Karnataka High Court
Manager-Icici Lombardo General ... vs Smt Indumathi on 25 February, 2013
Author: B.V.Nagarathna
Bench: B.V. Nagarathna
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 25th DAY OF FEBRUARY 2013
BEFORE
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
MISCELLANEOUS FIRST APPEAL NO.13199/2007(MV)
BETWEEN:
MANAGER
ICICI LOMBARDO GENERAL INSURANCE
CO. LTD., BRANCH OFFICE, DESHPANDE
NAGAR, HUBLI, NOW REPRESENTED BY ITS
MANAGER LEGAL, ICICI LOMBARDO
GENERAL INSURANCE CO. LTD., SVR COMPLEX
II FLOOR 89 HOSUR ROAD,
BANGALORE 560 068
.. APPELLANT
(BY SRI. S.K. KAYAKMATH, ADV.)
AND:
1. SMT. INDUMATHI,
W/O RAMESH INJANI,
NOW AGED ABOUT 31 YEARS.
2. SHILPA, D/O RAMESH INJANI,
NOW AGED ABOUT 14 YEARS,
OCC: STUDENT.
3. PRIYANKA, D/O RAMESH INJANI
NOW AGED ABOUT 12 YEARS,
OCC: STUDENT.
4. DEEPIKA, D/O RAMESH INJANI
NOW AGED ABOUT 11 YEARS,
OCC: STUDENT.
RESPONDENTS 2 TO 4 HEREIN SINCE
2
MINORS REPRESENTED BY THEIR
NATURAL GUARDIAN/MOTHER THE 1ST
RESPONDENT HEREIN
ALL R/O GAJENDRAGAD, TALUK RON
DIST. GADAG.
5. SHREEDHAR N. BAHETI
S/O NANDAKISHORE
NOW AGED ABOUT 39 YEARS,
OWNER OF VEHICLE
R/O NO.298/A/5 NEAR MYSORE
MATH, GAJENDRAGAD, TQ. RON
GADAG DISTRICT.
.. RESPONDENTS
(BY SRI. B. SHARANABASAVA, ADV. FOR R1. R2 TO R4 ARE
MINORS.REP BY R1. SRI. VITTHAL S. TELI, ADV. FOR R5.)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 13.8.2007 PASSED IN MVC NO.253/2006 ON
THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT II
AND ADDL. MACT, KOPPAL AWARDING A COMPENSATION OF
RS.4,09,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL REALISATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The insurance company being aggrieved by the fastening of the liability on it in MVC No.253/2006, by judgment and award dated 30/08/2007 by the Additional MACT Court II at Koppal, has filed this appeal. 3
2. It is not in dispute that Ramesh died in a road traffic accident that occurred on 23/04/2006 at about 10.30 p.m. on N.H.13 near Kharja Singh Dhaba, when he was travelling in a lorry bearing No.KA-26/4892 as a cleaner and transporting granite tiles from Ilkal to Bangalore, when at that time, the driver of the lorry drove in a rash and negligent manner and dashed against another vehicle and therefore sustained grievous injuries and died on the spot. His legal representatives filed a claim petition seeking compensation on account of death of Ramesh. The claim petition was contested by the insurance company. In support of their case, the claimants have let in the evidence of one witness and produced eight documents which were marked as Exs.P-1 to P-8, while the insurance company let in the evidence as RW-2 and produced two documents which were marked as Exs.R-1 and R-2.
3. On the basis of the said evidence, the Tribunal awarded compensation of Rs.4,09,000/- with interest at 4 the rate of 6% per annum from the date of claim petition till realisation and fastened the liability on the owner and insurer of the offending vehicle. Being aggrieved by the liability fastened on the insurer, this appeal has been filed.
4. I have heard the learned counsel for the appellant insurance company and the learned counsel for the respondents and perused the material on record and the lower Court records.
