IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B. SREENIVASE GOWDA MFA No.6572/2009 (MV) BETWEEN:
NATIONAL INSURANCE CO. LTD., MANJUNATH COMPLEX, BUS STAND ROAD, HASSAN, REPRESENTED BY ITS THE DEPUTY MANAGER, NATIONAL INSURANCE CO. LTD., BANGALORE REGIONAL OFFICE, SUBHARAM COMPLEX, NO.144, M.G.ROAD, BANGALORE – 1.
(BY SRI.M.U.POONACHA, ADV.) AND:
1. SRI.BOREGOWDA, S/O. LATE GANGADHAR GOWDA, AGED ABOUT 53 YEARS, R/AT MUDLAHIPE GRAM, KASABA HOBLI, HOLENARASIPURA TALUK.
2. SRI.JAGANNATHA, S/O. ERAPPA, MAJOR, R/AT NAGARANAHALLI GRAM, HALLIMYSORE HOBLI, HOLENARASIPURA TALUK.
(BY SMT.A.R.SHARADAMBA, ADV. FOR R1.
... APPELLANT ... RESPONDENTS SRI.MAHANTESH.S.HOSMATH, ADV. FOR R2) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:8.5.2009 PASSED IN MVC NO.343/2006 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) AND ADDL. CJM AND MACT, HOLENARASIPURA, AWARDING A COMPENSATION OF RS.37,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T This appeal is by the insurer of the offending vehicle challenging the judgment and award passed by the Tribunal on the ground of liability.
2. Heard the learned counsel for the parties.
Perused the judgment and award passed by the Tribunal including its records.
3. For the sake of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal.
4. As there is no dispute regarding certain injuries sustained by the claimant in a road traffic accident occurred on 13.06.2006 due to the rash and negligent riding of a Motor Cycle bearing registration No.KA-13-R-
1064 by its rider and quantum of compensation awarded by the Tribunal, the only point remains for consideration in the appeal is:
“Whether the Tribunal was justified in fastening the liability on the insurer of the offending motor cycle?”
5. Sri.M.U.Poonacha, learned counsel for the insurer of the offending vehicle submits that though it is clear from the material evidence on record that the rider of the offending vehicle had only Learner’s License and did not have a valid and effective driving license to ride the offending motor cycle at the time of accident, the Tribunal without considering the same has committed an error in fastening the liability on the appellant. Further, learned counsel submits that the rider who had only Learner’s License and having not satisfied with the ingredients of Rule 3 of the Central Motor Vehicle Rules, 1989 was not competent to ride the two wheeler, the Tribunal without considering this has committed an error in fastening the liability on the appellant-insurer of the offending vehicle. In support of his submission, he has relied upon a judgment of the Hon’ble Supreme Court in the case of New India Assurance Co. Ltd. vs. Mandar Madhav Tambe & others decided on 14.12.1995. With the above grounds, learned counsel prays for allowing the appeal by modifying the judgment and award passed by the Tribunal on liability.
6. Smt.A.R.Sharadamba, the learned counsel appearing for respondent No.1 submits as per the report submitted by the Investigator of the appellant-Insurance Company, there is reference to driving license of the rider of the offending vehicle and it is mentioned as driving license No.KA-09-LL-22958/04/05 and Learner’s License is written by hand. Learned counsel submits that the Tribunal considering this aspect of the matter in detail in Paragraph No.10 of its judgment was justified in fastening the liability on the insurer of the vehicle. She further submits that the judgment and award passed by the Tribunal does not call for interference on any ground including on the ground of liability.
7. She submits that the instant case is squarely covered by the judgment of the Hon’ble Supreme Court in the case of ‘National Insurance Co. Ltd., vs. Swarna Singh and others’ reported in ‘(2004) 3 SCC 297’ against the insurer-appellant.
8. Sri.M.U.Poonacha, learned counsel for the appellant by way of reply submits in the charge sheet police have mentioned that the rider of the offending vehicle has violated the provision of Section 3 r/w 181 of Motor Vehicles Act, which would clearly show that he did not have a valid and effective driving license as on the date of the accident.
9. The case of the claimant is that the accident occurred due to rash and negligent riding of the offending two wheeler by its rider and vehicle was insured with the appellant-insurer and policy was in force as on the date of accident and therefore, the appellant-insurer is liable to indemnify the owner of the vehicle and pay the compensation awarded by the Tribunal to the claimant.
10. Finding of the Tribunal that accident had occurred due to the rash and negligent riding of the offending vehicle by its rider is not challenged and it is also not the case of the insurer that the offending vehicle was not insured with them and policy was not in force as on the date of accident. Then, the only point arises for consideration in this appeal is:
‘Whether rider had a valid and effective driving license to ride the offending vehicle and whether non-possessing of a valid and effective driving license by the rider of the offending two wheeler would absolve the insurer from their liability?’ 11. The appellant-insurer in support of his contention that the rider of offending two wheeler did not possess a valid and effective driving license to ride the offending vehicle as on the date of accident has examined an official of the Insurance Company as RW.1 and produced the Investigation Report submitted by an Investigator attached to the Insurance Company and Insurance policy of the vehicle as Exs.R2 and R3 respectively. As already stated, perusal of Ex.P3 insurance policy would show that the vehicle was insured and policy was in force as on the date of the accident.
Perusal of Ex.R2-Investigaiton Report submitted by the Investigator of the Insurance Company would show that there is reference to the driving license of the rider of the offending two wheeler and it is mentioned as driving license No.KA-09-LL-22958/04/05 and Learner’s License was written by hand. The insurer has not summoned the RTO to support their contention that the rider did not possess a valid and effective driving license and he possessed only Learner’s License. No material is produced to show that rider of the offending two wheeler does not satisfy the requirement of Rule 3 of the Central Motor Vehicle Rules.
12. In the instant case, since, the appellant has failed to establish that the rider did not have a valid and effective driving license to ride the offending vehicle, even the request made by the learned counsel for the appellant that pay and recovery may be ordered cannot be granted.
13. Accordingly, the appeal is dismissed as devoid of merits. The amount in deposit is ordered to be transmitted to the Tribunal for disbursement to the claimant.
In view of dismissal of the appeal, Mis.Civil.No.3059/2010 does not survive for consideration and it is rejected accordingly.
SD/- JUDGE VM