IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4th DAY OF DECEMBER 2017 BEFORE THE HON’BLE MR. JUSTICE B.A. PATIL MISCELLANEOUS FIRST APPEAL NO.8980 of 2010(MV) BETWEEN:
MASTER FARAZ, S/O EKBAL, AGED ABOUT 9 YEARS, SINCE MINOR, REP. BY HIS NATURAL GUARDIAN MOTHER SMT. ZAREENA, R/AT 2ND MAIN ROAD, 10TH CROSS, BANDEGUDISALU, VALMIKINAGAR, BANGALORE 560 026.
.. APPELLANT (BY SRI. R. CHANDRASHEKAR, ADV. FOR M/S LAWYERS NET) AND:
1. DOLATH PASHA, MAJOR, S/O SHAEEN TAJ, NOSD.19, GANGONDAHALLI BANGALORE 560 040.
2. TATA AIG.GEN.INSURANCE CO. LTD., NO.80, 2ND FLOOR, JP AND DEVI JAMBUKESHWARA ARCADE MILLERS ROAD, BANGALORE 560 042 REP. BY ITS BRANCH MANAGER.
(BY SRI. O. MAHESH, ADV. FOR R2.
.. RESPONDENTS NOTICE TO R1 IS HELD SUFFICIENT VIDE ORDER DATED 17.12.2014) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.04.2010 PASSED IN MVC NO.7599 OF 2008 ON THE FILE OF THE VIII ADDITIONAL JUDGE AND MEMBER MACT, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD AND RESERVED ON 12.10.2017 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT, DELIVERED THE FOLLOWING:
JUDGMENT Though the appeal is listed for admission, with the consent of the learned counsel appearing for the parties, the same is taken up for final disposal.
2. The present appeal has been preferred by the appellant/claimant assailing the judgment and award dated 1st April 2010 passed by the Motor Accident Claims Tribunal-V and Small Causes Court, Bangalore City, in MVC No.7599 of 2008.
3. The brief facts leading to the petition are that on 12.09.2009 at about 3.30 p.m., when the petitioner-Master Faraz along with his mother was walking on the edge of the Valmikinagar, 2nd main road, near K.G.N. Bakery Bangalore, an Autorickshaw bearing Registration No.KA-04-B-9843, driven by its driver at a high speed came rashly and negligently and dashed to Master Faraz. As a result of the same, he fell down and sustained grievous injuries. Immediately he was shifted to Victoria hospital, Bangalore and was admitted for treatment. On the basis of the complaint, a case was registered against the driver of the Autorickshaw in Crime No.54 of 2008. For having sustained injuries, a claim petition came to be filed before the MACT, Bangalore in MVC No.7599 of 2008.
In pursuance of the notice, respondent No.2-insurer appeared and filed the written statement denying the contents of the petition. It was contended that the driver of the Autorickshaw was driving the same with a reasonable speed and was not rash and negligent. It was further contended that the driver of the Autorickshaw was not having a valid and effective driving licence as on the date of the accident. On these grounds, it was prayed for dismissal of the petition. Respondent No.1, though served, remained absent and was placed exparte On the basis of the pleadings, the Tribunal framed the following issues:
1. Whether the petitioner proves that on 12.9.08 at about 3.30 p.m. on Valmikinagar 2nd main road, near K.G.N. Bekari, Bangalore, he met with an accident and sustained injuries, was due to actionable negligence act on the part of driver of Auto bearing registration No.KA-04-B-9843 as alleged?
2. Whether the petitioner is entitled to compensation? If so, how much and from whom?
3. What order?
The petitioner, in order to prove his case, got examined his next friend and natural mother as PW-1 and got marked Exs.P-1 to P-8. On behalf of respondent No.2-insurer, RW-1 was examined and got marked Exs.R-1 to R-6.
After hearing the parties to the lis, the impugned judgment and award came to be passed by the Tribunal.
4. I have heard Sri R. Chandrashekar, learned counsel for the appellant and Sri O. Mahesh, learned counsel for respondent No.2.
5. The main grounds urged by the learned counsel appearing on behalf of the appellant/claimant are that the Tribunal has gravely erred in dismissing the claim petition as against the 2nd respondent on the ground that the first respondent has violated the terms and conditions of the policy, as the driver of the offending vehicle was not holding a valid and effective driving licence as on the date of the accident. It is further contended that the Tribunal has erred in granting the compensation globally to an extent of Rs.40,000/- and even while awarding interest it ought to have awarded 12% per annum. It ought to have awarded compensation under various heads like ‘pain and suffering’, ‘loss of amenities’, ‘medical expenses’, ‘attendant, conveyance, food and nourishment charges’, ‘future medical expenses’ and ‘other incidental charges’. He further submitted that as per Section 149(2) of the Motor Vehicles Act, 1988(hereinafter referred to as the ‘Act’) for short), heavy burden lies upon the insurer to prove that the driver of the vehicle had no valid driving license at the time of the accident. If it fails to prove, then, under such circumstances, the plea of the insurer can be rejected and the liability can be fastened on the insurer. In order to substantiate his contention, he relied upon the decisions in the case of Rukmani and others v . New India Assurance Company and others reported in (1998) 9 Supreme Court Cases 160, in the case of United Insurance Co. Ltd v.
