IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 29TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H P SANDESH M.F.A.NO.10359 OF 2012 (MV) BETWEEN:
United India Insurance Co. Ltd., Branch Office: Bhatkal, By its Branch Manager By United India Insurance Co. Ltd., Divisional Office, Jewel Plaza, 1st Floor, Maruthi Veerhika, Udupi By its Manager.
(By Sri. O.Mahesh, Advocate) AND:
1. Rehana Banu, Aged about 31 years, D/o. Late Fathima R/at Near Palli Ferry Road, Kundapura Kasaba, Kundapura-576201.
2. Subhas M. Naik, Major, S/o. Masthappa, R/o. Jattanamane, Mannkall, Bhatkal, N.K.District-581320.
(By Sri. R.Nagendra Naik, Advocate for R2, R1- Served) ... Appellant ... Respondents This Miscellaneous First Appeal is filed under Section 173(1) of MV Act against the judgment and award dated 06.08.2012 passed in MVC No.969/2005 on the file of the presiding officer, Fast Track Court, MACT, Kundapura, awarding a compensation of Rs.1,20,000/- with interest @ 6% P.A. from the date of petition till payment.
This MFA coming on for final hearing this day, the Court delivered the following:-
J U D G M E N T This Miscellaneous First Appeal is filed by the insurance company challenging the judgment and award dated 06.08.2012 passed in MVC No.969/2005 on the file of Motor Vehicle Accidents Claims Tribunal, Fast Tract Court, Kundapura, questioning directing the insurance company to pay and recover the award amount from the insured.
2. Brief factual matrix of the case is that:
On 29.07.2005 at about 8.30 pm, on NH-17 near Bhatkal Bus Stand, the deceased Fathima was walking on the side of NH-17, at that time, driver of auto rickshaw bearing Reg.No.KA-30/5727 drove the same in rash and negligent manner and dashed against said Fathima, by which she sustained grievous injuries and later she succumbed to injuries on 05.08.2005.
3. The claimant in order to substantiate her claim, examined herself as PW-1 and also examined one witness on her behalf as PW-2 and got marked documents as Exs.P.1 to P.5. The first respondent/owner examined himself as RW-1 and second respondent got examined one witness on its behalf as RW-2 and got marked documents as Exs.R.1 to R.4.
4. The Tribunal after considering both oral and documentary evidence, allowed the claim petition in part and awarded compensation of RS.1,20,000/- with 6% interest and fastened the liability on the insurance company to pay and recover the amount.
5. Being aggrieved by the said judgment and award of the Tribunal, the insurance company preferred this appeal questioning the liability. The main contention of the insurance company is that the driver was not having valid and effective driving license to drive such vehicle and therefore the Tribunal ought not to have fastened the liability on the insurance company. The appellant’s counsel reiterates the grounds urged in the appeal memo.
6. The counsel appearing for the respondent No.2 / owner would contend that in view of the judgment of the Apex Court in the case of MUKUND DEWANGAN VS. ORIENTAL INSURANCE COMPANY LTD., (AIR 2017 SC 3668) and also in the case of PAPPU AND OTHERS VS. VINOD KUMAR LAMBA AND ANOTHER reported in (2018)3 SCC 208, the contention of the insurance company is not sustainable.
7. Having heard the arguments of the appellant’s counsel and the counsel appearing for respondent No.2 and also in keeping the rival contentions of the parties, the points that arise for my consideration are:
1. Whether the Tribunal has committed an error in fastening the liability on the insurance company and directing the insurance company to pay and recover from the insured and whether it requires interference of this Court?
2. What Order?
8. After considering rival contentions of both the parties and in view of the principles laid down in the case of MUKUND DEWANGAN VS. ORIENTAL INSURANCE COMPANY LTD., (AIR 2017 SC 3668) and also in PAPPU AND OTHERS VS. VINOD KUMAR LAMBA AND ANOTHER reported in (2018)3 SCC 208 and in view of the fact that the appellant in this appeal has not questioned the pay and recover and the main ground urged is as to insurance company is not liable to pay the compensation on the ground that the driver was not having valid and effective driving license, the said contention cannot be accepted. In view of the discussion made above, I pass the following:-
ORDER (i) The appeal is dismissed.
(ii) Office is directed to transmit the amount in deposit, if any, along with LCR to the concerned Tribunal forthwith.
Kmv/-
Sd/- JUDGE