IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.No.1176/2012 (MV) BETWEEN:
B.S. CHIDANANDA REDDY, S/O B.V. SRINIVASA REDDY, AGED ABOUT 63 YEARS, PROP: M/S. S R E TRAVELS, R/O HEAD POST OFFICE ROAD, CHITRADURGA – 577 501. … APPELLANT (BY SMT. NALINA K., ADVOCATE) AND:
1. SMT. MARAKKA, W/O LATE JAYANNA, AGED ABOUT 33 YEARS.
2. DHANANJAYA, S/O LATE JAYANNA, AGED ABOUT 13 YEARS.
3. PALAMMA, D/O LATE JAYANNA, AGED ABOUT 11 YEARS.
4. MAHESH, S/O LATE JAYANNA, AGED ABOUT 9 YEARS.
5. SANNA OBAIAH, S/O OBAJJA, AGED ABOUT 70 YEARS.
RESPONDENT Nos.2 TO 4 ARE MINORS, REPRESENTED BY THEIR NATURAL MOTHER AND GUARDIAN – RESPONDENT No.1.
RESPONDENT Nos.1 TO 5 ARE R/O SANGALAPURA, HURULIYAL P.O., KUDLIGI TALUK, BELLARY DISTRICT-583 126. NOW R/O RAYAPURA, MOLAKALMURU TALUK, CHITRADURGA DISTRICT – 577 535.
6. BRANCH MANAGER, M/S. THE NEW INDIA ASSURANCE CO. LTD., LAXMI BAZAR, CHITRADURGA CITY – 577 501.
... RESPONDENTS (BY SRI P.G. VASANTH KUMAR, ADVOCATE FOR R-1 AND R-5, SRI G.N. RAJENDRA, ADVOCATE FOR R-6 R-2 TO R-4 ARE MINORS REPRESENTED BY R-1) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.10.2011 PASSED IN MVC.NO.116/2007 ON THE FILE OF SENIOR CIVIL JUDGE AND MACT, CHALLAKERE, AWARDING A COMPENSATION OF RS.4,46,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
THIS M.F.A. COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed challenging the judgment and award dated 26.10.2011 passed in M.V.C.No.116/2007, on the file of the Senior Civil Judge and MACT, Challakere, questioning the liability fastened on the insured.
2. The learned counsel for the appellant submits that the only short question involved in this matter is that the permit was deviated while running the bus and the Court below taking note of the same, fastened the liability on the insured and the same is not correct.
3. The counsel in support of his argument relied upon the decision of this Court in the case of DURUGAMMA v. S.G. NARESH AND OTHERS reported in 2017(1) Kar.L.R. 251 and contended that violation of permit condition are contemplated in Section 86 of the Motor Vehicles Act, 1988 where the permit can be cancelled, penalty can be imposed under Section 192-A of the Act. Section 207(1) of the Act contemplates power to detain vehicles used without certificate of registration permit. The defence available to the insurer is under Section 149(2)(a)(i)(c) of the Act, whether the vehicle has been used for a purpose not allowed by the permit under which the vehicle was used. This Court considering the judgment in the case of NEW INDIA ASSURANCE COMPANY LTD., v. ASHA RANI AND OTHERS reported in (2003) 2 SCC 223 and also other cases came to the conclusion that deviation of permit is not a fundamental breach. Hence, the case on hand is distinguishable from Asha Rani’s case (supra). The impugned judgment is not fit to be sustained in much as the liability aspect is concerned. The liability fastened on the registered owner of the vehicle is set aside. The insurer/ respondent No.3 shall be liable to satisfy the award. The counsel relying upon this judgment would contend that the very judgment is aptly applicable to the case on hand.
4. This matter was listed on 11.10.2019 and there was no representation from the respondents’ side. Hence, the matter was adjourned to next week to give an opportunity to the respondents’ counsel to address the arguments. The matter is listed today. Even today also the respondents are absent. Hence, taken as no arguments.
5. In view of the contentions raised by the appellant’s counsel, the point that arise for the consideration of this Court is:
(i) Whether the Tribunal has committed an error in fastening the liability on the insured and it requires interference of this Court?
6. The only question before this Court is with regard to fastening the liability and the Court below with regard to deviation of the permit fastened the liability on the insured. There is no dispute that the policy was in force as on the date of the accident. Having considered the principles laid down in Durugamma’s case (supra), it is held that fastening the liability on the insured is not correct and the same has to be fastened on the insurer. In view of the principles laid down in the case referred supra, it is a fit case to fasten the liability on the insurer instead of insured.
7. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is allowed.
(ii) The impugned judgment and award dated 26.10.2011 passed in M.V.C.No.116/2007, on the file of the Senior Civil Judge and MACT, Challakere, fastening the liability on the insured is set aside.
(iii) The Insurance Company is directed to pay the compensation amount in favour of the claimants.
(iv) The office is directed to refund the deposited amount in favour of the appellant on proper identification forthwith.
Sd/- JUDGE MD