Ashfak Ali vs Ravi Kumar
2021 Latest Caselaw 5249 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 2ND DAY OF DECEMBER 2021

                        BEFORE

     THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD

                MFA No.113 OF 2019(MV)

BETWEEN:

Ashfak Ali,
S/o K.Abdul Kareem Sab,
Aged about 26 years,
No.414, Ramakrishnahegde Nagar,
Davanagere-577001.                         ... Appellant

(By Sri. Vigneshwar S Shastri, Advocate)

AND:

1.     Ravi Kumar,
       S/o Basavarajappa,
       Aged about 25 years,
       Student,
       R/o Hallihalu Village,
       Harihar Taluk,
       Davanagere District-577001.

2.     Umapathiaiah K.M.,
       S/o Halaiah,
       Aged about 63 years,
       R/o Door No.360, "A" Block,
       SOG Colony, Industrial Area,
       Davangere-577001.

3.     The Branch Manager
       National Insurance Company Ltd.,
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     Shivanaradamuni Plaza,
     MCC B Block,
     Dental College Road,
     Davanagere-577001.

4.   Naveen Kumar S.G.,
     S/o Suresh G.R.,
     Age Major,
     R/o Rajanahalli Village,
     Harihar Taluk,
     Davanagere-577001.

5.   J.N. Manjappa,
     S/o J.Nagappa,
     Age Major,
     R/o Rajanahalli Village,
     Harihar Taluk,
     Davanagere-577001.

6.   The Branch Manager,
     National Insurance Company Ltd.,
     Shivanaradamuni Plaza,
     MCC 'B; Block,
     Dental College Road,
     Davanagere-577 001.          ... Respondents

(By Sri. V.B.Siddaramaiah, Advocate for R1:
Sri. K.Sridhara, Advocate for R3 & R6:
R2,R4 & R5 are served and unrepresented)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:28.04.2018
passed in MVC No.456/2015 on the file of the Senior
Civil Judge & JMFC, MACT, Harihar,            awarding
compensation of Rs.3,27,720/- with interest @ 6% p.a.
from the date of petition till realization.

      This MFA, coming on for admission, this day, this
Court, delivered the following:
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                  JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the

Act', for short) has been filed by the claimant being

aggrieved by the judgment dated 28.04.2018

passed by the Motor Accident Claims Tribunal,

Harihara in MVC No. 456/2015.

2. Facts giving rise to the filing of the

appeal briefly stated are that on 22.01.2015 at

about 11.15 a.m., the claimant was proceeding on

motorcycle bearing registration No.KA-17/U-6517

as a pillion rider near Shamanuru Modern School.

At that time, an auto bearing registration No.KA-

17/A-6772 being driven by its driver at a high

speed and in a rash and negligent manner, dashed

to the motorcycle. As a result of the aforesaid

accident, the claimant sustained grievous injuries

and was hospitalized.

3. The claimant filed a petition under

Section 166 of the Act seeking compensation. It

was pleaded that he spent huge amount towards

medical expenses, conveyance, etc. It was further

pleaded that the accident occurred purely on

account of the rash and negligent driving of the

offending vehicle by its driver.

4. On service of notice, the respondent

Nos.1, 3 and 6 appeared through counsel and filed

separate written statements in which the

averments made in the petition were denied. The

age, avocation and income of the claimant and the

medical expenses are denied. It was pleaded that

the petition itself is false and frivolous in the eye of

law. The driver of the offending vehicle did not

have valid driving licence as on the date of the

accident. The liability is subject to terms and

conditions of the policy. It was further pleaded that

the quantum of compensation claimed by the

claimant is exorbitant. It was pleaded by Insurance

Company that the auto was not having valid fitness

certificate. Hence, they sought for dismissal of the

petition.

The respondent No.2 did not appear before

the Tribunal inspite of service of notice and was

placed ex-parte.

5. On the basis of the pleadings of the

parties, the Claims Tribunal framed the issues and

thereafter recorded the evidence. The claimant

himself was examined as PW-1 and

Dr.Nagabhushan D.M. was examined as PW-2 and

got exhibited documents namely Ex.P1 to Ex.P13.

On behalf of the respondents, three witnesses were

examined as RW-1 to RW-3 and got exhibited

documents namely Ex.R1 to Ex.R14. The Claims

Tribunal, by the impugned judgment, inter alia,

held that the accident took place on account of rash

and negligent driving of both the vehicles, as a

result of which, the claimant sustained injuries.

The Tribunal further held that the claimant is

entitled to a compensation of Rs.3,27,720/- along

with interest at the rate of 6% p.a. and directed the

owners of both the vehicles to deposit 50% of the

compensation amount each along with interest.

Being aggrieved, this appeal has been filed.

6. The learned counsel for the owner of the

auto has raised the following contentions:

Firstly, at the time of the accident the auto

was covered with valid insurance policy but there

was no fitness certificate. On that ground alone the

Tribunal has exonerated the Insurance Company.

In support of his contentions, he relied on the

judgment of a Division Bench of this Court in MFA

No.5993/2015 disposed of on 22.12.2020.

Secondly, even though the driver of the auto

was holding valid licence to drive to drive LMV

(non-transport), but he was driving the transport

vehicle. But in view of the law laid down by the

Hon'ble Apex Court in the case of MUKUND

DEWANGAN vs. ORIENTAL INSURANCE

COMPANY LIMITED reported in (2017) 14 SCC

663, the Insurance Company is liable to pay the

50% of the compensation amount. Hence, sought

for allowing the appeal.

