IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 7705 OF 2013 (MV) BETWEEN THE BRANCH MANAGER ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED BRANCH OFFICE, HUBLI.
BY ROYAL SUNDARAM ALLIANCE COMPANY LIMITED SUBRAMANIAM BUILDING, II FLOOR, NO.1 CLUB HOUSE ROAD, ANNSASALAI CHENNAI – 600 002.
BY IT’S MANAGER.
... APPELLANT (BY SRI. O. MAHESH - ADVOCATE) AND 1. SMT. BABY @ RUKMINI AGED ABOUT 25 YEAR W/O MARUTHI.
2. JEEVAN, AGED 2.1/2 YEARS MINOR, REPRESENTED BY HIS NATURAL MOTHER 1ST RESPONDENT AS HIS NATURAL GUARDIAN.
3. KRISHNAMURTHY, AGED 49 YEARS S/O HANUMANTHAPPA 4. LAKSHMIDEVI, AGED 46 YEARS W/O KRISHNAMURTHY.
5. K. PADMAVATHI, AGED 27 YEARS D/O KRISHNAMURTHY 6. SARASWATHI, AGED 21 YEAR D/O. KRISHNAMURTHY 7. SRINIVASA, AGED 19 YEAR S/O KRISHNAMURTHY ALL ARE R/O. JANATHA COLONY, SOMAGUDDU ROAD, CHALLAKERE CHITRADURGA DISTRICT – 577 501.
8. K. NAGALAKSHMI, MAJOR R/O PAVAN CANDIMATES BDO COMPLEX, ROOM NO.3 CHITRADURGA ROAD, CHALLAGERE CHITRADURGA DISTRICT – 577 501.
... RESPONDENTS (BY SRI. S.C. VIJAYA KUMAR – ADVOCATE FOR R-1 TO R-7 SMT. S.M. SHARAVATHI, ADVOCATE FOR R-8) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.06.2013 PASSED IN MVC NO. 61/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, CHALLAKERE, AWARDING COMPENSATION OF RS. 3,99,000/- WITH INTEREST @ 6 % P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THIS MFA COMING ON FOR FURTHER ARGUMENTS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel for the appellant – Insurer and the learned counsel for the respondents 1 to 7 – claimants and the learned counsel for Respondent No.8 and perused the records.
2. This appeal is preferred by the Insurance Company against the judgment and award dated 29.06.2013 passed by the Tribunal in MVC No.61/2012 questioning the liability as well as the quantum of compensation awarded by the Tribunal.
3. The factual matrix of the appeal is as under: It is stated in the claim petition that on 13.06.2012 at about 11.45 p.m. when the deceased Maruthi was proceeding on the left side of the road towards his house near Hotteppanahally Gate, S.H.19 road, Challakere town as a pedestrian, at that time the driver of a car bearing Regn.No.KA-16/B-4712 came from Challakere side towards Hiriyur at high speed and in a rash and negligent manner and dashed against Maruthi, as a result of which he died on the spot. Prior to the accident he was hale and healthy and was doing painting work and was earning Rs.15,000/- per month and he was the only earning member to support a family of his wife, child, parents and three siblings. His family members being his legal representatives having been put to great hardship and inconvenience due to the untimely death of their bread winner, they filed a claim petition against the respondents seeking compensation.
4. After service of notice, the owner of the offending vehicle as well as the insurer appeared and filed their written statements and contested the claim petition. During the enquiry before the tribunal, the claimants have established the occurrence of the accident, actionable negligence on the part of the driver of the offending vehicle and its insurance coverage with the appellant herein.
5. The tribunal, after evaluation of the oral and documentary evidence has held that the accident had occurred due to rash and negligence of the offending vehicle. Taking the income of the deceased at Rs.3,000/- and deducting 1/3rd of his income towards his personal and living expenses and since the deceased was aged 30 years, applied the multiplier ‘16’ and awarded total compensation of Rs.3,99,000/- with interest at 6% per annum from the date of petition till the date of realization. It is this judgment which is under challenge in this appeal by the Insurer, urging various grounds.
