IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF OCTOBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Miscellaneous First Appeal No. 9278 of 2010 (mv) Between:
ICICI LOMBARD GENERAL INSURANCE CO.LTD., ZENITH HOUSE, KESHAVA RAO, KHADE MARGMAHALAKSHMI MUMBAI-400034 NOW R/BY ITS MANAGER - LEGAL ICICI LOMBARD GENERAL INSURANCE CO. LTD# 89, II FLOOR, SVR COMPLEX, HOSUR MAIN ROAD, MADIVALA, BANGALORE – 560 068.
... APPELLANT (BY SRI. A. N. KRISHNA SWAMY., ADVOCATE) And:
1. SMT. RANGAMMA WIFE OF LATE MAHADEVA SHETTY NOW AGED ABOUT 49 YEARS.
2. CHANDRASHEKAR SON OF LATE MAHADEVA SHETTY NOW AGED ABOUT 39 YEARS.
3. SOMASHEKAR SON OF LATE MAHADEVA SHETTY NOW AGED ABOUT 27 YEARS.
1 TO 3 RESIDNG AT MADDUR VILLAGE JAYAPURA HOBLI, MYSORE TALUK.
4. SAROJAMMA, WIFE OF NAGARAJU DAUGHTER OF LATE MAHADEVA SHETTY NOW AGED ABOUT 25 YEARS R/A ADANKUPPE VILLAGE, KANAKAPURA TALUK BANGALORE RURAL DISTRICT.
5 . NAGA @ NAGANAIKA SON OF LATE BASAVANAIKA NOW AGED ABOUT 47 YEARS R/AT D. SALUNDI VILLAGE JAYAPURA HOBLI MYSORE TALUK.
6. SMT. RATHNA WIFE OF KUMAR NOW AGED ABOUT 46 YEARS R/AT D NO. 444/1, YELAWALA VILLAGE MYSORE TALUK.
... RESPONDENTS (BY SRI. K.R. RAMESHA., ADVOCATE FOR R1 TO R4;
R-5 ABATED VIDE COURT ORDER DATED 02.08.2012;
R-6 SERVICE OF NOTICE IS HELD SUFFICIENT VIDE COURT ORDER DATED 02.08.2012) THIS MISCELLENEOUS FIRST APPEAL IS FILED UNDER SEC. 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.06.2010 PASSED IN MVC NO. 971/2009 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSORE AWARDING A COMPENSATION OF RS. 2,99,000/- WITH INTEREST @ 6% FROM THE DATE OF PETITION TILL REALIZATION.
THIS MISCELLENEOUS FIRST APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is by the insurer of the tempo bearing registration No.KA-04/5252 (the offending vehicle) calling in question the judgement and award dated 17.06.2010 in MVC No.971/2009 on the file of the III Additional District and Sessions Judge, Mysuru (for short, ‘the tribunal’). This claim petition in MVC No.971/2009 is filed by the wife and children of late Mahadeva Shetty, who was run down by the driver of the offending vehicle on 18.5.2008 when he was standing near the bus stand of Aralikatte Hampapura village on Mysuru - Manandavadi road. The tribunal allowed the claim petition granting to the claimants – respondents a total sum of Rs.2,99,000/- along with interest at the rate of 6% per annum. The tribunal has called upon the insurer to pay compensation along with interest overruling the defence of the Insurer that the Insurer would not be liable because the driver of the offending vehicle – respondent No.5 was not duly licenced.
2. The learned counsel for the Insurer submits that there is no dispute about the accident or demise of Sri Mahadeva Shetty at the road accident or the dependency of the claimants or quantum of compensation awarded by the tribunal. The only ground urged by the learned counsel for the Insurer in this appeal is that the Insurer, because it is undisputed that the owner – driver of the offending vehicle is not able to establish that the driver of the offending vehicle was duly licenced, shall pay the compensation and recover the same from the Insured. The Insurer could not have been made liable.
3. The learned counsel for the Insurer contended that the Insurer to establish its defence filed an application under Order XII Rule 8 of the Code of Civil Procedure calling upon the driver of the offending vehicle, who was represented before the Tribunal, to produce a copy of the driving licence. The driver filed objections to such application contending that he was not driving the offending vehicle as of the date of the accident and he was not responsible for the accident. The driver of the offending vehicle, despite this specific defence, did not enter witness box to substantiate the defence. On the other hand, the Insurer has examined one of its officers, who was categorical in his deposition that the driver did not hold a valid driving licence. This witness has not been cross- examined either on behalf of the claimants or on behalf of the driver of the offending vehicle. These circumstances establish the Insurer’s defence that the driver of the offending vehicle did not hold licence to drive the offending vehicle, and once it is established that the driver of the offending vehicle did not hold valid licence, the Insurer would be entitled to avoid its liability in view of the provision of Section 149(2) of the Motor Vehicles Act.
4. In the light of these submissions, the question that arises for consideration in this appeal is;
Whether the Insurer – appellant has been able to establish its defence that the driver of the offending vehicle did not hold valid driving licence as of the date of the accident, and if the insurer - appellant is able to establish such defence, would the insurer-appellant be entitled to avoid its liability including the obligation to pay even under Pay and Recovery policy.
5. It is undisputed that the driver of the offending vehicle was represented before the tribunal, and that he filed objections to the application filed by the insurer- appellant to produce his driving licence. In this objection statement, he has specifically contended that he was not driving the offending vehicle at the relevant point of time. However, he has not entered the witness box. The claimants have arrayed the driver – respondent No.5 specifically stating that he was driving the offending vehicle at the time of accident. The officer of the Insurer – appellant has been examined as RW.1. This witness has also stated that the respondent No.5 was the driver of the offending vehicle at the time of the accident. The jurisdictional police has filed charge sheet against the respondent No.5 for the offences under Sections 279 and 304 (a) of IPC read with Section 181 of the Motor Vehicles Act.
6. The respondent No.5, who filed his objection statement, has not cross examined RW1 who has spoken about the defence of the respondent No.1 that he was driving the offending vehicle at the relevant point of time. Further, he has not entered the witness box and spoken about his contra case that he was not driving the offending vehicle at the time of the accident with an opportunity to the Insurer-appellant and the claimants to challenge the same. In the absence of any contra evidence, it will have to be concluded that the Insurer-appellant is able to establish its defence that the driver of the offending vehicle viz., the respondent No.5 did not hold driving licence.
7. As regards the question whether the insurer- appellant should be called upon to pay and recover the compensation as directed by the Tribunal, a useful reference can be made to the decision of the Hon’ble Supreme Court in Pappu and Others vs. Vinod Kumar Lamba and Another reported AIR 2018 SC 592, wherein the Hon’ble Supreme Court has reiterated the proposition that where the Tribunal/Court arrives at a conclusion that the Insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) of the Act, the Tribunal/Court can direct the insurance company to pay the compensation subject to being reimbursed by the insured to sub serve the interest of justice.
In the light of this position of law, the Tribunal’s judgment is liable to be modified directing the insurer-appellant to pay compensation and be entitled to recover the same from the owner/driver of the offending vehicle. In the light of the above discussion, the following:
ORDER The appeal is allowed in part. The tribunal’s judgment dated 17.06.2010 in MVC No.971/2009 is modified clarifying that the insurer-appellant shall pay compensation along with interest at the rate of 6% per annum and recover the same from the driver /owner of the offending vehicle.
The amount in deposit in this appeal be transmitted to the tribunal for disbursement and the insurer - appellant shall pay balance amount with interest within a period of six weeks from the date of receipt of copy of the judgment Sd/- Judge SA Ct:sr