Bangalore District Court
Is Called Upon To Prove And Substantiate ... vs No.2 on 3 December, 2016
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND ADDL.
MACT., BANGALORE, (SCCH-7)
Dated this, the 3rd day of December, 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.2134/2015
Smt. Bharathi, ..... PETITIONER
W/o. Siddalingegowda,
R/at No.54, 1st Cross,
2nd Main Road,
Maruthi Layout,
Konanakunte,
Kanakapura Main Road,
Bangalore - 560 062.
(Present Address)
R/at No.54,
Murakani Village,
Kasaba Hobli,
H. Kothanoor Post,
Kanakapura Taluk,
Ramanagar District,
(Permanent Address)
(By Sri. B.S. Devaraju, Adv.,)
V/s
1. IFFCO Tokio General Insurance ..... RESPONDENTS
Company Ltd.,
Servicing Office,
No.8, 3rd Floor,
K.S.C.M.F., Building,
2 M.V.C.NO.2134/2015
(SCCH-7)
Cunningham Road,
Bangalore - 560 052.
(Policy No.1-3336A0BM,
Policy No.P40089509098,
Period of Insurance from 20.10.2014 to
19.10.2015)
2. Mr. Venkatesh,
S/o. Lachamaiah,
R/at No.27,
Krishnabovidoddi,
Kanakapura Taluk,
Ramanagar District.
(R1- By Sri. B.T. Rudra Murthy, Adv.,)
(R2- Exparte)
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 15,00,000/- with interest at the rate of 12% p.a., from the date of petition.
2. The brief averments of the Petitioner's case are as follows;
a) On 05.03.2015 at about 8-30 a.m., she was traveling as a passenger in an Auto bearing Registration No.KA-42-7771 on Jakkasandra Village Road, Harohalli Industrial Area, Harohalli, Kanakapura Taluk, Ramanagar District. The driver of the said Auto, driven the same, at a very high speed and in a rash and negligent manner, without observing the traffic norms. When he came near Jakkasandra, at that time, he lost the 3 M.V.C.NO.2134/2015 (SCCH-7) control over his vehicle and the said Auto turn toppled on the right side of the said road. Due to that tremendous impact, she sustained grievous injuries to her abdomen and both hip joints.
b) Immediately, she was shifted to Victoria Hospital for first-aid and then, she was shifted to the KIMS Hospital for better treatment, wherein, she was admitted as an inpatient.
c) Still she is bed-ridden and under treatment and so far, has spent Rupees 1,00,000/- towards the medical, conveyance and nourishment expenses.
d) Before the said accident, she was working as an Assistant (Packing and Filling) and was earning Rupees 12,000/- p.m. After the said accident, she is unable to lead a normal life as earlier and not able to do her work as before and suffering from huge loss of income.
e) The cause of the said accident is due to the rash and negligent driving by the driver of the Auto bearing Registration No.KA-42-7771. In this regard, a case has been registered by the Harohalli Police Station in Crime No.87/2015.
f) The Respondent No.1 is the Insurer and the Respondent No.2 is the Owner of the vehicle in question. Hence, both the Respondents are jointly and severally liable to pay the compensation to her on the heads of pain and suffering, physical and mental agony, loss of income, loss of amenities, loss of medical, conveyance and nourishment expenses, future medical expenses, permanent disability, etc., Hence, this petition.
4 M.V.C.NO.2134/2015(SCCH-7)
3. Initially, though the notice was duly served on the Respondent No.1, it was remained absent and hence, it was placed as exparte on 16.07.2015. Later, the Respondent No.1 has appeared before this Tribunal through its Learned Counsel and as per the Order dated 14.08.2015 passed on I.A.No.I, the exparte order is set-aside and the Respondent No.1 is taken on file. But, initially, inspite of giving sufficient opportunities, the Respondent No.2 had not filed the written statement. Later, as per the Order dated 15.04.2016 passed on I.A.No.II, the written statement filed by the Respondent No.2 is taken on file.
4. Though the notice was duly served on the Respondent No.2, he was remained absent and hence, he is placed as exparte on 16.07.2015.
5. The Respondent No.1 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) It is the Insurer of the Auto Rickshaw bearing Registration No.KA-42-7771 and the liability of it, is subject to the terms and conditions of the Policy of Insurance, provisions of the Motor Vehicles Act and valid and effective driving licence held by the driver of Auto Rickshaw as on the date of the alleged accident, if proved.
b) The Respondent No.2 is duty bound under Section 134(c) of the Motor Vehicles Act, to inform the accident and submit all vehicular documents including the driving licence and insurance particulars to it. The Respondent No.2 has failed and neglected to perform the statutory obligation. Violation of the Motor Vehicles Act in this regard and also the terms and 5 M.V.C.NO.2134/2015 (SCCH-7) conditions of the contract would disentitle the Respondent No.2 to claim indemnification from it. Since the accident has not taken place, the insured has not informed and not furnished particulars as required under law to it.
c) 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 Respondent No.2, if the Respondent No.2 fails to contest the case effectively.
d) It can safely gathered from the Police documents that, the complaint lodged before the jurisdictional Police after 21 days of the alleged date of alleged accident, which clearly shows that, the insured Auto Rickshaw bearing Registration No.KA-42-7771 was incorporated in the alleged accident and the same is after thought and created for the purpose of getting compensation from it by colluding with Insured.
e) Without prejudice to the contention raised above, the Petitioner is called upon to prove and substantiate that, the accident was occurred by involving insured Auto Rickshaw bearing Registration No.KA-42-7771 and she had sustained injuries in the alleged accident by producing independent witness. In the event of proved the involvement of insured Auto in the alleged accident by the Petitioner, then also, it is not liable to pay compensation to Petitioner, as, the Insured has violated the mandatory provisions of M.V. Act, 1988, as no permit and no FC.
f) Even though the involvement of insured Auto is proved, then also, not liable as the reasons that, it has obtained 6 M.V.C.NO.2134/2015 (SCCH-7) all vehicular documents and after perusal of those documents, the Respondent No.2 has not obtained valid and effective permit to ply on the accidental area as on the date of alleged accident. The Transport Authority, Ramanagaram, has issued permit from 31.10.2011 to 30.10.2016 to ply on specified area Kanakapura Town limit only, but, not to Harohalli Industrial Area, Harohalli, wherein, the place of alleged accident. The Police have not Charge Sheeted under Section 66(1) of M.V. Act, the reasons best known to them. The Respondent No.2 has violated the terms and conditions of the policy and provisions of M.V. Act. Under these circumstances, it is not liable to indemnify the Respondent No.2.
g) It reserves the right to file additional Written Statement under the changed circumstances of the case.
h) It is not liable to pay any compensation or interest of the said claim petition as the Auto Rickshaw bearing Registration No.KA-42-7771 was not involved in the accident and even the insured Auto Rickshaw involved is proved and then also, not liable, as, the insured violated the mandatory provisions of M.V. Act, as, no permit and no FC. Hence, prayed to dismiss the claim petition with exemplary 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 Auto 7 M.V.C.NO.2134/2015 (SCCH-7) Rickshaw bearing Reg.No.KA-42- 7771 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?
