AFROZ S/O. SRI. SHAHJAN AND SRI. N. NAGARAJA Vs. THE NEW INDIA ASSURANCE CO. LIMITED REP. BY ITS DIVISIONAL MANAGER

JUDGEMENT

(1.) THESE two appeals by the insurer and the claimant arise out of the same judgment and award dated 21.02.2005 passed in MVC No. 5067/2002 on the file of the Motor Accidents Claims Tribunal, Court of Small Causes, Bangalore City ('Tribunal' for short). The Tribunal by its impugned judgment and award, awarded a sum of Rs. 73,600/ - under different heads with 6% interest p.a. from the date of petition till the date of deposit as against the claim of Rs. 4,00,000/ - on account of the injuries sustained in the road traffic accident. The insurer has challenged the quantum of compensation awarded by the Tribunalas being on the higher side and also challenged the fastening of the liability on the insurer to pay the compensation, whereas, the claimant contended that, the quantum of compensation is inadequate and it requires enhancement. Both the insurer and the claimant felt necessitated to present these two appeals.

(2.) THE brief facts of the case are that, claimant was aged about 24 years, was a painter by occupation and was earning an income of Rs. 3,000/ - per month. He was bale and healthy prior to the accident. It is contended by the claimant that, at about 10.30 p.m. on 24.9.2002 when he was travelling in the auto rickshaw bearing registration No. KA -02/8701 from Arakere to Bilakal, at that time, the driver of the tanker bearing registration No. KA -03/9320 drove the same in a rash and negligent manner, on Bannerghatta Road, in front of IIM, Bangalore and dashed against the auto rickshaw. Due to the impact, the claimant sustained injuries as follows:

(3.) LEARNED Counsel for the insurer at the outset, submitted that, fastening liability on the insurer is not sustainable and is liable to be set aside at the threshold. To substantiate his claim, he is quick to point out that, the driver of the tanker bearing registration No. KA -03/9320 did not possess a valid driving licence as on the date of accident. Therefore, question of fastening liability on the insurer is not justifiable and this stand/objection has been taken at the preliminary stage i.e., at the time of filing the written statement This aspect of the matter has neither been looked into by the Tribunal nor considered or appreciated and without any justification, contrary to the evidence on record, has fastened the entire liability against the insurer, which cannot be sustained. Therefore, the impugned judgment and award is liable to be modified, by exonerating the liability of the insurer and fastening the liability on the owner of the tanker.