Karnataka High Court
Vishala vs Manjegowda on 26 September, 2019
Author: S.G.Pandit
Bench: S.G.Pandit
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
M.F.A.NO.6892/2014 (MV)
Between:
Vishala,
W/o. Gundegowda,
Aged about 33 years,
R/o. Rayapura Village,
Salgemane Hobli,
Seege Post,
Hassan Taluk.
... Appellant
(By Sri. Byra Reddy G.S for
Smt. Kavitha H.C, Advocate)
And:
1. Manjegowda,
S/o. Kalasegowda,
Aged major,
R/o. Singapatna Village
Hassan Taluk.
2. Naheem Pasha,
S/o. Mumtaz Pasha,
Aged major,
R/o. Kakkihalli Village,
Salagame Hobli,
Hassan Taluk.
3. The Branch Manager,
ICICI Lombard General Insurance
Co., Ltd., Zenath House,
2
Keshav Rao Kadiya Way
Mahalakshmi, Mumbai,
Represented by:
The Branch Manager,
ICICI Lombard General Insurance
Co., Ltd., N.R.Circle,
Holenarasipura Road,
Hassan.
4. H.V. Kailash,
S/o. Veeranna,
Aged major,
R/o. Hanumanthapura Village,
Kasaba Hobli,
Hassan Taluk.
5. The Branch Manager,
United India Insurance Co. Ltd.,
Hunsoor Club Complex,
Post Office Road,
Hunsoor,
Represented by
The Branch Manager,
United India Insurance Co. Ltd.,
B.M.Road, Hassan.
... Respondents
(By Sri.A.M. Venkatesh, Advocate for R3;
R1 and R2 - served unrepresented;
R4 and R5 - Notice dispensed with v/o dated 2.01.2017)
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated 18.08.2014 passed in
MVC No.883/2011 on the file of the II Additional Senior Civil
Judge, MACT, Hassan, partly allowing the claim petition for
compensation and seeking enhancement of compensation.
This MFA coming on for Admission, this day, the
Court delivered the following:
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JUDGMENT
Claimant filed claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries suffered in Motor Vehicle accident. It is stated that on 19.11.2010, when the claimant was coming along with co-passengers in an auto rickshaw bearing registration No.KA-13-A-3732, Goods Auto bearing registration No.KA- 13-A-233 came from opposite direction with high speed in a rash and negligent manner and dashed to the auto rickshaw. As a result, the claimant sustained grievous injuries and fracture of right hand middle finger, ring finger and index finger to shoulder and right leg knee. It is stated that the claimant was doing agriculture and was earning Rs.6,000/- p.m.
2. On service of notice, insurer appeared before the Tribunal and filed its objection denying the claim petition averments. It is contented that the driver of the offending vehicle was not possessing valid and effective driving license as on the date of the accident. Further, it is stated that the driver of the offending vehicle was not possessing license to 4 drive Transport vehicle. He had license only to drive LMV (Non transport vehicle). Before the Tribunal, claimant examined herself as PW-1 and also PW-2 - Doctor apart from marking 15 documents. The respondents examined RW-1 and also marked Exs.R1 and R2.
3. The Tribunal on appreciating the material placed before it awarded total compensation of Rs.1,37,400/- with interest at 6% p.a. from the date of petition till realisation and saddle the liability on respondent No.2 - Owner of the Goods Auto and petition against respondent Nos. 1, 3, 4 and 5 was dismissed. Aggrieved by saddling of liability on the owner of the Goods Auto, the claimant is before this Court in this appeal.
4. The appellant restricted her appeal to the portion of the judgment by which the liability was saddled on the respondent No.2 instead of respondent No.3.
5. Heard the learned counsel for the appellant and learned counsel for respondent/insurer and perused the material on record.
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6. The learned counsel for the appellant submitted that the driver of the offending vehicle had license to drive LMV (Non transport) vehicle and fastening the liability on respondent No.2 - Owner of the Goods Auto is wholly erroneous. He submits that in view of the decision of the Hon'ble Apex Court in Mukund Dewangan Vs. Oriental Insurance Company Ltd. reported in AIR 2017 SC 3668, the contention raised by the insurer is no more available. Hence, he prays for allowing the appeal to that extent.
7. Per contra learned counsel for the respondent/insurer submits that as on the date of accident the driver of the offending auto was not having valid and effective driving license to drive LMV (Transport) vehicle. As on the date of accident the said contention was available to the insurer, but, as on this date, in view of the decision of Mukund Dewangan supra same would not be available.
8. Having heard the learned counsel for the parties and on perusal of records, the only question which falls for consideration is:
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(a) Whether the Tribunal was justified in saddling the liability on the respondent No.2 - Owner of the Goods Auto?
The Tribunal is not justified in saddling liability on respondent No.2 for the following reasons:
9. The accident which occurred on 19.11.2010 and the accidental injuries suffered by the claimant involving auto rickshaw bearing registration No.KA-13-A-3732 and Goods auto bearing registration No.KA-13-A-233 are not in dispute in this appeal. As on the date of the accident the driver of the offending vehicle was not possessing license to drive LMV (Transport) vehicle. Ex.R1 - D.L extract which indicate that driver was possessing LMV(Non transport) license. As per Mukund Dewangan (supra) the driver who possesses LMV (Transport) license could also drive LMV (Non-transport) vehicle of the same category.
10. In view of the decision of the Hon'ble Apex Court in Mukund Dewangan supra, the appeal is allowed in part. The respondent Nos.2 and 3 are jointly and severally held liable and respondent No.3 shall indemnify owner - 7 respondent No.2 by depositing compensation within a period of four weeks.
Accordingly, appeal is allowed in part.
IA No.1/2018 is dismissed as not pressed.
Sd/-
JUDGE NS