Karnataka High Court

The Branch Manager vs Ashok S/O Basanna Sajjan And Anr on 4 March, 2022

Bench: Ashok S. Kinagi

                            1




          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.200011/2015 (MV)
Between:
The Branch Manager,
Oriental Insurance Company Ltd.
Through its General Manager,
Chittapur Road,Yadgir,
Tq: & Dist: Yadgir, Reptd. By
The Divisional Manager,
Oriental Insurance Company Ltd.
Oriental Insurance Company Ltd.
N.G.Complex, Ist Floor,
Opp: Mini Vidhana Soudha,
Kalaburagi-585 102.
                                            ... Appellant
(By Sri.Uday.P.Honguntikar, Advocate)
And:
1.     Ashok S/o Basanna Sajjan,
       Age: 41 Years, Occ: Agriculture,
       R/o Yelheri, Now residing at
       Mata Manikeshwari Nagar, Yadgiri-585201.
2.   Ashok S/o Basanna Sajjan,
     Age: 41 Years, Occ: Agriculture,
     R/o Yelheri, Now residing at
     Mala Manikeshwari Nagar, Yadgiri-585201.
                                        ... Respondents
(By Sri.Ayyannagouda S.Patil, Advocate for R1;
Service of notice to R2 is held sufficient)
                              2




      This Miscellaneous First Appeal is filed under Section
173(1) of the MV Act praying to call for the records in MVC
No.207/2013 on the file of the Motor Accident Claims
Tribunal No.II at Yadgir dated 19.09.2014. Set aside the
judgment and award dated 19.09.2014 passed by the
Motor Accident Tribunal No.II at Yadgir dated 19.09.2014
by allowing the appeal.

      This appeal coming on for admission, this day, the
Court delivered the following:-


                       JUDGMENT

This appeal is filed by the Insurance Company

under Section 173(1) of the Motor Vehicles Act (for

short 'the Act') challenging the judgment and award

dated 19.09.2014 passed in MVC No.207/2013 by the

Member Motor Accident Claims Tribunal, Yadgiri (for

short hereinafter referred to as 'the Tribunal').

2. For the sake of convenience, parties are

referred to as per their ranking before the Tribunal.

3. Facts giving rise to filing of this appeal are

as under:

That on 04.06.2012 at 1.45 p.m., near Subam

Petrol pump at Yadgir, the claimant was proceeding on

the motorcycle bearing registration No.KA-33/J-9409

on the side of Gunj towards Hosallii cross. At that

time, the respondent No.1 drove the Tata Ace bearing

registration No.KA-33/8769 from the backside with

high speed in a rash and negligent manner and

dashed to the motorcycle by causing accident. The

claimant has sustained injuries in the said accident. It

is contended that the claimant was working as

agriculturist and business by earning Rs.6,000/- per

month. The claimant has spent huge amount towards

medical treatment. Hence, the claimant has filed the

claim petition under Section 166 of M.V.Act, seeking

for compensation on the ground of injuries sustained

in the road traffic accident. It is contended that the

respondent No.1 is the owner cum driver of the

offending vehicle and respondent No.2 is the insurer

of the said vehicle. At the time of accident the

insurance policy was in force as on the date of the

accident. Hence, the respondents are liable to pay the

compensation to the petitioner. Hence, the claim

petition.

3.1 Respondent No.1 filed written statement

denying the averments made in the petition and

prayed to dismiss the petition. Respondent No.2 filed

written statement denying the averments made in the

claim petition and also contended that respondent

No.1 was not holding valid and effective driving

license as on the date of the accident and there is a

breach of insurance policy. The Insurance Policy is

not liable to pay compensation. Hence, prayed to

dismiss the claim petition.

3.2 Based on the pleadings, the tribunal

framed the following issues;

(a) Whether the petitioner proves that on 04.06.2012 at 1.45 p.m., near Shubam Petrol pump at Yadgir he was proceeding on the motorcycle No.KA-33/J-9409 from the side of Gunj towards Hossalli cross, at that time the driver of TaTa Ace No.KA-33/8769 came from the back side with high speed rashly negligently and dashed to the motorcycle and caused accident and he was sustained injuries in the accident?

