IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.992/2013 [MV] BETWEEN:
1. SRI NAGESHRAJ S/O LATE MADAIAH, AGED ABOUT 40 YEARS, RESIDING AT NO.177, GATTAVADIPURA VILLAGE, NANJANGUD TALUK, MYSORE DISTRICT PIN CODE-571301.
2. R.DINESH KUMAR S/O RAMEGOWDA, AGED ABOAUT 54 YEARS, RESIDING AT K.R.SAGARA, BELAGOLA HOBLI, SRIRANGAPATNA TALUK, MANDYA DISTRICT PIN CODE-571438.
...APPELLANTS (BY SRI.P K SHRIKARA, ADV.) AND:
1. AFTAB PASHA S/O ALTAF PASHA, AGED ABOUT 26 YEARS, R/AT #232, 1ST CROSS, FIRST MAIN, MUNESHWARANAGARA, UDAYAGIRI, MYSORE CITY-570001.
2. SRI. THAMMAIAH S/O GUNJAPPA, MAJOR, R/AT CHIKKADANAHALLI VILLAGE, MANUGANAHALLI POST, BILIKERE HOBLI, HUNSURE TALUK-571105.
3. UNITED INDIA INSURANCE COMPANY LTD., OPP. SUBURB BUS STAND, B.N.ROAD, MYSORE-570 001 BY ITS MANAGER.
(BY SRI. K SURESH, ADV.FOR R3 R1 & R2 – SERVED & UNREPRESENTED) …RESPONDENTS THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 12.10.2012 PASSED IN MVC NO.1132/2011 ON THE FILE OF THE PRESIDING OFFICER, C/C FAST TRACK COURT-V, AND MEMBER ADDITIONAL MACT, MYSORE. AWARDING A COMPENSATION OF RS.3,73,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.
THIS M.F.A. COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The owner and driver of the offending vehicle are in appeal, aggrieved by the saddling of liability on them under the judgment and award dated 12.10.2012 passed in MVC No.1132/2011 on the file of the Fast Track Court-V and Additional Motor Accident Claims Tribunal at Mysore (hereinafter referred to as 'the Tribunal' for short).
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries sustained in a road traffic accident. It is stated that on 10.08.2011 when the claimant was proceeding in a motorcycle bearing registration No. KA-55/K-558 along with a pillion rider, a Tractor and Trailer bearing registration No.KA-09/T-272 & 273 came from opposite direction in a rash and negligent manner and dashed to the motorcycle, due to which, the claimant fell down and sustained injuries. The claimant was aged about 24 years and was earning Rs.10,000/- p.m., by doing business in vegetables and fruits.
3. On issuance of notice, respondents No.1, 3 and 4 appeared before the Tribunal. Respondent No.3/insurer admitted the issuance of insurance policy in respect of Tractor and Trailer. Further it is contended that the driver of the Tractor and Trailer was not holding valid and effective driving license, Fitness Certificate and permit as on the date of accident. Further it is contended that the accident occurred solely due to the rash and negligent riding of the motorcycle. It is also contended that there is contributory negligence on the part of the rider of the motorcycle.
4. The claimant got examined himself as P.W.1 and also examined the Doctor as P.W.2 apart from marking Ex.P1 to Ex.P13. The respondents examined R.W.1 and R.W.2 apart from marking the documents as Ex.R1 to Ex.R3.
5. The Tribunal based on the material on record, awarded total compensation of Rs.3,73,000/- with interest at the rate of 6% p.a., from the date of petition till realization, on the following heads:
1. Pain and sufferings & for
4. Medical expenses :: Rs.3,11,700/-
5. Loss of income during the period of treatment :: Rs. 8,000/-
6. For discomfort and loss of amenities of life :: Rs. 3,300/-
Total Rs.3,73,000/-
The Tribunal while awarding compensation, saddled the liability on respondents 1 and 4 the driver and owner of the Tractor and Trailer. Aggrieved by saddling of liability on them, the respondents 1 and 4 are in appeal before this Court.
6. Heard the learned counsel for the appellants and respondent/insurer. Perused the material on record including the lower court records.
7. Learned counsel for the appellants would submit that the Tribunal committed an error in saddling the liability on the appellants only on the ground that there is no Fitness Certificate as on the date of accident. He submits that it is not a defense available under Section 149 of the Motor Vehicles Act, as such, the insurer could not have taken up the said contention. He further relies on the decision of this Court reported in 2014 ACJ 2711 in the case of RANGAPPA v/s JAYARAMAIAH AND ANOTHER and another decision reported in ILR 2019 KAR 2940 in the case of MR.RAJESH POOJARY v/s RAJESH AND ANOTHER in support of his contention and prays for shifting the liability on the respondent/Insurer.
