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Judgment
B. Sreenivase Gowda, J.—As these appeals are arising out of a common judgment and award of the Tribunal, they are heard and disposed of by this common judgment.
For the sake of convenience parties are referred to as they are referred to in the claim petition before the Tribunal.
Brief facts of the case as pleaded in the claim petition are:
That on 22-5-04, when the deceased Raju was crossing the road from North to South at 100 feet Ring Road towards Pallavi Hotel, Bangalore, the Bajaj Pulsar bearing registration No. KA-03-EM-47 came with high speed and dashed against him. As a result, the deceased sustained grievous injuries to head and immediately, he was shifted to Nimhans for treatment and from there to Victoria Hospital, where he died on 23-5-04. His wife and two minor children filed a claim petition before the MACT. Bangalore seeking compensation of Rs. 8,00,000/-. The Tribunal by impugned judgment and award has awarded them a compensation of Rs. 3,94.000/- with interest at 6% p.a.
Aggrieved by the award of the Tribunal, insurer of offending vehicle has preferred MFA No. 12496/07 challenging the award of the Tribunal on the ground of negligence and liability, whereas claimants have preferred MFA No. 12154/07 seeking enhancement of compensation.
Learned Counsel appearing for the insurer submits, the Tribunal has committed an error in holding, the accident was occurred due to negligence on the part of the driver of the offending vehicle, without considering the negligence on the part of the deceased and he further submits, the rider of offending vehicle did not possess a valid and effective driving licence as on the date of accident and the Tribunal has committed an error in fastening liability against the insurer, and he prays for allowing the appeal of the insurer and dismissing the appeal of the claimants.
Whereas, learned Counsel appearing for claimants contends, there is no infirmity in the award of the Tribunal in. holding that the accident was occurred due to the rash and negligent riding of the motor cycle by its rider and in fastening the liability against the insurer. She further submits quantum of compensation awarded is not just and proper and she prays for allowing the appeal of the claimants by enhancing compensation.
From the rival contentions of the parties, the points that arise for consideration in these appeals are:
Whether the Tribunal is justified in holding that the accident: was occurred due to rash and negligent riding of the motor cycle by its rider and whether the Tribunal is justified in fastening liability against the insurer of motor cycle and whether quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement
The accident was occurred at 11.30 p.m. on 22-5-04. One Sri. B. Praveen Kumar informed the sub-Inspector of Police, Madiwala on 23-5-04. stating that at 11.30 p.m. on 22/23-5-04 when he was returning home by walk after finishing his work, at BTM 100 feet Ring Road, in front of Pallavi Hotel, MICO layout circle, a pedestrian was crossing 100 feet Ring road towards Pallavi Hotel from North to South, at that time, a Bajaj Pulsar motor cycle bearing No. KA-03-EM-47 came in a rash and negligent manner and dashed against the said pedestrian. As a result, he fell down and sustained injuries to his head and immediately, he took him in an autorickshaw and admitted him to Nimhans for treatment. Police after investigating the matter, filed charge sheet against the rider of the offending motor cycle Aseem Rastogi, for the offences punishable u/s 279, 304-A of IPC read with Section 134(a) and (b) read with Section 187 of Motor Vehicle Act.
The claimants in support of their contention that the death of the deceased was in a road traffic accident occurred on 22-5-04, due to rash and negligent driving of offending motor cycle by its rider, have examined the first claimant wife of the deceased and have produced certified copy of FIR, complaint, inquest mahazar, charge sheet and election identity card which are marked as Exs.P.1 to P.8. The owner of vehicle though entered appearance through Counsel, did not choose to contest the petition. Whereas, the insurer of motor cycle has filed statement of objections, hut the same is not forthcoming in the records of the trial Court. From a true copy of the statement of objections of the insurer available in the records of the Tribunal, I found the insurer has admitted the policy issued in favour of the offending vehicle, but stated, their liability, if any, is subject to terms and conditions of the policy and subject to a valid and effective driving licence of the rider in question. In paragraph 3 of their statement of objections, it is stated, the rider who was riding the motor cycle had only a learner''s licence and was riding in violation of Rule 3 of Central Motor Vehicles Rules and the first Respondent has committed breach of terms and conditions of policy in entrusting the vehicle to a person not holding a driving licence. Hence, the Respondent is not liable to indemnify him and pay compensation to the claimants. Only a copy of Insurance policy and a copy of learner''s licence are produced and marked as Exs.R. 1 and R.2 through the official of the Insurance Co. examined as R.W.I.
Both P.W.1 who is the wife of the deceased, examined on behalf of the claimants and R.W.I, an official of the Insurance Co. examined on behalf of the insurer are not eye witnesses to the accident and their evidence would not in any way help the Court to decide the question regarding negligence. The accident was occurred at 11.30 p.m. on 22-5-04. One Praveen Kumar who was returning home after finishing his work informed the sub-Inspector of Police, Madiwala Police Station about the accident. The Police after registering the complaint: against the rider of motor cycle and after holding investigation filed charge sheet against the rider of motor cycle. Insurer of offending vehicle who contends deceased had also contributed for the accident did not. choose to examine either the rider of motor cycle or any other eye witness to the accident or summon the complainant and examine him that the information furnished by him to sub-Inspector of Police, Madiwala Police Station and extracted in the FIR are not true and correct.
Considering the complaint and registration of FIR against the rider of motor cycle and filing of charge sheet against him and. evidence of the claimant P.W. 1, Tribunal is justified in holding, the accident was occurred due to rash and negligent riding of the motor cycle by its rider.
I have gone through the said finding of the Tribunal and do not find any valid reason to reverse the same. Accordingly, it is confirmed.
The next question is, whether Tribunal is justified in fastening liability against the insurer, when offending vehicle was driven by a person having only learners.