Karnataka High Court
Sri T Balarama S/O Thammegowda vs Sri B N Dasprakash S/O H D Narasaiah on 21 June, 2012
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 21ST DAY OF JUNE 2012
BEFORE
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
MFA No.5008/2009 (MV)
BETWEEN:
Sri.T.Balarama,
S/o Thammegowda,
Aged Major,
Residing at Eechuru Village,
Periyapatna Taluk,
Mysore District. .....Appellant
[By Sri.Nagaiah & Sri.R.D.Pancham, Advocates]
AND:
1. Sri.B.N.Dasprakash,
S/o H.D.Narasaiah,
Aged about 58 years,
Residing at No.22-A & B,
1st Floor, 6th Main,
3rd Block, Jayalakshmipuram,
Mysore-570 012.
2. Sri.Chaluvaiah,
S/o Sannaiah,
Aged Major,
Residing at Seegekorekaval Village,
Periyapatna Taluk,
Mysore District.
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3. The Oriental Insurance Company Limited,
C.B.O & C.S.I No.13791,
Thejas Complex, 1st Floor,
Prestige Shopping Arcade,
Sayyaji Rao Road,
Mysore.
Represented by its Branch Manager.
....Respondents
[By Sri.K.K.Vasantha, Advocate for R-3;
Sri.Giri Gowda, Advocate for R-2]
This Miscellaneous First Appeal is filed under
Section 173 (1) of MV Act, against the judgment and
award dated 30.9.2008 passed in MVC No.1341/2006
on the file of the Presiding Officer, Fast Track Court-I
and Motor Accident Claims Tribunal, Mysore, awarding
a compensation of Rs.1,52,000/- with costs and interest
at 6% p.a. from the date of petition.
This Appeal coming for orders on this day, the
court delivered the following:
JUDGMENT
Though this appeal is listed for orders regarding furnishing of process fee for issue of notice to the respondents, having regard to the short question involved, the matter was heard for admission.
2) The appeal is by the owner of the offending vehicle, namely, the jeep bearing registration No. CNZ 3 2863. There was a collision between the said jeep and moped ridden by the injured-claimant, as a result, the claimant sustained injuries. He filed claim petition seeking compensation for the injuries suffered by him. The claim petition was filed against the driver, owner and insurer of the jeep. The driver and owner of the jeep though appeared before the Tribunal through their advocate, did not contest the petition. However, the insurer of the jeep contested the petition inter alia contending that the driver of the jeep did not possess a valid and effective driving license to drive the offending vehicle, as such, it is not liable to indemnify the insured.
3) The Tribunal on assessment of oral and documentary evidence by the judgment under appeal recorded the finding on Issue No.1 that the accident was solely due to the negligence of the driver of the jeep and quantified the compensation payable to the claimant at Rs.1,52,000/-. With regard to the liability, the 4 Tribunal, on the basis of the driving license extract produced by the insurer as per Ex.R2, held that the driver of the jeep possessed the license to drive invalid carriage and that he did not possess the license to drive the light motor vehicle or the class of vehicle involved in the accident. In this view of the matter, the Tribunal held that the insurer is not liable to indemnify the insured, therefore, the Tribunal exonerated the insurer and directed the appellant-owner of the jeep to satisfy the award. As against this judgment, the appellant- owner has presented this petition.
4) There is no serious dispute that the jeep in question was being driven by Respondent No.2 namely, Chaluvaiah at the time of the accident. While recording finding on issue regarding actionable negligence, the Tribunal found the oral testimony of the claimant with regard to the manner in which the accident occurred as acceptable and since the driver and owner of the vehicle did not lead any rebuttable evidence, the Tribunal 5 proceeded to accept the evidence of the claimant and has held that the accident was solely due to the negligence of the driver of the jeep. The driver and owner of the jeep though appeared before the Tribunal, did not file any written statement nor led any evidence. Thus, the evidence of the claimant remained un- contraverted and un-challenged.
5) Having regard to the facts and circumstances of the case, the said finding is sound and reasonable and does not call for interference by this Court. Therefore, the Tribunal is justified in holding that the accident was due to the negligence of the jeep driver.
6) Ex.R2 produced by the insurer, which is the driving license extract in respect of Respondent No.2 herein, who was the driver of the jeep at the time of the accident, clearly show that he possessed a license to drive a non-transport invalid carriage, whereas, the 6 vehicle in question is not an invalid carriage. Thus, the evidence placed on record clearly establishes that Respondent No.2-driver, who was driving the jeep in question at the time of the accident, did not possess a valid driving license, which authorised him to drive the said vehicle. Neither the driver nor the owner of the vehicle have stepped into the witness box to speak as to the circumstances under which the driver was allowed to drive the vehicle. The appellant-owner having allowed the person who did not possess a valid license to drive the said vehicle, has violated the terms and conditions of the policy and therefore, it is not open to this appellant-insured to contend that the liability to satisfy the award should have been fastened on the insurer. The appellant has violated the law and also has committed breach of the conditions of the policy. Therefore, it is not open to the appellant to contend that the insurer ought to have made liable to satisfy the award. The Tribunal, having regard to the facts and 7 circumstances of the case, is justified in holding that the insurer is not liable to indemnify the insured in respect of the accident in question. In this view of the matter, I find no merit in this appeal. Accordingly, the appeal is dismissed.
SD/-
JUDGE KGR*