7. On the other hand, the learned counsel

for the Insurance Company has contended that as

on the date of the accident the offending auto was

not having valid fitness certificate and the driver of

the offending auto was not holding valid driving

licence. Since the insured has violated the policy

condition, the Insurance Company is not liable to

pay the compensation. The Tribunal has rightly

exonerated the Insurance Company. Hence, he

sought for dismissal of the appeal.

8. Heard the learned counsel for the

parties. Perused the judgment and award and the

original records.

9. It is not in dispute that the claimant

suffered injuries in the accident occurred due to

rash and negligent driving of the offending auto by

its driver.

The Tribunal after considering the evidence of

the parties has held that the rider of the motorcycle

and the driver of the auto were equally negligent in

causing the accident and accordingly held that both

of them contributed 50% each to the accident and

exonerated the Insurance Company and directed

the owner of the offending auto and the motorcycle

to pay the compensation at 50% each.

10. This appeal is filed by the owner of the

auto. The only question that arises for

consideration is 'whether the Insurance Company is

liable to pay the compensation and has to

indemnify the owner of the auto to the extent of

50%?'

11. It is not in dispute that as on the date of

the accident the offending auto was not having

valid fitness certificate and also the driver of the

offending auto was having the driving licence to

drive LMV (Non-transport- but he was driving the

transport vehicle. The Hon'ble Apex Court in the

case of MUKUND DEWANGAN (supra) has held

that the licence to drive LMV (non-transport)

includes licence to drive LMV transport vehicle or

omnibus, the gross vehicle weight of either of which

or a motor car or tractor or road roller, the unladen

weight of any of which, does not exceed 7500 kgs.

In the case on hand, the unladen weight of the

vehicle involved in the accident is less than 7,500

kgs. In view of the above, the driver of the

offending vehicle was holding a valid and effective

driving licence to drive the said vehicle.

12. In respect of fitness certificate is

concerned, a Division Bench of this Court in MFA

No.5993/2015 disposed of on 23.12.2020 has held

as follows:

"A Division Bench of this Court in the case of UNITED INDIA INSURANCE COMPANY LIMITED vs. SMT.YASMIN BEGUM @ YASMIN passed in MFA No.5159/2016 decided on 19.07.2019 has held as hereinbelow:

'17. The controversy is with regard to there being any breach in the terms and conditions of the policy which according to learned counsel for the appellant-insurer would call for exoneration of the insurance company.

In this regard, learned counsel for the appellant-insurance company drew our attention to Section 66 of the Act which deals with necessity for permit of vehicle used as a transport vehicle in any public place and Section 56 of the Act which deals with regard to transport vehicle possessing a certificate of fitness. He contended that both these are mandatory requirements and in the instant case, the offending vehicle, the tipper lorry neither possessed a certificate of fitness nor had a permit to ply the vehicle on Bannerghatta Road. He further drew our attention to column No.7 of the charge-sheet wherein, it has been stated that the vehicle did not possess the fitness certificate as well as the permit.

18. Section 56 of the Act states that subject to the provisions of Sections 59 and 60 of the Act, a transport vehicle shall not be deemed to be validly registered for the purposes of Section

39, unless it carries a certificate of fitness in such form containing such particulars and information as may be prescribed by the Central Government, issued by the prescribed authority, or by an authorised testing station mentioned in sub-section (2), to the effect that the vehicle complies for the time being with all the requirements of the Act and Rules made thereunder.

19. The contention of appellant- insurer is that vehicle did not possess a fitness certificate, but the fact remains that in the instant case, the vehicle being a transport vehicle, had a valid registration under Section 39 of the Act. Registration of the vehicle under Section 39 of the Act would call for compliance of a condition precedent namely, possessing of a valid fitness certificate. In the instant case, since the vehicle in question was validly registered, it implies that it had a fitness certificate. Further, this is not a case where there

has been cancellation of the fitness certificate. When once registration of the vehicle has been made under Section 39 of the Act, it is presumed that the vehicle possesses a valid fitness certificate. There is no evidence on record to the effect that the fitness certificate of the vehicle had expired and if so, as to on what date it had expired. In the circumstance, we do not find any substance in the contention of learned counsel for the appellant-insurance company on the aspect that the offending vehicle did not possess a valid fitness certificate on the date of the accident. Further, it is noted that this is not a case where the Registration Certificate of the vehicle in question had been cancelled on account of the cancellation of the fitness certificate. No evidence has been let-in in that regard by the insurance company. Moreover, the necessity of the vehicle having a fitness certificate is not a condition of

the policy at the time of issuance of the insurance policy. But before a vehicle could be registered, there is a need for such a vehicle to have a fitness certificate and in the instant case even as per Ex.R.3, the vehicle in question had a valid Registration Certificate.'

20. This Court in 'RAJESH POOJARY vs. RAJESH AND ANOTHER ILR 2019 Kar.2940' following another Division Bench judgment has held that as on the date the policy was in force and that the permit is not cancelled, the insurance company is liable to pay the compensation. It has also opined that even if the insured did not possess the 'fitness certificate' for the offending vehicle, the Insurance Company cannot be exonerated on that ground." In view of the above, the Insurance Company

is liable to pay the compensation and to indemnify

the owner of the offending auto.

The Insurance Company is directed to deposit

50% of the compensation amount along with

interest @ 6% p.a. from the date of filing of the

claim petition till the date of realization, within a

period of six weeks from the date of receipt of copy

of this judgment to indemnify the owner of the

offending auto.

To the aforesaid extent, the judgment of the

Claims Tribunal is modified.

Accordingly, the appeal is allowed in part.

The amount in deposit is ordered to be

refunded to the appellant after due verification.

Sd/-

JUDGE

Cm/-