Bangalore District Court
F) The Jurisdictional Police After ... vs No.2 In Respect Of Non-Involvement Of ... on 15 February, 2016
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 15th day of February, 2016.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com.,LL.B.(Spl),L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.2938/2014
B.Pramila, ..... PETITIONER
W/o. Suddala Sunny,
Aged about 28 years,
R/at No.375, 2nd Cross,
Balaji Layout,
Marathhalli,
Bangalore-560037.
Permanent R/at:
Golabanhda Ganjam,
District: Odisha.
(By Sri. M. Subramani, Adv.,)
V/s
1. Chandramohan, ..... RESPONDENTS
S/o Nanjundappa,
No.14/1, Shankarnaga Road,
Bommanahalli,
Bangalore-69.
(Owner of the Car bearing Reg.No.KA-51-
A-9683)
2. The National Insurance Co.Ltd.,
TP-HUB,2nd Floor,
Shubharam Complex,
M.G. Road,
Bangalore-01.
2 M.V.C.NO.2938/2014
(SCCH-7)
(Insurer of Car vide Policy
No.55270031136300018985,
Valid from 31.05.2013 to 30.05.2014)
(R1- Exparte)
(R2- By Sri. Pradeep, Adv.,)
JUDGMENT
The Petitioner has filed the present petition as against the Respondents No.1 and 2 under Section 166 of the Motor Vehicles Act, 1989, praying to award compensation of Rupees 7,00,000/- with interest at the rate of 9% per annum and costs.
2. The brief averments of the Petitioner's case are as follows;
a) On 10.04.2014 at about 4.00 p.m., she was crossing the Outer Ring Road from VIMS Hospital towards More Megemart Building by observing all traffic rules and regulation and movement of the vehicles, at that time, one Car bearing Registration No.KA-51-A-9683 driven by its driver in a rash and negligent manner, endangering to human life, came at high speed from Marathahalli towards Bellandur and dashed against her. Due to forced impact, she fell down and sustained grievous injuries.
b) Immediately after the accident, she was shifted to VIMS Hospital, wherein, she was treated as an inpatient. During Hospitalization, X-rays were taken, which revealed that, she had sustained Neer Type IV fracture proximal humerus, hematoma on the frontal aspect of the head, abrasions over right elbow and partial breakage of incisor teeth and other injuries. She had undergone surgery under G.A. Delto pectoral approach, fracture 3 M.V.C.NO.2938/2014 (SCCH-7) reduced and held by K-wires and by using 4 holed locking plates were inserted and ORIF with locking plates and was discharged on 15.04.2014 with an advise of regular follow-up treatment and medications. So far, she had spent more than Rupees 1,50,000/- towards medical, conveyance, nourishment food, transport and other charges.
c) The injuries sustained in the said accident have not healed and she is not able to walk as prior to accident. She cannot climb stairs, walk fast and not able to lead the life as she was doing prior to accident. She is undergoing deep mental shock, severe pain and sufferings, since the injuries caused permanent in nature.
d) Prior to the date of accident, she was hale and healthy and aged about 28 years and was working as a Teacher at Vagdevi Vilas School, Marathahalli, Bangalore and was earning Rupees 15,000/- per month.
e) She was also one of the earning members in the family and she was maintaining her family, the entire family is depending upon her income. Due to the accident injuries, she could not attend the job as earlier to the accident, by the grief causing lot of pain, shock, mental agony and financial difficulties.
f) The accident is purely due to the rash and negligent driving of the driver of the Car bearing Registration No.KA-51-A- 9683 as against whom, the Airport Traffic Police have registered a case in Crime No.31/2014, punishable under Section 279 and 338 of IPC. Hence, this petition.
4 M.V.C.NO.2938/2014(SCCH-7)
3. Though the notice was duly served on the Respondent No.1, he was remained absent and hence, he is placed as exparte on 08.09.2014.
4. In response to the notice, the Respondent No.2 has appeared before this Tribunal through its Learned Counsel. But, initially, inspite of giving sufficient opportunities, the Respondent No.2 had not filed the written statement. Later, as per the Order dated 27.12.2014 passed on I.A.No.I, the written statement filed by the Respondent No.2 is taken on file.
5. The Respondent No.2 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) The Liability if any, is subject to the terms and conditions of the valid policy, provisions of M.V. Act, valid and effective driving licence held by the driver of Car, R.C., F.C and permit and also subject to the confirmation of Section 64 VB of the Insurance Act. It seeks protection under Section 147 and 149(2) of M.V. Act.
b) The insured is duty bound to submit all vehicular documents, including driving licence before it as mandated under Section 134(c) of the Motor Vehicles Act. There is a clear violation of provisions of law and contract of insurance.
c) As per Section 158(6) of M.V. Act, 1988, it is a mandatory duty of the concerned Police Station to forward all the relevant documents to the concerned insurer within 30 days from the date of information, but, the Airport Traffic Police Station failed to forward the documents and not complied with the statutory demand.
5 M.V.C.NO.2938/2014(SCCH-7)
d) It called upon the Petitioner to prove and substantiate the involvement of Car bearing Registration No.KA-51-A-9683 in the alleged accident as the Car bearing No.KA-51-A-9683 was not involved in the alleged accident.
e) The driver of the Car bearing No.KA-51-A-9683 was not holding valid and effective driving licence as on the date of the accident and further was not qualified for holding or obtaining such driving licence and further not satisfied the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989. Thereby, the owner of the vehicle committed breach of terms and conditions of the policy. Hence, it is not liable to pay any compensation to the Petitioner.
f) The jurisdictional Police after thorough investigation have filed a charge sheet as against the driver of the Car under Section 12(1), 177, 5(1) and 180 of M.V. Act stating that, the driver has no badge to drive transport vehicle and the owner of the Car knowing fully well that, the driver did not having badge and willfully entrusted his vehicle to the said driver. Thereby, the owner of the vehicle committed breach of terms and conditions of the policy.
g) The Petitioner has not suffered any injuries as contended in the claim petition and the injury suffered by her has not resulted in any disability and has not caused any financial loss. The Petitioner has not suffered any earning capacity.
h) In the event of this Hon'ble Tribunal granting compensation, the rate of interest prevailing in Nationalized Banks for fixed deposit of one year shall be the rate of interest and it cannot exceed more than 6% per annum in view of the decision 6 M.V.C.NO.2938/2014 (SCCH-7) rendered by the Hon'ble High Court of Karnataka in a case of Manavalagan V/s. A.Krishnamurthy and Others, reported in ILR 2004 KAR 3268.
i) It craves leave of this Hon'ble Tribunal under Section 170 of the Motor Vehicles Act, to urge all the grounds that are expressly open for the insured, if the insured fails to contest the proceedings.
j) The quantum of compensation claimed by the Petitioner is an exorbitant and fanciful.
k) It reserves the right to file additional written statement under the changed circumstances of the case.
l) The Petitioner is called upon to prove that, she has not filed any claim petition before any other Court/Tribunal/Forum or at any place. Hence, prayed to dismiss the claim petition with costs.