(b) Whether the respondent No.2 proves that the driver of vehicle No.KA-33/8769 was not holding valid and effective DL at the time of accident?

(d) What order or award?

3.3 The claimant was examined himself as

PW.1 and one witness as PW.2 and got marked

documents Exs.P1 to 29. Respondent No.1 got marked

Exs.R1 and R2 with the consent of learned counsel for

the claimant.

3.4 After considering the evidence and

considering the material on record, the tribunal has

held that the claimant has proved that on 04.06.2012

he met with an accident and the accident was due to

rash and negligent driving of the driver of the

offending vehicle and further held that the claimant

has sustained injuries. Further held that the

respondent No.2 has failed to prove that the driver of

the offending vehicle was not holding valid and

effective driving license at the time of accident and

further held that the claimant is entitled for the

compensation and consequently allowed the claim

petition by awarding compensation of Rs.2,02,293/-

with interest @ 6% p.a. from the date of petition till

realization of amount. It is further held that

respondent Nos.1 and 2 are jointly and severally liable

to pay the compensation. Being aggrieved by the

judgment and award passed by the tribunal, the

respondent No.2-Insurance Company has preferred

this appeal.

4. Heard the learned counsel for the

appellant.

5. Learned counsel appearing for the

appellant submits that the driver of the offending

vehicle was not having valid and effective driving

license as on the date of the accident. The tribunal did

not considered the said aspect and proceeded to

saddle the liability on the respondent No.2. He further

submits that there is a breach of policy. Hence, the

Insurance Company is not liable to indemnify the

respondent No.1. Further submits that the impugned

judgment and award passed by the tribunal is

arbitrary and erroneous. Hence, on these grounds, he

prays to allow the appeal.

6. Perused the records and considered the

submission made by the learned counsel for the

appellant.

7. After the learned counsel for the appellant,

the point that arise for consideration is with regard to

the liability.

8. It is not in dispute that the claimant has

met with an accident and sustained injuries. In order

to establish that the accident was occurred due to

rash and negligent driving of the driver of the

offending vehicle, the claimant has produced police

papers, which discloses that the accident was occurred

due to rash and negligent driving of the driver of the

offending vehicle. Based on the material available on

record, the tribunal is justified in recording a finding

that the accident was occurred due to rash and

negligent driving of the driver of the offending vehicle.

9. Insofar as liability is concerned, the

respondent No.2 has taken a specific defense in the

written statement that the respondent No.1 was not

having valid driving license as on the date of the

accident, as the respondent No.1 was having license

to drive Light Motor Vehicle. Respondent No.2 has

produced the extract of driving license of respondent

No.1, which is marked as Ex.R1, which discloses that

respondent No.1 was having valid driving license to

drive LMV.

10. The Hon'ble Apex Court in the case of

Mukund Dewangan Vs. Oriental Insurance

Company Limited and Others, reported in (2017)

14 SCC 663 has held at paragraph numbers 60.1 to

60.4 as under;

60.1. "Light motor vehicle" as defined in Section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with

section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.

60.2. A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, 'unladen weight' of which does not exceed 7500 kg. and holder of a driving licence to drive class of "light motor vehicle" as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.

60.3. The effect of the amendment made by virtue of Act No.54/1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of section 10(2) which contained "medium goods vehicle" in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and "heavy passenger motor vehicle" in section 10(2)(h) with expression 'transport vehicle' as substituted in section

10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle.

60.4. The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect.

11. Wherein the Hon'ble Apex Court held that if

a person is holding light motor vehicle would be

entitled to drive the transport vehicle as provided

under Section 10(2)(d) is competent to drive a

transport vehicle or omni bus.

12. In view of the law laid down by the Hon'ble

Apex Court stated supra, respondent No.1 was

competent to drive transport vehicle. After considering

the material on record, the tribunal was justified in

saddling the liability on the respondent No.2.

13. In view of the above discussions, I do not

find any grounds to interfere with the impugned