IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ M.F.A.No.3079/2010(MV) BETWEEN:
UNITED INDIA INSURANCE CO. LTD., NO.9/19/1, I FLOOR SOUTH END ROAD, BASAVANAGUDI BANGALORE-560 004, NOW REP. BY ITS MANAGER, REGIONAL OFFICE, 5TH AND 6TH FLOOR KRISHI BHAVAN, NRUPATHUNGA RAOD, BANGALORE -1. ..APPELLANT (BY SMT. HARINI SHIVANANDA, ADVOCATE) AND:
1.SMT GIRIJAMBA @ CHANDRIKA @ GIRIJAMMA AGED ABOUT 34 YEARS W/O LATE KANTHARAJU R/AT NO.25, 2ND CROSS, MAGADI ROAD, BANGALORE.
2.KUM YEHASWINI K D/O LATE KANTHARAJU AGED ABOUT 10 YEARS MINOR REPRESETNED BY HER MOTHER AND NATURAL GUARDIAN- RESPONDENT NO.1 R/AT NO.25, 2ND CROSS, MAGADI ROAD, BANGALORE.
3.KUM YEJUSHREE K D/O LATE KANTHARAJU AGED ABOUT 5 YEARS MINOR REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN- RESPONDENT NO.1 R/AT NO.25, 2ND CROSS, MAGADI ROAD, BANGALORE.
4.SRI RANGAPPA AGED ABOUT 103 YEARS S/O LATE MUNIVENKATAPPA R/AT NO.25, 2ND CROSS, MAGADI ROAD, BANGALORE.
5.SRI RAVINDRA S/O CHIKKAPUJARY MAJOR R/AT NO.398, 1ST CROSS, IDEAL HOMES HOUSE TOWNSHIP RAJARAJESHWARINAGAR BANGALORE -98 ..RESPONDENTS (BY SRI B M CHANDRASHEKHARA, ADVOCATE FOR R-1 TO R-3, R-4 & R-5 ARE SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:30.09.2009 PASSED IN MVC NO.2737/2008 ON THE FILE OF JUDGE, MEMBER, MACT, BANGALORE, AWARDING A COMPENSATION OF RS.8,34,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
THIS MFA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the insurance company against the Judgment and award dated 30.09.2009 passed in MVC No.2737/2008 by the MACT, Bengaluru, wherein the Tribunal has awarded a total compensation of Rs.8,34,000/- with interest at the rate of 6% p.a. to the claimants, for the death of one Kantharaju in a road traffic accident which occurred on 18.01.2008.
2. Appeal is preferred challenging the liability whereby the Tribunal held both the respondents jointly and severally liable to pay compensation and directed the second respondent before the Tribunal, insurer to deposit the award amount.
3. I have heard the learned counsel appearing for the appellant-insurer and learned counsel appearing for the respondents/claimants.
4. The facts of the case are that: on 18.01.2008 when the deceased was returning home at 7.00 P.M. on his Honda Activa bearing registration No.KA-01-EA- 8176 and when he reached near Raheja Apartments Magadi Main road, near Sarvodaya hospital, at that time all of a sudden the rider of the offending motorcycle bearing registration No.KA-20-L-4005 came in a high speed and in a rash and negligent manner and dashed against the motorcycle of the deceased, due to which the deceased fell down and sustained head injuries and other injuries all over his body. He was immediately shifted to Sarvodaya Hospital and inspite of treatment he succumbed to the injuries on 20.01.2008 at about 7.45 P.M. The claimants are the wife and two minor children and father of deceased.
5. The Tribunal after considering the oral and documentary evidence on record awarded a total compensation of Rs.8,34,000/- with interest at the rate of 6% p.a. from the date of petition till the date of deposit.
