothing on record to show the extent of disability of petitioner caused due to accident. Therefore, in the absence of any evidence to that effect, this Tribunal is not inclined to accept the version of the petitioner that he is having permanent disability caused in the accident. Therefore, the petitioner is not entitled for compensation under the head loss of amenities of life on account of permanent disability.
22. Towards Medical Expenses, attendant charges, food and nourishment:
The father of minor petitioner/PW.1 has not produced discharge summary but has produced Ex.P.10 - 8 medical bills of Rs.4,695/- along with one prescription marked at Ex.P.12 to show expenses incurred towards the treatment of the petitioner. Though the learned counsel for the respondent No.1 has cross examined PW.1 but has failed to elicit any thing from him to disbelieve the medical bills. Therefore, the petitioner is entitled for medical bills of Rs.4,695/-. As the petitioner has not produced SCCH - 26 17 MVC No.2807/2020 to 2810/2020 discharge summary therefore, the petitioner is entitled for a sum of Rs.4,695/- only under the head medical expenses.
23. Towards Discomfort, inconvenience and loss of earnings to the parents during the period of hospitalization:
It is relevant to note that the natural guardian of the Petitioner has not produced any document to show his avocation and income. Therefore, in the absence of documents, this Tribunal is of the opinion that, PW.1 might be earning Rs.500/- per day and he might have lost his earnings while taking care of his minor daughter who sustained injuries in an accident. Therefore, this Tribunal inclines to award sum of Rs.10,000/- under this head.
24. Therefore, the petitioner is entitled for compensation as follows:
Sl. No. Particulars Amount
1. Towards medical and Rs. 4,695/-
attendant charges, food
and nourishment
SCCH - 26 18 MVC No.2807/2020
to 2810/2020
2. Discomfort, inconvenience Rs. 10,000/-
and loss of earning to the
parents during the period
of hospitalization
Total Compensation Rs. 14,695/-
Hence, the petitioner is entitled for total compensation of Rs.14,695/-.
25. ISSUE NO.2 IN MVC No.2808/2020:- PW.2 has produced notarized copy of Aadhar card at Ex.P.17. As per this document the date of birth of PW.2 is shown as 06.01.2003 and it indicates that he was aged about 17 years as on the date of accident.
26. PW.2 has deposed that prior to the accident he was hale and healthy, working as a Mason and earning sum of Rs.20,000/- per month. But he has not produced single piece of document to show his avocation and income. Petitioner has deposed that, due to injuries sustained in the accident he is getting frequent pains in his right eye and his right eye vision become blur sometimes and starts watering.
27. PW.2 has produced wound certificate marked at Ex.P.15 which discloses lacerated wound on right frontal SCCH - 26 19 MVC No.2807/2020 to 2810/2020 region above right eye brow, sutured in outside hospital, abrasion on left ring finger, pain in the right eye - CT showed right eye upper eyelid foreign body. PW.2 has produced discharge summary marked at Ex.P.16 and as per which he took treatment from 10.05.2020 to 13.05.2020 i.e., for 4 days. PW.2 has produced 9 medical bills amounting to Rs.10,738/- along with Ex.P.19 - advance receipt and Ex.P.20 - 2 prescriptions.
28. Petitioner has examined medical Record Officer at Sapthagiri Hospital has examined as PW.6 and got marked Authorization letter, MLC register, OPD book, case sheet and X-ray at Ex.P.31 to 34.
29. So far as the quantum of compensation is concerned, Petitioner has sought for compensation of Rs.10,00,000/- for the injuries sustained by him in road traffic accident. But, there is no evidences that the Petitioner is suffering from any difficulties which would affect his livelihood and day-to-day activities and earning capacity. In the absence of medical evidence to prove disability, I deem it proper to award global compensation.
SCCH - 26 20 MVC No.2807/2020
to 2810/2020
By considering the nature of injuries, age of the petitioner Rs.50,000/- as global compensation under all the conventional heads with interest @ 6% p.a. from the date of petition till its realization.
30. ISSUE NO.2 IN MVC No.2809/2020: In view of discussion made while answering issue No.1 in the affirmative, the minor petitioner is entitled for compensation. To assess the compensation, the Tribunal has to look into several factors like injury, pain and suffering sustained by the petitioner and amount spent by the petitioner towards medical expenses, food and extra nourishment and medical attendants, conveyance, loss of income during the treatment, disability, loss of amenities etc.
31. The natural guardian/father of minor petitioner has contended that due to accident his daughter sustained grievous injuries. In order to prove the injuries caused to her, he has produced Ex.P.13 wound certificate. On perusal of Ex.P.13 it is clear that the petitioner sustained pain in the right foot and X-ray SCCH - 26 21 MVC No.2807/2020 to 2810/2020 showed metatarsal fracture and POP was applied and also doctor opines that injury No.1 is grievous in nature. It is relevant note that the father of minor petitioner has not examined doctor to show the degree of her disability caused due to the accident. Absolutely there is nothing on record to show that the petitioner is having permanent disability due to the accident.
32. Petitioner has examined medical Record Officer at Sapthagiri Hospital has examined as PW.4 and got marked MLC extract at Ex.P.30.
33. It is relevant to note that age of petitioner is shown as 5 years as on the date of accident. In this regard PW.1 has produced Ex.P.14 the copy of Aadhar card of petitioner. As per this document the date of birth of petitioner is shown as 11.04.2013 and the accident took place on 09.05.2020. Therefore, it is clear that as on the date of accident the petitioner was aged about 7 years.
