Karnataka High Court

Yogeesh S/O Kollappa vs Rukmini W/O Panduranga on 19 July, 2022

Bench: J.M.Khazi

                            1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 19TH DAY OF JULY, 2022

                          BEFORE

             THE HON'BLE MS.JUSTICE J.M.KHAZI

                M.F.A.NO.9691/2011 (MV)
BETWEEN:

1.     YOGEESH
       S/O KOLLAPPA
       MAJOR,
       DRIVER OF THE BUS
       R/O SAMPEKATTE,
       MOTHIMANE,
       HOSANAGARA TALUK - 577 201

2.     C.A.K. THANGAL
       S/O SYED AHMED
       MAJOR,
       OWNER OF THE BUS
       R/O RIPPONPET,
       HOSANAGARA TALUK - 577 201
                                           ... APPELLANTS
(BY SRI. ABDUL ANSAR, ADVOCATE FOR
    SRI. ABUBACKER SHAFI, ADVOCATE)

AND:

1.     RUKMINI
       W/O PANDURANGA
       AGED ABOUT 43 YEARS,
       HOUSE HOLD WORK AND TAILORING,
       R/AT SANNI KOPPA,
       KONANDUR POST,
       THIRTHAHALLI TALUK,
       PRESENTLY R/O ERULLI-
       KRISHNAPPA BUILDING,
                                2


     KRISHNA NILAYA,
     5TH CROSS, ASHOKA ROAD,
     GANDHI BAZAR,
     SHIVAMOGGA CITY - 577 201

2.   I.C.I.C.I INSURANCE CO. LTD.,
     SHIVAMOGGA - 577 201
     INSURER OF THE BUS,
     COVER NOTE NO.52576351,
     VALID UPTO 27/09/2008.

                                        ...RESPONDENTS
(BY SRI. SHIVARAM R BHAT, ADVOCATE FOR
    SRI. M RAVINDRANATH, ADVOCATE FOR R1;
    SRI. B PRADEEP, ADVOCATE FOR R2)

      THIS MFA FILED U/S 173(1) OF MV ACT PRAYING TO SET
ASIDE THE IMPUGNED JUDGMENT AND AWARD PASSED BY THE
1ST ADDL. SR. CIVIL JUDGE & MACT-IV AT SHIVAMOGGA IN MVC
NO.102/2008 DATED 30.06.2011; ALLOW THE ABOVE APPEAL.

     THIS MFA HAVING BEEN HEARD AND RESERVED ON
30.06.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

This appeal filed under Section 173(1) of the Motor

challenging the impugned judgment and award dated

30.06.2011, whereby the Tribunal absolved respondent

No.3-Insurance Company from paying compensation and

directed respondent Nos.1 and 2 pay the same.

2. Facts: Brief facts leading to filing of the claim

petition are that on 18.03.2008 at 11.00 a.m., petitioner

was travelling from Thirthahalli to Konanduru in bus bearing

registration No.KA-15/3195. It was driven by respondent

No.1 in a high speed in a rash or negligent manner and

dashed against Lorry bearing registration No.KA-20/6666

which was parked by the side of the road near the

Sunkadahole Bridge. As a result of the accident, petitioner

sustained grievous injuries. She was treated at J.C.Hospital,

Thirthahalli and also in a private clinic. Inspite of prolonged

treatment, she is not completely cured.

3. Before the accident, petitioner was doing

tailoring and earning. After the accident, she is unable to do

the work and thereby suffering loss of income. As the

driver, owner and insurer of the offending vehicle,

respondent Nos.1 and 2 are jointly and severally liable to

pay the compensation.

4. After due service of notice, all the respondents

have appeared. Respondent No.1 has not filed the

statement of objections.

5. Respondent No.2 has filed statement of

objections contending that at the time of accident, the

offending vehicle was being driven slowly and cautiously.

However asthe lorry was parked in the middle of the road

without any indicators and without leaving sufficient space

for the vehicles to pass through, accident occurred. At the

time of accident, respondent No.1 was having a valid

driving licence and it was covered by a valid policy. In the

event of allowing the claim petition, respondent No.3 be

directed to pay the compensation.

6. In the written statement, respondent No.3 has

contended that the petition is bad for non joinder of the

owner, driver and insurer of the lorry bearing registration

No.KA-20/6666. At the time of alleged accident, the

offending vehicle was covered by a valid policy and its

liability is subject to the terms and conditions of the policy.

7. Respondent No.2 has denied that at the time of

accident, respondent No.1 was having a valid driving

licence and therefore, it is not liable to indemnify

respondent No.2. It has also denied the age, occupation,

income, nature of the injury and disability sustained. The

compensation claimed is on the higher side and sought for

the dismissal of the claim petition against it.

8. Based on the pleadings, the Tribunal has framed

necessary issues.

9. During the enquiry, petitioner has examined

himself as PW-1 and relied upon Exs.P-1 to 14.

10. Respondent No.1 is examined as RW-1 and one

witness as RW-2 and Exs.R-1 to 7 are marked.

11. Vide the impugned judgment and award, the

Tribunal has dismissed the petition against respondent No.3

and granted compensation in a sum of Rs.20,615/- with

interest at 6% p.a and directed respondent Nos.1 and 2 to

pay the same as detailed below:

                         Heads               Amount in Rs.

