IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD M.F.A.No. 609 OF 2017(MV) BETWEEN:
The Divisional Manager The New India Assurance Co. Ltd. Opposite to Jagalur Mahalingappa Towers P.B.Road, Near KSRTC Bus Stand Chitradurga.
Rep. by the Manager New India Assurance Co. Ltd. Motor TP Appeals Hub 2nd Floor, Mahalakshmi Chambers 9/2, M.G.Road, Bengaluru-02. … Appellant (By Sri. M.Narayanappa, Advocate) AND:
1. Sri. Chandrashekaharappa @ Shekharappa S/o Ningappa Aged about 66 years Labour, R/o C.K. Pura Main Road Kelagote, Chitradurga-577501.
2. Sri. Thippeswamy T.B S/o Basavarajappa K.B Major, R/o Thanigekallu Doddaghatta Post Chitradurga Taluk and District-577501 (Owner of Royal Enfield Motor Cycle Bearing temporary regn.
No.KA-14-NTO23898/2014-15) ... Respondents (By Sri.R.Shashidhara, Advocate for R1: Sri. S.Manjunath, Advocate for R2) This MFA is filed under Section 173(1) of MV Act against the Judgment and Award dated:26.11.2016 passed in MVC No.346/2016 on the file of the II Additional Senior Civil Judge and Additional MACT-V, Chitradurga, awarding amount of Rs.61,100/- with interest at 7.5% P.A. from the date of petition till the date of deposit.
This appeal, coming on for hearing this day, the Court, delivered the following:
JUDGMENT This appeal is directed against the judgment and award dated 26.11.2016 passed by the II Additional Senior Civil Judge and Addl. MACT-V, Chitradurga in MVC No.346/2016, whereby the Tribunal has awarded a compensation of Rs.61,100/- with interest at 7.5% p.a. from the date of petition till the date of deposit.
2. The brief facts of the case are that on 26.05.2015 at about 4.30 p.m. claimant was proceeding towards Hosadurga Bus stand. In front of Guruprasad Hotel, on left side of the road, the rider of Royal Enfield Motor Cycle TP bearing No.KA- 14/NTO23898/2014-15 rode the same in a rash and negligent manner with high speed and dashed to the claimant. As a result of the accident, claimant fell down and sustained simple and grievous injuries to his right leg, right knee joint and tenderness and swelling all over his body. Immediately he was shifted to Government Hospital, Hosadurga wherein, after first aid, he was shifted to District Hospital, Chitradurga wherein it is confirmed fracture of tibia and fibula and he has undergone surgery by inserting CRIF nails and plates to his right leg. He was inpatient in the hospital from 26.05.2015 to 11.06.2015. Immediately after recovering from the injuries, he has filed a claim petition before the MACT, Chitradurga in MVC No.346/2016.
3. To establish his case, claimant examined himself as PW1 and got marked 9 documents. On the other hand, on behalf of the Insurance Company, official of the Insurance Company was examined as RW1 and got marked 5 documents. On appreciation of the oral and documentary evidence, the Tribunal has granted a compensation of Rs.61,100/- with interest at 7.5% and directed owner of the vehicle and Insurance Company jointly to pay the compensation. Being aggrieved by the same, Insurance Company has filed this appeal.
4. Sri M.Narayanappa, learned counsel for the appellant submits that as on the date of the accident the driver of the offending vehicle was not having any driving licence. Even in the charge sheet as per Ex.P6 it is clearly mentioned that the rider of the motor vehicle was not having driving licnece and without considering this aspect of the matter the Tribunal has wrongly fastened the liability on the Insurance Company. Hence, he sought for allowing the appeal.
5. Per contra, Sri R.Shashidhara, learned counsel for the claimant submits that the Hon’ble Supreme Court in the case of PAPPU AND OTHERS vs. VINOD KUMAR LAMBA AND ANOTHER reported in AIR 2018 SC 592 has held that if the driver of the offending vehicle was not having a valid driving licence, the Insurance Company has to first pay the compensation and then recover the same from the owner of the vehicle. In view of that, he submitted that the appeal has to be dismissed.
6. Heard learned counsel for the parties and perused the records.
7. It is not in dispute that due to the accident that occurred on 26.05.2015 involving Royal Enfield motor cycle TP Reg. No.KA-14/NTO23898/2014-15 the claimant has suffered the injuries. From the charge sheet which is marked as Ex.P6 it is clear that the driver of the offending vehicle was not possessing the driving licence. Under these circumstances, the Tribunal is not justified in fastening liability on the Insurance Company. But in view of the law laid down by the Hon’ble Supreme Court in the case of PAPPU (supra), the Insurance Company has to pay the compensation with liberty to recover the same from the owner of the vehicle.
With the above observations, the appeal stands disposed of.
Insurance Company is directed to pay the compensation to the claimant within four weeks from the date of the receipt of a copy of this order with liberty to recover the same from the owner of the vehicle.
The amount in deposit before this Court shall be transmitted to the Tribunal, forthwith.
Sd/- JUDGE Cm/-