34. At this juncture, it is relevant to refer the decision reported in 2013 ACJ 2445 between Master Mallikarjun V/s Divisional Manager, The National SCCH - 26 22 MVC No.2807/2020 to 2810/2020 Insurance Company Ltd and another, the Hon'ble Supreme Court held as follows:
If the disability is upto 10% to the whole body R s . 1 lakh, above 10% and upto 30% to the whole body, Rs. 3 lakhs: upto 60%, Rs. 4 lakhs, Upto 90% Rs.5 lakhs and above 90% it should be Rs. 6 lakhs. For all other heads in addition to the actual expenditure for treatment, attendant etc.,
35. In the instant case the petitioner has not examined doctor to prove the degree of his disability. As already stated supra, absolutely there is nothing on record to show the extent of disability of petitioner caused due to accident. Therefore, in the absence of any evidence to that effect, this Tribunal is not inclined to accept the version of the petitioner that he is having permanent disability caused in the accident. Therefore, the petitioner is not entitled for compensation under the head loss of amenities of life on account of permanent disability.
36. Towards Medical Expenses, attendant charges, food and nourishment:
SCCH - 26 23 MVC No.2807/2020
to 2810/2020
The father of minor petitioner/PW.1 has not
produced discharge summary and any medical bills. Therefore, the petitioner is not entitled compensation under this head.
37. Towards Discomfort, inconvenience and loss of earnings to the parents during the period of hospitalization:
It is relevant to note that the natural guardian of the Petitioner has not produced any document to show his avocation and income. Therefore, in the absence of documents, this Tribunal is of the opinion that, PW.1 might be earning Rs.500/- per day and he might have lost his earnings while taking care of his minor daughter who sustained injuries in an accident. Therefore, this Tribunal inclines to award sum of Rs.10,000/- under this head.
38. Therefore, the petitioner is entitled for compensation as follows:
Sl. No. Particulars Amount
1. Towards medical and --
attendant charges, food
SCCH - 26 24 MVC No.2807/2020
to 2810/2020
and nourishment
2. Discomfort, inconvenience Rs. 10,000/-
and loss of earning to the parents during the period of hospitalization Total Compensation Rs. 10,000/-
Hence, the petitioner is entitled for total compensation of Rs.10,000/-.
39. Issue No.2 in MVC No.2810/2020: The Petitioner/PW.3 states that he was aged about 25 years as on the date of accident. Due to the accident he has sustained grievous injuries. Immediately he was taken to Lifeline Hospital after first aid treatment he was taken to Sapthagiri Hospital wherein he took treatment as an inpatient. As per 2 discharge summaries marked at Ex.P.22 of Sapthagiri Hospital, he took treatment from 10.05.2020 to 28.05.2020 i.e., for 19 days. At the time of accident, he was a working as Driver under one Bheemsase G and earning Rs.20,000/- per month. Due to the accidental injuries he is unable to do the said work. He has lost his normal life as earlier and suffering huge loss of income.
SCCH - 26 25 MVC No.2807/2020
to 2810/2020
40. Petitioner has examined medical Record Officer at Sapthagiri Hospital has examined as PW.6 and got marked Authorization letter, MLC register, case sheet and 10 X-rays at Ex.P.35 to 38.
41. Petitioner has also examined Dr.Nagaraj.B.N. as PW.7 and got marked Ex.P.39 and 40. He has deposed that, a patient by name Laxman aged 28 years came to him on 5.1.2023 for assessment of disability. He gave an alleged history of accident on 9.5.2020 and sustained closed fracture of the right femur midshaft and right distal tibia. The petitioner was treated at Spathagiri Hospital with CRIF with IMIL nail for the right femur and right tibia and later discharged, he said he was on regular follow and the fractures united. The petitioner complains of weakness and pain in the right lower limb, unable to walk normally, unable to sit down, squat and sit cross leg. On examination the petitioner has limping gait, wasting of the right lower limb muscles, restricted right lower limb movements. The recent X-ray of the right thigh and right leg shows united fracture of the femur SCCH - 26 26 MVC No.2807/2020 to 2810/2020 and tibia with implant in situ. PW.7 assessed total disability of the right lower limb at 63% and 21% to the whole body physical disability.
42. During cross examination PW.7 has deposed that, he has not treated the petitioner. He has admitted that, the fracture is at middle shaft and it is a closed fracture. The fracture of tibia is also a closed fracture. further admitted that, both fractures were operated on the same day and implants were inserted. As per recent examination all the fractures are united and implants are in situ. Further deposed that there are no complications at the fracture sights, there is no physical loss of muscles, the scar is clean and there is no deformity and infection. Further admitted that, if the implants are removed the present restrictions may vary. There is no neuro vascular deficit, there is no loss of tissues. Further admitted that, there is no injuries to the joint, one has to to for physio therapy to regain muscle strength. Ongoing through the cross examination of PW.7 it can be seen that, the disability assessed by the PW.7 is higher in side.
SCCH - 26 27 MVC No.2807/2020
to 2810/2020
43. Therefore by considering the evidence on record and doctor opinion, I am of the opinion that, the disability of the petitioner has to be taking into consideration for his physical disability to award compensation. So, in view of all these circumstances, the petitioner is entitled for the compensation under the following different heads:
44. LOSS OF FUTURE EARNINGS ON THE ACCOUNT OF DISABILITY.
According to the petitioner he was working as an driver and earning Rs.20,000/- per month. To support of his claim with respect to avocation and earnings, he has not produced any document nor examined concerned person. Therefore, the income of the petitioner has to be taken into consideration as notional income.
