Bangalore District Court
Versus vs Petitioner/S By Sri.B.N.N on 11 January, 2022
1 M.V.C.No.3944/2018
SCCH - 15
KABC020169622018
BEFORE THE COURT OF THE IX & C/c XIII ASCJ.
SMALL CAUSES AND ADDL. MACT, BENGALURU,
(SCCH-15)
DATED THIS 11th DAY OF JANUARY - 2022
BEFORE: SRI.UMESH S. ATNURE,
B.Com.LL.B.(Spl)
IX Addl. Small Causes Judge,
Court of Small Causes,
Member, MACT7, Bengaluru.
M.V.C. No.3944/2018
Ms. Rithu Sharma,
D/o. Kishore Kumar Sharma,
Aged about 19 years,
R/at No.11, 2nd Cross,
K.K.Lane, Cottonpet,
Bengaluru - 560 053.
Petitioner/s
VERSUS
1) Sri. N. Muddappa,
S/o Late N. Narasimhaiah,
Aged about 83 years,
R/at. No.63, Fort 'B' Street,
Kalasipalyam,
Bengaluru - 560 002.
2 M.V.C.No.3944/2018
SCCH - 15
(Owner of Bus bearing Reg.
No.KA01AC8100)
2) The New India Assurance Co. Ltd.,
No.52, 1st Floor, Vinay Complex,
Vanivilas Road, Opp: National College,
Basavabagudi, Bengaluru 560 004.
(Policy No.67190031170200013666, valid
from 16.2.2018 to 15.3.2019)
Respondent/s
===
Petitioner/s by Sri.B.N.N., Advocate
Respondent No.1 by Sri. G.V.D., Advocate
Respondent No.2 by Sri. R.S.S., Advocate
===
Date of filing of Petition : 18.07.2018
===
:JUDGMENT:
1. This claim petition filed by petitioner under Section 166 of Motor Vehicles Act, 1989 claiming compensation of Rs.2,00,000/ for the injuries sustained by her in a road traffic accident occurred on 30.05.2018.
2. It is the case of petitioner that on 30.05.2018 at about 11.30 a.m., the petitioner was riding the Honda Activa Motor cycle bearing registration No.KA01HP4676 along with 3 M.V.C.No.3944/2018 SCCH - 15 pillion rider from Rajajinagar 6th Block towards Ramachanrapura, near Siddartha Trading Company, Rajajinagar Entrance, Bengaluru at that time suddenly the driver of a Civil Bus bearing registration No.KA01AC 8100 came from behind in a rash and negligent manner and in high speed and dashed to the motor cycle. Due to the impact, the petitioner fell down and sustained contusion head injury. Immediately she was shifted to Suguna hospital, Bengaluru for first aid treatment and also taken treatment as an inpatient for one day. Further the petitioner submitted that, prior to the accident she was hale and healthy, aged about 19 years and she was studying in final year BCA at SJRC college, Rajajingar, Bengaluru at the time of accident. This accident is occurred due to negligence of the driver of Bus bearing registration No.KA01AC8100. The respondent No.1 being owner and the respondent No.2 being insurer of offending vehicle are jointly and severally liable to pay 4 M.V.C.No.3944/2018 SCCH - 15 compensation. Hence, the petitioner prayed to allow the petition.
3. In response to the notice issued by this Tribunal, both respondent No.1 and 2 have appeared through their respective counsel and filed separate written statement
4. The respondent No.1 owner denied the entire petition averments. He admitted that, the Rajajinagar police have filed FIR in crime No.52/2018 U/s. 279 and 337 of IPC against his driver. However, he contended that it is a false case filed by police in order to help the victim, though there was no such accident caused by the driver of their Bus. The ambulance was dashed to the petitioner, but police have not filed any case against the driver of ambulance. The rider of motor cycle was not having valid and effective driving licence and both petitioner and rider were not wearing helmet at the time of accident. The accident took place due to the negligence on the part of rider of motor cycle. The driver of this respondent is no way responsible for the cause 5 M.V.C.No.3944/2018 SCCH - 15 of alleged accident and there is contributory negligence on the part of rider. Further the respondent No.1 admitted that he is the owner of Bus bearing registration No.KA01 AC8100 and insured with 2nd respondent and the policy was in force as on the date of accident and his driver was having valid and effective driving licence as on the date of accident and also bus was having stage carriage permit and valid FC as on the date of accident. Hence, the 2 nd respondent has to indemnify him and pay compensation to the petitioner and he prayed to dismiss the petition.
