IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 2009 OF 2015 (MV) BETWEEN THE HEAD MISTRESS CARMEL SCHOOL PADMANABHANAGAR BANASHANKARI II STAGE BANGALORE – 560 070. ... APPELLANT (BY SRI. S. RAJU FOR SRI. K.P. BHUVAN- ADVOCATE) AND 1. MS. KALASHREE B.G. D/O GANGARAM B.T. AGED ABOUT 23 YEARS R/AT NO.23, 1ST ‘B’ CROSS MUKAMBIKANAGAR HOSAKERIHALLI BSK III STAGE BANGALORE- 560 085.
2. M/S ICICI LOMBARD GENERAL INSURANCE CO. LIMITED ICICI LOMBARD HOUSE NO.414, VEER SAVARKAR MARG NEAR SIDDHI VINAYAKA TEMPLE PRABHADEVI MUMBAI- 400 025. ... RESPONDENTS (BY SRI. B.M. CHANDRA SHEKARA –ADV., FOR R-1 SRI B. PRADEEP – ADV., FOR R-2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 06.11.2014 PASSED IN MVC NO. 7839/2012 ON THE FILE OF THE 20TH ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, BANGALORE AWARDING A COMPENSATION OF RS. 1,94,400/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION OF THE AMOUNT.
THIS MFA COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is preferred by the appellant – owner of the offending vehicle challenging the judgment and award dated 06.11.2014 passed by the Tribunal in MVC No.7839/2012 awarding compensation to the claimant in a sum of Rs.1,94,400/- with interest at 6% from the date of petition till realization. This appeal has been filed aggrieved by the finding of the Tribunal fastening the liability on the appellant – owner of the offending vehicle praying to set aside the said finding and subsequently to fasten the liability on the Insurance Company to pay the compensation.
2. Heard the learned counsel for the appellant – owner of the offending vehicle, learned counsel for the first respondent – claimant and the learned counsel for the second respondent – Insurance Company.
3. The factual matrix of the appeal is that on 24.09.2012 when the first respondent was proceeding along with her friend on a motor cycle bearing Regn.No.KA-17-K-8928 as a pillion rider near Hosakerehalli, Kodikere Tank Bridge, Bangalore, at that time the driver of a School Van bearing No.KA-07-A- 1543 drove the same in a rash and negligent manner and dashed against the motor cycle. Due to the impact, the first respondent who was a pillion rider fell down and sustained grievous injuries. Immediately, she was shifted to S.G. Hospital and then to Apollo Hospital, Bannerghatta Road, Bangalore and was an in-patient for more than two weeks and spent Rs.80,000/- towards medical expenses apart from the suffering due to pain. Hence, she filed a claim petition before the Tribunal seeking compensation.
4. On receipt of notice, the appellant – owner of the offending vehicle as well as Respondent No.2 – Insurance Company appeared and filed their objections denying the petition averments. The appellant contended that the claimant – first respondent being a Central Government employee, the expenses incurred by her towards treatment had been reimbursed by her employer – Central Government itself. The counsel for the Insurance Company – Respondent No.2 admitted the insurance policy issued to the offending vehicle, but stated that the liability was subject to terms and conditions of the policy. He further contended that the driver of the offending vehicle namely the school van did not possess a valid and effective Driving licence. Moreover the offending van being a commercial vehicle, the same was plied on the road without possessing valid permit and fitness certificate. Therefore, the appellant as well as the second respondent had requested to dismiss the petition filed by the petitioner.
5. The Tribunal, after evaluating the oral and documentary evidence held that at the time of the accident, there was no permit to the vehicle. The RTO Jayanagar had also deposed before court that the vehicle was registered on 12.06.2012 but however the validity of the permit commenced from 10.00 a.m. on 24.09.2012. Whereas the accident took place at 7.50 a.m. on 24.09.2012. Hence at the time of the accident, the offending van did not have a permit to ply the vehicle. There being violation of policy condition, the Tribunal held that the Insurer was not liable to indemnify the insured. In view of the same, the tribunal had fastened the liability on the appellant – owner of the offending vehicle to pay the compensation of Rs.1,94,400/-. Aggrieved by the said order, the appellant has filed this appeal seeking to fasten the liability on the Insurance Company to pay the compensation.
