IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K. SOMASHEKAR MFA NO. 8050/2013 (MV) BETWEEN BRANCH MANAGER SHRIRAM GENERAL INS. CO. LTD S-5, 2ND FLOOR,MONARCH COMPLEX INFANTRY ROAD, BANGALORE 01 NOW REP BY THE BRANCH MANAGER SHRIRAM GENERAL INS. CO. LTD 3RD FLOOR, S AND S CORNER BUILDING OPP.BOWRING & LADY CURZON HOSPITAL BANGALORE 560 001 ... APPELLANT (BY SRI. PRADEEP B. ADVOCATE) AND 1. SONNEGOWDA S/O NARAYANAPPA NOW AGED ABOUT 40 YEARS R/A NARAYANAPURA VIJAYAHALLI TALUK DEVANAHALLI TALUK BANGALORE DISTRICT – 562 110 2. NARAYANA SWAMY S/O ABBAIAHAPPA MAJOR, R/AT NO.53 DODDAETA, RAMSINGH LAYOUT HOSKOTE TOWN-562 114 BENGALURU RURAL ... RESPONDENTS (BY SRI. K. T. GURUDEVA PRASAD, ADV. FOR R-1; V.O.D. 12.2.18 NOTICE TO R2 HELD SUFFICIENT) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.4.2013 PASSED IN MVC NO.578/2011 ON THE FILE OF THE JUDGE, COURT OF SMALL CAUSES, 26TH ACMM, BENGALURU, AWARDING A COMPENSATION OF RS.2,61,085/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL ITS REALIZATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with the consent of the learned counsel for the parties, the same is taken up for final disposal.
2. This appeal is directed against the judgment and award dated 29.04.2013 rendered by the Member, MACT at Bengaluru [Judge, Court of Small Causes & 26th ACMM, Bengaluru] (for short, the ‘Tribunal’) in MVC No.578/2011, awarding compensation of Rs.2,61,085/- with interest at 6% pa. and directing the 1st respondent-Insurance Company to pay the compensation to the injured-claimant:Sri. Sonnegowda.
3. The operative portion of the impugned judgment reveals that, the claim petition against Respondent No.1 is dismissed and Respondent No.1 is exonerated from liability of paying compensation to the petitioner, and the Tribunal directed the 1st respondent- Insurance Company to deposit the compensation amount awarded with interest, within two months from the date of award and then to recover the said amount from Respondent No.2, who being the insured-owner of the offending vehicle involved in the accident, by initiating proceeding against the respondent No.2 before the Tribunal.
4. It is evident from the claim petition that, on 27.07.2010 at about 8.30 p.m., when the claimant was standing at Channarayapatna Bus Stop (Devanahalli Taluk) and waiting for bus in order to go to Vijayapura, at that time, the driver of autorickshaw bearing Registration No. KA.03.8998 drove the same in a greater speed and in a rash and negligent manner and hit against the claimant, as a result, the claimant sustained injuries as indicated in the wound certificate. Immediately, the injured was shifted to a nearby private hospital at Vijayapura and in order to provide better treatment, subsequently he was shifted to Hosmat hospital at Bengaluru, wherein he took treatment as an inpatient and underwent surgery for fracture injuries and it is his claim that, towards his medical treatment, he incurred expenditure of Rs.75,000/-.
5. Further case of the appellant/claimant is that, he is an agriculturist and in addition to the agricultural work, he was also doing vegetable vending business and was earning a sum of Rs.7,500/- p.m. He is the only bread-earner of the family, but due to the accident, the claimant is unable to perform his work as earlier. Therefore, the driver of the offending autorickshaw is responsible for the cause of accident in question.
6. In pursuance of service of notice on the respondents in the claim petition, the 1st respondent has put his appearance through the counsel and filed a written statement in detail to resist the claim petition and also the averments made in the claim petition relating to the negligence on the part of the driver of the autorickshaw involved in the accident. The 2nd respondent, who is said to be owner of the autorickshaw, did not participate in the proceedings.
7. The 1st respondent being the Insurance Company, in its written statement, admitted issuance of Insurance Policy in favour of the 2nd respondent and also admitted the validity of the Insurance Policy as on the date of the accident in question. Except admitting the said fact, the 1st respondent denied rest of the averments made in the claim petition.
8. Based upon the pleadings of the parties, the Tribunal has framed issues and given findings by analyzing the evidence of PW.1-Sonnegowda, who is said to be the injured, who has filed petition before the Tribunal seeking compensation. The evidence of the claimant has been substantiated by the evidence of PW.2-Doctor, who said to have treated the claimant (Injured). In order to substantiate the claim, the claimant has placed material documents which are marked as Exs.P1 to P.14, mainly it is relevant to refer the vital documents viz., wound certificate (Ex.P14), Pahani Copies (Ex.P10), X-rays (Ex.P14).