5. The 2nd respondent filed the written statement by denying the entire contention of the petitioner. Further the respondent No.2 contended that the driver of bus bearing registration No.KA01AC8100 was not having valid and effective driving licence as on the date of accident and the respondent No.1 knowing fully well handed over the vehicle to the driver, who was not having valid driving licence to drive the same at the time of accident and said bus was not 6 M.V.C.No.3944/2018 SCCH - 15 having valid permit, route permit and FC as on the date of accident. Further contended that the permit of bus bearing registration No.KA01AC8100 valid from 11.11.2013 to 10.11.2018 issued by RTO, Tumkur and the said permit was replaced from bus bearing No.KA01AC 8100 to another vehicle bearing No.KA01AA6098 with effect from 29.01.2018 and as such the offending bus was not having valid permit as on the date of accident. Hence, under the contract of insurance, they are not obligated to indemnify the 1st respondent. Further the 2nd respondent admitted for having issued policy in respect of the bus bearing registration No.KA01AC8100 and the policy was in force as on the date of accident and its liability is subject to terms and conditions of the policy. Further contended that the petitioner sustained injuries due to collusion between scooter and KSRTC bus, but not by the said bus. The petitioner colluding with jurisdictional police has created false records and story about the manner and 7 M.V.C.No.3944/2018 SCCH - 15 involvement of insured to get compensation and lodged a false complaint and insured bus in question is falsely implicated to have caused accident. This accident is occurred due to negligence on the part of rider of scooter, in which the petitioner was travelling as pillion rider and the rider of scooter was riding the same without having proper look out vehicles movement on the road and without noticing on coming vehicles and riding in a rash and negligent manner and caused the accident and not due to the negligence on the part of driver of insured bus. The rider and pillion rider/petitioner were not wearing ISI mark headgear at the time of accident. The petition is bad for nonjoinder of proper and necessary parties to the petitioner as the owner and insurer of scooter are not made as parties to this petition. The compensation claimed by the petitioner is excessive and exorbitant. Hence, on all these grounds, the 2nd respondent prayed to dismiss the petition. 8 M.V.C.No.3944/2018
SCCH - 15
6. On the basis of above pleadings following Issues were framed.
:: I S S U E S ::
(1) Whether petitioner proves that, she has sustained injuries due to RTA alleged to have been occurred on 30.05.2018 at about 11.30 a.m., near Siddartha Trading Company, near Rajajinagar Entrance, Bengaluru, due to rash and negligent act of driver of Bus bearing registration No.KA01AC8100 ?
(2) Whether the petitioner is entitled for compensation? If so, what amount and from whom ?
(3) What order or award?
7. In order to prove the case of petitioner, the petitioner herself examined as PW1 and got marked Ex.P1 to P8.
On the other hand, the 2nd respondent examined its Asst. Manager as RW1 and got marked Ex.R.1 to R.5. Further the GPA holder of respondent No.1/owner examined himself 9 M.V.C.No.3944/2018 SCCH - 15 as RW1 and got marked Ex.R.6 to Ex.R.10 documents. Further the 2nd respondent examined RTO, Tumkur as RW3 and got marked Ex.R.11 to R.13.
8. Heard the arguments of both counsels.
9. My findings to the above referred Issues are as under;
Issue No.1 : In the affirmative
Issue No.2 : Partly in the affirmative
Issue No.3 : As per final order,
for the following.......
:REASONS:
10. Issue No.1: In support of the case of the petitioner, the petitioner got examined herself as PW.1 and in her examinationinchief she reiterated the petition averments and and relied on the police documents. The Ex.P.1 is FIR, Ex.P.1(a) is Complaint, Ex.P.2 is Spot mahazar, Ex.P.3 is Sketch, Ex.P.4 is IMV report, Ex.P.5 is Wound certificate and Ex.P.6 is Charge sheet. In her crossexamination PW.1 depose that at the time of accident she was having valid driving licence, but she has not produced the same as she 10 M.V.C.No.3944/2018 SCCH - 15 lost the same in the alleged accident. She admitted that, the bus which was caused in the accident was coming from left side of the road and her vehicle is also damaged on the left side. She denied that as the bus was moving slowly at the turning, at that time, she drove the motor cycle in high speed, in rash and negligent manner and dashed to the back side of said bus. She also denied that, as she was not having any driving licence, as such she lodged a false complaint against the driver of bus. Further she admitted that, in this accident she has not sustained any fracture injuries and she took the treatment as out patient.
