IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF FEBRUARY 2019 BEFORE THE HON'BLE MR.JUSTICE K.SOMASHEKAR M.F.A.No.1140/2015 (MV - I) BETWEEN:
B.K.NANJUNDE GOWDA, S/O PUTTASWAMY GOWDA, AGED ABOUT 55 YEARS, RESIDING AT BINDIGANAVILE VILLAGE AND HOBLI, NAGAMANGALA TALUK, MANDYA DISTRICT – 571 402. ... APPELLANT (BY SRI.T.MOHANDAS SHETTY, ADV.) AND:
1. SRI.B.S.DEEPAK, S/O SHIVALINGA, AGED ABOUT 21 YEARS, MINOR, REPRESENTED BY HIS NATURAL GUARDIAN, THE FATHER BY NAME SHIVALINGA, S/O BASAVASHETTY, BINDIGANVILE VILLAGE AND HOBLI, NAGAMANGALA TALUK, MANDYA DISTRICT – 571 402.
2. NATIONAL INSURANCE COMPANY, REPRESENTED BY ITS MANAGER, MANDYA BRANCH (602401), NO.1576, 1ST FLOOR, VISHWESHWARAIAH ROAD, MANDYA – 571 401, POLICY NO.602401-31-07 6300004574. ... RESPONDENTS (BY SRI.M.NAGESH, ADV., FOR R1; SRI.S.SRISHAILA, ADV., FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.10.2014 PASSED IN MVC NO.3/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, NAGAMANGALA, AWARDING A COMPENSATION OF RS.1,80,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL PAYMENT.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT This appeal is slated for admission. With consent of the learned counsel for the appellant and the respondents, the matter is taken up for final disposal.
2. The factual matrix of the appeal are as under:
It is stated in the claim petition that on 8.2.2008 at about 10.30 a.m. when the minor petitioner namely, B.S.Deepak and his father Shivalingegowda were standing at Balavalli gate, the driver of goods auto rickshaw bearing registration No.KA-11/4781 came in a rash and negligent manner from Bindiganavile village and hit against the minor petitioner, due to the said impact, he sustained injuries on the left knee, head, face and other parts of the body. Immediately, the injured was shifted to A.C. hospital, B.B.Nagara, Nagamangala for treatment. Subsequent to providing first aid, injured was referred to KIMS hospital, Bangalore for higher treatment. At the time of accident, claimant-B.S.Deepak was minor, aged about 16 years and was a student of 10th standard. Due to the accidental injuries sustained, he could not attend the classes and also annual examination for the said year. On these grounds, as alleged in the claim petition, claimant has sought for compensation from the respondents.
3. In pursuance to service of notice, the appellant herein/owner of the vehicle appeared through counsel and also filed objection in detail resisting the claim petition. Though he has admitted that at the time of accident in question he was the owner of the said autorickshaw and it was having valid insurance with the 2nd respondent-National Insurance company, but has contended that the accident in question has not occurred in the manner as stated by the claimant.
4. The 2nd respondent-National Insurance Company has appeared through counsel and has filed objection in detail resisting the claim made by the claimant seeking compensation and also contended that accident has occurred when the claimant was traveling in the autorickshaw bearing No.KA11/4781. But, two days after the accident, father of the petitioner has hoisted a false complaint against the driver of the offending vehicle stating that the accident has occurred when the claimant was standing by the side of the road. It is contended by the 2nd respondent herein that at the time of accident in question, the driver of the aurorickshaw was not having valid and effective driving licence to drive the said vehicle. Accordingly, the 2nd respondent herein has sought for dismissal of the claim petition.
5. Based on the pleadings of the parties, the Tribunal has framed the issues. Claimant who was minor at the time of filing the claim petition has attained majority during pendency of the petition. He was examined as P.W.1 and his father Shivalingashetty was examined as P.W.2. On their behalf, the documents at Exs.P1 to P11 were got marked. On behalf of the respondents, 2nd respondent-Insurance Company examined its Branch Manager H.Shivamadaiah as R.W.1 and the owner of the vehicle was examined as R.W.2 and the documents as per Exhibits R1 to R4 were got marked.
6. On evaluating the evidence placed by the claimant and the respondents, the Tribunal has awarded compensation in a sum of Rs.1,80,000/- with 6% interest per annum from the date of petition till payment. Being aggrieved by the order of the Tribunal in fastening the entire liability on the owner of the vehicle, the appellant has come up before this Court in this appeal.
7. The learned counsel for the appellant has taken me through the entire evidence and also the documents placed on record. He submits that the claimant has failed to prove that the accident in question has occurred due to the rash and negligent driving of the driver of the vehicle in question and that he has hit the claimant and that he has not examined any independent witnesses in this regard. The tribunal has committed an error in holding that the offending autorickshaw was not having fitness certificate and that the driver of the offending auto rickshaw was not having valid driving licence to drive the goods auto rickshaw.
The Tribunal has failed to consider that the driver of the said vehicle was having valid licence to drive LMV transport goods and LMV transport-CAB and he was having valid driving licence for the period from 30.3.2007 to 29.3.2027. As such, when the vehicle in question was insured with the 2nd respondent, fixing liability on the appellant is erroneous and calls for interference.
8. Per-contra, learned counsel for the respondents taking me through the evidence and documents placed on record, submits that the Tribunal has rightly appreciated the evidence and has rightly come to the conclusion in fixing the liability on the owner of the offending vehicle which is involved in causing the accident and causing injuries to the claimant. Therefore, the said judgment and award does not call for interference.
9. In the background, it is relevant to refer to the ratio laid down by the Hon’ble Apex Court in the case of JAGDISH KUMAR SOOD Vs. UNITED INDIA INSURANCE CO. LTD., AND OTHERS reported in AIR 2018 SC 2906 wherein referring to Sections 149 and 2(21) of the Motor Vehicles Act, 1988, it is observed that, if the vehicle involved in accident is light goods vehicle and the driver possesses LMV licence, the order of Tribunal absolving the insurer to pay compensation is erroneous and requires to be set aside.
10. In the case on hand, there is no dispute that the accident in question has occurred on 8.2.2008 at about 10.30 a.m. wherein the injured had sustained accidental injuries and also taken treatment in the hospital and the vehicle involved in the said accident is an auto rickshaw bearing No.KA11/4781. Hence, these aspects do not require a detail discussion. However, the contention regarding the driver of the offending vehicle not having any valid licence for driving LMV transport goods vehicle, the Tribunal has erroneously considered the said aspect, fixing the liability on the appellant herein i.e., the owner of the offending auto rickshaw. Therefore, keeping in view the ratio of the Apex Court referred to above, the matter requires interference by this Court. Hence, I proceed to pass the following:
ORDER (i) Appeal preferred by the appellant is hereby allowed.
(ii) The liability is fastened on the 2nd respondent-National Insurance Company instead of the appellant herein, to pay the compensation with interest as determined by the Tribunal.
(iii) The amount in deposit in this appeal shall be transmitted to the concerned Tribunal for disbursal to the claimant/appellant herein, on proper identification.
SD/- JUDGE bkp