The General Manager, The Oriental ... vs Shivayogi S/O Basavaneppa ...
2022 Latest Caselaw 11545 Kant

                                                    1



                             IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                 DATED THIS THE 26TH DAY OF AUGUST, 2022

                                                 BEFORE

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

                                         M.F.A.NO.22606/2012 (MV)

                  BETWEEN:

                  THE GENERAL MANAGER,
                  THE ORIENTAL INSURANCE CO.LTD,
                  MERCHANTS BANK BUILDING,
                  S.R.CIRCLE, BAILHONGAL.
                                                                      ...APPELLANT

                                  (BY SMT. SHARMILA M. PATIL, ADVOCATE)

                  AND:

                  1.         SRI SHIVAYOGI,
                             S/O BASAVANNEPPA BADIGER,
                             AGE: 40 YRS,
                             OCC: AGRICULTURE AND CARPENTER,
                             (NOW NIL),
                             R/O TALLUR, TQ: SAUNDATTI,
                             DIST: BELGAUM NOW AT BAILHONGAL.

                  2.         SRI IRANNA CHANNAPPA KAMBAR,
                             AGE: MAJOR,
                             OCC: BUSINESS,
          Digitally signed   R/O TALLUR, TQ: SAUNDATTI,
          by J MAMATHA
J         Location:          DIST: BELGAUM.
          Dharwad
MAMATHA   Date:
          2022.08.27                                                ...RESPONDENTS
          10:12:50 +0530


                                (BY SRI C.R. CHIKKAMATH, ADVOCATE FOR R-2,
                                                 R-1 SERVED)
                                   2



     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED 08.03.2012
PASSED IN MVC.NO.353/2011 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND MEMBER, ADDL. MACT, BAILHONGAL,
AWARDING THE COMPENSATION OF RS.36,350/- WITH
INTEREST AT THE RATE OF 6% P.A., SHALL BE DEPOSITED
WITHIN SIX MONTHS FROM THE DATE OF THE ORDER.

    THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT  ON    16.08.2022, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:

                          JUDGMENT

This appeal is filed challenging the judgment and award

dated 08.03.2012, passed in M.V.C.No.353/2011, on the file of

the Senior Civil Judge and Additional MACT, Bailahongala ('the

Tribunal' for short), questioning the liability.

2. The parties are referred to as per their original

rankings before the Tribunal to avoid the confusion and for the

convenience of the Court.

3. The factual matrix of the case of the claimant before

the Tribunal is that on 17.06.2010 at about 3.00 p.m. when the

claimant was travelling by sitting as pillion on the motorcycle

bearing registration No.KA-25/R-4898, the rider driven the same

in a rash and negligent manner on Talluru-Jalikattu road, near

the land owned by Shivanagouda Patil, Talluru Village, Saundatti

Taluka and dashed his motorcycle to another motorcycle bearing

registration No.KA-03/J-9605 and caused an accident and the

claimant had sustained the injury, which has resulted in

permanent physical disability.

4. In pursuance of the claim petition, notice was issued

against the respondents i.e., owner and the Insurance Company

and both of them have been represented by their counsel and

filed the written statement denying the allegation regarding

mode of accident, age, occupation, income, nature and

consequences of the injuries. The claimant in order to

substantiate his claim, examined himself as P.W.1 and got

marked the documents at Exs.P.1 to 34. The respondent

Insurance Company examined the Branch Manager as R.W.1 and

got marked the documents at Exs.R.1 to 3. The Tribunal after

assessing both oral and documentary evidence available on

record, allowed the claim petition in part granting compensation

of Rs.72,700/- and deducted 50% and ordered to pay

Rs.36,350/-.

5. Being aggrieved by the judgment and award of the

Tribunal, the present appeal is filed by the Insurance Company

and the main contention urged in this appeal is that the Tribunal

has erred in determining the income of the claimant at

Rs.3,500/- per month in the absence of proof of document. It is

also contended that the Tribunal has erred in not considering

that the claimant has not complied with Section 3 of the Central

Vehicles Act. The law is very clear that a person holding a

learner's licence should compulsorily be accompanied by one of

the valid licence holder along with him. But in this case, no such

person was carried along with the rider. The Tribunal has

passed the order without considering the material documents

and evidence on record and hence it requires interference of this

Court.

6. The learned counsel in her argument she reiterated

the grounds urged in the appeal memo and mainly contend that

the Tribunal has committed an error in fastening the liability on

the Insurance Company, since he was having only learner's

licence and he did not carry any person who is having driving

licence along with him and not considered the material on record

and not considered the evidence of R.W.1 and hence it requires

interfere of this Court.

      7.     Per   contra,   the       learned   counsel   for    the

respondent/claimant    would    vehemently       contend   that   the

Tribunal has not committed any error in considering the material

on record and R.W.1 admitted in the cross-examination that the

policy marked at Ex.R.1 covers the risk of the rider and pillion

rider and also admitted that since 27.01.2010 to 26.07.2010,

the respondent No.1 had learner's licence to ride the motorcycle

with gear. It is also elicited that since 12.07.2010, the

respondent No.1 had licence to ride the motorcycle with gear.

However, denied the suggestion that he has never violated any

clause of the policy and considering the material on record, the

Tribunal has not committed any error in fastening the liability on

the Insurance Company. Hence, it does not require any

interference.

