Challenging

judgment

and

award

dated

11.10.2010 passed by Addl. Senior Civil Judge and

Additional MACT, Saundatti, in MVC No.1146/2008,

this appeal is filed by claimant for enhancement of

compensation.

Brief

facts

as

stated

are

that

on

21.08.2007, when claimant, a minor girl was by

side of road to attend nature’s call, rider of

motorcycle bearing temporary registration no.KA-

22/TR/2368 was riding it in a rash and negligent

manner and dashed to claimant causing injuries.

Despite

taking treatment

at

Dr.Naik Hospital,

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Munavalli, she did not recover fully and sustained

physical disability.

3.

Claiming compensation for same, she

filed claim petition under Section 166 of Motor

Vehicles

Act

against

owner

and

insurer

of

motorcycle.

4.

On service of notice, owner appeared and

opposed claim petition denying negligent riding of

rider of motorcycle. It was further submitted that

vehicle was insured with insurer and therefore,

award if any, may be passed against insurer.

5.

Insurer

filed

objection

denying

occurrence of accident involving insured vehicle. It

was also denied that rider was having valid and

effective driving license and therefore, there was

violation of policy condition. On above ground,

sought for dismissal of claim petition.

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6.

Based

on

pleadings,

tribunal

framed

issues

and

recorded

evidence

of

mother

of

claimant as PW1 and Exhibits P1 to P10 were

marked. On behalf of respondent no.2, its law

officer was examined as RW1 and Exhibits R1 to R5

were marked.

7.

On

consideration,

tribunal

held

that

accident occurred due to rash and negligent riding

of insured vehicle by its rider, claimant sustained

injuries

and

claimant

was

entitled

for

compensation. It assessed total compensation of

Rs.29,500/- with 6% interest and held insurer is

liable to pay same on ground that on date of

accident, rider was not having driving license.

8.

Assailing same, claimant is in appeal.

9.

In appeal it is contended that, claimant

was 3^rd party and minor, who sustained injuries on

left clavicle bone assessed by doctor as per

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Exhibits P6 and P7 to have resulted in 6%

disability to left upper limb. However, tribunal

erred in granting inadequate compensation merely

on ground that doctor was not examined. It was

further submitted that rider of motorcycle was

holding

learners

license

from

13.06.2006

to

12.12.2006.

Whereas,

accident

occurred

on

21.08.2007. Therefore in absence of any specific

evidence that accident was only due to fact that he

was not holding driving license and did not know

how to ride, tribunal was not justified in totally

discharging liability of insurer.

10. On other hand Shri R.R.Mane, learned

counsel

for

respondent

no.2-insurer

supported

award and opposed appeal. It was specifically

submitted that learners license issued had expired

more than six months prior to accident and as on

date of accident, rider was not having valid and

effective

driving

license,

which

was

legal

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requirement. It was further submitted that fracture

of clavicle bone in any case would not result in

loss of earning capacity and therefore, assessment

of compensation by tribunal was adequate and no

enhancement was called for.

11. Heard

leaned

counsel

and

perused

impugned judgment and award and record.

12. From above submission, following points

that would arise for consideration are:

“1. Whether tribunal was justified in

discharging liability of insurer?

Whether

claimant

is

entitled

for

enhancement of compensation as sought

for?”

13. On perusal of charge-sheet it is seen

that, rider of motorcycle was prosecuted under

Section 3 as well as Section 181 of Motor Vehicles

Act. However, on perusal of Exhibit R2 produced by

insurer it is seen that rider was holding learners

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license from 13.06.2006 to 12.12.2006. Therefore,

it cannot be totally held that rider did not know

riding and accident occurred only on that count.

Taking into account ratio of decision of Hon’ble

Supreme Court in National Insurance Co., Ltd.