IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO.4073 OF 2011 (MV) BETWEEN THE BRANCH MANAGER ORIENTAL INSURANCE CO., LTD., BRANCH OFFICE:
OPPOSITE TO K.S.R.T.C. BUS STAND SHARADA COMPLEX CHITRADURGA BY ORIENTAL INSURANCE CO., LTD., REGIONAL OFFICE, NO.144 NO.44/45, LEO SHOPPING COMPLEX RESIDENCY CROSS ROAD BENGALURU – 560 025 REP. BY ITS MANAGER ... APPELLANT (BY SRI O.MAHESH, ADVOCATE) AND 1. P. SHANTHAMURTHY AGED ABOUT 24 YEARS S/O. PATHAPPA S/O.T.GOLLARAHATTY @ CHOWDAGONDANAHALLY HOLALKERE TALUK CHITRADURGA DISTRICT-577 501 NOW R/AT GOPALAPURA, HIRIYUR TALUK 2. ASLAM PASHA AGED ABOUT 51 YEARS S/O. BASHEER SAB R/O. KOTWAL NAGAR 3RD CROSS CHITRADURGA – 577 501 ... RESPONDENTS (BY SRI R.SHASHIDHARA, ADVOCATE FOR R1; NOTICE TO R2 IS HELD SUFFICIENT) THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988 PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 14.10.2010 PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL MACT, HIRIYUR IN MVC.NO.444/2007, AWARDING A COMPENSATION OF RS.24,250/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THIS MFA COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is directed against the judgment and award passed by the Tribunal in MVC.No.444/2007 dated 14.10.2010, whereby the Tribunal has awarded compensation of Rs.24,250/- with interest @ 6% per annum. The liability has been saddled on the Insurance Company. The same has been incorporated in the operative portion of the order but the liability fixed on respondent Nos.1 and 2 to pay compensation to the claimant is joint and several.
2. Heard the learned Counsel for the appellant and the learned Counsel for respondent No.1 and perused the impugned judgment and award.
3. Factual matrix of this appeal is as under:
It is stated in the claim petition that on 24.05.2007, the claimant and other coolies went to Horakedevapura to load manure of Chidanandaiah in Tractor-Trailor and on that day, at about 4.30 a.m. when he was loading manure in Tractor- Trailor, a Mini Lorry bearing registration No.KA- 17/6650 driven by its driver came in a rash and negligent manner from Mathighatta to H.D.Pura, dashed to him and caused accident. He sustained simple and grievous injuries. He got admitted to the District Hospital, Chitradurga, wherein he was subjected to x-rays. It is noticed in x-rays that he sustained fracture of 3rd and 4th metatarsal bones and he has taken treatment as inpatient from 24.05.2007 to 09.06.2007. He was earning a sum of Rs.4,500/- p.m. by doing coolie work. Due to accident, he suffered injuries and also disablement.
4. In pursuance of issuance of notice to the respondents in the claim petition, the second respondent who put in appearance has filed objections to resist the claim petition denying the age, occupation, income, nature of injuries, medical treatment and expenses as claimed by the claimant. Respondent No.1-the owner of the offending vehicle did not participate in the proceedings and he was placed ex parte. It was contended by respondent No.2-Insurer in the claim petition that though respondent No.1-the owner of the offending vehicle was aware that the driver of the offending vehicle was not possessing a valid and effective driving licence, he has entrusted the vehicle to such person and violated the policy conditions. Urging these grounds, the Insurer sought for dismissal of the claim petition.
5. Based on the pleadings of the parties, the Tribunal framed the issues. On behalf of the claimant, the claimant examined himself as PW-1 and got marked documents at Ex.P1 to Ex.P8. The respondents examined RWs.1 and 2 and got marked documents at Ex.R1 to Ex.R6.
6. On evaluating the entire oral and documentary evidence placed on record, the Tribunal awarded compensation of Rs.24,250/- with interest at 6% per annum from the date of petition till realisation.