6. The learned counsel for the appellant – Insurer vehemently contended that the Insurer was not liable to pay the compensation, in view of the fact that the offending vehicle namely the car was registered as a transport vehicle. However, the driver of the said offending vehicle had a licence to drive an LMV (NT) and he did not possess licence to drive a transport vehicle, namely the offending car. Hence, the learned counsel contends that the driver did not have a proper and effective driving licence to drive the said car and in turn the owner of the offending vehicle has violated the policy terms and conditions and also the MV Act and hence the insurer was not liable to pay the compensation. Hence, the learned counsel submits that the Insurer is not liable to pay the compensation and hence the order of the Tribunal be set aside and the Insurer be absolved of the liability.
7. Per contra, the learned counsel appearing for Respondent Nos.1 to 7 - claimants submitted that the Tribunal, on an appreciation of the evidence on record and taking into consideration the material on record has rightly fastened the liability on the Insurer and hence the impugned judgment does not call for interference and prays for dismissal of the appeal.
It is his further contention that though the driver of the offending car possessed a licence without transport endorsement, the Apex Court in the case of MUKUND DEWANGAN VS. ORIENTAL INSURANCE CO.LTD., ((2017) 14 SCC 663) has held that the absence of transport endorsement per se cannot be a ground to absolve the insurer from the award liability and the MACT could not let the insurer go free even in the absence of transport endorsement on the driving license of the driver of the offending vehicle.
Further, this issue has been answered by the Apex Court against the insurer in the case of Pappu and Others Vs. Vinod Kumar Lamba and Another (AIR 2018 SC 592) wherein it is held that as under:
“S.149 – Insurer’s liability – Accident occurred due to rash and negligent driving of truck – insurer taking plea that driver of offending truck had no valid licence – except copy of driving licence of person, owner of offending truck not producing any evidence establishing that it was driven by authorised person having valid driving licence – fact that offending truck was duly insured – would not per se make insurance company liable – however, insurance company directed to pay award amount to claimants in first instance and in turn, recover same from owner of vehicle.”
Thus the learned counsel contends that the Insurer be directed to first pay the compensation to the claimants and then be granted liberty to recover the same from the owner of the offending vehicle, in terms of the judgment in Pappu’s case.
8. Having regard to the contentions put forth by the learned counsel for both the parties, I find that the question as to the liability of the insurer in the absence of the driver of the offending vehicle not possessing a “valid and effective driving license” is no longer res integra as the same has been answered by the Apex Court against the insurer and in favour of the claimant in the judgment referred to supra subject to the principle of “Pay and Recover”.
In view of the judgment of Hon’ble Apex Court in Pappu’s case referred to supra, the liability has to be fastened on the insurer subject to the principle of pay and recover. The Apex Court in the said judgment has held that insurance company can be fastened with liability on the basis of valid insurance policy and negatived the contention of insurer that no liability can be levied on it, when the driver of the offending vehicle lacks a valid driving licence. Insurance company was directed to pay award amount to the claimants in first instance and in turn, recover the same from the owner of the vehicle.
For the aforesaid reasons and findings, I proceed to pass the following:
ORDER Appeal is allowed in part. Consequently, the impugned judgment and award passed by the Tribunal in MVC No.61/2012 is hereby modified.
The claimants – Respondents 1 to 7 are entitled for compensation of a sum of Rs.3,99,000/- along with interest @ 6% p.a. from the date of petition till the date of realisation, as held by the Tribunal.
The appellant – Royal Sundaram Alliance Insurance Company Ltd. shall pay the compensation awarded to the claimants – Respondents 1 to 7 in the first instance, with liberty to recover the same from the owner of the offending vehicle, in view of the judgment in Pappu’s case (supra).
Appellant shall deposit the entire compensation with accrued interest, before the Tribunal, within four weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimants, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest, apportionment and deposit is concerned, shall remain unaltered.
Any amount in deposit in this appeal shall be transmitted to the concerned MACT, forthwith.
Office to draw the decree accordingly.
Sd/- JUDGE KS