8. The learned counsel for the respondent/claimant in

support of his arguments relied upon the judgment of the

Coordinate Bench of this Court passed in M.F.A.No.22603/2011

c/w M.F.A.No.22491/2011. The learned counsel referring this

judgment contends that this Court in similar set of facts and

circumstances in respect of learner's licence, which the rider was

having, taken note of the principles laid down by the Apex Court

in the judgment in the case of MAHAMOODA AND OTHERS v.

UNITED INDIA INSURANCE COMPANY LIMITED AND

OTHERS reported in (2004) 13 SCC 684, wherein it is held

that when the offending vehicle was driven by a person holding

learner's licence, the insurer's liability existed and the said

proposition of law has been upheld by the Apex Court in the case

of the NATIONAL INSURANCE COMPANY LTD. v. SWARAN

SINGH AND OTHERS reported in (2004) 3 SCC 297 and

extracted paragraph Nos.93 and 94 and having given anxious

consideration to the principles laid down in the judgment,

modified the judgment of the Tribunal fastening the liability on

the insurer. Hence, the principles laid down in the judgment

referred supra is applicable to the fats of the case on hand and

hence it does not require any interference.

9. Having heard the learned counsel for the appellant

and the learned counsel for respondent No.2 and also

considering the material available on record, the points that

arise for the consideration of this Court are:

(i) Whether the Tribunal has committed an error in fastening the liability on the Insurance

Company inspite of the rider was having learner's licence?

(ii) What order?

Point No.(i):

10. Having heard the respective learned counsel and also

on perusal of the material available on record, the Tribunal took

the income of Rs.3,500/- per month and though this ground is

raised in the appeal, the learned counsel for the appellant not

seriously canvassed this ground and admittedly the accident was

taken place in 2010 and lesser income was taken compared to

the notional income as per the chart which is Rs.5,500/- per

month. Hence, I do not find any force in the ground urged in the

appeal memo regarding taking of income is concerned.

11. The main contention of the Insurance Company is

that the Tribunal has committed an error in fastening the liability

on the Insurance Company since the rider was having only the

learner's licence. Admittedly, there is no dispute with regard the

fact that as on the date of the accident i.e., 17.06.2010, in

terms of Ex.R.1, the rider was having learner's licence and the

same is elicited in the cross-examination of R.W.1 i.e., from

27.01.2010 to 26.07.2010. It is also admitted that

subsequently, he took the regular licence from 12.07.2010 and

also admittedly in terms of the policy Ex.R.1, the risk of the rider

and pillion rider is also covered. But the only question before

this Court is whether the liability can be fastened on the

Insurance Company when the rider was having only the learner's

licence.

12. The learned counsel for respondent No.2 relied upon

the judgment of Coordinate Bench of this Court referred supra,

wherein this Court modified the judgment and award and

fastened the liability on the insurer and directed to pay the

compensation awarded by the Tribunal. While fastening the

liability considered the judgment of the Apex Court in the cases

of Mahamooda (supra) and also Swaran Singh (supra) and

extracted paragraph Nos.93 and 94 of Swaran Singh case

wherein in paragraph No.93 referring Sections 4(3), 7(2), 10(3)

and 14 held that a learner's licence is, thus, also a licence within

the meaning of the provisions of the said Act. It cannot,

therefore, be said that when a vehicle is being driven by a

learner subject to the conditions mentioned in the licence, he

would not be a person who is not "duly licensed" resulting in

conferring a right on the insurer to avoid the claim of the third

party. It cannot be said that a person holding a learner's licence

is not entitled to drive the vehicle. Even if there exists a

condition in the contract of insurance that the vehicle cannot be

driven by a person holding a learner's licence, the same would

run counter to the provisions of Section 149(2) of the said Act.

13. It is also observed in paragraph No.94 that the

provisions contained in the said Act provide also for grant of

driving licence which is otherwise a learner's licence. Sections

3(2) and 6 of the Act provide for restriction in the matter of

grant of driving licence, Section 7 deals with such restrictions on

granting of learner's licence. Sections 8 and 9 provide for the

manner and conditions for grant of driving licence. Section 15

provides for renewal of driving licence. Learner's licences are

granted under the Rules framed by the Central Government or

the State Governments in exercise of their rule-making power.

Conditions are attached to the learner's licence granted in terms

of the statute. A person holding learner's licence would, thus,

also come within the purview of "duly licensed" as such a licence

is also granted in terms of the provisions of the Act and the

Rules framed thereunder. It is now a well-settled principle of

law that rules validly framed become part of the statute. Such

rules are, therefore, required to be read as a part of the main

enactment. It is also a well-settled principle of law that for the

interpretation of statute an attempt must be made to give effect

to all provisions under the rule. No provision should be

considered as surplusage.

14. Having taken note of the principles laid down by the

Apex Court in the judgment in the cases of Swaran Singh as

well as Mahamooda (supra), it is very clear that the insurers

liability exists and the Insurance Company cannot absolve its

liability on the ground that the Company is not liable if the

learner's licence holder drove the vehicle. Hence, the very

contention of the Insurance Company that fastening the liability

on the Insurance Company is erroneous cannot be accepted. I

do not find any merit in the appeal since I have already pointed

out that the rider was having the learner's licence and the same

was valid as on the date of the accident and immediately after

the expiry of the learner's licence, he has obtained the regular

driving licence which is admitted by R.W.1 in his cross-

examination. Hence, the appeal is devoid of merits.

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

following:

ORDER

The appeal is dismissed.

(Sd/-) JUDGE

MD