IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 25TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.4478/2013 (MV) BETWEEN:
The Manger, M/s. ICICI Lombard General Insurance Co., Ltd., ICICI Complex, next to central shopping complex, Margath Road, Bangalore – 560 001.
Now represented by its Manager Legal M/s. ICICI Lombard Company Ltd., Regional Office, No.89, SVR Complex, 2nd Floor, Madiwala, Hosur Main Road, Bengaluru. ... APPELLANT (BY Sri.B.C.Shivanne Gowda, Advocate) AND:
1. Shivakumara @ Shivu, S/o. Late Anjanappa, Aged about 25 years, R/at Sonnenahalli Village, Byatha Post, Hessaraghatta Hobli, Bengaluru North Taluk.
2. C.S.Kumar, S/o. Chellappan, Major, R/at No.1843, 6th ‘A’ Main, D Block, 2nd Stage, Rajajinagara, Bengaluru – 560 010. ... RESPONDENTS (BY Sri. Shripad V. Shastri, Advocate for R1; R2 is served) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act, against the Judgment and award dated 29.12.2012 passed in MVC No.2371/2012 on the file of the Judge, XXVI ACMM, MACT, Court of Small Causes, Bengaluru, awarding a compensation of Rs.59,250/- with interest @ 6% p.a. from the date of petition till realization.
This Appeal coming on for Admission this day, the Court delivered the following:
J U D G M E N T This appeal is preferred by the Insurance Company challenging the liability fixed on it, whereby the Tribunal while awarding a compensation of Rs.59,250/- to the claimant-respondent No.1 herein, though fixed the liability on the owner of the vehicle involved in the accident, however, directed the appellant-Insurance Company to deposit the compensation amount awarded and thereafter to recover the same from the owner.
3. The claimant/Respondent No.1 instituted a claim petition contending that on 05.02.2012 at about 12.30 a.m., he boarded a Tempo Traveler bearing No.KA- 02-AB-5691 and the said Tempo Traveler was driven by its driver in a rash and negligent manner and the driver lost control over the vehicle and dashed against a buffalo, due to which, the said vehicle capsized, on account of the same, he sustained injuries.
4. Learned counsel for the appellant contended that the Tribunal directing the appellant to pay the compensation to the respondent No.1 and thereafter to recover the same from the insured is impermissible. It is his contention that in this case the contract carriage Tempo Traveler has been used as a stage carriage vehicle. Therefore, the same is in violation of the terms and conditions of the policy and in particular condition No.C of the permit granted. Hence, he prays for allowing the appeal.
5. The Tribunal has observed that the Tempo Traveler which was involved in the accident is a Maxi cab having seating capacity of 12 + 1 and it is having permit throughout India. As per the conditions mentioned in the document, the said vehicle is a tourist vehicle and yellow board vehicle and the permit does not entitle the holder to run the vehicle as a stage carriage. In the said circumstance, the Tribunal fixed the liability on respondent No.2-the owner of the said Maxi cab and directed the Insurance Company-respondent No.1 to pay the compensation and then recover the same from the owner of the vehicle by filing Execution Petition.
6. The Hon’ble Apex Court in the case of RANI AND OTHERS Vs. NATIONAL INSURANCE COMPANY LIMITED AND OTHERS reported in 2018 (8) SCC 492 has held that even in such a 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.
7. In view of the above decision of the Hon’ble Apex Court, there is no merit in this appeal. Accordingly, the appeal is dismissed.
8. The amount in deposit shall be transmitted to the Tribunal.
Sd/- JUDGE KTY