The Divisional Manager, Vs v Venkatesh S/O v. Thimappa

THIS MFA IS FILED U/S 173(1) OF MV ACT 1988, AGAINST THE JUDGMENT AND AWARD DATED:21-09-2012 PASSED IN MVC NO.606/2011 ON THE FILE OF MEMBER, MACT.NO.III, BALLARI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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HC-KAR

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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 under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘M.V.Act,’ for short) by the Insurance Company, challenging the judgment and award dated 21.09.2012 passed in MVC No.606/2011 by the learned III Motor Accident Claims Tribunal, Ballari.

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

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On 20.03.2011, at about 4.00 p.m., the petitioner was blowing air to his bicycle at Basha Cycle Shop and after completion of his work, he was proceeding in front of the Basha Cycle Shop. At that time, a motorcycle bearing

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Reg.No.KA35/U-9412 ridden by its rider in a rash and negligent manner, and dashed to the petitioner’s cycle. As a result, the petitioner sustained grievous injuries. The petitioner filed a claim petition under Section 166 of the

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HC-KAR

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M.V.Act seeking compensation for the injuries sustained by him in a road traffic accident. Accordingly, prays to allow the claim petition.

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The notice was issued to the rider of the motorcycle in question. Despite service of notice, the owner of the motorcycle remained unrepresented, and was placed ex-parte.

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The Insurance Company filed a statement of objections denying the averments made in the claim petition. It is further contended that the rider of the offending motorcycle did not possess a valid and effective driving license as of the date of the accident, and there is breach of the policy conditions. 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 relevant issues.

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HC-KAR

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The petitioner to substantiate his case, examined himself as P.W.1, examined the doctor as P.W.2, and marked 14 documents as Exs.P1 to P14. Conversely , on the other hand, an official of the Insurance Company was examined as R.W.1, and marked 3 documents as Exs.R1 to R3.

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The Tribunal, after assessing the verbal and documentary evidence, allowed the claim petition in part with costs vide judgment dated 21.09.2012 and awarded a compensation of Rs.4,61,800/- with interest at the rate of 6% p.a. from the date of the petition till the date of realization, and directed the Insurance Company to pay the compensation amount to the petitioner.

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The Insurance Company, aggrieved by the judgment and award passed in MVC No.606/2011, has filed this Miscellaneous First Appeal.

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HC-KAR

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Heard the arguments of the learned counsel for the Insurance Company, and the learned counsel for the petitioner.

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Learned counsel for the Insurance Company submits that the Tribunal committed a grave error in holding that the rider of the motorcycle though was holding a learner’s license to drive a two wheeler apart from which he also holding a driving license to drive a Light Motor Vehicle as per Ex.R2. Hence, the Insurance Company was not liable to pay the compensation. She submits that the Tribunal has failed to note that the rider of the motorcycle though held a regular license to drive a Light Motor Vehicle, he should have had an instructor while riding the two wheeler, as he was holding a learner’s license, as required under Section 3 of the M.V.Act. She also submits that the compensation awarded by the Tribunal is on the higher side. Hence, on these grounds, she prays to allow the appeal.

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HC-KAR

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Per contra, the learned counsel for the petitioner submits that the Tribunal placing reliance on the judgment of the Hon’ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED VS SWARN SINGH AND OTHERS , has held that the learner’s license is also a valid license. He submits that the Tribunal was justified in fastening the liability on the Insurance Company, and the compensation awarded by the Tribunal is just and proper. Hence, on these grounds, he prays to dismiss the appeal.

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Perused the records, and considered the submission of the learned counsel for the parties.

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The point, that would arise for my consideration is regarding the liability, and the quantum of compensation .

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There is no dispute regarding the occurrence of the accident, and the injuries sustained by the petitioner in a road traffic accident. To prove that the accident occurred due to the rash and negligent riding of the rider of the motorcycle, the petitioner has produced a charge sheet

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HC-KAR

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marked as Ex.P2. The Tribunal placing reliance on Ex.P2 has rightly held that the accident occurred due to the rash and negligent riding of the rider of the motorcycle.

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Regarding Liability:

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The Insurance Company has taken a specific defence that the rider of the motorcycle did not possess a valid and effective driving license as of the date of the accident. The Insurance Company has produced the endorsement issued by the RTO marked as Ex.R2, wherein it is mentioned that the rider of the motorcycle is holding a driving license bearing No.1788/2009-10 issued on 24.06.2009 and valid upto 23.06.2029, and class of the vehicle to drive is LMV(NT) only. Insurance Company also produced Ex.R3-learner’s license bearing No.3678/2010 and validity of the learner’s license is mentioned from 16.03.2011 to 15.09.2011 only. In the cross-examination, R.W.1 has admitted about the policy of the motorcycle was in force as of the date of the accident, and also admitted

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HC-KAR

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about learner’s license was possessed by the rider of the motorcycle in question. The Tribunal placing reliance on the judgment of the Hon’ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED VS BHAGWANI AND

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OTHERS IN SLP (C) NO.9215/2003 decided on 05.01.2004, wherein the Hon’ble Apex Court held that the liability of the Insurance Company/learner’s license, and the Insurance Company is liable to satisfy the award passed by the Tribunal. The Hon’ble Apex Court in the case of SWARN SINGH (SUPRA) , has held that the learner’s license is also a valid license. In view of the proposition laid down by the Hon’ble Apex Court in the judgments cited supra, the Tribunal has rightly held that the rider of the motorcycle in question, possessed a valid and effective driving license as of the date of the accident. The Tribunal was justified in saddling the liability on the Insurance Company. I do not find any error in the impugned judgment fastening liability on the Insurance Company.

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HC-KAR

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Regarding Quantum of compensation:

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Insofar as the quantum of compensation is concerned, the petitioner has examined the doctor as P.W.2. He examined the petitioner and issued the disability certificate marked as Ex.P14. He deposed that the petitioner is suffering from headache, giddiness, aggressiveness, irritability forgot-fullness, irrelevant talks etc. He assessed the disability at 35-40%, wherein the Tribunal has assessed the disability at 35%, which is just and proper. The Insurance Company did not lead any evidence to disbelieve the evidence of P.W.2. The Tribunal considering the material on record has awarded the compensation, which is just and proper. I do not find any error in the impugned judgment and award passed by the Tribunal. Accordingly, I proceed to pass the following:

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ORDER

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i) The Appeal is dismissed.

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HC-KAR

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ii) The judgment and award dated 21.09.2012 passed in MVC No.606/2011 by the learned III Motor Accident Claims Tribunal, Ballari, is hereby confirmed.

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iii) The Tribunal records, and the amount in deposit, if any, shall be transmitted to the Tribunal concerned, forthwith.

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Sd/(ASHOK S. KINAGI) JUDGE

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MBS CT: BSB List No.: 1 Sl No.: 5

The Divisional Manager, v. v Venkatesh S/O v Thimappa

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The Divisional Manager, v. v Venkatesh S/O v Thimappa

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