Karnataka High Court
Sri Jayappa vs Sri Manjunatha on 13 October, 2022
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.No.5109/2014 (MV-I)
BETWEEN:
SRI JAYAPPA
S/O HANUMANTHAPPA,
AGED ABOUT 64 YEARS,
OWNER OF THE TRACTOR,
BEARING REG. NO. KA-14/T-3649,
R/O. U. BEVINAHALLI VILLAGE,
HARAPPANAHALLI TALUK,
DAVANAGERE DISTRICT. ... APPELLANT
(BY SRI K. RAJASHEKHAR, ADVOCATE)
AND:
1. SRI MANJUNATHA
S/O NAGAPPA,
AGED ABOUT 40 YEARS,
DRIVER OF THE TRACTOR,
BEARING REG. NO. KA-14/R-3649,
R/O. GANGANARASI VILLAGE,
HARIHAR TALUK,
DAVANAGERE DISTRICT-577601.
2. THE MANAGER,
SHRIRAM GENERAL INSURANCE COMPANY LTD.,
E-8, IEPIP, RIICO,
SITAPURA, JAIPUR (RJ)
POLICY NO.10003/31/10/065885
2
3. SRI. ANNAPPA
S/O. GONEPPA,
AGED ABOUT 40 YEARS,
AGRICULTURIST & MILK VENDOR,
GANGANARASI VILLAGE,
HARIHAR TALUK,
DAVANAGERE-577601. ... RESPONDENTS
(BY SMT.SHRUTHI, ADVOCATE FOR
SRI M.VINAYA KEERTHY, ADVOCATE FOR R3;
SRI O.MAHESH ADVOCATE FOR R2;
VIDE COURT ORDER DATED 23.08.2017,
NOTICE TO R1 DISPENSED WITH)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 17.04.2013
PASSED IN MVC NO.168/2010 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND ADDITIONAL MACT, HARIHAR AND ETC.
THIS M.F.A. COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment and award
dated 17.04.2013 passed in M.V.C.No.168/2010 on the file of
the Senior Civil Judge and Additional MACT, Harihar ('the
Tribunal' for short).
2. Heard the learned counsel appearing for the
appellant and the learned counsel appearing for respondent Nos2
and 3.
3. The factual matrix of the case is that when the
appellant was traveling on motorcycle, the driver of the tractor
dashed against him as a result, he had sustained injury. Hence,
he made the claim against the insured and also the insurer. The
Tribunal after considering both the oral and documentary
evidence, awarded compensation of Rs.1,02,800/- with 6%
interest. However, fastened the liability on the insured and
exonerated the liability on the Insurance Company on the
ground that the driver of the vehicle is not having valid licence to
drive LMV (NT) vehicle.
4. The learned counsel appearing for the respondent
No.3 would vehemently contend that the Tribunal has committed
an error in fastening the liability on the owner inspite of the
document at Ex.R1-DL which clearly shows that he was having
the driving licence to drive LMV (NT) vehicles and apart from
that he is having a HTV licence and the Tribunal has not
assessed the evidence properly and dismissed the claim petition
against the Insurance Company without assigning any reasons.
5. The learned counsel appearing for the Insurance
Company vehemently contend that the appeal against the driver
was dismissed before the Tribunal and in the absence of driver
as a party to the proceedings, the very claim petition itself is not
maintainable and the counsel also submits that in paragraph 10,
the Tribunal discussed with regard to the nature of licence which
he was having and also the counsel would submit that at the
most, pay and recovery has to be ordered against the insurer.
6. In reply to the arguments, the learned counsel
appearing for the appellant relied upon the judgment of the Apex
Court in the case of NAGASHETTY vs UNITED INDIA
INSURANCE CO. LTD., AND OTHERS reported in (2001) 8
SCC 56 and also relied upon another judgment of the Apex
Court in the case of NATIONAL INSURANCE COMPANY LTD.,
vs ANNAPPA IRAPPA NESARIA AND OTHERS reported in
AIR 2008 SC 1418(1) wherein discussed with regard to the
light motorcycle covers light passenger carriage vehicle and light
goods carriage vehicle and driver possessing LMV licence cannot
be said to not possess effective licence to drive Matador van
having Goods Carriage permit and the Insurance Company
cannot shirk its liability to pay compensation.
7. The learned counsel appearing for the claimant
would contend that the Tribunal has committed an error in
fastening the liability on the insured instead of insurer.
8. Having heard the respective counsel appearing for
the parties and also on perusal of the material on record it is not
in dispute with regard to the accident is concerned and also it is
not in dispute with regard to the licence which the driver of the
tractor was possessing i.e., Ex.R1 and on perusal of Ex.R1 it
shows that the driver of the tractor was having the driving
licence to drive LMV and also HTV vehicle. When such being the
case, the vehicle involved in the accident is a light motorcycle
and the driver was having licence to drive non-transport vehicle
hence, the Tribunal has committed an error in coming to a
conclusion that the driver of the tractor is not having valid
licence to drive thesame. The very contention of the Insurance
Company counsel that the claim petition dismissed against the
driver and hence, the claim petition is not maintainable and the
owner has been made as a party to the proceedings before the
Tribunal. When such being the case, the very contention of the
counsel for the Insurance Company that the claim petition is not
maintainable cannot be accepted.
9. Having considered the nature of the DL which the
driver was possessed at Ex.R1 and also in the cross-examination
of RW1 who has been examined on behalf of the Insurance
Company though he claims that the tractor and trailer licence
would be given for a period of 20 years for agricultural purpose
and non-transport vehicle and transportation of tractor and
trailer for three years. In the cross-examination, he admits that
he does not know the tractor was involved in the accident and
trailer was not involved. However, he categorically admits that
tractor comes within the category of LMV and he also admits
that tractor comes within the catergory of non-transport vehicle.
When such admission is given by RW1 and when he was having
DL to drive the LMV as well as non-transport vehicle, the
admission given by RW1 takes away the case of the Insurance
Company and the Tribunal has not discussed the evidence of
RW1 while coming to a such conclusion while passing the order
hence, the Tribunal has committed an error in fastening the
liability on the insured instead of insurer.
10. In view of the discussions made above, I pass the
following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and award of the
Tribunal dated 17.04.2013 passed in
M.V.C.No.168/2010 is modified setting aside
the liability fastened on the insured instead of
insurer. Hence, the Insurance Company is
directed to pay the compensation as awarded
by the Tribunal with interest at the rate of 6%
per annum from the date of petition till
deposit.
(iii) The Insurance Company is directed to pay the
compensation amount with interest within six
weeks from today.
(iv) The Insurance Company is not liable to pay the
interest for the delayed period of 349 days and
the insured is directed to pay the interest for
the said delayed period.
(v) The amount in deposit made by the insured is
ordered to be transmitted to the Tribunal
forthwith and if any excess amount is paid, the
same is refundable in favour of the appellant
and the interest amount is less, then the
insured is directed to pay the amount.
(vi) The Registry is directed to transmit the records
to the concerned Tribunal, forthwith, if any.
Sd/-
JUDGE
SN