6. Learned counsel for the appellant – owner of the offending vehicle contends that due to the rash and negligent riding of the motorcycle, that the motorcyclist had collided with the school van and caused the accident and hence the owner is not liable to pay the compensation. It is his further contention that the appellant had a valid driving licence and permit to run the school vand including the insurance policy as on the date of the accident and hence the Tribunal has erred in fastening the liability on the appellant instead of the insurer. Further, the Tribunal without application of mind had granted Rs.80,000/- towards ‘Loss of income during laid up period’. The claimant – first respondent was employed in the Railways as a ‘Track woman’ and there was no question of loss of income as such during the period she was on leave. Hence, the learned counsel contends that the compensation in respect of the said head requires to be scaled down suitably and further the appellant be exonerated of the liability and in turn the liability be fastened on the Insurance Company.
7. The learned counsel appearing for the first respondent – claimant contends that it is useful to refer to the decision of the Apex Court in the case of RANI & OTHERS VS NATIONAL INSURANCE COMPANY LIMITED & OTHERS - (2018) 8 SCC 492, wherein it is held that even in case where the offending vehicle did not possess a valid permit to operate in the State concerned, the compensation determined must be first paid by the insurer, who could thereafter recover the same from the owner of the offending vehicle. On the said basis, the learned counsel contends that respondent No.2 – ICICI Lombard General Insurance Co. Ltd., may be directed to first pay the compensation determined and thereafter, recover the same from the owner.
8. Per contra, learned counsel for the respondent No.2-insurer contends that since the policy condition is violated by the owner, the liability of insurer does not arise and the Tribunal has rightly fastened the liability on the owner of the vehicle. Therefore, in this appeal it does not call for any interference of the judgment and award passed by the Tribunal.
9. On careful evaluation of the material on record and the contentions advanced by the learned counsel for the parties, I find that the Tribunal had erred in awarding exorbitant compensation of Rs.80,000/- towards ‘Loss of income during laid-up period’. The claimant being a Central Government employee, she would have availed the entitled leave as per the rules prevailing and would not have suffered loss of income to the said extent. Hence, the compensation towards ‘Loss of income during laid-up period is scaled down to Rs.30,000/- as against Rs.80,000/- awarded by the Tribunal. However, the compensation awarded by the Tribunal under the other heads being just and proper, needs no interference. Hence, the total compensation payable would come to Rs.1,44,400/- as against Rs.1,94,400/- awarded by the Tribunal.
10. The decision of the Apex Court in the case of RANI & OTHERS VS NATIONAL INSURANCE COMPANY LIMITED & OTHERS - (2018) 8 SCC 492, is squarely applicable to the present case on hand. In spite of the fact that the appellant did not have a valid permit as on the said date of the accident, the Tribunal ought to have directed the second respondent – Insurance company at the first instance to pay compensation awarded to the third party victim and thereafter should have given liberty to the insurer to recover the compensation so paid from the insured- owner.
Hence, I proceed to pass the following:
ORDER The appeal is allowed in part. The compensation payable to the first respondent / claimant is scaled down to Rs.1,44,400/- as against Rs.1,94,400/- awarded by the Tribunal.
It is stated that out of the compensation awarded by the Tribunal, the appellant - owner of the offending school van has already deposited a total sum of Rs.97,000/- including the amount deposited before this Court. Hence, the second respondent / ICICI Lombard General Insurance Co. Ltd. shall deposit the remaining amount along with interest accrued at 6% before the Tribunal, within a period of four weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimant in terms of the award, on proper identification. The second respondent – Insurance Company is at liberty to recover the amount so paid to the claimant, from the appellant – owner of the offending vehicle. However, the impugned judgment and award, in so far as it relates to rate of interest, apportionment and deposit is concerned, shall remain unaltered.
The amount in deposit, before this court, shall be transmitted to the concerned Tribunal, forthwith.
Office to draw the decree accordingly.
SD/- JUDGE KS