Bangalore District Court
Vijaya Kumar .C vs Manjunatha .N.B on 6 March, 2025
KABC020334662022
IN THE COURT OF XXI ADDL.SMALL CAUSE JUDGE AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, BANGALORE.
(SCCH-23)
DATED THIS THE 6th DAY OF MARCH - 2025
PRESENT: Sri. Shreyansh Doddamani
B.Com. LL.B, (Spl)
XXI ADDL. SCJ & ACJM
MEMBER - MACT, BENGALURU.
MVC. No.6218/2022
Petitioner : Sri. Vijay Kumar. C,
S/o Cyriac,
Aged about 38 years,
R/at No.223, 7th Cross,
G-Street, J.J.R. Nagar,
Goripalya, Chamarajpet,
Bengaluru-560018.
(By Sri.Raviteja, Advocate)
v/s
Respondent/s : 1. Sri. Manjunatha. N.B,
S/o Bommaiah,
No.55, New No.183, 3rd Main,
Ranganathapura,
Opp. Gangapathi Temple,
Kamakshipalya,
Bengaluru-560079.
SCCH-23 2 MVC No.6218/2022
(RC owner of BBMP Atul Auto
bearing No.KA-50-A-6647)
(By Sri.Vivek Holla, Advocate)
2. Future Generali India Ins.Co.Ltd.,
No.18/1, (Old No.125/A), III Block,
Jayanagar, Bengaluru-560011.
(Policy No.VA435529,
Valid from 20.08.2022 to 19.08.2023)
(By Sri.V. Shrihari Naidu, Advocate)
JUDGMENT
This claim petition is filed under section 166 of the M.V.
Act, seeking compensation for the injuries sustained in a road
traffic accident.
2. The case of the petitioner in the nutshell is that, on
03.11.2022 at about 7.45 p.m, when the petitioner was
proceeding as pedestrian and after carefully observing the
vehicle movements was proceeding on the extreme left side on
Ambedkar Bhavan road, J.J.R.Nagar, Bengaluru City, at that
time suddenly the driver of BBMP Atul Auto bearing Reg.No.KA-
50-A-6647 being driven by its driver with high speed in rash
and negligent manner endangering human life came from
Sangam Circle and dashed to the petitioner from behind. Due to
SCCH-23 3 MVC No.6218/2022
tremendous impact petitioner sustained grievous injuries &
immediately shifted to Vydehi Super Specialty Hospital,
Bengaluru, wherein he took conservative treatment and further
he was shifted to Hosmat Hospital, wherein he took treatment
as an inpatient and underwent several examinations and she
was discharged with an advice to regular follow-up treatment.
He has spent substantial amount towards medical and other
incidental expenses. He further submitted that he was hale and
healthy and was working as Senior Section Engineer (P.Way) at
South Western Railway and drawing a salary of Rs.1,06,137/-
per month. Due to the accidental injuries till today he cannot
attend to his work, resulted in loss of earning, earning capacity
and put to great financial hardship. The accident was caused
due to rash and negligence driving of the driver of BBMP Auto,
the respondent No.1 & 2 being the owner and insurer of the
vehicle are jointly & severally liable to pay compensation.
3. Notice was duly served to respondent No.1. Respondent
No.1 appeared through her counsel by filing written statement
rather objections to the main petition contending that the
SCCH-23 4 MVC No.6218/2022
petition itself is not maintainable either law or on facts. This
respondent specifically and empathically denied the occurrence,
mode and manner of accident and also involvement of the
vehicle in the accident. The respondent No.1 admitted that he is
the RC owner of the alleged Atul Auto and was duly insured
with the 2nd respondent and same was in force as on the date of
accident. Further he admitted that as on the date of accident
the vehicle described was not being operated by the respondent
No.1 herein and the same was being driven by one Mr.Praveena
who is an employee of the respondent No.1. Further he stated
that this operation of the vehicle by Mr. Praveena was not
within his scope of employment, neither during the course of
his employment. Mr. Praveena was hired to collect waste from
various houses and discard it at the agreed upon area during
his hours which was between 7.00 a.m, to 12.00 p.m., only.
This incident appears to have taken place at 7.45 p.m which
was well beyond his work hours and does not appear to have
been in furtherance of any of his work tasks. It is further urged
that in case if Court comes to conclusion that the petitioner is
SCCH-23 5 MVC No.6218/2022
entitle for any compensation same is to be fastened on the 2 nd
Respondent – insurance company. Further denied all the
allegation made in the petition. Hence prayed to dismiss the
petition.
