IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF MARCH, 2019 BEFORE THE HON' BLE MR.JUSTICE R. DEVDAS M.F.A. NO.8079/2010 (MV) C/W M.F.A. NOs.8078/2010, 2084/2011 (MV) IN M.F.A. NO.8079/2010 BETWEEN THE ORIENTAL INSURANCE CO. LTD OLD BRANCH OFFICE, P.B.NO.210 MYSORE THROUGH ITS REGIONAL OFFICE # 44/45, LEO SHOPPING COMPLEX RESIDENCY ROAD, BANGALORE-560025 REP BY ITS DEPUTY MANAGER SMT. SUDHA GANESH.
... APPELLANT (BY SRI. B. C. SEETHARAMA RAO, ADVOCATE) AND 1. SRI MAHESHA AGED ABOUT 38 YEARS S/O OMALLEGOWDA R/OF CHANDAHALLI T.NARASIPURA TALUK MYSORE DISTRICT.
2. SRI MADESHA, DRIVER AGED ABOUT 41 YEARS S/O SIDDEGOWDA RESIDING AT NO.7/151 OLD KURUBAGERI KOLLEGAL TOWN CHAMARAJANAGAR DISTRICT.
3. MR. JABEER AHAMED, MAJOR S/O LATE WAZEER AHAMED R/A NO.132, TIPPU HOUSE UMERKAYOOM ROAD, TILAK NAGAR BANNIMANTAPA EXTENSION MYSORE.
(OWNER OF GOODS TEMPO NO.KA 09/1595) ... RESPONDENTS (BY SRI M. R. SWAROOP, ADVOCATE FOR SRI N. DEVARAJ, ADVOCATE FOR R1;
SRI H. V SUBRAMANYA, ADVOCATE FOR R3; VIDE ORDER DATED 21/10/2013 R2 IS HELD SUFFICIENT) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:05.06.2010 PASSED IN MVC NO.49/2007 ON THE FILE OF THE CIVIL JUDGE (SR.DN), T.NARASIPURA, AWARDING A COMPENSATION OF RS.1,98,935/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN M.F.A. NO.8078/2010 BETWEEN THE ORIENTAL INSURANCE CO. LTD OLD BRANCH OFFICE, P.B.NO.210 MYSORE THROUGH ITS REGIONAL OFFICE # 44/45, LEO SHOPPING COMPLEX RESIDENCY ROAD, BANGALORE-560025 REP BY ITS DEPUTY MANAGER SMT. SUDHA GANESH.
... APPELLANT (BY SRI B. C. SEETHARAMA RAO, ADVOCATE) AND 1. SRI LINGA NAIKA @ NINGA NAIKA AGED ABOUT 63 YEARS, S/O LATE KEMPANAIKA HOSAPURA VILLAGE, MUGUR HOBLI T. NARASIPURA TALUK.
2. SRI MADESHA, DRIVER AGED ABOUT 41 YEARS S/O SIDDEGOWDA RESIDING AT NO.7/151 OLD KURUBAGERI KOLLEGAL TOWN CHAMARAJANAGAR DISTRICT.
3. MR. JABEER AHAMED, MAJOR S/O LATE WAZEER AHAMED R/A NO.132, TIPPU HOUSE UMERKAYOOM ROAD, TILAK NAGAR BANNIMANTAPA EXTENSION MYSORE.
(OWNER OF GOODS TEMPO NO.KA 09/1595) ... RESPONDENTS (BY SRI H V SUBRAMANYA, ADVOCATE FOR R3; VIDE ORDER DATED 17/11/2017 R2 IS HELD SUFFICIENT, R1 SERVED) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:05.06.2010 PASSED IN MVC NO.47/2007 ON THE FILE OF CIVIL JUDGE (SR.DN.), T.NARASIPURA, AWARDING A COMPENSATION OF RS.16,290/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALISATION.
IN M.F.A. NO.2084/2011 BETWEEN THE ORIENTAL INSURANCE CO., LTD. OLD BRANCH OFFICE, P.B. NO. 210 MYSORE THROUGH ITS REGIONAL OFFICE # 44/45, LEO SHOPPING COMPLEX RESIDENCY ROAD BANGALORE 560025 REP. BY ITS DEPUTY MANAGER SRI. K. GOVINDARAJAN.
... APPELLANT (BY SRI B. C. SEETHARAMA RAO, ADVOCATE) AND 1. SRI SUNDRA AGED ABOUT 41 YEARS S/O MALLEGOWDA R/AT NO.192, BAZAR ROAD NAJARBAD, MYSORE.
