SADASHIV AND ORS. Vs. DYAVAKKA AND ORS.

JUDGEMENT

(1.) Heard the learned counsel appearing for the parties. The owner as well as the claimants are in appeal challenging the judgment and award passed by the Motor Accidents Claim Tribunal, Bailhongal in MVC No. 1800/2008.

(2.) The facts in brief are:

(3.) The learned counsel for the owner mainly contended that the offending vehicle JCB falls within the definition of Light Motor Vehicle (LMV) as defined under Sec. 2(21) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for short). It is contended that the driver of the offending vehicle i.e., JCB had valid and effective driving license to drive the LMV as well as the Heavy Transport Vehicle (HTV) and tractor and trailer on the date of occurrence of the accident. The JCB with ladden weight of 7460 kgs comes within the ambit of LMV, the Tribunal without appreciating the said contention of the owner saddled the liability on the owner exonerating the insurer from indemnifying the owner, contrary to the terms of the insurance policy. It is further contended that, as per Sec. 147 of the Act, as long as the insurance policy is current, the insurer cannot escape the liability and is not entitled to take a defence of breach of the terms of the insurance policy to invoke the provisions of Sec. 149(2) of the Act to exonerate from the liability. It is further contended that, whether the vehicle is a light motor vehicle or not has to be ascertained from the unladen weight of the vehicle. In the present case, the offending vehicle being with unladen weight of 7460 kgs., less than 7500 kgs, falls within the definition of light motor vehicles.