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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No. 5230 OF 2013(MV)
BETWEEN:
1. MR. ABDULLA
AGED 53 YEARS
S/O LATE MOHAMMD BEARY @
MAMMUNHI BEARY.
2. ASIYAMMA
AGED ABOUT 46 YEARS
W/O ABDULLA.
BOTH ARE RESIDING AT AVATHALA HOUSE
PO PERMUDE, MANGALAPADY VILLAGE
KASARGOD DISTRICT,
KERALA STATE-671 324.
... APPELLANTS
(BY SRI.RANJAN KUMAR K., ADV.)
AND
1. BALBIR SINGH
AGED ABOUT 44 YEARS
S/O OF THIRKHA RAM
H.B.R. C-22, RAM GARH
BEHIND TELEPHONE EXCHANGE
2
JAHANGIPURI, DELHI-110033.
REP. BY KRISHNAPPA POOJARY
ADULT, S/O AITHUM POOJARY
C/O MAHALAKSHMI ROADLINES
2.138:4, JYOTHI MASION
OPP: ALL-SERVICE STATION, KULAI
MANGALORE-575019.
2. THE MANAGER
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
201-201A, 2ND FLOOR
ITL TWIN TOWER
NATAJI SUBHAS PLACE
PITHAMPURA, DELHI-11 0088.
... RESPONDENTS
(BY SRI. H.S.LINGARAJ, ADV. R2:
R1 IS SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 29.01.2013 PASSED IN MVC NO.1527/2009
ON THE FILE OF THE MEMBER, MACT, III ADDITIONAL
SENIOR CIVIL JDUGE, MANGALORE, D.K., PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION,
THROUGH VIDEO CONFERENCE, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', 3 for short) has been filed by the claimants being aggrieved by the judgment dated 29.1.2013 passed by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal briefly stated are that on 25.4.2009, deceased Mohammed Ashraf was proceeding as a rider along with his wife on motorcycle bearing registration No. KL-14-H-3291 from Kasargod to Ullal Darga, at that time, a lorry bearing registration No.HR-38G-8390 which was being driven in a rash and negligent manner, dashed against the motorcycle of the deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries.
The claimants filed a petition under Section 166 of the Act seeking compensation. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The 4 claimants, in order to prove their case, examined claimant No.1 as PW-1 and got exhibited documents namely Ex.P1 to Ex.P11. On behalf of respondents, two witnesses were examined as RWs-1 and 2 got exhibited documents namely Ex.R1 to Ex.R11. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.4,57,834/- along with interest at the rate of 6% p.a. and directed the owner of the lorry to deposit the compensation amount along with interest. Being aggrieved, this appeal has been filed.
3. The learned counsel for the claimants has contended that as on the date of the accident, the driver of the offending lorry was having valid driving 5 licence, which was issued on 18.4.2006 and it was valid upto 17.4.2014. The Tribunal is not justified in fastening the liability on the insured/RC owner of the lorry. Hence, he prays for allowing the appeal.
4. On the other hand, the learned counsel for the Insurance Company has contended that the offending vehicle involved in the accident was a lorry, which is a Heavy Goods Vehicle. The driver of the lorry was having licence to drive transport vehicle and they have not produced the driving licence with an endorsement to drive the heavy goods vehicle. Therefore, the Tribunal has rightly fastened the liability on the owner of the lorry.
5. The respondent No.1, owner of the lorry is served and unrepresented. Even before the Tribunal, he was placed exparte.
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6. Heard the learned counsel for the appellants and respondent No.2 and perused the records.
7. It is not in dispute that deceased died in the road traffic accident occurred due to rash and negligent driving of the offending lorry by its driver. The owner of the lorry was made as party before the Tribunal, but he was placed exparte. The General Power of Attorney holder of respondent No.1 has produced the Driving Licence bearing No.694560/MKG/PROF dated 18.4.2006 issued by the RTO, Nagaland and it is valid upto 17.4.2014. The class of vehicle is shown as SC/LMV/MMV/HMV. The lorry is a heavy goods vehicle and for heavy transport vehicle, licence is issued only for a period of 3 years. Whereas the copy of licence produced by the the General Power of Attorney holder of respondent No.1 was issued on 18.4.2006. Since the owner of the 7 offending lorry has not produced the valid driving licence of the driver of the lorry and since the same is not marked, the Tribunal considering the materials available on record has given a finding that the driver of the offending lorry was not having valid driving licence as on the date of the accident and fastened the liability on the owner of the lorry. The said finding of the Tribunal is not challenged by the driver or the owner of the offending vehicle. In view of the law laid down by the Full Bench decision of this Court in the case of 'NEW INDIA ASSURANCE CO. LTD.
BIJAPUR vs. YALLAVVA AND ANOTHER' ILR 2020 Kar.2239, the Insurance Company is directed to pay compensation to the claimants with liberty to recover the same from the owner of the offending vehicle.
8. In the result, the appeal is disposed of. The Insurance Company is directed to deposit the compensation amount awarded by the Tribunal along 8 with interest within a period of four weeks from the date of receipt of copy of this judgment with liberty to recover the same from the owner of the offending lorry.
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
Sd/-
JUDGE DM