45. At this juncture, I would like to refer the decision of Yashoda.H and others V/s. Sharath Kumar Achar and another. In this case the Hon'ble High Court has taken into consideration the notional income as fixed by the Karnataka Legal Service Authority, Bengaluru.
SCCH - 26 28 MVC No.2807/2020
to 2810/2020
Therefore, in view of the above decision, the accident was occurred during the year 2020. Therefore, Rs.14,500/- has to be taken into consideration as monthly income of the petitioner.
46. The Petitioner has stated that he was aged about 25 years, in support of his age he has produced his Aadhar card at Ex.P.23, as per which he was born 15.05.1994 and he was aged about 26 years as on alleged accident. Therefore, the proper multiplier applicable to be the case on hand is '17'.
47. The Petitioner claims that due to accidental injuries he is getting frequent pain in right leg due to non union of fracture, he use to walking stick as support to walk, there is shortening of the right lower limb by one inch and limp while walking, he is not able to bear weight on his right leg, he is not able to stand for a long time, he is not able to walk a long distance, not able to climb stairs, not able to use Indian toilet system, not able to run, not able to sit with crossed leg, not able to sleep on his right side, his right part of the body has become SCCH - 26 29 MVC No.2807/2020 to 2810/2020 weak, not able to ride/drive any vehicle and become permanent handicapped person for his lifetime.
48. PW.7 assessed total disability to the whole body at 21%. For the purpose of calculation of loss of future income, considering the evidence of PW.7, I am of the opinion that, it is proper to take 7% disability to the whole body. Hence the petitioner is entitled for the compensation of Rs.2,07,060/- (Rs.14,500/- X 12 X 17 X 7/100) towards loss of future income on the account of disability of the petitioner.
49. PAIN AND SUFFERINGS: So far as the compensation under non-pecuniary damages are concerned, considering the fact that the Petitioner has suffered grievous injuries and in total he was inpatient for a period of 19 days which caused him to immeasurable mental agony and pain. Hence, I am of the opinion that an amount of Rs.40,000/- would be just and proper compensation under the head pain and sufferings.
50. LOSS OF AMENITIES:- Further on perusal of SCCH - 26 30 MVC No.2807/2020 to 2810/2020 evidence of PW.3, it reveals that, petitioner has sustained injury and the same is mentioned above paras. The petitioner was aged about 26 years at the time of accident. Considering the above facts and on perusal of evidence of PW.3 and PW.7, considering the nature of injuries sustained by the petitioner, I deem it just and reasonable to grant for compensation of Rs.30,000/- under the head of loss of amenities.
51. ATTENDANT, FOOD AND NOURISHMENT AND CONVEYANCE CHARGES: As per Ex.P.22 discharge summary of Sapthagiri Hospital he took treatment from 10.05.2020 to 28.05.2020 i.e., for 19 days. Therefore, it is just and reasonable to award compensation of Rs.27,000/- under the head of conveyance, food, nourishment and attendant charges.
52. LOSS OF INCOME DURING LAID UP PERIOD AND REST PERIOD:- With regard to loss of earnings during treatment, considering 19 days and around 4 months for rest is considered and loss of earnings during SCCH - 26 31 MVC No.2807/2020 to 2810/2020 treatment is calculated for 3 months. As the monthly income of the Petitioner is already considered as Rs.14,500/- per month, Petitioner is awarded Rs.43,500/- towards loss of earning during laid up period.
53. MEDICAL EXPENSES:- Under the pecuniary damages, expenses relating to treatment, Hospitalization and medicines, the Petitioner has relied on Ex.P.24 - 55 medical bills to a tune of Rs.1,55,114/-, 6 advance receipts marked at Ex.P.25, 6 prescriptions marked at Ex.P.26, 11 X-rays marked at Ex.P.27, 5 CT scan reports marked at Ex.P.28. On perusal of these bills, it appears to be genuine in the absence of challenge. Therefore, the Petitioner is entitled for medical expenses of Rs.1,55,114/- towards Medical Expenses.
54. FUTURE MEDICAL EXPENSES:- PW.7 has deposed that petitioner need another surgery for removal of implants and the estimated cost of the surgery is around Rs.60,000/-. But he has not produced any estimation regarding the same. Therefore, petitioner is SCCH - 26 32 MVC No.2807/2020 to 2810/2020 inclined to award Rs.10,000/- towards Future Medical Expenses.
Sl. Compensation heads Amount
No.
1. Loss of future earning Rs. 2,07,060/- capacity due to permanent disability
2. Towards Pain and Rs. 40,000/-
Sufferings
3. Towards loss of Amenities Rs. 30,000/-
4. Towards attendant, food Rs. 27,000/- and nourishment and conveyance charges
5. Towards loss of income Rs. 43,500/- during laid up period and rest period
6. Towards medical expenses Rs. 1,55,114 /-
7. Towards future medical Rs. 10,000/-
expenses
TOTAL Rs. 5,12,674/-
By considering the above facts and circumstances of the case and for the above reasons, I am of the opinion that, the petitioner is entitled for total compensation of Rs.5,12,674/- under the following heads:
55. REGARDING INTEREST & LIABILITY: Having regard to the nature of the claim and current bank rate of SCCH - 26 33 MVC No.2807/2020 to 2810/2020 interest, this Tribunal is of the view that if interest at the rate of 6% p.a, is awarded, it would meet the ends of justice.
