(Prayer: This MFA is filed under Section 173(1) of MV Act, against the judgment and award dated 30.11.2022 passed in Mvc.No.1009/2018 on the file of the II Additional Senior Civil Judge and JMFC, Davanagere, awarding compensation of Rs.11,37,700/- with interest at 9 percent p.a. from the date of petition till realization.)

Oral Judgment

1. This appeal is filed by the insurer challenging the liability saddled on it to pay the award amount awarded in the Judgment and Award dated 30.11.2022 passed in MVC No.1009/2018 by II Additional Senior Civil Judge and JMFC, Davanagere.

2. Ever though the matter is listed today for admission, with the consent of the learned counsel for appellant and learned counsel for respondent Nos.1 to 3, the matter is taken up for disposal.

3. Respondent Nos.1 to 3/ claimants made a claim petition seeking compensation for the death of Chandrappa (husband of respondent No.1 and father of respondent Nos.2 and 3) in a road traffic accident occurred on 20.11.2017 contending that the accident occurred due to rash and negligent driving of the rider of motorcycle bearing registration No.KA-17-EQ-6777.

4. The Tribunal recorded the evidence. The Tribunal after appreciating the evidence, assessed the compensation and awarded compensation of Rs.11,37,700/- with interest at the rate of 9% per annum from the date of petition till realisation and saddled the liability to pay the award amount on the appellant/insurer. Challenging the said liability saddled, the appellant/insurer has filed the present appeal.

5. Heard the learned counsel for appellant and learned counsel for respondent Nos.1 to 3.

6. Learned counsel for the appellant would contend that, the charge sheet - Ex.P3 indicates that the rider of motorcycle - respondent No.4 was not possessing the driving license and he has been charge sheeted for offence under Section 181 of Motor Vehicles Act and respondent No.5 was the owner of vehicle bearing registration No.KA-17-EQ-6777 and he has been charge sheeted for offence under Section 180 of Motor Vehicles Act for handing over the vehicle to a person who was not holding the driving license.

7. The evidence of R.W.1 - owner of the insured vehicle during in his cross-examination has admitted that, respondent No.4 was not possessing the driving license. The Investigating Officer has been examined as R.W.3 and he has stated that respondent No.4 - Mallikarjuna was driving the vehicle bearing registration No.KA-17-EQ-6777 and he was not holding driving license as on the date of accident. The Tribunal was not considered the evidence on record to ascertain the violation of policy conditions. The said evidence clearly indicates the violation of policy conditions since the driver of the insured vehicle was not possessing driving license as on the date of accident. The Tribunal failed to consider this aspect and also failed to fasten the liability on the owner of vehicle. The Tribunal at the most has ordered for pay and recovery of the compensation awarded. The interest at the rate of 9% per annum is also on higher side. With these, he prayed to allow the appeal.

8. Learned counsel for respondent No.2 would contend that, the Trial Court after appreciating the evidence on record has rightly passed the Judgment and Award. With these, he prayed for dismissal of the appeal.

9. Having heard the learned counsels appearing for the parties, the Court has perused the Judgment, Award and Trial Court records.

10. Respondent No.4 was driving the vehicle at the time of accident. Respondent No.4 was respondent No.1 before the Tribunal. Respondent No.5 was the owner of the vehicle which was driven by respondent No.4 bearing registration No.KA-17-EQ-6777. Respondent No.5 was respondent No.2 before the Tribunal.

11. Ex.P3 - copy of the charge sheet, it is filed against respondent No.4 for offence under Section 181 of Motor Vehicles Act along with offences under Sections 279 and 304(A) of Indian Penal Code, 1860. The charge sheet is also filed against respondent No.5 / owner of the vehicle for offence under Section 180 of Motor Vehicles Act. Respondent No.5 / owner of the vehicle bearing registration No.KA-17-EQ-6777 has been examined before the Tribunal as R.W.1 and in his cross-examination has admitted that, respondent No.4 - Mallikarjuna was not possessing Driving License as on the date of accident. R.W.3 the Investigating Officer has given the evidence that respondent No.4 - Mallikarjuna was driving the vehicle bearing registration No.KA-17-EQ-6777 and he was not holding Driving License as on the date of the accident. The said charge sheet - Ex.P3 and evidences of R.W.1 and R.W.3 clearly establishes that respondent No.4 - Mallikarjuna was driving the vehicle insured with the appellant/insurer bearing registration No.KA-17-EQ-6777 was not holding Driving License as on the date of the accident. The Tribunal has not at all considered the above said evidences. The above said evidences clearly indicate the violation of policy conditions. The driver of the injured vehicle was not possessing Driving License on the date of accident and as there is a violation of policy conditions, the appellant/insurer is not liable to pay the award amount to the claimants. Since the deceased was a 3rd party, the appellant/insurer has to pay the award amount to the claimants and it is at liberty to recover the same from the owner of the vehicle i.e., respondent No.5.

12. The Tribunal also awarded the interest at the rate of 9% per annum. The said interest awarded is on higher side. Considering the bank interest rate, the interest to be awarded is at 6% from the date of petition till realisation. The appellant/insurer has not challenged the quantum of compensation awarded.

13. In view of the above, the following:

ORDER

          i) Miscellaneous First Appeal is allowed-in- part.

          ii) The liability saddled on the appellant/insurer to pay the compensation under the impugned Judgment and Award passed in MVC No.1009/2018 is set aside.

          iii) The appellant/insurer has to pay the compensation amount awarded by the Tribunal with interest at the rate of 6% per annum from the date of petition till realisation to the claimants and recover the same from owner of the vehicle/respondent No.5.

          iv) The remaining terms and conditions of the Judgment and Award passed by the Tribunal shall remain unaltered.