11. The respondent No.2 has examined their Asst. Manager as RW1 and got marked authorization letter as per Ex.R.1, Policy copy as per Ex.R.2, Permit extract as per Ex.R.3, Replacement endorsements dated 10.11.2013 as per Ex.R.4 and R.5. From the evidence of RW1 nothing worth is brought on record to show that there is no negligence on the part of driver of Bus.
11 M.V.C.No.3944/2018
SCCH - 15
12. From the oral and documentary evidence adduced by both parties with regard to the negligent act on the part of driver of bus, nothing worth is brought on record to show that there is no negligence on the part of driver of Bus bearing registration No.KA01AC8100. Further by perusing the Charge sheet marked as per Ex.P.6, it clearly goes to show that due to the negligence on the part of driver of Bus bearing registration No.KA01AC8100 this accident took place and by perusing the wound certificate marked as per Ex.P.5 it shows that, in this accident the petitioner has sustained injuries. Hence, I answered the Issue No.1 in the affirmative.
13. Issue No.2: In this case, by perusing the Wound certificate marked as per Ex.P.5, it clearly goes to show that the injuries sustained by the petitioner is grievous in nature, but it does not cause any disability to the petitioner. Further the petitioner in her crossexamination has clearly admitted that, she has not sustained any fracture injuries 12 M.V.C.No.3944/2018 SCCH - 15 in this accident and she took treatment as an outpatient for one day. So, this shows that, due to the injuries sustained in the accident, the petitioner has not sustained any permanent physical disability. Hence, if Global compensation of Rs.25,000/ along with medicines and hospital expenses, which are marked as per Ex.P.7 i.e. Rs.5,695/ are granted, it will meet the ends of justice.
14. Hence, the petitioner is entitled for compensation under the following heads.
Towards global compensation Rs. 25,000.00
Towards medical expenses Rs. 5,695.00
Total Rs. 30,695.00
Hence the petitioner is entitled for just and reasonable compensation amount of Rs.30,695/.
15. While discussing Issue No.1 this Tribunal has come to the conclusion that due to the negligence of the driver of the Bus bearing registration No.KA01AC8100 this accident is took place. Further it is clear that the respondent No.1 is 13 M.V.C.No.3944/2018 SCCH - 15 the owner and the respondent No.2 is the insurer of the said Bus. The respondent No.2 has admitted that as on the date of the accident the said bus was duly insured by them, but their liability is subjected to terms and conditions of the policy.
16. Further the respondent No.2 specifically contended that, as on the date of accident, the Bus bearing registration No.KA01AC8100 was not having valid permit and thereby there is violation of terms and condition of the policy and as such they are not liable to pay any compensation to the petitioner. In support of this contention, the respondent No.2 got examined their Asst. Manager as RW1. In his examinationinchief, he deposed that the Bus bearing registration No.KA01AC8100 was holding permit bearing No.PSTS 109/9899 valid from 11.11.2013 issued by RTO, Tumkur and said permit belongs to the Bus bearing registration No.KA01AC8100 was replaced to another vehicle bearing registration No.KA01 14 M.V.C.No.3944/2018 SCCH - 15 AA6098 w.e.f. 29.01.2018 as such as on the date of accident the Bus bearing registration No.KA01AC8100 was not having valid permit. As such there is violation of policy condition and hence, they are not liable to pay any compensation to the petitioner. In support of the same, the respondent No.2 has produced Permit extract as per Ex.R.3, Replacement endorsement dated 10.11.2013 as per Ex.R.4 and Replacement endorsement dated 10.11.2018 as per Ex.R.5. By perusing Ex.R.3 Permit extract, it goes to show that the Bus bearing registration No.TN27Z4142 was having permit and permit was valid from 11.11.1998 to 10.11.2003. Further by perusing Ex.R.4, it goes to show that, the permit issued to Bus bearing registration No.KA 02B8100 vide permit No.109/9899, which was valid up to 10.11.2013 for rute Bangalore to Madhugiri and back was replaced to another vehicle bearing registration No.KA01 AA8100 and valid from 29.01.2018. Further by perusing Ex.R.5, it clearly goes to show that, the permit issued to 15 M.V.C.No.3944/2018 SCCH - 15 Bus bearing registration No.KA01AC8100 was replaced to Bus bearing registration No.KA01AA6098 w.e.f. 29.10.2018. Hence, it is clear that, as on the date of accident, the Bus bearing registration No.KA01AC8100 was not having valid permit. In the crossexamination of RW1, he deposed that, they have not verified the permit copy of the vehicle prior to issuing the policy. He denied that, he is falsely deposing that they have issued the policy to said vehicle, which was not having valid permit. He also denied that, they are liable to pay any compensation to the petitioner and in order to escape from the liability by creating Ex.R.4 and Ex.R.5 he is deposing falsely. He has also denied that, the Bus bearing registration No.KA01 AC8100 was having valid permit from 11.11.2013 to 10.11.2018. Further he denied that in order escape from the liability he is deposing falsely.