8. Per contra, learned counsel for the Insurer would submit that the Tribunal rightly saddled the liability on respondents 1 and 4 who are the owner and driver of the Tractor and Trailer. Learned counsel relying on Section 56 of the Motor Vehicles Act submits that if there is no Fitness Certificate, it is as good as having no registration to the motor vehicle. As such, he prays for dismissal of the appeal.
9. Having heard the learned counsel for the parties and on perusal of the material on record including the lower court records, the only point which falls for consideration is as to whether the Tribunal is justified in saddling the liability on respondents No.1 and 4 i.e. the appellants herein.
10. Answer to the above point is in the negative and the Tribunal was not justified in saddling the liability on the appellants herein for the following reasons:
The accident occurred on 10.08.2011 involving the motorcycle bearing registration No.KA-55/K-558 and Tractor and Trailer bearing registration No.KA-09/T-272 & 273 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The owner and driver are in appeal aggrieved by saddling of liability on them. The insurer had taken a contention that there was no Fitness Certificate as on the date of accident, as the same had expired. On perusal of Section 149 of the Motor Vehicles Act, the said contention would not be available for the insurer since they have admitted the issuance of policy in respect of the Tractor and Trailer and the said policy was in force as on the date of accident. Only on the ground that the Fitness Certificate had expired, the insurer cannot absolve itself of the liability. This Court, in a recent decision in Mr.Rajesh Poojary case (supra), after considering Section 56 of the Motor Vehicles Act at paragraph 7 to 11 has held as follows:
“7. The only question which arises for consideration in this appeal is as to whether the Insurance Company can be exonerated of its liability on the ground that the insured did not possess fitness certificate for the offending vehicle as on the date of accident.
8. The Tribunal after considering that the driver of the lorry was charge sheeted for the offences punishable under Sections 279 and 338 of IPC and Rule 52 of Central Motor Vehicles Rules and Section 192 of Indian Motor Vehicles Act and after observing that according to charge sheet, the fitness certificate had expired prior to the date of accident and also relying on a decision of the Kerala High Court in the case of ‘THARA vs- SYAMALA’, wherein it is held that when the vehicle involved in the accident did not have a valid fitness certificate at the time of accident, Insurance Company shall be exempted from its liability and therefore held the insured/appellant liable to pay the compensation.
9. The Division Bench of this Court in a decision rendered in the case of the ‘NEW INDIA ASSURANCE CO. LTD. VS- SRI N SRINIVASA MURTHY AND OTHERS’ has observed that ‘absence of fitness certificate cannot be a reason to deny the compensation to the claimant’. A coordinate Bench of this Court in the case of the BRANCH MANAGER VS- H D CHANNADEVAIAH AND OTHERS held in a similar circumstances, where the insured vehicle did not possess fitness certificate as on the date of accident that, “the policy was in force on the date of accident and the Insurance Company cannot disown its liability.”
10. The Tribunal while fixing the liability on the insurer placed reliance on the decision of the Kerala High Court in the case of THARA vs- SYAMALA (supra). It is pertinent to note that the said decision of the Kerala High Court has been over-ruled by the Full Bench decision in the case of V M AUGUSTINE, VATTAKAVUMKAL VS- AYYAPPANKUTTY ALIAS MANI & ANOTHER (supra). It is held that lapse of certificate of fitness would constitute breach of the provisions of Motor Vehicles Act or Rules. However, there is nothing under Section 56 of the Act, which suggests that the registration or permit issued would stand cancelled or revoked on account of lapse of period of fitness certificate.
11. In view of the decisions referred to supra, the judgment and award passed by the Tribunal thereby exonerating the Insurance Company to pay the compensation and directing the insured/appellant to pay the compensation is liable to be set aside. Accordingly, I pass the following:
Appeal is allowed.
The judgment and award dated 6.4.2013 passed in MVC No.1046/2011 on the file of III Additional Senior Civil Judge, Member, MACT, Mangalore, DK, is hereby set aside.
Respondent Nos.1 and 2 before the Tribunal are jointly and severally liable to pay the compensation.
Respondent No.2/Insurance Company shall pay the amount as awarded by the Tribunal within a period of four weeks from the date of receipt of copy of this judgment.
Appellant is entitled to refund of the amount deposited before this Court.”
I am in respectful agreement with the above decision.
11. Following the said decision, the appeal is allowed.
The liability saddled on the appellants is shifted to the insurer/3rd respondent before the Tribunal. The 3rd respondent/insurer shall pay the compensation by depositing the same within a period of four weeks, from the date of receipt of certified copy of this judgment.
The amount in deposit by the appellants be refunded to the appellants.
Sd/-
JUDGE mpk/-* CT:bms