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2020 DIGILAW 1931 (KAR)

Chandranaika Rajajinagar, Bangalore v. Hanumakka

2020-09-30

H.P.SANDESH

body2020
JUDGMENT H.P. Sandesh, J. - This appeal is filed by the Insured challenging the Judgment and Award passed in MVC No.904/2007 dated 27.03.2010 on the file of the Senior Civil Judge & Additional Motor Accident Claims Tribunal, Chitradurga ['Tribunal', for short], questioning the fastening of liability on the insured. 2. The factual matrix of the case is that on 26.06.2007 at about 8.30 am when Hanumakka who was coolie in B.B.H. Mines was going to her work near G.M. Plant, a lorry bearing registration No.KA.02/D/1804 coming from Narahari Mines side in a rash and negligent manner dashed against said Hanumakka and as a result, she fell down and wheels of the lorry ran over her legs and thereby she has suffered fatal injuries . Hence, husband and minor children have claimed compensation. In pursuance of the claim petition, notices are issued against the Respondent Nos. 1 and 2 and both of them are represented through their Counsel and Respondent No.2 in the objection statement, denied the averments made in the claim petition and contended that the driver was not having a valid driving licence as on the date of the accident. The Respondent No.1-owner also disputed the claim averments and contended that the vehicle was insured with the Respondent No.2 and the Respondent No.2 is liable to pay compensation. 3. The claimants, in order to substantiate their claim, have examined two witnesses PW.1 and PW.2 and got marked Exhibits.P1 to P13 and also case sheet of Victoria Hospital as Exhibit.C1. On the other hand, the respondents have examined one witness RW.1 and got marked Exhibits.R1 to R6. The Tribunal, after considering the oral and documentary evidence, allowed the claim petition in part, granting compensation of Rs.4,58,000/- with 6% interest and with regard to liability, exonerated the liability of the insurance company and fastened the liability on the owner as driver was not having a valid driving licence at the time of the accident and the same was renewed subsequent to the accident. Hence, the present appeal by the insured contending that the Tribunal has committed an error in fastening the liability on the insured and he was having a driving licence and the same was renewed subsequent to the date of accident. The driver was having qualification to drive the vehicle, but only because it was expired, it cannot be a ground to fasten the liability on the insured. The driver was having qualification to drive the vehicle, but only because it was expired, it cannot be a ground to fasten the liability on the insured. Learned counsel also submits that in the absence of documentary proof, the Tribunal has taken income at Rs.3,000/- per month and the compensation awarded is on the higher side. 4. Per contra, learned counsel for the respondent-Insurance Company, in his arguments, submits that the Insurance Company is not liable to pay compensation as on the date of the accident as the driver was not having a valid driving licence and rightly the Tribunal has fastened the liability on the insured. Learned counsel has relied upon the Judgment of the Hon'ble Apex Court in ' NATIONAL INSURANCE COMPANY LIMITED v. VIDHYADHAR MAHARIWALA AND OTHERS, (2008) ACJ 2860 wherein it is held that the driving licence of the driver of the offending vehicle had expired prior to the date of the accident and the same was renewed after the date of the accident. The Hon'ble Apex Court held that the insurance company is not liable. Learned counsel also relied upon the Judgment of the Hon'ble Apex Court in ' RAM BABU TIWARI v. UNITED INDIA INSURANCE CO., LTD., AND OTHERS, (2008) ACJ 2654 . In this Judgment also, the Apex Court held that if the driving licence is renewable from the date of its renewal, when the application for renewal of licence is made more than 30 days after its expiry, whether the driver of the offending vehicle had a valid driving licence on the date of the accident, the insurance company is not liable to indemnify the insured. The Apex Court in this Judgment also held that the insurance company is not liable to pay compensation. 5. Having heard the arguments of the appellant's Counsel and also Counsel for Respondent No.5 and on perusal of the records, the points that arise for consideration are: [i] Whether the Tribunal has committed an error in fastening the liability on the insured instead of insurer? [ii] Whether the Tribunal has committed an error in awarding exorbitant compensation as contended by the appellant's counsel? [iii] What Order? Reg: Point No.[i]: 6. [ii] Whether the Tribunal has committed an error in awarding exorbitant compensation as contended by the appellant's counsel? [iii] What Order? Reg: Point No.[i]: 6. Having considered the respective submissions of the Counsels and also on perusal of the records, there is no dispute with regard to the fact that as on the date of accident, the driver was not having a valid and effective driving licence. No doubt, he was having driving licence and the same was expired prior to the date of the accident and admittedly the licence was renewed after one year, when such being the case, the very contention of the appellant's counsel that the Tribunal ought to have fastened the liability on the Insurer cannot be accepted. The principles laid down in the Judgments referred to supra are aptly applicable to the case on hand and in the absence of the driving licence, the question of fastening the liability on the insurance company does not arise. Hence, I answer the point No.1 in the negative. Reg: Point No.[ii]: 7. Learned counsel appearing for the insured would submit that the Tribunal in the absence of documentary proof, has taken income as Rs.3,000/- and calculated the loss of dependency. No doubt, the claimants have not produced any documentary proof before the Tribunal, however, it was the accident of the year 2007 and income was taken only at Rs.3,000/-. On the other head, on the other heads, the compensation awarded is not higher and the claimants are husband and children and having taken note of taking income of Rs.3,000/- when the accident took place in the year 2007, the very contention of the insured that higher income is taken, cannot be accepted. I find no reasons to interfere with regard to quantum of compensation awarded by the Tribunal. Hence, I answer the point No.2 in the negative. 8. In view of the discussions made above, I pass the following: ORDER [a] The appeal is dismissed. [b] The amount in deposit, if any, is ordered to be transmitted to the Tribunal forthwith. [c] The office is directed to transmit the trial Court record to Tribunal forthwith.