IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD M.F.A.No.8341 OF 2011(MV) BETWEEN:
Reliance General Insurance Company Limited II Floor 11th Main 3rd Block Jayanagar now at No.28 5th Floor East Wing, Centenary Building, M G Road Bangalore -560 001 By Deputy Manager (claims) ... Appellant (By Sri.H.S.Lingaraj, Advocate) And 1. Manjunatha Aged 31 years S/o Kempanna Benganahalli, Somapura Hobli Nelamangala Taluk Bangalore Rural District.
2. Chandrashekar, Major S/o Kariyanna No.71, Bidaluru, Kalghatta P.O. Nelamangala Taluk Bangalore Rural District . ... Respondents (By Sri. R.Chandrashekar, Advocate for Lawyers Net for R1:
R2 is Served but unrepresented) This MFA is filed u/s 173(1) of MV act against the judgment and award dated:16.03.2011 passed in MVC No.6762/2008 on the file of the XIII Additional Small Cause Judge, Member MACT, Court of Small Causes, Bangalore, awarding a compensation of Rs.2,27,600/- with interest @ 6% P.A. from the date of petition till deposit in the Tribunal.
This MFA coming on for hearing, this day, this Court, delivered the following:
J U D G M E N T The Insurance Company has filed this appeal challenging the judgment and award dated 16.03.2011 passed by the MACT, Bangalore (SCCH:15), whereby the Tribunal has awarded a compensation of Rs.2,27,600/- with 6% interest p.a. from the date of petition till the date of deposit.
2. The brief facts of the case are that on 06.04.2008 at about 8.40 p.m. claimant was a passenger of the auto rickshaw bearing No.KA-52-851. When the auto was parked on the left side of the Honenahalli Thandya, Shivaganga Road, Nelamangala Taluk, at that time another auto rickshaw bearing No.KA- 52/2725 being driven by its driver in a rash and negligent manner dashed against the auto. Due to the impact, claimant sustained grievous injuries. Immediately after the accident claimant was shifted to Manipal North Side Hospital, Bangalore wherein he underwent surgery. After recovering from the injuries the claimant has filed a petition before the MACT in MVC No.6762/2008.
3. To establish his case, claimant has examined three witnesses and got marked 15 documents. On the other hand, Insurance Company has examined one witness and got marked three documents. On appreciation of the oral and documentary evidence, the Tribunal has passed the award and granted compensation of Rs.2,27,600/- together with interest at 6% p.a. from the date of petition till the date of deposit. Being aggrieved by the same the Insurance Company has filed this appeal.
4. Sri H.S.Lingaraj, learned counsel for the appellant firstly submits that as on the date of the accident the driver of the auto rickshaw bearing No.KA-52/2725 was not having a valid driving licence.
5. Secondly, learned counsel submits that the vehicle involved in the accident has permit within the jurisdiction of Nelamangala Town, but the accident has taken place in Shivaganga road beyond the jurisdiction of permit.
6. Thirdly, he submits that the quantum awarded by the Tribunal is on the higher side.
7. Per contra, Sri R.Chandrashekar, learned counsel for the respondent submits that in respect of the driving licence is concerned, the Hon’ble Supreme Court in the case of PAPPU AND OTHERS vs. VINOD KUMAR LAMBA AND ANOTHER reported in AIR 2018 SC 592 has held that the Insurance Company is liable to pay the compensation and can recover the same from the insured. He has also relied on the judgment of the Hon’ble Supreme Court in the case of AMRIT PAUL SINGH AND ANOTHER vs. TATA AIG GENERAL INSURANCE COMPANY LIMITED AND OTHERS reported in (2018) 7 SCC 558 to contend that if no documents have been placed on record to show that there is a valid permit, then the Insurance Company is not liable to pay the compensation but it has to pay and has a right to recover the same from the insured.
8. Heard learned counsel for the parties and perused the records.
9. As regards the first contention raised by the learned counsel for the appellant that as on the date of the accident i.e., on 06.04.2008 driver of the auto rickshaw bearing No.KA-
52/2725 was not having a valid driving licence, the Hon’ble Apex Court in the case of PAPPU (supra) has held as under:
“15. In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.”
10. In view of the above, the Insurance Company is liable to pay the compensation with a right to recover the same from the insured.
11. As regards the second contention raised by the learned counsel for the appellant regarding the violation of route permit, the same has been considered by the Hon’ble Apex Court in the case of AMRIT PAUL SINGH (supra) as under:
“24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakshmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh and other cases pertaining to pay and recover principle.”
12. As regards the quantum of compensation is concerned, the Tribunal has rightly granted compensation of Rs.2,27,600/- with 6% interest p.a. and it does not require any enhancement.
13. Having regard to the above, the appeal is dismissed with a direction to the appellant - Insurance Company to deposit the amount with liberty to recover the amount from the owner of the vehicle in accordance with law.
The Insurance Company is directed to deposit the amount, if it is not deposited as per the directions of the Tribunal, within six weeks from today. The Tribunal is directed to disburse the amount to the claimant after due verification.
Cm/-
Sd/- JUDGE