3. What Order?
7. In order to prove his 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.23. On the other hand, the Respondent No.1 has examined its Assistant Executive Legal as R.W.1 by filing an affidavit as his examination-in-chief and has also examined the R.T.O., Ramanagara, 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. B.S. Devaraju has placed reliance upon the decisions reported in,
i) 2012 ACJ 1604 High Court of Himachal Pradesh At Shimla (Oriental Insurance Co. Ltd V/s. Khiramani and Others), wherein, it is observed that, Negligence-Delay in lodging FIR-JCB vehicle hired by gram panchayat for construction of road hit a person and he sustained fatal injuries- Defence that, 8 M.V.C.NO.2134/2015 (SCCH-7) JCB was stationary, no accident took place with it and deceased sustained injuries by falling of stone on him and FIR was lodged after 24 days-Claimants examined two eye witnesses who deposed that, they were working for construction of road, driver of JCB during its operation hit the deceased and he sustained injuries- Insurance Company relied upon complaint recorded by Patwari in which it is mentioned that, deceased suffered injuries when a stone fell on him-Author of complaint has not been examined and it is not clear on whose information Patwari recorded the complaint-
Insurance Company having taken permission to contest the claim on all grounds should have probed these facts-
Mere fact that, post-mortem was not performed or Fir was lodged after 24 days is not sufficient to hold that, accident did not take place when two witnesses have been examined in this behalf-Tribunal appreciated the evidence and held that, drive of JCB was rash and negligent-
Tribunals' finding upheld.
ii) 2011 (2) AIR Kar R 295 Supreme Court (Ravi V/s. Badrinarayan and Others), wherein, it is observed that, (A) MOTOR VEHICLES ACT (59 of 1988), Ss.140, 166-Criminal P.C. (2 of 1974), S.154-Claim petition-Delay in lodging FIR-Effect-Victim child aged 8 years suffered grievous injuries-
Father of child was not aware of niceties of law and it was more important for him to get his child treated first-Owner of vehicle made categorical admission that, he was aware of accident caused by his driver on same day-In such case, 9 M.V.C.NO.2134/2015 (SCCH-7) delay in lodging FIR would not be fatal and claim petition need not be dismissed on that, ground.
iii) 2011 AIR SCW 2609 (Nagarajappa V/s. Divisional Manager, Oriental Insurance Co. Ltd.,), wherein, it is observed that, MOTOR VEHICLES ACT, (59 of 1988) S, 168-CompensationLoss of future income-Claimant working as coolie-
Suffering permanent gross deformity of his left forearm wrist and hand and shortening of left upper limb-Deformity severely affecting his ability to perform his work as coolie or do any other manual work and also his ability to find work-For compensation loss of future income-
Disability assessed by Doctor of left arm ought to be considered and not disability assessed of whole body.
iv) 2013 ACJ 2131 Supreme Court of India at New Delhi (G. Ravindranath V/s. E. Srinivas and Another), wherein, it is observed that, Quantum-Injury- Pelvis and urethra-
Fracture and grievous injuries in pelvic region and total rupture of urethra resulting in impotence-injured suffering from severe pain and was not passing urine through normal course, requiring catheterization and suffered from erectile dysfunction-injured aged 19 remain under treatment for quite long, inpatient many time and underwent multiple surgeries and has become impotent-
Injured had to discontinue his education 10 M.V.C.NO.2134/2015 (SCCH-7) and has become unfit for marital life-
Tribunal awarded Rupees 2,10,000/-
High Court further allowed Rupees 2,25,000/- Apex Court allowed Rupees 2,20,000/- for medical expenses boarding, lodging transportation Rupees 6,00,000/- for future medical expenses attendant charges etc Rupees 3,00,000/- for pain, suffering and trauma, Rupees 4,00,000/- towards loss of amenities of life and prospects of marriage and Rupees 5,00,000/- towards loss of expectation of life and loss of future earnings-Award of Rupees 4,35,000/- enhanced to Rupees 20,20,000/-.
iv) 2015 ACJ 2142 High Court of Kerala at Ernakulam (Augustine. V.M. V/s. Ayyappankutty and Others), wherein, it is observed that, Motor Vehicles Act, 1988, Section 149 (2) (a) (i) (c)-Motor Insurance-Permit or fitness Certificate-Expiry of-Defenses available to Insurance Company- pay and recover order- Insurance Company disputes its liability on the ground that, certificate of fitness or permit of the offending vehicles had expired before the date of accident -No contention by Insurance Company that, vehicles were used for a purpose not allowed by the permit-No evidence that, breaches alleged by the Insurance Company were so fundamental as to have contributed to the cause of accident -Whether Insurance Company is entitled to take defence of technical violation of conditions of policy in respect of non-renewal of certificate of fitness or permit of a transport vehicle in a third party claim-Held; no; in the absence of evidence that, breach was so 11 M.V.C.NO.2134/2015 (SCCH-7) fundamental as to lead to act there cannot be Automatic direction to Insurance Company to recover the amount from the owner.
v) ILR 2014 KAR 191 (Shri. Rangappa @ Rangappa Shetty V/s. Shri. Jayaramaiah and Another), wherein, it is observed that, MOTOR VEHICLES ACT,1988- SECTION 173 (1)- Accident claim-
Judgment and Award- Liability fastened on the owner of the offending vehicle but, not on the insurer-Appealed against-
Contention of the insurer is that, the offending vehicle did not possess fitness certificate at the relevant time and therefore, they are not liable to pay Complainant. HELD, the life of an Insurance Policy issued in respect of a motor vehicle will be valid for one year and for every next year either it has to be renewed a new policy has to be obtained.
Therefore, the insurer at every time of insuring a vehicle and issuing policy or renewing such policy should verify whether the vehicle has possessed all the necessary certificates including the fitness certificate. The Insurance Companies cannot blindly insure motor vehicle sand collect premium and thereafter content that, the vehicle did not possess fitness certificate at the relevant point of time and therefore they are not liable to pay compensation to the claimants. This attitude of the insurer cannot be encouraged any longer.