17. The respondent No.1 GPA holder examined himself as RW2. In his examinationinchief he deposed as per the 16 M.V.C.No.3944/2018 SCCH - 15 contentions taken by him and he got marked GPA as per Ex.R.6, Certified copy of Interim order passed by Hon'ble High Court of Karnataka in W.P.No.3426534279/2015 as per Ex.R.7, certified copy of petitioner in W.P. No.38478 38502/2015 as per Ex.R.8, certified copy of Interim order passed by Hon'ble High Court of Karnataka in W.P.No. 3847838502/2015 as per Ex.R.9 and certified copy of Endorsement of Renewal Permit of Vehicle No.KA01AC 8100. The RW2 is crossexamined by the respondent No.2. In his crossexamination, RW2 deposed that, there are nine buses owned by the respondent No.1. The Bus bearing registration No.KA01AC8100, KA01AA6098 and KA 02B8100 are owned by respondent No.1. He denied that they are not having individual permit to all said three buses. Further he admitted that, permit bearing No.109/9899 was initially issued to the bus bearing registration No.TN27Z4142 to the route from Bengaluru to Madhugiri. He has also admitted that, the said permit 17 M.V.C.No.3944/2018 SCCH - 15 was replaced to another vehicle and replaced the vehicle, so as to ply in the route mentioned in said permit. Further he admitted that, the permit bearing No.109/9899 was replaced to Bus bearing No.KA01AC8100 dated 24.08.2011 and it was valid up to 10.11.2013. However, he deposed that it was renewed up to 2018 and again renewed up to 2023. Further he deposed that as the said permit was again replaced to Bus bearing registration No.KA01AA 6098. He denied that on 30.05.2018 no valid permit was their to Bus bearing registration No.KA01AC8100 and he is deposing falsely. Further he denied that in the Tumkuru RTO the permits of their vehicles were replaced. He admitted that on 23.09.2013, the permit issued to Bus bearing registration No.KA01AC8100 was renewed and it was valid from 11.11.2013 to 10.11.2018. Further he admitted that the said permit was replaced to Bus bearing registration No.KA01AA6098 and it was valid from 29.01.2018. He denied that as per Ex.R.5, as on the date of 18 M.V.C.No.3944/2018 SCCH - 15 accident, Bus bearing registration No.KA01AC8100 was not having valid permit. He has also denied that even though said bus was not having valid permit, he is deposing falsely.
18. From the evidence of RW1 and Ex.R.4 and Ex.R.5, it clearly goes to show that the permit which issued to Bus bearing registration No.KA01AC8100 was transferred to another vehicle i.e. Bus bearing registration No.KA01AA6098 w.e.f. 29.01.2018. Further by perusing Ex.R.4, it clearly goes to show that as on the date of accident, the Bus bearing registration No.KA01AC8100 was not having valid permit and so also from the evidence of RW2, it is very much clear that as on the date of accident, the Bus bearing registration No.KA01AC8100 was not having valid permit. Hence, it is clear that as on the date of accident the offending Bus was not having valid permit.
