IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR. JUSTICE S.G. PANDIT M.F.A. NO. 5808/2013 (MV) BETWEEN:
M/S ORIENTAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, VISHNU PRAKASH BUILDING, 3RD FLOOR, COURT ROAD, UDUPI – 576 101.
REPRESENTED BY ITS REGIONAL OFFICE:
M/S ORIENTAL INSURANCE COMPANY LTD., REGIONAL OFFICE, SUMANGAL COMPLEX, LAMINGTON ROAD, HUBLI – 580 020.
BY ITS ASSISTANT MANAGER. …APPELLANT (BY SRI SRINIVASA, ADVOCATE) AND:
1. SRI NAGESH ACHARYA S/O GOPAL ACHARYA, AGED ABOUT 25 YEARS, R/O HERADI, BRAHMAVARA, UDUPI TQ & DIST.
2. SRI THARANATHA, S/O NARASIHMA POOJARY, AGED ABOUT 29 YEARS, R/AT KADRIKATTU, MANOOR.
3. SRI.G. RAVEENDRA, S/O GOPAL POOJARY, AGED ABOUT 30 YEARS, R/O KOTATHATTU, UDUPI TQ & DIST.
…RESPONDENTS (BY SRI VIGNESHWAR S. SHASTRI, ADVOCATE FOR R-1, R-2 SERVED UNREPRESENTED, NOTICE TO R-3 HELD SUFFICIENT V/O DTD:18/8/2015) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 31.10.2012 PASSED IN MVC NO.309/2011 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT, UDUPI, AWARDING COMPENSATION OF RS.64,000/- WITH INTEREST @ 8% P.A FROM THE DATE OF PETITION TILL REALIZATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claim petition was filed under Section 166 of the M.V Act claiming compensation for the accidental injuries suffered in a motor vehicle accident involving the Bike bearing No. KA-20/R3738. The claimant states that he was earning Rs.6000/- pm and was aged 23 years as on the date of accident. He was inpatient for 2 days at KMC Hospital.
2. The Respondent – insurer opposed the claim petition contending that the accident occurred solely due to rash and negligent driving of the motor cycle by the claimant himself and not because of the negligent driving of the autorickshaw. It is also contended the driver of the of the offending vehicle, was not holding valid and effective driving license as on the date of the accident.
3. The Tribunal on appreciating the materials on record including oral and documentary evidence, awarded a total compensation of Rs.64,000/- together with interest at 8% p.a. from the date of petition till realization and further the Tribunal has saddled the liability on the respondents 1 & 2 and directed the respondent No.3- Insurer to pay the compensation. The insurer being aggrieved by saddling liability, has preferred this appeal.
4. Heard the learned counsel for the appellant and the respondents-claimants. Perused the materials on record. The learned counsel for the insurer would submit that the judgment and award of the Tribunal is wholly perverse and erroneous. It is submitted that the Tribunal could not have saddled the liability on the insurer since the driver of the offending vehicles does not possess valid and effective DL as on the date of accident. It is also submitted that the driver of the insured vehicle was holding DL only to drive private auto rickshaw for a period of 20 years upto 29.09.2029, but he has been authorized to drive the passenger vehicle –Transport vehicle only with effect from 14.12.2010. The transport endorsement clearly establishes that the valid DL has been obtained only after the date of accident. Therefore, the Tribunal could not have saddled the liability on them.
5. The learned counsel for the Respondents would submit that the Tribunal has rightly saddled the liability on the insurer. It is also submitted that the driver of the offending vehicle had license to dirve LMV(non transport) and therefore, he could drive LMV (transport) also. It is his submission that the said contention is no more res-integra in view of the decision of the Hon’ble Supreme Court in the case of MUKUND DEWANGAN VS ORIENTAL INSURANCE COMPANY LIMITED, (2018) 14 SCC 663. Thus he prays for dismissal of the appeal.
6. Having heard the learned counsel for the parties and perusing the materials on record, the following point would arise for consideration.
a) Whether the Tribunal is justified in saddling the liability on the Insurer?
7. Answer to the above point is affirmative in view of the following reasons:-
The accident occurred on 08.04.2010 involving the motor bike bearing No. KA-20/R3738 and the autorickshaw bearing registration No.KA-20’B-3135 and the accidental injuries suffered by the claimants are not in dispute in this appeal. It is the only contention that the driver of the offending vehicle had no valid and effective Driving License to drive the transport vehicle as on the date of accident. It is his submission that the driver of the autorickshaw had license to drive LMV – non-transport vehicle and he obtained the transport endorsement only on 14.12.2010. To substantiate their contention, the insurer has not examined any witness nor produced any material documents. The insurer has not examined any person from the RTO or competent person with regard to their contention that the driver of the offending vehicle had no valid and effective Driving License as on the date of the accident. Moreover, it is submitted that the driver of the offending vehicle had license to drive LMV non-transport vehicle. A person holding LMV non-transport license could also drive LMV transport vehicle of the same categary in view of the decision of the Hon’ble Supreme Court stated supra. Hence I am of the view that this appeal is liable to be rejected and accordingly it is rejected. The amount in deposit be transmitted to the concerned Tribunal.
Sd/- JUDGE NM