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2019 DIGILAW 1514 (KAR)

Oriental Insurance Co. Ltd. v. Prema

2019-07-02

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. 1. The insurer-Oriental Insurance Company Limited being aggrieved by the judgment and award dated 26.04.2017 passed in MVC No. 679/2015 by the II Additional Senior Civil Judge, Dharwad has filed this appeal. 2. It is the case of the claimants before the Tribunal that on 09.07.2015 at about 8.30.a.m. when the husband of the petitioner No. 1 and father of the petitioner No. 2 was proceeding by the side of the road, near Heggeri Ground, at Hubli the rider of the motorcycle No. KA-25/ET-1859 came in high speed and in a rash and negligent manner and dashed to the said Gangadhar, due to the said accident, the deceased sustained fatal injuries and he was brought to Chitguppi Hospital and later on he was shifted to KIMS Hospital, Hubli, where he died on 10.07.2015. The deceased was having good health and was the earning member in the family and his death has caused greater mental shock and agony to the petitioners and they lost their dependency. The deceased was earning Rs. 20,000/- p.m. The petitioner No. 1 has lost her loving husband and petitioner No. 2 has lost his loving father and therefore they claimed compensation of Rs. 15,00,000/- against the owner and insurer of the offending vehicle. 3. In pursuance of notice, respondent nos. 1 and 2 appeared before the Tribunal. Respondent No. 1 filed written statement and denied the averments made in the claim petition. He has contended that the accident has taken place within the jurisdiction of Hubli South Traffic Police Station, which is beyond the jurisdiction of this Tribunal and therefore this Tribunal has no territorial jurisdiction to entertain the petition. 4. Respondent No. 1 was having valid driving licence and the motorcycle was duly insured with respondent No. 2. Hence, if any award is passed, it may be passed against respondent No. 2. 5. Respondent No. 2-Insurance Company filed the written statement denying the age, occupation and income of the deceased and also that the accident occurred due to the rash and negligent driving of the driver of the vehicle. He has contended that the respondent No. 1 violated the conditions of insurance policy of the offending vehicle by carelessly driving the motorcycle without driving licence at the risk of respondent No. 1-owner and therefore is not liable to pay compensation to the petitioners. He has contended that the respondent No. 1 violated the conditions of insurance policy of the offending vehicle by carelessly driving the motorcycle without driving licence at the risk of respondent No. 1-owner and therefore is not liable to pay compensation to the petitioners. He has further contended that respondent No. 1 has violated conditions of insurance policy, as he was holding the learners licence, in view of the provisions of Motor Vehicles Act, 1988 and therefore the claim be dismissed. 6. On the basis of the pleadings of the parties, the Tribunal framed issues. 7. In support of their claim petition, claimant No. 1 was examined as PW-1 and got marked 8 documents as per Ex.P1 to P8. Respondent No. 2 has examined his official witness as RW-1 and got marked 2 documents as per Ex.R1 and R2. 8. The Tribunal after hearing both the parties, passed the impugned judgment awarding compensation of Rs. 6,32,000/- with interest at 8% p.a. from the date of petition till deposit. 9. Respondents No. 1 and 2 were held jointly and severally liable to pay compensation. Respondent No. 2 was directed to deposit compensation amount before the Tribunal. 10. The Insurer being aggrieved by the impugned judgment has filed this appeal on the ground that the Tribunal has committed an error of law and facts in making insurer to pay compensation covering the fact that the driver of the motor cycle did not posses valid and effective driving licence. The Tribunal has not considered the fact that the driver had only LLR. The Tribunal committed an error in not considering the requirement of Rule 3 of Central Motor Vehicle Rules, 1989 in case of LLR. Therefore the liability fastened on the appellant/insurer is liable to be set aside. 11. Heard the learned counsels appearing for the parties. 12. A short question which arise for consideration in this appeal is, as to whether the appellant/insurer has made out grounds for setting aside the liability fastened against him. 13. The learned counsel for appellant/insurer submitted that admittedly respondent no. 1 the rider of the motorcycle was having LLR at the time of accident and thereby violated the Rule 3 of Central Motor Vehicle Rules, 1989 since no other driver accompanied him at the time of accident. 14. The learned counsel for the claimants/respondents relied on the judgment in the case of Oriental insurance Co. 1 the rider of the motorcycle was having LLR at the time of accident and thereby violated the Rule 3 of Central Motor Vehicle Rules, 1989 since no other driver accompanied him at the time of accident. 14. The learned counsel for the claimants/respondents relied on the judgment in the case of Oriental insurance Co. Ltd. vs. Felix Correa, (1989) ILR (Kar) 441 and the judgment in MFA No. 25279/2011 decided on 01.07.2015 and submitted that absolutely there is no violation of policy conditions on the ground that the rider of the motorcycle was holding LLR at the time of accident. 15. In the case of Oriental Insurance Co. Ltd. stated supra, the Division Bench of this Court considered similar facts as to whether in the case of motorcycle the rider of the motorcycle having LLR should be accompanied with the driver as per Rule 3 of Central Motor Vehicle Rules, 1989. The Division Bench of this Court has held in paragraph 15 as follows: "15. The condition that a person duly licenced to drive the vehicle should be by the side of such learner to be able to readily control or stop the vehicle is perhaps not made compulsory in case of a person holding Learner's Licence in respect of a motor-cycle perhaps for the reason that no such person could be accommodated on a two wheeler anywhere else than on its pillion if it has one. Therefore the person sitting on the pillion could not be equated to the driver of a vehicle other than a two wheeler. Thus even where a person possesses a Learner's Licence in case of a motor-cycle as in this case he becomes solely responsible for effectively driving or riding the vehicle, he is in sole control of it and therefore if a person driving a motor-cycle under Learner's Licence can be said to be a person "duly licensed" or holding a valid licence would be the next point for consideration." 16. This decision has been referred in MFA No. 25279/2011 stated supra. 17. Therefore on the ground that respondent No. 1 the rider of motorcycle was holding only learner's licence and therefore there is breach of policy conditions and on that ground the insurer is not liable to satisfy the award, cannot be accepted. 18. This decision has been referred in MFA No. 25279/2011 stated supra. 17. Therefore on the ground that respondent No. 1 the rider of motorcycle was holding only learner's licence and therefore there is breach of policy conditions and on that ground the insurer is not liable to satisfy the award, cannot be accepted. 18. In view of the above referred judgment, the insurer in the present case cannot avoid his liability on the said ground, therefore the appeal filed by the insurer so far as saddling liability against him is liable to be dismissed. 19. Under these circumstances, the point for consideration is answered accordingly. In the result, this Court proceed to pass the following: ORDER The appeal is hereby dismissed. The amount of compensation deposited in the appeal shall be transmitted to the concerned Tribunal.