4. The respondent No.2 appeared through its counsel and
filed written statement admitted the issuance of insurance
policy in respect of Ape Goods vehicle bearing Reg.No.KA-50-A-
6647. However the liability if any is pleaded to be subject to the
terms & conditions of the policy. Further this respondent
denied the negligence on the part of the driver of the insured
vehicle and contended that the accident took place due to the
negligence of petitioner himself as he was darting across the
road without observing the flow of traffic on the busy road.
Without prejudice to the said contention it is averred that the
driver of the insured vehicle did not possess valid & effective DL
and further the said insured vehicle did not holding valid and
effective Permit and FC. Despite knowing the said fact the
owner thereof had handed over its possession to such a driver.
This respondent further contended that the driver of the
SCCH-23 6 MVC No.6218/2022
insured vehicle did not possess valid DL and he was under the
influence of alcohol at the time of accident. It is contended that
the driver of the insured vehicle had a Lerner’s Licence to drive
LMV only and it was valid from 30.05.2022 to 29.11.2022.
Hence it is clear that the driver of the Ape auto is holding only
Lerners Licence and was not having valid and effective DL to
drive on the date of accident. The jurisdictional police after
investigation they have filed charge sheet against the driver and
owner of insured vehicle u/s 279, 338 of IPC and u/s 3(1), 181,
155, 5(1) r/w section 180 & u/s 185 of IMV Act. Non-
compliance of sections 147, 149, 134(c) and 158(6) of MV Act is
pleaded. On account of willful breach of the terms & conditions
of the policy, the insurance company is not liable to indemnify
him. Further denied all the allegation made in the petition.
Hence prayed to dismiss the petition.
5. On the basis of the above pleadings the following issues
were framed :
ISSUES
1) Whether the petitioner proves that he met with a
road traffic accident on 03.11.2022 at about 7.45
p.m., near Ambedkar Bhavana road situated on
SCCH-23 7 MVC No.6218/2022J.J.R Nagar, Bengaluru City and sustained grievous
injuries due to actionable negligence of the BBMP
Atul Auto bearing Reg.No.KA-50-A-6647 ?
2) Whether the petitioner is entitled for compensation ?
If so what is the quantum ?
3) What order or award ?
6. The petitioner examined himself as PW.1. Ex’s.P1 to 18
were marked on his behalf. Dr.Krishan Prasad was examined as
PW.2 and got marked Ex.P.19 to 21 documents. Dr.
Shashikanth was examined as PW.3 and got marked Ex.P.22 to
25 documents. Further the petitioner has also examined the
employer as PW.4 and through him got marked Ex.P.26 to 31
documents. In order to prove the defence, the respondent No.2
insurance company got examined the its Legal Officer as RW.1
and through him got marked Ex.R.1 to 3 documents. Further
the owner of the Auto bearing Reg.No.KA-50-A-6647 /
respondent No.1 himself examined as RW.2 and through him
got marked Ex.R.4 to 6 documents. Further the respondent
No.1 also examined the accompanying driver of the offending
vehicle as RW.3.
SCCH-23 8 MVC No.6218/2022
7. Heard both counsels on merits. Perused the entire
materials placed on record. My answers to the above issues are
as follows :-
Issue No.1 : In the Affirmative
Issue No.2 : Partly in the Affirmative
Issue No.3 : As per final order for the following :
REASONS
8. ISSUE NO.1 : The evidence on record reveals that after
the receipt of complaint lodged by petitioner himself, the
jurisdictional police conducted thorough investigation and filed
charge sheet against the driver of Auto bearing Reg.No.KA-50-A-
6647 for the offences punishable u/s’s 279, 338 of IPC and u/s
3(1), 181, 155, 5(1) r/w section 180 and u/s 185 of IMV Act.
There is nothing on record to believe that the charge sheet filed
by the police is defective or collusive.
9. In order to disprove the defence, the respondent No.1
appeared through his counsel and himself examined as RW.2.
In his chief-examination he stated that the offending vehicle
being driven by Mr. Praveena who is an employee with him.
