IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18H DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE K.SOMASHEKAR MISCELLANEOUS FIRST APPEAL NO.1675 OF 2014 (MV) CONNECTED WITH MISCELLANEOUS FIRST APPEAL NO.1674 OF 2014 (MV) BETWEEN:
M H SHEKHARAPPA S/O HANUMANTHAPPA AGED ABOUT 44 YEARS AGRICULTURIST R/AT R-NULENUR VILLAGE, HOLALKERE TALUK-577 526.
... APPELLANT IN (M.F.A.NO.1675/2014) B.E. CHANDRAPPA S/O. ESHWARAPPA AGED ABOUT 56 YEARS AGRICULTURIST R/AT BASAPURA VILLAGE, HOLALKERE TALUK-577 526.
... APPELLANT IN (M.F.A.NO.1674/2014) (BY SRI. SHASHIDHARA R., ADVOCATE IN BOTH APPEALS) AND:
1. NAGARAJ S JANNEY S/O SHIVANAND S. JANNEY, AGED ABOUT 41 YEARS R/AT NO.70, S.N. NAGAR, HUKKERE RASHE, SAGARA SHIMOGA DISTRICT-577 401. OWNER OF VEHICLE NO. KA-15-2582, 2. THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO. LTD., A.M. ARCADE, NEAR VIDYARTHI BHAVAN, C.G.HOSPITAL ROAD, DAVANAGERE, PIN-577 001.
… RESPONDENTS (COMMON IN BOTH APPEALS) (BY SRI. S V HEGDE MULKHAND, ADVOCATE FOR R2 NOTICE TO R1 IS DISPENSED WITH V/O. DATED 29.08.2017) THESE APPEALS ARE FILED UNDER SECTION U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:26.11.2013 PASSED IN MVC NOs.527/2008 AND 526/2008 RESPECTIVELY ON THE FILE OF THE SENIOR CIVIL JUDGE, ADDITIONAL MACT, HOLALKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFAs ARE COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though these appeals are listed for admission, with the consent of learned counsel for both parties, the matters are taken up for final disposal.
2. These appeals are preferred by the appellants – claimants challenging the impugned judgment and award dated 26.11.2013, passed in MVC Nos.527/2008 and 526/2008, by the Senior Civil Judge & Additional MACT, Holalkere, awarding compensation in a sum of Rs.37,300/- and Rs.1,16,805/- respectively. In the operative portion of the impugned judgment and award, the tribunal has ordered that the claimants – appellants would be entitled to the interest at 6% p.a. The compensation awarded by the Tribunal is found to be inadequate and also on the lower side and also fastened the liability on the owner of the offending vehicle, is unsustainable in law. Hence, the appellants herein have filed the present appeals. Therefore, the intervention of this Court is required in this appeals by re-appreciating the entire evidence on record and seeking enhancement of compensation by awarding suitable compensation and fastening the liability on the insurance company.
3. The factual matrix of the appeals are as under:
It is evident in the claim petition that on 20.09.2007, at about 05.45 p.m., when the claimants as rider and pillion rider of the motor cycle bearing registration No.KA-16-L- 9256, were traveling near Jaipura village in Holalkere town by following traffic rules and regulations, at that time, a TATA Ace vehicle bearing registration No.KA-15-2582, which is the offending vehicle drove in a rash and negligent manner and hit the motorcycle from behind. Due to the impact, the claimants fell down and sustained injuries. As a result of which, the claimants said to be the injured persons were taken to the hospital for treatment. The motorcycle was also damaged in the accident. Despite providing treatment to them, injuries have not been completely cured and both have lost natural strength and future income. These are all the grounds taken in the claim petition seeking compensation. Respondent No.1 being the owner of the offending vehicle and respondent No.2 said to be the insurer of the offending vehicle are jointly and severally liable to pay the compensation. Therefore, the appellants - claimants filed claim petitions before the Tribunal seeking compensation from the respondents.
4. In pursuance of issuance of notice on the respondents, respondent No.1 has through his counsel and resisted the claim petition by filing objections statement. Respondent No.1 denied and disputed the claim of the claimants. He contended that the driver was holding valid and effective license at the time of the accident and even if liability is to be fastened it has to be fixed on the insurer as the offending vehicle was insured. Respondent No.2 – insurance company entered appearance through its counsel and filed objections denying all the averments made in the claim petitions and specifically stated that the petitions are filed for the sake of claiming compensation. It is contended pleaded that the driver of the offending vehicle was not holding any valid and effective driving license and hence, the insurer is not liable to indemnify the insured. These are all the grounds urged by both the respondents before the Tribunal and sought to dismiss the claim petitions.
