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Judgment
S.N. Satyanarayana, J.—The claimant and first respondent insurer in MVC No. 2883/2008 on the file of MACT, Small Causes Court, Bangalore, have come up in these two appeals impugning the judgment and award dated 19.10.2010. MFA No. 2342/2011 is filed by the insurance company challenging the fastening of liability on it to pay compensation awarded to claimant. MFA No. 1349/2011 is filed by the claimant seeking enhancement of compensation as well as challenging the finding of Tribunal in saddling 40% of contributory negligence on him in causing the accident and thereby reducing quantum of compensation by 40% when it comes to recovering the same from insurance company as well as owner of offending vehicle.
Brief facts leading to these appeals are as under:--
"The claimant before Tribunal was rider of motor cycle bearing registration No. KA-06/H.4143. On 21.1.2008 at about 8.45 pm., when he was riding the said motor vehicle on Bangalore Tumkur road near Tonachanakoppa factory he was hit by the rider of another motor cycle bearing registration No. KA.02/EZ.2632. As a result, claimant suffered the following injuries:
fracture anterior and posterior lateral wall of right maxillary sinus,
fracture ramus of right mandible,
fracture lateral wall of right orbit
fracture right zygoma
fracture medial and lateral plates of right pterygoid plate."
Immediately after accident, it is seen that initially claimant underwent treatment in Harsha hospital for a period of 7 days and subsequently he was shifted to Government Hospital, Nelgamangala, where he was inpatient for a period of 6 days. During the period of treatment, his injuries to right mandible was surgically corrected under general anesthesia by open reduction and internal fixation method. Thereafter, claim petition was filed by the claimant seeking compensation for aforesaid injuries.
In the said proceeding, the insurer of offending vehicle took a specific defence that the rider of offending motor cycle was not having valid driving licence, as such insurance company is not liable to pay compensation. So far as the owner of offending vehicle is concerned, he remained ex parte. In support of its defence the insurance company has examined the employee of RTO Maharashtra as R.W. 2 and the officer of insurance company was examined as R.W. 3 and produced in all ten documents. Out of that crucial documents are Ex. R4, which is the endorsement issued by RTO, Maharashtra disclosing that rider of offending motor cycle, namely Ayub Khan Chand Peer was not having driving licence to drive two wheeler motor cycle and though he had licence , it was restricted to LMV (TR) HGV(TR). The other two documents are; one is original of the driving licence which was marked earlier and later was replaced with xerox and the other one is authorization letter issued in favour of R.W. 2 to tender evidence in the said proceeding. Though said documents were available on record, the Tribunal proceeded to assess compensation payable to claimant in a sum of Rs. 1,89,000/-. However, while allowing the claim petition fastened contributory negligence on the part of claimant to an extent of 40% and another 60% jointly and severally on the owner of offending motor cycle as well as insurer, who is appellant in MFA No. 2342/2011.
The aforesaid judgment is impugned by the claimant so far as it pertains to holding that he has contributed to an extent of 40% in causing accident and with reference to quantum of compensation that is awarded. According to him, the injury caused in the aforesaid accident has resulted in permanent disability and thereby causing reduction in earning capacity, which is not taken into consideration by the Tribunal while awarding compensation and also on the ground that compensation under other heads is inadequate and requires enhancement.
So far as insurance company is concerned, it has come up in appeal on the finding of Tribunal in holding that insurance company is not liable to pay compensation and also with reference to discussion made by Tribunal while fastening liability in holding that since the rider of offending vehicle was having driving licence to driver larger vehicle, it presupposes that he has skill to ride any vehicle, as such his riding motor cycle is accepted, which is in challenge in MFA 2342/2011.
Heard Smt. H.R. Renuka, learned counsel insurance company and Sri. Shripad V. Shastri, learned Counsel for claimant. In support of the grounds urged by the insurance company, learned Counsel Smt. Renuka would rely on the judgment rendered by the Apex Court in the matter of Oriental Insurance Co. Ltd. Vs. Zaharulnisha and Others, (2008) ACJ 1928 : AIR 2008 SC 2218 : (2008) 151 PLR 252 : (2008) 7 SCALE 310 : (2008) 12 SCC 385 : (2008) AIRSCW 3251 and also on an unreported judgment rendered by the Full Bench of this Court in MFA No. 12579/2007 which was disposed of on 8.9.2011 and tried to impress upon this Court that the view taken by Full Bench as well as Apex Court in the aforesaid matters is with reference to denial of liability of insurance company when the rider of motor cycle, who is not having licence to driver a particular type of vehicle though he had licence to drive a larger vehicle. Per contra, learned counsel for claimant Sri. Shripad V. Shastri relied on the judgment of Division Bench of this Court in the matter of Srinivasagowda v. Sannamma reported in 2010 ACJ 2510, wherein the view taken by their lordships is similar to the view taken by the Tribunal in deciding the present case.
After going through the rival claims of both counsel and on going through the judgment impugned, this Court is of the opinion that the finding of Full Bench of this Court in MFA No. 12579/2007 where it is held that unless the person having valid licence to drive the particular class of vehicle even though he has licence to drive vehicle of higher type, the same will not enure to his benefit, appears to be jut and proper and the same is accepted. Infact the said view if taken by following the judgment of Apex Court in Zaharulnisha''s case, referred to supra. While accepting the said decision, this Court also observed that the judgment relied on by claimant being that of Division Bench rendered earlier to judgment of Full bench in MFA No. 12579/2007, the earlier judgment reported in 2010 ACJ 2510 cannot be valid, inasmuch the same is impliedly overruled by the later judgment of Full Bench. In that view of the matter, this Court find that the finding of Tribunal in holding the driver - Ayub Khan Chand Peer was not having licence to drive motor cycle but however since he had the licence to drive LMV transport and HGV transport he can drive motor cycle, cannot be accepted. In that view of the matter, that finding is set aside and consequently fastening of liability on insurance company is also set aside, thereby the appeal filed by insurance company is allowed.
Now coming to second appeal filed by claimant seeking enhancement of compensation, which is mainly seeking expunge of contributory negligence saddled on claimant in the instant case, on going through the judgment impugned it is seen that in the proceeding before Tribunal the claimant has not produced the driving licence issued in his favour to drive the two wheeler. In that view of the matter, the Tribunal has felt that in the absence of valid driving licence there being in the name of claimant, he ought not to have driven the motor cycle. Hence, the Tribunal has felt that there is contributory negligence on his part and accordingly, quantified the same at 40% and to that extent his right to recover compensation is reduced. Therefore, no justifiable grounds are made out to interfere with the same. Accordingly, the appeal filed by claimant seeking expunge of same is, hereby dismissed.
In view of the appeal of insurance company being allowed, the amount deposited therein is ordered to be released in favour of the appellant insurance company.