Further the said driver was not within his scope of employment,
SCCH-23 9 MVC No.6218/2022
neither during the course of his employment. The said driver
was hired to collect waste from various houses and discard it at
the agreed upon area during his work hours between 7.00 a.m
to 12.00 p.m only. This incident happen at 7.45 p.m which was
well beyond his work hours and does not appear to have been
in furtherance of any of his work tasks. During the course of
cross-examination DW.2 stated that his driver told that he was
driving the vehicle properly, then on the wrong route, Vijay
Kumar / injured person came and hit our vehicle and caused
an accident. Further he admitted that the injured man was
walking. Further he categorically admitted that according to
Ex.P.3, it is correct that it is written in the map that the
applicant was walking and was hit by a vehicle. Though the
insurance company has denied the cause of the accident, it has
not let in any evidence to this effect. No doubt, the Legal Officer
of the respondent No.2 was examined as RW.1. But his evidence
is no way helpful to prove the defence of insurance company.
Because he is not an eye-witness to the accident and his
evidence is not supported by any document or any independent
SCCH-23 10 MVC No.6218/2022
witness. Under such circumstances the evidence of PW.1 which
is supported by police documents has to be accepted.
Consequently, I hold that the accident is proved to have been
caused due to the actionable negligence of the driver of Auto
bearing Reg.No.KA-50-A-6647.
10. In addenda, in a claim for compensation u/s 166 of
M.V Act, 1988, the claimant has to prove the incident only on
preponderance of probabilities and proof beyond reasonable
doubt is not required as held by the Hon’ble Apex Court in
(2011) 3 SCC 646. With this observation issue No.1 is
answered as ‘In the Affirmative’.
11. ISSUE NO.2 : As per the wound certificate marked at
Ex.P.7, petitioner has sustained Right ankle medial malleous
fracture. It is needless to say that the above injury is grievous
in nature. The Discharge summary (Ex.P.9) issued by VSH
Superspeciality Hospital, Bengaluru indicate that the petitioner
was treated as an inpatient in the said hospital from
03.11.2022 to 04.11.2022 (2 days) wherein he took conservative
treatment and was discharged against medical advice. Further
SCCH-23 11 MVC No.6218/2022
the Discharge Summary (Ex.P.10) issued by Hosmat Hospital,
Bengaluru indicates that he was taken treatment from
04.11.2022 to 06.11.2022 (3 days). In total he took treatment
for a period of 5 days. During the course of treatment he
underwent surgery in the form of : Right ankle medial malleolus
CC Screw + K-wire fixation done on 05.11.2022 under SA. As
already discussed above, the petitioner had proved that the
accident took place due to rash and negligent driving of the
driver of offending vehicle. Therefore he is entitled for
compensation under the following heads.
12. LOSS OF FUTURE INCOME DUE TO DISABILITY : It
is the specific case of the petitioner that owing to the accidental
injuries he has become disabled and lost his earning capacity.
Therefore he got examined Dr.Krishan Prasad as PW.2, who
stated that on clinical examination conducted by him, he found
that petitioner has total permanent physical disability of the
lower limb at 37% and whole body disability at 13%. It is
elicited during the course of cross-examination that he has not
treated the petitioner. Further he deposed that the petitioner
SCCH-23 12 MVC No.6218/2022
can do his day-to-day activities with certain difficulties. He
admitted that the fractures are united. Further he stated that
with some residual difficulties the petitioner is alright. He
further stated that the petitioner being the Government
Employee and still working. He stated that the petitioner
sustained only undisplaced fracture and depending upon the
fracture the movements will be mere to be normal. The
petitioner is physically fit for removal of implants. Further after
removal of implants he can do all the work with certain
difficulties. Further he categorically admitted that in the recent
examination there is no complication in the fracture sight.
Further he denied all the suggestions made by the respondent
counsel.
13. It is a well settled law that MACT has to assess the
avocational disability based on the medical evidence. The law is
well settled that it is the impact of the physical disability on the
particular avocation of the petitioner which is relevant for the
purpose of assessment of compensation under the head of loss
of future income as held by the Hon’ble Apex Court in (2011) 1
SCCH-23 13 MVC No.6218/2022
SCC 343 in the case of Rajkumar V/s. Ajaykumar and
another, wherein the Hon’ble Supreme Court held as follows;
Therefore, the Tribunal has to first decide
whether there is any permanent disability and if so
the extent of such permanent disability. This means
that the tribunal should consider and decide with
reference to the evidence:
(i) whether the disablement is permanent or
temporary;
(ii) if the disablement is permanent, whether it
is permanent total disablement or permanent partial
disablement,
(iii) if the disablement percentage is expressed
with reference to any specific limb, then the effect of
such disablement of the limb on the functioning of
the entire body, that is the permanent disability
suffered by the person.