6. Based on the above said pleadings, I have framed the following Issues;
ISSUES
1. Whether the Petitioner proves that the accident occurred due to rash and negligent driving of the Car bearing No.KA-51-A-9683 by its driver and in the said accident, she sustained injuries?
2. Whether the Petitioner is entitled for compensation? If so, how much and from whom?
7 M.V.C.NO.2938/2014(SCCH-7)
3. What Order?
7. In order to prove her case, the Petitioner herself has been examined as P.W.1 and has also examined two witnesses as P.W.2 and P.W.3 by filing the affidavits as their examination-in- chief and has placed reliance upon Ex.P.1 to Ex.P.21. On the other hand, the Respondent No.2 has examined its Administrative Officer as R.W.1 and S.D.A., RTO as R.W.2 and has placed reliance upon Ex.R.1 to Ex.R.5.
8. Heard the arguments.
9. In support of the submission, the Learned Counsel appearing for the Petitioner Sri. M.Subramani has placed reliance upon the decisions reported in,
i) 2004 ACJ 1 Supreme Court of India (National Insurance Co. Ltd V/s. Swaran Singh and Others), wherein, it is observed that, Motor Vehicles Act, 1988, section 149 92) (a) (ii)-Motor Insurance- Driving Licence- Defenses available to Insurance Company- Whether Insurance Company in order to avoid its liability towards insured has to prove that, the insured was guilty of negligence and failed to exercise reasonable Care in the matter of fulfilling conditions of the policy regarding driving of vehicle by a duly licensed drive or one who was not disqualified to drive at the relevant time-Held: yes" mere absence, fake or invalid licence or disqualification of the driver for driving, are not in themselves defences available to the Insurance Company.
8 M.V.C.NO.2938/2014(SCCH-7)
ii) ILR 2004 KAR 977 Supreme Court (National Insurance Co. Ltd V/s. Savithri Devi and Others), wherein, it is observed that, Motor Vehicles Act, 1988, section 147-Insurer's Liability-Findings arrived by Tribunal in Motor Accident claim that, vehicle in question was being driven by 1st Respondent without valid and effective driving licence-Tribunal held that, Insurance Company was liable to pay compensation to claimant though it could recover same from owner of offending vehicle-No exception could be taken to impugned order.
Result: Appeal dismissed.
iii) (2008) 3 Supreme Court Cases 464 (National Insurance Co. Ltd V/s. Annappa Irappa Nesaria @ Nesaragi and Others), wherein, it is observed that, Motor Vehicles Act, 1988-Ss 149(2)(a)(ii), 3 and 2(21),(47),(14),(16),(23)-Effective licence- Light motor vehicle-Kinds of Carriage/vehicles covered (prior to 28- 03-2011)-Light goods vehicle, held, covered-Driver on the date of accident (i.e., 9.12.1999) who was driving a light goods vehicle (Matador van) possessed DL to drive light motor vehicle-
amendments Carried out in the 1989 Rules having a prospective operation i.e., post 28.03.2001, the licence held by the driver of the vehicle in question could not be said to have been invalid in law-Central Motor Vehicles Rules, 1959, Form 4 Cls (Defendant) to (h) (as amended w.e.f. 28.03.2001).
9 M.V.C.NO.2938/2014(SCCH-7)
iv) 2008 AIR SCW 3251 (Oriental Insurance Co. Ltd V/s. Zaharulnisha and Others), wherein, it is observed that, (A) Motor Vehicles Act, (59 of 1988), S.149(1)-Liability of Insurer- Third Party risks-Statute raises legal fiction that, insurer would be deemed to be a judgment-debtor in respect of liability.
(B) Motor Vehicles Act (59 of 1988, S.149(1)-liability of insurer-insurer can defend action on any of grounds mentioned in S.149(1).
(C) Motor Vehicles Act (59 of 1988), S.149 (4) and (5)-Liability of insurer- violation of provisions of Act-May result in absolving insurers-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.
Where the insurers, relying upon the provisions of violation of law by the insured take an exception to pay the assured or a third party, they must prove a willful violation of the law by the assured. In some cases, violation of criminal law, particularly violation of the provision fo the M.V.Act, may result in absolving the insurer but, the same may not necessarily hold good in the case of a third party. In any event, the exception applies only to acts done intentionally or so recklessly as to denote that, the assured did not Care what the consequences of his act might be. The provisions of sub sec 94) and (5) of S.149 of the M.V.Act may be considered as to the liability of the insurer to satisfy the decree at the first instance. The liability of the insurer is a 10 M.V.C.NO.2938/2014 (SCCH-7) statutory one. The liability of the insurer to satisfy the decree passed in favour of a third party is also statutory.
(D) Motor Vehicles Act (59 of 1988)Ss, 10(2),149-Liability of insurer- Deceased died in road accident when scooterist hit his bicycle-Accident accrued due to rash and negligent driving of scooter-Driver of scooter had admittedly no valid licence to drive vehicle- He was holding licence for driving heavy motor vehicle only-Act of driving totally different class of vehicle was in violation of S.10(2)-Insurance Company cannot be held liable-
however, it shall satisfy award and recover amount from owner.
10. In support of the submission, the Learned Counsel appearing for the Respondent No.2 Sri. B.Pradeep has placed reliance upon the decisions reported in,
i) ILR 2015 KAR 2064 (Kalaburagi Bench) (Mohammed @ Mohd. Haneeef V/s. Mallayya @ Mallappa and Another), wherein, it is observed that, Motor Vehicles Act, 1988-Accident claim-Judgment and Award-liability imposed on the owner of the vehicle to pay the compensation-Appealed against-Whether a person holding a licence to drive a LMV (NT) vehicle has the authority to drive the LMV (TP) vehicle and whether the insurer is liable to indemnify the owner? HELD, A person holding a licence to drive a LMV (NT) vehicle has no authority or competence to drive the LMV (TP) vehicle.
11 M.V.C.NO.2938/2014(SCCH-7)
(a) The transport vehicle means a public service vehicle, a goods Carriage, an educational institution bus or a private service vehicle3. This delimitation does include the transport vehicle, the unladen weight of which does not exceed, 7,500/kgs., though, it excludes the other vehicles referred to in section 2(21) of the Act.
b) The provisions of Section 54 of Motor Vehicles Act were amended in 1994. So under the amendment, medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle and heavy passenger motor vehicle were also included in the definition of transport vehicle.
Further Held:
It is necessary for a person, who drive a light motor vehicle for (commercial) transport must have a specific licence in this regard. As could be seen from the provisions of Section 3 of the Act, it is provided no person shall drive a motor vehicle in any public place unless he holds and effective authorizing him to drive the vehicle.
Therefore, if a person has authority to drive the commercial transport vehicle, he must have a licence as contemplated under the Rules amended, which came into effect from 28.03.2001. If he does not have such a licence, there would be contravention of the Act. He does not have competency to drive such vehicle and thereby there would be breach of conditions of the policy for which the insurer has to be exempted from the liability.
