IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.2314 OF 2014 (MV) c/w M.F.A.NO.2553 OF 2014 IN MFA.NO.2314/2014 BETWEEN:
THE NATIONAL INSURANCE COMPANY LTD, SHIMOGA BRANCH, 1ST FLOOR, S S COMPLEX, B.H. ROAD, SHIVAMOGGA, REPRESENTED BY AUTHORISED SIBNATORY AT REGIONAL OFFICE, NO.144, SHUBHARAM COMPLEX, M.G. ROAD, BANGALORE-560 001.
... APPELLANT (BY SRI. S. SRISHAILA, ADVOCATE) AND:
1. MADHUSUDAN S/o HANUMANTHAPPA, AGED ABOUT 30 YEARS, R/AT 1ST CROSS, BASAVANAGUDI, SHIMOGA CITY-577201.
2. N G. SHIVAPRAKASH S/O CHANNAVEERAPPA, MAJOR, R/O NAGASAMUDRA BHADRAVATHI TALUK-577301.
3. N G CHANNABASAPPA S/O CHANNAVEERAPPA, MAJOR, R/O NAGASAMUDRA, BHADRAVATHI TALUK-577301.
... RESPONDENTS (BY SRI. M.V. MAHESHWARAPPA, ADVOCATE FOR R1 SRI. N.K. SIDDESWARA, ADVOCATE FOR R2 & R3) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.12.2013 PASSED IN MVC NO.753/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND A.M.A.C.T AT SHIMOGA, AWARDING COMPENSATION OF RS.5,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.
IN MFA.NO.2553/2014 BETWEEN:
THE NATIONAL INSURANCE COMPANY LTD, SHIMOGA BRANCH, 1ST FLOOR, S S COMPLEX, B.H. ROAD, SHIVAMOGGA, REPRESENTED BY AUTHORISED SIBNATORY AT REGIONAL OFFICE, NO.144, SHUBHARAM COMPLEX, M.G. ROAD, BANGALORE-560 001.
(BY SRI. S. SRISHAILA, ADVOCATE) AND:
1. SMT. KAVITHA W/O MADHUSUDAN AGED ABOUT 27 YEARS, R/AT 1ST CROSS, BASAVANAGUDI, SHIMOGA CITY-577201.
2. N G. SHIVAPRAKASH S/O CHANNAVEERAPPA, MAJOR, R/O NAGASAMUDRA BHADRAVATHI TALUK-577301.
3. N G CHANNABASAPPA S/O CHANNAVEERAPPA, MAJOR, R/O NAGASAMUDRA, BHADRAVATHI TALUK-577301.
... APPELLANT ... RESPONDENTS (BY SRI. M.V. MAHESHWARAPPA, ADVOCATE FOR R1 SRI. N.K. SIDDESWARA, ADVOCATE FOR R2 & R3) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.12.2013 PASSED IN MVC NO.752/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, ADDITIONAL MACT, SHIMOGA, AWARDING A COMPENSATION OF RS.3,02,950/- WITH INTEREST @ 6% P.A.(EXCLUDING INTEREST ON RS.10,000/- AWARDED IN RESPECT OF FUTURE MEDICAL EXPENSES).
THESE MFAs COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT MFA.Nos.2314/2014 & 2553/2014, both the appeals arise out of common judgment and award dated 16/12/2013 in M.V.C.Nos.752/2012 & 753/2012 on the file of the Principal Senior Civil Judge and A.M.A.C.T., Shimoga. The insurer is in appeals, aggrieved by the saddling of liability on it.
2. The claim petitions were filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries suffered in a road traffic accident. It is stated that on 27-10-2012, when the claimant in MVC.No.752/2012 was proceeding as pillion rider along with claimant in MVC.No.753/2012 as rider on motorcycle bearing Reg.No.KA-17-EB-7842, Car bearing Reg.No.KA- 14-M-6534 came in a rash and negligent manner and dashed to the motorcycle. As a result, both the claimants sustained injuries.
