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Judgment
N.K. Patil, J—This appeal by the appellant/Insurer is directed against the impugned judgment and award dated 23/08/2013, passed in MVC No. 29/2012, by the Senior Civil Judge & JMFC. & Member, Additional Motor Accident Claims Tnbunal-9, Sagar, (hereinafter referred to as '' Tribunal'' for short).
The Tribunal, by its judgment and award has awarded a sum of Rs. 24,95,400/- under different heads with interest at 6% per annum from the date of petition till the date of realization as against the claim of Rs. 40,35,000/-, on account of the death of the deceased Sri. Basavaraju, in the road traffic accident, directing the Insurer of the offending vehicle to deposit the said amount. It is the case of the Insurer that the Tribunal has erred in not fixing any negligence on the part of the deceased, rider of the motor cycle and in directing it to indemnify the award amount by fixing entire negligence on the part of the driver of the Tanker Lorry, on the ground that the driver of the lorry did not possessed DL to drive the heavy vehicle at the time of accident and the same is liable to be set aside.
In brief, the facts of the case are:
Claimants are the wife, minor son and mother of the deceased. They filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the respondents, on account of the death of the deceased in the road traffic accident, contending that, on 1.10.2011, at about 10.30 a.m. deceased was traveling in his Max 100 bike bearing Reg. No. KA. 15. H. 2786 towards Chikkamagalore side. At that time, the driver of the filled gas cylinder lorry bearing Reg. No. KA. 16. A. 1175 came in a rash and negligent manner and dashed against the motor cycle. Due to which, deceased fell down from bike and the right side wheel of the lorry flow on the head of deceased and he died at the spot.
It is the further case of the claimants that, deceased was aged about 36 years, hale and healthy prior to the accident, working as Conductor in BMTC, Bangalore and drawing the salary of Rs. 16,864/- per month and looking after the welfare of the family by contributing his entire earnings to the family. Due to his untimely death, wife has lost her husband, minor child is deprived of the love and affection, guidance and security of the father and mother has lost her son, suffered financial loss as they have lost their sole bread earner, apart from mental shock and agony.
The said claim petition had come up for consideration before the Tribunal. The Tribunal, after appreciating the oral and documentary evidence and other material available on file, has allowed the claim petition in part and awarded the compensation of Rs. 24,95,400/- under different heads with interest at 6% p.a., from the date of petition till realization, directing the 3rd respondent-Insurer to deposit the said amount.
Being aggrieved by the impugned judgment and award passed by the Tribunal, the appellant/Insurer has presented this appeal.
We have heard the learned counsel appearing for the Insurer and learned counsel appearing for claimants.
The submission of the learned counsel appearing for the appellant/Insurer, at the outset is that, two vehicles were involved in the accident, viz., motor cycle bearing Reg. No. KA. 15. H. 2786 and Gas Cylinder Lorry bearing Reg. No. KA. 16. A. 1175. The deceased who was working as Conductor in BMTC bus was the rider of the motor cycle and due to his rash and negligent driving only, the accident has occurred. Further, he vehemently submitted that the driver of the lorry did not have effective Dl to drive the dangerous and hazardous goods vehicle and in fact, the owner of the lorry has filed his detailed objections taking a stand that due to rash and negligent driving by the deceased, rider of the motor cycle, the said accident has occurred. But this aspect of the matter has not been considered or appreciated by the Tribunal and on the contrary, it has recorded the finding of fact holding that the driver of the lorry possessed authorization to drive hazardous goods vehicle, as he has possessed certificate for carrying goods vehicle. Therefore, he submitted that the impugned judgment and award passed by the Tribunal is liable to be set aside by dismissing the claim petition against the Insurer of the Lorry.
