IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE BELLUNKE A.S.
M.F.A. NO.2935 OF 2013 (MV) BETWEEN:
THE ORIENTAL INSURANCE COMPANY LIMITED COURT ROAD, UDUPI REPRESENTED BY ITS AUTHORIZED OFFICER AND ASSISTANT MANAGER REGIONAL OFFICE, II FLOOR SUMANGALA COMPLEX LAMINGTON ROAD HUBBALLI-580 020. ... APPELLANT (BY SRI. R. GUNASHEKAR, ADVOCATE ) AND:
1. SRI.LAKSHMAN K. KOTIAN AGED ABOUT 34 YEARS S/O LATE KITTA B KOTIAN RESIDENT OF KOTIAN NIVAS SAMPIGE NAGAR UDYAVARA, POST KUTHPADY UDUPI TALUK UDUPI DISRICT – 574 118.
2. STEVEN D' SOUZA AGED ABOUT 32 YEARS S/O CHARLES D SOUZA RESIDENT OF DAR MANZIL, THOTTAM BADANIDIYOOR VILLAGE UDUPI TALUK UDUPI DISTRICT – 576 101. ... RESPONDENTS (BY SRI. K. SHASHIKANTH PRASAD, ADVOCATE) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 07.01.2013 PASSED IN MVC NO.538/2010 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT, UDUPI, AWARDING A COMPENSATION OF Rs.79,500/- WITH INTEREST @ 8% FROM THE DATE OF PETITION TILL REALIZATION.
THIS MFA COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Heard the learned counsel for the appellant and learned counsel for the respondent.
2. Appeal is directed against the judgment and award passed in MVC No.538/2010 by the learned Additional Senior Civil Judge and Additional MACT, Udupi dated 07.01.2010 wherein the Insurance Company has been saddled with the liability to satisfy the award passed therein.
3. The only ground made out in this appeal is that the driver of a two wheeler had no valid driving licence to drive the two wheeler though he had licence to drive the light motor vehicle. Therefore, learned counsel for the appellant-Insurance Company has strongly submitted that the Tribunal could not have fastened the liability on the Insurance Company – respondent No.2 as the driver had no driving licence as on the date of the accident.
4. Learned counsel for the claimant – respondent submitted that the driver of the offending vehicle had valid driving licence of category of light motor vehicle. Subsequently, he has been authorized to drive the motor vehicle with gear also. Therefore, rider was not disqualified to hold such licence. It is further submitted that since the rider had driving licence of a light motor vehicle therefore he was not disqualified. Hence, it is a fit case where the Insurance Company has to satisfy the award and recover the award amount from the owner of the vehicle in question.
5. Having regard to the aforesaid dispute, the points that would arise for consideration are:
i) Whether the order of the Tribunal fastening the liability on the Insurance Company to pay the compensation is sustainable in law?
ii) Whether it is a fit case to pass order for pay and recovery as contended by the learned counsel for respondent-claimant?
6. The admitted facts are that the driver had only driving licence of a light motor vehicle and he had no driving licence of a two wheeler as on the date of the accident. Subsequently, he also got endorsed to drive the two wheeler with effect from 07.09.2010. That goes to show that as on the date of the accident in question, the claimant had no valid driving licence to drive the two wheeler.
7. Learned counsel for the appellant has relied on the following authorities:
i) Sardari and others vs. sushil Kumar and others reported in 2008 AIR SCW 2075 ii) Mallappa S/o Mahantappa Kamat vs.
Mahantayya Neelakanthayya Hiremath and another reported in LAWS (KAR) 2017 2 218 iii) The New India Insurance Co. Ltd., vs.
Smt.Lakshmamma and another reported in ILR 2011 KAR 3210 8. In first and third citations relied on by the learned counsel for the appellant, the facts are that the petitions against the Insurance Company was dismissed on the ground that the driver of the vehicle involved in the accident had no driving licence at all. In second decision referred supra, driver had licence but it was not renewed within the stipulated period. Therefore, it was held that he had no driving licence as on the date of the accident. Further, the Tribunal also dismissed the petition against the Insurance Company and that came to be affirmed. But in this case, driver who has got a licence to drive four wheeler and subsequently obtained a licence for driving two wheeler also within the few months from the date of the accident. That would go to show that he was not disqualified from obtaining the driving licence of a two wheeler. Be that as it may. The fact remains that as on the date of the accident, he had no valid licence to drive the two wheeler in question.
9. Learned Tribunal relying on the decision reported in 2011 ACJ 926 (SC) and the decision of this Court reported in 2005 ACJ 1509 held that there is no proof that rider of motorcycle was disqualified from holding or obtaining licence of a two wheeler as on the date of the accident. In addition, I would like to add that the possessing of driving licence of a light motor vehicle by the rider would goes to show that the rider knew the art of driving of a two wheeler also. However, that would not make the insurer liable to pay the compensation. But there is no evidence on record to show that the owner of the vehicle had deliberately or knowingly left the vehicle to be driven by unauthorized person. Probably, the owner might have been under a mistake or belief that rider had a four wheeler driving licence and was entrusted to drive a two wheeler. That must have been made him to leave the vehicle in the custody of the said person. Therefore though the liability of Insurance Company is to be exonerated, but, for the aforesaid facts, it is a fit case to direct the Insurance Company to pay and recover the same from the owner of the offending vehicle.
10. Having regard to the aforesaid reasons, I answer the points in affirmative. Hence, I pass the following:
ORDER The appeal filed by the Insurance Company is allowed. The liability fastened on the Insurance Company- respondent No.2 therein to satisfy the impugned award in question is set aside. However, the appellant – Insurance Company shall pay and recover the amount under the same award from the owner of the vehicle in question.
Amount in deposit, if any, be transmitted to the Tribunal, forthwith.
Parties to bear their own costs.
(Sd/-) JUDGE Prs*