2. MR. JABEER AHAMED, MAJOR S/O LATE WAZEER AHAMED R/A NO.132, TIPPU HOUSE UMERKAYOOM ROAD, TILAK NAGAR BANNIMANTAPA EXTENSION MYSORE.
(OWNER OF GOODS TEMPO NO.KA 09/1595) ... RESPONDENTS (BY SRI P. NATARAJU, ADVOCATE FOR R1;
SRI H. V. SUBRAMANYA, ADVOCATE FOR R2) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:3.12.2010 PASSED IN MVC NO.1054/2009(OLD NO.272/2008) ON THE FILE OF III ADDITIONAL DISTRICT JUDGE AND MACT, MYSORE, AWARDING A COMPENSATION OF Rs.82,600/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION.
THESE MFAs COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
COMMON JUDGMENT R. DEVDAS J., (ORAL):
Since, the occupants of the vehicle, who were injured had filed separate claim petitions against the common insurer and the owner of the vehicle and the insurer has questioned the judgment and award in all the three claim petitions, these three appeals are heard and disposed of by this common judgment.
2. The insurer is before this Court calling in question the judgment and award dated 05.06.2010, passed by the Civil Judge (Senior Division) at T.Narasipura in MVC No.49/2007 & 47/2007 and dated 03.12.2010, passed by the III Additional District Judge & Member, MACT, Mysuru (in short “the Tribunal” for brevity) in M.V.C.No.1054/2009 (Old No.272/2008), respectively. It is noticed that two of the claimants approached the Tribunal at T.Narasipura and one approached the Tribunal at Mysuru.
3. The facts of the case may not be necessary since, the main ground on which the insurer is before this Court is that inspite of an Issue having been raised by the Tribunal as to whether the Insurer proves that the Driver was not having valid and effective D.L. as on the date of the accident and hence, he is not liable to pay compensation?, and the owner of the vehicle having entered appearance, he has not produced the Driving License of the person driving the vehicle at the time of the accident.
4. The learned counsel for the appellant submits that inspite of the said issue having been raised and the insurer contending in the written statement that the person driving the vehicle did not possess any Driving License, the Tribunal, on the ground that it was the responsible of the insurer to issue notice under Order 12 Rule 8 of CPC, called upon the owner of the vehicle or Driver, as the case may be, to produce the Driving License. It is also noticed that the Tribunal observed that a notice at Ex.R4 was issued by the Insurance Company prior to filing of the written statement. In the said notice it was contended that the Insurance Company is not in a position to trace whether the vehicle said to have been involved in the accident was insured with the Insurance Company. Therefore, the Insurer called upon the owner of the vehicle to produce all the relevant documents including the Registration Certificate, Tax card, D.L., Permit and F.C. Nevertheless, the Tribunal proceeded to hold that the insurer has failed to prove that the person driving the vehicle at the time of the accident did not have any Driving License.
5. Learned counsel for respondent No.3, owner of the vehicle submits that Sri.Madesha S/o Siddegowda- respondent No.2 herein was the driver of the vehicle and he held a valid Driving License to drive the vehicle in question. However, since he had lost the Driving License, a duplicate Driving License has been issued, but the same was not produced before the Tribunal. Learned counsel submits that if an opportunity is given to the owner of the vehicle and driver, the Driving License will be produced before the Tribunal.
6. In the light of the above, this Court is of the opinion that the impugned judgments and awards require to be quashed and set-aside, while affording an opportunity to the respondent-owner of the vehicle and driver to produce the Driving License before the Tribunals.
7. Accordingly, the appeals are allowed in part.
The impugned Judgment and Awards dated 05.06.2010, passed by the Civil Judge (Senior Division) at T.Narasipura, in MVC No.49/2007 & 47/2007 and the Award dated 03.12.2010, passed by the III Additional District Judge & Member, MACT, Mysuru in M.V.C. No.1054/2009 (Old No.272/2008) are hereby quashed and set-aside.
The parties are hereby directed to appear before the respective Tribunals, viz., the Civil Judge (Senior Division) at T.Narasipura, and III Additional District Judge & Member, MACT, Mysuru, on 01.04.2019, at 11.00.a.m, without further notice.
The Tribunals shall afford an opportunity to the owner of the vehicle and driver to produce the Driving License and thereafter hear the parties and proceed to pass judgment in accordance with law.
The Registry is directed to transmit the LCR to the concerned Tribunals, forthwith.
The amount deposited by the appellant-Insurance Company is also directed to be refunded to the appellant-Insurance Company.
In view of the disposal of these appeals, the Misc.Civil application filed in the appeal M.F.A.No.8078/2010, does not survive for consideration and is disposed of accordingly.
SD/- JUDGE DL