G. Srinivas Vs Shivaji

THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 31.08.2012 PASSED IN MVC NO.66/2011 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND MEMBER ADDL. MACT, RANEBENNUR, AWARDING THE COMPENSATION OF RS.2,65,800/- WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION FROM THE RESPONDENT NO.1.

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NC: 2025:KHC-D:12949 MFA No. 101117 of 2015

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HC-KAR

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

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This appeal is filed by the owner of the offending vehicle challenging the judgment award dated 31.08.2012 passed in M.V.C. No.66/2011 by the learned Prl. Senior Civil Judge and A.M.A.C.T., Ranebennur.

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Brief facts leading rise to the filing of this appeal are as follows:

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On 09.11.2010 at about 9.30 p.m., the petitioner was driving his auto rickshaw bearing registration No.27/6930. When he came near the accident spot, at that time, one lorry bearing registration No.KA-12/A-2399 came from the opposite direction in a rash and negligent manner and collided with the auto rickshaw. As a result, the petitioner sustained grievous injuries. The petitioner filed a claim petition under Section 166 of M.V. Act seeking

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compensation on account of the injuries sustained in the road traffic accident.

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Notice was issued to the owner of the offending vehicle. Despite service of notice, he remained unrepresented and was placed exparte.

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The Insurance Company filed a statement of objections denying the averments made in the claim petition and contended that the driver of the offending vehicle was not possessing valid and effective driving licence as of the date of the accident. Thus, there is a breach of policy conditions and hence, prays to dismiss the claim petition against the Insurance Company.

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The Tribunal, based on the pleadings of the parties, framed the issues.

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The petitioner, to substantiate his case, examined himself as PW-1, examined the doctor as PW-2 and marked 14 documents as Exs.P-1 to P-14. In rebuttal,

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NC: 2025:KHC-D:12949 MFA No. 101117 of 2015

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the officer of the Insurance Company was examined as RW1 and marked 2 documents as Exs.R-1 and R-2.

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The Tribunal, after assessing the verbal and documentary evidence, allowed the claim petition in part and awarded the compensation of Rs.2,65,800/- with interest at the rate of 6% p.a. from the date of the petition till its realization and dismissed the claim petition against the Insurance Company and directed the owner of the offending vehicle to deposit the compensation amount.

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The owner of the offending vehicle, aggrieved by the impugned judgment, filed this appeal.

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Heard the arguments of the learned counsel for the owner of the offending vehicle and the learned counsel for Insurance Company.

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Learned counsel for the owner of the offending vehicle submits that the driver of the offending vehicle was possessing a valid and effective driving license but the same

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was expired as of the date of the accident. He submits that the driver of the offending vehicle was competent to drive the vehicle. The said aspect was not properly considered by the Tribunal. To buttress his argument, he places the reliance on the judgment of the Division Bench of this Court in the case of Nagappa @ Nagaraja S/o. Late Moogappa and others vs. Ravi Kupaluru S/o. Maheshappa and others in M.F.A.No.103680/2015 c/w M.F.A.No.103681/2015 disposed of on 08.02.2019. Hence, on these grounds, he prays to allow the appeal.

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Per contra, learned counsel for the Insurance Company submits that as of the date of the accident, the driving license of the driver of the offending vehicle was expired and he was not competent to driver the vehicle in the absence of a driving license. Hence, there is breach of policy conditions and the Tribunal was justified in dismissing the claim petition against the Insurance Company. Hence, he prays to dismiss the appeal.

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HC-KAR

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Perused the records, and considered the

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submissions of the learned counsel for the parties.

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The point that would arise for consideration is regarding the liability .

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There is no dispute regarding the occurrence of the accident and also the injuries sustained by the petitioner in the road traffic accident. Admittedly, the driver of the offending vehicle was possessing a valid and effective driving license before the accident. As of the date of the accident, the driving licence. The said issue squarely covered by the judgment of the Division Bench of this Court in the case of Nagappa @ Nagaraja referred to supra and in paragraph No.27, it has been held as under:

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27. The Co-Ordinate Bench has held after referring to various judgments that even if there is no renewal endorsement, it cannot be said that the person driving the vehicle was not a licensed driver. It is not a case where the insured entrusted the vehicle to a person who does not hold a driving licence rather admittedly the driver to whom the vehicle was

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NC: 2025:KHC-D:12949 MFA No. 101117 of 2015

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entrusted by the insured was having a valid driving licence duly granted by transport authority. Merely because o f expiry of the period of licence and the omission o f the driver to get the licence renewed, it cannot be said by any stretch of imagination that there is breach o f condition of policy for which insurance company can be exonerated from the liability. The driver was authorised to drive a transport vehicle and the vehicle was entrusted by the insured to the licensed driver and, therefore, the insurance company cannot absolve itself from the liability. Therefore , it is clear that mere fact that the driver of the vehicle had not got his driving licence renewed on the date of the accident and got it renewed subsequently would not amount to breach of condition o f the policy as it cannot be said that there was violation o f the condition o f the policy. Further, in view of the above findings, the Division Bench also held that the question of ordering any recovery of the amount by the insurance company from the insurer did not arise.”

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15. The Insurance Company did not dispute that the

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driver was having a license before the accident in question but the Tribunal without considering the said aspect, has committed an error in dismissing the claim petition against the Insurance Company. Hence, considering the

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proposition of law laid down by the Division Bench of this Court in the case of Nagappa @ Nagaraja referred to supra, the liability to pay the compensation is required to be fasten on the Insurance Company.

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In view of the above discussion, I proceed to pass the following:

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ORDER

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(i) The appeal is allowed in part.

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(ii) The judgment and award dated 31.08.2012 passed in M.V.C. No.66/2011 by the learned Prl. Senior Civil Judge and A.M.A.C.T., Ranebennur is hereby modified.

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(iii) Both the owner of the offending vehicle and the Insurance Company are jointly and severally liable to pay the compensation amount with accrued interest to the petitioner.

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(iv) The respondent-Insurance Company is directed to deposit the compensation amount with accrued interest within eight weeks from the date of receipt of a copy of this judgment.

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NC: 2025:KHC-D:12949 MFA No. 101117 of 2015

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(v) The office is directed to refund the amount deposited by the owner of the offending vehicle in his favour on due identification.

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Sd/(ASHOK S. KINAGI) JUDGE

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NAA CT: BSB List No.: 1 Sl No.: 24

G. Srinivas v. Shivaji

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G. Srinivas v. Shivaji

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