56. The respondent No.1 is the insurer and Respondent No.2 is the owner of the offending Lorry bearing reg.No.TN-25-R-2422. At this juncture lets go through the documents produced by the respondent No.1/insurance company. Ex.R.2 is the cancelled insurance policy effect from 04.02.2020 to midnight of 03.02.2021. Ex.R.3 is the endorsement wherein it has mentioned that ' it is hereby declared that consequent upon dishonour of cheque, this policy has become void abinitio for want of consideration. Therefore, the company shall have no liability of whatsoever nature under this policy'. Ex.R.4 is the cheque which issued on dated 04.02.2020 by one Kanagaraj.N. Ex.R.5 is the legal notice issued to the respondent No.2/R.Amul S/o. Ravi i.e., owner of the Lorry wherein it is clearly mentioned that, 'it is therefore understood and declared that the above policy stands cancelled ab initio due to non-receipt SCCH - 26 34 MVC No.2807/2020 to 2810/2020 of consideration and our company is not on risk nor any claim will be entertained'. Ex.R.6 is the return notice cover. Ex.R.6(a) is the return notice copy about the dishnoured cheque. Ex.R.7 is the notice to the RTO, Thiruvanamalai wherein it has mentioned that the vehicle No.TN 25 R 2422 vide policy No.413502/31/2020/7562 for the period from 04.02.2020 to 03.02.2021. Since the cheque issued by the client towards premium was dishonoured, the policy stands cancelled at our end right from inception of the policy. And also mentioned that, ' This is to inform you that there is no cover for vehicle No.TN 25 R 2422'.
Ex.R.8 is the bank endorsement memo regarding insufficient funds. Ex.R.9 is the receipt and Ex.R.10 is the compliance of Section 64VB. Ongoing through the above said documents, it can be come to the conclusion that, the date of accident is on 09.05.2020 nearly about after 3 months of issuance of cheque and validity of policy which was cancelled by the insurance company.
57. As regarding liability is concerned, there is SCCH - 26 35 MVC No.2807/2020 to 2810/2020 serious dispute raised by the respondent no.1 regarding the validity of insurance policy issued to the offending vehicle and contended that the insurance policy was issued in respect of offending vehicle subject to section 64VB of the Insurance Act, that the policy had been obtained by the respondent No.2 by issuing cheque in favour of respondent No.1 towards premium of Rs.51,506/, the cheque issued towards premium was dishonored for the reason "Insufficient fund'', there for the policy was cancelled as void ab initio for want of premium i.e non-compliance of section 64VB of the Insurance Act by serving notice as required under law and cancelled, therefore no policy was subsisting on the date of accident, hence respondent no.1 is not liable to indemnify the second respondent against the award that may be awarded in favour of the petitioner and respondent no.2 being the owner alone is held responsible for payment of compensation.
58. The learned counsel for the respondent no.1 in support of their contention have referred the ruling reported in SLP No 6043 of 1991 between United India SCCH - 26 36 MVC No.2807/2020 to 2810/2020 Insurance Co.Ltd., Vs. Ayeb Mohammed & Ors., it was held that "The fact that the cheque had bounced was a matter within the knowledge of the insured. At any rate, there would be that presumption and, therefore, in ordinary circumstances no special notice would be required".
59. In 2021 ACJ 611 In the High court of Telengana at Hyderbad between Liberty General Insurance Company Limited / Haseena and Others.
In the said case held that :
"cheque towards premium was dishonoured and insurance company cancelled policy under intimation to the owner of the offending vehicle and transport authority concerned before the date of accident. Tribunal found that intimation was not served on the owner / transport authority and directed the insurance company to pay compensation and then recover the amount from owner. Insurance company proved that communications were served on owner and transport authority. It was held that tribunals finding is contrary to the evidence produced by insurance company. Insurance company is not liable as the policy was not in force on the date of accident, the owner alone is liable".
60. In ILR 2009 KAR 2776 between The National Insurance Company Limited / Kumari Martina and SCCH - 26 37 MVC No.2807/2020 to 2810/2020 Another.
Where in it was held that:
"The insurance company is not liable to satisfy the claim made by the claimant on cancellation of the insurance policy. The insurance contract being one without consideration is void in terms of section 25 of the contract Act and as a necessary corollary; the insured cannot have the coverage of the policy and demand performance of indemnity by the insurer. It is further observed that "if the insured makes up the premium even after the cheque was dishonoured but before the date of accident, it would be different case as payment of consideration can be treated as paid in the order in which the nature of transaction required it".
61. In 1(2009) CPJ 145 (NC) National Consumer Disputes Redressal Commission New Delhi between Oriental Insurance Company Limited / Sudhir Kumar Wadhwa and Another :
In the said case Held that " the cheque issued towards premium was dishonoured. It was held that if adequate balance kept in account to honour the cheque is not proved then owner is liable to pay compensation but not insurer".
62. In 2008 ACJ 1528 between United India SCCH - 26 38 MVC No.2807/2020 to 2810/2020 Insurance Company Limited Vs Suresh Chandrayya Haladevaramath and Others.
In the said case held that "Motor Vehicles Act,1988- Section 147(1)- Moto insurance- Dishonour of cheque-Policy- cancellation of - Liability of insurance company-Cjheque issued towards premeium was dishonoured, insurance company cancelled the policy, intimation of cancellation was given to the insured and regional transport office was informed-Whether the insurance company is liable-held : no; there was no effective policy on the date of accident".
