IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.4078 OF 2014 (MV) BETWEEN:
THE NEW INDIA ASSURANCE CO. LTD., BRANCH OFFICE, MANGALORE. THROUGH THIRD PARTY APPEAL HUB, M.G.ROAD, BANGALORE – 1.
BY DULY CONSTITUTED ATTORNEY.
... APPELLANT (BY SRI. K.SURYANARAYANA RAO, ADVOCATE) AND:
1. SUDHAKARA POOJARY, S/O CHANDAYYA POOJARY, AGED ABOUT 34 YEARS, R/O KOTESHWARA VILLAGE, KUNDAPURA TALUK, UDUPI DISTRICT.
2. BASTI SHANTHARAM SHENOY, S/O BASTI VASUDEVS SHENOY, AGED ABOUT 54 YEARS, R/O MAHKALI FARMS, SHAKTHI NAGAR, MANGALORE.
... RESPONDENTS (BY SRI MAHESH KIRAN SHETTY, ADVOCATE FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.02.2014 PASSED IN MVC NO.423/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MEMBER, ADDL. MACT, KUNDAPURA AWARDING COMPENSATION OF RS.3,61,100/- WITH INTEREST AT 6% P.A. ON RS.3,46,100/- FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THIS MFA COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Even though the appeal is listed in orders list, the appeal is heard on merits and disposed off by this order with the consent of the learned counsels for the parties.
2. The insurer is in appeal, aggrieved by the saddling of liability on it under the judgment and award dated 01/02/2014 in M.V.C.No.423/2012 on the file of the Senior Civil Judge and Member, Additional MACT, Kundapura.
3. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries suffered in a road traffic accident. It is stated that on 04-2-2012, when the claimant was riding his motorcycle bearing Reg.No.GA-15-AB-5770, Mahendra Bollero Pick-up vehicle bearing Reg.No.KA-19-C-9967 came in a rash and negligent manner and dashed to the claimant’s motorcycle. Due to which, the claimant fell down and sustained injuries. Immediately, he was shifted to Adarsha Hospital, Udupi, wherein he was treated as inpatient from 04-2-2012 to 20-2-2012. It is stated that the claimant was working as coolie and was earning Rs.12,000/- per month.
4. On service of summons, respondent No.1 appeared but was placed as exparte. Respondent No.2-insurer appeared before the Tribunal and filed its written statement denying the claim petition averments but admitted the issuance of policy in respect of Mahendra Bollero Pick-up vehicle bearing Reg.No.KA-19-C-9967. Further denied the rash and negligent driving of the driver of offending vehicle. It is also contended that the accident had taken place due to the negligence of the rider of the motorcycle himself. Further stated that the driver of the Mahendra Bollero Pick-up vehicle bearing Reg.No.KA-19-C-
9967 was not holding a valid and effective driving license as on the date of accident.
5. The claimant examined himself as PW-1 and Doctor as PW-2, apart from marking documents Exs.P-1 to P-42. Respondents examined RW-1 & RW-2 and got marked documents Exs.R-1 to R-5.
6. The Tribunal based on the material placed on record, awarded total compensation of Rs.3,61,100/- with interest at the rate of 6% per annum from the date of petition till the date of deposit, on the following heads:
Further, the Tribunal saddled the liability on appellant- Insurer. Aggrieved by the same, the insurer is before this Court in this appeal.
7. Heard the learned counsels for the parties and perused the material placed on record.
8. The only contention advanced by the learned counsel for the appellant-insurer is that the driver of the offending vehicle had no valid and effective driving license as on the date of accident. He further submits that the driver was driving the Goods Vehicle bearing Reg.No.KA-19-C-9967, which was a pick-up transport vehicle. The driver of the said vehicle had no license to drive transport vehicle, he had only LMV-Non Transport driving license. As such, saddling the liability on the insurer is wholly erroneous and perverse.
9. Per contra, learned counsel for respondent No.2 would submit that the contention raised by the learned counsel for the appellant is no more res-integra in view of the decision of the Hon’ble Supreme Court in the case of MUKUND DEWANGAN Vs. ORIENTAL INSURANCE CO.
LTD., reported in (2017) 14 SCC 663. Thus, prayed for dismissal of the appeal.
10. Having heard the learned counsels for the parties and on perusal of the material placed on record, the only point which arises for consideration in the facts and circumstances of the case is as to whether the Tribunal is justified in saddling the liability on appellant-insurer. Answer to the said point is in the affirmative for the following reasons.
11. The accident occurred on 04-2-2012 involving motorcycle bearing Reg.No.GA-15-AB-5770, Mahendra Bollero Pick-up vehicle bearing Reg.No.KA-19-C-9967 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The insurer is in appeal, aggrieved by the saddling of liability on it. The contention of the appellant-insurer is that the driver of the offending vehicle had no valid and effective driving license as on the date of accident. Ex.R2-‘B' Register Extract, Ex.R3-Driving licence is placed on record. The said documents would indicate that the driver of the offending vehicle had LMV-Non transport driving license but had no transport endorsement in the said license. The Hon’ble Supreme Court in the case of MUKUND DEWANGAN Vs. ORIENTAL INSURANCE CO. LTD., reported in (2017) 14 SCC 663, has held that the driver possessing LMV-Non transport license could also drive LMV-transport vehicle of the same category. In view of the said decision, the contention urged by the appellant- insurer would not survive for consideration. Hence, the appeal requires to be rejected. Accordingly, the appeal is rejected.
The amount in deposit be transmitted to the concerned Tribunal.
Sd/- JUDGE SMJ