Smt. Rathna and another in Miscellaneous First Appeal No.9308 of 2011; in the case of IFFCO TOKIO General Insurance Company Limited v. Mr. K.Prabhakar Reddy and another in MFA 865 of 2011 and prayed for allowing the appeal by fastening the liability on the insurer.
6. Per contra, learned counsel on behalf of respondent No.2-insurer vehemently argued and contended that, the Tribunal, after considering the facts and carefully analyzing the things, has rightly come to the conclusion that the driver of the said Autorickshaw was not possessing a valid and effective driving licence and as such the impugned judgment and award is sustainable in law. He further contended that Section 134 of the Act mandates “to take all reasonable steps to give medical attention to the injured and give information in writing to the insurer, the policy number, period of its validity, date, time and place of accident, particulars of persons injured or killed in the accident and the name of the driver and particulars of his driving licence.”. He further contended that as per Section 158 of the Act, production of licence and permit is a statutory obligation on the part of the driver of the motor vehicle and even Section 160 of the Act fixes a duty on an officer in-charge of the Police Station or a Registering Authority to furnish the particulars of the vehicle involved in the accident. He has also contended that a charge sheet, as per Ex.P-6, has been filed and the said charge sheet has not been certified by the competent authority as contemplated under Section 76 of the Indian Evidence Act, 1872. He further contended that the Court cannot ask the insurer to prove the negative aspects of the case with regard to non-possession of the driving licence by the driver of the said autorickshaw and when the driver of the said autorickshaw has been prosecuted under Section 3(1) read with Section 181 of the Act that itself clearly goes to show that the driver of the said Autorickshaw was not holding a valid and effective driving licence. He further contended that as per Rule 106 of the Karnataka Motor Vehicles Rules, 1989(hereinafter referred as the “Rules” for short) the owner has to maintain the record and submit the reports in respect of the vehicles in such form and by such dates as the RTA may specify. He further contended by referring to Regulation 32 to the effect that a duty is cast upon the owner of the vehicle to furnish the particulars and if it is not in accordance with the said Regulation, then, under such circumstances, the insurer cannot be held liable. He further contended that when a charge sheet has been filed against the driver of a vehicle, there is a legal presumption that the driver was not holding a valid driving licence. He further contended by referring to Rule 232(2) of the Rules that a duty is cast upon the applicant, at the time of the filing the application or claiming compensation, to furnish the particulars of the criminal records and medical certificate. He further contended that the documents which have been produced have not been proved either as a primary or a secondary evidence and hence they are hit by Section 76 of the Indian Evidence Act. When the said fact is beyond his capacity, then, under such circumstances, the Court cannot insist to prove the negative aspect by the insurer. He further contended by relying upon Rule 235 of the Rules that when an application has been made by the insurer to furnish the particulars of the vehicle and other materials by the owner, then, if the owner of the vehicle remains absent and has not contested, then, under such circumstances it can be presumed that they have no objection for making an award against him. On these grounds he prayed for dismissal of the appeal.
7. Having heard the learned counsel appearing for the parties and on perusal of the judgment and award passed by the Tribunal and the original records secured from the Tribunal, the following point would arise for my consideration:
“Whether the judgment and award of the Tribunal is just and correct in fastening the liability on the insured”?
