The Manager Vs Rachamma

THE MANAGER IFFCO TOKIO GIC LTD., NO.846, NEW KANTHARAJA URS ROAD, AXAYABANDARA, KUVEMPUNAGARA MYSORE, NOW REP/BY THE MANAGER, IFFCO-TOKIO GIC LTD., SRI SHANTHI TOWERS, 5TH FLOOR, 141, 3RD MAIN, EAST OF NGEF LAYOUT, KASTURI NAGARA, BENGALURU-560043.

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…APPELLANT

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(BY SRI. PRADEEP B, ADVOCATE)

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Digitally signed by NIRMALA DEVI Location: HIGH COURT OF KARNATAKA

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AND:

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RACHAMMA W/O MALLAIAH, NOW AGED ABOUT 62 YEARS, R/A MUTTANAHALLI VILLAGE, MALAVALLI TOWN-571430. MANDYA DISTRICT.

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MEGHARAJAN S/O MALLIKARJUNA, R/A NO.35, POLICE COLONY, B-BLOCK, JOTHINAGARA, BANGALORE-560075.

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…RESPONDENTS (BY SRI. HARSHA S P, ADVOCATE FOR R1 NOTICE TO R2 IS DISPENSED WITH V/O DTD 13.02.2023)

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NC: 2025:KHC:24545 MFA No. 3369 of 2017

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HC-KAR

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.12.2016 PASSED IN MVC NO.596/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, MALAVALLI, AWARDING COMPENSATION OF Rs.1,15,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT AND ETC.

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

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CORAM: HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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The above appeal is filed by the insurer under Section 173(1) of the Motor Vehicles Act, 1988¹ calling in question the judgment and award dated 26.12.2016 passed in MVC No.596/2015 by the Court of Senior Civil Judge and MACT, Malavalli² .

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The Tribunal by its judgment and award dated 26.12.2016 partly allowed the claim petition and awarded a total compensation of `1,15,000/- together with interest @ 6% per annum. Being aggrieved, the insurer has filed the above appeal.

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For the sake of convenience, the parties herein are referred as per their rank before the Tribunal.

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1 Hereinafter referred as to ‘Act’

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2 Hereinafter referred to as the ‘Tribunal’

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HC-KAR

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Heard the submissions of learned counsel

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Sri B. Pradeep B. appearing for the appellant and learned counsel Sri Harsha S.P., learned counsel appearing for the respondent No.1. Perused the records of the Tribunal.

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The relevant facts in a nutshell leading to the present appeal are that claiming compensation for the injuries sustained in a road traffic accident which occurred on 11.11.2014, the claimant filed a claim petition contending inter alia that when he was walking, an auto rickshaw bearing registration No.KA-03-D-499 being driven by its driver in a rash and negligent manner came and hit the claimant causing the accident in question, wherein, he sustained grievous injuries. The owner and insurer of the auto rickshaw was arrayed as respondent Nos.1 and 2 before the Tribunal. The owner of the vehicle remained ex-parte before the Tribunal. The claim proceedings were contested by the respondent No.2 – insurer. The claimant examined herself as PW.1. Exs.P1 to P7 were marked in evidence. The insurer did not adduce any oral or documentary evidence. The Tribunal by its judgment and award dated 26.12.2016, partly allowed the claim petition and

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NC: 2025:KHC:24545 MFA No. 3369 of 2017

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HC-KAR

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awarded a total compensation of `1,15,000/- together with interest @ 6% per annum and directed the respondent No.2 – insurer to pay the compensation awarded. Being aggrieved, the present appeal is filed by the insurer.

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Along with the above appeal, I.A.2/2017 has been filed under Order XLI Rule 27 r/w 151 of Code of Civil Procedure, 1908³ to permit the appellant-insurer to produce a true copy of the Driving Licence⁴ extract. Learned counsel Sri B. Pradeep, appearing for the appellant-insurer contends that the driver of the insured auto rickshaw did not have a valid licence as on the date of the accident. It is further contended that the insured vehicle did not have a permit as on the date of the accident.

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The submission of the learned counsels have been considered and the material on records have been perused. The questions that arise for consideration are:

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i) Whether I.A.2/2017 filed under Order XLI Rule 27 r/w 151 of CPC is required to be allowed?

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3 Hereinafter referred to as the ‘CPC’

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4 Hereinafter referred to as the ‘DL’

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HC-KAR

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ii) Whether the judgment of the Tribunal fastening the liability on the insurer to pay the compensation awarded is erroneous and liable to be interfered with?

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Re: Question No.(i):

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I.A.2/2017 is filed under Order XLI Rule 27 r/w 151 of CPC to permit the appellant-insurer to produce a true copy of the DL extract. It is deposed in the affidavit filed in support of the application that the insurer did not lead evidence before the Tribunal and hence, the application is filed producing the extract of true DL. It is further deposed that the said document is necessary for considering the question that arises for consideration in the above appeal.

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In view of the fact that the insurer has contended that the driver of the insured vehicle did not have a valid DL and since the DL extract is not produced before the Tribunal, it is just and proper that the appellant be permitted to produce the said document in the present appeal to enable this Court to consider the contentions raised by the insurer in the present appeal, Hence, I.A.2/2017 is allowed. The DL extract produced

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HC-KAR

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along with I.A.2/2017 is taken on record. Accordingly, question No.(i) framed for consideration is answered in the affirmative.

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Re: Question No.(ii):

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Admittedly, the insured vehicle is an auto rickshaw. It is the contention of the insurer that the driver of the insured vehicle was licenced to drive ‘three wheeler cab’ from 19.11.2014, whereas the accident occurred on 11.11.2014. It is relevant to note here as per the DL extract produced along with I.A.2/2017 which is taken on record, it discloses that the driver of the auto rickshaw was authorized to drive a three wheeler cab from 19.11.2014 onwards. However, the driver was authorized to drive Light Motor Vehicle from 02.06.2008. The Hon’ble Supreme Court in the case of MUKUND DEWANGAN VS ORIENTAL INSURANCE COMPANY LTD.,⁵

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has held that a person who is licenced to drive a LMV is competent to drive a transport vehicle whose gross vehicle weight vehicle does not exceed 7500 kgs. In view of the same, the contentions putforth by the insurer that the driver is not duly licenced is untenable and liable to be rejected.

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5 (2017)14 SCC 663

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HC-KAR

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The other contention putforth by the insurer is that the insured vehicle did not have a valid permit as on the date of the accident. It is relevant to note that the insurer did not adduce any evidence, either oral or documentary. Even in the present appeal, the permit has not been produced. When the insurer has taken a defence that the insured vehicle has been plied on the date of the accident without a valid permit, the burden was on the insurer to prove the same. In the present case, the insurer not having produced any material on record with regard to the contention that the insured vehicle did not have a permit as on the date of the accident, the said contention also is liable to be rejected. Hence, Question No.(ii) is answered in the Negative.

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