New India Assurance Co Ltd Vs. Hemanth - Court Judgment

SooperKanoon Citationsooperkanoon.com/1195593
CourtKarnataka High Court
Decided OnJun-15-2015
Case NumberMFA 7702/2011
JudgeS.N.SATYANARAYANA
AppellantNew India Assurance Co Ltd
RespondentHemanth
Excerpt:
- 1 - ® in the high court of karnataka at bengaluru dated this the15h day of june2015before the hon’ble mr.justice s.n.satyanarayana m.f.a.no.7702/2011(mv) between: new india assurance co. ltd., indocem house, ii floor, #327/05, mysore road, bengaluru – 560 039 now represented by its regional manager, the new india assurance co. ltd., regional office, unity building, annexe, p.kalinga rao road, bengaluru – 560 027. … appellant (by sri a.n.krishnaswamy, advocate) and:1. hemanth s/o t.ramesh now aged about15years, since minor represented natural guardian/father, r/a#99, ii cross, i stage, lakshmikanthanagar, hebbalu, mysuru – 570 001.2. n.arun s/o narasimhamurthy now aged about31years, - 2 - occ:driver, r/a#54/20, 7th cross, nagadevanahalli, bengaluru – 56.3. puttamadappa s/o puttaiah now aged about51years, munivenkatappa compound, pantharapalya, mysuru road, bengaluru – 56. …respondents (r1 to r3-served) in mvc.no.975/2010 on the file of this appeal is filed under section1731) of mv act against the judgment and award dated14.2011 passed iii additional district judge and mact, mysuru, awarding a compensation of rs.9,24,000/- with interest @ 6% p.a. from the date of petition. this appeal coming on for admission this day, the court delivered the following: judgment the third respondent insurance company in mvc.no.975/2010 (old no.249/2009) on the file of mact, mysore, has come up in this appeal impugning the judgment and award dated 1.4.2011. though this matter is at the stage of admission, since lower court record is received, it is taken up for final disposal.-. 3 - 2. brief facts leading to this appeal are as under: mvc.no.975/2010 is filed on behalf of minor boy – hemanth, aged about 14 years through his next friend and father sri.t.ramesh. wherein compensation is sought for the injuries suffered by the claimant in an accident involving tvs scooty pep bearing registration no.ka-09/ef-331 and toyota qualis bearing registration no.ka-03/c-1267. the said accident has taken place on 27.3.2009 at about 11.40 am., at the junction of hebbal ring road near bharath cancer hospital, mysore. the said accident is reported to n.r.traffic police (v.v.puram), mysore, by the rider of tvs scooty pep, nithin s/o l.nagaraju. incidentally, tvs scooty pep bearing registration no.ka-09/ef331is belonging to his father – l.nagaraju. the claimant is friend of nithin, who had taken the claimant as pillion on the aforesaid tvs to visit their common friend. while they were coming back after meeting their friend and while they were crossing the ring road near bharath cancer hospital, they were hit by the driver of toyota qualis bearing registration no.ka-03/c-1267 belonging to second respondent and insured with third respondent. the accident is said to have caused due - 4 - to rash and negligent driving of toyota qualis, which is said to have dashed against tvs on which claimant and his friend – rider nithin were traveling. as a result, both minor boys on the two wheeler i.e., the rider and pillion on tvs fell down. rider of tvs is said to have suffered minor injuries, namely injury to his waist, whereas the pillion is said to have suffered head injury. immediately, the rider and pillion, were shifted to bgs hospitals, mysore. where it is stated that the rider of tvs was given first-aid and claimant was admitted as an inpatient.3. in the said accident, claimant is said to have suffered following injuries:1. severe concussive head injury 2. depressed fracture left frontal bone with contusions left capsuloganglionic region with diffuse cerebral edema. lobe and frontal in left 3. diffuse axonal injury with brain stem injury. the claimant was admitted to bgs hospitals, mysore, as inpatient from 27.3.2009 to 15.5.2009, where surgery was conducted on his head. as there was no improvement in the injuries suffered by claimant, the doctors have felt that no purpose would be served in keeping him in hospital and - 5 - providing further treatment, hence, discharged him from hospital.4. in the claim petition, it is contended that claimant is like a living dead person in vegetable condition. his memory is completely lost; he is not in a position to speak; unable to identify any person; not in a position to take food voluntarily; food and water is provided to him through a pipe attached to his stomach; claimant is not in a position to stand and walk; does not respond to any commands; mentally appears to be completely unstable and always lying on his back; not able to move on either side. it is further contended that because of injuries suffered in said accident, his parents have spent more than rs.2,32,000/- towards hospital charges and rs.10,000/- towards charges for assistants appointed to look after the claimant in hospital; another rs.30,000/- for conveyance; and rs.1,00,000/- for nutritious food is spent for improvement of claimant.5. it is the case of claimant’s father that claimant was hale and healthy, he was aged about 14 years at the time of accident. he was a student of paramananda high school.-. 