12 M.V.C.NO.2134/2015(SCCH-7)
vi) 2011 ACJ 690 High Court of Karnataka at Bangalore (Marakka and Others V/s. Shahid Khan and Another), wherein, it is observed that, MOTOR VEHICLES ACT,1988-
SECTION 147 and 149(1)-Motor Insurance Policy-Breach of -Liability of Insurance Company-Pay and recover order-Death of a passenger traveling in Auto Rickshaw which met with accident due to rash and negligent driving-
Tribunal fastened liability jointly and severally on the owner of vehicle and Insurance Company but, observed that, driver of Auto Rickshaw was not holding a valid driving licence-Auto Rickshaw was overloaded and it had permission to ply within city limits but, it was plied outside the city limits-Whether the Insurance Company has to satisfy the award in favour of the claimants and it will be entitled to recover the amount from the insured-Held: yes.
vii) 2010 ACJ 1441 Supreme Court of India at New Delhi (Kamala Mangalal Vayani and Others V/s. United India Insurance Co. Ltd., and Another), wherein, it is observed that, MOTOR VEHICLES ACT,1988- SECTION 149(1) and 66(3) -Motor Insurance Permit-Policy-Breach of -
Burden of proof- Liability of Insurance Company-Insurance Company contended that, vehicle was not having permit to operate as public service vehicle and that, onus to prove permit was on the claimants-owner/driver remained exparte-High Court accepted the pleas of Insurance Company and held the Insurance Company not liable to pay 13 M.V.C.NO.2134/2015 (SCCH-7) compensation-Whether the onus to prove that, vehicle was having a valid permit was on the claimants-Held; no; it is for the Insurance Company to establish that, there is breach of policy condition and it is not liable.
viii) 2010(1) AIR Kar R 202 (New India Assurance Co. Ltd., V/s. Smt. Mahadevamma and Others), wherein, it is observed that, MOTOR VEHICLES ACT, (59 of 1988), Ss, 147,149(1)-Liability of insurer- Third party risk-vehicle got contract carriage but, was plied as stage carriage- There is violation of terms and conditions of permit and it may b a ground for cancellation of permit-But, same cannot be a ground for Insurance Company to absolve form its liability to pay compensation- insurer liable for accident caused by vehicle insured by it.
10. My answers to the above said Issues are as follows;
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative,
The Petitioner is entitled
for compensation of Rupees
3,54,924/- with interest at
the rate of 9% p.a. (excluding
future medical expenses of
Rupees10,000/-) from the
date of the petition till the
date of payment, from the
Respondent No.2.
14 M.V.C.NO.2134/2015
(SCCH-7)
Issue No.3 : As per the final Order,
for the following;
REASONS
11. ISSUE NO.1 :- The P.W.1, who is the Petitioner has
stated in her examination-in-chief that, on 05.03.2015 at about 8.30 a.m., she was traveling as a passenger in an Auto bearing Registration No.KA-42-7771 on Jakkasandra Village Road, Harohalli Industrial Area, Harohalli, Kanakapura Taluk, Ramanagar District and the driver of the said Auto had driven the same at a very high speed and in a rash and negligent manner without observing the traffic norms and when he came near Jakkasandra, at that time, he lost the control over his vehicle and applied sudden brake and the said Auto turn toppled on the right side of the said road and due to the tremendous impact, she fell down from the vehicle and sustained grievous injuries to her abdomen and both hip joints. She has further stated that, immediately, she was shifted to Victoria Hospital for first-aid, wherein, she was treated as an inpatient from 05.03.2015 to 18.03.2015 and then, she was shifted to KIMS Hospital for the better treatment, wherein, she was admitted as an inpatient from 18.06.2015 to 19.06.2015, wherein, it is diagnosed that, she has suffered fracture both inferior and superior public rami on right side, fracture of sacral bone S2-S3, Blunt ABD Trauma causing Mesenteric Contusion, urethral rupture with bleeding injury over the pelvis region and in the said Hospital, X-rays and MRI scans were done and injuries are confirmed. She has further stated that, 15 M.V.C.NO.2134/2015 (SCCH-7) the cause of accident was due to rash and negligent manner of driving of Auto bearing Registration No.KA-42-7771.
12. It is pertinent to note here that, though the accident was taken place on 05.03.2015 at 8.30 a.m., the father of the Petitioner has lodged the complaint before the Police on 2306.2015 at 11.00 a.m., in respect of the accident caused to the Petitioner, which disclosed that, there is 21 days delay in lodging the said complaint. Further, the P.W.1 in her cross- examination has stated that, before the accident, she did not know the registration number of the offending Auto Rickshaw and she has not informed about the accident to the Hospital Authority and she does not know, who had informed to the Hospital Authority about the accident in question and when she was admitted in the Hospital, her husband and her parents were looking after her in the Hospital and immediately after the accident, she informed her husband and parents about the accident caused to her. She has further clearly admitted that, immediately after the accident, when she was in the Hospital, there was no hurdle to her husband and her family members to intimate to the Hospital authority about the accident.
13. But, based on the said delay of 21 days in lodging the complaint by the father of the Petitioner in respect of the accident caused to the Petitioner, it cannot be thrown away the above said oral evidence of P.W.1, which has been stated by her in the examination-in-chief and it cannot be said that, the alleged accident never taken place and the Petitioner never traveled in the offending Auto bearing Registration No.KA-42- 7771 and the said offending Auto Rickshaw and its driver never 16 M.V.C.NO.2134/2015 (SCCH-7) involved in the said alleged road traffic accident, as, to corroborate her case as well as the oral evidence, the Petitioner has produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Spot Panchanama, Ex.P.4 Vehicle Seizure Panchanama, Ex.P.5 MVI Report, Ex.P.6 Wound Certificate, Ex.P.7 Charge Sheet, Ex.P.8 Discharge Summary relating to Victoria Hospital, Ex.P.9 Discharge Summary relating to KIMS Hospital 2 in numbers, Ex.P.13 Photographs 2 in numbers, Ex.P.14 CD relating to Ex.P.13 Photographs, Ex.P.17 X-ray films 7 in numbers and Ex.P.18 CT Scan films 4 in numbers and also produced Ex.P.20 Inpatient Case Sheet 2 in numbers through P.W.2, who is a Medical Record Technician at KIMS Hospital, Bangalore and also produced Ex.P.23 Inpatient Records through P.W.3, who is a Orthopedic Surgeon at Victoria Hospital, which clearly disclosed that, due to very high speed, rash and negligent manner of driving of the offending Auto bearing Registration No.KA-42-7771 by its driver itself, the said road traffic accident was taken place on 05.03.2015 at 8.30 a.m., wherein, the Petitioner was traveling as a passenger and due to the said driving of Auto Rickshaw by its driver, it turned toppled on right side on the accidental road and due to the said impact, the Petitioner fell down from the said offending Auto Rickshaw and due to which, she sustained two grievous injuries and by admitting as an inpatient from 05.03.2015 to 18.03.2014, i.e., 14 days, she took treatment to the said accidental injuries at Victoria Hospital and thereafter, by admitting as an inpatient from 24.03.2015 to 15.05.2015, i.e., for 53 days and again from 18.06.2015 to 23.06.2015, i.e., 6 days, she took treatment to the said accidental injuries at KIMS Hospital, totally for 73 days, she took treatment to the said accidental injuries in 17 M.V.C.NO.2134/2015 (SCCH-7) Victoria Hospital and KIMS Hospital, which is clear from the following discussion. Furthermore, the said medical documents clearly disclosed that, on 05.03.2015 at 10.45 a.m., itself the Petitioner was admitted in Victoria Hospital to take treatment to the said accidental injuries and at the time