If the Tribunal concludes that there is no permanent
disability then there is no question of proceeding
further and determining the loss of future earning
capacity. But if the Tribunal concludes that there is
permanent disability then it will proceed to ascertain
its extent. After the Tribunal ascertains the actual
extent of permanent disability of the claimant based
on the medical evidence, it has to determine
whether such permanent disability has affected or
will affect his earning capacity.
Ascertainment of the effect of the permanent
disability on the actual earning capacity involves
three steps. The Tribunal has to first ascertain what
activities the claimant could carry on in spite of the
permanent disability and what he could not do as a
result of the permanent ability (this is also relevant
for awarding compensation under the head of loss of
amenities of life). The second step is to ascertain his
SCCH-23 14 MVC No.6218/2022
avocation, profession and nature of work before the
accident, as also his age. The third step is to find
out whether (i) the claimant is totally disabled from
earning any kind of livelihood, or (ii) whether in
spite of the permanent disability, the claimant could
still effectively carry on the activities and functions,
which he was earlier carrying on, or (iii) whether he
was prevented or restricted from discharging his
previous activities and functions, but could carry on
some other or lesser scale of activities and functions
so that he continues to earn or can continue to earn
his livelihood.
For example, if the left hand of a claimant is
amputated, the permanent physical or functional
disablement may be assessed around 60%. If the
claimant was a driver or a carpenter, the actual loss
of earning capacity may virtually be hundred
percent, if he is neither able to drive or do carpentry.
On the other hand, if the claimant was a clerk in
government service, the loss of his left hand may not
result in loss of employment and he may still be
continued as a clerk as he could perform his clerical
functions; and in that event the loss of earning
capacity will not be 100% as in the case of a driver
or carpenter, nor 60% which is the actual physical
disability, but far less. In fact, there may not be any
need to award any compensation under the head of
`loss of future earnings’, if the claimant continues in
government service, though he may be awarded
compensation under the head of loss of amenities as
a consequence of losing his hand. Sometimes the
injured claimant may be continued in service, but
may not found suitable for discharging the duties
attached to the post or job which he was earlier
holding, on account of his disability, and may
therefore be shifted to some other suitable but lesser
post with lesser emoluments, in which case there
should be a limited award under the head of loss of
SCCH-23 15 MVC No.6218/2022
future earning capacity, taking note of the reduced
earning capacity.
On going through the principles therein the said principles are
aptly applicable to the facts of the case. Now this Tribunal has
to assess whether the aforesaid disability impairs the avocation
of the petitioner. As per the averments made in his evidence
affidavit, at the time of accident the petitioner was working as a
Senior Section Engineer (P.Way) at South Western Railway and
drawing a salary of Rs.1,06,137/- per month. To substantiate
his avocation and income he has exhibited his Appointment
Certificate, ID Card, Salary Slips at Ex.P.14 to 17. It is the
specific defence of the respondent No.2 that the petitioner had
continued his service as a Senior Section Engineer (P.Way),
when such being a case there is no question of loss of future
income. In order to substantiate the above said fact the
respondent No.2 counsel had relied on the categorical
admission of PW1 during the course of cross-examination which
reads as hereunder :
“Now I am getting gross salary of Rs.90,000/-
p.m.”
SCCH-23 16 MVC No.6218/2022
14. Further this admission is reaffirmed and ratified by
PW.4 who is the Staff and Welfare Inspector, Bengaluru
Division, Railway Department was also tendered by the
petitioner. This witness who was examined as PW.4. He has
produced Ex.P.27 to 31 i.e., True copy of Service Register,
Employee ID card, Attendance Register, Salary Slips for the
months of May-2024, October-2022 and November-2022 and
Leave Account Details. During the course of cross examination
of respondent No.1 the PW.4 admitted that the petitioner was
working as a Section Engineer in Railways from his
appointment and at present the petitioner posted in office work.
His designation remains the same. Further he admitted that at
the time of accident the petitioner was drawing the salary of
Rs.49,000/- and the petitioner salary was hiked with effect from
28.02.2023 and then it become Rs.50,500/-. From this it is
crystal clear that the petitioner had continued his service as a
Senior Section Engineer (P.Way). In view of the decision
reported in ILR 2010 KAR 2439 in the case of Subhash V/s
New India Assurance Co.Ltd., ‘If the claimant has continued in
SCCH-23 17 MVC No.6218/2022
service, then the question of awarding compensation towards
loss of future income does not arise.’ That is to say as the actual
financial loss arising out of physical disability is not made out
by the claimant, she is not entitled for compensation towards
‘loss of future income’.