8. There is no dispute of the fact of the appellant having sustained injuries in the accident that occurred on 12.09.2009 at about 3.3.0p.m. As could be seen from the judgment and award, the Tribunal on appreciation of the evidence, both oral and documentary, has allowed the claim petition and awarded compensation of Rs.40,000/- globally with interest at 6% per annum by fastening the liability on respondent No.1-insured and dismissed the claim petition as against respondent No.2-insurer. As could be seen from the impugned judgment and award and the original records, the insurer had taken a defence that the driver of the offending vehicle did not possess a valid and effective driving licence. When such a contention had been taken by the insurer, then, the burden was heavily cast upon the insurer to prove the same, that too, when the owner of the offending vehicle remained absent and was placed exparte. Admittedly, the owner-respondent No.1, before the Tribunal had remained absent and was placed exparte. During the course of argument, the learned counsel appearing for the respondent No.2-insurer contended that the negative aspect need not be proved by the insurer. It is no doubt true that a negative fact need not be proved by the insurer but when the insurer raises a defence to the effect that there was no valid and effective driving licence possessed by the driver of the offending vehicle, then the burden is on the insurer, particularly, when there is no dispute with regard to the insurance of the offending vehicle and when the insurer tries to wriggle out its statutory obligation by attempting to take an umbrage under Section 149, the burden is on the insurer to prove the said fact. Even as per the decision in Rukmani’s case (supra), the Hon’ble Apex Court has clearly stated that when the insurer has taken a defence that the driver of the offending vehicle was not having a valid driving licence at the time of the accident, then the burden of proof lies heavily on the insurance company and if the insurer fails to discharge the burden cast upon it, then it cannot escape from its liability. For the purpose of brevity, I quote para 3 of the said judgment which reads as under:
“3. We have seen the only evidence which the Insurance Company produced in support of the plea. This is the evidence of Inspector of Police who investigated the accident. In his evidence, PW 1 who was the Inspector of Police, stated in his examination-in-chief, “My enquiry revealed that the 1ST respondent even after my demand did not submit the licence since he was not having it.” In his cross- examination he has said that it is the Inspector of Motor Vehicles who is required to check whether the licence is there but he had not informed the Inspector of Motor Vehicles that the 1st respondent was not having a licence since he thought it was not necessary. In our view, this evidence is not sufficient to discharge the burden which was cast on the Insurance Company. It did not summon the driver of the vehicle. No record from the Road Transport Authority has also been produced. In these circumstances, the Insurance Company has not discharged the burden cast upon it under Section 96(2)(b)(ii) of the Motor Vehicles Act, 1939. The impugned order of the High Court is, therefore, set aside and the order of the Tribunal is restored. The appeal is allowed accordingly. No order as to costs.”
9. On going through the aforesaid proposition of law, it is clear that when the insurer is trying to rely only on the defence that the driver of the offending vehicle did not possess a valid driving licence and thereby insured had committed violation of the terms and conditions of the policy, then the burden is on the insurer to prove the same. This proposition of law has been upheld by this Court in the decisions quoted supra. In the light of the discussion as stated above, the contention of the insurer is not acceptable in law.
10. Now let me consider whether the insurer has discharged his burden by producing substantial evidence before this Court.
11. As could be seen from the records, the insurer had taken up a defence that the driver of the offending vehicle was not holding a valid and effective driving licence and in order to substantiate the said fact, it got one of its officials examined as RW-1. RW-1 in his evidence has deposed that the driver of the offending vehicle was not holding a valid and effective driving licence and the insured had not either informed the insurer about the accident nor produced any documents. He has further deposed that the police have charge sheeted the driver of the autorickshaw for driving the same without a driving licence in violation of Section 3(1) read with Section 181 of the Act and thereby the insured has violated the conditions of the policy and they are not liable to pay any compensation. Respondent No.2 has produced and got marked Exs.R-1 and R-2, policy and a letter, respectively. So far as the policy being in force as on the date of the accident is not in dispute. As regards Ex.R-2, it is a letter dated 07.11.2008 addressed to the insured to the effect that a notice has been issued to insured and the same has been returned with a postal endorsement as “un- served”. Even the records indicate that in spite of service of notice, respondent No.1 did not appear before the court. It is no doubt true that the driver of the autorickshaw was prosecuted for the offence under Section 3(1) read with Section 181 of the Act for not possessing a valid licence and also for rash and negligent act. Though RW-1 has testified to the material collected, he has not examined the police inspector who collected the said material during the course of investigation. How the criminal papers are to be proved and established before the Court is not followed. The evidence of RW-1 does not establish that the driver of the offending vehicle was having a valid and effective driving licence as on the date of the accident or not. But it only discloses the fact that the driver has been prosecuted for not producing the driving licence. In that light, the evidence of RW-1 is not of much assistance to the insurer in order to establish the fact that the driver of the offending vehicle did not possess a valid and effective driving licence at the time of the alleged accident. Though Ex.R-2-letter has been produced by the insurer for having issued notice to the owner of the offending vehicle, the same is returned as unserved. When the notice has not been effectively served upon the owner of the vehicle, then, under such circumstances, the evidence of RW-1 will not help the insurer. Though RW-1 has spoken to the records, he has no personal knowledge of the fact of addressing a letter or the issuance of notice to the owner of the said offending vehicle. This evidence also does not come to the aid of the insurer to discharge its primary duty to establish that there was breach of terms of the policy. The Apex Court in Rukmani’s case(supra) has held that the burden is on the insurance company to establish the fact that the driver of the offending vehicle was not possessing a valid and effective driving licence. If it fails to discharge the said burden, then, under such circumstances, the insurer is liable to pay the compensation. Even the judgment of the co-ordiante bench of this Court (Supra) would also indicate that when the insurer has failed to prove the defence raised in the statement of objections, such a plea cannot be accepted. When the police officer or the records are not summoned from the transport authority to establish the fact that the driver of the offending vehicle was not having a valid and effective driving licence, then, under such circumstances, it has to be held that the insurer has failed to discharge its burden.
