IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO.1261 OF 2013 (MV) BETWEEN M/s. ICICI Lombard General Insurance Company Limited No.89, 2nd Floor, S.V.R Complex Hosur Main Road, Madiwala Bangalore-560 068 Rep. by its Manager.
... Appellant (By Sri. A M Venkatesh, Advocate) AND 1. Smt. K Selvi W/o. Late Kalalingam Aged about 38 years 2. Rabeeka D/o. Late Kalalingam Aged about 16 years 3. Gowtham Joseph S/o. Late Kalalingam Aged about 15 years Respondent Nos.2 and 3 are minors Rep. by their next friend and mother Smt K. Selvi-Respondent No.1.
Respondent Nos.1 to 3 are R/at No.279, Kishore Basha Layout Behind Bidadi Railway Station Bidadi, Ramanagaram Taluk and District-571511.
4. Smt. Valli W/o Late Pandiyan Aged about 38 years R/at No.59, Phaganeri Phaganeri (Po), Siraganga (Tq) Siraganga (Dist)-565501.
5. M/S. Megha Travels No.637, 14th Cross 8th Main, 3rd Phase J.Pl Nagar, Bangalore-560034 Rep. by its Proprietor (R.C. owner of bus bearing Registration No.K A-01/C-3618).
... Respondents (By Sri. N Jagadish Baliga, Advocate for R1 to R4 R5-Served) This MFA filed under Section 173(1) of MV Act against the judgment and award dated:21.09.2012 passed in MVC No.2210/2011 on the file of Judge & Member-MACT, SCCH-09, Bangalore, awarding a compensation of Rs.10,83,000/- with interest @ 6% p.a from the date of petition till realization.
This MFA coming on for further arguments, this day, the court delivered the following:
JUDGMENT Heard the learned counsel for the appellant – Insurer and the learned counsel for the respondent nos.1 to 4 – claimants and perused the records. Notice to respondent no.5 is served.
2. This appeal is preferred by the Insurance Company against the judgment and award dated 21.09.2012 passed by the Tribunal in MVC No.2210/2011 questioning the liability as well as the quantum of compensation awarded by the Tribunal.
3. The factual matrix of the appeal is as under: It is stated in the claim petition that on 12.03.2011 at about 6.00 a.m. when the deceased Kalalingam was proceeding on his TVS XL motor cycle bearing Regn.No.KA-05-EC-3997 near Toyota TKM Garage of Bidadi Industrial Area, at that time a bus of Megha Travels bearing Regn.No.KA-01-C-3618 driven by its driver in a rash and negligent manner, dashed against the deceased vehicle. Due to the impact, he fell down and sustained fatal injuries and though was admitted to hospital and provided treatment, succumbed to the injuries on 17.03.2013 at Sita Bhateja Speciality Hospital while on treatment. His family had spent huge amount towards his medical expenses and funeral and obsequies expenditure. Prior to the accident, Kalalingam was hale and healthy and was working as a driver at Trans System Logistic International Pvt. Ltd., Bidadi and was earning Rs.15,000/- per month. His family members being his wife, children and mother were wholly dependent on his income for their livelihood and they having lost their bread earner of the family, filed a claim petition against the respondents seeking compensation.
4. In pursuance of issuance of notice, respondent no.1 – owner of the offending Bus remained absent and hence was placed exparte. However, Respondent no.2 – Insurer appeared through counsel and filed its objections denying all the averments in the petition in so far as accident and death of Kalalingam due to the injuries sustained, but however admitting the insurance policy and contending that their liability was subject to the terms and conditions of the policy.
5. Based upon the contentions of the parties, the Tribunal framed the issues. In order to establish their case, petitioner no.1 got examined herself as PW.1 and got marked 11 documents as per Exs.P1 to P11. Respondents examined their Legal Manager as RW.1 and got marked four documents as Exhibits R1 to R4.
6. The Tribunal after hearing the learned counsel for the parties, and on an evaluation of the oral and documentary evidence on record, passed the impugned judgment awarding compensation of Rs.10,83,000/- with interest @ 6% p.a. from the date of petition till the date of realisation. It is this judgment which is challenged in this appeal by the Insurer questioning the liability as well as the quantum, by urging various grounds.
