Karnataka High Court

Umesha S vs Sudhakara on 24 May, 2021

Author: H.P. Sandesh

                               1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 24TH DAY OF MAY, 2021

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                 M.F.A.NO.10895/2013 (MV)
                           C/W.
                 M.F.A.NO.10897/2013 (MV)

IN M.F.A.NO.10895/2013 (MV):

BETWEEN:

1.     UMESHA S
       S/O SHANKARAPPA M.S.
       AGED ABOUT 40 YEARS
       R/O MADALUGODU VILLAGE
       KUDUVALLI POST, THIRTHAHALLI TALUK
       SHIVAMOGGA DISTRICT-577301

2.     MAHESH M.S.
       S/O SHANKARAPPA GOWDA
       AGED ABOUT 42 YEARS
       R/O MADALUGODU VILLAGE
       KUDUVALLI POST, THIRTHAHALLI TALUK
       SHIVAMOGGA DISTRICT-577301
                                            ... APPELLANTS

             (BY SRI B.S.PRASAD, ADVOCATE FOR
            SRI B.G.CHIDANANDA URS, ADVOCATE)
AND:

1.     SUDHAKARA
       S/O NARAYANAPPA
       AGED ABOUT 23 YEARS
                                2



     OCC: MASON WORKER
     R/O NAVULE,
     NEAR GANAPATHI TEMPLE
     SHIVAMOGGA-577201

2.   THE MANAGER
     UNITED INDIA INSURANCE CO. LTD.,
     VINAYAKA MEDICAL COMPLEX
     1ST FLOOR, AZAAD ROAD, THIRTHAHALLI
     SHIVAMOGGA DISTRICT-577201
                                        ... RESPONDENTS

       (BY SRI CHIDAMBARA G.S., ADVOCATE FOR R1;
           SRI RAVISH BENNI, ADVOCATE FOR R2)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 12.12.2012
PASSED IN MVC NO.231/2012 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-III, SHIVAMOGGA, AWARDING A
COMPENSATION OF Rs.71,000/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL ITS REALISATION OR
DEPOSIT.

IN M.F.A.NO.10897/2013 (MV):

BETWEEN:

1.   UMESHA S
     S/O SHANKARAPPA M.S.
     AGED ABOUT 40 YEARS
     R/O MADALUGODU VILLAGE
     KUDUVALLI POST, THIRTHAHALLI TALUK
     SHIVAMOGGA DISTRICT-577301

2.   MAHESH M.S.
     S/O SHANKARAPPA GOWDA
     AGED ABOUT 42 YEARS
     R/O MADALUGODU VILLAGE
                             3



       KUDUVALLI POST, THIRTHAHALLI TALUK
       SHIVAMOGGA DISTRICT-577301
                                            ... APPELLANTS

             (BY SRI B.S.PRASAD, ADVOCATE FOR
            SRI B.G.CHIDANANDA URS, ADVOCATE)
AND:

1.     SMT. AMBIKA
       W/O NARAYANAPPA
       AGED ABOUT 46 YEARS
       OCC:COOLIE
       R/O NAVULE,
       NEAR GANAPATHI TEMPLE
       SHIVAMOGGA-577201

2.     THE MANAGER
       UNITED INDIA INSURANCE CO. LTD.,
       VINAYAKA MEDICAL COMPLEX
       1ST FLOOR, AZAAD ROAD, THIRTHAHALLI
       SHIVAMOGGA DISTRICT-577201
                                          ... RESPONDENTS

         (BY SRI CHIDAMBARA G.S., ADVOCATE FOR R1;
             SRI RAVISH BENNI, ADVOCATE FOR R2)


     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 12.12.2012
PASSED IN MVC NO.232/2012 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-III, SHIVAMOGGA, AWARDING A
COMPENSATION OF Rs.85,246/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL ITS REALISATION OR
DEPOSIT.


    THESE MFA'S COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                 4



                        JUDGMENT

These appeals are filed challenging the judgment and

award passed in M.V.C.Nos.231/2012 and 232/2012 dated

12.12.2012 on the file of the Fast Track-III and Addl. MACT-IV,

Shivamogga fastening the liability on the owner and driver.

