IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE BELLUNKE A.S MISCELLANEOUS FIRST APPEAL No.388/2013 (MV-SJ) BETWEEN:
National Insurance Company Limited, No.86/80, II Floor, Airport Road, Marathahalli, Bangaloure-560037.
By National Insurance Company Limited, Regional Office, No.144, Subharam Complex, M.G.Road, Bangalore-560001.
By it’s Manager. ... Appellant (By Sri.O.Mahesh, Advocate,) AND:
1. Mallikarjuna S/o Mallegowda, Aged about 35 years, R/at Badakana Koppalu, K.R.Nagar Taluk, Mysuru District-570001. Now at C/o Puttamma, No.137, EWS New Kantharaje Urs Road, Akshaya Bhandar, Kuvempunagara, Mysuru.
2. C.T.Somaiah S/o C.S.Thammiah, Aged about 70 years, R/at No.750, Double Road, 4th Stage, Vijayanagara, Belavadi Post, Mysuru-570001. .…Respondents (By Sri.Renukaradhya Advocate for R1;
Sri. V.Panduranga Nayak, Advocate for R2) This MFA is filed u/s 173(1) of MV Act against the judgment and award dated:08.10.2012 passed in MVC No.1257/2010 on the file of the III Additional District Judge, Member, MACT, Mysuru, awarding a compensation of Rs.95,000/- with interest @6% per annum from the date of petition till realization.
This MFA coming on for final hearing this day, the Court delivered the following:
JUDGMENT This appeal is directed against the judgment and award rendered by the III Addl. District Judge and the Motor Accident Claim Tribunal, Mysuru, dated 08.10.2012 in MVC No.1257/2010 where under the appellant-insurance company was directed to satisfy the award amount passed in the aforesaid order.
2. The brief facts of the petitioner’s case are that on 16.02.2008 at 6.30 pm he was returning to Badakanakoppalu after completion of coolie work and when he was going on the left side of Hassan-Mysuru road, 1st respondent came from opposite direction driving his Car bearing No.KA-03/MA- 3231 in rash and negligent manner and dashed petitioner. As a result of the accident the petitioner sustained injury to his left leg. The petitioner took treatment as an inpatient at K.R.Hospital from 16.02.2008 to 20.02.2008 for the injuries sustained by him. His left leg was plastered with POP. He had to spent Rs.15,000/- towards medical expenses. It is further alleged that respondent No.1 is the owner and driver of the vehicle and respondent No.2 is the insurer. Therefore they are jointly and severally liable to pay compensation. With these allegations the petitioner prayed for compensation of Rs.6,25,000/-.
3. On notice being sent, respondent Nos.1 and 2 appeared through counsel and filed detailed separate objections disputing the accident and rash and negligent driving by respondent No.1. They denied the avocation, income. Respondent No.1 admitted that he is the owner of the vehicle and that respondent No.2 is the insurer.
Respondent No.2 denied the existence of the policy and asserted that claim is speculative and imaginary and not based on facts and prayed for dismissal of the petition.
4. Based on the above said pleadings, the Tribunal had framed the following issues:-
1) Whether the petitioner proves that on 16.02.2008 at about 6.30 pm when he was returning along with his neighbourers after completion of coolie work from Hampapura to Badakana Koppal, on Hassan-Mysuru Road, the 1st respondent being the driver of the Opel Corsa Car bearing Registration No.KA-03/MA-3231 drove the same in a rash and negligent manner and dashed against the petitioner, as a result he sustained grievous fracture injuries over left leg, forehead and injuries to all over his body?
2) Whether the petitioner proves that he is entitled for compensation? If so, to what amount and from whom he is entitled to?
3) What Order or decree?
5. After holding the trial, the Tribunal answered the issues as under:-
Issue No.1 - : In the Affirmative. Issue No.2 - : Partly in the affirmative.
Issue No.3 - : Rs.95,000/- from respondent Nos.1 and 2.
Issue No.4 - : As per the final order for the following.
6. The learned MACT held trial of the petition. After considering the oral and documentary evidence, the MACT held that the respondent Nos. 1 and 2 are liable to pay a sum of Rs. 95,000/- with interest at the rate of 6% per annum to the petitioner on account of injury sustained by him in the above said motor vehicle accident. The said judgment and award was challenged before this Court in MFA No.388/2013. This Court by order dated 14.12.2015 allowed the same filed by the insurance company and set aside the liability of the insurance company to satisfy the award and fastened the liability on the owner of the vehicle on the ground that the driver of the offending vehicle at the time of accident was under the influence of alcohol and that fact was found to be admitted. Hence, the said appeal came to be filed. Subsequently, the respondent moved this Court against the aforesaid order by filing review petition in R.P.No.35/2016. This Court by order dated 17.03.2016 allowed the said review petition recalling the order passed in MFA No.388/2013 and restored the matter on the file. That is how the matter came up before this Court for hearing once again.