ON FACTS HELD:
12 M.V.C.NO.2938/2014(SCCH-7) In the facts on hand, the driver had no licence to drive transport vehicle, which was used for Carrying passengers. Therefore, he had no competency to drive such vehicle. Thereby, there is breach of the conditions of the policy. The Tribunal was justified in directing owner to pay the compensation.
ii) M.F.A.No.5525/2012 C/w M.F.A.No.2174/2012 (MV) High Court of Karnataka (Sri Noor Hussain @ Irfan V/s.
Bajaj Allianz General Insurance Co. Ltd and Others and Bajaj Allianz General Insurance Co. Ltd and Others V/s. Sri Noor Hussain @ Irfan and Another), wherein, it is observed that,
21. So from the aforesaid discussion of the provisions of Section 2(21) of the Act and amendment to the Central Motor Vehicle Rules, which came into effect from 28.03.2001, it is necessary for a person who drive a light motor vehicle for (commercial) transport must have a specific licence in this regard. As could be seen from the provisions of Section 3 of the Act, it is provided no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle. Therefore, if a person has authority to drive the commercial transport vehicle, he must have a licence as contemplated under the Rules amended, which came into effect from 28.03.2001. If he does not have such a licence, there would be contravention of the Act. He does not have competency to drive such vehicle and thereby there would be breach of conditions of the policy, for which the insurer has to be exempted from the liability. It is only the Apex Court, 13 M.V.C.NO.2938/2014 (SCCH-7) which has got authority to direct the insurer by exercising powers under Article 142 of the Constitution and such powers are not available to this Court or any other courts".
Therefore, I am of the view that, the driver of the offending vehicle had no effective driving licence and therefore the Insurance Company cannot be fastened with liability.
iii) M.F.A.No.1120/2014 (Dadapeer and Another V/s. Shiran Alikhan and Another), wherein, it is observed that,
10. Admittedly, the lorry in question is described in the Certificate of Registration, Ex.R.1 as a medium goods vehicle (MGV) manufactured by Eicher Motor Limited. Ex.R.4 is the copy of driving licence and Ex.R.5 is the extract of driving licence issued by the Transport Department, Goa. The said documents disclosed that, the licence possessed by the driver authorized him to drive a light motor vehicle (Transport) till 29.12.2012 and light motor vehicle (Non-Transport) till 21.11.2019.
11. Admittedly, the Lorry in question is a transport vehicle used as a goods Carriage. Under Section 10 of the Motor Vehicles Act, 1988 (Act for Short) the driver of the vehicle is required to possess specific licence to drive the class of vehicles described therein. There is a reference to transport vehicle under Section 10(2)(e) of the Act.
12. The Tribunal while dealing with the aspect of licence has adverted to the 14 M.V.C.NO.2938/2014 (SCCH-7) Certificate of Registration-Ex.R.1, Permit-Ex.R.2 Copy of driving licence-
Exs.R4 and Ex.R.5. The vehicle in question is a medium goods vehicle and not a LMV. Therefore, specific endorsement is required to drive the Lorry in question. R.W.2, the Assistant Regional Transport Officer, has also stated in his evidence that, a specific endorsement was required to drive the medium goods vehicle. Further, after referring to various pronouncements of the Hon'ble Supreme Court and this Court, the Tribunal has rightly held that, the driver of the vehicle was not holding an effective driving licence.
13. We have bestowed our anxious consideration to the rival submissions, the material on record and the judgment of the Tribunal. Exs.R.4 and R5, copies of licence are conspicuous enough to demonstrate that, the licence possessed by the lorry driver authorized him to drive LMV only and he did not possess a valid licence to drive the lorry in question.
14. In the circumstances, no exception can be taken to the Judgment and Award passed by the Tribunal. The appeal does not merit any consideration and accordingly stands dismissed.
No costs.
iv) M.F.A.No.30903/2009 (MV) (M/s. National Insurance Company Limited V/s. Nagamma and Others), wherein, it is observed that, In the light of the above decisions, it is to be held that, a driver holding a 15 M.V.C.NO.2938/2014 (SCCH-7) licence to drive a light motor vehicle is not enabled to drive a 'transport vehicle' without a specific endorsement to that, effect on the form of licence. In the case on hand, it is not in dispute that, there was no such endorsement and therefore the insurer is absolved of nay liability to satisfy the award in favour of the claimant.
The appeal is allowed and the liability fastened on the appellant is set aside. The claimants are left to their remedy against the owner of the offending vehicle.
Incidentally, an argument canvassed by the Learned Counsel for the Respondent-Claimants that, the Motor Vehicles (Amendment) Act, 1994, while amending sub-section (2) of Section 10, has sought to substitute clause '(e) transport vehicle". For clauses (e) to (h)- (e) medium goods vehicle (f) medium passenger motor vehicles (g) heavy goods vehicle & (h)(c) medium goods vehicle, (f) Medium passenger motor vehicle (g) heavy goods vehicle and (h) heavy passenger motor vehicle and since clause "(Defendant) light motor vehicle" continued to find place in the said Section. Therefore the 'Transport Vehicle' in the case on hand, which was a light motor vehicle would not required a driver of such a vehicle to possess the licence with a specific endorsement to drive a transport vehicle and that, such as required is only the respect a medium r a heavy goods transport vehicle, its not tenable. Whether amendment to the Central Motor Vehicles Rules with effect from 28th March 2001, requiring such an endorsement, the matter is no longer in doubt.
16 M.V.C.NO.2938/2014(SCCH-7) The appeal is allowed in terms as stated above.
v) 2008 ACJ 2161 (Supreme Court of India) (New India Assurance Co. Ltd V/s. Roshanben Rahemansha Fakir and Another), wherein, it is observed that, Motor Vehicles Act, 1988, Sections 3,14 and 149 (2) (a)(ii) read with Central Motor vehicles Rules, 1989, Rule 41-Motor Insurance-driving licence -liability of Insurance Company- Driver of offending vehicle had licence to drive a three wheeler which was not meant to be used to drive a transport vehicle but, he was driving a goods Carrying public public Carriage or Auto Rickshaw delivery van-Vehicle was a commercial vehicles and was not being used for a private purpose-Whether the driver possessed a valid driving licence and the Insurance Company is liable-
held: yes; Apex Court is exercise of jurisdiction under Article 142 o the Constitution directed the Insurance Company to satisfy the award and recover eh amount from the owner.
vi) 2009 ACJ 1411 (Supreme Court of India) (Oriental Insurance Co. Ltd V/s. Angad Kol and Others), wherein, it is observed that, Motor Vehicles Act 1988 Sec.149(2)(a)(ii) R/w. Sec.2(21) and 14(2) - Motor Insurance - Driving Licence - Liability of Insurance Company Delivery auto, a goods vehicle, dashed against a person and she sustained fatal injuries - Insurance 17 M.V.C.NO.2938/2014 (SCCH-7) Company seeks to avoid its liability on the ground that driver did not possess valid and effective driving licence -
Driver had licence to driver 'LMV' whereas he was driving a goods transport vehicle- Definition of LMV bring within its umbrage both 'transport vehicle' or 'omnibus' but a distinction between an effective licence granted for transport vehicle and passenger motor vehicle exists -
Distinction between an LMV and a "transport vehicle" is evident-Licence to the driver was granted for 20 years, a presumption arises that it was meant for the purpose of a vehicle other than a transport vehicle - Had the licence been granted for transport vehicle, the tenure thereof could not have exceeded 3 years - Whether the driver had a valid and effective licence and Insurance Company is liable - Held: No. Insurance Company directed to pay compensation to the claimants with right to recover the amount from owner and driver of the vehicle.