9. On behalf of the respondents, one Sri.
Shivananda R.S. was examined as RW.1 and Sri. Chandrashekar was examined as RW.2 and on their behalf Exs. R1 ( copy of policy), Ex.R2 (permit extract) and Ex.R3-(B-Register Extract) were got marked. However, based upon the oral evidence and as well as documentary evidence placed by the claimant, the Tribunal has awarded compensation in a sum of Rs.2,61,055/- with interest at 6% pa. However, Respondent No.1-Insurance Company was exonerated from paying compensation to the claimant and even as against Respondent No.1, the petition came to be dismissed. But, the Respondent No.1-Insurance Company was directed to deposit the compensation amount awarded and ordered to recover the same from Respondent No.2, who is said to be the owner of the offending autorickshaw, by taking appropriate steps. Being aggrieved by the said judgment, Respondent No.1-Insurance Company has filed this petition.
10. The learned counsel for the appellant- Insurance Company has taken me through the evidence of RW.1 and RW.2 and so also the documents produced on the part of the respondents and contended that, the Tribunal has not considered the evidence of the respondents and erroneously given findings holding that, the driver of the offending autorickshaw is responsible for cause of the accident in question and awarded compensation. He further contended that, the compensation awarded by the Tribunal is on the higher side. He also contended that, the claim petition filed by the claimant is required to be dismissed as the appellant-Insurance Company is exonerated from paying compensation to the claimant and the same reveals in the impugned judgment rendered by the Tribunal. He further contended that the Tribunal has committed error in directing the appellant-Insurance Company to pay compensation and recover the same from the owner of the offending autorickshaw, who arrayed as a party in the claim petition. With these contentions, the learned counsel sought for allowing the appeal or to direct the owner of the offending autorickshaw to pay the awarded compensation to the claimant.
11. Sri. K.T. Gurudeva Prasad, learned counsel appearing for Respondent No.1-claimant in this appeal, countering the arguments advanced by the learned counsel for the appellant submits that, the Tribunal has considered the evidence of PW.1 –injured and so also the evidence of PW.2-Doctor, who treated the claimant and from their evidence, it is evident that there is no dispute about the claimant sustaining accidental injuries as indicated in the wound certificate. Though the Insurance Policy is admitted, it is the case of the appellant-Insurance Company that, the offending autorickshaw was driven out of permissible area, as such the condition imposed vide alleged insurance policy was violated. Therefore, learned counsel submits that, the impugned judgment and award does not call for interference of this court. If it is so, in this appeal, the point required to be clarified in this appeal, is only to the extent of pay and recovery concept. To this effect, the learned counsel for the Respondent No.1 (Claimant) has relied upon a decision of the Hon'ble Apex Court reported in (2018) 8 SCC 492 [Rani & Ors. Vs. National Insurance Company Ltd.] .
12. Keeping in view the arguments advanced by the learned counsel appearing for the parties, at this stage, it is relevant to refer here a decision rendered by the Hon'ble Apex Court relating to Section 149 of the Motor Vehicles Act, 1988, wherein it is clearly observed that,-
“MV Act, 1988-S. 149 - Duty of the insurer to satisfy the judgment and award against person insured in respect of third party risk – Invocation of – Exoneration of insurer due to successful raising of defence under Section 149 - Effect of – Defence raised by insurer that offending vehicle did not possess a valid permit to operate in the State concerned- Accepting that defence, High Court absolving the insurer and fastening the liability on the insured ie., the owner of offending vehicle directing him to satisfy the award- Held, even in such a case, the compensation determined must be first paid by the insurer, who could thereafter recover the same from the owner of offending vehicle – Order of High Court modified accordingly.”
13. The above subject matter has been dealt in detail in Paras 15 to 17 of the judgment of the Hon'ble Apex Court cited supra. Therefore, the main grievance of the appellant-Insurance Company that, the tribunal has committed error in saddling the liability on Respondent No.1 to pay compensation to the claimant and to recover the same by owner of the offending autorickshaw, who is arrayed as Respondent No.2 in this appeal, in accordance with law, is answered accordingly. Therefore, in the facts and circumstances of this case and also keeping in view the decision rendered by the Hon'ble Apex Court in Rani’s case (cited supra), this Court is of the opinion that, the tribunal is right in allowing the claim petition awarding compensation to the injured-claimant and dismissing the claim petition against Respondent No.1-Insurance Company and also directing the Respondent No.1 to pay compensation to the claimant and recover the same from Respondent No.2-Owner of the offending autorickshaw. Therefore, the impugned judgment and award passed by the Tribunal does not call for interference by this court. Hence, this appeal deserves to be dismissed by affirming the judgment and award dated 29.04.2013 passed by the Tribunal in MVC No. 578/2011. Accordingly, the appeal is dismissed.
Office is directed to draw the decree accordingly.
If any amount is deposited by the appellant- Insurance Company before this Court, the Registry is directed to transmit the same to the concerned Tribunal, forthwith.
KGR* Sd/- JUDGE