7. Heard learned counsel for appellant and learned counsel for respondents.
8. The learned counsel for appellant would submit that the owner cum driver of the offending vehicle was under the influence of alcohol at the time of accident. He was prosecuted before the trial Court for the offence punishable under Section 185 of Motor Vehicles Act, 1988 and Sections 279 and 338 of IPC. Therefore the fact that the driver was under the influence of alcohol at the time of accident is admitted. The insured has violated the policy conditions. Therefore, the liability cannot be fastened on the insurance company. Alternatively, the learned counsel argued, even if the award is satisfied, there should be an order for pay and recovery as driver of the vehicle was drunk at the time of accident.
9. Learned counsel for respondents would submit that as per Section.185 of M.V.Act, whoever, while driving, or attempting to drive, a motor vehicle has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyzer is liable to be punished under Section 185 of M.V.Act, 1988. The 2nd respondent was convicted under Section 186 of MV Act. The ingredients of Section 185 were not proved. The said conviction cannot be taken for consideration to deny the award amount and discharging the liability of insurance company.
10. On the basis of the above said facts and circumstances, the following points would arise for consideration:-
1) Whether the appellant-insurance company is absolved from the liability to pay compensation if the driver of the offending vehicle is found to be under the influence of alcohol at the time of accident?
2) What order?
11. My findings to the above point is negative for the following reasons:
The fact that the driver in question was under the influence of alcohol at the time of accident is not in dispute. Because, he has admitted the said fact in his evidence i.e., in cross examination. In criminal case, he pleaded guilty and paid fine before the learned Magistrate and he was convicted but he was not convicted under Section 185 of MV Act. He was convicted under Section 186 of MV Act which prohibits the driver or any person to drive when mentally or physically unfit to drive.
12. On perusal of the policy condition which is produced at Ex.D3, the limitation as to use of the vehicle under this clause of policy covers use of the vehicle for any purpose other than a) Hire or Reward, b) Carriage of Goods (other than samples or personal luggage), c) Organized racing, d) Pace making, e) Speed Testing and Reliability Trials, f) Use in connection with Motor Trade.
13. Persons or Class of Persons entitled to drive: Any person including insured provided that a person driving holds an effective driving licence at the time of accident and is not disqualified from holding or obtaining such a licnece. Provided also that the person holding an effective Learner’s Licence may also drive the vehicle and such a person satisfied the requirement of Rule 3 of Central Motor Vehicle Rule, 1989.
14. Drunk and driving is an offence under Motor Vehicle Act. Every breach of motor provisions would not entitle insurance company to contend that its liability is exonerated, the defence open to insurance company are very much provided by separate provisions, i.e., Section 147 of M.V. Act. Except those conditions mentioned in Section 147 of M.V. Act and the specific liability either admitted or agreed by way of contract at the time of issuing insurance policy, the insurer cannot avoid his liability to satisfy the award under Section 149 of M.V. Act on the ground that the driver of the offending vehicle under drunk. There is no material on record to show that the driver of the vehicle had, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood. There is no record to show that he was in capable of driving any vehicle or he was having any physical or mental incapacity to drive the vehicle. There is also no evidence on record to show that the driver of the vehicle knowingly was suffering from any disease or disability calculated to cause his driving of the vehicle to be a source of danger to the public. He is not convicted for that offence. On the other hand the driver was convicted under Section 185 of M.V. Act, which will not absolve the liability of the insurance company to satisfy the award unless and until there is any specific agreement or conditions in the policy itself. It is immaterial whether the 2nd respondent was convicted under Section 185 or 186 of IPC. As long as there is no specific conditions in policy, the liability cannot be absolved. Therefore, I find that the contention of the learned counsel for the insurance company are not tenable in law, facts and evidence on record. Hence, I answer above point in the negative.
15. Accordingly, the appeal is dismissed.
The impugned judgment and award of the MACT is confirmed.
Registry is directed to send back the records along with copy of this order to the Tribunal.
The amount in deposit, if any, shall be transmitted to the Tribunal, forthwith.
Sd/- JUDGE JS/-