7. The learned counsel for the appellant – Insurer vehemently contended that Exhibit R4 – the permit clearly discloses that the vehicle in question had permit to ply only within Bangalore District but however, the vehicle had plied beyond its limits. The accident having occurred near Bidadi Industrial Area which comes under Ramanagaram District, would clearly indicate that the vehicle had plied beyond the permitted area of Bangalore District and therefore, he contends that there is clear violation of permit condition. Moreover, the said permit also was taken much after the accident. Hence, the learned counsel contends that the Insurance Company is not liable to pay any compensation in view of violation of permit conditions. Hence, he contends that the appeal be allowed and the insurer be exonerated of its liability.
8. Per contra, the learned counsel appearing for Respondent Nos.1 to 4 - claimants submitted that the Tribunal, on appreciation of the evidence on record has awarded just and fair compensation and has rightly fastened the liability on the Insurer, which does not call for interference and prays for dismissal of the appeal.
Further, as regards violation of permit conditions, the learned counsel for the claimants / respondents 1 to 4 relies on the judgment of the Apex Court in the case of Amrit Paul Singh vs. TATA AIG General Insurance Co. Ltd and others reported in ((2018) 7 SCC 558 and submits that the same would squarely apply to the facts of the case. The relevant portion of the said judgment reads as under:
“22. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66.
The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh (supra) and Lakhmi Chand (supra) in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle.
In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh (supra) and other cases pertaining to pay and recover principle.”
Hence, the learned counsel contends that in view of the law declared by the Apex Court, the Insurance Company though shall be required to pay the compensation along with interest to the claimants in the first instance, the Insurer shall be at liberty to recover the same from the owner as well as the driver. Hence, he contends that the appeal filed by the Insurer be disposed of with the above observation.
9. In the background of the contentions taken by learned counsel for the appellant – Insurer and the learned counsel for respondent Nos.1 to 4 - claimants as stated supra, it is relevant to state that there is no dispute with regard to the accident that occurred on 12.03.2011 and the death of Kalalingam.
Further, having regard to the contention of the learned counsel for the parties, I find that the law declared by the Hon’ble Apex Court in Amrit Paul Singh vs. TATA AIG General Insurance Co. Ltd (supra) holding that the insurer was required to pay the compensation amount to the claimant with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver, are in consonance with the principles stated in Swaran Singh and other cases pertaining to pay and recover principle. Therefore, keeping in view the ratio of reliance in Amrit Paul Singh case stated supra, the liability saddled on the Insurance Company remains undisturbed. However, the appellant – M/s. ICICI Lombard General Insurance Co. Ltd. shall be entitled to recover the amounts so paid, from the owner of the offending vehicle, in view of the above judgment.
For the aforesaid reasons and findings, I proceed to pass the following:
ORDER The appeal is allowed in part. The impugned judgment and award dated 21.09.2012 in MVC No.2210/2011 is modified. The compensation of Rs.10,83,000/- awarded by the Tribunal in favour of the claimants remains unaltered, which shall carry interest at the rate of 6% per annum from the date of petition till the date of realisation. The appellant - Insurer shall pay the compensation amount along with interest to the claimants – respondent Nos.1 to 4 herein in the first instance, and thereafter they are granted liberty to recover the same from the owner of the offending vehicle. Accordingly, liability is saddled on the owner of the offending vehicle involved in the accident.
Appellant – ICICI Lombard General Insurance Company Ltd. shall deposit the entire compensation with accrued interest, before the Tribunal, within four weeks from the date of receipt of copy of this judgment and on such deposit, the amount shall be disbursed to the claimants in terms of the award, on proper identification. The rate of interest, deposit and apportionment awarded by the Tribunal shall however remain unaltered. Any amount in deposit in this appeal shall be transmitted to the concerned Tribunal, forthwith.
Office to draw the decree accordingly.
Sd/- JUDGE KS