of accident, she was alone in the offending Auto Rickshaw and her family members were not accompanied with her and since she had sustained two grievous injuries, the Petitioner and her family members have been looking after the Petitioner in the Hospital and as such, the Petitioner had no chance to lodge a complaint immediately after the accident. Further, the P.W.1 in her cross- examination has clearly stated that, after the accident, she was unconscious and on the same day of accident itself, she regained conscious in the Hospital. Further, the P.W.1 has clearly denied the suggestions put to her by the Respondent No.1 during the course of cross-examination that, they have not informed to the Hospital Authorities of KIMS Hospital and Victoria Hospital about the accident and the Hospital records of KIMS Hospital and Victoria Hospital do not disclose that, the accident occurred by Auto Rickshaw and the alleged accident was not caused to her by the Auto bearing Registration No.KA- 42-7771 and there was no nexus in between the said Auto Rickshaw and accident in question and since the vehicle, which caused the accident to her was not traced out, she has not given a complaint immediately after the accident and 21 days after the accident, a false complaint is lodged by falsely implicating the said Auto Rickshaw in collusion with its owner only to claim compensation from its Insurance Company and though, the offending Auto Rickshaw not at all involved in the alleged accident, it is falsely implicated in the alleged accident only to 18 M.V.C.NO.2134/2015 (SCCH-7) claim compensation by filing a false complaint and she is giving false evidence only to claim compensation. From this, it appears that, though the P.W.1 has been cross-examined by the Respondent No.1, nothing has been elicited from her mouth to consider its specific defence. More so, though the Respondent No.1 has examined by its Assistant Executive Legal as R.W.1, he has only stated in his examination-in-chief that, it is safely gathered from the Police documents that, the complaint lodged before the jurisdictional Police after 21 days of the alleged date of alleged accident, which clearly shows that, the insured Auto bearing Registration No.KA-42-7771 was incorporated in the alleged accident and the same is after thought and created for the purpose of getting compensation from the Respondent No.1 by colluding with insured. To prove the said defence, except the oral version of R.W.1, nothing is available on record on behalf of the Respondent No.1. Further, the R.W.1 in his cross- examination has clearly stated that, according to the Police and medical documents, the Petitioner and another person, namely, Ravi are injured in the said accident and the Police have filed a charge sheet as against the driver of the offending Auto Rickshaw. Furthermore, though the notice was duly served on the Respondent No.2, who is the R.C. Owner of the offending Auto bearing Registration No.KA-42-7771, he was remained absent and hence, he is placed as exparte. The non-appearance of the Respondent No.2 in the present petition clearly implies that, he has indirectly admitted the entire case made out by the Petitioner as against him in the present petition and the evidence adduce by him to consider her case. From this, it is further made crystal clear that, nothing is available on record 19 M.V.C.NO.2134/2015 (SCCH-7) on behalf of the Respondent No.2 to resist the case of the Petitioner.
14. The contents of Ex.P.1 FIR and Ex.P.2 Complaint disclosed that, the father of the Petitioner has lodged Ex.P.2 Complaint before the Harohalli Police as against the driver of Auto bearing Registration No.KA-42-7771 by alleging that, on 05.03.2015 at about 9.00 a.m., his daughter Bharati was traveling in Ape Auto bearing Registration No.KA-42-7771, to go to Ice Cream Factory for work, which was situated at Industrial Area, Harohalli and when the said Auto was proceeding from Jakkasandra Village through Chiluru, the driver of the said Auto driving it with very high speed, in a rash and negligent manner and due to which, the Auto fell down on the right side of the said road and due to which, his daughter fell down and sustained fracture on her back and also sustained grievous injury to her uterus and she was admitted in Victoria Hospital and since, he is an uneducated person, he lodged a complaint by delay and hence, prayed to take necessary legal action as against the driver of Auto bearing Registration No.KA-42-7771 and based on the said complaint, the Police have registered a Criminal Case as against the driver of offending Auto bearing Registration No.KA-42-7771 punishable under Section 279 and 338 of IPC and Section 187 of IMV Act under Crime No.87/2015. It is also clear from the contents of Ex.P.1 FIR and Ex.P.2 Compliant that, the father of the Petitioner is clearly explained the delay in lodging the said complaint in respect of the said accident caused to his daughter.
20 M.V.C.NO.2134/2015(SCCH-7)
15. The contents of Ex.P.3 Spot Panchanama, Ex.P.4 Vehicle Seizure Panchanama and Ex.P.5 MVI Report further clearly disclosed that, at the time of accident, the Petitioner was traveling in the offending Ape Auto bearing Registration No.KA- 42-7771 to go to Industrial Area, Harohalli and at that time, the accident was taken place due to negligent driving of the driver of the said Ape Auto and due to which, the said Auto fell down on its right side and due to which, the Petitioner fell down and had sustained fracture injuries on her back and also sustained grievous injury to uterus and the said offending Ape Auto bearing Registration No.KA-42-7771 as well as its driver, are very much involved in the said road traffic accident. The damages caused to the said offending Ape Auto are clearly shown in Ex.P.5 MVI Report, which clearly disclosed about the terrific impact of the said road traffic accident. It is also clearly mentioned in Ex.P.5 MVI Report that, the said accident was not occurred due to any mechanical defects of the said offending Ape Auto.
16. The contents of Ex.P.6 Wound Certificate disclosed that, the Petitioner was brought to Victoria Hospital on 05.03.2015 at 10.45 a.m., itself with alleged history of road traffic accident on 05.03.2015 at 8.30 a.m., and on examination, it is found that, she had sustained blunt ABD mesenteric contusion, ultra sound No.2200 dated 05.03.2015 medelak collection in peritomal lavage with internal heamo peritomal lavage, fracture of both inferior and superior public rami on right side public bone with fracture of inferior rami and fracture of sacral bone, i.e., 2 grievous injuries.
21 M.V.C.NO.2134/2015(SCCH-7)
17. The contents of Ex.P.8 Discharge Summary relating to Victoria Hospital, Ex.P.9 Discharge Summary relating to KIMS Hospital 2 in numbers, Ex.P.13 Photographs 2 in numbers, Ex.P.14 C.D relating to Ex.P.13 Photographs, Ex.P.17 X-ray Films, 7 in numbers, Ex.P.18 C.T. Scan Films 4 in numbers and Ex.P.20 Inpatient Case Sheets 2 in numbers, which are produced through P.W.2 clearly disclosed that, initially, the Petitioner had taken treatment to the said accidental injuries at Victoria Hospital by admitting as an inpatient on 05.03.2015 itself and during the course of treatment, it is diagnosed blunt ABD trauma causing mesenteric contusion, inferior and superior public ramus fracture of sacrum S2-S3 and she took treatment to the said accidental injuries at Victoria Hospital till 18.03.2015, i.e., for 14 days and thereafter, she was admitted as an inpatient at KIMS Hospital on 24.03.2015 and during the course of treatment, it is diagnosed post traumatic bilaterial superior and inferior pubic rami fracture and till 15.05.2015, i.e., for 53 days, she took treatment to the said accidental injuries in KIMS Hospital and thereafter, again the Petitioner was admitted in KIMS Hospital on 18.06..2015 for follow-up and external fixator removal and till 23.06.2015, i.e., for 6 days, she took treatment to the said accidental injuries at KIMS Hospital.