11. My answers to the above said Issues are as follows;
Issue No.1 : Partly in the Affirmative,
Issue No.2 : Partly in the Affirmative,
The Petitioner is
entitled for
compensation of Rupees
3,59,100/- to an extent
of 75% with interest at
the rate of 8% p.a. from
the date of petition till
the date of payment,
from the Respondent
No.1.
18 M.V.C.NO.2938/2014
(SCCH-7)
Issue No.3 : As per the final Order,
for the following;
REASONS
12. ISSUE NO.1 :- The P.W.1, who is the Petitioner has
stated in his examination-in-chief that, on 10.04.2014 at about 4.00 p.m., she was crossing the Outer Ring Road from VIMS Hospital towards More Megamart Building by observing all traffic rules and regulation and movement of the vehicle, at that time, one Car bearing Registration No.KA-51-A-9683 driven by its driver in a rash and negligent manner endangering to human life, came at high speed from Marathalli towards Bellandur and dashed against her and due to the forced impact, she fell down and sustained grievous injuries. She has further stated that, immediately after the accident, she was shifted to VIMS Hospital, wherein, she was treated as an inpatient and during the Hospitalization, X-rays were taken, which revealed that, she had sustained Neer Type IV fracture proximal humerus, hemotma on the frontal aspect of the head, abrasions over right elbow and partial breakage of incisor teeth and other. She has further stated that, the accident is purely due to the rash and negligent driving of the driver of the Car bearing Registration No.KA-51-A-9683, as against whom the Airport Traffic Police have registered a case in Crime No.31/2014 punishable under Section 279 and 338 of IPC.
13. No doubt, the P.W.1 in her cross-examination has stated that, her husband lodged a complaint before the Police one day later after the accident and her husband has not seen the accident and she has not informed the Hospital Authorities about the vehicle number, which caused the accident. The Petitioner has produced Ex.P.1 FIR and Ex.P.2 Complaint and on perusal of its 19 M.V.C.NO.2938/2014 (SCCH-7) contents, it appears that, there is 2 days delay in lodging the complaint in respect of the said road traffic accident. Further, the P.W.1 in her cross-examination has stated that, she has no hurdle to produce the admission register relating to VIMS Hospital. Further, the P.W.2, who is the MRD Technician in Medical Records Department, VIMS Hospital, Bangalore has stated in his cross-examination that, they have maintained the MLC Register in the Hospital relating to the Petitioner and he has no hurdle to produce the MLC Register of the Petitioner and also they have issued intimation in respect of the alleged accident to the concerned Police intimation. But, neither the Petitioner nor the P.W.2 produced the MLC register and Police intimation relating to the road traffic accident, which alleged to have been caused to the Petitioner. Further, the R.W.1, who is an Administrative Officer of the Respondent No.2, has stated in his examination-in-chief that, the offending Car bearing Registration No.KA-51-A-9683 was not involved in the alleged accident, as, the alleged accident taken place on 10.04.2014, however, the complaint was lodged before the Police, i.e., lapse of 2 days from the date of alleged accident and it would clearly show that, the Car bearing Registration No. KA-51-A-9683 was falsely implicated by the Petitioner colluding with the owner of the vehicle, Police and Hospital Authorities and no valid reasons assigned for the delay in lodging the complaint.
14. But, based on the said evidence of P.W.1, which has been elicited from her mouth by the Respondent No.2, the non- production of MLC register and Police intimation by the Petitioner and also the oral version of R.W.1, it cannot be believed and accept the defence taken by the Respondent No.2 that, the offending Car bearing Registration No.KA-51-A-9683 not at all involved in the said road traffic accident and a false complaint is 20 M.V.C.NO.2938/2014 (SCCH-7) lodged as against the driver of the offending Car only to claim compensation from them, that too, after lapse of 2 days from the date of alleged accident and the entire negligence is on the part of the Petitioner, as, to consider her oral version, the Petitioner has produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Spot Hand Sketch, Ex.P.4 Spot Panchanama, Ex.P.5 Wound Certificate, Ex.P.6 MVI Report, Ex.P.7 Charge Sheet, Ex.P.8 Discharge Summary, Ex.P.9 Medical Documents relating to Dental treatment, Ex.P.16 Discharge Summary and through P.W.2, the Petitioner has also produced Ex.P.19 Case Sheet, which clearly disclosed that, due to very high speed, rash and negligent manner of driving of the offending Car bearing Registration No.KA-51-A-9683 by its driver itself, the said road traffic accident was taken place on 10.04.2014 at 4.00 p.m., which dashed to the Petitioner, when she was crossing the road, where there was no pedestrian or zebra cross and as such, there is contributory negligence also attributed on the part of the Petitioner to some extent in the commission of the said road traffic accident and the offending Car bearing Registration No. KA-51-A-9683 as well as its driver, are very much involved in the said road traffic accident, which is clear from the following discussion. Further, the P.W.1 in her cross-examination has clearly stated that, at the time of admission in VIMS Hospital, she was unconscious and the public have told to her husband about the registration number of the vehicle, which caused the accident and K.G. Prasad, who was a driver of the offending Car, was not a friend or relative of her husband. She has further clearly denied the suggestions put to her by the Respondent No.2 in her cross-examination that, the owner of the offending vehicle Chandra Mohan is a relative of her husband and the Car bearing Registration No.KA-51-A-9683 was not caused accident to her and her husband was not immediately lodged a complaint before the 21 M.V.C.NO.2938/2014 (SCCH-7) Police and only with an intention to claim compensation, she has produced documents. From this, it appears that, though the P.W.1 has been cross-examined by the Respondent No.2, nothing has been elicited from her mouth about its specific defence. Further, it is also clear from the medical documents produced by the Petitioner in the present petition that, in the said road traffic accident, the Petitioner had sustained 3 grievous injuries and by admitting as an inpatient from 10.04.2014 to 15.04.2014, i.e., for 6 days, he had taken initial treatment and thereafter, again she was admitted as an inpatient from 11.04.2015 to 13.04.2015, i.e., for 3 days, totally for 9 days, at VIMS Specialty Hospital for the treatment to the accidental injuries. Further, The R.W.1 in his cross-examination has clearly stated that, the complainant has stated the reason for delay in lodging the complaint, in the complaint itself and the offending vehicle was inspected by the IMV Inspector and the Investigating Officer has filed a charge sheet as against the driver of the offending vehicle. He has further clearly admitted that, the medical documents disclosed that, due to the road traffic accident, the Petitioner had sustained injuries. Further, thought the R.W.1 in his cross-examination has stated that, they have conducted the investigation from their Official Surveyor, to consider its specific defence, which has been stated by the R.W.1 in his examination-in-chief, the Respondent No.2 did not care to produce the said survey report. He has further clearly stated that, the notice issued by their Insurance Company to the owner of the offending vehicle, i.e., Respondent No.1 was not served and it was unserved. In this regard, the Respondent No.2 has produced Ex.R.3 Returned Unserved Postal Cover and Ex.P.4 Office Copy of Letter dated 18.08.2014. From this, it is made crystal clear that, there are no merits in the defence taken by the Respondent No.2 in respect of non-involvement of the offending 22 M.V.C.NO.2938/2014 (SCCH-7) vehicle bearing Registration No.KA-51-A-9683 in the said road traffic accident. Further, though the notice was duly served on the Respondent No.1, he was remained absent and hence, he is placed as exparte. The non-appearance of the Respondent No.1 clearly implies that, he has indirectly admitted the case made out by the Petitioner in the present case as against him.
