IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 01ST DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE BELLUNKE A.S. M.F.A.NO.971 OF 2013 (MV) BETWEEN:
THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, RAMASWAMY CIRCLE, CHAMARAJAPURAM, MYSORE-570 024.
BY NATIONAL INSURANCE CO. LTD., REGIONAL OFFICE, NO.144, SUBHARAM COMPLEX, M.G.ROAD, BANGALORE-560 001.
BY ITS MANAGER. ... APPELLANT (BY SRI.O.MAHESH, ADV.,) AND:
1. SMT.CHINNAMMA, AGE 36 YEARS, W/O.DODDAHUCHAYYA, RESIDING AT NO.236, S.C.BEEDI, DEVEERAMMANAHALLI VILLAGE, NANJANGUD TALUK, MYSORE DISTRICT-570001.
2. RAJANEESH SHETTY, AGE 28 YEARS, S/O. HONNAYYA SHETTY, RESIDING AT NO.38, RAMASWAMY LAYOUT, 1 BLOCK, DEVEERAMMANAHALLI, KASABA HOBLI, NANJANAGUD TALUK, MYSORE DISTRICT-570001.
3. THE DIVISIONAL MANAGER, ORIENTAL INSURANCE COMPANY LIMITED, GIRISH COMPLEX, 1ST FLOOR, AGRAHARA STREET, CHAMARAJANAGAR, BY THE ORIENTAL INSURANCE COMPANY LIMITED, 1ST MAIN, SARASWATHIPURAM, (NEAR MUSLIM HOSTEL), MYSORE-570001. ... RESPONDENTS (R-1 & R-3 ARE SERVED AND UNREPRESENTED; NOTICE TO R2 IS H/S V/O DATED 09.02.2016) * * * * THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:7.6.2012 PASSED IN MVC NO.2318/2010 ON THE FILE OF THE PRESIDING OFFICER, C/C FAST TRACK COURT-V, AND MEMBER ADDITIONAL MACT, MYSORE, AWARDING A COMPENSATION OF RS.50,000/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.
THIS MFA COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is directed against the judgment and award dated 07.06.2012 passed in MVC.No.2318/2010 by the Fast Track Court-V and Additional MACT, Mysore.
2. The appellant who is respondent No. 2 in the claim petition has preferred this appeal to set aside the finding of the Tribunal regarding negligence.
3. Parties are referred to by their ranks as they were referred to before the Tribunal.
4. Brief facts leading to this appeal are as hereunder: On 16.10.2010 at about 8.00 p.m. the petitioner was proceeding in an autorickshaw bearing registration No.KL- 11-D-7508 along with her family members. When the said autorickshaw reached in front of Rural Police station on B.N.Road, at that time a motor bike bearing registration No. KA-09-EQ-4405 came from opposite direction in a rash and negligent manner and dashed to the autorickshaw in which the petitioner was proceeding. On account of this accident, the petitioner sustained injuries. She was taken to Government Hospital, Nanjangud, where she took treatment as inpatient. She had to spend considerable money for medical treatment, which included conveyance, attendant charges, nourishing food, etc. The petitioner was a coolie by profession earning Rs.3,500/- per month. On account of the accident, she has lost earning capacity. The accident had occurred solely due to the rash and negligent riding of the motor bike and the owner and insurer of the motor bike are liable to pay compensation to the petitioner. Accordingly she prayed for awarding a sum of Rs.3,02,600/- as compensation with interest at 12% p.a.
5. After receipt of notice, the respondent No.2 – Insurance Company - the insurer of motor bike, appeared and contested the petition.
6. After denying all the allegations made against the respondent No.1 – rider of the motor bike, the Insurance Co. has contended that the liability, if any, is subject to the terms and conditions of the policy. The accident occurred between two vehicles. The owner and insurer of autorickshaw bearing registration No. KL-11-D-7508 are also necessary parties. Both the driver and rider of both the vehicles did not possess valid and effective driving licence as on the date and at the time of the accident. Further, the accident occurred only due to rash and negligent driving of the driver of the autorickshaw and he did not possess driving licence, permit and fitness certificate as on the date of the accident. Therefore, the insurer prayed to dismiss the petition with costs.
7. On the basis of the above pleadings, the following issues were framed by the Tribunal :
1. Whether the petitioner proves that he had sustained injuries in a road traffic accident on 16.10.2010 at about 8.00 a.m. on B.M.Road, in front of Rural Police Station, Nanjangud town, due to the rash and negligent riding of the Bajaj Pulsar Motor cycle bearing registration No. KA-09-EQ-4405 by its rider ?