6 - after the accident, his education has come to an end. the accident which ruined the life of claimant is caused due to rash and negligent driving of toyota qualis by its driver, first respondent before the tribunal. hence, first respondent – driver of qualis, second respondent – owner and third respondent – insurance company are jointly and severally liable to pay compensation for the injuries suffered by the claimant.6. in the said proceeding, insurance company has taken defence that though accident is caused involving two vehicles i.e., tvs scooty pep on which claimant was traveling, which was driven by a minor, aged about 14 years by name nithin, the accident is caused due to negligent driving of nithin, who is not conversant with the riding of tvs and was not having a valid driving licence to ride the said vehicle and was not even of proper age to ride the said vehicle. therefore, it is because of the mistake on the part of rider of tvs, the accident has taken place resulting in injuries to claimant. it was also contended that since the accident is caused by a minor, who did not have licence to ride said tvs resulting in accident, the insurance company is not liable to pay any compensation. though such - 7 - a defence was taken, no evidence is adduced by the insurance company in support of its defence that the accident is due to the mistake of rider of two wheeler or to counter the evidence adduced by claimant that the accident is due to rash and negligent driving of toyota qualis.7. the tribunal on appreciation of pleadings, oral and documentary evidence available on record allowed the claim petition filed by claimant and awarded compensation in a sum of rs.9,24,000/- payable with interest at 6% pa., from the date of petition till date of payment of entire amount, which is apportioned as under:1. 2 3 4 5 6 7 8 pain and suffering medical expenses rs.40,000/- rs.1,00,000/- future loss of income due to disability rs.6,48,000/- future medical expenses attendant’s charges conveyance charges nutritious food & nourishment loss of expectation of life total rs.50,000/- rs.36,000/- rs.5,000/- rs.5,000/- rs.40,000/- rs.9,24,000/- - 8 - 8. after hearing the learned counsel for appellant – insurance company and on going through the judgment impugned with reference to pleadings, oral and documentary evidence available on record, it is clearly seen that quantum of compensation awarded by the tribunal to claimant appears to be just and proper and it does not call for interference. however, when it comes to liability, it appears there is force in the argument tendered by the counsel for appellant. as stated by him, there are series of violations of the provisions of law by the rider of tvs in the aforesaid accident. admittedly, as could be seen from the contents of ex.p2, the complainant - nithin was aged about 14 years as on 27.2.2009. in the compliant, ex.p2 he admit that he was riding tvs with claimant as pillion and they had gone to meet a friend of them, who was residing in beml layout. it is seen that claimant and rider – nithin are residents of hebbalu area of mysore and from there they have traveled to beml layout on tvs. admittedly, at the relevant time the rider of tvs on which claimant was traveling as pillion was not having valid driving licence. even otherwise, he being a boy aged about 14 years could not have secured valid licence - 9 - and he was not qualified to be a rider of two wheeler at the relevant time. at this juncture, the relevant provision of law is required to be looked into. section 4 of the motor vehicles act, 1988, which deals with age limit in connection with driving of motor vehicles reads as under:4. age limit in connection with driving of motor vehicles. – (1) no person under the age of eighteen years shall drive a motor vehicle in any public place: provided that [a motor cycle with engine capacity not exceeding 50 cc]. may by driven in a public place by a person after attaining the age of sixteen years. (2) subject to the provisions of section 18, no person under the age of twenty years shall drive a transport vehicle in any public place. (3) no learner’s licence or driving licence shall be issued to any person to drive a vehicle of the class to which he has made an application unless he is eligible to drive that class of vehicle under this section.9. in the instant case, complainant – nithin being aged about 14 years as on the relevant date could not have driven even a motor cycle with engine capacity not exceeding 50 cc, whereas the engine capacity of tvs scooty pep is 74 cc. therefore, obviously he could not have secured licence to ride tvs even assuming that he is 16 years old. hence, there is - 10 - clear violation of the provisions of section 4 of the motor vehicles act, 1988 by the rider of tvs scooty pep, on which claimant was traveling as a pillion. infact, there is serious lapse on the part of claimant’s next friend and guardian i.e., his father in allowing his son to travel on tvs pep driven by a minor. there is also lack of proper discipline on the part of father of rider of two wheeler in not preventing his son to ride the said two wheeler. the irresponsibility on the part of parents of both pillion and rider of two wheeler has led to a situation like this in minor claimant traveling on a two wheeler driven by another minor. infact, in his examination-in-chief, claimant’s father voluntarily and shamelessly admit that his son was traveling on a scooter, which was driven by a friend of him, who also was aged about 14 years and was not having driving licence. it is equally shameless on the part of parent of rider of tvs scooty pep, who caused the accident in permitting his son to ride the said vehicle when he did not complete the requisite age limit to ride the vehicle and when he did not have valid driving licence to ride the same. infact, section 7 of - 11 - motor vehicles act, 1988 which deals with issuance of licence reads as under:7. restrictions on the granting of learner’s licences for certain vehicles.