15. The contents of Ex.P.1 FIR and Ex.P.2 Complaint clearly disclosed that, the husband of the Petitioner has lodged Ex.P.2 Complaint before the Airport Traffic Police as against the driver of the Indica Cab bearing Registration No.KA-51-A-9683 by alleging that, on 10.04.2014 at 4.00 p.m., the driver of the Car bearing Registration No.KA-51-A-9683 was driving it with very high speed, in rash and negligent manner and endangering to human life from Marthahalli towards Belandur Outer Ring Road and near VIMS Hospital, Marathalli, it was dashed to the Petitioner, i.e., his wife, who was crossing the road from VIMS Hospital towards More Mega Mart and due to the said impact, she fell down and had sustained grievous injuries on her hands, shoulder and face and the driver of the offending Car had shifted the Petitioner to VIMS Hospital and based on Ex.P.2 Complaint, the said Police have registered a criminal case as against the driver of the offending Car for the offences punishable under Section 279 and 337 of IPC under Crime No.31/2014. As this Tribunal has already observed about the delay of 2 days in lodging Ex.P.2 Complaint by the husband of the Petitioner in respect of the road traffic accident. In this regard, the husband of the Petitioner in Ex.P.2 Compliant itself has clearly stated that, he was unable to give the complaint on 10.04.2014, because, his presence in Hospital to attend his wife's medical treatment. The said reason stated by the husband of the Petitioner in Ex.P.2 23 M.V.C.NO.2938/2014 (SCCH-7) Complaint in respect of delay in lodging the complaint about the said road traffic accident can very well be believed and accept.
16. The contents of Ex.P.3 Spot Hand Sketch, Ex.P.4 Spot Panchanama and Ex.P.6 MVI Report further clearly disclosed that, when the Petitioner was crossing the road almost 1/3 rd wherein, there was no pedestrian or zebra cross, the offending Car bearing Registration No.KA-51-A-9683 came with very high speed, in a rash and negligent manner and dashed to the Petitioner and the said road, on which, the accident was taken place is one way and the accident was not occurred due to any mechanical defects of the said offending Car. The damages caused to the offending Car are clearly mentioned in Ex.P.6 MVI Report, which clearly disclosed that, at the time of accident, the said offending Car was very high speed, rash and negligent manner, which was driving by its driver. From this, it appears that, the contributory negligence is attributed both on the part of the driver of the offending Car bearing Registration No. KA-51-A-9683 as well as the Petitioner in the commission of the said road traffic accident and if the Petitioner was not crossing the said road, wherein, there was no pedestrian or zebra cross and if the driver of the offending Car could have taken a little care in driving the said vehicle, the said accident could have not been occurred. Therefore, the contributory negligence is attributed both on the part of the Petitioner and the driver of the offending Car in the commission of the said road traffic accident.
17. The contents of Ex.P.5 Wound Certificate further clearly disclosed that, in the said road traffic accident, the Petitioner had sustained fracture proximal humerus, partial breakage of incisor teeth, hematoma on the frontal aspect of head, 24 M.V.C.NO.2938/2014 (SCCH-7) who was admitted in VIMS Hospital at 4.30 p.m., on 10.04.2014 itself and the said injuries are grievous injuries and by admitting as an inpatient from 10.04.2014 to 15.04.2014, i.e., 6 days, she took treatment to the said accidental injuries in the said Hospital.
18. The contents of Ex.P.8 Discharge Summary and Ex.P.9 Medical Document relating to Dental Treatment clearly disclosed that, the Petitioner presented with history of road traffic accident hit by a Car while crossing the road on 10.04.2014 at about 4.00 p.m., at VIMS Specialty Hospital and she complains of pain on the right shoulder and hand and it is diagnosed that, neer type IV fracture proximal humerus, hematoma on the frontal aspect of the head, abrasions over right elbow, partial breakage of incisor teeth and by admitting as an inpatient from 10.04.2014 to 15.04.2014, she took treatment to the said accidental injuries in the said Hospital and she has also complains of tooth pain and trauma and it is observed that, there is fracture teeth of 11, 12, 13, 21 and 23 and it is diagnosed that, acute pulpitis 11,12,13,21,23 and Ellis fracture III-11,12,13,21,23. From this medical evidence, it is made crystal clear that, in the said road traffic accident, the Petitioner had sustained 3 grievous injuries and by admitting as an inpatient from 10.04.2014 to 15.04.2014, i.e., for 6 days, she took treatment to the said accidental injuries at VIMS Specialty Hospital. The same is also clear from the contents of Ex.P.9 Case Sheet.
19. The contents of Ex.P.7 Charge Sheet further clearly disclosed that, since during the course of investigation, it is found that, on 10.04.2014 at 4.00 p.m., when the Petitioner was crossing the road, which is situated in front of VIMS Hospital, the driver of the offending Car bearing Registration No.KA-51-A-9683 25 M.V.C.NO.2938/2014 (SCCH-7) came with very high speed, rash and negligent manner on the said Outer Ring Road and dashed to the Petitioner and due to the said impact, the Petitioner fell down and sustained grievous injuries and at the time of accident, the driver of the offending Car was not having badge to drive public transport vehicle and the Respondent No.2, who is an Accused No.2, who was the owner of the offending Tata Car bearing Registration No.KA-51-A-9683 had allowed the driver to drive the offending Car, who was not having a badge to drive such class of vehicle and as such, after thorough investigation, the Investigating Officer has filed a charge sheet as against the driver and the owner of the offending Car, i.e., Respondent No.1, for the offences punishable under Section 279 and 338 of IPC and Section 12(1), 177, 5(1), 180 of M.V. Act, 1988. It is also clear from the contents of Ex.P.7 Charge Sheet that, at the time of accident, the Petitioner was crossing the road, wherein, there was no pedestrian or zebra cross. From this, it is made crystal clear that, the contributory negligence is also attributed on the part of the Petitioner to some extent in the commission of the said road traffic accident.