63. Per contra it is vehemently submitted by the learned counsel for petitioner that even though cheque was dishonored but no notice of dishonor of the cheque was issued to the owner and that though the respondent No.2 has not issued cheque and cheque issued by Kangaraj.N on 04-02-2020. But the respondent No.1 has presented the cheque on 18-02-2020 and that when cheque was dishonoured for the reason insufficient fund and the petitioner being third party to the contract to suffer. Hence submitted that respondent no.1 is liable to pay the compensation.
SCCH - 26 39 MVC No.2807/2020
to 2810/2020
64. The learned counsel for the petitioner at this juncture has referred the ruling reported in 2000 ACJ 630 Between National India assurance Co.Ltd Vs Rula and Others.
It is held that " Motor Vehicles Act 1988 ,Sections 147(5) and 149(1), insurance Act 1938, Section 64-VB anbd contract Act 1872, Section 2- Motor Insurance-Policy-Dishonour of cheque-Liability of insurance company-Policy was issued on 08-11-1991 and cheque towards premium was dishonoured on 16-11-1991-Vehicle met with accident during midnight on 08-11-1991 resulting in death of 3 persons-Insurance company contnede that policy represents a contrct between insurar asnd insured for consideration of premium and if premium is not paid,the contract would not be valid as there Insurance Act,ni risk would be assumed unless premium was recived in advance- contract of insurance under chapter XI of motor vehicles Act contrmplets a third party who is not a party to the contract but is protected by it -whether insurance company is exempted from third party liability if accrual of liability-Helf: no; payment of premeium is not concern of third policy;subsquent cancellation of policy due to dishonour of cheque would not affect the rights of a third party which had accrued on the dtae of accident".
65. The learned counsel for the petitioner at this SCCH - 26 40 MVC No.2807/2020 to 2810/2020 juncture has referred the ruling reported in 1998 ACJ 123 Between Oriental Insurance Co. Ltd Vs Indrajit Kaur and Others.
It is held that :
" Motor Vehicles Act, 1988, sections 147(5) and 149(1) and Insurance Act, 1938, section 64-VB-Motor insurance - policy - Dishonour of cheque - liability of insurnace compnay - policy was issued but the cheque towards premium was dishonoured - Insurance company sent a letter to the insured stating that the cheque had not been encahsed therefore the insurance company was not at risk - Before the premium was paid in cash the vehicle met with accident resulting in the death of driver of another vehicle - Insurance company denied the liability asserting that under section 64-VB of the Insurance Act no risk was assumed unless the premium had been received in advance - Tribunal rejected the contention and mulcted the liability on the insurance company - High Court summariy dismissed the appeal of the insurance company - Whether the insurance company is liable for third party risk - Held: yes; dispite the bar created by section 64 - VB, the insurance company issued a policy to cover the bus without receiving the premium; by reason of the provisions of sections 147 (5) and 149(1), the insurance compnay became liable to indemnify third party liability".
SCCH - 26 41 MVC No.2807/2020
to 2810/2020
66. The learned counsel for the petitioner at this juncture has referred the ruling reported in 2020 ACJ 1778 Between Divisional Mananger, United India Insurance co.Ltd V/s Shilpa and another.
It is held that -
"Motor vehicle Act, 1988. section 147 (1) - Motor Insrance - dishonour of cheque - policy
- cancellation of - liability of insurance company - Accident occurred on 19.1.2006 and policy was issued for period from 1.6.2005 to 31.5.2006 - contention that cheque issued towards premium was dishonoured and insurance compnay cancelled the policy under intimation to the owner - insured and there was no insurance coverage of the vehicle at the time of accident - noitce in respect of dishonour of cheque was served througyh courier and signature on the cheque which was dishonoured is different from the signature of the owner as found on courier receipt - Insurance company did not produce the application / proposal form to explain the discrepancy in the signatures of the owner - Whether insurance company is liable - Held; yes; owner of vehicle was not aware about the cancellation of policy onh the date of accident. Further held that " Motor Vehicle Act, 1988, Section 168(1)- Just compensation - Whether court can award compensation more than claimed in order to provide just compensation - Held; Yes".
SCCH - 26 42 MVC No.2807/2020
to 2810/2020
67. But in the present case the insurance policy was cancelled much prior to the accident because of the dishonour of cheque and even after dishonour of cheque the respondent no.2 has not paid the premium amount either by cash or any other mode. Under such circumcises the order passed by the hon'ble Supreme Court in the above case holding the insurance company to pay the compensation cannot be applied in the case in hand.
68. In 2008 ACJ 581 (SC) between Dodappa and Others Vs Branch Manager, National Insurance Company Limited:
In the said case "the cheque issued towards premium was dishonoured and accident in question occurred much after the communication of cancellation of policy. It was observed that section 64VB of the Insurance Act provides for issuance of a valid policy only on receipt of payment of premium and no risk is to be assumed unless premium is received. A contract is based on reciprocal promise; reciprocal promises by the parties are conditions precedent for a valid contract.
69. The Hon'ble High court held that insurance company was not liable. The Hon'ble supreme court even SCCH - 26 43 MVC No.2807/2020 to 2810/2020 has held that insurance company is not liable to pay compensation. But as the claimants hail from the lowest strata of society the Hon'ble Supreme Court in exercise of extraordinary jurisdiction under Article 142 of the constitution directed the insurance company to pay the amount of compensation to the petitioners.