— (1) no person shall be granted a learner’s licence to drive a transport vehicle unless he has held a driving licence to drive a light motor vehicle for at least one year.]. (2) no person under the age of eighteen years shall be granted a learner’s licence to drive a motor cycle without gear except with the consent in writing of the person having the care of the person desiring the learner’s licence. as could be seen supra, clause (2) makes it very clear that even when licence is granted to a minor below 18 years it is with the consent of his parents though it is for riding the vehicle below the capacity of 50 cc.10. in the instant case, there is a voluntary act by the father of complainant – nithin in entrusting the vehicle to him and the father of claimant in allowing him to travel on the said vehicle along with complainant and both of them riding the said vehicle resulting in an accident involving qualis belonging to second respondent and insured with third respondent. in the instant case, though the prosecution is said to have - 12 - launched on the driver of toyota qualis for rash and negligent driving, this court feel fastening the entire liability on driver, owner and insurer of qualis to pay compensation is erroneous. since there is mistake on the part of rider of tvs and his father in entrusting the vehicle to him, the said fact should not also be ignored. at the same time, on the ground that rider of two wheeler was not having valid driving licence, the mistake, if any, on the part of the driver of toyota qualis in causing the accident also cannot be ignored. as could be seen from the record, the driver of toyota qualis is charge-sheeted for the offence. since the negligence on the part of driver of toyota qualis is established, the liability of the driver, owner and insurer of toyota qualis cannot be wiped out completely. they are liable to pay the compensation in the driver being rash and negligent in his driving the vehicle and causing the accident. however, the extent of liability will have to be reduced in view of contributory negligence on the part of rider of two wheeler.11. i. in that view of the matter, the appeal filed by insurance company is partly allowed. the judgment and award dated 1.4.2011 passed in mvc.no.975/2010 (old - 13 - no.249/2009) on the file of mact, mysore, is modified restricting the liability on the owner, driver of toyota qualis to an extent of 70%, thereby restricting the liability of insurance company to indemnify the compensation to an extent of 70% only payable with interest at 6% pa., from the date of petition till date of payment of said amount. the said compensation would cover the expenses towards past, present and future medical expenses and other incidental charges. it is seen that in this proceedings the rider and owner of the tvs scooty pep are not arraigned as parties. however, the material on record has clearly established the negligence on the part of rider of two wheeler, who is minor and has driven the same in rash and negligent manner without having valid driving licence. hence, there is contributory negligence on his part in causing the accident, for which he also should share the liability to pay compensation as stated supra. therefore, it is made clear that the claimant shall be entitled to recover from the rider of tvs scooty pep and his father 30% of compensation along with interest at 6% p.a. since the father of rider of vehicle is vicariously responsible in entrusting the vehicle to his son for - 14 - riding the same, which has resulted in the said minor taking the claimant along with him and exposing him to such danger he shall pay the compensation as owner of two wheeler and also as guardian of minor rider. since the liability of rider of two wheeler is quantified in this proceedings, the claimant is at liberty to implead the rider and the owner as parties to the claim proceedings. since the rider of two wheeler is minor, his next friend and father, who is vicariously liable for the mistakes of his son, who is also owner of the said two wheeler should be impleaded, thereafter, by levying execution shall recover the same from him. it is further clarified that the owner of tvs scooty pep shall not be entitled to seek indemnification of said liability from the insurer of said two wheeler as there is violation of policy condition in entrusting the vehicle to a minor. ii. in view of the appeal of insurance company being allowed partially and in view of the entire compensation amount with interest being deposited, from out of that 70% of compensation along with interest at 6% from the date of petition till date of deposit be released in favour of the - 15 - claimant. if any excess amount is found, the same should be released in favour of insurance company or otherwise by virtue of interest being calculated from the date of petition till date of deposit, if amount in deposit falls short of 70% of compensation amount with interest, the balance amount shall be deposited by insurance company within eight weeks from the date of receipt of a copy of judgment in this proceeding. iii. from out of compensation which is awarded to claimant, 80% with proportionate interest is ordered to be deposited in any nationalized bank for a period of 10 years with right to receive periodical interest to the parents of claimant for the maintenance of child and balance 20% with proportionate interest should be