18. The P.W.3, who has assessed the disability of the Petitioner has stated in his examination-in-chief that, the Petitioner came to Victoria Hospital, Bangalore, on 20.04.2016 with a history of road traffic accident on 05.03.2015 and she had sustained blunt trauma abdomen, fracture inferior and superior pubic ramus both side with fracture of sacrum and she 22 M.V.C.NO.2134/2015 (SCCH-7) was treated conservatively for Injury No.2 and discharged on 18.03.2015.
19. From the above said medical evidence, it is clearly proved that, in the said road traffic accident, the Petitioner had sustained 2 grievous injuries and initially, she had taken treatment at Victoria Hospital by admitting as an inpatient from 05.03.2015 to 08.05.2015, i.e., 14 and thereafter, she was admitted in KIMS Hospital to take treatment to the said accidental injuries from 24.03.2015 to 27.03.2015, i.e., for 53 days and thereafter also, she had taken treatment to the said accidental injuries at KIMS Hospital by admitting as inpatient from 18.06.2015 to 23.06.2015, i.e., for 6 days, totally for 73 days.
20. The contents of Ex.P.7 Charge Sheet disclosed that, since, during the course of investigation, it is found that, due to very high speed, rash and negligent manner of driving of the offending Ape Auto bearing Registration No.KA-42-7771 by its driver itself, the said road traffic accident was taken place on 05.03.2015 at 9.00 a.m., near little away from Jakkasandra Village, Jakkasandra-Chiluru Road and due to which, the offending Auto toppled and due to which, the Petitioner, who was traveling in the said Auto Rickshaw had sustained fracture injury on her back and injury to uterus and another had sustained severe grievous injury and the driver of the offending Auto took it from the accidental spot and as such, after thorough investigation, the Investigating Officer has filed a Charge Sheet as against the driver of Ape Auto for the offences 23 M.V.C.NO.2134/2015 (SCCH-7) punishable under Section 279 and 337 of IPC and Section 187 of IMV Act.
21. From the said material evidence, both oral and documentary, it is clearly proved that, the entire negligence is on the part of the driver of the Ape Auto bearing Registration No.KA-42-7771 in the commission of the said road traffic accident, wherein, the Petitioner had sustained 2 grievous injuries and the said offending Ape Auto bearing Registration No.KA-42-7771 as well as its driver are very much involved in the said road traffic accident. Accordingly, I answered Issue No.1 in the Affirmative.
22. ISSUE NO.2 :- The P.W.1 has stated that, she is aged about 30 years now. The Petitioner has produced Ex.P.10 Election Identity Card relating to her, which disclosed that, her date of birth is on 10.01.1986. The date of accident is on 05.03.2015. From the said dates, it appears that, as on the date of accident, the Petitioner was 30 years old. Hence, the age of the Petitioner is considered as 30 years at the time of accident.
23. The P.W.1 has stated that, prior to the date of accident, she was working as an Assistant (Packing and Filling) in M/s. Dairy Day and was earning Rupees 12,000/- per month. The Petitioner has produced Ex.P.11 Pay Slips 2 in numbers, which disclosed that, the Petitioner was working in Dairy Classic Ice Cream Factory, No.256 (Part) 257 & 258, KIADB, Harohalli Industrial Area, Harohalli, Kanakapura, Ramanagara District and in January 2015, her total salary was of Rupees 4,839/- and take home salary was of Rupees 4,216/-
24 M.V.C.NO.2134/2015(SCCH-7) and in February 2015, her total salary was of Rupees 5,357/- and take home salary was of Rupees 4,667/-. No doubt, the Petitioner has not examined the author of Ex.P.11 Pay Slips. But, it no way affect to consider the avocation and income of the Petitioner at the time of accident, as, at the time of accident, the Petitioner was traveling in the offending Ape Auto to go to work to the said Company, which was situated at Industrial Area and the same has been clear from the above said Police documents. Further, the salary shown in the said pay slips is not an exorbitant and at the time of accident, the Petitioner was 30 years old. Hence, the last salary, i.e., February 2015, which is shown in Serial No.2 of Ex.P.11 Pay Slips, can be taken into for consideration as income of the Petitioner at the time of accident. Hence, the income of the Petitioner is considered as Rupees 5,357/-, which is the total salary for the month of February 2015 at the time of accident.
24. The P.W.1 has stated that, the surgery was done in KIMS Hospital, with the procedure of peritomal lavage of the exploratory lapoctomy on 05.03.2015 done under GA and discharged on 18.03.2015 with an advise to come for regular follow-up treatment and physiotherapy. She has further stated that, again she was admitted as an inpatient at KIMS Hospital on 24.03.2015 and during this period, surgery was done with procedure of external fixator application done to both pelvis region and discharged to come for regular follow-up treatment and physiotherapy. She has further stated that, recently once again she was admitted as an inpatient at KIMS Hospital on 18.06.2015 and during this period, external fixator removal done and discharged with advise to come for regular follow-up 25 M.V.C.NO.2134/2015 (SCCH-7) treatment. She has further stated that, she is continuously under treatment from the date of accident till today and after discharge from the said Hospital, he visited the Doctors for dressing the wounds and follow-up treatment once in a week for the period of 3 months and later, once in a month for the period of 7 months.
25. Based on the contents of Ex.P.6 Wound Certificate, Ex.P.8 Discharge Summary relating to Victoria Hospital, Ex.P.9 and Ex.P.10 Discharge Summaries relating to KIMS Hospital, Ex.P.17 X-ray Films, Ex.P.18 C.T. Scan Films and Ex.P.20 Inpatient Case Sheets, this Tribunal has already observed and come to the conclusion that, immediately after the accident, the Petitioner was taken to Victoria Hospital, wherein, it is found that, she had sustained 2 grievous injuries, i.e., blunt ABD mesenteric contusion, ultra sound No.2200 dated 05.03.2015 medelak collection in peritomal lavage with internal heamo peritomal lavage, fracture of both inferior and superior public rami on right side public bone with fracture of inferior rami and fracture of sacral bone and by admitting as an inpatient from 05.03.2015 to 18.03.2015, i.e., for 14 days, she took treatment to the said accidental injuries at Victoria Hospital and thereafter, she was admitted in KIMS Hospital on 23.03.2015 and by admitting as an inpatient from 24.03.2015 to 15.05.2015, i.e., for 53 days, she took treatment to the said accidental injuries at KIMS Hospital and again, she was admitted in the said Hospital on18.06.2015 till 23.06.2015, i.e., for 6 days, totally for 73 days, she took treatment to the said accidental injuries. It is clearly mentioned in Ex.P.8 Discharge Summary that, during the course of treatment at Victoria 26 M.V.C.NO.2134/2015 (SCCH-7) Hospital, it is diagnosed Blunt ABD Trauma causing mesenteric contusion, interior and superior public ramus fracture with fracture of sacrum S2-S3 and LGS periotomal lavage of the exploratory lapacotomy on 05.03.2015 in O.T. by Dr. Shashikala C.K., and at the time of discharge, it was advised nutrition improvement active and positive limb movement. It is also clearly mentioned in Ex.P.9 Discharge Summary that, external fixator application was done to the Petitioner on 27.03.2015 and at the time of discharge, she was advised to take medication and on 19.06.2015, external fixation had removed. By considering the nature of injuries sustained by the Petitioner in the road traffic accident, the line of treatment and length of treatment and follow-up treatment as shown in the above said documents as well as the oral evidence of P.W.1, it is very much clear that, even after discharge from the Hospital, the Petitioner was very much required the regular follow-up treatment to the said accidental injuries as per the advice of the treated Doctors, even after the discharge from the Hosptial. Hence, the nature of the injuries sustained by the Petitioner in the said road traffic accident, line of treatment, length of treatment and follow-up treatment as stated by the P.W.1, is believed and accept.
