IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE K.SOMASHEKAR M.F.A. NO.3159 OF 2015 (MV) BETWEEN:
THE ORIENTAL INSURANCE CO. LTD. BRANCH OFFICE: BADSHAH COMPLEX OPP. CLOCK TOWER, VIRAJPET THROUGH ITS BENGALURU REGIONAL OFFICE NO.144, SUBHARAM COMPLEX M G ROAD, BENGALURU - 560025 REPRESENTED BY ITS DEPUTY MANAGER.
... APPELLANT (BY SRI. S V HEGDE MULKHAND, ADVOCATE) AND:
1. G. HANUMANTHARAYA S/O GANGADHARAPPA AGED ABOUT 66 YEARS R/AT KARIYAPPAGOWDA EX MLA, KIRIJAJI FARM HUNSUR 571105 2. H R HARISH S/O. H RAMAIAH AGED ABOUT 34 YEARS R/O CHIRANGALA VILLAGE MADIKERI TALUK & DISTRICT - 571 201 3. H N RAMAIAH S/O NANJUNDA R/O CHIRANGALA VILLAGE MADIKERI TALUK & DISTRICT 571 201.
… RESPONDENTS (BY SMT. BHUSHANI KUMAR, ADV. FOR R1;
SRI. M. C. RAVI KUMAR, ADV. FOR R2 & R3) THIS MFA IS FILED UNDER SECTION U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:14.1.2015 PASSED IN MVC NO.1/2009 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, HUNSUR, MYSORE DISTRICT, AWARDING A COMPENSATION OF RS.1,95,900/- WITH INTERST @ 6% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION ETC.
THIS MFA IS COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for orders, with the consent of learned counsel for both parties, the matter is taken up for final disposal.
2. This appeal is preferred by the appellant – insurance company challenging the impugned judgment and award dated 14.01.2015, passed in MVC No.1/2009 by the Presiding Officer, Fast Track Court & Additional MACT, Hunsur, Mysuru District (‘the tribunal’ for short) awarding compensation in a sum of Rs.1,95,900/-. In the operative portion of the impugned judgment and award, the tribunal has ordered that the claimant – first respondent herein would be entitled to the interest at 6% p.a. The insurance company being aggrieved by the fastening of the liability by the tribunal has filed the present appeal. Therefore, the intervention of this Court is required in this appeal by re- appreciating the entire evidence on record and permitting the appellant to recover the compensation amount from the owner of the offending vehicle.
3. The factual matrix of the appeal is as under:
It is evident in the claim petition that on 25.08.2002, at about 09.00 p.m., when the claimant said to be the injured along with other were proceeding in Ambassador car from Suntikoppa towards Mysuru, at that time, while the car was proceeding near Chikkahadanahalli gate, even though the driver of the car was driving it on the left side of the road, at that time, two persons came on motor cycle bearing registration No.CTJ-1486 from Mysuru side in a rash and negligent manner and dashed the aforesaid car on the left side. Due to the impact, the claimant said to be the injured sustained injuries in the said accident, which are reflected in the wound certificate – Ex.P.3. Immediately he was taken to B.M.Hospital, Mysuru, where he took treatment as inpatient and also undergone surgery and necessary implants were inserted. The claimant said to be the injured has suffered pain and agony and also disability. Prior to the accident he was hale and healthy and was working as support officer in Vysya Bank and earning Rs.10,250/- p.m. Due to the injuries suffered by him in the accident, he is unable to work any kind of work. Therefore, the claimant filed the petition seeking compensation against the driver, owner and insurer of the offending motorcycle as jointly and severally.
4. In pursuance of issuance of notice on the respondents, respondent Nos.1 and 2, said to be the driver and owner of the motor cycle respectively, appeared through their counsel and resisted the claim petition by filing the objection statement. They contended that the accident was due to the rash and negligent driving on the part of the rider of the motorcycle, who has hit against the car. They have also contended that the claimant was a retired PSI who worked within the jurisdiction where the accident took place and hence, he has managed not to register any case against the driver of the car. They contended that the driver of the motor cycle was holding valid driving license and the motor cycle was having valid insurance with respondent No.3 – insurer. They have also filed additional objections contending that the case is a false one and misguided the police at the behest of the claimant. Hence, they sought for dismissal of the claim petition.
5. The insurance company also filed objections denying the existence and validity of the policy issued to the motorcycle which involved in the accident, but the policy produced by the owner of the offending vehicle is for the period from 21.11.2002 to 20.11.2003. The accident has taken place on 25.08.2002 as per the FIR said to be recorded by the police as against the driver of the offending vehicle. Therefore, the respondents are not liable to indemnify the insured.
6. Based on the pleadings of the parties, the tribunal framed issues and gave its findings based on the evidence of PW1-claimant and one witness namely PW.2, said to be the doctor, who treated the injured. So also the documents as per Exs.P.1 to P.128 were marked on behalf of the claimant to prove his case. On the other hand, the respondents adduced evidence as RWs.1 and 2 and have produced three documents marked as Exs.R.1 to R.3. It is relevant to stated that the documents – Ex.P.3 – wound certificate, Ex.P.4 – spot mahazar, Ex.P.5 – sketch, Ex.P.6 – certificate dated 28.08.2002, Ex.P.7 – salary certificate of the injured, Exs.P.9 and P.10 – X-ray films and Exs.P.122, P.123 and P.126 to P.128, these are the vital documents produced by the claimant before the tribunal seeking suitable compensation. Subsequently, the tribunal on evaluation of the oral and documentary evidence put forth by claimant and the respondents, has awarded a total compensation in a sum of Rs.1,95,900/- with interest at 6% p.a. from the date of the petition till its realization and fastened the liability on the insurance company.
