IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 22ND DAY OF FEBRUARY, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ M.F.A. NO.11958 OF 2012 [MV] BETWEEN THE ORIENTAL INSURANCE CO. LTD, BASAVANAGUDI, BANGALORE-560 004.
THROUGH ITS REGIONAL OFFICE, LEO SHOPPING COMPLEX, #44/45, RESIDENCY ROAD, BANGALORE-560 025.
REP. BY ITS MANAGER SRI. K. GOVINDARAJAN. ... APPELLANT (BY SRI. K.S. LAKSHMINARASAPPA FOR SRI. B.C. SEETHARAMA RAO, ADVOCATES) AND 1. SRI. PODHU, AGED ABOUT 36 YEARS, S/O. AARJUN, 2. SMT. KAVITHA, AGED ABOUT 34 YEARS, W/O. SRI. PODHU, BOTH ARE RESIDING AT NO.74/E-135, G.D. MARA SLUM, BANNERGHATTA ROAD, BANGALORE.
3. *SRI. VENKATESH. E, MAJOR, S/O. VEERAPPA, RESIDING AT OLD NO.222, NEW NO.137, 6TH CROSS, SOMASUNDARAPALYA, AGARA POST, BANGALORE-560 034. ... RESPONDENTS (R-1 & R-2 SERVICE OF NOTICE IS HELD SUFFICIENT VIDE COURT ORDER DATED 18.12.2015, R-3 SERVED) *Corrected vide chamber order dated 16.11.2019.
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 03.07.2012 PASSED IN MVC NO.5614/2006 ON THE FILE OF THE XIII ADDITIONAL SMALL CAUSE JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE, AWARDING A COMPENSATION OF RS.1,80,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
* * * THIS MFA COMING ON FOR FINAL HEARING, THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The present appeal is filed by the Insurance Company challenging the judgment and award dated 03.07.2012 passed in MVC No.5614/2006 on the file of MACT, Court of Small Causes at Bengaluru, whereby the Tribunal awarded a total sum of Rs.1,80,000/- with interest at 6% per annum to the claimants- respondents, for the death of one Arvind, who died in a road traffic accident occurred on 27.07.2006, involving a Tata Sumo bearing registration No.KA-51-1100.
2. I have heard the learned counsel for the appellant – Insurance Company.
3. The brief facts of the case are that, on 27.07.2006 at about 3.45 p.m., deceased Arvind while crossing Bhannerghatta Road, near Shilpakala Mantapa, at that time, a Tata Sumo bearing registration No.KA-51-1100 driven by its driver in a rash and negligent manner, dashed against him, on account of which, he fell down and sustained grievous injuries and shifted to Victoria Hospital, but on the way to the hospital, he succumbed to the injuries.
4. The claimants being the parents of the deceased filed a claim petition in MVC No.5614/2016 claiming a total compensation of Rs.5 Lakhs.
5. The Tribunal by its judgment and award dated 17.08.2007 was pleased to award a compensation of Rs.1 Lakh to the claimants, however held that the owner of the offending vehicle alone is liable to pay the compensation, on the ground that the driver of the offending vehicle was possessing a driving license to drive a light motor vehicle as on the date of the accident and not the type of vehicle which was involved in the accident.
6. Aggrieved by the aforesaid judgment and award passed by the Tribunal, the claimants preferred MFA No.15288/2007 before this Court. This Court vide judgment dated 17.06.2011 was pleased to remit the matter to the Tribunal to decide upon the question of liability as well as the quantum of compensation.
7. On remittal, the Tribunal by its judgment and award dated 03.07.2012 awarded a total compensation of Rs.1,80,000/- together with interest at 6% per annum and held that the Respondents No.1 and 2 are jointly and severally liable to pay the compensation and the compensation shall be paid or deposited by Respondent No.1 – Insurance Company at the first instance with liberty to recover the same from the Insured at the appropriate stage in accordance with law.