3. On issuance of notice, respondent Nos.1 to 3 appeared and filed their written statement before the Tribunal. Respondent Nos.1 & 2/driver and owner of the offending car filed common statement of objections denying the claim petition averments. Further, they contended that the driver of the car/respondent No.1 was driving the car in a moderate speed by observing all traffic rules. It is further stated that the rider of the motorcycle was riding the same in a higher speed without giving any signal. Thus, the accident occurred solely due the negligence of the rider of the motorcycle. Further, contended that the offending car was insured with respondent No.3-insurer and also stated that the driver of the offending car was possessing a valid and effective driving licence as on the date of accident. Respondent No.3-insurer filed its statement stating that the petition lacks bonafides and denied the claim petitions averments. Further denied that the driver of the offending car/respondent No.1 had valid and effective driving licence as on the date of accident. As such, there is violation of conditions of the policy.
4. The claimants examined themselves as PW-1 & PW-2 and Doctor as PW-3, apart from marking common documents Exs.P-1 to P-22. Respondents examined RW-1 & RW-2, apart from marking documents Exs.R-1 to R-3.
5. The Tribunal on assessment of the entire material on record, awarded total compensation of Rs.3,02,950/- in MVC.No.752/2012 and global compensation of Rs.5,000/- in MVC.No.753/2012 with interest at the rate of 6% per annum from the date of petition till its realization, on the following heads:
IN MVC.No.752/2012 Amount in (Rs.) 1. Pain and sufferings 30,000 2. Medical exp. & other Ancillary Charges (Rs.1,17,650/- + Rs.6,000/-) 3. Loss of income during treatment period 4. Loss of income due to disability 1,17,650 13,500 91,800 5. Loss of amenities 40,000 6. Future medical expenses 10,000 Total 3,02,950 Further, the Tribunal held that respondent Nos.2 and 3, being the owner and insurer of car bearing Reg.No.KA-14-
M-6534, are jointly and severally liable to pay compensation to the respective claimants with interest. The insurer being aggrieved by the saddling of liability on it, is before this Court in these appeals.
6. Heard the learned counsel for the appellant-insurer and learned counsel for the respondents i.e., counsel for the driver and owner of the offending car as well as learned counsel for the claimants. Perused the material on record including the lower court records.
7. Learned counsel for the appellant-insurer would submit that the accident had taken place on 27-10-2012 and as on that date, the driver of the offending car was not holding a valid and effective driving licence to drive the same. He further submits that the driver of the offending car had licence to drive a light motor vehicle which is valid from 08-7-2010 to 20-1-2012. On which date the licence got expired, the driver of the offending car had not made any application to renew the same within 30 days from the date of expiry and the licence was not renewed as on the date of accident i.e., on 27-10-2012. It is his further submission that as the licence had expired as on the date of accident, the driver of the offending car was not possessing a valid and effective driving licence on the date of accident. He relies upon the decisions of the Hon’ble Apex Court in the case of RAM BABU TIWARI vs. UNITED INDIA INSURANCE CO. LTD. AND OTHERS reported in 2008 ACJ 2654, NATIONAL INSURANCE CO. LTD. vs. VIDHYADHAR MAHARIWALA AND OTHERS reported in 2008 ACJ 2860 and ISHWAR CHANDRA AND OTHERS vs. ORIENTAL INSURANCE CO. LTD. AND OTHERS reported in (2007) 10 SCC 650, to contend that when the licence has expired and if it is not renewed as on the date of accident, the insurer would not be liable to pay the compensation. Thus, he prayed to allow the appeals.
