IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ M.F.A. NO.1098 OF 2014 [MV] BETWEEN C.V. RAGHU, S/O. C.P. VISHWANATH SETTY, AGE ABOUT 45 YEARS, R/O. SRI. KARTHIK MOTORS, N.T. ROAD, SHIMOGA CITY-577 201.
(BY SRI. S.V. PRAKASH, ADVOCATE) AND 1. SMT. GOWRAMMA, W/O. SHEKARAPPA, AGE 48 YEARS, OCC:HOMEMAKER, R/O. 100 FT. ROAD, VINOBHA NAGAR, SHIMOGA CITY-577 203.
2. CHAMAN ALI, S/O. WALI BASHA, AGE 28 YEARS, OCC:DRIVER, R/O. KERE ANGALA, 2ND CROSS, MILAGHATTA, SHIMOGA CITY-577 201.
3. NEW INDIA ASSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, ... APPELLANT MALLAPA COMPLEX, B.H. ROAD, SHIMOGA CITY-577 201. REPRESENTED BY ITS BRANCH MANAGER.
... RESPONDENTS [BY SRI. K.S. LAKSHMINARASAPPA FOR SRI. B.C. SEETHARAMA RAO, ADVOCATES FOR R-3, NOTICE TO R-1 IS HELD SUFFICIENT VIDE COURT ORDER 22.11.2017, R-2 SERVED] THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:17.03.2012 PASSED IN MVC NO.551/2010 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-III & ADDL. MACT-IV, SHIVAMOGGA, AWARDING A COMPENSATION OF RS.2,11,108/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL ITS REALISATION OR DEPOSIT.
* * * THIS MFA COMING ON FOR ADMISSION, THIS DAY THE COURT DELIVERED THE FOLLOWING:
ORDER Though this appeal is listed for admission, the same is taken up for final disposal with the consent of both the learned counsel.
This appeal is filed by Respondent No.1 before the Tribunal i.e., the RC owner of the luggage auto bearing registration No.KA-14/A-1661, challenging the liability fixed on him, while passing the judgment and award in MVC No.551/2010 on the file of the Presiding Officer, Fast Track Court – III, Shivamogga.
2. I have heard the learned counsel appearing for the appellant and the learned counsel for respondent No.3- Insurance Company. Notice to Respondent No.1 is held sufficient. Respondent No.2 though served has remained unrepresented.
3. It is the case of the claimant that on 22.12.2008 at about 12.15 p.m., when she was proceeding in a Honda Activa bearing registration No.KA-05/ES-2493, which was ridden by her son Srinivasa and when they reached in front of a furniture shop near Channel at Sharavathi Nagar, Shivamogga City, the driver of a luggage auto bearing registration No.KA-14/A-1661 loaded with pipes, drove the same in a rash and negligent manner in a reverse direction without observing the traffic rules and dashed against the moped in which they were traveling. On account of the said accident, the claimant sustained injuries all over her body and also sustained fracture of right tibial plateau and fracture of left supracondylar fracture of femur etc.
4. The Tribunal awarded a total compensation of Rs.2,11,108/- with interest at 6% per annum, however, held that there was no valid and effective driving license for the driver of the luggage auto bearing registration No.KA-14/A-1661 to drive the said vehicle. Hence, exonerated the Insurance Company from paying the compensation and fixed the liability on the owner of the vehicle.
5. The learned counsel Sri. S.V. Prakash appearing for the appellant would submit that, in view of the judgment of the Hon’ble Apex Court in the case of Mukund Dewangan V/s. Oriental Insurance Company reported in AIR 2017(6) SCW 3668, The insurer is liable to pay the compensation as the driver of the offending vehicle was holding a driving license to drive Light Motor Vehicle. Accordingly he prays to allow the appeal.
6. As per the decision of the Hon’ble Apex Court as noted supra, no separate Endorsement is required to drive the type of vehicle which is involved in the accident, since the driver of the vehicle is holding a driving license to drive an LMV (non- transport). He is also entitled to drive the vehicle, which is involved in the accident. The said position of law is not disputed.
7. As the question involved in this appeal is already decided by the Hon‘ble Apex Court in the decision noted supra, the finding of the Tribunal thereby fixing the liability on the owner of the luggage auto bearing Registration No.KA-14/A-1661 i.e., the appellant herein is not proper. Accordingly, I pass the following:
ORDER The appeal is allowed.
The judgment and award dated 17.03.2012 passed by the Presiding Officer, Fast Track Court – III, Shivamogga in MVC No.551/2010 thereby fixing the liability on the 1st and 2nd respondent before the Tribunal is hereby set aside. It is held that the 1st and 3rd respondents before the Tribunal are jointly and severally liable to pay the compensation awarded therein.
Respondent No.3-Insurance Company shall deposit the entire amount awarded by the Tribunal within four weeks from the date of receipt of a copy of this judgment.
The amount in deposit shall be refunded to the appellant.
Sd/- JUDGE snc