Mr.Abdulla vs Balbir Singh
2021 Latest Caselaw 79 Kant

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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
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     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',

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

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

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.

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

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

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