70. The extraordinary jurisdiction under Article 142 of constitution can be exercised only by the Hon'ble High court and by the Hon'ble Supreme court but not by the tribunal. Hence on merits of the case if this court comes to the conclusion that the insurance company had cancelled the policy and communicated the cancellation of policy to the owner much earlier to the accident, under such circumstances this court cannot exercise power under Article 142 of Constitution which is exclusively conferred on the Hon'b;e High court and Supreme court so as to order the insurance company to pay the compensation and then to recover the same from the respondent no1.
71. In 2014 (3) AIR Kar 59 between Thyagaraj / SCCH - 26 44 MVC No.2807/2020 to 2810/2020 Siddamma and Another. IN the said case it was observed by the Hon'ble High court that " the letter of cancellation of policy was sent to the owner through certificate of posting and there is no evidence of proper service of letter of communication through certificate of posting and further observed that since letter of communication is sent through Certificate of positing no presumption under section 27 of the General Clauses Act can be made about due service of notice to the owner. Hence by holding that the company though has cancelled the policy but has not followed the proper procedure of communication hence there is no proper cancellation of the policy and in the circumstances the course open to the insurance company is to proceed for recovery of consideration due under the cheque in accordance with law".
72. If the judgment above referred is carefully perused, it is on the ground that there was no proper communication of cancellation of policy hence there is no proper cancellation of policy the hon'ble high court has ordered the insurance company to pay the compensation and to recover from the owner.
73. Coming to the case in hand, the respondent no.2 SCCH - 26 45 MVC No.2807/2020 to 2810/2020 did not appear in these petitions and contested the matter and not challenged the oral and documetnaary evidence of Rw-1 insurance company.
74. If the materials placed on record is perused. It is not in dispute that the respondent no.2 made proposal for motor policy of insurance in respect of the offending vehicle and remitted premium amount by way of cheque at ExR-4 through one Kangaraj N. On receipt of the cheque the respondent no 2 issued insurance policy. It is further not in dispute that the said insurance policy was issued subject to the realisation of premium paid by cheque. It is not in dispute that the said cheque was presented on 18-02-2020. The accident in question has occurred three months after the issuance of cheque and same was dishonoured for the reason insufficient fund.
75. In order to prove the service of notice to the respondent No.2 regarding dishonour of the cheque, the respondent no.1 has produced the copy of notice and the notice for having returned the notice as per ExR.6 as Door locked. Though the respondent no.2 has not SCCH - 26 46 MVC No.2807/2020 to 2810/2020 disputed the service of notice and the respondent no.2 during his evidence, he has not adduced evidence and rebuttal the evidence of Rw-1 and documents produced by the respondent No.1 insurance company. When the notice is issued to the correct address of the respondent no.2 through RPAD presumption can be drawn under section 27 of the General Clauses Act regarding due service of notice.
76. By considering the said fact it can be said that the intimation regarding dishonour of the cheque is duly served to the respondent no.2. In spite of that for a period of nearly three months the respondent no .2 has kept mum without taking necessary steps to pay the premium amount. As accident in question has occurred after three months of the issuance of cheque towards premium, even after dishonour of cheque and service of notice regarding dishonour of cheque there was nearly three months' time to the respondent no.2 to pay the premium amount and he could have paid the premium amount in the said period but he has kept mum.
SCCH - 26 47 MVC No.2807/2020
to 2810/2020
77. Again on going through Ex.R.2 is the cancelled insurance policy effect from 04.02.2020 to midnight of 03.02.2021. Ex.R.3 is the endorsement wherein it has mentioned that 'it is hereby declared that consequent upon dishonour of cheque, this policy has become void abinitio for want of consideration. Therefore, the company shall have no liability of whatsoever nature under this policy'. In law also, the non-payment of the premium of the insurance makes the policy invalid, which can also mentioned in Ex.R.3. The dishonour of the cheque is within the knowledge of the respondent No.1. Rw.1 has clearly deposed that, ಆಪಾದಿತ ಲಾರಿ ವಾಹನಕ್ಕೆ ದಿನಾಂಕ 04.02.2020 ರಿಂದ 05.02.2021ರವರೆಗೆ insurance policy valid ಇರುತ್ತದೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ಸದರಿ ಲಾರಿ ವಾಹನಕ್ಕೆ ನೀಡಿದ insurance policy ಅನ್ನು ಚೆಕ್ ಮುಖಾಂತರ ಪ್ರಿಮಿಯಂ ಹಣ ಕಟ್ಟಿದ್ದರಿಂದ ನೀಡಿದ್ದೆವು ಅದರೆ ಸದರಿ ಚೆಕ್ಕು Insufficient funds ಅನ್ನು ವ ಕಾರಣದಿಂದ ಚೆಕ್ಕು ಅಮಾನ್ಯಗೊಂಡಿದ್ದರಿಂದ ಪಾಲಿಸಿಯನ್ನು cancel ಮಾಡಿರುತ್ತೇವೆ. Ex.R.5 is the legal notice issued to the respondent No.2/R.Amul S/o. Ravi i.e., owner of the Lorry wherein it is clearly mentioned that, 'it is SCCH - 26 48 MVC No.2807/2020 to 2810/2020 therefore understood and declared that the above policy stands cancelled ab initio due to non-receipt of consideration and our company is not on risk nor any claim will be entertained' wherein the condition is clearly stated about the cancellation of policy due to dishonour of cheque. Moreover, the cheque which was issued towards the premium of insurance policy much earlier to the accident. Respondent has produced Ex.R.10 Certified copy of certificate of compliance of Section 64VB. As per Section 64-VB of the Insurance Act, no risk is to be assumed unless premium is received in advance. No doubt, in the instant case also, cheque was issued towards payment of the premium, but was dishonored, almost 3 months prior to the accident itself.
