IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF APRIL 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL No.2654/2013 (MV) C/W MISCELLANEOUS FIRST APPEAL No.2653/2013 (MV) MISCELLANEOUS FIRST APPEAL No.2654/2013 (MV) BETWEEN:
BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD.
NEXT TO BANGALORE STOCK EXCHANGE NEW MISSION ROAD BANGALRE – 560 021 BY ITS ASSISTANT VICE PRESIDENT (CLAIMS).
… APPELLANT (BY SMT. H.R. RENUKA, ADVOCATE.) AND:
1. NAZEEMA D/O. GOUSE KHAN AGED ABOUT 25 YEARS NO. 40, 15TH CROSS VEERABHADRANAGAR HOSAKEREHALLI RING ROAD BANGALORE.
2. VENKATESH G. S/O. GURUSWAMY NO.12, 5TH CROSS MANJUNATHANAGAR BANGALORE – 560 010.
…RESPONDENTS (SERVICE HELD SUFFICIENT ON RESPONDENTS 1 AND 2 VIDE ORDER DATED 04.01.2018.) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF M.V. ACT AGAINST THE JUDGMENT AND AWARD DATED 03.01.2013 PASSED IN MVC NO.5608/2007 ON THE FILE OF THE 16TH ADDITIONAL JUDGE, MEMBER MACT-14, BANGALORE, AWARDING A COMPENSATION OF RS.2,20,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF PAYMENT.
MISCELLANEOUS FIRST APPEAL No.2653/2013 (MV) BETWEEN:
BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD.
NEXT TO BANGALORE STOCK EXCHANGE NEW MISSION ROAD BANGALRE – 560 021 BY ITS ASSISTANT VICE PRESIDENT (CLAIMS).
… APPELLANT (BY SMT. H.R. RENUKA, ADVOCATE.) AND:
1. P.D. NAIR S/O. LATE PARAMESHWARAN PILLAI AGED ABOUT 60 YEARS.
2. SUMUNGALA DEVI W/O. P.D. NAIR AGED ABOUT 55 YEARS.
BOTH R/O. SARASWATHI VILASAM (NILAYA) CHAMPALANDHI (POST) THIRUVANANTHAPURAM KERALA STATE.
3. VENKATESH G. S/O. GURUSWAMY NO.12, 5TH CROSS MANJUNATHANAGAR BANGALORE – 560 010.
…RESPONDENTS (BY SRI. K.T. GURUDEVA PRASAD, ADVOCATE FOR R.1 AND R.2. SERVICE HELD SUFFICIENT ON RESPONDENT NO.3 VIDE ORDER DATED 04.01.2018.) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF M.V. ACT AGAINST THE JUDGMENT AND AWARD DATED 03.01.2013 PASSED IN MVC NO.1347/2008 ON THE FILE OF THE 16TH ADDITIONAL JUDGE, MEMBER MACT-14, BANGALORE, AWARDING A COMPENSATION OF RS.2,92,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF PAYMENT.
THESE APPEALS COMING ON FOR HEARING, THIS DAY THE COURT MADE THE FOLLOWING:
J U D G M E N T M.F.A No.2654/2013 is arising out of judgment and award passed in M.V.C.No.5608/2007 and M.F.A.No. 2653/2013 is arising out of judgment and award in M.V.C.No.1347/2008 on the file of the 16th Additional Judge, Member MACT-14, Bengaluru, dated 03/01/2013. Challenging the same, the insurance company is in these appeals.
2. I have heard the learned counsel appearing for the appellant-insurance company and the learned counsel for respondents in both the appeals.
3. In M.F.A.No.2654/2013, respondent No.1/claimant, respondent No.2/ owner of the offending vehicle have been served, but they are not represented. Hence, service has been held sufficient.
4. In M.F.A. No. 2653/2013, respondent No.3, owner of the offending vehicle has been served, he is not represented. Hence, service has been held sufficient.
5. The facts of the case in brief are that on 11/07/2007 at about 4.30 a.m., the deceased namely, Prashob in MVC No.1347/2008 was proceeding on a Kinetic Honda bearing registration No. KL-16-A-6974 along with pillion rider- Nazeema, claimant in M.V.C.No. 5608/2007, on C.M.H. Road, 17th E Cross, Bengaluru. At that time, an autorickshaw bearing registration No.KA-02- C-9309 driven by its driver in a rash and negligent manner, dashed against the said Kinetic Honda, as a result of which, they fell down and sustained grievous injuries. Kinetic Honda was also badly damaged. The rider (Prashob) of the Kinetic Honda succumbed to the injuries in the hospital. The claimant (pillion rider) in MVC No.5608/2007 suffered permanent disability, due to the injuries.