20. From the above said material evidence, both oral and documentary, it is clearly proved that, there is contributory negligence both on the part of the Petitioner as well as the driver of the offending Car bearing Registration No.KA-51-A-9683 in the commission of the said road traffic accident, wherein, the Petitioner had sustained 3 grievous injuries. It is clear from the contents of Ex.P.3 Spot Hand Sketch that, at the time of accident, the Petitioner had almost crossed the road. By considering the same, this Tribunal held that, it is just, proper and necessary to attribute the contributory negligence on the part of the Petitioner to an extent of 25% and 75% on the part of the driver of the 26 M.V.C.NO.2938/2014 (SCCH-7) offending Car. Accordingly, I answered Issue No.1 Partly in the Affirmative.
21. ISSUE NO.2 :- The P.W.1 has stated that, prior to the date of accident, she was hale and healthy and aged about 28 years. To consider her actual age at the time of accident, the Petitioner has not produced any authenticated documents. Ex.P.7 and Ex.R.2 Charge Sheet clearly disclosed that, the date of birth of the Petitioner is on 28.08.1985. The date of accident is on 10.04.2014. On perusal of the said dates, it appears that, at the time of accident, the Petitioner was 29 years old. Hence, the age of the Petitioner is considered as 29 years at the time of accident.
22. The P.W.1 has stated that, she was working as a Teacher at Vagdevi Vilas School, Marathahalli, Bangalore and was earning Rupees 15,000/- per month. In this regard, the Petitioner has produced Ex.P.12 Salary Certificate dated 10.11.2014, Ex.P.13 Medical Leave Certificate dated 10.11.2014, Ex.P.14 Salary Slips from January 2014 to April 2014, 4 in numbers and Ex.P.15 Appointment Letter dated 16.10.2013. From the contents of the said material documents, it is clearly proved that, at the time of accident, the Petitioner was working as a teacher at Vagdevi Vilas School, Marathalli, Bangalore and her Gross Salary was Rupees 14,220/- and Net Salary was Rupees 11,864/-, which is relating to March 2014. No authenticated document is produced by the Petitioner to show that, at the time of accident, she was earning Rupees 15,000/- per month. Further, the Petitioner is not an income tax assessee. Even, the Petitioner has not produced Bank Statement or salary register maintained by her employer. Further, the P.W.1 in her cross-examination has stated that, the mode of salary is through Bank and she has no hurdle to produce 27 M.V.C.NO.2938/2014 (SCCH-7) her Bank Statement to show the credit of salary to her Bank Account. But, she did not care to produce the said material documents to consider her actual income at the time of accident. Hence, the evidence of P.W.1 that, she was earning Rupees 15,000/- per month at the time of accident cannot be believed and accept. However, based on Ex.P.14 Salary Slips, it can be safely held that, at the time of accident, the Petitioner was earning Gross Salary of Rupees 14,220/- per month.
23. The P.W.1 has stated that, she had underwent surgery under G.A. delto pectoral approach, fracture reduced and held by K-wires and by using 4 holed locking plates were inserted and ORIF with locking plates and was discharged on 15.04.2014 with an advise of regular follow-up treatment and medications.
24. The P.W.2, who has assessed the disability of the Petitioner has also stated in his examination-in-chief that, as per the oral statement by the Petitioner and xerox copies of Hospital admission case records from VIMS Specialty Hospital, it is diagnosed that, the Petitioner was sustaining Neer type IV fracture proximal humerus right, partial breakage of incisor teeth. He has further stated that, operation of ORIF with locking plate done to fracture humerus and was discharged on 15.04.2014.
25. Based on the contents of Ex.P.5 Wound Certificate and Ex.P.8 Discharge Summary, this Tribunal has already come to the conclusion that, in the said road traffic accident, the Petitioner had sustained fracture proximal humerus, partial breakage of incisor teeth and hematoma n the frontal aspect of head, i.e., 3 grievous injuries and by admitting as an inpatient from 10.04.2014 to 15.04.2014, i.e., for 6 days, she took treatment to 28 M.V.C.NO.2938/2014 (SCCH-7) the said accidental injuries at VIMS Specialty Hospital. It is clearly mentioned in Ex.P.8 Discharge Summary, Ex.P.19 Case Sheet and Ex.P.9 Medical documents relating to dental treatment that, during the course of treatment, ORIF with locking plates was done to the Petitioner and a treatment is given to teeth 11,12,13,21 and 23, i.e., access opening done, WL taken BMP done with VDW M two file system irrigated with metronidazole and saline open dressing given. From this, it is made crystal clear that, during the course of treatment, the implants are inserted to the Petitioner to the accidental injuries. It is also clearly mentioned in Ex.P.8 Discharge Summary and Ex.P.19 Case Sheet that, at the time of discharge, the Petitioner was diagnosed for review under OPD. On perusal of the nature of injuries and line of treatment shown in the said medical documents, it is clearly disclosed that, even after the discharge from the Hospital on 15.04.2014, the Petitioner required the follow-up treatment to the accidental injuries as per the advise of the treated Doctors. Hence, the evidence stated by the Petitioner in respect of follow-up treatment after the discharge for the Hospital, is believed and accepts.
26. The P.W.1 has stated that, the injuries sustained in the accident was not healed and she is not able to eat any hard food and not able to lift her hand and not able to comb her hair, not able to stand for ling time. She has further stated that, very often, she get heavy headache and she is not able to lead the normal life as she was doing prior to accident. She has further stated that, she is undergoing deep mental shock, severe pain and sufferings, since the injuries caused permanent in nature. She has further stated that, she was hale and healthy and aged about 28 years and was working as a Teacher at Vagdevi Vilas School, Marathahalli, Bangalore and was earning Rupees 15,000/- per 29 M.V.C.NO.2938/2014 (SCCH-7) month and she was also one of the earning member in the family and she was maintaining her family and the entire family is depending upon her income. She has further stated that, she could not attend the job as earlier to the accident, by the grief causing lot of pain, shock, mental agony and financial difficulties.
27. The P.W.3, who has assessed the disability of the Petitioner, has stated in his examination-in-chief that, recently he examined the Petitioner at Victoria Hospital on 20.07.2015 exclusively for disability assessment and on clinical examination, he found the disabilities, i.e., co-ordinated activities, i.e., lifting over head objects remove and placing at the same place, combing and plaiting, putting on shirt/kurta, ablution Indian style, buttoning, tie nara/dhoti and by considering the range of movements right shoulder, i.e., flexion-extension arc, rotation arc, abduction, adduction arc, elbow. The P.W.3 has opined that, the Petitioner is suffering from permanent residual physical disability to right upper limb 29% and 10% to whole body. The P.W.3 has produced Ex.P.20 Out Patient Book and Ex.P.21 X-ray Films 2 in numbers.
