United India Insurance Company ... vs Smt. Fousia A. S
2022 Latest Caselaw 34 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 3RD DAY OF JANUARY, 2022

                       PRESENT

     THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR

                         AND
 THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

  MISCELLANEOUS FIRST APPEAL NO.8517 OF 2018 (MV)


BETWEEN :
UNITED INDIA INSURANCE COMPANY LTD
NEXT TO MAGISTRATE COURT
KRUSHI BHAVAN
NRUPATUNGA ROAD
BANGALORE
REP. BY ITS MANAGER                  ...APPELLANT

(BY SHRI. A M VENKATESH, ADVOCATE)


AND:
1.     SMT. FOUSIA A S
       W/O LATE AKBAR @ AKBAR KHAN
       AGED ABOUT 28 YEARS

2.     KUM FATHIMA
       D/O LATE AKBAR @ AKBAR KHAN
       AGED ABOUT 10 YEARS

3.     MASTER SALMAN KHAN
       S/O LATE AKBAR @ AKBAR KHAN
       AGED ABOUT 8 YEARS
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4.   SMT SAZAB @ SAJAD
     W/O MASTHAN KHAN
     AGED ABOUT 68 YEARS
     ALL ARE RESIDING AT
     BITTASANDRA PALYA
     YENNEGERE POST
     SOLUR HOBLI, MAGADI TALUK
     RAMANAGARA DISTRICT-562 127

     PETITIONER No.1 TO 3 ARE NOW
     R/AT No.226, TYAMAGONDLU
     NELAMANGALA TALUK
     BANGALORE RURAL DISTRICT-562 123

     SINCE RESPONDENT NO 2 AND 3 ARE MINORS
     REPRESENTED BY THEIR NATURAL GUARDIAN
     MOTHER i.e. RESPONDENT NO 1

5.   MR CHANDRAKANT AKRAM PATIL
     A/P KAMALAPUR TAL
     SANGOLA DISTRICT
     SOLAPUR
     MAHARASTRA-413 307                  ...RESPONDENTS

(BY SHRI. P SHIVA KUMAR, ADVOCATE FOR R1 TO R4;
     R2 AND R3 MINOR REPRESENTED BY R1)


      THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 05/06/2018, PASSED IN MVC
NO.1653/2017, ON THE FILE OF THE XXII ADDITIONAL SMALL
CAUSES JUDGE AND XX ACMM., AND MEMBER, MACT,
BENGALURU (SCCH-24), AWARDING COMPENSATION OF
RS.16,82,800/- WITH INTEREST AT THE RATE OF 8% P.A.,
FROM THE DATE OF PETITION, TILL DEPOSIT.

      THIS MFA COMING ON FOR ADMISSION THIS DAY,
P.S. DINESH KUMAR J, DELIVERED THE FOLLOWING:-
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                             JUDGMENT

This appeal is filed by the insurer challenging the

judgment and award dated June 5, 2018 in M.V.C

No.1653/2017 passed by the XXII Additional Small Causes

Judge and XX Additional Chief Metropolitan Magistrate &

MACT, Bengaluru.

2. For the sake of convenience, parties shall be referred

as per their status before the Tribunal.

3. Heard Shri B.C.Shivanne Gowda, learned advocate

for the appellant and Shri P.Shiva Kumar, learned

advocate for respondents No.1 to 4.

4. Shri Shivanne Gowda urged two contentions:

• firstly, that the Tribunal has erred in saddling the

liability on the Insurer because, the driver of the

offending vehicle did not possess a valid driving

licence. Admittedly, the offending vehicle is a

Lorry of 'Canter' make whose total gross weight is

9500 kgs. The learned Tribunal has recorded in

para 23 of the judgment that driver had obtained

licence to drive an LMV as per Exhibit R4. Having

so recorded, the Tribunal fell in error in saddling

the liability upon the insurer; and

• secondly, that the interest has been awarded at

8% p.a., whereas this Court in the motor vehicle

compensation cases has been consistently

awarding interest at 6% p.a.

5. Shri Shiva Kumar for the claimants submitted that

the first issue raised by Shri Shivanne Gowda that the

driver of the offending vehicle did not possess a valid

licence is untenable because, as held at Para 19 in Pappu &

Others Vs. Vinod Kumar Lamba and Another,1 the insurer

is duty bound to satisfy the award and recover the same

from the owner of the vehicle.

6. The said submission is not disputed by Shri Shivanne

Gowda.

AIR 2018 SC 592

7. We have carefully considered rival submissions and

perused the records.

8. The first ground urged by Shri Shivanne Gowda is

that insurer is not liable to satisfy the award because, the

driver of the offending vehicle did not possess a valid

driving licence. He has rightly submitted that the Tribunal

has recorded in para 23 of the judgment that the driver

had possessed licence to drive an LMV as per Exhibit R4.

We have perused Exhibit R4 issued by the Deputy RTO,

Akluj, Solapur District. Shri Shivanne Gowda also

adverted to Exhibit R5 and pointed out that the gross

weight of the offending vehicle is 9500 Kgs. He submitted

that Section 2(15) r/w Section 2(21) of the Motor Vehicles

Act, 1988 ('the Act' for short), makes it clear that only

such vehicles whose gross weight is less than 7500 Kgs.

falls under the category of an LMV. We have perused

Exhibit R5 also. The gross vehicle weight mentioned

therein is 9500 Kgs. As rightly pointed out by

Shri Shivanne Gowda, a vehicle to be categorized as light

motor vehicle, it's gross weight should not be more than

7500 Kgs. as defined in Section 2(21) of the Act.

Therefore, the driver of the offending vehicle did not

possess a valid licence to drive the vehicle in question.

9. Learned advocate for the claimants has placed

reliance on the authority in Pappu's case and the same is

not disputed by Shri Shivanne Gowda. Therefore, in the

facts and circumstances of the case, it is just and

appropriate to direct the insurer to satisfy the award with

liberty to recover the same from the owner of the vehicle.

10. So far as the second contention with regard to

interest is concerned, this Court in motor vehicles

compensation cases has been consistently awarding

interest at 6% p.a., and therefore, it is just and

appropriate to grant interest at 6% p.a.

11. In view of the above, the following:

ORDER

(i) Appeal is allowed in part;

(ii) The appellant - Insurance Company is directed

to satisfy the award amount with interest at 6% p.a., from

the date of filing of the claim petition till date of deposit of

the award amount with liberty to recover the same from

the owner of the offending vehicle by executing the decree

in this case.

No costs.

Sd/-

JUDGE

Sd/-

JUDGE

Yn