Balayya S/O Hanumanthappa vs Mahabooba W/O Late Md. Hussain And ...
2022 Latest Caselaw 3648 Kant

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          IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

       DATED THIS THE 4TH DAY OF MARCH, 2022

                          BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


                MFA No.31648/2013 (MV)

Between:

Balayya S/o Hanumanthappa,
Age: Major, Occ: Owner of
Tractor No.KA-36/TA-6437,
R/o: Madlapur, Tq: Manvi,
Dist. Raichur-584 101.
                                              ... Appellant
(By Sri Babu H. Metagudda, Advocate)

And:

1.     Mahabooba W/o Late Md. Hussain,
       Age: 26 years, Occ: Household,

2.     Ashiya D/o Late Md. Hussain,
       Age: 6 years, Occ: Minor,

3.     Arshad S/o Late Md. Hussain,
       Age: 4 years, Occ: Minor,
       Respondent No.2 & 3 are minors,
       Represented by their natural mother i.e.
       Respondent No.1.

       All are R/o Neermanvi, Tq. Manvi,
       Now R/o H.No.7-4-79/2,
       Opp: Bombay Co. Raichur-584 101.
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4.    The Manager, Legal,
      Cholamandalam,
      M.S. Gen. Insurance Co. Ltd.
      No.135/3, 2nd Floor,
      15th Cross, J.P.Nagar,
      III Phase, Bangalore-560 078.
                                            ... Respondents

(By Sri C.S.Kalburgi, Advocate for R4;
 Notice to R1 served;
 R2 & R3 are minors U/G of R1)


      This Miscellaneous First Appeal is filed under Section
173(1) of the MV Act praying to call for the records in MVC
No.393/2012 on the file of the MACT (FTC-I), At Raichur
and allow this appeal and set aside the judgment and
award dated 16.02.2013 passed in MVC No.393/2012 by
the MACT (FTC-I), At Raichur, and direct the respondent
No.4 Insurance company to pay the compensation to the
claimants, in the interest of justice and equity.


      This appeal coming on for Hearing, 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) is filed by the owner challenging the

judgment and award dated 16.02.2013 passed in MVC

No.393/2012 by the Motor Accident Claims Tribunal

(Fast Track Court-I), Raichur.

2. For the sake of convenience, parties are

referred to as per their ranking before the Claims

Tribunal. Appellant herein is respondent No.1 and

respondent Nos.1 to 3 herein are the petitioners

before the Tribunal and respondent No.4 herein is

respondent No.2 before the Tribunal.

3. Facts giving rise to the filing of the appeal

briefly stated are that on 26.05.2012 at about 7.00

a.m., the deceased-Md. Hussain was riding motor bike

bearing registration No.KA-36/K-3738 and one Anand

was a pillion rider. They were proceeding to attend to

their duties. When they reached near Manvi

Chikalparvi road, in front of Jadebasappa Temple at

about 7.30 a.m., a tractor bearing registration No.KA-

36/TA-6437 driven by its driver in a rash and

negligent manner dashed to the motorcycle and

caused the accident. Due to which, Md. Hussain

sustained grievous injuries and he was shifted to

Government Hospital in Manvi for treatment and

thereafter, he was referred to RIMS, Raichur for

further treatment and he succumbed to the injuries on

26.05.2012.

3.1. Petitioners being the legal representatives

of the deceased-Md. Hussain filed claim petition under

Section 166 of the Act seeking compensation for the

death of Md. Hussain in the road traffic accident.

Respondent No.1 is the owner of the vehicle and

respondent No.2 is the insurer. The offending vehicle

was insured with respondent No.2. Respondent Nos.1

and 2 are jointly and severally liable to pay

compensation and prayed to allow the claim petition.

3.2. Respondent No.1 filed written statement

admitting the fact that he is the owner of the tractor

bearing registration No.KA-36/TA-6437 and admitted

the factum of accident between the tractor and the

motorbike and denied the accident and also denied

the rash and negligent driving attributed against the

driver of the tractor and contended that the rider of

the motorbike himself was negligent in riding the

motorbike thereby invited the accident. On these

grounds, he prayed to dismiss the claim petition.

3.3. Respondent No.2 filed written statement

denying the fact that the tractor is insured with it and

denied the manner in which the accident has taken

place and rash and negligence attributed against the

driver of the tractor and further denied the age,

avocation and income of the deceased and prayed to

dismiss the claim petition.

4. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded evidence. In order to prove the case,

petitioner No.1 was examined as PW-1 and got

marked the documents as Ex.P1 to Ex.P6. On behalf

of respondent No.2, official of respondent No.2 was

examined as RW.1 and RTO has been examined as

RW.2 and got marked the documents as Exs.R1 to R4.