6. The primary contention of the learned counsel appearing for the insurance company is that the rider of the motorcycle was not holding a driving licence at the time of accident and therefore Tribunal is not justified in fixing the liability on the insurance company to pay the compensation. It is submitted that against the rider of the motorcycle by name Ashok D., criminal prosecution was launched for the offences punishable under Sections 279 and 304-A of IPC and Section 3(1) read with Section 181 of IMV Act. The learned Magistrate by Judgment dated 05.10.2010 in C.C.No.1244/2008 though acquitted the accused for the offences punishable under Sections 279 and 304-A of IPC, however convicted him for the offence punishable under Section 3(1) read with Section 181 of IMV Act and imposed fine of Rs.1,000/- and in default to undergo simple imprisonment for one month. The learned counsel submits that the said fine amount has been paid by the accused and therefore it is established that the driver of the offending vehicle was not possessing licence at the time of accident and therefore insurance company is not liable to make good the compensation awarded by the Tribunal. The learned counsel for the appellant/insurer by way of additional documents has produced the certified copy of the Judgment in C.C.No.1244/2008 dated 05.10.2010 passed by the Court of Metropolitan Magistrate Traffic Court-II, Bengaluru and submits that the same may be taken into consideration and seeks to allow the appeal.
7. Per contra, the learned counsel appearing for respondent/claimants contended that the respondent before the Tribunal has examined K.Chandrashekar- RW-1 and produced Exhibit R-1, copy of insurance policy and it is not proved before the Tribunal that the rider of the motorcycle was not holding a valid driving licence at the time of accident. He submits that the findings recorded by the Tribunal is based on the evidence, material placed before it and therefore he submits that the impugned Judgment and award does not call for interference and seeks for dismissal of the appeal.
8. The accident in question and the involvement of the vehicle that is motorcycle bearing registration No.KA-20-L-4005 is not disputed. It is also not disputed that the said motorcycle was insured with the appellant herein.
9. The sole contention raised by the learned counsel for appellant is that the rider of the motorcycle was not holding a licence at the time of accident. The certified copy of the Judgment passed in C.C.No.1244/2008 dated 05.10.2010 has been relied upon to contend that the rider of the motorcycle in question was not holding a driving licence. Perusal of the said document goes to show that the accused by name Ashok D., was prosecuted for the offences punishable under Sections 279 and 304-A of IPC and Section 3(1) read with Section 181 of IMV Act. Point No.3 raised in the said case is as under:
“3. Whether prosecution proves that beyond all reasonable doubt that 18.01.2008 at about 7.20 p.m. on Magadi Main Road, the accused being the driver vehicle bearing No.KA-20 L 4005, the accused being the driver of the offending vehicle, after the accident, accused didn’t having Insurance Certificate and there by committed an offence punishable U/sec.3(1) r/w 181 of IMV Act?”
10. While answering point No.3, the learned Magistrate has given following reasons at paragraph 13 as under:
“13. Point No.3: The prosecution to prove the guilt of accused as to offence punishable U/sec.3(1) r/w 181 of IMV Act has failed to examine the evidence of any of the witness. The I.O. who has been examined before court namely PW-4 has deposed that he recorded the crime and handed over further investigation. From the record, the accused having no any valid driving license cannot be ascertained due to non placing of documents. On considering these materials, the ingredients of offence punishable U/sec.3(1) r/w 181 of IMV Act has not been specifically proved by the prosecution. Hence, I answer this point in the Affirmative.”
11. It is clearly observed by the learned Magistrate that: “From the record, the accused having no any valid driving licence cannot be ascertained due to non- placing of documents” and accordingly held that ingredients of offence punishable under Section 3(1) read with Section 181 of IMV Act has not been specifically proved by the prosecution. However, strangely learned Magistrate has sentenced the accused to pay fine of Rs.1,000/- for the said offence. From the perusal of the order passed in C.C.No.1244/2008 it cannot be said that the prosecution was able to establish that the accused who was the rider of motorcycle bearing registration No.KA-20-L-4005 was not possessing driving licence at the time of accident. Hence, the appellant cannot place reliance on the aforesaid Judgment passed by the learned Magistrate in C.C.No.1244/2008. It is not established that the rider of the offending motorcycle was not holding a valid licence at the time of accident. Hence, there is no merit in the present appeal. Accordingly, appeal is dismissed.
I.A.1/2016 is disposed of accordingly.
Amount in deposit before this court shall be transmitted to the Tribunal.
Sd/- JUDGE SBN