19. the respondent No.2 - insurer of offending bus contended that the Bus bearing registration No.KA01AC8100 was 19 M.V.C.No.3944/2018 SCCH - 15 not having valid permit at the time of accident and as such they are not liable to pay any compensation to the petitioner. Now, the question is, whether violation of policy condition absolves the liability of the insurance company - respondent No.2 is to be seen. What is the effect of violation of the condition of the policy by the RC owner is considered, in the recent full Bench Judgment of Hon'ble High Court of Karnataka reported in 2020(2) KCCR 1405 (New India Assurance Company Ltd. Vs. Yellavva and another), wherein Their Lordships held that:
(3) "(i) The Insurer is liable to pay the third party and recover from the insured even if there is breach of any condition recognized under Section 149(2), even if it is a fundamental breach ( that is breach of condition which is the cause for the accident) and the insurer proves the said breach, in view of the mandate under Section 149(1) of the Act. But no such order can be passed against the insurer. If, on the facts and circumstances of a case, a finding is given by the Court that the third party (injured or deceased) had played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss to the insurer".20 M.V.C.No.3944/2018
SCCH - 15 Therefore, it cannot be said that respondent No.2 is not liable to pay the compensation to the petitioner. Therefore, as per the principles laid down by Their Lordships in the case referred supra, the respondent No.2 - Insurance company, at first, is required to pay the compensation to the petitioner and then recover the same from the respondent No.1, by initiating appropriate proceedings. From the above said authority, it clearly goes to show that, the even though the offending vehicle was not having permit, if it is insured and the policy was in force as on the date of accident, the Insurance Company is liable to pay compensation to the petitioner, then recover the same from the owner of offending vehicle. In this case on hand also, the offending vehicle i.e. the Bus bearing registration No.KA01AC8100 was not having valid permit, but it was insured by the respondent No.2. Hence, the respondent No.2 being insurer is liable to pay compensation to the petitioner along with interest at the rate of 6% per annum 21 M.V.C.No.3944/2018 SCCH - 15 from the date of petition till realization of entire compensation amount and recover the same from the respondent No.1 by due process of law. Hence, I answered the Issue No.2 partly in the affirmative.
20. Issue No.3: For the above stated reasons, I proceed to pass the following:
:ORDER:
Claim petition filed by the petitioner U/Sec 166 of M.V. Act is partly allowed with cost of Rs.1,000/.
Petitioner is awarded just and reasonable compensation of Rs.30,695/ (Rupees Thirty Thousand, Six Hundred and Ninety Five Only) with interest at the rate of 6% p.a. from the date of petition to till the date of depositing of the compensation amount in the Court.22 M.V.C.No.3944/2018
SCCH - 15 The respondent No.1 owner is liable to pay the compensation amount to the petitioner. However, the respondent No.2 - Insurer shall pay the compensation amount with interest at the rate 6% p.a from the date of petition till relaisation entire award amount to the petitioner at the first instance and recover the same from respondent No.1 by initiating appropriate proceedings.
The respondent No.2 is directed to pay the compensation amount within two months from the date of this judgment.
Draw award accordingly.
:APPORTIONMENT:
Out of the compensation amount, entire compensation amount is to be released in favour of petitioner through E 23 M.V.C.No.3944/2018 SCCH - 15 payment and after verifying the stay order from the Hon'ble Appellate Court. (Dictated to the Stenographer, typed by her, corrected and then, pronounced by me in the open Court on this, the 11.01.2022).
(Umesh S.Atnure) IX ASCJ & ACMM, Court of Small causes and Member MACT, Bengaluru.
: ANNEXURE :
List of Witnesses Examined for Petitioner/s.
PW1 : Rithu Sharma List of exhibited documents marked for Petitioner/s.
Ex.P1 : FIR
Ex.P1(a) : Complaint
Ex.P2 : Mahazar
Ex.P3 : Sketch
Ex.P4 : IMV report
Ex.P5 : Wound certificate
Ex.P6 : Charge sheet
Ex.P7 : Medical bills (2 in Nos.)
Ex.P8 : Aadhaar Card
24 M.V.C.No.3944/2018
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List of witnesses examined for Respondent/s:
RW1 : Jayanth H.Y RW2 : Pavan Jagadish RW3 : S.Raju
List of exhibited documents marked for Respondent/s:
Ex.R1 : Authorization letter
Ex.R2 : Copy of policy
Ex.R3 : Copy of Permit extract
Ex.R4 : Replacement Endorsement dtd.10.11.2013
Ex.R5 : Replacement Endorsement dtd.10.11.2018
Ex.R6 : GPA executed by respondent No.1
Ex.R7 : CC of Interim order passed by Hon'ble High
Court of Karnataka in W.P.No.34265
34279/2015
Ex.R8 : CC of petition in W.P. No.3847838502/2015
Ex.R9 : CC of Interim order passed by Hon'ble High
Court of Karnataka in W.P.No.3847838502 / 2015 dated 14.09.2015 Ex.R10 : CC of endorsement of renewal of permit of Vehicle No.KA01AC8100 Ex.R11 : Authorization letter issued by RTO, Tumkuru Ex.R12 : Copy of Endrosement of Renewal of permit dtd.
23.09.2013 25 M.V.C.No.3944/2018 SCCH - 15 Ex.R13 : Copy of endorsement of replacement dtd.
29.01.2018 (Umesh S.Atnure) IX ASCJ & ACMM, Court of Small causes and Member MACT, Bengaluru.