12. Keeping the dictum laid down by the Hon’ble Apex Court as quoted supra and also the judgments of the co-ordinate bench of this Court and applying the same to the facts and circumstances of the case on hand, it would clearly indicate that the insurer having raised a plea in its written statement to the effect that the driver of the offending vehicle did not possess a valid and effective licence by relying upon Exs.R-1 and R-2 to claim that it should be absolved of its liability, particularly, when the contents of the said document has not been proved either by examining the Investigating officer or any other official concerned to the said effect, the said plea remains as a plea without substantial proof. In that view of the matter, I do not propose to accept the contention of the learned counsel for respondent No.2-insurer.
13. The learned counsel for respondent No.2 by referring to Sections 134, 156 and 160 of the Act and Rules 106, 232 and 235 of the Rules has contended that when there is no valid and effective driving licence, the insurer cannot be made liable. It is true that some mandatory provisions have been made under the Act to disclose and inform the insurer about the accident as well as the particulars of the accident, the driving licence and the policy particulars. Merely because those statutory provisions have not been followed either by the owner or the driver of the vehicle, it cannot be presumed and held that the insurer has discharged its liability/burden of proving the fact that the driver of the offending vehicle was not having a valid and effective driving licence.
14. Looking from any angle, the contention of the learned counsel for the insurer is not acceptable in law. As could be seen from the judgment of the Tribunal, after noticing the fact that subsequent to the accident the insurer issued notice to the insured calling upon him to give the details, which was returned unserved, and also taking note of the fact that charge sheet has been filed against the driver of the autorickshaw under Section 3(1) read with Section 181 of the Act, has come to the conclusion that there is a prima facie material to show that the driver of the offending vehicle was not holding a valid and effective driving licence. The said observation of the Tribunal is not in accordance with law and is not based on proper reasoning or proposition of law. The Tribunal by ignoring the dictum laid down in the above referred case as well as the judgment of the co- ordinate bench of this Court, has passed the impugned judgment and award whereunder the insurer has been exonerated from its liability by fastening the liability on respondent No.1. The same is not sustainable in law.
15. Keeping in view the above said facts and circumstances, the said finding of the Tribunal is set aside and the liability is fastened on respondent No.2-insurer of the offending vehicle to pay the compensation.
16. The second contention taken up by the learned counsel for the appellant is that the global compensation awarded by the Tribunal is not justifiable, as it has not properly assessed and quantified the compensation.
17. The Tribunal has awarded a global compensation of Rs.40,000/-. As could be seen from the impugned judgment and award and the records, the appellant-claimant has sustained fracture of mid shaft of both bones of left leg and was admitted in the hospital as an inpatient for a period of 15 days. The appellant was studying in II standard when he met with an accident. Though the appellant has not examined the doctor who treated him, by taking into consideration the wound certificate Ex.P-5 and other records, it is clear that the petitioner has sustained fracture. Then, under such circumstances, the Tribunal ought to have awarded the compensation on various heads to which he is entitled to. In that light, the appellant-claimant is entitled to a sum of Rs.25,000/- towards pain and suffering, and the same is awarded. An amount of Rs.30,000/- is awarded towards loss of amenities and discomfort, as he might not have attended the school during the period of treatment. An amount of Rs.10,000/- is awarded towards attendant charges, food nourishment, transportation and other incidental charges.
18. Thus, in all, the appellant/claimant is entitled to a total compensation of Rs.65,000/-. After deducting the compensation awarded by the Tribunal to an extent of Rs.40,000/-, the appellant/claimant is entitled to additional compensation of Rs.25,000/- with interest at 6% per annum.
Accordingly, the appeal is allowed in part. The judgment and award passed in MVC No.7599 of 2008 is modified as indicated above by fastening the liability on respondent No.2-insurer. An additional amount of
directed to deposit the compensation awarded by the Tribunal as well as the additional compensation awarded by this Court with interest at 6% p.a. within a period of six weeks from the date of receipt of a certified copy of this judgment.
Registry is directed to draw the award accordingly and send back the records to the jurisdictional Tribunal.
Sd/- JUDGE Kmv