28. But, based on the said oral version of P.W.1 and P.W.2 coupled with the contents of the above said medical documents, the nature of injuries and line of treatment, it cannot be believed and accept that, due to the said accidental injuries, the Petitioner is suffering from permanent residual physical disability of about 10% to the whole body, as, admittedly, the P.W.3 is not a treated Doctor and the same has been clearly admitted by him in his cross-examination. Further, the P.W.3 in his examination-in-chief itself has clearly stated that, radiological examination revealed the fracture of right humerus shows union. He has further stated in 30 M.V.C.NO.2938/2014 (SCCH-7) his cross-examination that, now the fractures are united and also the implants are removed. In this regard, the P.W.3 in his examination-in-chief has stated that, 2nd time admission on 11.04.2015 and operation of implants removal done from right humerus and was discharged on 13.04.2015. To consider the same, the Petitioner has produced Ex.P.6 Discharge Summary, which clearly disclosed that, the Petitioner was admitted in the said VIMS Specialty Hospital on 11.04.2015 and discharged on 13.04.2015 and she was admitted for implants removal and there were no complication in post operative period and hence, she was discharged on 13.04.2015 and reviewed ortho OPD. From this, it is made crystal clear that, now the Petitioner is not having implants in situ. Further, though the Petitioner has produced Ex.P12 Salary Certificate dated 10.11.2014 and Ex.P.13 Medical Leave Certificate dated 10.12.2014, she has utterly failed to prove that, due to the said accidental injuries, she cannot attend the job as earlier to the accident. Further, though the P.W.1 in her cross- examination has stated that, she has no hurdle to examine the author of Ex.P.2 Salary Certificate and Ex.P.13 MLC, she did not care to examine her employer. Further, though the P.W.1 in her cross-examination has denied the suggestion put to her by the Respondent No.2 that, now also she is working as a teacher at Vagdevi Vidya School, to show that, after the accident, she is not working as a teacher at Vagdevi Vidya School, no scrap of paper has been produced by the Petitioner. In this regard, the P.W.1 has clearly stated that, she has not produced any documents to show that, she was not working as a teacher in the same school. Hence, the said extent of 10% whole body disability, which is suffering by the Petitioner due to the said accidental injuries, as stated by the P.W.3 cannot be believed and accepts.
31 M.V.C.NO.2938/2014(SCCH-7)
29. However, in the said road traffic accident, the Petitioner had sustained 3 grievous injuries and she was aged 29 years and she was married and having family and she is maintaining both family and job with the said accidental injuries. By considering the same, this Tribunal feels that, due to the said accidental injuries, the Petitioner is suffering from permanent residual physical disability to some extent. Hence, it is considered that, due to the said accidental injuries, the Petitioner is suffering from permanent physical and functional disability of 5% to the whole body, which is believable and acceptable one.
30. Since, the Petitioner has utterly failed to prove that, after the accident, she had lost her job due to the said accidental injuries and disability sustaining by her due to the said accidental injuries, the Petitioner is not entitled for any compensation towards loss of future income, future medical expenses and loss of income during laid up period. But, the Petitioner is entitled for the compensation under other heads, which are discussed below.
31. As per Ex.P.5 Wound Certificate and evidence of P.W.1 and P.W.3, the Petitioner had sustained one 3 grievous injuries. The Petitioner was in the Hospital as an inpatient from 10.04.2014 to 15.04.2014, i.e., for 6 days and from 11.04.2015 to 13.04.2015, i.e., for 3 days, totally for 9 days. Due to the said injuries, the Petitioner could have definitely suffered a lot of pain and agony during the course of treatment. Considering the said aspects, it is just, proper and necessary to award a sum of Rupees 50,000/- towards pain and suffering.
32. As it is already observed that, the age of the Petitioner was 29 years. She has to lead remaining her entire life with 5% 32 M.V.C.NO.2938/2014 (SCCH-7) permanent physical and functional disability, which comes in the way of enjoyment of life. Therefore, it is just and proper to award a sum of Rupees 20,000/- towards loss of amenities of life to the Petitioner.
33. The P.W.1 has stated that, so far, she has spent more than Rupees 2,00,000/- towards medical, conveyance, nourishment, food, transportation and other charges. In this regard, the Petitioner has produced Ex.P.10 Medical Bills 3 in numbers, which is amounting of Rupees 3,03,350/-, Ex.P.11 Physiotherapy Bills 6 in numbers, which is amounting of Rupees 36,800/- and Ex.P.17 Medical Bills 5 in numbers, which is amounting of Rupees 81,950/-. Ex.P.10 Medical Bills includes 2 estimation of Rupees 1,00,000/- and Rupees 40,000/- respectively. Therefore, the said amount of Rupees 1,00,000/- and Rupees 40,000/- has to be deducted in the total amount of Rupees 3,03,350/-. After deduction, the balance amount comes to Rupees 1,63,350/-. The Petitioner has taken treatment at VIMS Specialty Hospital, wherein, she was taken treatment as an inpatient from 10.04.2014 to 15.04.2014, i.e., for 6 days and from 11.04.2015 to 13.03.2015, i.e., for 3 days, totally for 9 days. During the course of treatment, implants were inserted and removed. Considering the nature of the injuries and line of treatment given to the Petitioner, the possibility of spending the said amount for the medicines can not be doubted. Therefore, it is necessary to award the said actual medical expenses, which covered under Ex.P.10 Medical Bills, which is ordered of Rupees 1,63,350/-, Ex.P.11 Physiotherapy Bills, which is amounting of Rupees 36,800/- and Ex.P.17 Medical Bills, which is amounting of Rupees 81,950/-, in total Rupees 2,82,100/- to the Petitioner.
33 M.V.C.NO.2938/2014(SCCH-7)
34. Neither the Petitioner nor the P.W.2 stated anything about the future medical treatment, which required to the Petitioner and its expenses. Further, as per Ex.P.16 Discharge Summary, the implants are removed. Hence, the Petitioner is not entitled for any compensation towards future medical expenses.
35. As the Petitioner was taken treatment as an inpatient for 9 days, it is necessary to award a sum of Rupees 2,000/- towards conveyance charges, Rupees 2,000/- towards attendant charges and Rupees 3,000/- towards food, nourishment and diet charges etc.,
36. In this way, the Petitioner is entitled for the following amount of compensation:-
Sl. No. Compensation heads Compensation amount
1. Pain and sufferings Rs. 50,000-00
2. Loss of amenities of life Rs. 20,000-00
3. Actual medical expenses Rs. 2,82,100-00
4. Conveyance Rs. 2,000-00
5. Attendant Charges Rs. 2,000-00 Food, Nourishment &
6. Rs. 3,000-00 Diet charges TOTAL Rs. 3,59,100-00
37. In all, the Petitioner is entitled for total compensation of Rupees 3,59,100/- along with interest at the rate of 8% per annum on the above said sum from the date of petition till payment.
38. While answering Issue No.1, this Tribunal has already come to the conclusion that, the offending Car bearing Registration No.KA-51-A-9683 as well as its driver are very much 34 M.V.C.NO.2938/2014 (SCCH-7) involved in the said road traffic accident, wherein, the Petitioner had sustained 3 grievous injuries. The Petitioner in the cause title of the petition has mentioned that, the Respondent No.1 is a R.C. Owner and the Respondent No.2 is an insurer of the offending Car bearing Registration No.KA-51-A-9683 and its Policy No.55270031136300018985 and it is valid from 31.05.2013 to 30.05.2014. The Respondent No.2 has produced Ex.R.2 Insurance Policy, which clearly disclosed that, at the time of accident, the Respondent No.1 was a registered owner and the Respondent No.2 was an insurer of the offending Car bearing Registration No.KA- 51-A-9683 and its Insurance Policy was valid, which covers the date of accident. The R.W.2, who is the Administrative Officer of the Respondent No.2, has clearly stated in his cross-examination that, as on the date of accident, the Insurance Policy relating to the offending vehicle was valid. From the said material evidence, it is made crystal clear that, at the time of accident, the Respondent No.1 was a registered owner and the Respondent No.2 was an insurer of the offending Car bearing Registration No.KA-51-A-9683 and its Insurance Policy was valid, which covers the date of accident.