26. The P.W.1 has stated that, even now, she is suffering from frequent pain and swelling at her both pelvis regions, urethral region and hip joint and she is not able to stand, walk or sit for long period, she is not able to fold or bend her right hip joint and she is not able to squat on hard surface or use Indian toilet. She has further stated that, she is not able to bend her body or sleep on right side and she is not able to pass urine 27 M.V.C.NO.2134/2015 (SCCH-7) properly and getting pain and bleeding during the time of passing urine and she is not able to do any physical or manual works. She has further stated that, after the accident, she is not able to lead a normal life as earlier and she is not able to do any manual work as before and resigned for the same and suffering from huge loss of income. She has further stated that, she is aged 30 years now and the injuries and disabilities suffered by her in the said accident will affect her future and family life and her life is miserable.
27. The P.W.3 has stated that, the Petitioner complains of pain in pelvic region and on examination of pelvis, it is found that, pelvic compression rest positive tenderness inferior and superior ramus of pelvis, difficulty in walking, difficulty in squatting on floor, difficulty in sitting crossed leg on floor and X-ray shows old fracture of inferior and superior ramus both side and Old fracture of sacrum. He has further stated that, based on Guidelines of American Medical Association, he opined that, the Petitioner suffers disability of 15% to the whole body. The P.W.3 has produced Ex.P.21 OPD Book and Ex.P.22 X-ray Film.
28. The Petitioner has produced Ex.P.12 Resignation Letter dated 30.04.2015, wherein, it is endorsed by Dairy Classic Ice Cream Pvt. Ltd., that, resignation is accepted.
29. But, only based on the said oral evidence of P.W.1 and P.W.2 coupled with the contents of medical documents and Ex.P.12 Resignation Letter, it cannot be believed and accept that, due to the said accidental injuries, the Petitioner is 28 M.V.C.NO.2134/2015 (SCCH-7) suffering from disability at 15% to the whole body, as, the P.W.3 is not a treated Doctor and in this regard, he has clearly stated in his cross-examination that, he has not personally treated the Petitioner and he has only assessed the disability of the Petitioner. Further, the P.W.3 has not mentioned the clinical notes to show how he comes to such extent of disability of 15% to the whole body. Further, the P.W.3 has not specifically assessed the permanent physical and functional disability of the Petitioner by considering the nature of injuries, which required with clinical examination and notes. Further, the P.W.3 in his cross-examination has clearly stated that, the complaint of the Petitioner is only one, i.e., paining pelvic region and before the assessment of the disability, the Petitioner never came before him and when she came before him for the assessment of the disability, she has not complained for squatting, sitting cross legs and walking. Further, though the P.W.3 has stated in his cross-examination that, fracture is mal-united, he has clearly stated that, with little difficulty, the Petitioner can do her job. He has further clearly stated that, the Petitioner told him that, she is not in a position to do her job as earlier and she is doing the job with little difficulty. Further, neither the Petitioner nor the P.W.3 produced the disability certificate issued either by P.W.3 or the treated Doctor or any other competent Doctor. Further, when he has examined the Petitioner to assess her disability, that has not been specifically stated by the P.W.3 in his affidavit. Therefore, the said extent of 15% whole body disability as stated by the P.W.3 is on higher side and hence, it is not accepted.
29 M.V.C.NO.2134/2015(SCCH-7)
30. However, at the time of accident, the Petitioner was 30 years old and she has sustained 2 grievous injuries in the said road traffic accident and by admitting as inpatient totally for 73 days, she took treatment to the said accidental injuries and she had also taken follow-up treatment regularly as per the advice of the treated Doctor, by considering the same, it can be safely held that, the Petitioner is suffering from permanent physical and functional disability of 10% to the whole body, which is believable and acceptable one. Hence, the Petitioner is entitled for compensation under the following heads.
31. As this Tribunal has already come to the conclusion that, the permanent physical and functional disability of the Petitioner is of 10%. This would certainly come in the way of the future life of the Petitioner and thereby, her income to that extent would be definitely reduced. Therefore, the Petitioner is entitled for future loss of income arising out of the permanent physical and functional disability of 10%.
32. As this Tribunal has already come to the conclusion that, the age of the Petitioner was 30 years at the time of accident. The multiplier corresponding to the said age as per Sarala Varma's case is 17.
33. As the Petitioner is suffering from permanent physical and functional disability of 10% to the whole body. The income of the Petitioner is already considered as Rupees 5,357/- per month. Therefore, the loss arising out of the said 10% disability for monthly income of Rupees 5,357/- by applying multiplier 17 comes to Rupees 1,09,282-80, i.e., 30 M.V.C.NO.2134/2015 (SCCH-7) (Rs.5,357/- x 12 x 17 x 10%), which is rounded off Rupees 1,09,283/-.
34. As per Ex.P.6 Wound Certificate and evidence of P.W.1 and P.W.3, the Petitioner had sustained two grievous injuries. The Petitioner was in the Hospital as an inpatient from 05.03.2015 to 18.03.2015, i.e., for 14 days and from 24.03.2015 to 15.05.2015, i.e., for 53 days and from 18.06.2015 to 23.06.2015, i.e., for 6 days, totally for 73 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 75,000/- towards pain and suffering.
35. As it is already observed that, the age of the Petitioner was 30 years. She has to lead remaining her entire life with 10% 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.
36. The Petitioner had sustained two grievous injuries and she was in the Hospital as an inpatient for 73 days and she could not do any work at least for 6 months and thereby, she deprived the income. Therefore, at the rate of Rupees 5,357/- per month, a sum of Rupees 32,142/- is awarded towards loss of income during the laid up period.