           Pain and suffering inclusive of           15,000
           injuries
           Transportation,           extra            5,000
           nourishment and attendant's
           charge         during       the
           hospitalization period
           TOTAL                                    20,615

12. During the course of arguments, learned counsel

representing respondent Nos.1 and 2 argued and submitted

that the Tribunal has failed to appreciate the fact that

accident occurred due to the wrong parking of lorry bearing

registration No.KA-20/6666 and therefore, the petition

ought to have been dismissed as against respondent Nos.1

and 2 as the petitioner has failed to implead the owner and

insurer of the lorry bearing registration No.KA-20/6666. The

petition was liable to be dismissed for non joinder of

necessary parties. Even though at the time of accident,

respondent No.1 was holding a valid driving license, the

Tribunal has erred in absolving respondent No.3 and

saddling the liability on respondent Nos.1 and 2. The

impugned judgment and award is contrary to the facts and

probabilities of the case and as such, perverse and prays to

allow the appeal and dismiss the petition as against

respondent Nos.1 and 2.

13. Heard arguments and perused the records.

14. It is relevant to note that petitioner has not

challenged the impugned judgment and award so far as

quantum is concerned.

15. Thus, respondent Nos. 1 and 2 are aggrieved by

the fact that inspite of there being a valid insurance policy

and driving license, by the respondent No.1 who was the

driver of the offending vehicle, the Tribunal has absolved

respondent No.3 from paying the compensation and

directed respondent Nos.1 and 2 to pay the same. The

other grounds urged are that there was negligence on the

part of the driver of lorry bearing registration

No.KA-20/6666 in parking the lorry in the middle of the

road and therefore, the petition is bad for non joinder of the

owner and insurer of the said lorry. It has also challenged

the impugned judgment and award with regard to the

quantum as on the higher side.

16. From the perusal of the evidence placed on the

record it is evident that while in the objection statement,

respondent No.2 has contended that the lorry was parked in

the middle of the road, during the course of his evidence,

respondent No.2 who is the driver of the offending vehicle

has deposed that the lorry was proceeding in front of the

offending vehicle and since the driver of the lorry abruptly

applied brake, accident occurred. Appreciating this aspect,

the Tribunal has rightly held that accident occurred due to

the rash or negligent driving of the offending vehicle by

respondent No.1 and the driver of the lorry had nothing to

do with the said accident and I find no reason to interfere

with the said conclusion arrived at by the Tribunal.

Consequently, the presence of the owner and insurer of the

lorry in question is not necessary.

17. So far as the quantum of compensation is

concerned, appreciating the nature of the injury suffered by

the petitioner, period of treatment, the Tribunal has rightly

granted compensation in a sum of Rs.20,615/- and it is

reasonable and adequate.

18. Now, coming to the contention of respondent

Nos.1 and 2 that at the time of accident, respondent No.1

was holding a valid driving license and the Tribunal is not

correct in holding otherwise. It is pertinent to note that

vehicle in question is a LMV stage carriage as per Ex.R6

produced by respondent No.3. This document is the 'B'

license of respondent No.2. As per this document, from

17.05.2004 to 16.04.2024, respondent No.1 is issued with

driving license to drive LMV. The endorsement on Ex.R1

reveal that from 16.10.2010 he has been issued with

license to drive HTV i.e, heavy transport vehicle. The date

of accident is 18.03.2008. Therefore, as on the said date,

he was not having a license to drive the HTV. In fact during

his cross-examination, respondent No.1 who is examined as

RW-1 has admitted that as on the date of accident, he was

not having license to drive the bus.

19. It is relevant to note that the offending vehicle is

classified as LMV(S/C). Its seating capacity is given as 24.

While making suggestion that he was not having license to

drive bus, it is not made clear whether it refers to LMV(S/C)

or HTV. The fact that the offending vehicle is LMV(S/C) is

also forthcoming from the insurance policy at Ex.R3. It is

relevant to note that subsequent to the evidence of RW-2,

the employee of respondent No.3 - Insurance company,

RW-1 is further examined in chief and through him Ex.R7 is

produced. According to this document, from 17.10.2007,

respondent No.1 is issued with license to drive HTV.

However, this endorsement is contrary to the endorsement

on Ex.R1 according to which the license to drive HTV was

issued with effect from 16.10.2010. For this reason, the

Tribunal has rejected the contention of respondent Nos.1

and 2 that as on the date of accident, respondent No.1 was

having a valid driving license to drive HTV. However, fact

remains that the vehicle in question is LMV (S/C).

20. At this stage, it is necessary to refer to the

decision of Hon'ble Supreme Court in Mukund Devangan

Vs. The Oriental Insurance Co.Ltd (Mukund

Devangan's case) (2017) 14 SCC 663, wherein it is held

that license to drive LMV includes license to drive LMV

Transport. Therefore, I hold that as on the date of the

accident, respondent No.2 was having a valid driving

license and therefore respondent No.3 being the insurer of

the said vehicle is liable to indemnify respondent No.2. To

this extent the impugned judgment and award is liable to

be modified.

21. In the result appeal succeeds in part and

accordingly, I proceed to pass the following:

ORDER

(i) Appeal filed by respondent Nos.1 and 2 is allowed in part.

(ii) The impugned judgment and award so far as quantum of compensation is concerned is confirmed. However, respondent No.3 being the insurer of the offending vehicle is directed to pay the compensation together with interest.