7. In this appeal, the appellant – insurer has urged his contention stating that the tribunal has fastened the liability to pay the compensation awarded in favour of the claimant said to be the injured, which is contrary to the principles laid down by the Hon’ble Supreme Court and also various other courts. The intervention of this Court is required to that extent. It is further contended that the tribunal has given erroneous findings which is contrary to the evidence on record, terms and conditions of the insurance policy of the offending vehicle involved in the accident, the mandate rules of Motor Vehicles’ Accident Act, 1988 and also Rule 3 of the Central Motor Vehicles’ Rules, 1999.
8. He has further relied on the judgment of this Court in M.F.A.No.5870/2009 D.D. on 16.04.2013, wherein it was held that the insurance company was exonerated from the liability to indemnify the owner of the vehicle. Therefore, he contends that the intervention is required in the impugned judgment and award passed by the tribunal and prays to set aside to the extent of saddling the liability on the insurance company by allowing this appeal.
9. Learned counsel for respondent Nos.2 and 3 herein said to be the driver and the owner of the motorcycle said to be the offending vehicle which involved in the accident, has taken me through the evidence of respondent No.1 said to be the claimant in order to substantiate their case by contending that at the relevant point of time of the accident, the driver was driving the motorcycle having valid license. When the motorcycle dashed the car, the petitioner lost his balance and fell down on the road and sustained injuries which are found in the wound certificate. This aspect requires consideration under this appeal as the tribunal has not appreciated from the material on record in proper perspective. Ex.R.1 and Ex.R.2 are the policies in respect of the vehicles involved in the accident and Ex.R.3 is the LLR which were produced in order to substantiate their case and to resist the claim petition filed by the petitioner. The tribunal has not appreciated the evidence on record and therefore, intervention is required for proper consideration on the ground the tribunal is just and proper in saddling the liability on the insurance company said to be the vehicle insurer, with whom the insurance of the offending vehicle ha been insured.
10. Learned counsel for respondent No.1 said to be the claimant – injured before the tribunal supported the judgment of the tribunal. He contends that the evidence of PW.1 is corroborative with the evidence of PW.2 being the doctor who provided treatment to the claimant and the injuries are mentioned in the wound certificate – ExP.3. The documents marked as Exs.P.122 and P.123 and Exs.P.126 to 128, being the X-ray films indicate the injuries suffered by the claimant. Even though he was subjected to X-rays and other treatment, the tribunal has awarded compensation only at Rs.1,95,900/- which is mentioned in the tabular column and does not call for any interference. The judgment and award of the tribunal is just and reasonable and does not call for any interference. Hence, he prays that the appeal may be dismissed.
11. Heard the arguments of the learned counsel for appellant and learned counsel for respondent Nos.1 to 3 said to be the injured, driver and the owner of the offending vehicle.
12. After going through the documentary evidence namely, Ex.P.1 – FIR, Ex.P.3 – wound certificate, Exs.P.4 and P.5 – spot mahazar and sketch respectively, Exs.P.122, P.123, P.126 to P.128 – X-ray films would indicate the injuries sustained by the claimant. It is worthwhile to disclose the averments made in the claim petition as well as the documents produced by the claimant. There is no doubt that the claimant was injured and he took treatment in B.M.Hospital, Mysuru, also undergone one surgery and necessary implants has been inserted and the same is indicated in the discharge summary. It is also proved that the claimant said to be the injured was working as supporting officer in Vysya Bank and earning in a sum of Rs.10,250/- per month. Due to the accident, he has lost the income and is finding difficulty to eek out his livelihood. Hence, after appreciating the oral and documentary evidence on record, the tribunal has awarded Rs.1,95,920/- with interest at 6% p.a. and fastening the liability on the insurer. The appellant has taken the contention that the tribunal has recorded the finding contrary to the evidence on record and so also contrary to the terms and conditions of the policy issued and mandate provisions of Motor Vehicles’ Act, 1988 and Rule 3 of Central Motor Vehicle Rules, 1989. However, the concept of pay and recovery is always there as per the judgment rendered by the Hon’ble Supreme Court in the case of Pappu & Others Vs. Vinod Kumar Lamba & Another reported in AIR 2018 SC 592.
13. Keeping in view the submission of the learned counsel for the appellant so also Section 149 of the M.V.Act with regard to the insurer’s liability, the accident has occurred due to rash and negligent driving of the motorcycle and the insurance company taking plea that the driver had not possessed a valid license would not per se make insurance company liable. However, the insurance company was directed to pay the compensation amount to claimant in first instance and later, recover the same from the owner of the car. In the case of National Insurance Co. Ltd. Vs. Swaran Singh & Ors reported in AIR 2004 SC 1531, the Hon’ble Supreme Court while dealing with Section 3 of the M.V. Act and definition of sub-section (2) of Section 10 of the M.V. Act, has held that even though the driver of the offending vehicle was not in possession of a valid and effective driving licence, has held the Insurance Company liable to pay the compensation but did not interfere with the award but directed the insurance company to recover the amount from the owner. Therefore, in the present case also, it is made clear that the concept of pay and recovery is always there and the insurance company is liable to pay the compensation amount at the first instance and also at liberty to recover the same from the owner of the offending vehicle at the second instance.
14. Accordingly, in the facts and circumstances, the appeal is allowed in part. The judgment and award of the tribunal in MFA.No.3159/2015 is hereby modified to that extent.
Office is directed to transmit the amount in deposit if any, to the tribunal in MVC.No.1/2009 forthwith and draw the decree accordingly.
Sd/- JUDGE nvj