15. From the discussion made supra, there is nothing on
record to believe that the petitioner has either been terminated
from his job due to the accidental injuries or he has tendered
his resignation. Therefore this Tribunal comes to the conclusion
that the claimant does not have any functional disability. Under
these circumstances the question of calculating the loss of
future income due to permanent disability does not arise. No
compensation is awarded under the head of ‘Loss of future
income due to permanent disability’. However it should be
remembered that as per the evidence of doctor, the petitioner
has suffered physical disability to the extent of 13% to the
whole body. Therefore relying upon the decision reported in
ILR 2015 KAR 167 (Dr.Yeshwant Dongre V/s Salman
Rasheed & others), this Tribunal deem it just & proper to
SCCH-23 18 MVC No.6218/2022
award a compensation of Rs.1,50,000/- towards the disability
suffered by the petitioner.
16. LOSS OF INCOME DURING LAID-UP PERIOD: As
referred above, considering the nature of injuries, treatment
given & duration of his stay in the hospital, it is quite natural
that petitioner could not have carried out his avocation for some
days. During the course of cross examination PW.1 categorically
admitted that at the time of leave he got the salary and further
stated that his leaves have been debited. Further he stated that
he can produce the leave application. Further the advocate for
respondent No.2 put the question to petitioner as : Base on the
said endorsement given by the Railway Hospital they will give
leave with pay ?. The petitioner given his answer as : Yes
Railway provide leave with pay, but the leave will be debited
from my account. Further in his cross examination he admitted
that he did not have any impediment to produce the documents
to substantiate the debit of leaves. Till date they have not
debited my leaves. Further as on the date he has not produced
any documents to show the leave except Ex.P.14. Further
SCCH-23 19 MVC No.6218/2022
during the course of cross-examination by the counsel for
respondent No.2 the PW.4 admitted that from 03.11.2022 till
28.02.2023 the petitioner was on leave. The EL which the
petitioner was adjusted from 06.01.2023 to 28.02.2023.
Previously from 03.11.2023 till 05.01.2023 the petitioner was
given with sick leave with pay. Hence the said words clearly
discloses during the laid up period also he had got the salary.
Hence he is not entitled for compensation towards ‘loss of income
during laid up period’.
17. ATTENDANT CHARGES, EXTRA NUTRITIOUS
FOOD & CONVEYANCE CHARGES: The period of
hospitalization of 5 days is proved. As such during his stay in
the Hospital, the petitioner would have incurred expenses
towards attendant charges, as some family member/s of the
petitioner would have accompanied him to the hospital to take
his care, by leaving his/her duties. During the aforesaid period
the petitioner might have also spent a considerable amount
towards special diet, transportation and nutrition. Accordingly a
sum of Rs.10,000/- is awarded under this head.
SCCH-23 20 MVC No.6218/2022
18. PAIN & SUFFERINGS: On account of the accidental
injuries the petitioner would have had undergone pain and
mental agony. The documents discloses that petitioner had
sustained injury to Fracture right ankle medial malleolus. On
account of the accidental injuries the petitioner would have had
undergone pain and mental agony. Thus this Tribunal awards a
sum of Rs.60,000/- under this head.
19. MEDICAL EXPENSES: As per the bills marked at
Ex.P13, the petitioner has spent Rs.50,935/- towards medical
expenses. During the course of cross examination PW.1
admitted that he has medical facilities and he stated that only
inpatient bills will be reimbursed. The payment have been done
directly to the hospital. Further the learned counsel for
respondent No.1 cross examined the PW.1 wherein the PW.1
admitted that if he was inpatient then the medical charges will
be reimbursed. He was taken treatment in the Hosmat Hospital
as inpatient. The railways had reimbursed his hospital
expenses only when he was taken treatment as inpatient. The
PW.4 in his cross examination he stated that there is no
SCCH-23 21 MVC No.6218/2022
insurance coverage in railway, but there is railways hospital.
The evidence of PW.1 clearly stated that if he was inpatient then
the medical charges will be reimbursed. Ex.P.13 – Medical bills
and on close perusal of SL.No.13 to 24 wherein it clearly
discloses the customer / corporate name as “CGHS”, “Arogya
Bhagya – General”, “Railways”. Hence it is crystal clear that the
said serial number bills amount paid by Government. Hence the
said Sl.No.13 to 24 are not considered. Nothing worthwhile was
elicited during the course of his cross-examination, so as to
doubt the genuineness of these bills. After deduction of
Rs.9,176/- the petitioner is entitled for a sum of Rs.41,759/-
which is rounded off to Rs.41,800/- towards medical expenses.