released in favour of claimant’s father to meet the immediate need with reference to clearance of loan or any other amount which he could have incurred for the treatment of claimant. iv. similarly, as and when the claimant is able to realize 30% of compensation with interest from the rider and owner of scooty pep after impleading them as parties in mvc - 16 - proceedings, the shame shall also be released in favour of claimant in the same manner.12. while resting with this case, this court has noticed that these kind of accidents are seen mainly among the higher secondary school and pre-graduation students, who are permitted to use two wheelers by their parents and encouraged by educational institutions in allowing such students to attend the school/college riding two wheeler, sometime driving a motor car. the police are turning a blind eye to these youngsters riding two wheelers and driving four wheelers. therefore, certain directions are required to be issued to (i) department of education, (ii) motor vehicles department and (iii) police department. (a) in the first place, to avoid repetition of similar situation transport department should not register the vehicles below 100cc with a pillion seat attached to it at the time of registering said vehicle and should not permit use of said vehicle with a pillion being permitted to travel on the same, which would be in clear violation of rule 143(3) of karnataka motor vehicle rules, 1989, which reads as under:- - 17 - 143. attachment to motor cycle. (1) every side car attached to a motor-cycle shall be so attached, at left hand side of the motor cycle, that the wheel thereof is not outside the perpendicular planes at right angles to the longitudinal axis of other motor cycle passing through the extreme projecting points in front and in the rear of the motor cycle. (2) every pillion seat attached to a motor cycle shall, (i) have two foot-rests one on either side of and directly below the seat fitted in such a manner that a person sitting of the pillion seat can rest his feet on such foot- rests; (ii) have a suitably spring cushion seat; and (iii) have a hand grip fitted to the front of the seat. (3) no pillion seat shall be attached to a motor- cycle with less than 100 cc engine. (4) the rear wheel of every motor cycle on which a pillion seat is fixed, shall be covered by a protective device covering two-thirds of the area of the rear wheel so as to prevent the clothes of the pillion rider. (b) secondly, the principal secretary to education department should issue circular to all educational institutions in state not to provide parking area to students traveling to school or college on moped, scooter, motor cycle, motor car without having valid driving licence. the principal secretary shall clearly instruct the education institutions not to encourage students driving two wheeler/four wheeler vehicles without valid licence. if there is disobedience from any - 18 - students, to rusticate them from the institution for violation of such restriction imposed by education department. (c) thirdly, the secretary to home department to issue notification to police to register case against the parents of minor children for riding scooters, motor cycles and cars without having valid driving licence and whenever a child is found to be driving such vehicle in violation of the provisions of motor vehicles act or rules framed there under, file charge sheet not only on the offending minor, but also on his/her parents for such offence. if it is found that the parents have voluntarily entrusted the vehicles to children, whether it is the parents or any other person, who has entrusted the vehicle to minor should be prosecuted if he has parted the custody of vehicle in favour of the minor for riding the same. normally, in such circumstances, the first offence shall be with fine and if the same is repeated, it shall be dealt with seriously in arresting the ward and as well as parents or guardian for repetition of said mistake and sentencing them to civil prison. the home department shall forthwith issue notification to that effect.-. 19 - 13. infact, the act of parents/guardian of minor children or the registered owner of vehicle in allowing the minor, more particularly who does not hold licence to drive, is putting the life of common man in society to danger. whenever accident takes place due to minor driving vehicle and causing the same, the insurance company who greedily collect premiums would come out with a defence that vehicle being driven by a minor they are not liable to answer the claim; they also take all possible defences to waive off their liability allowing the gullible public to suffer the brunt of accident caused by minors, which is on rise these days, which is also very serious threat to society. hence, to curb the same, these precautions are required to be taken by aforesaid departments.14. accordingly, a copy of this judgment is sent to the chief secretary, government of karnataka, with a copy to principal secretary, home department; principal secretary, transport department and principal secretary, education department. the chief secretary of state shall call a meeting of the other three principal secretaries and shall ensure - 20 - requisite notifications, circulars, guidelines as may be necessary are issued within 60 days from the date of receiving a copy of this judgment.15. list this matter before the court three months after copy of this judgment is sent to aforesaid officers to monitor the outcome of direction issued in this judgment. nd/- sd/- judge
Judgment:

- 1 - ® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE15H DAY OF JUNE2015BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA M.F.A.NO.7702/2011(MV) BETWEEN: NEW INDIA ASSURANCE CO. LTD., INDOCEM HOUSE, II FLOOR, #327/05, MYSORE ROAD, BENGALURU – 560 039 NOW REPRESENTED BY ITS REGIONAL MANAGER, THE NEW INDIA ASSURANCE CO. LTD., REGIONAL OFFICE, UNITY BUILDING, ANNEXE, P.KALINGA RAO ROAD, BENGALURU – 560 027. … APPELLANT (BY SRI A.N.KRISHNASWAMY, ADVOCATE) AND:

1. HEMANTH S/O T.RAMESH NOW AGED ABOUT15YEARS, SINCE MINOR REPRESENTED NATURAL GUARDIAN/FATHER, R/A#99, II CROSS, I STAGE, LAKSHMIKANTHANAGAR, HEBBALU, MYSURU – 570 001.

2. N.ARUN S/O NARASIMHAMURTHY NOW AGED ABOUT31YEARS, - 2 - OCC:DRIVER, R/A#54/20, 7TH CROSS, NAGADEVANAHALLI, BENGALURU – 56.

3. PUTTAMADAPPA S/O PUTTAIAH NOW AGED ABOUT51YEARS, MUNIVENKATAPPA COMPOUND, PANTHARAPALYA, MYSURU ROAD, BENGALURU – 56. …RESPONDENTS (R1 TO R3-SERVED) IN MVC.NO.975/2010 ON THE FILE OF THIS APPEAL IS FILED UNDER SECTION1731) OF MV ACT AGAINST THE JUDGMENT

AND AWARD DATED14.2011 PASSED III ADDITIONAL DISTRICT JUDGE AND MACT, MYSURU, AWARDING A COMPENSATION OF RS.9,24,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT

The third respondent insurance company in MVC.No.975/2010 (Old No.249/2009) on the file of MACT, Mysore, has come up in this appeal impugning the judgment and award dated 1.4.2011. Though this matter is at the stage of admission, since lower court record is received, it is taken up for final disposal.-. 3 - 2. Brief facts leading to this appeal are as under: MVC.No.975/2010 is filed on behalf of minor boy – Hemanth, aged about 14 years through his next friend and father Sri.T.Ramesh. Wherein compensation is sought for the injuries suffered by the claimant in an accident involving TVS Scooty Pep bearing registration No.KA-09/EF-331 and Toyota Qualis bearing registration No.KA-03/C-1267. The said accident has taken place on 27.3.2009 at about 11.40 am., at the junction of Hebbal ring road near Bharath Cancer Hospital, Mysore. The said accident is reported to N.R.Traffic Police (V.V.Puram), Mysore, by the rider of TVS Scooty Pep, Nithin s/o L.Nagaraju. Incidentally, TVS Scooty Pep bearing registration No.KA-09/EF331is belonging to his father – L.Nagaraju. The claimant is friend of Nithin, who had taken the claimant as pillion on the aforesaid TVS to visit their common friend. While they were coming back after meeting their friend and while they were crossing the ring road near Bharath Cancer Hospital, they were hit by the driver of Toyota Qualis bearing registration No.KA-03/C-1267 belonging to second respondent and insured with third respondent. The accident is said to have caused due - 4 - to rash and negligent driving of Toyota Qualis, which is said to have dashed against TVS on which claimant and his friend – rider Nithin were traveling. As a result, both minor boys on the two wheeler i.e., the rider and pillion on TVS fell down. Rider of TVS is said to have suffered minor injuries, namely injury to his waist, whereas the pillion is said to have suffered head injury. Immediately, the rider and pillion, were shifted to BGS Hospitals, Mysore. Where it is stated that the rider of TVS was given first-aid and claimant was admitted as an inpatient.

3. In the said accident, claimant is said to have suffered following injuries:

1. Severe concussive head injury 2. Depressed fracture left frontal bone with contusions left capsuloganglionic region with diffuse cerebral edema. lobe and frontal in left 3. Diffuse axonal injury with brain stem injury. The claimant was admitted to BGS Hospitals, Mysore, as inpatient from 27.3.2009 to 15.5.2009, where surgery was conducted on his head. As there was no improvement in the injuries suffered by claimant, the doctors have felt that no purpose would be served in keeping him in hospital and - 5 - providing further treatment, hence, discharged him from hospital.

4. In the claim petition, it is contended that claimant is like a living dead person in vegetable condition. His memory is completely lost; he is not in a position to speak; unable to identify any person; not in a position to take food voluntarily; food and water is provided to him through a pipe attached to his stomach; claimant is not in a position to stand and walk; does not respond to any commands; mentally appears to be completely unstable and always lying on his back; not able to move on either side. It is further contended that because of injuries suffered in said accident, his parents have spent more than Rs.2,32,000/- towards hospital charges and Rs.10,000/- towards charges for assistants appointed to look after the claimant in hospital; another Rs.30,000/- for conveyance; and Rs.1,00,000/- for nutritious food is spent for improvement of claimant.

