IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JULY 2019 BEFORE THE HON’BLE Mr.JUSTICE BELLUNKE A.S.
Miscellaneous First Appeal No.11694 of 2011 (MV) BETWEEN:
THE BRANCH MANAGER UNITED INDIA INSURANCE COMPANY LIMITED DOOR NO.25, M.G. ROAD, BENGALURU BRANCH REPRESENTED BY ITS D.M.D.O. AT UDUPI, KRISHNA COMPLEX G.B. PANTH ROAD, OPPOSITE SHANKAR VITTAL GARAGE UDUPI TALUK. ….APPELLANT (BY SRI O.MAHESH, ADVOCATE) AND:
1. ARUN POOJARY, AGE 36 YEARS, S/O SHEENA POOJARY RESIDENT OF HANDIGULI HOUSE KUNJAL POST, BRAHMAVAR, UDUPI TALUK – 576 101.
2. ANIL KUMAR HOTKAR AGED ABOUT 27 YEARS S/O LAKSHMAN RAO RESIDENT OF U.K.P COLONY H.NO. F-129, NARAYANAPURA SURAPURA TALUK GULBARGA DISTRICT – 585 101 ...RESPONDENTS (BY SRI. K. SHASHIKANTH PRASAD, ADVOCATE FOR R-1 BY SRI. S.S. HALALLI, ADVOCATE FOR R-2) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:29.08.2011 PASSED IN MVC NO.1003/2008 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND MACT,UDUPI, AWARDING A COMPENSATION OF RS.7,33,000/- WITH INTEREST @ 8% P.A FROM THE DATE OF PETITON TILL PAYMENT.
This appeal coming on for Hearing this day, the Court delivered the following:
JUDGMENT This appeal is preferred by the Insurer/Respondent No.2 against the judgment and award dated 29.08.2011 passed by the Court of the Additional Senior Civil Judge and Motor Accident Claims Tribunal, Udupi in M.V.C.No.1003 of 2008.
2. The parties are referred to by their ranks as they were referred before the Court below.
3. Heard the learned counsel for the appellant and the respondents.
4. The main grounds in which the judgment and award is sought to be challenged is that the driver of the lorry had no driving license. Even though Insurance Company has took out notice to the driver through the Court to produce the driving license, the same has not been produced. Therefore, adverse inference has to be drawn for non-production of the driving license by the driver. In support of the arguments, reliance is placed on judgment of this Court dated 02.08.2010 in M.F.A.No.9398 of 2008. In so far as the quantum of compensation, there is a dispute about it.
5. On the contrary, learned counsel for the respondents/claimants submitted that the driver in question was only summoned by the Court to lead evidence. He could not have given evidence against his own case. The owner of the lorry though appeared has not contested the petition. It is for the Insurer to prove that the policy conditions are violated by the owner. Therefore, mere non- production of driving license by the concerned driver will not absolve the Insurance Company from its liability.
6. Learned counsel for the appellant drew my attention to Section 134 of the M.V. Act and contended that the driver was required to give information about the accident and as well as he could have produced the driving license particulars, registration certificate particulars and also about the insurance. Having failed to do so, there is violation of regulations and hence, sought to set aside the judgment and award passed by the Tribunal.
7. Having heard the learned counsel on both sides, the following points arise for consideration in this appeal:
i) Whether the finding of the Tribunal fastening the liability on the Insurance Company is against the facts and circumstances and against to the evidence on record and therefore, it is erroneous in law?
ii) Whether the judgment and award dated 29.08.2011 call for any interference at the hands of this Court?
iii) What order?
8. On perusal of the Authorities stated by the learned counsel in M.F.A.No.9398 of 2008 disposed of on 02.08.2010 by the Co-ordinate Bench of this Court, wherein a notice was issued to Respondent No.1 to produce the driving license of the driver of the car in accident, i.e., notice was issued to the owner. Despite service of notice, the driver has not produced the driving license. He has not come forward to cover up the insurance by producing the driving license. Therefore, it is held that the petitioner Insurance Company has proved that the driver of the vehicle had no driving license and therefore, the Insurance Company is liable to be absolved from its liability. In this case, the owner of the vehicle appeared before the Tribunal. But he has not filed any written statement nor has contended that he is not liable to satisfy the award as he has taken out insurance coverage for his vehicle, therefore, the liability is to be fastened on the Insurance Company. No doubt, the burden of proof is on the Insurance Company to prove that the policy conditions has been violated but the same has been proved by the evidence. As per Ex.P1, the first information report, it is alleged that after committing the accident, the driver of the lorry ran away along with the vehicle from the scene of the offence. He has not made any attempt to provide medical assistance to the injured nor he has reported the fact of accident to the police. After having been issued summons by the Tribunal, the driver of the lorry has also not come forward with the driving license nor the owner has made any attempt to get himself absolved from the liability to pay by proving that he has not violated the policy conditions. The facts borne out from the records, I find that the fastening the liability on the Insurance Company by the Tribunal would not be sustainable in law, facts and evidence available on record. Though the fact of accident and rash and negligence of the driver of the lorry is proved by the petitioner by leading evidence of PWs-1 to 4, but the petitioner has failed to prove the liability on the part of the Insurance Company to satisfy the award. The quantum of compensation assessed by the Tribunal is based on the evidence on record. There is no serious dispute as such. Issue No.3 is a negative one. Once it is contended that the driver had no driving license and the Insurer has made reasonable opportunity to produce the driving license, the owner who has to appear before the Court has remained silent spectator without making any attempt to say that he has not violated any policy conditions. He has not made any attempt to produce the driving license copy. Therefore, the finding of the Tribunal on Issue No.3 is erroneous to the facts and circumstances of the case and evidence on record. Therefore, fastening the liability on the Insurance Company is liable to be set aside. Hence, Point No.1 is answered in the affirmative and consequently Point No.2 is also answered in affirmative. Accordingly, I pass the following:
ORDER i) The appeal is partly allowed.
ii) The judgment and award dated 29.08.2011 passed by the Additional Senior Civil Judge and M.A.C.T., Udupi fastening the liability on the Insurance Company – Respondent No.2 is set aside. The appeal as against Respondent No.2 is dismissed.
iii) Consequently, Respondent No.1 the owner is liable to satisfy the award passed by the Tribunal.
The amount in deposit, if any, be refunded to the Appellant Insurance Company.
Registry is directed to send back the lower court records forthwith.
(Sd/-) JUDGE DH