20. LOSS OF FUTURE AMENITIES AND HAPPINESS:
The disability referred above would have necessarily caused
physical deformity with which the petitioner has to live the rest
of his life. Hence a sum of Rs.60,000/- is awarded under this
head.
21. FUTURE MEDICAL EXPENSES: The doctor witness
stated that the petitioner has to undergo one more surgery for
SCCH-23 22 MVC No.6218/2022
removal of right ankle for which he may require Rs.50,000/-. No
estimation is produced to show the future medical expenses.
But undisputedly petitioner has to undergo surgery for removal
of implants, for which she has to necessarily bear certain
expenses. Thus she is entitled to Rs.30,000/- towards future
medical and other incidental expenses.
22. The calculation table stands as follows:
1 Loss of future income due : 1,50,000-00
to disability
2 Loss of income during laid- : – Nil –
up period
3 Attendant charges, extra : 10,000-00
nutritious food &
conveyance charges
4 Pain & sufferings : 60,000-00
5 Medical expenses : 41,800-00
6 Loss of future amenities & : 60,000-00
happiness
7 Future medical expenses : 30,000-00
Total 3,51,800-00
23. REGARDING INTEREST & LIABILITY: Having regard
to the nature of the claim and current bank rate of interest, this
SCCH-23 23 MVC No.6218/2022Tribunal is of the view that if interest at the rate of 6% p.a, is
awarded it would meet the ends of justice.
24. The learned counsel for insurance company
vociferously argued that the driver of the insured Auto was
under the influence of alcohol at the time of the accident.
Accordingly he was charge sheeted u/s 185 of the M.V.Act. As
the insured has violated the policy conditions, the liability
cannot be fastened on the insurance company. Driving by a
drunken person is an offence under the Motor Vehicles Act. In
order to disprove the said fact the learned counsel for petitioner
relied on the decision reported in 2017 ACJ 114 in the case of
Oriental Insurance Co.Ltd., V/s Vineetha Nair and others.
Wherein it is clearly held that,
“10. Now, the next point raised before us by the insurance
company is regarding the non-consideration of the specific
contention taken by the company founded on the principle of
volunti non fit injuria. It is true that the principle of volunti non
fit injuria can be taken as a defence even in a liability arising on
the strict liability principle developed from the good old case law
in Ryland v. Fletcher, much less to say, in a claim under the
Motor Vehicles Act. The positive case of the insurance company
SCCH-23 24 MVC No.6218/2022
is that the deceased driver of the car was under the influence of
alcohol. Ext.A7 is the post mortem certificate of Govind G.Nair.
We perused the said document. It can be seen that there is
nothing therein to show that he had consumed alcohol. Ext.B2 is
the copy of the postmortem certificate of the deceased driver. It
is stated therein that the stomach contained clear fluid having
alcoholic smell. Only because there is alcoholic smell, it cannot
be held that he was under the influence of alcohol. Even in a
prosecution under section 185 of the Motor Vehicles Act, there
should be a clear allegation to the effect that the alcohol content
is 30 mg per 100 ml of blood. Considering all these aspects and
also keeping in mind the fact that only because the driver of the
car was found consumed alcohol, by no stretch of imagination,
can it be said that the co-passenger will not be entitled for
compensation. The act complained of, in this case, would not
constitute a good defence by reason of the maxim ‘volunti non fit
injuria’ which bars the right of action as ‘damage suffered by
consent is not a cause of action’. According to us, the conduct as
alleged against the deceased would not amount to consent
capable of bringing a bar based on the aforesaid principle. For
the reasons now stated, we are of the considered view that no
illegality was committed by the Tribunal in not accepting the
contentions based on the aforesaid principle. Moreover, the said
contention was advanced by the insurance company of the
Maruthi car. An insurance company can advance only defence
available under section 149 (2) of the M.V.Act. There is no
SCCH-23 25 MVC No.6218/2022
material before us to hold or presume that the owner of the
vehicle permitted them or gave consent to drive the vehicle in a
sottish stage. Similarly, a mere consumption of alcohol is not a
defence available under section 149(2) of M.V.Act. Under such
circumstances, the insurance company cannot avoid, by putting
forward the principle volunti non fit injuria.
But what deserves notice is that every breach of the
provisions of the M.V. Act would not entitle the insurance
company to contend that its liability is exonerated. Except the
conditions mentioned in section 147 of the IMV Act and the
specific liability either admitted or agreed by way of contract at
the time of issuance of the policy, the insurer cannot avoid its
liability to satisfy the award under section 149 of the IMV Act.