39. But, based on the said grounds, it cannot be said that, the Respondent No.1 being a registered owner and the Respondent No.2 being an insurer of the offending Car bearing Registration No.KA-51-A-9683 are jointly and severally liable to pay the above said compensation and interest to the Petitioner, as, this Tribunal has already held and observed based on the contents of Ex.P.7 and Ex.R.2 Charge Sheet that, at the time of accident, the driver of the offending Car was not having a badge to drive transport vehicle and the Respondent No.1, who was a registered owner of the offending Car has allowed the driver, who was not having a 35 M.V.C.NO.2938/2014 (SCCH-7) badge. In this regard, the R.W.1 in his examination-in-chief has stated that, the jurisdictional Police after thorough investigation has filed a charge sheet as against the driver of the Car under Section 12, 177, 5(1) and Section 180 of M.V. Act by alleging that, the driver has no badge to drive transport vehicle and the owner of the vehicle knowing fully well, has entrusted the driver and thereby, the owner of the vehicle committed breach of the terms of the Insurance Policy and hence, the Respondent No.2 is not liable to pay any compensation to the Petitioner. He has further clearly stated in his cross-examination that, the driver of the offending Car was not at all having driving licence in respect of LMV non- transport. The Respondent No.2 has also examined the SDA, RTO, Kolar as R.W.2, who by producing Ex.R.5 Driving Licence Extract relating to Prasad S/o Gangulappa, i.e., driver of the offending Car, has stated in his examination-in-chief that, as per Ex.R.5 Driving Licence Extract, the said Prasad S/o Gangulappa is having a valid and effective driving licence to drive only LMV non- transport and he is not having badge, to drive LMV transport vehicle. No doubt, he has further stated in his cross-examination that, as per Ex.R.5 Driving Licence Extract, the said Prasad S/o Gangulappa is authorized to drive LMV vehicle unladden weight of 7500 kgs. But, as per the Police documents as well as the defence taken by the Respondent No.2, the offending vehicle is a cab and as such, the driver, who was driving the said class of vehicle at the time of accident, had to possess badge. Further more, in Ex.P.7 and Ex.R.2 Charge Sheet, the Respondent No.1, who was a registered owner of the offending Car was also made as accused No.2 by making allegation as against him that, he allowed the driver, who was not having a badge and willfully entrusted the vehicle to the driver. To deny or to discard the same, nothing is available on record on behalf of the Respondent No.1, as, though 36 M.V.C.NO.2938/2014 (SCCH-7) the notice was duly served on him, he was remained absent and hence, he is placed as exparte. Therefore, it can be safely held that, at the time of accident, the driver of the offending Car was not having a badge to drive such class of offending vehicle. Hence, the Respondent No.2, who is an insurer of the offending Car is not liable to pay the above said compensation and interest to the Petitioner by indemnifying the Respondent No.1 Since the Respondent No.1 was a registered owner of the offending Car and he has violated the terms and conditions of the admitted Insurance Policy relating to the offending Car, he alone is liable to pay the above said compensation and interest to the Petitioner.
40. While answering Issue No.1, this Tribunal has already come to the conclusion that, there is contributory negligence to an extent of 25% is attributed on the part of the Petitioner and 75% is attributed on the part of the driver of the offending Car bearing Registration No.KA-51-A-9683. Hence, the Petitioner is entitled for 75% of the said compensation amount and interest from the Respondent No.1. In view of the above said reasons, the principles enunciated in the decisions cited by the Learned Counsel appearing for the Petitioner are not applicable to the present facts and circumstances of the case on hand. On the other hand, the principles enunciated in the decisions cited by the Learned Counsel appearing for the Respondent No.2 are aptly applicable to the present facts and circumstances of the case on hand. Hence, Issue No.2 is answered accordingly.
41. ISSUE NO.3 :- For the aforesaid reasons, I proceed to pass the following, 37 M.V.C.NO.2938/2014 (SCCH-7) ORDER The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs as against the Respondent No.1.
The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby rejected without costs as against the Respondent No.2.
The Petitioner is entitled for compensation of Rupees 3,59,100/- to an extent of 75% with interest at the rate of 8% p.a. from the date of the petition till the date of payment, from the Respondent No.1.
The Respondent No.1 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this Order.
In the event of deposit of compensation and interest, entire amount shall be released in the name
of the Petitioner through account payee cheque, on proper identification.
38 M.V.C.NO.2938/2014(SCCH-7) Advocate's fee is fixed at Rupees 1,000/.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by her, corrected and then, pronounced by me in the open Court on this, the 15th day of February, 2016.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONER :-
P.W.1 : B. Pramila
P.W.2 : Ravindra. J.
P.W.3 : Dr. S. Ramachandra
2. DOCUMENTS MARKED BY THE PETITIONER :-
Ex.P.1 : True copy of FIR
Ex.P.2 : True copy of Complaint
Ex.P.3 : True copy of Spot Hand Sketch
Ex.P.4 : True copy of Spot Panchanama
Ex.P.5 : True copy of Wound Certificate
Ex.P.6 : True copy of MVI Report
Ex.P.7 : True copy of Charge Sheet
Ex.P.8 : Discharge Summary
Ex.P.9 : Medical documents relating to Dental
Treatment
Ex.P.10 : Medical Bills (3 in Nos.) along with 2
Estimations
Ex.P.11 : Physiotherapy Bills (6 in nos.)
Ex.P.12 : Salary Certificate dated 10.11.2014
Ex.P.13 : Medical Leave Certificate dated
10.11.2014
Ex.P.14 : Salary Slips from January 2014 to April
2014 (4 in nos.)
39 M.V.C.NO.2938/2014
(SCCH-7)
Ex.P.15 : Notarised Xerox Copy of Appointment
Letter dated 16.10.2013
Ex.P.16 : Discharge Summary
Ex.P.17 : Medical Bills (5 in nos.)
Ex.P.18 : Authorisation Letter dated 03.07.2015
Ex.P.19 : Case Sheet
Ex.P.20 : Outpatient Book
Ex.P.21 : X-ray films (2 in nos.)
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
R.W.1 : G. Shivakumar
R.W.2 : B. C. Chikkaankegowda
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
Ex.R.1 : True Copy of Insurance Policy
Ex.R.2 : True Copy of Charge Sheet
Ex.R.3 : Returned Unserved Postal Cover along
with Postal Acknowledgement
Ex.R.4 : Office Copy of Letter dated 18.08.2014
Ex.R.5 : Driving Licence Extract relating to
Prasad S/o Gangulappa
(INDIRA MAILSWAMY CHETTIYAR)
IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.