8. Per contra, learned counsel for the respondents/driver and owner submits that the Tribunal rightly saddled the liability on the insurer relying on Section 14 of the Motor Vehicles Act. It is his further submission that the accident had taken place on 27-10-2012, whereas, the licence of the driver of the offending car had expired on 20-1-2012. As per the proviso to Section 14 of the M.V.Act, licence would be valid for a period of 30 days from such expiry. Further he relies upon the decision of the Division Bench of our High Court in MFA.No.103680/2015 c/w MFA.No.103681/2015, disposed off on 08-2-2019, wherein, the Division Bench of our High Court considering the decisions of the Hon’ble Apex Court relied upon by the counsel for the appellant had held that the insurer would be liable to pay the compensation. Thus, he prays for dismissal of the appeals.
9. Having heard the learned counsels for the parties and on perusal of the material on record including the lower court records, the only point which arises for consideration in the facts and circumstances of the case is as to whether the Tribunal is justified in saddling the liability on the insurer. Answer to the said point is in the affirmative for the following reasons.
10. The accident occurred on 27-10-2012 involving motorcycle bearing Reg.No.KA-17-EB-7842, Car bearing Reg.No.KA-14-M-6534 and the accidental injuries suffered by the claimants are not in dispute in this appeal. The insurer is in appeal contending that the driver of the offending car had no licence to drive the vehicle as on the date of accident and as such the Tribunal could not have fastened the liability on it as there is violation of policy conditions.
11. Admittedly, the driver of the car was possessing driving licence to drive the car from 08-7-2010 to 20-1-2012 and the accident had taken place on 27-10-2012. It is not a case of no driving licence at all to drive the car. Subsequently, the driver of the offending car got renewed the licence on 27-2-2013. The Division Bench of our High Court in the decision stated supra makes distinction between the case of driver driving vehicle without licence at all and driver who was possessing licence and the same had expired as on the date of accident. In the decision, the Division Bench of our High Court has also taken note of the decisions of the Hon’ble Apex Court in the case of Ram Babu Tiwari (supra) and Vidhyadhar Mahariwala and others (supra). This Court followed larger Bench decision of the Hon’ble Apex Court in the case of NATIONAL INSURANCE CO. LTD., vs. SWARAN SINGH AND OTHERS reported in (2004) 3 SCC 297. The relevant portion of the decision of this Court reads as follows:
“23. Clause 6 of the summation is relevant. It states that even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions should apply “the rule of main purpose” and the concept of “fundamental breach” to allow defences available to the insured under Section 149(2) of the Act. A reading of the same would imply that every breach of the policy condition regarding licence would not ipso facto, be so fundamental so as to enable the Insurance Company to avoid its liability. The breach with regard to the condition of possessing a driving licence must be so fundamental so as to have contributed to the cause of accident. Thus, there must be a nexus between the absence of a valid and effective driving licence by the driver of the offending vehicle and the accident. The same would imply that the driver of the offending vehicle is not duly licenced to drive the vehicle and in absence of possessing the skill to drive a vehicle has driven the same in a rash and negligent manner. It could also be a case where the driver is disqualified for holding or obtaining a driving licence and during the period of disqualification, has driven the vehicle in a rash and negligent manner and caused the accident. Therefore, the aforesaid interpretation of the Hon’ble Supreme Court is in the context of the expression used in Section 149(2)(a)(ii) of the Act.
