Karnataka High Court
Sri G Venkatesh S/O G Munivenkatappa vs The Iffco Tokio General Insurance Co ... on 2 July, 2018
Author: S Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2018
BEFORE
THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV
M.F.A. No.3612 OF 2012 (MVC)
Between:
Sri. G.Venkatesh
S/o G.Munivenkatappa,
Aged about 40 years,
R/at, Murugesh Building,
Near Sri Rama Temple,
Hebbagodi,
Bangalore Rural District
Pin - 560099. ... Appellant
(By Sri. H.J.Ananda, Advocate)
And:
1. The Iffco Tokio General Insurance Co.Ltd,
Strategic Business Unit,
No.41, 2nd Floor, Cristu Complex,
Lavelle Road, Bangalore - 560001.
2. Rajesh G.S.
S/o G.Prasad Rao,
Aged about 31 years,
R/at No.609, 2nd 'D' Cross,
2nd Block, H.R.B.R.Layout,
Kalyan Nagar, Bangalore - 95 ... Respondents
(By Sri. Pradeep.B, Advocate for R1
Smt. P.V.Kalpana, Advocate for R2)
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This MFA is filed under Section 173(1) of the
Motor Vehicles Act against the judgment and award
dated 02.01.2011 passed in MVC No.6725/2010 on the
file of member MACT: IV Additional Judge, Court of
Small Causes, Bangalore, awarding a compensation of
Rs.2,83,200/- with interest at 6% per annum from the
date of petition till the date of deposit and etc.,
This MFA is coming on for Admission, this day,
the Court delivered the following:
JUDGMENT
This appeal has been filed by the owner of the vehicle challenging the judgment and award of the Tribunal, in so far as liability has been imposed on the owner exonerating the insurer on the ground that the driver did not have a specific class of license to drive the vehicle and relying on the judgment of the Apex Court in the case of Oriental Insurance Co. Ltd., V/s Angadkol and another reported at 2009 ACJ 1411 S.C. the Tribunal has fastened the liability on the owner.
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2. The case of the claimant is that when he was proceeding home after finishing his work on Pulsar Bike bearing Reg.No.KA-03-ET-9848 near S.K.Factory on NH- 7 road, a JCB (J.C.Bamford) vehicle bearing Reg.No.KA- 51-Z-6307 came in a rash and negligent manner and dashed against the said bike. The claimant fell down and suffered multiple injuries and has taken medical treatment.
3. The claim petition came to be filed seeking compensation on the ground of medical expenses and other heads contending that he had not completely recovered despite treatment, from the injuries suffered.
4. The insurer has filed statement of objections before the Tribunal denying the involvement of the vehicle, however admitted the issuance of policy. It was specifically contended that the driver had no driving license and in view of the same, there was a breach of 4 terms and conditions of the policy and consequently, there could be no liability on the insurer.
5. The Tribunal, after considering the material on record and the evidence let in, awarded compensation of `2,83,200/- with 6% interest payable from the date of petition. As regards the issue of liability, the insurer was exonerated and sole liability was imposed on the owner of the vehicle.
6. The Tribunal at Para-9 of its order has observed that the license was with respect to a non- transport vehicle and vehicle in question was a transport vehicle and following the judgment of the Hon'ble Supreme Court in the case of Oriental Insurance Co. Ltd., V/s Angadkol and another reported at 2009 ACJ 1411 S.C, held that the driver did not possess specific class of license to drive the vehicle and the insurer was not liable. 5
7. The owner in his appeal contends that finding of the Tribunal even as regards material on record was erroneous. Ex.R3 indicated the Un-laden weight of the vehicle at 7460 kilograms and in view of the definition under Section 2 (21) of the Motor Vehicle Act, the vehicle ought to have been construed as light motor vehicle and material on record indicated that the driver possessed license which was valid and effective to drive light motor vehicle. Even otherwise, it is contended that the driver did possess a license to drive a transport vehicle and has produced copy of the driving license along with the Interlocutory Application for production of additional documents before this Court.
8. A perusal of the said copy of the driving license prima facie indicates that the driver had requisite license to drive the heavy transport vehicle between 20.03.2009 and 19.03.2012 and the accident had occurred on 06.08.2010. The learned counsel for 6 the appellant also files a memo along with extract of driving license obtained from the Transport Department which corroborates with the copy of the driving license produced along with the application for production of additional documents and affirming the fact that the driver did possess a license.
9. As the present appeal is one regarding liability being fastened on to the owner and exoneration of the insurer, the copy of the documents produced prima facie indicates that the driver did possess effective license as on the date of accident. However, it is a matter of evidence, as regards the contents of the said documents. In order to afford a fair opportunity to both parties, as regards liability whereby liability was imposed on the owner and the insurer was exonerated on the ground that the driver did not have license to drive a specific class of vehicle, the judgment and award of the Tribunal is set-aside and matter is remanded to 7 the Tribunal with direction to consider the matter afresh as regards the question of liability after affording an opportunity to all parties to adduce evidence.
10. The owner is at liberty to participate in the proceeding before the Tribunal and adduce evidence in order to demonstrate that the driver did have a due and effective license to drive the specific class of vehicle involved in the accident. The insurer and the other parties are at liberty to cross-examine the owner as regards evidence adduced touching the question of liability.
11. Accordingly, appeal is allowed in part and matter is remanded to consider the question of liability.
12. In view of setting aside of the judgment and award as regards aspect of liability, amount deposited by the appellant would be refunded to the appellant. 8
13. The LCR's to be sent forthwith. Parties are directed to appear before the Tribunal on 04.08.2018 without further notice.
SD/-
JUDGE SMJ/HA