37. The P.W.1 has stated that, she visited the Doctors by engaging a Taxi and the fare will be around Rupees 4,000/- per visit and as on today, she has spent Rupees 1,00,000/- towards 31 M.V.C.NO.2134/2015 (SCCH-7) medical, conveyance and nourishment expenses. In this regard, the Petitioner has produced Ex.P.15 Advance Receipts 6 in numbers and Ex.P.16 Medical Bills 92 in numbers, which is amounting of Rupees 73,500-30. The Petitioner has taken treatment at Victoria Hospital and KIMS Hospital, wherein, she was taken treatment as an inpatient from 05.03.2015 to 18.03.2015, i.e., for 14 days, from 24.03.2015 to 15.05.2015, i.e., for 53 days and from 18.06.2015 to 23.06.2015, i.e., for 6 days, totally for 73 days. Considering the nature of the injuries and line of treatment given to the Petitioner and length of treatment, the possibility of spending the said amount for the medicines cannot be doubted. Therefore, it is necessary to award the said actual medical expenses of Rupees 73,500-30, which is rounded off Rupees 73,500/- to the Petitioner.
38. The P.W.1 has stated that, the Doctors have advised her to undergo two more corrective surgeries to her right pelvis region and urethral rupture and the cost of the surgery will be around Rupees 2,00,000/- in the same Hospital. The P.W.3 has not stated anything about the future medical assistance and its expenses relating to the Petitioner. No doubt, on 19.06.2016, the external fixation, which inserted to the Petitioner on 27.03.2015 to pelvis was removed at KIMS Hospital, which is clear from the contents of Serial No.2 of Ex.P.10 Discharge Summary and Ex.P.20 Inpatient Case Sheet. But, this Tribunal feels that, it is just, proper and necessary to award future medical expenses, as, the Petitioner had sustained injury in the said road traffic accident to her abdomen and the Petitioner is a lady of 30 years old. Hence, Rupees 10,000/- is awarded towards future medical expenses to the Petitioner.
32 M.V.C.NO.2134/2015(SCCH-7)
39. As the Petitioner was taken treatment as an inpatient for 73 days, it is necessary to award a sum of Rupees 10,000/- towards conveyance charges, Rupees 10,000/- towards attendant charges and Rupees 15,000/- towards food, nourishment and diet charges etc.,
40. In this way, the Petitioner is entitled for the following amount of compensation:-
Sl. No. Compensation heads Compensation amount Loss of future income
1. Rs. 1,09,283-00 arising out of 10% Disability
2. Pain and sufferings Rs. 75,000-00
3. Loss of amenities of life Rs. 20,000-00 Loss of income during laid
4. Rs. 32,142-00 up period
5. Actual medical expenses Rs. 73,500-00
6. Future medical expenses Rs. 10,000-00
7. Conveyance Rs. 10,000-00
8. Attendant Charges Rs. 10,000-00 Food, Nourishment &
9. Rs. 15,000-00 Diet charges TOTAL Rs. 3,54,924-00
41. In all, the Petitioner is entitled for total compensation of Rupees 3,54,924/- along with interest at the rate of 9% per annum on the above said sum (excluding future medical expenses of Rupees 10,000/-) from the date of petition till payment.
42. While answering Issue No.1, this Tribunal has already come to the conclusion that, the entire negligence is on the part of the driver of the offending Ape Auto bearing 33 M.V.C.NO.2134/2015 (SCCH-7) Registration No.KA-42-7771 in the commission of the said road traffic accident, wherein, the Petitioner had sustained 2 grievous injuries and the said offending Ape Auto bearing Registration No.KA-42-7771 as well as its driver, are very much involved in the said road traffic accident.
43. The Petitioner in the cause title of the petition has mentioned that, the Respondent No.1 is the Insurer and Policy No.1-3336AOBM and Policy No.P40089509098 and the Period of Insurance from 20.10.2014 to 19.10.2015. The Respondent No.1 in its written statement has stated that, it is the Insurer of Ape Auto bearing Registration No.KA-42-7771 and the liability of it, is subject to the terms and conditions of the policy of insurance, provisions of M.V. Act and valid and effective driving licence held by the driver of Auto Rickshaw at the time of alleged accident, if proved. The R.W.1, who is the Assistant Executive Legal of the Respondent No.1, has also stated the same, in his examination-in-chief. The Respondent No.1 has also produced Ex.R.1 Insurance Policy, Ex.R.2 Permit and Ex.R.3 'B' Register Extract relating to vehicle bearing Registration No.KA-42-7771. From this material evidence, it is made crystal clear that, at the time of accident, the Respondent No.1 was an Insurer and the Respondent No.2 was a R.C. Owner of the offending Ape Auto bearing Registration No.KA-42- 7771 and its Insurance Policy was valid, which covers the date of accident. Further, there is no allegation leveled by the Investigating Officer as against the driver of offending Auto Rickshaw in Ex.P.7 Charge Sheet that, at the time of accident, he was not having a valid and effective driving licence to drive such class of offending Auto Rickshaw.
34 M.V.C.NO.2134/2015(SCCH-7)
44. But, based on the said evidence, it cannot be said that, the Respondent No.1 being an Insurer and the Respondent No.2 being a R.C. Owner of the offending Ape Auto bearing Registration No.KA-42-7771 are jointly and severally liable to pay the above said compensation and interest to the Petitioner, as, the R.W.1 in his examination-in-chief has clearly stated that, the Transport Authority, Ramanagaram, has issued Permit from 31.10.2011 to 30.10.2016 to ply on specified area Kanakapura Town Limit only, but, not to Harohalli Industrial Area, Harohalli, wherein, the place of alleged accident is situated. He has further stated that, the Police have not charge sheeted under Section 66(1) of M.V. Act, the reasons best known to them and the Respondent No.2 has violated the terms and conditions of the policy and provisions of the M.V. Act and as such, the Respondent No.1 is not liable to indemnify the Respondent No.2. From this, it appears that, the Respondent No.1 has disputed about the validity of Permit of the offending Ape Auto bearing Registration No.KA-42-7771 at the time of accident. No doubt, the Learned Counsel appearing for the Petitioner has produced xerox copy of Resolution dated 12.11.2014 of District Regional Transport Office, Ramaganagar, wherein, it is decided that, the permit relating to Auto Rickshaw, who are plying 3 kms from Bidadi Bus Stand, 3 kms from Harohalli Bus Stand, 3 kms from Satanur Bus Stand and 3 kms from Kudur Bus Stand, is granted to the applicants, who applied for permit to their respective vehicles. But, based on the said proceedings, it cannot be said that, the Respondent No.2, who was a R.C. Owner of the offending Ape Auto bearing Registration No.KA-
