IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE K. SOMASHEKAR MISCELLANEOUS FIRST APPEAL NO.7132/2015 (MV) BETWEEN THE BRANCH MANAGER SHRIRAM GENERAL INSURANCE CO. LTD., NO.5, 3RD FLOOR, MONARCH CHAMBERS, INFANTRY ROAD, BANGALORE-560 001 NOW REP BY ITS MANAGER M/S SHRIRAM GENERAL INSURANCE CO. LTD., NO.5/4, 3RD FLOOR, S.V. ARCADE, BILAKAHALLI MAIN ROAD, OFF BG ROAD, IIM POST, BANGALORE-560 076 ... APPELLANT (BY SRI H N KESHAVA PRASHANTH, ADVOCATE) AND 1. PRAKASH M S/O MANI NOW AGED ABOUT 36 YEARS R/AT NO.177, SADARAMANGALA BANGALORE-560 067 2. SMT. PARVATHI @ PARVATHAMMA W/O PRAKASH NOW AGED ABOUT 29 YEARS R/AT NO.177, SADARAMANGALA BANGALORE-560 067 3. SURESH R. S/O RAJANNA NO.5, KODIGEHALLI SADARMANGALA BANGALORE-560 067 ... RESPONDENTS (BY SRI GURUDEV PRASAD K.T., ADVOCATE R3-SERVED) THIS MISCELLANEOUS FIRST APEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:12.06.2015 PASSED IN MVC NO.2786/2014 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, COURT OF SMALL CAUSES AND MEMBER, MACT, BANGALORE, AWARDING COMPENSATION OF RS.3,40,000/- WITH INTEREST @ 9% P.A FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T Heard the learned counsel for the appellant and the learned counsel for the respondent Nos.1 and 2 and perused the impugned judgment and award rendered by the III Addl. Senior Civil Judge and Motor Accident Claims Tribunal, Bengaluru (SCCH-18) (for short ‘the Tribunal’) in MVC No.2786/2014 on 12.06.2015. This appeal is by the Insurer.
2. Factual matrix of this appeal is as under:
The 1st and 2nd respondents herein filed a claim petition before the Tribunal contending that they are the parents of the deceased Sanjay who died in K.R. Puram Multi Specialty Hospital while taking treatment on account of accidental injuries suffered by him on 29.05.2014 at about 7.45 a.m., when he was standing infront of one Ravi’s house on Kodigehalli- Sadaramangala Main road along with his cousin Venkatesh for crossing the road, due to rash and negligent driving by the driver of the tanker bearing registration No.KA-53/3176. Thereafter the dead body was shifted to Vydehi Hospital wherein the post mortem was conducted. It was further contended that the deceased was hale and healthy, aged about 9 years and studying in 2nd standard at the time of accident. The Tribunal registered the case in MVC No.2786/2014. On service of notice, the owner of the offending vehicle appeared and filed objection statement and has taken the contention that the accident has occurred due to rash and negligent act of the deceased. It is further contended that the Insurance Company is liable to pay the compensation since at the time of accident the alleged vehicle was insured with the Insurance Company and the policy was in force as on the date of accident. Whereas, the Insurance Company admitted the issuance of policy to the offending vehicle and the liability, if any, subject to the terms and conditions mentioned in the policy. However, it is contended that the owner of the vehicle has not complied the mandatory provision as required under Section 134(c) of M.V. Act and also the driver of the said vehicle was not having valid and effective driving license to drive the vehicle. Further, the Insurance Company denied the entire averments made in the claim petition and prayed for dismissal of the claim petition. Based upon these pleadings by the parties issues were framed by the Tribunal, subsequently given findings by assigning reasons and awarded compensation in a sum of Rs.3,40,000/- with interest at the rate of 9% per annum from the date of petition till the date of deposit and directed the Insurer-appellant to satisfy the award amount. The same is reflected in the operative portion of the judgment of the Tribunal. Being aggrieved by the same, the Insurer is before this Court.
3. In this appeal, the learned counsel for the appellant-Insurer has taken me through the oral evidences of PW1- Prakash and RWs.1 and 2 and also the documents, more particularly he relied on Exs.R8 and R9 “B” Register Extract and Driving License Extract, respectively, which reveal that the class of offending vehicle is medium goods vehicle and the unladen weight of the vehicle is 2800 kg, but the driver was holding license to drive only light motor vehicle and he was not holding proper driving license to drive heavy goods vehicle. The Tribunal ought to have considered this fact. Further, it is contended that the Tribunal ought to have seen that the offending vehicle was used in the public place without having valid Fitness Certificate and the Fitness Certificate was lapsed much earlier to the accident and the same was not renewed.
Therefore, he submits the Tribunal erred in fastening the liability on the Insurer.
4. Per contra, the learned counsel for the respondents-claimants has taken me through the evidence of PW1, who has reiterated the averments made in the petition and in support of his contention he has produced documents Exs.P1 to P10. He contended that in Para No.14 of the judgment the Tribunal has clearly stated that the defence taken by the Insurer that there is no negligence on the part of the driver of the offending vehicle and the deceased himself was negligent, is not helpful to the Insurer, since as per police documents Exs.P1 and P7 true copy of the FIR with complaint and charge sheet, the police have registered a case against the driver of the tanker and after completion of investigation they have filed the charge sheet against him. The Tribunal after appreciation of entire material available on record has rightly allowed and awarded compensation fixing the liability on the Insurance Company, therefore it does not require any intervention and prayed for dismissal of the appeal as devoid of merits.
5. Under these context of the contentions taken by the learned counsel for the parties I have perused the oral and documentary evidence available on record including the impugned judgment and award passed by the Tribunal. In the facts and circumstances of the case it is relevant to note that it is relevant to note that there is no dispute about the death of the deceased on 29.05.2014 in a road traffic accident and the it is also not in dispute that the claimants are the parents of the deceased who they have suffered mental agony due to untimely death of their son.
6. The Apex Court in the case of Pappu and Others Vs. Vinok Kumar Lambar and another reported in AIR 2018 SC 592 has held 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.”
7. The Tribunal on evaluation of entire material and documentary evidence on record, has rightly awarded compensation in a sum of Rs.3,40,000/- with interest at 9% p.a. However, in view of the judgment of Hon’ble Apex Court in the case referred to supra, the appellant- Insurer has to pay the compensation amount subject to the principle of pay and recover.
8. Therefore, for the above said reasons, the judgment and award passed by the Tribunal needs intervention. Accordingly, the appeal is allowed in part. Consequently, the judgment and award passed by the Tribunal in MVC No.2786/2014 is modified. The insurer shall follow the pay and recovery principle as held the afore cited judgment of the Apex Court.
The amount in deposit shall be transmitted to the concerned Tribunal forthwith along with the LCR.
The compensation in deposit before the Tribunal shall be disbursed to the parents/LRs. of the deceased in term of the award passed by the Tribunal, on proper identification.
Sbs* SD/- JUDGE