2. Whether the petitioner proves that he is entitled for compensation ? If so, to what amount and from whom ?
3. To what award or order ?
8. After holding trial, the Tribunal answered the first and second issues in the affirmative and awarded compensation of Rs.50,000/-, to be recovered from respondents 1 and 2. The said judgment and award has been questioned by the Insurer of the motor cycle on the following grounds :
It is contended that the Tribunal ought to have dismissed the petition as the necessary parties i.e. autorickshaw driver and insurer of the autorickshaw in question were not arrayed as party respondents. Without their presence, the petition could not have been adjudicated. There were no eye witnesses to the accident in question. The Tribunal has not properly appreciated the mahazar - Ex.P.3, which was attested by witnesses who were not eye witnesses. The autorickshaw in question was not subjected to motor vehicle inspection. The driver of the autorickshaw was charge sheeted not only for the offences under Sections 279, 338 IPC, but also under Sections 134(a) and (b) and 134(1), 181, 3, 192 and 156 of the Motor Vehicles Act, 1988. Therefore, the vehicle was plied without the driver possessing driving licence. The Tribunal therefore ought to have inferred that the driver of the autorickshaw was responsible for the alleged accident, since the driver had no driving licence and the autorickshaw had no insurance coverage. Therefore, the liability was fastened on the appellant – Insurance Co. and the owner of the vehicle. On these grounds the appellant has sought to set aside the judgment and award passed by the Tribunal.
9. The learned counsel for the appellant submitted that the rider of the motor cycle was under the influence of alcohol at the time of the accident and he was charge sheeted for offences punishable under Sections 181 and 156 of the Motor Vehicles Act. Therefore, there is violation of policy condition and the insurer is not liable to compensate the owner as the rider was under the influence of alcohol at the time of accident. The learned counsel for the respondent No.1 submitted that, earlier the appeal was allowed, but review application was filed and matter was reviewed by setting aside the earlier order.
Supporting the judgment of the Tribunal, the counsel for respondent No.1 prayed to dismiss the appeal.
10. Learned counsel for the appellant, Sri. Mahesh urged that it is a case of contributory negligence. Therefore, both the driver of the autorickshaw and the rider of the motor bike were charge sheeted and hence liability should have been fastened on both the vehicle owners. Hence, the learned counsel for the appellant prays to allow the appeal.
11. On perusal of the above said facts, the following points arise for consideration in this appeal :
1. Whether the petition filed by the petitioner is bad in law for non-joinder of parties i.e. petition filed without impleading the owner and driver of the autorickshaw as party respondents ?
2. Whether the appellant proves that the rider of the motor cycle was under the influence of alcohol at the time of accident and therefore, there is violation of policy condition and hence, he is not liable to compensate the claimant ?
3. Whether the appellant proves that it is a case of contributory negligence as two vehicles were involved and both the driver and rider were charge sheeted ?
12. So far as the petitioner is concerned, the driver and owner of the autorickshaw and the rider and owner of the motor cycle are both liable to compensate her. She can claim compensation from anyone of them. In the absence of impleading the owner and driver of the autorickshaw, the question of contributory negligence cannot be decided. Further the Insurance Co. has not taken pains to implead them. Once you implead the driver, it goes without say that part of the negligence stands admitted. Moreover, the burden of proof that the petitioner sustained injuries on account of the rash and negligent riding of the motor cycle by its rider which hit the autorickshaw, is a fact to be proved by the petitioner. Therefore, on the above said ground, the petition cannot be non-suited.
13. In addition to that, I have gone through the reasonings assigned by the trial Court, and also the sketch of the scene of accident wherein the accident spot is shown to be situated towards the left side of the road leaving 8 feet space. The entire width of the road is 24 feet and on the right side there was another 20 feet left. It is found from the sketch that the rider of the motor cycle came to the extreme right side, to an extent of 16 feet and had hit the autorickshaw. Therefore, the Tribunal held that the rider of the motor cycle was rash and negligent and he was responsible for the accident in question. That apart, mere filing of charge sheet on both the rider of the motor cycle and the driver of the autorickshaw is not an evidence to prove the rash and negligent act on both the rider of the motor bike and driver of the autorickshaw.
14. One more ground urged was that, the autorickshaw in question was not subjected to IMV inspection. The purpose of carrying out IMV inspection is to see whether there was any mechanical defect and that is not the case in the accident. Therefore, that will not come in the way of deciding the rash and negligent act on the part of the driver of the autorickshaw. Another ground urged is that, since the driver of the autorikshaw had no driving licence, permit and fitness certificate. Therefore the Tribunal has fastened liability on the rider of the motor cycle who had driving licence and also the fitness certificate.
