IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT M.F.A. NO.3928 OF 2010 (MV) BETWEEN THE BRANCH MANAGER, ORIENTAL INSURANCE CO LTD, VINAYAKA COMPLEX GARDEN AREA, FIRST CROSS, SHIMOGA CITY, THROUGH ITS BANGALORE REGIONAL OFFICE, NO.44/45, LEO SHOPPING CENTRE, RESIDENCY ROAD, BANGALORE. REPRESENTED BY ITS REGIONAL MANAGER. ... APPELLANT (BY SRI.S.V. HEGDE MULKHAND, ADVOCATE) AND 1. U L GANESH, S/O LAVA KUMAR, AGED ABOUT 23 YEARS, R/O LAL BAHADUR SASTRY NAGAR, IIND CROSS, SAVALANGA ROAD, SHIMOGA CITY.
2. T.R. SRIDHARA, S/O T. RAMAIAH, R/O NO.86/4, NEAR BHEEMESHWARA TEMPLE KOTE ROAD, SHIMOGA.
3. LOKESHA, S/O KARIYAPPA DRIVER, AGED ABOUT 32 YEARS, R/O RAGIGUDDA, NOW AT 4TH CROSS, SHANTINAGARA SHIMOGA. ... RESPONDENTS (BY SRI.G.C. SHANMUKHA, ADVOCATE FOR R1; SRI.B. RUDRA GOWDA, ADVOCATE FOR R1; SRI.M.V. RAMESH JOIS, ADVOCATE FOR R2 & R3) THIS MFA IS FILED U/S 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:28.01.2010 PASSED IN MVC NO.1717/2006 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-II, SHIMOGA, AWARDING A COMPENSATION OF RS.30,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL COMPLETE REALISATION THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T The short question that is traded before the court by the appellant-insurer relates to liability of the Insurer for the award amount when the offending driver lacked a valid and effective driving licence. The jurisdictional MACT having examined the matter, has held the appellant-insurer liable.
2. The learned Panel Counsel for the appellant-insurer vehemently contends that the liability of the insurer is based upon a Contract of Insurance and the existence of a valid and effective driving licence is a pre-condition for invoking the benefits under the policy and therefore, there being a specific finding by the MACT as to the driver lacking the licence, the Insurer could not have been made liable.
3. However, the contention of the counsel for the claimant is that in view of the judgment of the Apex Court in the case of Pappu and Others Vs. Vinod Kumar Lamba and Another, AIR 2018 SC 592, the liability of the Insurer is on the principle of ‘Pay and Recover’ and therefore, it should be open to the insurer to recover the amount after the award is discharged.
4. This question need not detain the court any longer in view of the question having been answered in favour of the claimant as rightly contended by his counsel, in the case supra.
5. It is open to the appellant-insurer to recover the compensation amount from the owner of the offending vehicle by approaching the MACT in terms of the judgment of the Apex Court in National Insurance Co. Ltd Vs. Challa Upendra Rao and Others, (2004) 8 SCC 517, there being no need of any independent adjudicatory proceedings, such as suit.
6. In the above circumstances, this appeal succeeds in part; the impugned judgment and award are modified, continuing the liability of the appellant-insurer, subject to the principle of ‘Pay and Recover’.
The amount in deposit shall be transmitted to the MACT for being disbursed as compensation to the claimant, forthwith.
All other terms and conditions of the award are kept intact.
No costs.
SD/- JUDGE cbc