There is no evidence either to show that the respondent No.1
had knowingly placed the Auto in the possession of the driver
who was drunk before the accident. In such circumstances it is
not possible to accept that there was willful breach of the terms
and conditions of the insurance policy. Because the driver had
no nexus with the terms and conditions of the insurance policy.
No doubt, if found guilty he will be convicted under section 185
SCCH-23 26 MVC No.6218/2022
of the M.V. Act. However the insurance company would still
remain liable to innocent third parties.
25. There is no dispute with regard to the issuance of
Insurance Policy and its validity as on the date of accident. The
Insurance Company only contended that the driver of the
insured vehicle was not having valid DL to driver the Auto as on
the date of alleged accident. He was only having a Learners
Licence and was driving the vehicle in violation of Rule 3(1)(b) of
Central Motor Vehicles Rules, 1989 which provides that a
person holding a LMV Learners Licence is authorized to drive
the Auto if he is accompanied by an instructor holding an
effective driving License to drive the vehicle and such instructor
is sitting in such a position to control or stop the vehicle. In
order to prove the said defence the respondent No.1 examined
one witness by name Venkatesh. C.T as RW.3. In his
examination in chief he stated that he accompanying the driver
of the offending vehicle. He stated that the respondent No.1
assigned the work of waste collection from various parts of
Benglauru by BBMP and he was employed by respondent No.1
SCCH-23 27 MVC No.6218/2022
to drive the auto’s owned by him. He has possess valid DL and
same is marked as Ex.R.4. He further stated that he was
accompanying their temporary employee by name Praveena /
accused No.1 who was driving the offending vehicle and RW.3
sitting next to the Praveena, who was learning the said vehicle
and the said driver was having a valid Lerner’s Licence.
26. On perusal of Ex.R.5 being the Learner’s Licence of
driver of Auto (Praveen) it clearly depicts that the driver of the
offending vehicle is having LMV Lerner’s Licence and same is
valid from 30.05.2022 to 29.11.2022. The date of alleged
accident is occurred on 03.11.2022. Hence it is clear that as on
the date of accident the Learner’s Licnece is valid. Admittedly
the driver of offending vehicle was having a valid Learners
Licence at the time of accident. The Apex Court in the decision
reported in 2004 ACJ SC (1) has held that a Learners Licence
is a valid licence within a meaning of the provisions of the
M.V.Act, unless the driver is disqualified under Sections 3 & 4
of the M.V.Act. It cannot be therefore said that a vehicle when
driven by a learner subject to the conditions specified in the
SCCH-23 28 MVC No.6218/2022
Licence could not be a person who is not duly licenced,
resulting in conferring right on the insurer to avoid the claim.
27. The learned counsel for petitioner relied on the
decisions reported in (1) 2022 ACJ 170 between Venkatesha.
K.N and Thipregowda and others. (2) 2019 ACJ 278 between
Shantawwa V/s Ajithsingh and others and (3) 2020 ACJ I
between Senior Divisional Manager, National Insurance Co.Ltd
V/s Jyothiba Appaji Shigate and others. (4)
MFA.No.25891/2021 (MV) c/w MFA.No.23553/2012(MV)
between Kumari Nandini V/s Shakeelahmed J. Kerur and
another.
28. In a landmark judgment handed down by the Supreme
Court on November 6, the issue of whether Light Motor Vehicle
(LMV) driving licence holders can drive transport (read
commercial) vehicles with a weight not exceeding 7,500 Kg was
resolved in favour of the drivers. Further The apex court ruled that a
person holding a driving licence for an LMV is also entitled to drive a
transport vehicle having an unladen weight below 7,500 kilograms. This
ruling has substantial implications for commercial drivers and insurance
SCCH-23 29 MVC No.6218/2022
companies alike, offering clarity on the interpretation of the Motor Vehicles
Act, 1988 (MVA) and the eligibility criteria for driving various types of
vehicles. Light Motor Vehicles (LMVs) licence allows personal use of
passenger or transport vehicles for personal use. In India, LMVs typically
refer to passenger vehicles such as cars and vans, meant for personal use.
Now, one can drive these vehicles when they are used for commercial
purposes as well and will not require a separate transport vehicle driving
licence as was the case until this ruling. LMVs are characterised by their
gross vehicle weight (GVW) or unladen weight (weight without cargo) that
does not exceed 7,500 kg, as defined in the MVA. Additionally, one can also
drive light commercial vehicles such as small trucks, minibuses and three-
wheelers used for transporting goods or passengers, and fall in the said GVW
category of LMV.
