United India Insurance Co. Ltd vs Sri. Gowtham R
2021 Latest Caselaw 6923 Kant

                              1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 21ST DAY OF DECEMBER 2021

                           BEFORE

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

                 MFA No.5954 OF 2016(MV)

BETWEEN:

United India Insurance Co. Ltd.,
Regional Office,
5th and 6th Floor,
Krishi Bhavan,
Nrupathunga Road,
Bengaluru-01.
Rep. By its Manager,
Sri.N.Gopal Reddy.                          ... Appellant

(By Sri. Krishna Kishore S., Advocate)

AND:

1.     Sri. Gowtham R.,
       Aged about 24 years,
       S/o Sri. P.M. Ravi,
       Residing at No.31,
       Guthandavara Kovil Street,
       Pulimedu, Vellur Taluk & District,
       Tamilnadu State-600001.

2.     Sri. Lakshmana Yenumula,
       S/o Pandeswar Rao Yenmula,
       A-7-104, B Block,
       Janapriya 1st Avenue Apartment,
       Arishinakunte,
       Nelamangala Taluk,
                              2



     Bangalore District-562 123.        ... Respondents

(By Sri. R.H. Deshpande, Advocate for R1:
Notice to R2 H/S )

       This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:01.07.2016 passed
in MVC No.5196/2014 on the file of the Member, MACT,
16th Additional Judge, Court of Small Causes, Bengaluru,
awarding, with interest at 9% p.a. from the date of
petition till the date of payment.

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

                     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 Insurance Company

being aggrieved by the judgment dated 01.07.2016

passed by the Motor Accident Claims Tribunal,

Bangalore City (SCCH-14) in MVC No.5196/2014.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 26.06.2014 at about 9.45

p.m., the claimant was walking on the extreme left

side of KSRTC service road, Majestic, Bangalore. At

that time, a car bearing registration No.KA-01/MF-49

being driven by its driver at a high speed and in a

rash and negligent manner, dashed to the claimant.

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 No.1

appeared through counsel and filed written statement

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 accident was due to the negligence of the

claimant himself. It was further pleaded that the

driver of the offending vehicle did not have valid

driving licence as on the date of the accident. It was

further pleaded that 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. Hence, he 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.S.A.Somashekar as PW-2

and got exhibited documents namely Ex.P1 to Ex.P16.

On behalf of the respondents, one witness was

examined as RW-1 and got exhibited documents

namely Ex.R1 to Ex.R6. 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 claimant sustained injuries. The Tribunal

further held that the claimant is entitled to a

compensation of Rs.3,92,000/- along with interest at

the rate of 9% p.a. and directed the Insurance

Company to deposit the compensation amount along

with interest. Being aggrieved, this appeal has been

filed.

6. The learned counsel for the Insurance

Company has raised the following contentions:

Firstly, at the time of the accident the driver of

the offending vehicle was having learners licence to

drive LMV (non-transport). As per Motor Vehicle Rules

he has to be accompanied by a person having valid

driving licence. Since the owner of the offending

vehicle has violated the policy condition, the

Insurance Company is not liable to pay the

compensation. The owner of the offending vehicle

has not appeared before the Tribunal to prove that he

was having a valid driving licence or he was

accompanied by a person who was having a valid

driving licence as per the Rules. The Tribunal, only on

the basis of Ex.P8, the statement given by one Kumar

in the criminal case has held that the driver of the

offending vehicle was accompanied by a person

having a valid driving licence. Even the driving licence

of Kumar has not been produced and there is no

evidence of either the owner of the car or Kumar. The

Tribunal has erred in coming to the conclusion that

the driver of the offending vehicle has followed all

procedures of law when he was driving the vehicle.

This finding of the Tribunal is unsustainable.

Secondly, in view of the law laid down by a

Division Bench of this Court in the case of

MS.JOYEETA BOSE AND OTHERS vs.

VENKATESHAN.V AND OTHERS (MFA 5896/2018

and connected matters disposed of on

24.8.2020), the interest granted by the Tribunal at

the rate of 9% p.a. is on the higher side and the same

has to be reduced to 6% p.a. Hence, he sought for

allowing the appeal.

7. The learned counsel for the owner cum driver

of the offending vehicle is served and has remained

unrepresented.

8. On the other hand, learned counsel appearing

for the claimant has contended that even though the

driver of the offending vehicle was having learners

licence to drive LMV (non-transport) he was

accompanied by one Kumar who was having a valid

driving licence. Therefore, the Tribunal has rightly

held that the Insurance Company is liable to pay the

compensation. Hence, he sought for dismissal of the

appeal.

9. Heard the learned counsel for the parties.

Perused the judgment and award and the original

records.

10. It is not in dispute that the claimant

suffered injuries in the accident occurred due to rash

and negligent driving of the offending vehicle by its

driver.

Considering the evidence of the parties and the

materials available on record, the overall

compensation awarded by the Tribunal is just and

reasonable.

In view of the law laid down by a Division Bench

of this Court in the case of JOYEETA BOSE (supra),

the rate of interest awarded by the Tribunal at 9%

p.a. is scalled down to 6% p.a.

Re.liability:

11. It is not in dispute that the second

respondent who is the owner cum driver of the

offending vehicle was having LLR to drive LMV (non-

transport). Even though he has claimed that he was

accompanied by one Kumar who is having the valid

driving licence, he has not entered the witness box

and he has not adduced any evidence. Even Kumar

also not entered the witness box to prove that he has

accompanied the driver of the offending vehicle and

he was having a valid driving licence. Under these

circumstances, the matter requires to be remanded

back to the Tribunal only for the limited purpose of

proving that the driver of the offending vehicle was

accompanied by a person having a valid driving

licence.

12. In view of the above, the appeal is allowed in

part. The judgment and award passed by the Tribunal

is set aside only in respect of liability is concerned. In

respect of quantum, the same is confirmed and in

respect of rate of interest is concerned, the same is

modified. The matter is remitted back to the Tribunal

only for the purpose of deciding the liability and to

consider the question as to whether the driver of the

offending vehicle was accompanied by a person

having valid driving licence as per the Motor Vehicles

Act and Rules. The parties are at liberty to adduce

additional evidence and produce additional documents.

The Tribunal after giving opportunity to both the

parties, dispose of the matter in accordance with law.

The offending vehicle is covered with valid

insurance policy. Hence, the Insurance Company has

to pay the compensation amount along with interest

@ 6% p.a. from the date of petition till the date of

realization within a period of six weeks from the date

of receipt of a copy of this order. If the Tribunal

holds that the insured has violated the policy

condition, the Insurance Company is at liberty to

recover the same from the owner of the offending

vehicle.

The parties are directed to appear before the

Tribunal on 02.02.2021. The Tribunal, after issuing

notice to the owner of the offending vehicle, decide

the matter in accordance with law, within six months

from 02.02.2021.

Sd/-

JUDGE

Cm/-