IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 805 OF 2015 ( MV ) BETWEEN M/S. TATA AIG GENERAL INSURANCE COMPANY LTD., 2ND FLOOR, JP & DEVI JAMBUKESWAR ARCADE NO. 69, MILLERS ROAD BENGALURU – 560 052 REPRESENTED BY REGIONAL CLAIMS MANAGER.
... APPELLANT (BY SRI. RAVI .S. SAMPRATHI - ADVOCATE) AND 1. GHOUSE MOHIDDIN S/O KHADDAR MOHIDDIN AGED ABOUT 64 YEARS R/O DOOR NO. 145, ‘A’ BLOCK HEGADE COLONY TUMKUR TOWN-572101.
2. L.K. NAGARAJU S/O KRISHNAPPA AGED ABOUT 40 YEARS NO. 119, LAKKENAHALLI VILLAGE GUBBI TALUK TUMKUR DISTRICT-572101.
3. RANGANATHA S/O. KRISHNAPPA AGED ABOUT 37 YEARS NO. 119, LAKKENAHALLI VILLAGE GUBBI TALUK TUMKUR DISTRICT-572101.
... RESPONDENTS (BY SRI. PATEL .D. KAREGOWDA – ADV., FOR R-1;
R-2 & R-3 - SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.07.2014 PASSED IN MVC NO. 89/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE & MACT-X, TUMKUR, AWARDING COMPENSATION OF RS.1,04,500/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THIS MFA COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel for the appellant – Insurance Company and the learned counsel for respondent no.1 – injured and perused the records.
2. The insurance company has preferred this appeal, challenging the liability fastened on it to pay the compensation and also quantum of compensation awarded by the Tribunal in its impugned judgment dated 14.07.2014 in MVC No.89/2012.
3. The factual matrix is that on 9.5.2011 at about 9.00 a.m. when the first respondent – claimant was proceeding on NH-206 road near Siddalingeshwara Bakery, at that time, an autorickshaw bearing Regn.No.KA-06-B-3402 came in a rash and negligent manner and dashed against the claimant. As a result of the impact, the claimant fell down and sustained grievous injuries and hence, he filed a claim petition before the Tribunal, seeking compensation.
4. After service of notice, the owner as well as the policy holder of the offending autorickshaw as well as the insurer appeared before the Tribunal and filed their written statements and contested the claim petition. During the enquiry before the Tribunal, the claimant has established the occurrence of the accident, injuries sustained by him, actionable negligence on the part of the driver of the offending vehicle and its insurance coverage with the appellant. The Insurer – appellant herein contested the claim petition stating that the driver of the offending autorickshaw did not possess a valid and effective driving licence and permit as on the date of accident. It was contended that since the owner of the offending autorickshaw – second respondent had handed over possession of the said vehicle to the driver – Respondent No.3, the second respondent has committed breach of the policy condition and hence, the Insurance Company was not liable to indemnify the insured. Accordingly, the Insurer prayed for dismissal of the claim petition.
5. The Tribunal, after evaluation of the oral and documentary evidence on record, held that the accident had occurred due to rash and negligence of the offending autorickshaw. Further, it held that the second respondent – Nagaraju L.K. who is the owner of the offending autorickshaw, in fact possessed a valid licence to drive LMV 3 wheeler non-transport vehicle. Taking the income of the injured at Rs.3,500/- per month, the Tribunal awarded total compensation of Rs.1,04,500/- with interest at 6% per annum from the date of petition till the date of realization, to be paid by the Insurance Company – appellant herein. It is this judgment which is under challenge in this appeal by the Insurance Company.
6. The learned counsel for the appellant – Tata AIG General Insurance Company Ltd. vehemently contended that the vehicle involved in the accident, a passenger carrying autorickshaw bearing No.KA-06-B- 3402 was insured as a commercial vehicle under the appellant insurer vide Exhibit R-2. The B register extract Exhibit R-5 also revealed the said fact that it was a commercial vehicle. The certificate of registration also revealed that the offending vehicle was registered as a commercial vehicle. When that being the case, the driver of the said vehicle ought to possess a licence to drive a transport vehicle. But however, the driver had a licence only to drive a Light Motor vehicle (non- transport). Having regard to the said fact, the learned counsel contends that the Tribunal was not justified in fastening the liability on the Insurance Company to pay the compensation. In view of the law declared by the Apex Court in the case of ROSHAN BEN & ANGAND KOHL (AIR 2000 SC 2151), he prays that the impugned order passed by the Tribunal be set aside and the Insurance Company be absolved from its liability.
7. Per contra, the learned counsel appearing for the Respondent No.1 - claimant contended that the question of not possessing a licence with transport endorsement is no more res integra, in view of the law laid down by the Apex Court in the case of MUKUND DEWANGAN VS. ORIENTAL INSURANCE CO.LTD., ((2017) 14 SCC 663) wherein it is held that the absence of transport endorsement per se cannot be a ground to absolve the insurer from the award liability and the MACT could not have let the insurer go free even in the absence of transport endorsement on the driving license of the driver of the offending vehicle. Therefore, he contends that in this appeal, the Tribunal, on appreciation of the evidence on record has rightly assessed the income of the injured and awarded just and fair compensation, and so also has rightly fastened the liability of the Insurance Company to pay the compensation, which does not call for interference and prays for dismissal of the appeal.
8. Having heard the learned counsel for the parties, as stated by the learned counsel for the first respondent, it is relevant to refer to the judgment rendered in MUKUND DEWANGAN VS. ORIENTAL INSURANCE CO.LTD., (2017) 14 SCC 663 wherein Hon’ble Apex Court has answered the question against the insurer and in favour of the claimant holding that the insurer cannot avoid liability only on the ground of absence of Transport Endorsement. Therefore, the issue is no more res integra. Hence, I do not find any error in the order of the Tribunal fastening the liability on the Insurance Company to pay the compensation. The order passed by the Tribunal is in line with the said decision, which does not call for any interference in this appeal.
Hence, the appeal is dismissed. Office to draw the decree accordingly.
SD/- JUDGE KS