5. It is not in dispute that vehicle bearing No.KA- 26/4892 was involved in the accident that occurred on 23/04/2006, as a result of which, Ramesh-the cleaner of the said lorry died. The grievance of the insurance company is that driver of the lorry did not possess a valid and effective driving licence as on the date of the accident. It is not in dispute that the goods in the lorry in question was 11,900 Kgs which comes under the category of medium goods vehicle. In order to substantiate the fact that the driver of the lorry did not possess a valid and effective driving licence, the officer of the insurance 5 company has let in evidence by getting two documents marked as Exs.R-1-insurance policy and R-2 which is an endorsement issued by the RTO at Bagalkot to contend that the owner of the vehicle engaged a driver who did not have a valid and effective driving licence as on the date of the accident.
6. Per contra, claimants had let in documentary evidence in the from of Ex.P-8 which is a photo copy of the driving licence issued in the name of Basavaraj s/o Shivalingappa Totad.
7. I have perused the driving licence. The said driving licence is only a photo copy and not an original. The same has not been taken into consideration by the Tribunal. On the other hand, the driving licence extract produced by the insurance company has also not been taken into consideration by the Tribunal and instead the Tribunal has come to a conclusion that the lorry was not a light motor vehicle and that the evidence adduced by RW-1 was sufficient to hold that the driver of the lorry did not 6 hold an effective and valid driving licence. However, the Tribunal held that the insured and insurer jointly and severally should satisfy the award then the same should be recovered by the insurance company from the owner of the vehicle. This direction regarding pay and recover is objected to by the insurance company.
8. On perusal of the material on record and also the lower Court records what has to be kept in mind is the fact that the vehicle is a medium goods vehicle. Ex.P-8 which has been produced to substantiate the fact that the driver of the vehicle did possess a valid and effective driving licence to drive in fact a heavy goods vehicle is not a original document but only a photo copy. On the other hand, the endorsement marked as Ex.R-2 only states that the driver of the vehicle had only a license to drive a light motor vehicle. On consideration of the said document it could not have been held that the driver of the vehicle did not possess an effective and valid and driving licence. Had the original driving licence been produced by the 7 claimants, there would have been clarity as to whether the offending driver had in fact the competency to drive the medium goods vehicle. Therefore, in the absence of the original Ex.P-8, the Tribunal could not have held that the driver of the vehicle did not have a valid and effective driving licence. In order to substantiate the contention, either the insurance company must produce the original of Ex.P-8 or corroborative evidence in order to establish that the driver of the vehicle had no valid and effective driving licence. The same not being done, the Tribunal was not right in holding that the driver did not have a valid and effective driving licence and then directing the insurance company to pay and recover the compensation from the insured.
9. In the absence of there being any relevant document to come to any conclusion with regard to the validity of the driving licence of the driver as on the date of the accident, the Tribunal could not have directed the 8 insurance company to pay and recover the same from the insured.
10. In that view of the matter, the judgment and award of the Tribunal is set aside. The matter is remanded back to the Tribunal in order to give an opportunity to both the parties to produce original of Ex.P-8 or to produce any other corroborative evidence with regard to the driver of the vehicle having or not having a valid and effective driving licence as on the date of the accident as the case may be.
11. Since the parties are represented by their respective counsel and the matter pertains to a fatal accident, the parties are directed to appear before the Tribunal on 25th of March 2013 without insisting on any notice from the Tribunal. The Tribunal to give an opportunity to both parties to produce the relevant documents and then to dispose of the appeal on the question of liability of the insurance company in the light of the evidence to be produced by the parties and also the 9 evidence already on record. Since the accident is of the year 2006 and since the disposal of the claim petition the judicial pronouncements on the computation of compensation in a fatal accident case have been significant and pro-claimants, the Tribunal to consider the same and re-assess the compensation in the light of the evidence already on record.
Office to return the original records forthwith. Parties to bear their respective costs Amount in deposit to be refunded to the appellant.
SD/-
JUDGE kmv