Karnataka High Court
Bajaj Allianz General Insurance ... vs Smt Muddulappagari Lakshmamma @ ... on 26 November, 2012
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF NOVEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE S.N.SATYANARAYANA
MISCELLANEOUS FIRST APPEAL NO.8418 OF 2010 (MV)
BETWEEN:
Bajaj Allianz General Insurance Co. Ltd.,
# 31, Ground Floor, TBR Tower,
I Cross, New Mission Road,
Adjacent to Jain College,
BANGALORE - 560 027. .. APPELLANT.
(By Sri.A.N.Krishna Swamy, Adv.)
AND:
1. Smt.Muddulappagari Lakshmamma
@ Lakshmamma,
W/o deceased Muddulappagari
Jejanna @ Jejappa,
Now aged about 46 Years,
Now r/o Somayajalahalli Village,
Srinivasapur Tq.,
KOLAR DISTRICT.
2. S.R.Mohan Krishna Reddy,
S/o Raja Gopala Reddy,
Major, R/o # 5/4-108,
Gummareddipalli Village,
Baireddypalli Post,
CHITTOR DISTRICT,
A.P. - 517 001. .. RESPONDENTS.
(R-1 - Service held sufficient,
R-2 - Served)
2
This appeal is filed under Section 173(1) of Motor
Vehicles Act, against the Judgment and Award dated
31.05.2010 passed in MVC No.48/2009 on the file of the
Additional Civil Judge & Additional MACT, Kolar, awarding a
compensation of Rs.3,42,000/- with interest @ 6% p.a., from
the date of petition till realisation.
This Appeal coming on for Final Hearing this day, the
Court delivered the following:
JUDGMENT
The second respondent in MVC No.48/2009 on the file of MACT, Kolar, has come up in this appeal impugning the Judgment and Award dated 31.05.2010 passed therein.
2. Brief facts leading to this appeal are as under:
The case of the claimant before the Tribunal is that on 16.08.2008 her husband, Muddulappagari Jejanna @ Jejappa had been to Palamaner from his village for his personal work and after finishing the same, he was returning back to village.
While he was walking on the road, a Tempo bearing registration No.AP-03/II-5875, which was coming from Madanapalli towards Palamaner, hit the husband of the 3 claimant, namely Muddulappagari Jejanna @ Jejappa, who was walking on the side of the road towards Palamaner resulting in his death. Hence a Claim Petition came to be filed by his widow seeking compensation for his death in the aforesaid road traffic accident.
3. In the proceedings before the Tribunal, a contention was taken by the Insurance Company to the effect that the driver of the vehicle was not having valid driving license to drive the L.M.V. Transport vehicle. In that behalf, it also relied upon the oral evidence of R.W.1 and document at Ex.R-1.
4. However, the Tribunal accepting the evidence of P.W.1 and relying upon the documents, Exs.P-1 to P-7 proceeded to allow the Claim Petition in part awarding compensation in a sum of Rs.3,42,000/- payable with interest at 6% p.a., from the date of petition till realization. Being aggrieved by the same, the Insurance Company has come up in this appeal contending that serious error is committed by the Tribunal in not appreciating the oral and documentary evidence available 4 on record, which infact discloses that at the relevant time of accident, the driver of the vehicle was not having valid driving license to drive that particular class of vehicle. In that view of the matter, there is breach of policy condition.
5. In support of that, counsel for appellant has relied upon the Judgment rendered by the Apex Court in the matter of National Insurance Co. Ltd., Vs. Kusum Rai and others reported in 2006(2) TAC 1 (SC), another decision in the matter of New India Assurance Co. Ltd., Vs. Roshanben Rahemansha Fakir and another reported in 2008 ACJ 2161 and also in the matter of Oriental Insurance Co. Ltd., Vs. Angad Kol and others reported in 2009 ACJ 1411 and contend that the Judgment and Award passed by the Tribunal is not sustainable.
6. Heard the counsel for appellant. Though the respondents are served, they have remained un-represented. On going through the Judgment impugned vis-à-vis, the decisions relied upon by the counsel for appellant, it is clearly seen that the vehicle in question is a goods vehicle, which was 5 driven by a person, who was having license to drive L.M.V., but not L.M.V. Transport vehicle. In that view of the matter, the ratio laid down by the Apex Court in the aforesaid three decisions squarely applies to the facts of the case. Therefore the finding of the Tribunal in fixing the liability on the Insurance Company to pay compensation awarded is required to be expunged.
7. Accordingly the appeal filed by the Insurance Company is allowed and the liability saddled on it by the Tribunal to pay compensation is set aside. It is further clarified that absolving the Insurance Company to pay the compensation will not take away the right of the claimant to enforce the award against the owner of the offending vehicle.
In view of the appeal being allowed, amount in deposit is ordered to be refunded to the appellant.
Sd/-
JUDGE.
AGV.