Point of Law: It is proposition of law that person who alleges breach must prove same.

JUDGMENT :

S. RACHAIAH, J.

This appeal is filed by the claimant seeking enhancement of compensation as against the judgment and award dated 13.09.2017 in MVC No.466/2016 on the file of the IV Additional District Judge and MACT-XIII, Vijayapur.

2. It is the case of the claimant that on 05.01.2016, at about 07-00 p.m., the deceased was proceeding towards his land on a motorcycle bearing registration No.KA-29-R-8217 on the Ugalawat-Mustigeri road slowly with caution. A Tum Tum vehicle bearing No.KA-29-A-8409 came from Ugalawat road towards Mustigeri dashed the motorcycle of the deceased. Consequently, he sustained injuries and died on the way to the hospital.

3. A complaint was filed by the brother of the deceased on 05.01.2016. The case was registered in Crime No.3/2016 against the driver of the Tum Tum vehicle and after investigation, chargesheet was filed.

4. P.W.1 being the mother of deceased Manjunath filed a claim petition before the Tribunal seeking compensation. The Tribunal awarded a sum of Rs.9,41,000/-with interest at 9% p.a. The claimant being not satisfied with the award passed by the Tribunal has filed this appeal seeking enhancement.

5. Heard Sri Harshavardhan R. Malipatil, learned counsel for the appellant and Sri Manvendra Reddy, learned counsel for respondent No.2.

6. Sri Harshavardhan R. Malipatil submits that, the award passed by the Tribunal is contrary to the law and facts. Hence, it is liable to be set aside and required to be modified. He further submits that the claimant has sought enhancement of compensation on different conventional heads and to fasten the liability on respondent No.2. The Tribunal ought not to have arrived at a conclusion that there is violation of permit condition and should not have fixed the liability on the owner of the Tum Tum vehicle. He further submits that though the Insurance company has failed to establish that the accident occurred beyond the permit area, the Tribunal held that the accident occurred beyond the permit area cannot be accepted. In support of his contention, he cited the judgments of co – ordinate bench of this Court as follows :

(a). MFA No.30752/2011 and connected matters, Smt. Sangeeta and Others vs Satish and another dated 11.07.2018.

(b) MFA No.201648/2015 C/w MFA No.200325/2015, MFA No.201533/2015 and MFA CROB. No.200025/2016, Abdul Rouf vs Megharaj Mehdole and others dated 26.11.2020.

The learned counsel for the appellant sought to allow the appeal and modify the judgment and award dated 13.09.2017 in MVC No.466/2016.

7. Per contra, Sri Manvendra Reddy, learned counsel for respondent No.2-Insurance Company seeks to justify the judgment and award passed by the Tribunal and contends that the driver of the Tum Tum vehicle had violated the permit condition and he did not have valid driving licence. The Tribunal has rightly absolved the liability of the Insurance Company. Hence, he sought to dismiss the appeal as against the Insurance company.

8. After having heard the learned counsel for the parties and perusing the documents on record, the points which would arise for our consideration are as follows:

1. Whether the claimant has made out a ground for fastening liability on the insurance company?

2. Whether the claimant has made out a ground for enhancement of the compensation as against the award passed by the Tribunal?

9. It is the submission of the learned counsel for the claimant/appellant that the Tum Tum vehicle which was plying near Ugalawat village dashed against the motorcycle of the deceased and the pillion rider died in the accident. The Tribunal while fixing the liability, exonerated the Insurance company holding that, the driver of the Tum Tum Vehicle had violated the permit condition. The observation made by the Tribunal is that, the Tum Tum vehicle was supposed to be plied within the limits of Kerur panchayath and around 10 kms. However, the accident occu