Per contra, learned counsel appearing for claimants, inter-alia, contended and substantiated that, the Tribunal, after discussing the relevant provisions of M.V. Act and Rules and also the evidence of RW3-owner in paras 20 to 23 of judgment, has recorded the finding of fact that, the driver of the lorry has the authorization to drive the vehicle carrying hazardous goods and therefore, the 2nd respondent has not violated any terms and conditions of the policy and as on the date of the accident the vehicle was insured with the insurer and policy was in force. The said finding of fact recorded by the Tribunal after critical evaluation of the oral and documentary evidence is just and proper and therefore, interference by this Court is not called for. Further, he pointed out and submitted that the stand taken by the Insurer regarding contributory negligence cannot be accepted and is liable to be rejected, on the ground that, the Tribunal after due consideration of the oral and documentary evidence and other material on file with reference to the contents of Exs. P1 to P5, P8 and that the police authorities, after due investigation have filed the chargesheet against the driver of the lorry involved in the accident, has recorded the finding of fact in para-14 of the judgment that the accident has caused due to rash and negligent driving by the driver of the lorry and on account of fatal injuries sustained by the deceased, he succumbed to the same. The said reasoning recorded by the Tribunal is just and proper and therefore, it does not call for interference.
After hearing learned counsel appearing for the parties and after careful perusal of the material available on record at threadbare, including the impugned judgment and award passed by the Tribunal, the only point that arises for our consideration is:
Whether the appellant/insurer has made out a case to interfere in the judgment and award passed by the Tribunal?
It is the case of the claimants that due to rash and negligent driving by the 4th respondent/driver of the lorry belonging to the 5th respondent/owner of the lorry, now represented by his legal representatives, the said accident has occurred and the driver had the effective and valid DL. RW3, the Power of Attorney Holder of the owner of the lorry has stated that, he handed over the vehicle to the 4th respondent/driver on verification of the certificate and after confirming that he is authorized to drive the vehicle carrying hazardous goods. Further, he deposed that, driver has not violated any terms and conditions of the policy and specifically, deposed that the vehicle was insured with the insurer, policy was in force as on the date of the accident and policy covered the carrier legal liability and they have obtained the special insurance. He further deposed that, as on the date of the accident, the vehicle was carrying empty gas cylinders in the vehicle and the vehicle met with an accident and the insurance is for commercial vehicle package policy and had the permit as per Ex. R3 and the vehicle is authorized to carry general goods except prohibited and carrying gas cylinders cannot be called as prohibited articles. As rightly pointed out by the learned counsel appearing for the appellant, the Division Bench of this Court in the case of New India Assurance Company Ltd. Vs. Shri Velumuruan V and another reported in ILR 2015 Karnataka 393, has held that the submission of the learned counsel appearing for the Insurer that the driver did not possess endorsement is not at all acceptable and accordingly held that in order to drive an empty tanker, no endorsement is required by a driver to drive such vehicle since it was not carrying on any hazardous or combustible material. In the light of the law laid down by the Division Bench of this Court as referred above, in the instant case also, it emerges from the evidence available on file that, at the time of accident, the vehicle was carrying empty gas cylinders and therefore, the Tribunal, after due appreciation of the oral and documentary evidence and other material available on file, has justified in recording its finding in para-23 of its judgment and therefore, it does not call for interference, nor we find any substance in the ground urged by the Insurer.
Regarding second submission of the learned counsel appearing for the Insurer that there is a contributory negligence on the part of the deceased, rider of the motor cycle is concerned, the same cannot be accepted, for the reason that, the Tribunal, after consideration of the contents of Exs. P1 to P4, P8 and the evidence of PW1 and that the jurisdictional Police Authorities after due investigation have filed charge-sheet against the 4th respondent/driver of the lorry which belongs to 5th respondent/owner now represented by his LRs, has held that and the accident has caused due to rash and negligent driving by the driver of the lorry, in the said accident, deceased sustained fatal injuries and succumbed to the same and accordingly, fastened the liability jointly and severally on the owner and Insurer of the lorry and directed the insurer to indemnify the same. The said reasoning recorded by the Tribunal is in strict consonance with the evidence on record and therefore, interference by this Court is not called for, nor we find any valid grounds as such made out by the Insurer to consider the grounds urged in the memorandum of appeal. Therefore, taking all these aspects into consideration, the appeal filed by the appellant/insurer is dismissed as devoid of merits.
The amount in deposit shall be transmitted to the jurisdictional Tribunal immediately.
In view of dismissal of mam appeal on merits, the relief sought by the appellant in I.A. No. 4/2015 does not survive for consideration. Hence, it is disposed of as having become infructuous.