35 M.V.C.NO.2134/2015(SCCH-7) 42-7771 had obtained the permit from the said Authority to ply the said offending Auto Rickshaw at the accidental spot, i.e., Horohalli Industrial Area, by applying before the concerned Authority, as, Ex.R.2 Permit relating to the offending Ape Auto bearing Registration No.KA-42-7771 clearly disclosed that, at the time of accident, the said Auto Rickshaw was having a valid permit to the specified area, i.e., Kanakapura Town Limit only from 31.10.2011 to 31.10.2016 and not Harohalli Industrial Area, Harohalli, Kanakapura Town, Ramanagaram District, wherein, the road traffic accident was taken place to the Petitioner. Furthermore, it is clear from the contents of Police documents that, at the time of accident, the Petitioner was traveling in the said offending Ape Auto bearing Registration No.KA-42-7771 to go to her working place, i.e., Harohalli Industrial Area, Harohalli, Kanakapura Town Limit, Ramanagaram District, which is not come under the specific area, i.e., Kanakapura Town Limit. Further, the R.W.1 in his cross-examination has clearly stated that, the place of Harohalli situated within the jurisdiction of Ramanagara District and the alleged offending Auto Rickshaw is registered under RTO Office, Ramanagara and Harohalli Industrial Area comes within Kanakapura Taluk and he has issued a notice to the owner of the offending Auto Rickshaw. He has further stated that, as per Ex.R.2, the permit is valid up to 30.10.2016 and as per Ex.R.3 'B" Register Extract, now also the Respondent No.2 is the Owner of the offending Auto Rickshaw. But, the ownership of the offending Auto Rickshaw is proved from the said evidence of R.W.1 including valid permit, but, the said permit is within the Kanakapura Town Limit and not outside Kanakapura Town. Further, the Respondent No.1 has 36 M.V.C.NO.2134/2015 (SCCH-7) examined the RTO, Ramanagara, as R.W.2, who by producing Ex.R.4 True copy of Register Extract relating to vehicle bearing Registration No.KA-42-7771 and Ex.R.5 True copy of Permit relating to bearing Registration No.KA-42-7771 has stated in his evidence that, Ex.R.5 Permit is issued in respect of the said vehicle bearing Registration No.KA-42-7771 only to ply within Kanakapura Town Limit and it is a commercial passenger carrying vehicle, i.e., transport vehicle and Harohalli Industrial Area is not coming within Kanakapura Town Limit and the owner of the said vehicle is not having permit to ply the said vehicle outside the limit of Kanakapura Town. He has further clearly admitted that, after formation of Harohalli Industrial Area, in their Office, separate permit is going to be issued to the vehicles if the owner of the vehicles applied. He has further clearly stated that, but, the owner of the said vehicle bearing Registration No.KA-42-7771 has not applied the permit to ply the said vehicle within Harohalli Industrial Area. From the said evidence of R.W.2, it is made crystal clear that, as on the date of accident, the offending Ape Auto bearing Registration No.KA- 42-7771 was not having a valid permit to ply on the accidental place. Further, the Respondent No.2, who is the R.C. Owner of the offending Ape Auto bearing Registration No.KA-42-7771, is placed as exparte, which clearly implies that, he has indirectly admitted that, his offending Ape Auto bearing Registration No.KA-42-7771 was not having a valid permit to ply on the accidental road at the time of accident. Hence, it can be safely held that, the Respondent No.2, who is the R.C. Owner of the offending Ape Auto bearing Registration No.KA-42-7771 has clearly violated the terms and conditions of the admitted Insurance Policy issued by the Respondent No.1. Hence, the 37 M.V.C.NO.2134/2015 (SCCH-7) Respondent No.1, who is an Insurer of the said offending Ape Auto bearing Registration No.KA-42-7771, is not liable to pay the above said compensation and interest to the Petitioner by indemnifying the Respondent No.2. Since, the Respondent No.2 is a R.C. Owner and he has violated the terms and conditions of the Insurance Policy as his offending Ape Auto bearing Registration No.KA-42-7771 was not having a valid permit at the time of accident to ply on the accidental place, he alone is labile to pay the above said compensation and interest to the Petitioner. Hence, the petition filed by the Petitioner as against the Respondent No.2 is liable to be allowed and it is liable to be dismissed as against the Respondent No.1. In view of the above said reasons and findings on Issues, the principles enunciated in the decisions cited by the Learned Counsel appearing for the Petitioner are applicable to some extent to the present facts and circumstances of the case on hand. Hence, Issue No.2 is answered accordingly.
45. ISSUE NO.3 :- For the aforesaid reasons, I proceed to pass the following, ORDER The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs as against the Respondent No.2.
The petition filed by the Petitioner under Section 166 of the 38 M.V.C.NO.2134/2015 (SCCH-7) Motor Vehicles Act, 1989, is hereby dismissed without costs as against the Respondent No.1.
The Petitioner is entitled for compensation of Rupees 3,54,924/-
with interest at the rate of 9% p.a. (excluding future medical expenses of Rupees 10,000/-) from the date of the petition till the date of payment, from the Respondent No.2.
The Respondent No.2 shall deposit the said compensation and interest in this Tribunal, within two months from the date of this Order.
In the event of deposit of compensation and interest, 75% shall be released in the name of the Petitioner through account payee cheque, on proper identification.
Remaining 25% shall be kept in FD in the name of the Petitioner, in any nationalized Bank of her choice, for a period of 3 years.
Advocate's fee is fixed at Rupees 1,000/-.
39 M.V.C.NO.2134/2015(SCCH-7) Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by her, corrected and then, pronounced by me in the open Court on this, the 3rd day of December, 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 : Smt. Bharathi
P.W.2 : Sri. Ranganath
P.W.3 : Dr. B. Vishwanath
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 Panchanama
Ex.P.4 : True copy of Vehicle Seizure Mahazar
Ex.P.5 : True copy of MVI Report
Ex.P.6 : True copy of Wound Certificate
Ex.P.7 : True copy of Charge Sheet
Ex.P.8 : Discharge Summary relating to Victoria
Hospital
Ex.P.9 : Discharge Summary relating to KIMS
Hospital (2 in nos.)
Ex.P.10 : Notarized Xerox copy of Election Identity
Card relating to Bharathi
Ex.P.11 : Pay Slips (2 in nos.)
Ex.P.12 : Office copy of Resignation Letter dated
30.04.2015
Ex.P.13 : Photographs (2 in nos.)
40 M.V.C.NO.2134/2015
(SCCH-7)
Ex.P.14 : CD Relating to Ex.P.13 Photographs
Ex.P.15 : Advance Receipts (6 in nos.)
Ex.P.16 : Medical Bills (92 in nos.)
Ex.P.17 : X-ray Films (7 in nos.)
Ex.P.18 : CT Scan Films (4 in nos.)
Ex.P.19 : Authorisation Letter dated 22.04.2016
Ex.P.20 : Inpatient Case Sheets (2 in nos.)
Ex.P.21 : OPD Book
Ex.P.22 : X-ray Films
Ex.P.23 : Inpatient Records
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
R.W.1 : Gireesh
R.W.2 : Ramegowda
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
Ex.R.1 : True Copy of Insurance Policy
Ex.R.2 : Certified copy of Permit relating to vehicle
bearing Registration No.KA-42-7771
Ex.R.3 : Certified copy of B-Register Extract relating
to vehicle bearing Registration No.KA-42- 7771 Ex.R.4 : True copy of Register Extract relating to vehicle bearing Registration No.KA-42-7771 Ex.R.5 : True copy of Permit relating to vehicle bearing Registration No.KA-42-7771 (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.