5. Based on the pleadings of the parties, the Tribunal framed issues and gave its findings based on the evidence of PWs.1 and 2 - claimants and one witness namely PW.3 who is said to be the doctor, who treated the injured persons and issued wound certificate at Exs.P.4 and P.5 respectively, pertaining to both claimants said to be the injured, was also examined. Claimants got marked documents as per Exs.P.1 to P.114 to prove their cases, which is incorporated in the order portion of the judgment. On the other hand, respondents adduced evidence of three witnesses as RWs.1 to 3 and got marked documents as per Exs.R.1 to R.10. Subsequently, the Tribunal on evaluation of the oral and documentary evidence awarded a total compensation in a sum of Rs.37,300/- and Rs.1,16,805/- with interest at 6% p.a. from the date of the petition till its deposit, respectively to both claimants. The appellants have preferred these appeals being not satisfied with the amount of compensation awarded by the tribunal, which is inadequate and also fastening the liability on the owner of the offending vehicle.
6. Learned counsel for the appellants submitted that the Tribunal has not appreciated the materials on record and has given erroneous findings to award compensation towards conventional charges. He further submits by drawing the attention of the Court to the evidence of RW.3, that the driver of the offending vehicle was holding license to drive motorcycle with gear and LMV and since the unladen weight of the vehicle is less than 7500 kgs., the driver was authorised to drive the vehicle. But, the Tribunal has come to the conclusion that the offending vehicle was a transport vehicle and fixed the liability on the owner of the offending vehicle, which is contrary to law. In this regard, he relied upon the judgment of the Hon’ble Supreme Court in the case of Mukund Dewangan Vs. Oriental Insurance Company Limited reported in (2017) 14 SCC 663. Hence, intervention of this Court is required in the impugned judgment and award passed by the Tribunal and prays for awarding suitable compensation.
7. Per contra, learned counsel for respondent No.2 said to be the insurer has taken me to the averments made in the claim petitions and submitted that the driver of the offending vehicle was not holding valid and effective license and the insurance company is not liable to pay any compensation or to indemnify the same. He submits that the Tribunal has appreciated the evidence on record in proper prospective and the same is found to be just and reasonable and therefore, in these appeals, it does not call for any interference of this Court and seeks to confirm the impugned judgment and award rendered by the Tribunal in MVC.Nos.526 and 527 of 2008.
8. Having regard to these strenuous contentions of the learned counsel for the appellants and the counter made by the learned counsel for the respondent – insurance company respectively, it is relevant to state that there is no dispute with regard to the occurrence of the accident on 20.09.2007, at about 05.45 p.m., wherein the claimants sustained injuries. The injured claimants were subjected to X-Ray as per Exs.P.7 and P.106 to P.108 respectively. The claimants said to be the injured have relied on the medical documents in the claim petition and have given evidence as PWs.1 and 2. The Tribunal has considered the evidence on record and awarded compensation of Rs.37,300/- and Rs.1,16,805/- respectively with interest at 6% p.a. and fastened the liability on the owner of the offending vehicle i.e., the first respondent, as it was involved in the accident.
Keeping in view the submission of the learned counsel for the appellant and so also Section 149 of the M.V.Act with regard to the insurer’s liability, the accident has occurred due to rash and negligent driving of the TATA Ace and the insurance company taking plea that the driver was not possessed a valid license would not per se make insurance company liable. The Tribunal has rightly appreciated the evidence on record and has fastened the liability on the owner of the offending vehicle. In the case of National Insurance Co. Ltd. Vs. Swaran Singh & Ors reported in AIR 2004 SC 1531, the Hon’ble Supreme Court while dealing with Section 3 of the M.V. Act and definition of sub- section (2) of Section 10 of the M.V. Act, has held that even though the driver of the offending vehicle was not in possession of a valid and effective driving licence, has held the Insurance Company liable to pay the compensation but did not interfere with the award but directed the insurance company to recover the amount from the owner.
Therefore, in the present case also, it is made clear that the concept of pay and recovery is always there and the insurance company is liable to pay the compensation amount at the first instance and is also at liberty to recover the same from the owner of the offending vehicle at the second instance.
9. For the reasons and above said findings, the appeals are allowed in part. The judgment and award of the tribunal in MVC.Nos.526 and 527 of 2008 are hereby modified and the insurance company is directed to pay the compensation at the first instance and liberty is reserved to recover the same from the owner of the offending vehicle.
Respondent – insurance company is directed to deposit the entire compensation amount, with accrued interest, before the Tribunal, within a period of four weeks from the date of receipt of the certified copy of this order and on such deposit, the same shall be disbursed to the claimants, on proper identification.
Office to draw the decree accordingly.
Sd/- JUDGE nvj