7. Sri O.Mahesh, learned Counsel for the appellant has taken me through the evidence of PW.1 and also the evidence of RW.1 and submits that the reason assigned by the Tribunal that the appellant- insurer is liable to pay the compensation is highly erroneous besides being contrary to the position of law. The Tribunal has failed to appreciate Ex.R1–D.L. extract. In light of witnesses examined on behalf of the appellant-insurer, the Tribunal has not appreciated the evidence in a proper perspective in the position of law. Both oral and documentary evidence show that the person/insured was admittedly driving the insured transport vehicle and he had no authorization for permitting him to drive a transport vehicle in violation of policy terms and conditions respecting driver’s clause in the policy. Accordingly, the learned Counsel for the appellant contended that this requires to be intervened in this appeal.
8. Per contra, Sri R.Shashidhara, learned Counsel for respondent No.1 has taken me through the evidence of PW.1, wherein he has given his evidence in conformity with the averments made in the claim petition. There is no dispute with regard to the injuries sustained by the claimant as per wound certificate-Ex.P5. The injured has taken treatment as inpatient in the hospital as per the discharge card- Ex.P7. He was subjected to x-rays as per Ex.P8. The Tribunal has also considered the evidence of RWs.1 and 2. The Tribunal has held that respondent No.2 -
Insurance Company has failed to prove that licence granted to Aslam Pasha was for non transport vehicle. Nowhere in Ex.R1-DL extract, it is mentioned that the said licence was granted for more than three years and if the licence was granted for more than three years, the same can be treated as non transport licence. There is no mentioning of period in Ex.R1 and it only discloses that licence was granted on 11.11.2000 and Light Motor Vehicle was granted with effect from 03.03.2003. The Tribunal appreciating the oral and documentary evidence, has awarded the compensation in a sum of Rs.24,250/-. If is found to be just and proper. Therefore, this appeal does not require any interference and he seeks for dismissal of the appeal by confirming the judgment and award rendered by the Tribunal in MVC No.444/2007.
9. In this backdrop of the contentions taken by the learned Counsel for the appellant and countering argument by the learned Counsel for respondent No.1-claimant, I find that there is no dispute with regard to respondent No.1 being the owner and respondent No.2 being the insurer of the offending vehicle. Ex.R2 is the policy copy, which indicates that it was in force at the time of accident. Respondent No.1 being the owner of the vehicle is vicariously liable for negligent act of his driver. Respondent No.2 being the insurer is liable to indemnify the owner of the vehicle. Therefore, both the respondents are jointly and severally liable to pay compensation to the claimant. The same has been challenged in this appeal. However, the Hon’ble Supreme Court in the case of AMRIT PAUL SINGH v. TATA AIG GENERAL INSURANCE CO. LTD. reported in (2018)7 SCC 558 has held that the exceptions that have been carved out under Section 66 of the Motor Vehicles Act, 1988, needless to emphasize, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. Applying the pay and recover principle, the insurer is liable to pay compensation to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The same has been dealt in paras-23 and 24 of the aforesaid judgment.
10. The above said judgment is applicable to the given facts and circumstance of the instant case, wherein the appellant has taken contention that both oral and documentary evidence show that the person/insured was admittedly driving the insured transport vehicle and he had no authorization for permitting him to drive a transport vehicle in violation of policy terms and conditions respecting driver’s clause in the policy. Therefore, it is said that at the first instance, the appellant-Insurance Company shall pay the compensation and is entitled to recover the same from the owner of the offending vehicle involved in the accident as pay and recover is applicable in terms of the aforesaid judgment. Therefore, I proceed to pass the following:
i) The appeal is hereby allowed-in-part. Consequently, liberty is granted to the appellant-Insurance Company to recover the compensation amount paid at the first instance from the owner of the offending vehicle in terms of the aforesaid judgment rendered by the Supreme Court.
ii) The amount in deposit if any shall be transmitted to the Tribunal forthwith.
iii) The judgment and award passed by the Tribunal in MVC.No.444/2007 is hereby modified.
Office to draw the decree accordingly.
Sd/- JUDGE LB