15. It is also important to note that the appellant’s counsel has strenuously argued that the rider of the motor cycle was drunk and he was under the influence of alcohol and therefore the policy conditions are violated. In fact, this is evidenced by the filing of charge sheet against the rider of the motor cycle under the provisions of Section 186 of the Motor Vehicles Act. Therefore, the Tribunal knew very well that the rider of the motor cycle was charge sheeted for drunken driving. Merely because the driver of the autorickshaw had no driving licence or fitness certificate, insurance coverage, etc. cannot be taken to hold that the Tribunal leaned in favour of holding the respondent No.1 as negligent, since he had driving licence and insurance coverage. The fact of negligence has to be decided solely based on the evidence available on record. Even the judgment of the Criminal Court will not be binding on the Civil Court. The Tribunal has to independently assess the rash and negligent act on the part of the offending vehicle that has been involved, on the evidence available on record, particularly Ex.P.3 – spot sketch and the oral and documentary evidence.
16. In the cross examination of P.W.1, nothing is elicited except making suggestion. P.W.3 is reported to be an eye witness to the incident. He has clearly stated that the accident occurred due to rash and negligent driving of the rider of the motor cycle. Therefore, the judgment of the Tribunal that the accident occurred on account of the rash and negligent riding of the rider of the motor cycle has to be affirmed. Therefore, even if it is held that there was negligence on the part of the driver of the autorickshaw, it would be a case of contributory negligence. So far as petitioner is concerned, it would be a case of composite negligence. The driver of the autorickshaw as well as the rider of the motor cycle would be jointly held to be responsible for the accident. Therefore, the petitioner could have recovered compensation from anyone of them. Hence, the finding on the fact that whether there was contributory negligence or not, would not make any difference so far as the case in hand is concerned. Therefore, points No. 1 and 2 are answered in the negative.
17. Regarding point No.2 : On perusal of the policy produced by the Insurance Co. at Ex.R.1, the following are the limitations as to the use of the vehicle in question :
“Limitation as to use :
The Policy covers use of the vehicle for any purpose other than a) Hire or Reward b) Carriage of Goods (other than samples or personal luggage) c) Organized racing d) Pace making e) Speed testing and Reliability Trials f) Use in connection with Motor Trade Persons or Class of Persons entitled to drive:
Any person including Insured provided that a person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence. Provided also that the person holding an effective Learner’s Licence may also drive the vehicle and such a person satisfies the requirements of Rule 3 of Central Motor Vehicle Rule, 1989.”
18. On perusal of the contentions and the defence open to the Insurance Co. under Section 149 of the Motor Vehicles Act, 1988, I find that the insurer cannot avoid his liability on the ground that the rider was under the influence of alcohol at the time of accident or that he was prosecuted or convicted for drunken driving. Moreover, the charge sheet discloses that the rider of the motor cycle was prosecuted for the offence punishable under Section 186 of the Motor Vehicles Act, which prohibits a person from driving a vehicle if he is mentally or physically unfit to drive. To constitute an offence under Section 185 of the Motor Vehicles Act, it must be proved that the person has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyzer. In the absence of this evidence on record, liability of Insurance Co. cannot be exonerated on the ground that the rider of the motor cycle was under the influence of alcohol. Moreover, the admission of a driver or a rider for the offence punishable under Section 185 or 186 of the Motor Vehicles Act, would not, by itself exonerate the liability of the Insurance Co. to satisfy the award which they are bound to satisfy under Section 149 of the Motor Vehicles Act. Unless there is a specific clause under the agreement between the insured and the insurer, expressly including the grounds on which the liability can be exonerated, the insurer cannot contend that his liability is absolved.
19. Having regard to the facts and circumstances of the case, I find that the liability of the appellant – Insurance Co. cannot be exonerated or absolved.
20. So far as quantum of compensation is concerned, the same is not agitated in this appeal. Having regard to the nature of injuries suffered by the claimant and the evidence of the doctor, and the material available on record, I find that the Tribunal was justified in awarding compensation of Rs.50,000/- for the injuries suffered by the petitioner on all the heads.
21. Hence, I find that the appellant is not entitled for any reliefs claimed in this appeal. The points raised are answered in the negative.
22. The appeal filed by the Insurance Co. is dismissed as devoid of merits. The judgment and award dated 07.06.2012 passed in MVC.No.2318/2010 by the Presiding Officer, C/c Fast Track Court-V and Additional MACT, Mysore, is hereby confirmed.
Registry is directed to transmit the amount, if any, deposited before this Court to the Tribunal forthwith for disbursement, and also to transmit the records to the Tribunal, with a copy of this judgment.
(Sd/-) JUDGE MGN/-