5. It is the case of claimant’s father that claimant was hale and healthy, he was aged about 14 years at the time of accident. He was a student of Paramananda High School.-. 6 - After the accident, his education has come to an end. The accident which ruined the life of claimant is caused due to rash and negligent driving of Toyota Qualis by its driver, first respondent before the Tribunal. Hence, first respondent – driver of Qualis, second respondent – owner and third respondent – insurance company are jointly and severally liable to pay compensation for the injuries suffered by the claimant.

6. In the said proceeding, insurance company has taken defence that though accident is caused involving two vehicles i.e., TVS Scooty Pep on which claimant was traveling, which was driven by a minor, aged about 14 years by name Nithin, the accident is caused due to negligent driving of Nithin, who is not conversant with the riding of TVS and was not having a valid driving licence to ride the said vehicle and was not even of proper age to ride the said vehicle. Therefore, it is because of the mistake on the part of rider of TVS, the accident has taken place resulting in injuries to claimant. It was also contended that since the accident is caused by a minor, who did not have licence to ride said TVS resulting in accident, the insurance company is not liable to pay any compensation. Though such - 7 - a defence was taken, no evidence is adduced by the insurance company in support of its defence that the accident is due to the mistake of rider of two wheeler or to counter the evidence adduced by claimant that the accident is due to rash and negligent driving of Toyota Qualis.

7. The Tribunal on appreciation of pleadings, oral and documentary evidence available on record allowed the claim petition filed by claimant and awarded compensation in a sum of Rs.9,24,000/- payable with interest at 6% pa., from the date of petition till date of payment of entire amount, which is apportioned as under:

1. 2 3 4 5 6 7 8 Pain and suffering Medical expenses Rs.40,000/- Rs.1,00,000/- Future loss of income due to disability Rs.6,48,000/- Future medical expenses Attendant’s charges Conveyance charges Nutritious food & nourishment Loss of expectation of life Total Rs.50,000/- Rs.36,000/- Rs.5,000/- Rs.5,000/- Rs.40,000/- Rs.9,24,000/- - 8 - 8. After hearing the learned Counsel for appellant – insurance company and on going through the judgment impugned with reference to pleadings, oral and documentary evidence available on record, it is clearly seen that quantum of compensation awarded by the Tribunal to claimant appears to be just and proper and it does not call for interference. However, when it comes to liability, it appears there is force in the argument tendered by the counsel for appellant. As stated by him, there are series of violations of the provisions of law by the rider of TVS in the aforesaid accident. Admittedly, as could be seen from the contents of Ex.P2, the complainant - Nithin was aged about 14 years as on 27.2.2009. In the compliant, Ex.P2 he admit that he was riding TVS with claimant as pillion and they had gone to meet a friend of them, who was residing in BEML Layout. It is seen that claimant and rider – Nithin are residents of Hebbalu area of Mysore and from there they have traveled to BEML layout on TVS. Admittedly, at the relevant time the rider of TVS on which claimant was traveling as pillion was not having valid driving licence. Even otherwise, he being a boy aged about 14 years could not have secured valid licence - 9 - and he was not qualified to be a rider of two wheeler at the relevant time. At this juncture, the relevant provision of law is required to be looked into. Section 4 of the Motor Vehicles Act, 1988, which deals with age limit in connection with driving of motor vehicles reads as under:

4. Age limit in connection with driving of motor vehicles. – (1) No person under the age of eighteen years shall drive a motor vehicle in any public place: Provided that [a motor cycle with engine capacity not exceeding 50 cc]. may by driven in a public place by a person after attaining the age of sixteen years. (2) Subject to the provisions of section 18, no person under the age of twenty years shall drive a transport vehicle in any public place. (3) No learner’s licence or driving licence shall be issued to any person to drive a vehicle of the class to which he has made an application unless he is eligible to drive that class of vehicle under this section.

9. In the instant case, complainant – Nithin being aged about 14 years as on the relevant date could not have driven even a motor cycle with engine capacity not exceeding 50 CC, whereas the engine capacity of TVS Scooty Pep is 74 CC. Therefore, obviously he could not have secured licence to ride TVS even assuming that he is 16 years old. Hence, there is - 10 - clear violation of the provisions of Section 4 of the Motor Vehicles Act, 1988 by the rider of TVS Scooty Pep, on which claimant was traveling as a pillion. Infact, there is serious lapse on the part of claimant’s next friend and guardian i.e., his father in allowing his son to travel on TVS Pep driven by a minor. There is also lack of proper discipline on the part of father of rider of two wheeler in not preventing his son to ride the said two wheeler. The irresponsibility on the part of parents of both pillion and rider of two wheeler has led to a situation like this in minor claimant traveling on a two wheeler driven by another minor. Infact, in his examination-in-chief, claimant’s father voluntarily and shamelessly admit that his son was traveling on a scooter, which was driven by a friend of him, who also was aged about 14 years and was not having driving licence. It is equally shameless on the part of parent of rider of TVS Scooty Pep, who caused the accident in permitting his son to ride the said vehicle when he did not complete the requisite age limit to ride the vehicle and when he did not have valid driving licence to ride the same. Infact, Section 7 of - 11 - Motor Vehicles Act, 1988 which deals with issuance of licence reads as under:

7. Restrictions on the granting of learner’s licences for certain vehicles.— (1) No person shall be granted a learner’s licence to drive a transport vehicle unless he has held a driving licence to drive a light motor vehicle for at least one year.]. (2) No person under the age of eighteen years shall be granted a learner’s licence to drive a motor cycle without gear except with the consent in writing of the person having the care of the person desiring the learner’s licence. As could be seen supra, clause (2) makes it very clear that even when licence is granted to a minor below 18 years it is with the consent of his parents though it is for riding the vehicle below the capacity of 50 CC.

10. In the instant case, there is a voluntary act by the father of complainant – Nithin in entrusting the vehicle to him and the father of claimant in allowing him to travel on the said vehicle along with complainant and both of them riding the said vehicle resulting in an accident involving Qualis belonging to second respondent and insured with third respondent. In the instant case, though the prosecution is said to have - 12 - launched on the driver of Toyota Qualis for rash and negligent driving, this Court feel fastening the entire liability on driver, owner and insurer of Qualis to pay compensation is erroneous. Since there is mistake on the part of rider of TVS and his father in entrusting the vehicle to him, the said fact should not also be ignored. At the same time, on the ground that rider of two wheeler was not having valid driving licence, the mistake, if any, on the part of the driver of Toyota Qualis in causing the accident also cannot be ignored. As could be seen from the record, the driver of Toyota Qualis is charge-sheeted for the offence. Since the negligence on the part of driver of Toyota Qualis is established, the liability of the driver, owner and insurer of Toyota Qualis cannot be wiped out completely. They are liable to pay the compensation in the driver being rash and negligent in his driving the vehicle and causing the accident. However, the extent of liability will have to be reduced in view of contributory negligence on the part of rider of two wheeler.

11. I. In that view of the matter, the appeal filed by insurance company is partly allowed. The judgment and award dated 1.4.2011 passed in MVC.No.975/2010 (Old - 13 - No.249/2009) on the file of MACT, Mysore, is modified restricting the liability on the owner, driver of Toyota Qualis to an extent of 70%, thereby restricting the liability of insurance company to indemnify the compensation to an extent of 70% only payable with interest at 6% pa., from the date of petition till date of payment of said amount. The said compensation would cover the expenses towards past, present and future medical expenses and other incidental charges. It is seen that in this proceedings the rider and owner of the TVS Scooty Pep are not arraigned as parties. However, the material on record has clearly established the negligence on the part of rider of two wheeler, who is minor and has driven the same in rash and negligent manner without having valid driving licence. Hence, there is contributory negligence on his part in causing the accident, for which he also should share the liability to pay compensation as stated supra. Therefore, it is made clear that the claimant shall be entitled to recover from the rider of TVS Scooty Pep and his father 30% of compensation along with interest at 6% p.a. Since the father of rider of vehicle is vicariously responsible in entrusting the vehicle to his son for - 14 - riding the same, which has resulted in the said minor taking the claimant along with him and exposing him to such danger he shall pay the compensation as owner of two wheeler and also as guardian of minor rider. Since the liability of rider of two wheeler is quantified in this proceedings, the claimant is at liberty to implead the rider and the owner as parties to the claim proceedings. Since the rider of two wheeler is minor, his next friend and father, who is vicariously liable for the mistakes of his son, who is also owner of the said two wheeler should be impleaded, thereafter, by levying execution shall recover the same from him. It is further clarified that the owner of TVS Scooty Pep shall not be entitled to seek indemnification of said liability from the insurer of said two wheeler as there is violation of policy condition in entrusting the vehicle to a minor. II. In view of the appeal of insurance company being allowed partially and in view of the entire compensation amount with interest being deposited, from out of that 70% of compensation along with interest at 6% from the date of petition till date of deposit be released in favour of the - 15 - claimant. If any excess amount is found, the same should be released in favour of insurance company or otherwise by virtue of interest being calculated from the date of petition till date of deposit, if amount in deposit falls short of 70% of compensation amount with interest, the balance amount shall be deposited by insurance company within eight weeks from the date of receipt of a copy of judgment in this proceeding. III. From out of compensation which is awarded to claimant, 80% with proportionate interest is ordered to be deposited in any nationalized bank for a period of 10 years with right to receive periodical interest to the parents of claimant for the maintenance of child and balance 20% with proportionate interest should be released in favour of claimant’s father to meet the immediate need with reference to clearance of loan or any other amount which he could have incurred for the treatment of claimant. IV. Similarly, as and when the claimant is able to realize 30% of compensation with interest from the rider and owner of Scooty Pep after impleading them as parties in MVC - 16 - proceedings, the shame shall also be released in favour of claimant in the same manner.

