IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE M.F.A. NO.2445 OF 2011 (MV) BETWEEN:
MR. MOOSA SHAFI K S/O IDDIN KUNHI MAJOR, ARIMALA HOUSE BADAJE POST HOUSE NO.7/335 VIA MANJESHWAR KASARGOD DIST KERALA-671121.
(BY MR. G. RAVISHANKAR SHASTRY, ADV.) AND:
1. SMT. BEEPATHIMA W/O LATE IDDIN KUNHI AGED ABOUT 44 YEARS C/O HASANABBA PAKKALADKA HOUSE BAJAL POST, MANGALORE D.K.DISTRICT – 575004.
2. MR. NEERAJ S/O BALAKRISHNA ADULT KODIBAIL HOUSE XI/339, P.O. UPPALA KASARGOD DISTRICT KERALA – 671322.
3. THE NATIONAL INSURANCE CO. LTD., III FLOOR, HIGH LANE PLAZA M.G.ROAD, KASARGOD DISTRICT KERALA-671121 … APPELLANT REPRESENTED BY ITS BRANCH MANAGER.
4. THE NATIONAL INSURANCE CO. LTD., HIGH LANE PLAZA, M.G.ROAD KASARGOD, KERALA-671121 REPRESENTED BY ITS BRANCH MANAGER.
(BY SMT. H.R. RENUKA, ADV. FOR R1 TO R4) - - -
… RESPONDENTS THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAISNT THE JUDGMENT AND AWARD DATED 27.05.2010 PASSED IN MVC NO.241/2007 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE, MEMBER, MACT-II, MANGALORE D.K., AWARDING A COMPENSATION OF RS.3,28,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THIS APPEAL COMING ON FOR HEARING GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.G.Ravishankar Shastry, learned counsel for the appellant.
Smt.H.R.Renuka, learned counsel for the respondent.
2. This appeal under Section 173 of the Motor Vehicles Act 1988 (hereinafter referred to as ‘the Act’ for short) is preferred by the appellant who is the owner of the vehicle involved in an accident against the award dated 27.05.2010 passed by the tribunal by which the respondent Nos.3 and 4 viz., the insurance company has been exonerated of its liability to indemnify the appellant.
3. Facts giving rise to filing of this appeal briefly stated are that on 08.01.2007, deceased Imran was riding motor cycle bearing registration No.KL 14 D 5434, at that time, a lorry came from the opposite side at a high speed which was driven in a rash and negligent manner and dashed against the motor cycle. As a result of the accident, the rider as well as the pillion rider of the motor cycle sustained injuries and eventually the deceased Imran succumbed to injuries on 18.01.2007. Thereafter, respondent No.1 filed a petition under Section 166 of the Act claiming compensation to the tune of Rs.7 Lakhs on account of death of her son. The respondent Nos.3 and 4 filed a written statement in which inter alia it was pleaded that deceased had no valid driving licence at the time of the accident and the death took place due to rash and negligent driving of the deceased himself. It was further pleaded that accident had taken place due to the negligence of drivers of both the vehicles.
4. The Tribunal in view of the pleadings of the parties framed issues and thereafter recorded evidence. The Tribunal vide award dated 27.05.2010 inter alia held that accident took place due to contributory negligence. It was further held that deceased who was driving the vehicle had no valid and effective licence and absolved the insurance company of its liability to pay the compensation. The Tribunal awarded a sum of RS.3,28,000/- by way of compensation along with interest at the rate of 6% p.a. Being aggrieved, the appellant who is the owner of the bike in question has filed this appeal.
5. Learned counsel for the appellant submitted that the onus to prove the plea taken by respondent Nos.3 and 4 in their written statement was on them by leading the evidence. However, the respondent Nos.3 and 4 did not lead any evidence to prove the pleas taken by them viz., with regard to the contributory negligence and the fact that the deceased had no valid driving licence. Therefore, the Tribunal grossly erred in exonerating the insurance company from its liability to indemnify the insured. On the other hand, learned counsel for the respondent Nos.3 and 4 has invited the attention of this Court to paragraph 17 of the award and has supported the findings recorded by the Tribunal. However, it was admitted by learned counsel for respondent Nos.3 and 4 that the aforesaid respondents did not lead any evidence before the Tribunal.
6. I have considered the submissions made by learned counsel for the parties and have perused the record. The Supreme Court in ‘RUKMANI AND OTHERS VS. NEW INDIA ASSURANCE CO. AND OTHERS’, 1999 AIR SCW 4712 has held that if the insurance company contends that the driver of the vehicle had no valid licence then the burden is upon it to establish the same by leading evidence. The aforesaid decision was followed by a Bench of this Court in ‘C.BALAKRISHNA VS. C.MUNIRAJU AND OTHERS LAWS’, (KAR) 2016 3 198. In the backdrop of the aforesaid well settled legal position, paragraph 17 of the award may be reproduced, which reads as under:
17. Further, the petitioners have not stated that the motor cycle was going on its left side. Further, it is not stated in the affidavit and n the claim petition that the lorry was coming on the wrong side. But in the evidence at para 12 during the course of the cross-examination of PW2 Sameer admitted that the accident was taken place on the right side of the road Arimala to Hosangady. Therefore, it shows the fact that the deceased Imran has taken the motor cycle towards the right side, that means to the wrong side of the road. Further, as can be seen from the documentary evidence Ex.P23, which is the penalty receipt issued by the police and R3 Moosa Saffi who is the owner of the motor cycle had paid the fine amount of Rs.500/- on account of allowing a person to drive the vehicle without driving licence. In the said receipt Ex.R3 the motor cycle number is also stated, which is tallied in the petition. Therefore, it goes to prove the fact that the 3rd respondent who is the elder brother of the deceased Imran allowed the deceased Imran to drive the motor cycle who is not holding the driving licence. Therefore, on careful analysis of the entire evidence on record, both oral and documentary, it is proved that the deceased Imran has also contributed his rashness and negligence towards the accident, since from the discussion above stated, the deceased Imran has taken the motor cycle to the wrong side of the road and due to that both the lorry and the motor cycle collided to each other. Therefore, I hold that the deceased Imran has also contributed at least 50% negligence. Further, it fortifies the fact that the deceased Imran did not have driving licence as can be evidenced from Ex.R3 penalty receipt. Therefore, this Court is of the opinion that both the lorry driver and the deceased Imran who is rider of the motor cycle have contributed each 50% negligence and rashness towards the accident. Accordingly, I answer issue Nos.1 and 2 in both the petitions partly in the affirmative and partly in the negative.
7. Thus, from close scrutiny of para 17 it is evident that the evidence on record is not sufficient to discharge the burden which was cast upon the insurance company. Ex.R3 is the penalty receipt dated 31.01.2007 whereas the accident has taken place on 08.01.2007. the aforesaid penalty receipt only mentions the number of the bike and has no reference to the accident which took place on 08.01.2007. From Ex.R3 no inference can be drawn that the deceased did not have the valid driving licence. Similarly, from the stray sentence in the cross-examination of PW2, Sameer it could not be inferred by the Tribunal that the accident was caused due to contributory negligence and the tribunal could not have arrived at the finding that the deceased was negligent to the extent of 50% in the accident. The impugned award in so far as it exonerates the insurance company and insofar as it pertains to the finding with regard to the contributory negligence of the deceased to the extent of 50% is hereby quashed and the respondent Nos.3 and 4 are held to indemnify the insured and pay the amount of compensation awarded by the claims tribunal to the claimant viz., respondent No.1. To the aforesaid extent the award passed by the claims tribunal is modified.
Accordingly, the appeal is disposed of.
Sd/- JUDGE SS