24. Applying the aforesaid decision to the instant case, it is noted that the driver of the offending vehicle had the licence to drive a non- transport vehicle for the period from 24.07.1998 to 23.07.2018. He also had the authorization to drive a transport vehicle for the period from 03.02.2009 up to 02.02.2012. The licence to drive a non- transport vehicle was renewed on 02.06.2012. It is in the interregnum i.e., on 05.04.2012 the accident occurred. Could it be inferred that the breach in the policy condition was so fundamental so as to have resulted in the driver of the offending vehicle causing the accident? We do not think so. This is not a case where the driver of the offending vehicle did not possess any licence at all to drive any vehicle; neither is it a case where the driver of the offending vehicle did not possess an authorization (transport endorsement) to drive a heavy goods vehicle at all (which is the offending lorry in the instant case). This is a case where the authorization to drive such a transport vehicle had expired on 02.02.2012 and it was subsequently renewed on 02.06.2012 i.e., four months later. But on the date of the accident that is on 05.04.2012, he had not got his licence renewed. This is a case of a non-renewal of a licence and not a case of not possessing a licence to drive a heavy goods vehicle. A non-renewal of the licence is totally different from the case of non-possession of the licence or driving a vehicle on being disqualified. In the latter two cases, the Insurance Company may have to be exonerated of its liability if the aforesaid reasons had a nexus with the occurrence of the accident as that is precisely what has been stated in the defences of the insurer under Section 149(2) of the Act. But insofar as non-renewal of a licence is concerned or absence of a transport endorsement to drive a particular transport vehicle but otherwise having a licence to drive such a vehicle i.e., a non-transport vehicle, it cannot be equated to a case of non-possession of a licence or a case where a driver who was disqualified from driving the vehicle drove the same. It is only in the latter two cases where the insurer can avoid its liability.
26. In the said case also, the offending driver was holding a driving licence which was renewed. However, there was delay in getting the licence renewed as the application had been made more than 30 days after the expiry of the period of licence, the renewal was made from the date of application and not from the date of expiry of the licence. Therefore, the question considered was as to whether the owner of the vehicle had handed over the vehicle to a person who was not holding any lincence.
27. The Co-Ordinate Bench has held after referring to various judgments that even if there is no renewal endorsement, it cannot be said that the person driving the vehicle was not a licenced driver. It is not a case where the insured entrusted the vehicle to a person who does not hold a driving licence rather admittedly the driver to whom the vehicle was entrusted by the insured was having a valid driving licence duly granted by transport authority. Merely because of expiry of the period of licence and the omission of the driver to get the licence renewed, it cannot be said by any stretch of imagination that there is breach of condition of policy for which insurance company can be exonerated from the liability. The driver was authorized to drive a transport vehicle and the vehicle was entrusted by the insured to the licenced driver and, therefore, the insurance company cannot absolve itself from the liability. Therefore, it is clear that mere fact that the driver of the vehicle had not got his driving licence renewed on the date of the accident and got it renewed subsequently would not amount to breach of condition of the policy as it cannot be said that there was violation of the condition of the policy. Further, in view of the above findings, the Divison Bench also held that the question of ordering any recovery of the amount by the insurance company from the insurer did not arise.
31. But in the instant case, it is the Insurance Company who through RW1 has produced not only the copy of the insurance policy but also the driving licence extraction as Ex.D2. It is not in dispute that Ravi Kupaluru was the driver of the vehicle. Ex.D2 is the driving licence extract of Ravi Kupaluru, the driver of the vehicle. Therefore, the controversy in the instant case does not relate to discharge of the initial burden by the owner. The present case concerns the burden of proof and the discharge of the same cast on the Insurance Company. Since we have held that the defence as stated in Section 149 of the Act is not proved in the instant case, and in fact this case being one of non-renewal of licence and not a case of non- possession of a licence to drive the vehicle in question or the driver being disqualified to drive the vehicle, the liability ought to be fastened and is fastened on the Insurance Company. Therefore, Point No.1 is answered against the insurer and in favour of the claimants.”
12. The facts of the appeals i.e., MFA.No.103680/2015 c/w MFA.No.103681/2015, decided by the Division Bench and facts of the present case are similar. In the instant case also there is no dispute that the driver of the offending vehicle was possessing light motor vehicle licence, which is marked as Ex.R-3 valid from 08-7-2010 to 20-1-2012 and the same was subsequently renewed on 27-2-2013 and in the interregnum the accident had taken place on 27-10-2012. Therefore, following the above decision of the Division Bench, I am of the view that the appeals filed by the insurer are liable to be rejected. Accordingly, these appeals stands dismissed.
The amount in deposit in both the appeals be transmitted to the concerned Tribunal.
Sd/- JUDGE SMJ