8. Assailing the impugned judgment and order passed by the Tribunal, the learned counsel for the appellant would vehemently contend that the claimants have utterly failed to prove that the driver of the offending vehicle was holding a valid driving license to drive the said vehicle and therefore submits that the Tribunal has committed a grave error in directing the insurer to pay the compensation and then to recover from the insured. It is contended that the Tribunal ought to have dismissed the claim petition. It is also contended that enhancement in compensation without there being any change of circumstances is also not proper and accordingly the learned counsel seeks to allow the appeal.
10. The claimants are the parents of the deceased by name Arvind, aged about 8 years, who died in the accident owing to the rash and negligent driving by the driver of the Tata sumo on 27.07.2006. The involvement of Tata Sumo bearing registration No.KA-51-1100 in causing the accident and the actionable negligence on the part of its driver is not in dispute. It is also not in dispute that the said vehicle was insured with the appellant-Insurance Company.
11. It is the contention of the learned counsel for the appellant that the driver of Tata Sumo which caused the accident was not holding any valid driving license. The Tribunal has held that the deceased died due to the actionable negligence on the part of the driver of Tata Sumo bearing registration No.KA-51- 1100. The Tribunal in the first instance, while disposing of the claim petition, directed the owner of the vehicle to pay the compensation by dismissing the claim petition against the Insurance Company. This Court while remanding the appeal filed by the claimants, observed that one more opportunity could be given to the claimants to prove that the driver of the offending vehicle had a valid driving license. The matter was remitted to the Tribunal to decide upon the liability as well as the compensation.
12. It is borne out from the record that the Insurer had examined RW-1 – an Officer of the Insurance Company. Ex.R-1 and R-2 were produced and marked through RW-1. Ex.R-1 is the insurance policy and Ex.R-2 is the Driving License Extract. The same goes to show that the driver of the offending vehicle was holding a license to drive a LMV (Light Motor Vehicle). Therefore, the contention of the learned counsel for the appellant that the driver had no valid driving license cannot be accepted in view of the said documents produced and marked through RW-1.
13. The Hon’ble Apex Court in the case of Pappu and others vs. Vinod Kumar reported in (2018) 3 SCC 208 has held that, “providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object”.
It is also held 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”.
14. In the instant case, the Insurance Company has failed to establish that there is a breach of condition of the policy. Ex.R-2 produced by the appellant itself shows that the driver of the offending vehicle was holding a driving license to drive an LMV. The vehicle involved is a Tata Sumo. Even if it is construed as the said vehicle is a transport vehicle, according to the decision of the Hon’ble Supreme Court in the case of Mukund Dewangan vs. Oriental Insurance Company Limited reported in 2017 ACJ 2011, no separate Endorsement is required to drive a transport vehicle of that category. The said position of law is not disputed. In that view of the matter, the Insurer alone is liable to pay the compensation.
15. The learned counsel for the appellant would contend that the Tribunal has awarded a compensation of Rs.1,80,000/- for the death of a boy aged about 8 years without any basis and the same in excessive, since, in the first instance a sum of Rs.1 lakh was awarded.
16. The Tribunal while calculating the quantum of compensation, has relied upon the decision of the Hon’ble Apex Court in the case of New India Assurance Company Limited vs Satendrer and others reported in AIR 2007 SCC 324, wherein the Hon’ble Apex Court awarded a sum of Rs.1,80,000/- with interest at 7.5% per annum in a similar circumstance. Hence, I do not see any error in the judgment and award passed by the tribunal in awarding a compensation of Rs.1,80,000/- in the instant case. Accordingly, I pass the following:
ORDER The appeal is dismissed.
The Insurer-appellant is liable to pay the entire compensation to the claimants-respondents herein.
The compensation amount awarded shall be deposited within a period of four weeks from the date of receipt of the copy of this judgment.
The amount in deposit be transmitted to the Tribunal.
Snc Sd/- JUDGE