78. As per the judgment of the Hon'ble High Court of Karnataka in MFA No.6592/2012, in the case of TATA AIG General Insurance Co. Ltd., vs. G. Srinath and others. In the said judgment, the Hon'ble High Court of Karnataka has held as follows.
14. This issue was elaborately dealt by the SCCH - 26 49 MVC No.2807/2020 to 2810/2020 Hon'ble Apex Court in the decision reported in 'UNITED INDIA INSURANCE CO. LTD. VS.
LAXAMAMMA AND OTHERS', 2012 (3) TAC 8 (SC). In the said case, the accident has occurred on 11-05-2004 and insurer cancelled the policy of insurance by communication dated 13-05-2004 on the ground of dishonor of the cheque which was received by the owner of the vehicle on 21- 05-2004. Hence, the Hon'ble Apex Court has held that the company was liable to satisfy the award with liberty to recover the same from owner/insured. As per Section 64-VB of the Insurance Act, no risk is to be assumed unless premium is received in advance. No doubt, in the instant case, cheque was issued towards payment of the premium, but it was dishonored, five months prior to the accident itself and the same was intimated to the owner. But, the owner did not bother to take appropriate steps in this regard. Interestingly he has not disputed the receipt of the notice and he has not even entered into witness box.
15. As per Insurance Regulatory and Development Authority Notification dated 16-10- 2002, Regulation 4 deals with commencement of the risk and it specifically states that in all the cases of risk covered by the policies issued by the SCCH - 26 50 MVC No.2807/2020 to 2810/2020 insurer, the attachment of the risk to an insurer will be consonance with the terms of 64 VB of the Insurance Act and except in the cases where premium has been paid in cash. It is further observed that in all other cases, the insurer shall be on risk only after receipt of the premium by the insurer. The proviso also clearly discloses that if the premium is not realized, then the policy shall be treated as void ab initio. The said regulation is directly applicable to the case on hand and looking to these facts and circumstances, the tribunal has erred in fastening the liability on appellant/respondent No.3 rather than the respondents No.1 and 2. The tribunal has not appreciated Ex.R1 to Ex.R4 along with the provisions of Insurance Act and Regulatory Board Notification and in a mechanical way, fastened the liability on insurance company even without making any order of pay and recover though admittedly the cheque paid towards insurance premium was dishonored. Hence, the entire approach of the tribunal is erroneous and call for interference.
79. As per the judgment of the Hon'ble High Court of Karnataka in MFA No 1975/2015 Between Gowramma and Ors / Asham and ors decided by hon'ble High court SCCH - 26 51 MVC No.2807/2020 to 2810/2020 Bangalore decided on 7/12/2023. In the said judgment, the Hon'ble High Court of Karnataka has held as follows.
In the said case also cheque issued by respondent No.1 towards payment of premium was returned, hence the insurance company taken the stand that they have cancelled the policy by issuing notice to the respondent no1. The hon'ble high court has observed that when policy was cancelled by intimating to the RTO, when notice is issued to the owner of the vehicle about dishonor of the cheque and when respondent no1 has not disputed the bouncing of cheque and due service of notice to him, the question of claimant raising the said issue does not arise at all. Further when the premium itself is not paid the question of liability under the contract does not arise at all. A contract without consideration is void. Further under section 64VB of Insurance Act if the cheque is dishonored, then the policy is void ab initio, under such circumstances the liability if any is required to be on respondent no1 owner and not the insurance company.
80. In (2012 ) 5 SCC 234 between United India Insurance Company Limited / Laxmamma and Others it SCCH - 26 52 MVC No.2807/2020 to 2810/2020 was held that where the policy of insurance is issued by an authorised insurer to cover a vehicle on receipt of the cheque paid towards premium and the cheque gets dishonoured and before the accident of the vehicle occurs, such insurance company cancels the policy of insurance and sends intimation thereof to the owner, the insurance company's liability to indemnify the third patties which that policy covered ceases and the insurance company is not liable to satisfy awards of compensation in respect thereof.
81. Hence when premium itself is not paid, the question of liability under contract does not arise. Though there was every opportunity for the respondent no.2 to pay the premium amount even after the dishonor of cheque but he did not pay the same. In view of the provision of Insurance Act and under contract act, when the premium paid by way of cheque is not encashed, automatically contract ceases and as per the insurance act the policy becomes void ab initio. Apart from that, in the instant case the intimation was also delivered by the insurance company. In this case at this stage, there are SCCH - 26 53 MVC No.2807/2020 to 2810/2020 no evidence to disbelieve the evidence placed by RW.1- respondent No.1/Insurance company about the non- subsistence of the policy in view of the dishonour of the cheque issued towards premium as on the date of accident. Hence, irrespective of the production of the lengthy evidence in installments, lengthy cross- examination, lengthy submissions, the respondent No.1- Insurance Company is not liable to indemnify the respondent No.2. Therefore, the Judgments cited above by respondent No.1 are directly applicable to the facts and circumstances of the present case. Under such circumstances the liability is required to be on the respondent No.2 the owner and not on the insurance company. Hence by fastening liability on the respondent No.2, this court directs the respondent No.2 to pay compensation to the petitioner along with interest at 6% per annum from the date of accident till the date of payment of entire amount. Accordingly Issue No.2 is answered in partly affirmative in both the cases.