12. While resting with this case, this Court has noticed that these kind of accidents are seen mainly among the higher secondary school and pre-graduation students, who are permitted to use two wheelers by their parents and encouraged by educational institutions in allowing such students to attend the school/college riding two wheeler, sometime driving a motor car. The police are turning a blind eye to these youngsters riding two wheelers and driving four wheelers. Therefore, certain directions are required to be issued to (i) Department of Education, (ii) Motor Vehicles Department and (iii) Police Department. (a) In the first place, to avoid repetition of similar situation Transport department should not register the vehicles below 100cc with a pillion seat attached to it at the time of registering said vehicle and should not permit use of said vehicle with a pillion being permitted to travel on the same, which would be in clear violation of Rule 143(3) of Karnataka Motor Vehicle Rules, 1989, which reads as under:- - 17 - 143. Attachment to motor cycle. (1) Every side car attached to a motor-cycle shall be so attached, at left hand side of the motor cycle, that the wheel thereof is not outside the perpendicular planes at right angles to the longitudinal axis of other motor cycle passing through the extreme projecting points in front and in the rear of the motor cycle. (2) Every pillion seat attached to a motor cycle shall, (i) have two foot-rests one on either side of and directly below the seat fitted in such a manner that a person sitting of the pillion seat can rest his feet on such foot- rests; (ii) have a suitably spring cushion seat; and (iii) have a hand grip fitted to the front of the seat. (3) No pillion seat shall be attached to a motor- cycle with less than 100 cc engine. (4) The rear wheel of every motor cycle on which a pillion seat is fixed, shall be covered by a protective device covering two-thirds of the area of the rear wheel so as to prevent the clothes of the pillion rider. (b) Secondly, the Principal Secretary to Education Department should issue circular to all educational institutions in State not to provide parking area to students traveling to school or college on moped, scooter, motor cycle, motor car without having valid driving licence. The Principal Secretary shall clearly instruct the education institutions not to encourage students driving two wheeler/four wheeler vehicles without valid licence. If there is disobedience from any - 18 - students, to rusticate them from the institution for violation of such restriction imposed by education department. (c) Thirdly, the Secretary to Home Department to issue notification to police to register case against the parents of minor children for riding scooters, motor cycles and cars without having valid driving licence and whenever a child is found to be driving such vehicle in violation of the provisions of Motor Vehicles Act or Rules framed there under, file charge sheet not only on the offending minor, but also on his/her parents for such offence. If it is found that the parents have voluntarily entrusted the vehicles to children, whether it is the parents or any other person, who has entrusted the vehicle to minor should be prosecuted if he has parted the custody of vehicle in favour of the minor for riding the same. Normally, in such circumstances, the first offence shall be with fine and if the same is repeated, it shall be dealt with seriously in arresting the ward and as well as parents or guardian for repetition of said mistake and sentencing them to civil prison. The Home Department shall forthwith issue notification to that effect.-. 19 - 13. Infact, the act of parents/guardian of minor children or the registered owner of vehicle in allowing the minor, more particularly who does not hold licence to drive, is putting the life of common man in society to danger. Whenever accident takes place due to minor driving vehicle and causing the same, the insurance company who greedily collect premiums would come out with a defence that vehicle being driven by a minor they are not liable to answer the claim; they also take all possible defences to waive off their liability allowing the gullible public to suffer the brunt of accident caused by minors, which is on rise these days, which is also very serious threat to society. Hence, to curb the same, these precautions are required to be taken by aforesaid departments.

14. Accordingly, a copy of this judgment is sent to the Chief Secretary, Government of Karnataka, with a copy to Principal Secretary, Home Department; Principal Secretary, Transport Department and Principal Secretary, Education Department. The Chief Secretary of State shall call a meeting of the other three Principal Secretaries and shall ensure - 20 - requisite notifications, circulars, guidelines as may be necessary are issued within 60 days from the date of receiving a copy of this judgment.

15. List this matter before the Court three months after copy of this judgment is sent to aforesaid Officers to monitor the outcome of direction issued in this judgment. nd/- Sd/- JUDGE