Judgment:
(This MFA is filed u/s. 173(1) of MV Act against the judgment and award dated 19.10.2011 passed in MVC No. 2964/2010 on the file of XVI Additional Judge, MACT, Bangalore, awarding a compensation of Rs.2,11,350/- with interest @ 6% p.a. on Rs.2,01,350/- (Excluding future Medical Expenses) from the date of petition till payment.)
Oral:
1. This appeal is by an Insurer and is directed against the judgment and award of the tribunal making the appellant-Insurer, owner, and the lessee (BMTC) of the insured bus jointly and severally liable for the compensation of Rs.2,11,350/- and interest awarded to the claimant for the injuries suffered by him in a motor vehicle accident that occurred on 30.03.2007. The claimant was hit by the bus from behind while he was riding his motorcycle, resulting in injuries to him.
2. The sole contention urged by learned Counsel for the appellant is that the liability saddled on the appellant is a contractual liabilityand hence, is not required to be covered in law in view of proviso (ii) to Section 147(1) of the Motor Vehicles Act, 1988 ( ˜the Act').
3. Section 147 of the Act states the nature of risk required to be covered under a policy of Insurance and limits of liability. Section 149 of the Act inter alia states the defences available to an Insurer. A combined reading of the aforesaid two Sections will show that if a risk is factually covered under the Insurance policy or is required to be covered under Section 147 of the Act, the Insurer cannot avoid indemnifying the insured of the liability incurred by him in respect of such a risk to the extent of the liability covered under the policy or required to be covered under Section 147 of the Act, unless the insurer has proved any of the defences available to an Insurer under Section 149 of the Act. There is no other legal ground for an insurer to avoid the liability.
4. In this case, the risk in question is covered under the policy and the extent of liability required to be covered in respect of the said risk is unlimited and the insured has incurred the liability relating to the said risk. It is not the case of the appellant that it has proved any of the defences available to an Insurer under Section 149 of the Act to avoid the liability. On the facts of the case, reliance placed by the learned Counsel for the appellant on proviso (ii) to Section 147(1) of the Act is inappropriate. The appeal is devoid of merit and it is accordingly dismissed.
5. The amount lying in deposit with this Court shall be transferred to the Tribunal forthwith.
Appeal dismissed.