2. The factual matrix of the case is that the claimants in

both the cases, who are the petitioners being the rider and

pillion rider on 04.11.2011 at 11.00 a.m., when they were

proceeding on their Bajaj Motor Bike bearing No.KA-13/R-3320

and the said motor bike is being driven by the petitioner in

M.V.C.No.231/2012 from Chowdihalli Village, Shikaripura Taluk

towards the temple of Ganemakki Village, Thirthahalli Taluk, at

that time, the first respondent being the driver of the goods auto

bearing No. KA.14/A-4479 drove his vehicle in a rash and

negligent manner and in high speed from the opposite direction

and dashed against the motor bike of the petitioner. As a result,

they sustained injuries and thereafter, they took treatment and

hence, they have filed the claim petitions.

3. Both the claimants, in support of their claim,

examined themselves as P.Ws.1 and 2 and got marked the

documents Exs.P1 to P14. Per contra, the respondent-insurance

company, examined one witness as R.W.1-Sri P.M. Rudramuni

and got marked the documents Exs.R1 to R5 i.e., R.C.Book,

Policy, Driving Licence, D.L. Extract and insurance policy

including the notarized copies. The Tribunal, after recording the

evidence and on hearing the learned counsel for the parties,

allowed the petitions in part fastening the liability on the owner

by coming to the conclusion that the driver of the auto was not

having the driving licence to drive the transport vehicle and he

was having only LMV licence. Hence, these two appeals are filed

by the owner.

4. The learned counsel for the appellant/owner would

vehemently contend that the Appe vehicle covers the goods

carrying public carriers package policy and this policy covers the

risk of the third parties and the Tribunal ought to have fixed the

liability on the insured-respondent No.2 when there was a valid

insurance policy in respect of the vehicle.

5. The learned counsel appearing for the

appellant/owner would also vehemently contend that, in view of

the judgment of the Apex Court in the case of Mukund

Dewangan v. Oriental Insurance Company Limited reported

in AIR 2017 SC 3668, the driver holding LMV licence can drive

all vehicles of class including transport vehicles and no separate

endorsement is required to drive such transport vehicles.

Hence, the liability is to be fastened on the insurance company

and not on the owner.

6. Per contra, learned counsel appearing for the

respondent-insurance company would vehemently contend that

the appellants have not led any evidence before the Trial Court

in order to substantiate their contention and hence, their

contention cannot be accepted. In the absence of any evidence

on the part of the appellants, the liability cannot be fastened on

the insurance company.

7. Having heard the learned counsel for respective

parties and also on perusal of the records, it is not in dispute

that the claimants, who were the rider and pillion rider drove the

motor cycle and accident has taken place on account of the rash

and negligent driving of the goods auto driven by the first

respondent and as a result, the claimants have sustained the

injuries. Further, the appellants are not before this Court

challenging the quantum of compensation but to fasten the

liability on the insurer.

8. Having perused the records and also the evidence,

there is no dispute with regard to the accident, however, the

dispute is only with regard to the fact that the driver was having

the driving licence to drive the LMV vehicle and was not having

the transport endorsement. The insurance company is not

disputing the fact that the driver was holding the LMV licence

but, the only contention is that the appellants have not led any

evidence. When the insurance company is not disputing the fact

that the driver was having valid driving licence to drive LMV and

merely because they have not led the evidence, the contention

of the learned counsel for the respondent-insurance company

cannot be accepted. In view of the principles laid down in

Mukund Dewangan's case, the driver holding LMV licence can

drive all vehicles of class including transport vehicles and no

separate endorsement is required to drive such transport

vehicles. When there is no dispute with regard to the fact that

the driver was having LMV licence and vehicle involved in the

accident is Appe auto and the claimants are the third parties, the

contention of the learned counsel for the respondent-insurance

company cannot be accepted.

9. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeals are allowed. The judgment and award passed in M.V.C.Nos.231/2012 and 232/2012 dated 12.12.2012 on the file of the Fast Track-III and Addl. MACT-IV, Shivamogga is modified fastening the liability on the insurance company instead of the appellants.