29. Keeping in view that a Learners Licence is a valid
licence at the time of accident this Tribunal is of the considered
opinion that Rule 3(1)(b) of the Central Motor Vehicles Rules,
1989 is not violated. In this view of the matter the respondent
No.2 is liable to pay the aforesaid award amount to the
petitioner together with interest @ 6% p.a. from the date of
SCCH-23 30 MVC No.6218/2022
claim petition till realization of the entire amount. Hence this
issue is answered as ‘Partly in the Affirmative’.
30. ISSUE NO.3 : In view of the discussion made supra,
this Tribunal proceeds to pass the following :
ORDER
The petition filed under Section 166 of M.V. Act
1988, is hereby partly allowed with costs in the
following terms :
The petitioner is entitled for compensation of
Rs.3,51,800/- with interest at the rate of 6% p.a.,
(Excluding future medical expenses) from the date of
claim petition till realization of the entire award
amount.
The respondent No.2 is liable to pay and
directed to deposit the compensation amount within
a period of one month from the date of award.
After deposit, the entire compensation
amount together with interest shall be released
to the petitioner through E-payment on proper
identification and verification.
Advocate fee is fixed at Rs.1,000/-.
SCCH-23 31 MVC No.6218/2022
Draw award accordingly.
(Dictated to the Stenographer directly on computer and printout
taken by him, then corrected and pronounced by me in the
open court on this the 6th day of March – 2025)(Shreyansh Doddamani)
XXI Addl. Small Causes Judge
& ACJM, Bengaluru.
ANNEXURES
List of witnesses examined for the petitioner/s:
PW.1 : Sri. Vijay Kumar. C PW.2 : Dr. Krishan Prasad PW.3 : Dr. Shashikanth PW.4 : Sri. Umesha. G
List of documents got marked for the petitioner/s:
Ex.P.1 True copy of FIR Ex.P.2 True copy of Complaint Ex.P.3 True copy of Spot Mahazar Ex.P.4 True copy of notice which was issued U/Sec.133 of IMV Act Ex.P.5 True copy of reply to the above said notice Ex.P.6 True copy of IMV Report Ex.P.7 True copy of Wound Certificate Ex.P.8 True copy of Charge Sheet Ex.P.9 Discharge Summary by VSH Hospital
Ex.P.10 Discharge Summary by Hosmat Hospital
Ex.P.11 Advance paid receipts (6 in Nos.)
SCCH-23 32 MVC No.6218/2022Ex.P.12 Medical prescriptions (7 in Nos.)
Ex.P.13 26 Medical bills amounting to Rs.50,935/-
Ex.P.14 Appointment Certificate
Ex.P.15 Copy of the ID card of the petitioner after comparing
with the original found correct
Ex.P.16 Salary Slips (6 in Nos.)
Ex.P.17 Notarized copy of the Aadhaar card of petitioner after
comparing with the original found correct
Ex.P.18 X-ray sheet
Ex.P.19 Outpatient file (3 in Nos.)
Ex.P.20 Inpatient file
Ex.P.21 X-ray films (3 in Nos.)
Ex.P.22 True copy of Police Intimation
Ex.P.23 True copy of MLC
Ex.P.24 Inpatient case sheet
Ex.P.25 X-ray sheet and MRI films (7 in Nos.)
Ex.P.26 Authorization letter
Ex.P.27 True copy of Service Register
Ex.P.28 Employee Identity card
Ex.P.29 Attendance Register
Ex.P.30 Salary Slips (3 in Nos) of the month of May 2024,
November 2022 and October 2022
Ex.P.31 Leave account detailsList of witnesses examined for the respondent/s:
RW.1 : Sri. Shivananda
RW.2 : Sri. Manjunatha. N.B
RW.3 : Sri. Venkatesh. C.T
SCCH-23 33 MVC No.6218/2022
List of documents marked for the respondent/s:
Ex.R.1 Office copy of the letter sent to respondent No.1
Ex.R.2 True copy of Insurance policy
Ex.R.3 True copy of Charge Sheet
Ex.R.4 Notarized copy of DL of witness
Ex.R.5 Computerized copy of Learner's license of driver of the
vehicle of offender
Ex.R.6 Notarized copy of RC of offending vehicle
(Shreyansh Doddamani)
XXI Addl. Small Causes Judge
& ACJM, Bengaluru.
