IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.1478 OF 2015 (MV) BETWEEN:
THE ORIENTAL INSURANCE COMPANY LIMITED MAIN ROAD, PUTTUR NOW REPRESENTED BY ITS REGIONAL MANAGER LEO SHOPPING COMPLEX 44/45 RESIDENCY ROAD BENGALURU – 560 025 ... APPELLANT (BY SMT. HARINI SHIVANANDA, ADVOCATE) AND:
1. YUVARAJ, 35 YEARS S/O CHENNAPPA POOJARY R/A PALLATTAR HOUSE KODIMBADY POST PUTTUR TALUK DAKSHINA KANNADA 2. YASHAVANTHA, 28 YEARS S/O LOKAYYA POOJARY R/A. H.NO.1-102B KANDRODI HOUSE KAVALAPDOOR VILLAGE KAVALAKATTE POST BANTWAL TALUK DAKSHINA KANNADA (BY SMT. SULOCHANA M., ADVOCATE ... RESPONDENTS FOR SRI. KAMALESHWARA POOJARY, ADV., FOR R1; SMT. VEENA T.N., ADVOCATE FOR SRI. I. THARANATH POOJARY, ADV., FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 16.10.2014 PASSED IN MVC NO.1260/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, JMFC, MACT, BANTWAL, D.K., AWARDING A COMPENSATION OF `2,16,471/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT BY THE RESPONDENT.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Insurer appeal is directed against the judgment and award dated 16.10.2014 passed in MVC No.1260/2012 on the file of the MACT-IX and Principal Senior Civil Judge & JMFC, Bantwal, Dakshina Kannada.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988, seeking compensation for the injuries suffered by the claimant. It is stated that on 30.07.2011, when the claimant was proceeding in a motor cycle bearing registration No.KA-19-L-334, a Tata ACE Tempo bearing registration No.KA-19-D-540 driven in a high speed, rash and negligent manner came from opposite side and dashed against the claimant’s motorcycle. Due to which, he suffered grievous injuries. Immediately, he was shifted to A.J. Hospital, Mangaluru, where he was inpatient from 30.07.2011 to 05.08.2011. It is stated that the claimant was working as Bar Binder and was earning `12,000/- per month.
3. On issuance of notice, both the respondents appeared before the Tribunal and filed their independent written statements. Respondent No.1 in his written statement denied the claim petition averments. Further, he contended that the claim is highly exorbitant and speculative. Accident had occurred solely due to the negligent riding of the claimant. Further, it was stated that vehicle is insured with respondent No.2-Insurer. Respondent No.2 in its written statement denied the claim petition averments and further stated that the accident had occurred solely due to the rash and negligent driving of the claimant himself.
4. The claimant examined himself as PW-1 and Doctor as PW-2, apart from marking documents from Exs.P-1 to P-17. Respondent No.2-Insurance Company examined the Administrative Officer as RW-1 and got marked Insurance Policy as Ex.R-1.
5. The Tribunal appreciating the material on record, awarded a total compensation of `2,16,471/- with 6% interest from the date of petition till the date of deposit. Further, it has held that respondent Nos.1 and 2 are jointly and severally liable to pay the compensation and directed respondent No.2-Insurer to deposit the compensation amount within one month from the date of award.
6. The Insurer being aggrieved by the saddling of the liability, is before this Court in this appeal on the ground that the Tribunal has failed to consider their contention that the driver of the Tata ACE Tempo, offending vehicle had no valid and effective Driving Licence as on the date of the accident.
7. Heard learned counsel for the appellant and learned counsel for the respondent-claimant.
8. The one and only contention urged by the learned counsel for the appellant-Insurer is that driver of the offending vehicle, Tata ACE Tempo bearing registration No.KA-19-D-540 had no valid and effective Driving License as on the date of the accident. It is submitted that the driver had LMV (Non Transport Vehicle) but, there was no endorsement to drive the LMV (Transport Vehicle) as on the date of the accident. Therefore, the Tribunal could not have fastened the liability on the appellant-Insurer.
9. Per contra, learned counsel for the respondent-claimant would submit that the contention raised by the appellant-Insurer no more survives for consideration in view of the decision of the Hon’ble Apex Court in the case of ‘Mukund Dewangan Vs. Oriental Insurance Company Ltd.,’ reported in AIR 2017 SC 3668 and prays for dismissal of the appeal.
10. Having heard the learned counsel for the parties and on perusal of the materials on record, the only point which falls for consideration is as to whether the Tribunal is justified in fastening the liability on the appellant-Insurer. Answer to the above point is in affirmative for the following reasons.
11. The accident occurred on 30.07.2011 involving a motor cycle bearing registration No.KA-19-L-334 and a Tata ACE Tempo bearing registration No.KA-19-D-540 and the accidental injuries suffered by the claimant is not disputed in this appeal. The appellant-Insurer is before this Court aggrieved by the saddling of the liability on it.
12. Learned counsel for the appellant-Insurer contended that the driver of the offending vehicle Tata ACE Tempo had no valid and effective Driving Licence as on the date of the accident.
13. Ex.P-16 is the notarized copy of the Driving Licence and Ex.P-8 is the copy of the Accident Information Report, which discloses that the driver was possessing the licence to drive LMV (Non Transport Vehicle) valid from 18.07.2008 to 04.08.2023 whereas, the accident had taken place on 30.07.2011. As on the date of the accident, the driver of the offending vehicle had licence to drive LMV (Non Transport Vehicle), which is not in dispute.
14. The Hon’ble Apex Court in the case of Mukund Dewangan (Supra) has clarified the legal position and has stated that the driver, who possesses a valid and effective licence to drive LMV (Non Transport Vehicle) could also drive LMV (Transport Vehicle) of the same category.
15. In the instant case, as the driver of the offending vehicle, Tata ACE Tempo had a valid and effective licence to drive LMV (Non Transport Vehicle), he could drive LMV (Transport Vehicle). Thus, the contention raised by the learned counsel for the appellant would not merit any consideration. In view of the decision of Hon’ble Apex Court, the appeal is liable to be rejected and accordingly, the appeal stands dismissed.
The amount in deposit shall be transmitted to the concerned Tribunal.
Sd/- JUDGE Mds/-