IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 29TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H P SANDESH MISCELLANEOUS FIRST APPEAL No.4496 OF 2012 (MV) BETWEEN:
National Insurance Company Ltd., Division IV, 16, Kumara Krupa Road, Near Shivananda Circle, Bengaluru-560001 Represented by its Branch Manager, Represented by its Regional Officer, Regional Office, M.G.Road, Bengaluru.
... Appellant (By Smt. H.R.Renuka, Advocate) AND:
1. Channappa, S/o. Late Kadaraiah, Aged about 59 years, 2. Narasamma, W/o. Channappa, Aged about 49 years, 3. Mahesh C., S/o. Channappa, Aged about 26 years, 4. Jayalakshmi C., D/o Channappa, Aged about 22 years, All R/o. Muppadigatta, Madura Hobli, Kadannor Post, Doddaballapura Taluk, Bengaluru Rural District.
5. Vishwambara, Adult No.49, 15th Cross, Wilson Garden Bengaluru-30.
6. Mr. Mohammed Asgar S/o Mohammed Shamir R/at No.15, 6th Cross New Gurappana Palya Bannerghatta Road Bengaluru – 560 029 (By Sri N.Gopala Krishna, Advocate for R1-R4, Sri Rajashekar, Advocate & ... Respondents Sri K.S.Lakshmi Narasappa, Advocte for R5; R6 - Served) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act against the judgment and award dated 27.01.2012 passed in MVC No.2732/2008 on the file of VII Additional Judge, Court of Small Causes Member, MACT-3, Bengaluru, awarding a compensation of Rs.3,80,000/- with interest @ 8% P.A. from the date of petition till deposit.
This MFA coming on for final hearing this day, the Court delivered the following:-
J U D G M E N T This Miscellaneous First Appeal is filed by the insurance company challenging the judgment and award passed in MVC No.2732/2008 on the file of Motor Vehicles Accident Claims Tribunal, Court of Small Causes, Bengaluru City (SCCH-3), questioning fastening of liability on the insurance company.
2. Brief facts of the case are that:
It is the case of the claimants before the Tribunal that on 19.03.2008 at about 12.45pm, deceased Manjunath was riding his motorcycle on the left side of the road on NH-4 towards Tumakuru Road, CMTI Junction, Yeshwanthapura, Bengaluru at that time, goods canter bearing Reg.No.KA-01 A-6660 came with high speed and rash and negligent manner and dashed against the motorcycle, as a result he fell down and sustained injuries and he died at the spot.
3. In pursuance of the claim petition, respondent No.2 Insurance Company/appellant herein appeared through the counsel and filed objection statement contending that the driver of the vehicle was not having valid driving license and hence insurance company is not liable to pay any compensation and therefore sought to dismiss the claim petition.
4. The claimants in support of their claim, examined the third claimant as PW-1 and got marked documents as Exs.P.1 to P.14. The second respondent got examined one witness as RW-1 and got marked documents as Exs.R.1 to R.6.
5. The Tribunal after considering both oral and documentary evidence, allowed the claim petition in part and directed the insurance company to pay the compensation and hence the present appeal is filed.
6. The main ground urged in the appeal memo is that the vehicle involved in the accident is a heavy transport vehicle and the driver was possessing driving license in respect of light motor vehicle. Inspite of that, the Tribunal has committed an error in fastening the liability on the insurance company. Hence, the very finding of the Tribunal that the Insurance company is liable to pay the compensation is erroneous. The counsel appearing for the appellant also in her arguments reiterating the grounds urged in the appeal memo would contend that the Tribunal has committed an error in fastening the liability on the insurance company in the absence of valid driving license. It is the further contention of the appellant/insurance company that, earlier the claim petition was dismissed for not taking steps on 24.09.2009 and the same as restored on 03.03.2011 and while restoring the petition, it is made clear that “the petitioners will not be entitled to any interest at any rate from the date of dismissal i.e., 24.09.2009 till conclusion of evidence of all the witnesses of petitioners”. However, the Tribunal while disposing of the matter did not considered this aspect and directed the insurance company to pay interest from the date of petition till the date of deposit. Hence the same is also erroneous.
7. Counsel appearing for the respondents would contend that the Tribunal while considering the issue with regard to driving license has considered and discussed in detail that the respondents have not proved the defence which they have taken and hence they cannot raise the very same issue contending that the Tribunal has committed an error. The counsel also relied upon the judgment of the Apex Court reported in AIR 2018 SUPREME COURT 3726 in the case of SHAMANNA AND ANR. VS. DIVISIONAL MANAGER, ORIENTAL INSURANCE COMPANY LIMITED AND OTHERS by referring to the said judgment, the counsel would contend that the insurance company has to pay the award amount and recover the same from the owner/insured.
8. Having heard the arguments of the appellant’s counsel and the counsel appearing for the respondents and also in keeping the rival contentions of the parties, the points that arise for my consideration are:
1. Whether the Tribunal has committed an error in fastening the liability on the insurance company and whether it requires interference of this Court?
2. What Order?
9. There is no dispute with regard to the accident is concerned. The only dispute is with regard to liability. The main contention of the appellant in this appeal is that the driver of the offending vehicle having license to drive the non transport vehicle and not having the license to drive the Heavy Transport Vehicles and hence the Tribunal ought not to have fastened the liability on the insurance company. In view of the judgment referred supra, the Apex Court considering Section 149 of the Motor Vehicles Act with regard to insurer’s liability and also with regard to third party risks ordered to pay and recover and hence the said judgment is aptly applicable to the case on hand and this Court also can direct the insurance company to pay the amount and then recover the same from the insured.
10. The other contention with regard to the Tribunal has committed an error in granting interest from 24.09.2009 to 12.10.2011. There is force in the said contention of the appellant’s counsel that when there is specific order while restoring the petition dismissed for non prosecution, that the petitioners are not entitled for interest at any rate from the date of dismissal i.e., 24.09.2009 till the completion of petitioners’ side evidence i.e., upto 12.10.2011, the Tribunal ought to have considered the same, however, it has wrongly ordered for interest for the said period also. Hence, the Tribunal has committed an error in not noticing the order of restoration and hence, the insurance company is not liable to pay interest from 24.09.2009 to 12.10.2011 and the same is liable to be modified. In view of the discussion made above, I pass the following:-
ORDER (i) The appeal is allowed in part that the insurance company is not liable to pay interest from 24.09.2009 to 12.10.2011.
(ii) The appellant/Insurance Company is directed to pay the amount and recover the same from the insured i.e., respondent No.6, since the vehicle was standing in the name of respondent No.6 as on the date of the accident.
(iii) Office is directed to transmit the amount in deposit, if any, along with LCR to the concerned Tribunal forthwith.
Sd/- JUDGE Kmv/-