5. The Tribunal after recoding the evidence

and considering the material on record held that the

petitioners have proved that the deceased-Md.

Hussain died in the accident which occurred on

26.05.2012 due to rash and negligent driving of the

driver of the tractor and held that the petitioners are

entitled to compensation and consequently, allowed

the claim petition in part and awarded compensation

of Rs.9,00,200/- against respondent No.1 with

interest at the rate of 6% per annum from the date of

petition till the date of realization and dismissed the

claim petition against respondent No.2.

6. Being aggrieved by the said judgment and

award passed by the Tribunal, respondent No.1-owner

has filed the present appeal.

7. Heard learned counsel for respondent No.1-

owner and the learned counsel for respondent No.2-

Insurance Company.

8. The learned counsel for respondent No.1-

owner submits that the driver of the offending vehicle

was holding driving licence to drive light motor vehicle

as on the date of the accident. He further submits

that if the driver is holding licence to drive light motor

vehicle, he is entitled to drive transport vehicle.

Further, in support of his contention, he has placed

reliance on the judgment of the Hon'ble Apex Court in

the case of Mukund Dewangan v. Oriental

Insurance Company Limited reported in (2017)14

SCC 663 and he has also placed reliance on the

judgment of the Hon'ble Apex Court in the case of

Jagdish Kumar Sood vs. United India Insurance

Co. Ltd. and Ors., in Civil Appeal No.240/2017. He

submits that the Tribunal has committed an error in

saddling the liability on respondent No.1-owner and

prays to allow the appeal.

9. Per contra, learned counsel for respondent

No.2-Insurance company does not dispute the law laid

down by the Hon'ble Apex Court in Mukund

Dewangan's case and also in Jagdish Kumar

Sood's case (supra) and he prays to dismiss the

appeal.

10. Perused the records and considered the

submissions of the learned counsel for the parties.

11. The point that arises for consideration is

with regard to liability.

12. It is not in dispute that Md. Hussain met

with an accident that occurred on 26.05.2012 and he

succumbed to the injuries sustained in the road traffic

accident on the same day. In order to establish that

the accident was occurred due to rash and negligent

driving of the driver of the offending vehicle, the

petitioners have produced copy of charge sheet which

is marked as Ex.P3. Ex.P3 discloses that the accident

occurred due to rash and negligent driving of the

driver of the offending vehicle. Insofar as liability is

concerned, official of respondent No.2 is examined as

RW.1 and RTO is examined as RW.2 and respondent

No.2 has produced driving licence extract which is

marked as Ex.R3. Ex.R3 discloses that the driver of

the offending vehicle was possessing LMV licence. As

per the definition of Light Motor Vehicle as defined

under Section 2(21) of the Act would include transport

vehicle as per the weight prescribed in Section 2(21)

r/w Sections 2(15) and 2(48). Such transport vehicles

are not excluded from the definition of light motor

vehicle by virtue of Amendment Act 54 of 1994. Said

issue which arose before the Hon'ble Apex Court is not

res-integra and is covered by a judgment of a three

Judges of the Hon'ble Apex Court in Mukund

Dewangan's case (Supra) in which the Hon'ble Apex

Court held that a person possessing licence to drive

light motor vehicle is competent to drive transport

vehicle and further held that no further endorsement

is required to drive the transport vehicle. Further, the

said judgment has been referred by the Hon'ble Apex

Court in Jagdish Kumar Sood's case (supra).

Admittedly, driver of the offending vehicle was holding

licence to drive light motor vehicle and the said fact

has not been denied by respondent No.2-Insurance

company, on the contrary, the Insurance Company

has produced driving licence of the driver of the

offending vehicle which is marked as Ex.R3. Further,

it is admitted fact that as on the date of the accident,

vehicle was insured with respondent No.2-Insurance

company. Therefore, the Tribunal has committed an

error in saddling the liability on respondent

No.1/owner.

13. In view of the above discussion, I proceed

to pass the following:

ORDER

The appeal is allowed.

The judgment and award dated 16.02.2013 passed by the Tribunal in MVC No.393/2012 is modified.

Respondent Nos.1 and 2 are jointly and severally liable to pay compensation to the petitioners. Respondent No.2 is

directed to deposit the compensation amount as awarded by the Tribunal within a period of eight weeks from the date of receipt of copy of this judgment.

Registry is directed to refund the amount of Rs.25,000/- which is in deposit before this Court in favour of the appellant/owner.

Sd/-

JUDGE NB*