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M/s. Sam Tours & Travels v/s R. Kavitha & Another

    Miscellaneous First Appeal No. 1460 of 2017

    Decided On, 03 December 2019

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE S.R. KRISHNA KUMAR

    For the Appellant: Narendra Gowda, Advocate. For the Respondents: R1, D. Narayana Shetty, R2, Ravish Benni, Advocates.



Judgment Text


1. Though the matter is listed under the caption 'Admission', with the consent of learned counsel for both sides, matter is taken up for final disposal.

2. This appeal takes exception to the impugned judgment and award dated 18.02.2015 passed by the III Additional Senior Civil Judge and MACT, Bengaluru (SCCH-18) (hereinafter referred to as 'the Tribunal' for short) in MVC No.7676/2010 whereby, the Tribunal awarded a sum of Rs.95,000/- together with interest at the rate of 8% per annum to be paid in favour of respondent No.1/claimant by the appellant-Owner of the vehicle.

3. The Tribunal has formulated the following three points for consideration:

"1. Whether the petitioner proves that he has sustained injuries in a MVA that was taken place on 21-09-2010 at about 6.30 p.m., on 9th Cross, J.P. Nagar, Bangalore, due to rash and negligent driving of vehicle bearing No.KA-01-C- 7130, by its driver involved in this case as contended?

2. What is the just and reasonable compensation for which petitioner is entitled for? If so, what amount, what interest and from whom, it is recoverable?

3. What is final order or award?"

4. After trial, the Tribunal answered Issue No.1 in the Affirmative. Insofar as Issue No.2 is concerned, it was answered Partly in the Affirmative and compensation payable in favour of the claimant was quantified as Rs.95,000/-. Insofar as liability is concerned, the Tribunal at paragraph No.29 of the impugned judgment came to the conclusion that the driver of the offending vehicle did not possess a valid and effective Driving Licence and consequently, the Insurance Company was exonerated of its liability to pay compensation and the entire liability was fastened upon the owner of the vehicle. Aggrieved by the impugned judgment and award, the owner of the appeal has preferred the present appeal.

5. Along with the present appeal, the appellant has filed an application-I.A.No.2/2017 seeking permission to produce the Photostat copy of Driving Licence of the driver of the vehicle.

6. Learned counsel for the Insurance Company orally opposes the said application.

7. It is contended by the learned counsel for the appellant that the finding of the Tribunal that the driver of the vehicle did not have a valid and effective Driving Licence is incorrect inasmuch as the Photostat copy of Driving Licence produced along with I.A. No.2/2017 would clearly indicate that the driver of the vehicle possessed a valid and effective Driving Licence as on the date of accident, which occurred on 21.09.2010. It is also contended by him that the inability and omission on the part of the appellant to produce the document during trial before the Tribunal was on account of oversight and inadvertence and due to bonafide reasons, unavoidable circumstances and for sufficient cause. It is therefore contended by the appellant that the non-production of Driving Licence, which resulted in the fastening of the liability upon the appellant is incorrect and if an opportunity is given to the appellant, he shall produce the Driving Licence in order to substantiate that the driver of the vehicle in fact possessed a valid and effective Driving Licence and consequently, the appellant-owner cannot be held liable to pay the compensation, which was liable to be paid by the Insurance Company.

8. Per contra, learned counsel for respondent No.2-Insurance Company submits that no case has been made out by the appellant to permit him for production of Driving Licence of the driver at this stage highly belated stage particularly, when the accident occurred in the year 2010. It is also contended that having regard to the fact that the appellant has not been diligent in prosecuting the matter, in the event this Court grants him an opportunity to produce the Driving Licence by remitting the matter back to the trial Court, the interest payable on the compensation should be fastened upon the appellant and not on the Insurance Company.

9. I have given my anxious consideration to the rival submissions and perused the materials on record.

10. Insofar as I.A. No.2/2017 is concerned, a perusal of the impugned judgment and award, in particular paragraph No.29 would indicate that the only ground on which the appellant/owner has been fastened with the liability to pay compensation is that the driver of the vehicle did not possess a valid and effective Driving Licence as on the date of the accident. In view of these facts anc circumstances, the licence now sought to be produced would clearly indicate that the driver of the vehicle indeed had a valid and effective Driving Licence as on the date of the accident. The Driving Licence now sought to be produced by the appellant would be an extremely relevant and material document for the purpose of adjudication of the issues in controversy between the parties. Under these circumstances, I am of the opinion that it is necessary that an opportunity is to be given to the appellant to produce the said document before the Tribunal to substantiate the contention put forth by him in the present appeal. Accordingly, I.A. No.2/2017 hereby stands allowed.

11. As rightly contended by the learned counsel for respondent No.2-Insurance Company, even if an opportunity is given by this Court, respondent No.2 should not be saddled with liability to pay interest on the compensation amount for the intervening period. A perusal of the impugned judgment and award dated 18.02.2015 would indicate that by virtue of the impugned judgment and award, the liability to pay interest was fastened upon the owner of the vehicle. Under these circumstances, I am of the view that in the event the appellant succeeds in proving his contention that the driver had a valid and effective Driving Licence and consequently, the Tribunal comes to the conclusion that the Insurance Company is liable to pay the compensation, the interest to be awarded by the Tribunal during the period from 18.02.2015 till disposal of the claim petition after remand should be foisted on the appellant and not on the Insurance Company.

In view of the aforesaid discussion, I pass the following:

ORDER

i. Appeal is partly allowed.

ii. The impugned judgment and award dated 18.02.2015 is hereby set aside.

iii. Matter is remitted back to the Tribunal for fresh disposal of the petition, in accordance with law.

iv. Both sides are granted liberty to adduce both oral and documentary evidence in support of their contentions

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. It is clarified that in the event, the Tribunal comes to the conclusion that Insurance Company is liable to pay compensation, the Insurance Company shall not be liable to pay interest from 18.02.2015 till disposal of the claim petition by the Tribunal and the appellant/owner would be liable to pay interest on the award amount for the said period. Having regard to the facts, proceedings before the Tribunal is of the year 2010, the Tribunal is hereby directed to dispose of the petition within a period of three months from 20.12.2019, on which date, the parties undertakes to appear before the Tribunal without any further notice from the Court. The amount in deposit to be refunded to the appellant.
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