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2024 Supreme(Online)(Kar) 45500
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF FEBRUARY, 2024 BEFORE THE HON'BLE MR JUSTICE C.M. POONACHA MISCELLANEOUS FIRST APPEAL NO. 10348 OF 2013 (MV-I)
BETWEEN:
1. DIVISIONAL MANAGER, NATIONAL INSURANCE CO LTD, DIVISIONAL OFFICE, MELGIRI PLAZA, DENTAL COLLEGE ROAD, DAVANAGERE, NOW REPRESENTED BY REGIONAL MANAGER, NATIONAL INSURANCE CO. LTD, REGIONAL OFFICE, SUBHARAM COMPLEX, 144, M G ROAD, BANGALORE-560001.
…APPELLANT (BY SRI. A N KRISHNA SWAMY.,ADVOCATE)
AND:
Digitally signed 1. H.J. MURUGHARAJENDRA, by BHARATHI S S/O JAYAPPA, Location: HIGH NOW AGED ABOUT 32 YEARS, COURT OF KARNATAKA R/O 17TH CROSS, K T J NAGAR, DAVANAGERE- 577001.
2. K NAGARAJA, S/O KARIYAPPA, NOW AGED ABOUT 26 YEARS, R/O GUDALGOLLARAHATTI, DAVANAGERE TALUK -577001.
3. PALAKSHA, S/O HANUMANTHAPPA, NOW AGED ABOUT 25 YEARS, R/O GUDALGOLLARAHATTI, DAVANAGERE TALUK - 577001.
4. M SANTHOSH , S/O MURUGENDRAPPA,MAJOR, NOW AGED ABOUT 25 YEARS, R/O HOUSE # 523/3, 13TH CROSS, II MAIN, K T J NAGAR, DAVANAGERE - 577001.
…RESPONDENTS (RESPONDENT NOS.2 AND 3 SERVED AND UNREPRESESNTED;
VIDE ORDER DATED 22.01.2010 SERVICE OF NOTICE TO R1 AND R4 HELD SUFFICIENT.)
MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED17.07.2013 PASSED IN MVC NO.832/2011 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, MEMBER, MACT, DAVANAGERE, AWARDING COMPENSATION OF Rs.1,37,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION AND ETC,.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The above appeal is filed by the insurer challenging the judgment and award dated 17.07.2013 passed in MVC.No.832/2011 by the file of Principal Civil Judge and Member, MACT-IV, Davanagere1.
2. For the sake of convenience, the parties herein are referred as per their rank before the Tribunal.
3. The relevant facts necessary for consideration of the present appeal are that claiming compensation for the injuries sustained in a road traffic accident which occurred on 24.07.2011, the claimant filed a claim petition before the Tribunal. It is the case of the claimant that when he was riding motor cycle bearing No. KA-17/Y-4950 another motor cycle bearing No. KA-05-U-3118 came in a rash and negligent manner and hit the motor cycle of the petitioner. Respondent Nos.1, 2 and 3 were rider, owner and insurer of the offending motor cycle. Respondent No.4 was the previous owner of the offending motor cycle. Respondent Nos.3 and 4 entered appearance before the Tribunal. Respondent No.3 - insurer filed its statement of objections and it was specifically contended that the liability of the insurer was subject to the terms and conditions of the policy and subject to a valid and effective driving license of the driver of the motorcycle.
4. The claimant examined himself as PW.1 and a doctor as PW.2. Ex.P.1 to Ex.P.15 were marked in evidence. The representative of the insurer was examined as RW.1.
Ex.R.1 to Ex.R.5 were marked in evidence. The Tribunal by its judgment and awarded dated 17.07.2013 has awarded a compensation of `1,37,500/- together with interest at 6% per annum and held that Respondent Nos.3 and 4 jointly and severally liable and directed Respondent No.3 to pay the compensation awarded. Being aggrieved the insurer has field the present appeal.
5. Learned counsel for the insurer assailing the judgment and award passed by the Tribunal contends that there was no material on record to demonstrate that the driver of the offending motorcycle has a valid driving license to drive the same. Despite the notice being issued by the insurer to the owner of the vehicle, the driving license has not been produced. Hence, it is contended that the insurer is required to be absolved from payment of compensation awarded.
6. Along with the above appeal appellant has filed IA.No.2/2014 under Order 41 Rule 27 read with Section 151 of Code of Civil Procedure to permit the appellant to produce the police notice issued under Section 110(a) of the Motor Vehicles Act, 1939 (hereinafter refereed as ‘Act’). Learned counsel for the appellant submits that the said notice is in terms of Section 160 of the Motor Vehicle Act, 1988 and further at column 7 of the said notice, it is notified that the driving license of the driver of offending vehicle is required to be furnished.
7. The contentions urged on behalf of the Appellant have been considered and the material on record including the records of the Tribunal have been pursued. The questions that arise for consideration are:
i) Whether IA.No.2/2014 filed by the appellant is required to be allowed;
ii) Whether the finding of the Tribunal regarding liability is erroneous and is liable to be interfered with?
Re. Question No.(i):-
8. In the affidavit filed along with IA.No.2/2014 it is deposed that subsequent to the judgment of the Tribunal the document produced along with the application has been procured by the appellant with the assistance of its investigator which discloses that a police notice was issued indicating that the rider of the motor cycle did not possess the driving licence. Having regard to the fact that the document produced along with the application was not in the custody of the Appellant during the pendency of the proceedings before the Tribunal and since the said document is necessary to adjudicate upon the question that arises for consideration in the present appeal, it is just and proper that IA.No.2/2014 be allowed. Accordingly, question No.(i) is answe
