IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF MAY, 2019 BEFORE THE HON' BLE MR. JUSTICE K.SOMASHEKAR MFA NO. 11178 OF 2012 (MV) BETWEEN M/s ICICI Lombard General Insurance Company Ltd., ICICI bank towers, Bandra Kurla Complex Mumbai-400015.
Now represented by its Legal Manager M/s ICICI Lombard General Insurance Company Ltd., Regional office, No.98 SVR Complex, 2nd Floor Hosur Main Road Madiwala, Bangalore.
... Appellant (By Sri. B C Shivanne Gowda, Advocate) AND 1. Shivaprasad T S S/o Thippeswamy Now aged about 24 years Student R/o Oddinakoppa Village Shivamogga.
2. Aslam Pasha S/o Gowspeer Aged about 43 years R/o Tank Mohalla 4th cross, Shimoga.
... Respondents (By Sri. Showri H R ., Adv., for Respondent No.1; Respondent No.2 is served) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 22.05.2012 passed in MVC No. 497/2009 on the file of the Principal Senior Civil Judge, MACT, Shimoga, awarding a compensation of Rs. 1,00,000/- with interest @ 6% p.a. from the date of petition till deposit.
This MFA coming on for Admission this day, the court delivered the following:
JUDGMENT Though this appeal is listed for admission, with the consent of learned counsel on both sides, the matter is taken up for final disposal.
2. Heard learned counsel for the appellant. There is no representation for respondent No.1. Whereas respondent No.2 is served unrepresented.
3. This appeal is preferred by the appellant / insurance company against the judgment and award dated 22.05.2012 rendered by the Tribunal in MVC No.497/2009 challenging the liability fastened on it.
4. The factual matrix of the appeal is as under:
It is stated in the claim petition that on 13.6.2009 at about 8.00 p.m when the petitioner with one Ayodyalal left Sahyadri College as rider and pillion rider in cycle slowly, a luggage auto bearing Reg.No.KA-17-A-3545 came from MRS stop towards Shimoga City in a rash and negligence manner and hit the cycle from backside. Thereby the petitioner sustained injury and he was hospitalized and spend substantial amount towards the treatment. Hence, the claim petition was preferred before the Tribunal seeking compensation.
5. On service of notice, respondents entered appearance and filed objection statement denying the petition averments.
6. Based upon the pleadings, the Tribunal framed the issues. In order to prove the claim, the petitioner was examined as PW.1 and got examined PW.2 – Doctor and got marked documents as per Exs.P1 to P37. On behalf of respondents, RW.1 was examined and Exs.R1 to 3 were marked. The Tribunal after hearing arguments of learned counsel on both sides, passed the impugned judgment, awarding global compensation of Rs.1,00,000/- with interest @ 6% p.a. from the date of petition till deposit. The insurance company has preferred this appeal challenging the liability fastened on it to pay the compensation, by urging various grounds.
7. Learned counsel for the appellant contends that the Tribunal has erred in fastening the liability and hence, the judgment and award passed by the Tribunal is liable to be set-aside. Further, it is contended that the Tribunal failed to notice that the insurer is not liable to pay any compensation as in the case on hand, the driver of the offending vehicle was authorised to drive only Light Motor Vehicle whereas the vehicle involved in the accident was transport vehicle i.e., Goods Auto Rickshaw and for that the driver was not having effective license to drive three wheeler auto rickshaw. Further, it is contended that the Tribunal without any basis, has erred in granting the global compensation of Rs.1,00,000/- and the same is liable to be set-aside. On all these grounds, learned counsel for the appellant prays for allowing the appeal.
8. Though notice has been served, respondent No.2 remained unrepresented and there is no representation for respondent No.1.
9. Learned counsel for the appellant submits that the main ground for challenging the impugned award is that the driver of offending vehicle had a license to drive Light Motor Vehicle, but he was driving a transport vehicle i.e., the goods auto rickshaw, without having necessary endorsement in the Driving License. However, the said issue has been dealt with by the Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Co.Ltd., (2017) 14 SCC 663 wherein it is held that the absence of transport endorsement per se cannot be a ground to absolve the insurer from the award liability and the MACT could not have let the insurer go free even in the absence of transport endorsement on the driving license of the driver of the offending vehicle. Therefore, the present case is clearly covered by the judgment of Mukund Dewangan as stated supra. Since, the issued raised by the learned counsel is no longer resintegra in the light of the above said judgment, I do not find any illegality or infirmity in the impugned award.
10. Further, the contention of the learned counsel for the appellant is that the global compensation of Rs.1,00,000/- awarded by the Tribunal is on higher side and without any basis and the same is liable to be scaled down. Having regard to the oral and documentary evidence available on record and the nature of injuries suffered by the injured, I do not find any justifiable ground to interfere with the impugned judgment. The compensation awarded by the Tribunal is just and proper and does not call for any interference. For the aforesaid reasons and findings, I proceed to pass the following:
ORDER Appeal preferred by the insurance company is hereby dismissed. Consequently, the impugned judgment and award rendered by the Tribunal in MVC No.497/2009 dated 22.05.2012 is hereby confirmed.
The amount in deposit, if any, in this appeal shall be transmitted to the Tribunal, forthwith.
Sd/- JUDGE DKB