6. The injured/claimant in MVC No.5608/2007 was examined as P.W.1 and doctor was examined as P.W.2. Ex.P.1 to Ex.P.13 were got marked on behalf of the claimants. On behalf of the respondents, R.W.1 to R.W.3 were examined and Ex.R1 to Ex.R.8 were marked in evidence.
7. Claimant No.1, father of the deceased in M.V.C.No.1347/2008 was examined as P.W.1 and through his evidencegot marked Ex.P.1 to Ex.P.14. On behalf of respondents, R.W.1 was examined and Ex.R1 to Ex.R.17 were marked.
8. The Tribunal after considering the oral and documentary evidence on record, awarded a total compensation of Rs.2,92,000/- with interest at 6% p.a. from the date of petition till the date of payment in M.V.C.No.1347/2008. In M.V.C.No.5608/2007, the Tribunal has awarded compensation of Rs.2,20,200/- with interest at 6 % p.a. from the date of petition till the date of payment. The Tribunal held that the respondent Nos.1 and 2, insurer and the owner of the vehicle are jointly and severally liable to pay the compensation and further directed the insurer to deposit the compensation amount.
9. Smt. H.R.Renuka, learned counsel appearing for the insurance company vehemently contended that the Tribunal was not justified in fastening the liability on the insurer, since the driver of the offending vehicle was not holding a valid licence to drive a transport vehicle, as the autorickshaw involved in the accident is a three wheeler/ goods carriage vehicle. She would submit that the driver of the said vehicle was holding a licence to drive LMV and there is no endorsement in the said licence to drive the type of vehicle which was involved in the accident. As such, the driver was not authorised to drive the said vehicle and the insurance company cannot be held liable to pay the compensation, in view of the clear violation of the terms and conditions of the policy.
10. Learned counsel appearing for the appellant would also contend that there was no permit for the vehicle at the time of accident as per the admission of the owner himself and this being a permissible defence available to the insurance company under Section 149(2) of the Motor Vehicles Act, the insurer is not liable to pay compensation awarded by the Tribunal. Therefore, she seeks to allow the appeals.
11. The accident in question involving the autorickshaw bearing registration No. KA-02-C-9309 which was insured with the appellant herein at the time of accident is not in dispute. The Tribunal after awarding compensation to the respective claimants has held the insured and insurer jointly and severally liable to pay the compensation and further directed the appellant herein to deposit the amount. The contention of the learned counsel for the appellant that the driver of the offending autorickshaw was not having a valid driving licence to drive a transport vehicle and there is no endorsement to that effect in the licence and therefore, the insurance company cannot be held liable to pay the compensation, is not acceptable, in view of the decision of the Hon’ble Supreme Court in the case of Mukund Dewangan v. Oriental Insurance Company Limited, AIR 2017 SC 3668. The apex court has clearly held that no separate endorsement is required in the licence to drive a transport vehicle, if the gross vehicle weight does not exceed 7500 k.gs. It is further held that there is no requirement to obtain separate endorsement to drive transport vehicle and if driver is holding licence of light motor vehicle, he can drive transport vehicle without any endorsement to that effect.
12. The next leg of contention of the learned counsel for the appellant is that the vehicle had no valid permit at the time of accident and therefore the insurance company cannot be held liable to pay the compensation. She would draw the attention of this court to the evidence of R.W.2 – G.Venkatesh, the owner of the offending vehicle.
13. Perusal of the evidence of R.W.2-G Venkatesh goes to show that he was the owner of the three wheeler goods autorickshaw bearing No. registration No.KA-02-C- 9309 which was involved in the accident. According to him, the accident occurred due to the rash and negligent driving by the vehicle bearing registration No. KL-16-A-6974, which was being used by the claimants. He has admitted in the cross examination that his autorickshaw was seized by the police and he got it released. Charge sheet was filed against the driver of autorickshaw. He has admitted in the cross-examination that the driver of the goods autorickshaw was not having a valid licence to drive the same. Admittedly, no permit has been produced and marked before the Tribunal. R.W.2- G.Venkatesh, owner of the autorickshaw has clearly admitted that there was no permit to the said autorickshaw at the relevant point of time.
14. In the instant case, from the materials placed on record, it is demonstrated that at the time of the accident, the vehicle did not have a permit which is admitted by the owner of the vehicle in his evidence. There is nothing on record to show that there was a valid permit for the vehicle at the time of accident. However, in view of the decisions of the Hon’ble Supreme Court, in the case of Amrit Paul Singh and Anr. vs. TATA AIG General Insurance Co. Ltd and Ors, AIR 2018 SC 2662, the insurer has to pay the compensation amount to the claimants with interest and the insurer is at liberty to recover the same from the owner of the vehicle. The impugned judgment and award is modified to that effect.
15. In view of the above discussions and observations both the appeals are disposed of.
The amount in deposit shall be transmitted to the Tribunal.
Sd/- JUDGE Msu