1 MFA No.1165/2010 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE P.S.DINESH KUMAR MISCELLANEOUS FIRST APPEAL NO.1165 OF 2010 (MV) BETWEEN ICICI LOMBARD GENERAL INSURANCE CO. LTD., PRESTIGE CORNICHE, 62/1, II FLOOR, RICHMOND ROAD, BANGALORE – 560 026.
NOW REPRESENTED BY MANAGER – LEGAL.
ICICI LOMBARD GENERAL INSURANCE CO. LTD., #89, II FLOOR, SVR COMPLEX, HOSUR MAIN ROAD, MADIVALA, BANGALORE – 560 068.
(BY SRI. A.N.KRISHNA SWAMY, ADV.,) AND 1. SMT. T.PADMA, W/O NARASIMHAIAH, NOW AGED ABOUT 35 YEARS, R/O #1519, 7TH MAIN, 4TH CROSS, KENGERI UPANAGARA, BANGALORE.
... APPELLANT 2. PULAKCHAKRABARTI, S/O SATYENDRANATH CHAKRABARTI, MAJOR, R/O #FD-66, HAL SENIOR OFFICERS, ENCLAVE, OLD MADRAS ROAD, BANGALORE – 560 093.
... RESPONDENTS (BY SRI.G.V.SHASHIKUMAR, ADV., FOR R1;
VIDE ORDER DATED 19.01.2017, SERVICE OF NOTICE TO R2 – HELD SUFFICIENT) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 13.10.2009 PASSED IN MVC NO.2916/2007 ON THE FILE OF 14TH ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, BANGALORE, AWARDING A COMPENSATION OF RS.86,080/- WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T ICICI Lombard General Insurance Co. Ltd., has presented this appeal challenging the judgment and award dated 13.10.2009 passed in MVC No.2916/2007 directing the insurer to pay the compensation with liberty to recover the same from the owner of the offending vehicle.
2. Shri.A.N.Krishna Swamy, learned advocate for the appellant submits that the offending vehicle involved is the motor cycle. The licence produced before the Tribunal was that of Light Motor Vehicle (non transport). The Tribunal has thus, erred in directing the insurer to indemnify owner of the vehicle.
3. Shri.G.V.Shashikumar, learned advocate for the claimant placed reliance on Oriental Insurance Co. V s. Zaharulnisha and Others reported in 2008 AIR SCW 3251. Adverting to Paragraphs 15 and 19 of the said judgment, he contended that in similar circumstances, the Hon’ble Supreme Court has directed the insurer to pay and recover.
4. The undisputable facts are that the offending vehicle is a motor cycle and the licence produced before the Tribunal is of Light Motor Vehicles (non transport). Therefore, the rider of the offending vehicle did not possess a valid licence to drive motor cycle.
5. The Apex Court in the said case (supra) at paragraphs 15 and 19 of the judgment held as follows:
“15. It is beyond any doubt or dispute that under Section 149(1) of the MV Act, insurer, to whom notice of bringing of any proceeding for compensation has been given, can defend the action on any of the grounds mentioned therein. A three-Judge Bench of this Court in National Insurance Company Limited v. Swaran Singh [(2004) 3 SCC 297] has extensively dealt with the meaning, application and interpretation of various provisions, including Ss.3(2), 4(3), 10(2) and 149 of the MV Act. In paragraph 47 of the judgment, the learned Judges have held that if a person has been given a licence for a particular type of vehicle as specified therein, he cannot be said to have no licence for driving another type of vehicle which is of the same category but of different type. As for example, when a person is granted a licence for driving a light motor vehicle he can drive either a car or a jeep and it is not necessary that he must have driving licence both for car and jeep separately. In paragraph 48, it is held as under:
“Furthermore, the insurance company with a view to avoid its liabilities is not only require to show that the conditions laid down under Section 149(2) (a) or (b) are satisfied but is further required to establish that there has been a breach on the part of the insured. By reason of the provisions contained in the 1988 Act, a more extensive remedy has been conferred upon those who have obtained judgment against the user of a vehicle and after a certificate of insurance is delivered in terms of Section 147(3). After a third party has obtained a judgment against any person insured by the policy in respect of a liability required to be covered by Section 145, the same must be satisfied by the insurer, notwithstanding that the insurer may be entitled to avoid or to cancel the policy or may in fact have done so. The same obligation applies in respect of such a liability but who would have been covered if the policy had covered the liability of all persons, except that in respect of liability for death or bodily injury.”
19. In the result, the appeal is allowed to the limited extent and it is directed that the appellant- insurance company though not liable to pay the amount of compensation, but in the nature of this case it shall satisfy the award and shall have the right to recover the amount deposited by it along with interest from the owner of the vehicle, viz. respondent No.8, particularly in view of the fact that no appeal was preferred by him nor has he chosen to appear before this Court to contest this appeal. This direction is given in the light of the judgments of this Court in National Insurance Co. Ltd. V. Baljit Kaur and others [(2004) 2 SCC 1] and Deddappa and Others v. Branch Manager, National Insurance Co. Ltd. [(2008) 2 SCC 595].”
[Emphasis supplied] 6. It is clearly held in Paragraph 19 of the judgment that the insurance company is not liable to pay compensation. However, the Hon’ble Supreme Court of India, in the facts of that case, had directed the insurer to pay the compensation to claimant with liberty to recover the amount from the owner of the vehicle.
7. Therefore, the ratio of the judgment does not support claimant’s case. Therefore, appeal must succeed. Accordingly, I proceed to pass the following:
ORDER (i) Appeal is allowed.
(ii) The direction issued to the Insurer – appellant by the MACT, Court of Small Causes, Bengaluru in Judgment and award passed in MVC No.2916/2007 dated:13.10.2009 to pay and recover the compensation amount is set-aside.
(iii) Amount deposited by the insurer shall be refunded to the insurer.
Sd/-
JUDGE GH