The Legal Manager vs Nikhil G
2021 Latest Caselaw 1128 Kant

                                          MFA 6581/2014
                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 18TH DAY OF JANUARY 2021

                        BEFORE

       THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

              M.F.A.No.6581/2014 (MV)

BETWEEN:

THE LEGAL MANAGER,
ROYAL SUNDARAM ALLIANCE,
INSURANCE COMPANY LIMITED,
NO.2315/B1-2068/B, 1ST FLOOR,
ABHARANA ARCADE, M.G.ROAD,
TUMKUR.
BY ROAYL SUNDARAM ALLIANCE COMPANY LTD.,
SUBRAMANIAM BUILDING, II FLOOR, NO.1,
CLUB HOUSE ROAD, ANNSASALAI,
CHENNAI - 600 002.
BY ITS MANAGER.                       ... APPELLANT

(BY SRI. O. MAHESH, ADV.)

AND:

1.     NIKHIL.G., AGE 13 YEARS,
       S/O LATE B.C.GANGADHAR,
       REPRESENTED BY NATURAL
       GUARDIAN MOTHER KALAVATHI,
       W/O LATE B.C.GANGADHAR,
       AGED ABOUT 37 YEARS,
       R/O NO.363, 4TH CROSS,
       SUVARNA NAGARA, NAGASANDRA POST,
       BANGALORE CITY.

       NOW AT RESIDING AT C/O DINESH,
       OORUKERE VILLAGE, KASABA HOBLI,
       TUMKUR TALUK - 572 101.
                                                     MFA 6581/2014
                                2



2.    NARAYANA REDDY A.G.
      AGED ABOUT 48 YEARS,
      S/O SHWATHA REDDY G.,
      R/AT NO.1, 22ND CROSS,
      BAGALAGUNTE, NAGASANDRA POST,
      BANGALORE - 560 073.
                                    ... RESPONDENTS
(BY SRI. P. CHANDRASHEKAR, ADV. FOR R-1,
    VIDE ORDER DATED 20.11.2017 NOTICE TO R-2
    IS HELD SUFFICIENT)


      THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT     AGAINST     THE    JUDGMENT    AND     AWARD
DATED:17.07.2014 PASSED IN MVC NO.1318/2012 ON THE
FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, MACT-10,
TUMKUR, AWARDING A COMPENSATION OF RS.2,25,000/-
WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION
TILL REALIZATION.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

1. The Insurance Company is in appeal challenging the

saddling of liability on it for a sum of Rs.2,25,000/-.

2. The case of the claimant who was a minor aged 11

years was that on 28.09.2012 when he was standing on the

footpath in front of bakery, Maruti Swift Car bearing No.KA-

41-A-0426 collided with him resulting in grievous injuries.

The minor claimant through his mother preferred a claim

petition seeking for compensation.

MFA 6581/2014

3. The Tribunal, on consideration of the evidence adduced,

came to the conclusion that the evidence produced before it

proved that an accident occurred on 28.09.2012 when the

minor was standing in front of the bakery, a Maruti Swift Car

collided with him resulting in grievous injuries to the minor.

4. The Tribunal proceeded to assess the compensation in a

sum of Rs.2,25,000/- and made the Insurance Company

liable by overruling the objections of the Insurance Company

that the driver of the vehicle did not possess license to drive

a transport vehicle and he possessed license to drive a light

motor vehicle.

5. The Insurance Company is, therefore, in appeal

contending that the saddling of liability on it was improper

and also on the ground that the Tribunal ought to have

considered that the claimant himself had contributed to the

accident.

6. I have heard the submissions of the learned Counsel

and perused the material on record.

MFA 6581/2014

7. The fact that an accident occurred is not in dispute. The

fact that the vehicle was insured is also not in dispute.

8. As far as the contention that the minor had contributed

to the accident is concerned, it has to be held that the

Tribunal on the basis of the evidence adduced has clearly

come to the conclusion that the minor had in no way

contributed to the accident, and therefore, the contention of

the Insurance Company was required to be rejected.

9. In my view, the finding of the Tribunal regarding

contributory negligence cannot be found fault with. The

Tribunal has recorded a finding that the claimant who was a

minor aged about 11 years standing in front of the bakery

attributed negligence without any evidence cannot be

accepted. I find no reason to disagree with this finding of the

Tribunal.

10. As regards the liability is concerned, learned Counsel

for the Insurance Company contended that though the

decision in the case of MUKUND DEWANGAN VS ORIENTAL

INSURANCE COMPANY LTD. - (2017)4 SCC 663, would cover

the question raised by it, he submitted that the correctness of MFA 6581/2014

the said judgment rendered by the Apex Court has been

doubted and the matter is now referred to the larger bench

and the same is pending consideration. He submitted that in

view of referring the matter to the larger bench regarding the

correctness of the decision in Mukund Dewangan's case, it

would be appropriate to defer the hearing of this case.

11. In my view, this contention of the Insurance Company

that the decision in this case should be deferred till the

decision of larger bench cannot be accepted. The decision

rendered by the Apex Court in Mukund Dewangan's case so

long as it has not been set aside, would be is binding on this

Court. A Three Judge Bench of the Supreme Court in Mukund

Dewangan's case has held that a person who holds a license

to drive light motor vehicle would also have the competence

to drive a transport vehicle subject to the weight

measurements.

12. In the instant case, admittedly, the driver did possess

the license for driving a light motor vehicle and the weight of

the vehicle in question was within the permissible limits, and

therefore, the said ratio would apply in all its force. I, thus, MFA 6581/2014

find no merit in this appeal of the Insurance Company and

the same is hereby dismissed.

13. The amount in deposit, if any, shall be transferred to

the Tribunal for disbursal in accordance with law.

Sd/-

JUDGE

KK