82. ISSUE NO.3 IN ALL THE CASES: In view of the SCCH - 26 54 MVC No.2807/2020 to 2810/2020 discussion made supra, this Tribunal proceeds to pass the following :
-: ORDER :-
The petitions filed under Section 166 of M.V Act 1988, are hereby partly allowed with costs in the following terms :
The petitioner in MVC No.2807/2020 is entitled for compensation of Rs.14,695/- (Rupees fourteen thousand six hundred ninety five only) with interest at the rate of 6% p.a. from the date of petition till its realization. The petitioner in MVC No.2808/2020 is entitled for compensation of Rs.50,000/- (Rupees fifty thousand only) with interest at the rate of 6% p.a. from the date of petition till its realization.
The petitioner in MVC No.2809/2020 is entitled for compensation of Rs.10,000/- (Rupees ten thousand only) with interest at the rate of 6% p.a. from the date of petition till its realization.
The petitioner in MVC No.2810/2020 is entitled for compensation of Rs.5,12,674/- (Rupees five lakh twelve thousand six hundred and seventy four only) with interest at the rate of 6% p.a. from the date of petition till its SCCH - 26 55 MVC No.2807/2020 to 2810/2020 realization.
The expenses to be incurred for future medication shall not carry any interest.
The respondent No.2 is liable to pay compensation to the petitioners in all the cases. However, the respondent No.2 being owner of the offending Lorry is directed to deposit the compensation amount in this tribunal within two months from the date of this order.
After deposit of compensation amount in all the cases, release the entire amount to the respective petitioner through NEFT/RTGS by way of E-payment on proper identification.
The petition filed U/sec.166 of M.V. Act is hereby dismissed against Respondent No.1/Insurance company in all the cases. Advocate fee is fixed at Rs.1,000/- each in all the cases.
Draw separate award accordingly. (The original copy of this judgment be kept in MVC No.2807/2020 and copy of the same be kept in MVC No.2808/2020 to MVC No.2810/2020 ) (Dictated to the stenographer, directly over computer, typed by her, corrected by me and then pronounced in the open Court on this day 30th October 2024) (APPASAB NAIK) XXIV ADDL. SCJ & ACJM, MEMBER, MACT, BENGALURU.
SCCH - 26 56 MVC No.2807/2020
to 2810/2020
::A N N E X U R E::
I. LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONERS:
PW.1 Monappa
PW.2 Ashoka
PW.3 Lakshman @ Laxman
PW.4 D.Srinivasaiah
PW.5 D.Srinivasaiah
PW.6 D.Srinivasaiah
PW.7 Dr. Nagaraj.B.N
II. LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONERS:
MVC No.2807/2020
Ex.P.1 FIR
Ex.P.2 Complaint
Ex.P.3 Spot Panchanama
Ex.P.4 Rough sketch
Ex.P.5 IMV report
Ex.P.6 Wound certificate
Ex.P.7 Charge sheet
Ex.P.8&9 2 Aadhar cards
Ex.P.10 8 Medical bills of Rs.4,695/-
Ex.P.11 OPD sheet
Ex.P.12 1 prescription
Ex.P.12 Aadhar card
MVC No.2809/2020
Ex.P.13 Wound certificate
Ex.P.14 Aadhar card
MVC No.2808/2020
Ex.P.15 Wound certificate
SCCH - 26 57 MVC No.2807/2020
to 2810/2020
Ex.P.16 Discharge summary
Ex.P.17 Aadhar card
Ex.P.18 9 medical bills
Ex.P.19 Advance receipt
Ex.P.20 2 prescriptions
MVC No.2810/2020
Ex.P.21 Wound certificate
Ex.P.22 Discharge summary
Ex.P.23 Aadhar card
Ex.P.24 55 medical bills for Rs.1,55,114/-
Ex.P.25 6 Advance receipt
Ex.P.26 6 prescriptions
Ex.P.27 11 X-rays
Ex.P.28 5 CT scan reports
MVC No.2807/2020 & MVC No.2809/2020 Ex.P.29&30 2 MLC extract MVC No.2808/2020 Ex.P.31 MLC extract Ex.P.32 OPD book Ex.P.33 Case sheet Ex.P.34 X-ray MVC No.2810/2020 Ex.P.35 Authorization letter Ex.P.36 MLC extract Ex.P.37 Case sheet Ex.P.38 10 X-ray Ex.P.39 Recent examination report Ex.P.40 X-ray SCCH - 26 58 MVC No.2807/2020 to 2810/2020 III. LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENT IN ALL CASES:-
RW-1: Veera Gonsalves IV. LIST OF DOCUMENTS MARKED ON BEHALF OF THE RESPONDENTS IN ALL CASES:-
Ex.R.1 Authorisation letter
Ex.R.2 Insurance policy
Ex.R.3 Endorsement
Ex.R.4 Cheque
Ex.R.5 O/C of Legal notice
Ex.R.6 Return notice cover
Ex.R.6(a) Return notice cover is opened in open court and kept with file and got marked Ex.R.7 Notice to the RTO, Thiruvanamalai Ex.R.8 Bank endorsement memo Ex.R.9 Certified copy of receipt Ex.R.10 Certified copy of certificate of compliance of Section 64 VB (APPASAB NAIK) XXIV ADDL. SCJ & ACJM, MEMBER, MACT, BENGALURU.Digitally signed
APPASAB by APPASAB
RAMAPPA NAIK
RAMAPPA Date:
NAIK 2024.11.08
17:39:11 +0530