IN THE HIGH COURT OF KARNATAKA, AT BENGALURU DATED THIS THE 23RD DAY OF JANUARY, 2019 BEFORE THE HON' BLE MR. JUSTICE K.SOMASHEKAR MFA NO 1309 OF 2015(MV) BETWEEN 1.SMT N MUNIRATHNAMMA W/O LATE BISAPPA. M, AGED ABOUT 29 YEARS, 2.MASTER KISHORE S/O LATE BISAPPA M, AGED ABOUT 8 YEARS, 3.KUMARI BINDHU D/O LATE BISAPPA. M, AGED ABOUT 6 YEARS, 4.SRI.B.MUNIYAPPA S/O LATE CHIKKA BISAPPA, AGED ABOUT 73 YEARS, MINOR APPELLANTS 2 & 3 ARE REPRESENTED BY NATURAL GUARDIAN/MOTHER, 1ST APPELLANT HEREIN, ALL THE APPELLANTS ARE R/AT DODDAKALLAHALLI VILLAGE, MASTHI HOBLI, MALUR TALUK, KOLAR DISTRICT. ... APPELLANTS (BY SRI. GOPALKRISHNA. N, ADVOCATE) AND 1.SMT LAKSHMIDEI W/O LINGAPPA, MAJOR IN AGE, RESIDING AT NO.16, 2ND MAIN ROAD, NEAR R.R.SCHOOL, D.D. SANDRA, BANGALORE-560 097.
2. ICICI LOMBARD GENERAL INSURANCE COMPANY LTD., S.V.R. COMPLEX, NO.89, 2ND FLOOR, HOSUR ROAD, BANGALORE-560 068.
REP BY ITS MANAGER. ... RESPONDENTS (BY SRI. K. B. JAYALAKSHMI ADV., FOR R1 SRI B. C. SHIVANNE GOWDA, ADV., FOR R2) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:14.10.2014 PASSED IN MVC NO.1708/2012 ON THE FILE OF THE 8TH ADDITIONAL SMALL CAUSES JUDGE, 33RD ACMM, MEMBER-MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard learned counsel for the appellants and learned counsel for respondents. Perused the entire records.
2. This appeal is preferred by the appellants/claimants against the judgment and award dated 14.10.2014 passed by the VIII Addl. SCJ and XXXIII ACMM, Member, MACT, Bangalore in MVC No.1708/2012 seeking enhancement of compensation.
3. The Court below has awarded compensation in a sum of Rs.10,04,000/- with interest at the rate of 6% p.a. from the date of petition till realization. The liability was fastened on first respondent to deposit the compensation amount with interest, within a month. Petition against second respondent – insurance company was dismissed. The same has been challenged in this appeal by urging various grounds.
4. The factual matrix of the case is as under:
On 28.01.2012 at about 12.30 a.m. in the night hours, deceased Bisappa was moving towards Attibele by riding his new Hero Honda Splendor motor cycle. At that time, one Tata Sumo bearing No.KA-39-4053 came from opposite direction in very high speed and knocked down the two wheeler. Due the said impact, Bisappa suffered fatal injuries and succumbed at the spot. It is pleaded that deceased was working as a packer in M/s.Medopharma Pharmaceuticals, Industrial Area, Malur and earning Rs.8,000/- per month. He had lands and growing commercial crops and earning Rs.7,000/- per month, excluding all this expenses. The appellants are the dependants of the deceased and due to untimely death of deceased, great hardship has been caused to them.
5. On receipt of summons in the aforesaid petition, first respondent remained exparte, second respondent had put in appearance by filing written statement specifically stating that the motor cycle and Tata Sumo was not involved in the incident. Based upon the pleadings, issues were framed. After trial, in order to establish the case, first petitioner got examined herself as PW.1, representative of employer of deceased as PW.2 and one eye witness to the incident as PW.3 and got marked Exs.P1 to P11. Second respondent got examined one driver as RW.1, the legal manager as RW.2 and got marked Ex.R.1 to R.7. On evaluating the evidence on behalf of the claimants and respondents and so also documents produced by them, the Tribunal awarded compensation in a sum of Rs.10, 04,000/- with interest @ 6% p.a.
6. Learned counsel for the appellants contends that the Court below erred in absolving the second respondent – insurer of its liability on the ground that driver of the vehicle involved in the accident had no valid and effective driving license i.e., he had driving license to drive LMV without transport endorsement. This finding of the Tribunal is contrary to law declared by the Hon’ble Apex Court. He further contends that the Court below ought to have directed the second respondent – Insurance company at the first instance to pay compensation awarded to the third party victim and thereafter giving liberty to the insurer to recover the compensation so paid from the insured-owner. This settled principle of law is applied by the Supreme Court in the similar facts of the case. The Tribunal has misread these decisions and held that the owner of the vehicle alone was liable to pay the compensation.
7. In support of his contention learned counsel for the appellants has relied on a decision of the Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Co.Ltd., (2017) 14 SCC 663 wherein it is held that the absence of transport endorsement per se cannot be a ground to absolve the insurer from the award liability and the MACT could not have let the insurer go free even in the absence of transport endorsement on the driving license of the driver of the offending vehicle.
8. Learned counsel for the respondent-insurer contends that the policy condition is violated by the owner and the liability of insurer does not arise and the Tribunal has rightly fastened the liability on the owner of the vehicle. Therefore, in this appeal it does not call for any interference of the judgment and award passed by the Court below.
9. Having heard learned counsel for the parties as stated supra, it is relevant to refer to the judgment rendered in Mukund Dewangan Vs. Oriental Insurance Co.Ltd., (2017) 14 SCC 663 wherein Hon’ble Apex Court has answered the question against the insurer in favour of the claimant holding that the insurer cannot avoid award liability only on the ground of absence of Transport Endorsement. Therefore, the issue is no more res integra. Following the judgment passed in the Mukund Dewangan as stated supra, this appeal also stands disposed of. The judgment and award passed by the Tribunal in MVC No.1708/2012 is modified insofar as it relates to fastening of the liability on the owner of the offending vehicle. The liability saddled on the owner of the offending vehicle is set aside and entire liability is fastened on second respondent – ICICI Lombard General Insurance Company Ltd.
With the above observations, the appeal is disposed of. Respondent No.2 – Insurance company is directed to deposit the award amount with accrued interest within a period of four weeks from the date of receipt of copy of this judgment before the Tribunal. The same shall be disbursed to the claimants in terms of the award passed by the Tribunal.
SD/- JUDGE DKB