IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO.651 OF 2012 C/W MFA NO.650 OF 2012 (M V) IN MFA NO.651 OF 2012 BETWEEN CHETHAN BOHRA, PARTNER, MAHAVEER BULK CARRIERS, NO.102A, HALARUR VILLAGE, VARTHUR HOBLI, KORAMANGALA, BANGALORE DISTRICT – 560 068.
(BY SRI. R.RAGHU, ADVOCATE) AND ... APPELLANT 1. MANU, S/O SHIVANNA, NOW AGED ABOUT 22 YEARS, R/A C/O NARAYANA RAJU, D.NO.20, 3RD MAIN, 3RD CROSS, CHOLARA PALYA, MAGADI ROAD, BANGALORE – 23.
2. THE MANAGER, THE NEW INDIA ASSURANCE CO. LTD., REGIONAL OFFICE, UNITY BUILDING, MISSION ROAD, BANGALORE – 27.
…RESPONDENTS (BY SRI. ASHOK N PATIL, ADVOCATE FOR R2; NOTICE TO R1 HELD SUFFICIENT VIDE ORDER DATED 27.10.2017) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.06.2011 PASSED IN MVC NO.3058/2010 ON THE FILE OF THE XVI ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, BANGALORE, AWARDING A COMPENSATION OF RS.15,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL PAYMENT.
IN MFA NO.650 OF 2012 BETWEEN CHETHAN BOHRA, PARTNER, MAHAVEER BULK CARRIERS, NO.102A, HALARUR VILLAGE, VARTHUR HOBLI, KORAMANGALA, BANGALORE DISTRICT – 560 068.
(BY SRI. R.RAGHU, ADVOCATE) ... APPELLANT AND 1. NAGESH, S/O CHIKKADODDAIAH, NOW AGED ABOUT 21 YEARS, R/A C/O NARAYANA RAJU, D.NO.20, 3RD MAIN, 3RD CROSS, CHOLARA PALYA, MAGADI ROAD, BANGALORE – 23.
2. THE NEW INDIA ASSURANCE CO. LTD., REGIONAL OFFICE, UNITY BUILDING, MISSION ROAD, BANGALORE – 27.
…RESPONDENTS (BY SRI. S.V.HEGDE MULKHAND, ADVOCATE FOR R2; NOTICE TO R1 HELD SUFFICIENT VIDE ORDER DATED 05.04.2014) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.06.2011 PASSED IN MVC NO.3057/2010 ON THE FILE OF THE XVI ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, BANGALORE, AWARDING A COMPENSATION OF RS.10,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL PAYMENT.
THESE MFAS COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Since these appeals arise out of a common judgment, they are heard together and are disposed of by this common order.
2. Heard the learned counsel for the appellant and the learned counsel for the respondent No.2 – Insurance Company in both the appeals and perused the records.
3. These appeals have been preferred by the appellant – owner of the offending vehicle challenging the impugned common judgment dated 14.06.2011 passed by the XVI Additional Judge, MACT, Bangalore seeking to set aside the impugned judgment and award made in MVC Nos.3057/2010 and 3058/2010.
4. The factual matrix of the appeals is that on 05.12.2009 when the respondent No.1 in MFA No.651/2012 was riding his Honda Activa bearing No.KA-02-HC-1531 along with respondent No.1 in MFA No.650/2012 as a pillion rider, when they reached near Rajarajeshwari hospital, at that time, driver of goods canter bearing No.KA-01-B-3302 came from behind in a rash and negligent manner and dashed against their vehicle, due to which first respondents in both the appeals namely, rider and pillion rider sustained grievous injuries. Both of them were shifted to nearby Rajarajeshwari Hospital wherein first aid treatment was given and then for further treatment referred to BGS Hospital, wherein they were treated as inpatient. Petitioners spent Rs.40,000/- each towards the medical and other expenses. Hence, they filed claim petitions before the Tribunal seeking compensation.
5. After service of notice, owner of the offending vehicle filed his written statement contending that the insurance policy was issued in respect of offending vehicle by second respondent and the policy was in force as on the date of accident. He also stated that as per the terms and conditions of the policy, he is not liable to pay the compensation to the petitioners. However, Insurance Company filed the written statement stating that the driver of the offending vehicle was not holding valid driving licence to drive the vehicle at the time of alleged accident. Hence, they prayed to dismiss the petition.
6. To substantiate their case, the claimants got examined the 1st claimant as PW1 and 2nd claimant as PW2 and got marked documents Exs.P1 to P14 and closed their side. The respondents did not choose to enter into the witness box nor adduced any evidence and got marked document as Ex.R1. The Tribunal after appreciation of the oral and documentary evidence and other material available on record, by assigning valid reasons, has answered the issue No.1 in the affirmative, issue No.2 as per the discussion and issue No.3 as per the final order and allowed the claim petition, granting compensation of Rs.10,000/- and Rs.15,000/- respectively, with interest at 6% p.a from the date of petition till realisation with a direction to the appellant being the owner of the offending vehicle to pay the compensation to the claimants in both the petitions within one month from the date of the order. Being aggrieved by the impugned judgment and award passed by the Tribunal, the appellant has presented these appeals.
7. Learned counsel appearing for the appellant submits that the Tribunal has grossly erred in not properly appreciating the evidence on record in a proper perspective. The Tribunal had clearly held that the rider of motorcycle did not posses valid and effective driving licence as on the date of accident. While having held so, the learned counsel vehemently contends that the Tribunal committed an error in fastening the liability on the owner of the goods canter, when in fact the driver of the offending goods canter possessed a valid and effective driving license as on the date of accident and the policy of insurance was in force as on the date of accident. Hence, question of violation of terms and conditions of the policy by the appellant does not arise. Therefore, learned counsel prays to set aside the judgment and award passed by the Tribunal in both the appeals.
8. Per contra, learned counsel for the second respondent in both the appeals submit that the rider of the two wheeler was not having D.L. at the time of accident. The same is recorded in paragraph No.15 of the impugned judgment, where the Tribunal after appreciating the evidence of PW.2 has stated that PW-2 – rider of the motor cycle himself has stated in his evidence that he was not having D.L. to ride two wheeler at the time of accident. Therefore, the second respondent is not liable to indemnify the award amount and the appellant being the owner of the offending vehicle, alone is liable to pay the compensation to the claimants. Hence, submits that the judgment and award passed by the tribunal does not call for any interference and prays for dismissal of the appeals 9. On a careful evaluation of the materials on record, as contended by learned counsel for appellant – owner of the offending vehicle, the Tribunal has committed an error in holding that the rider of the motorcycle did not possess valid and effective driving licence as on the date of accident, The Tribunal failed to understand the position of law, as the appellant is the owner of the goods canter and the driver of the said vehicle was having valid and effective driving licence as on the date of accident and the policy of insurance was in force as on the date of accident. Hence, question of violation of terms and conditions of the policy by the appellant does not arise. Therefore, the appeals preferred by the appellant – said to be the owners of the offending vehicle are found to be justifiable. Accordingly, I proceed to pass the following:
ORDER The appeals are allowed-in-part. Consequently, the common judgment and award dated 14.6.2011 rendered by the Tribunal in MVC Nos.3057/2010 and 3058/2010 is modified.
The liability saddled on the owner of the offending vehicle is set aside and the entire liability is fastened on Respondent – New India Assurance Co. Ltd.
The Respondent-insurance company shall deposit the entire compensation, with accrued interest, before the concerned Tribunal, within six weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be released to the claimants, on proper identification.
The amount in deposit, shall be released in favour of the appellants on proper identification. Office to draw the decree accordingly.
VMB Sd/- JUDGE