IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL MISCELLANEOUS FIRST APPEAL NO.1003/2011 (MV) BETWEEN:
1. S.PUSHPA W/O LATE SHIVARAMAN AGED ABOUT 52 YEARS 2. PRIYANKA S.
D/O LATE SHIVARAMAN AGED ABOUT 30 YEARS BOTH ARE R/AT NO.K-68, 10TH CROSS LAKSHMI, NARAYANPURA BANGALORE – 560 021 …APPELLANTS (BY SRI SHRIPAD V. SHASTRI, ADVOCATE) AND:
1. THE ORIENTAL INSURANCE CO. LTD. D.O.IX, NO.5, MN PLAZA PATHI COMPLEX VATAL NAGARAJ ROAD OKALIPURAM BANGALORE – 560 021 BY ITS MANAGER 2. RAVI S.
S/O SANGAIAH NAIDU, MAJOR R/AT NO.65, LAKSHMANPURA GANDHINAGAR, NEAR KAVERI HOTEL BANGALORE – 560 099 …RESPONDENTS [(BY SRI T.K.VEDAMURTHY, ADVOCATE FOR R1 (ABSENT); R2-SERVED UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 12.08.2010 PASSED BY THE COURT OF XVIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT-4, BANGALORE IN MVC NO.3775/2009 AND SEEKING FOR ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T No representation for the respondents. Heard learned Counsel for the appellants. Accepting the reasons stated in the affidavit for raising additional grounds proposed IA No.1/2016 is allowed in the interest of justice. Appellants are permitted to raise additional grounds as prayed for.
2. This appeal of the claimants arises out of the impugned judgment and award dated 12.08.2010 passed by MACT and Court of Small Causes, Bangalore, SCCH-4 in MVC No.3775/2009. By the impugned award, the Tribunal has absolved respondent No.1-Insurer of its liability to indemnify damage to the claimants and awarded compensation of Rs.1,98,000/- payable by respondent No.2 the owner of offending vehicle for the death of Shivaraman in road traffic accident.
3. On 15.08.2008 at about 8.30 a.m. when Shivaraman was crossing MKK road, rider of motor cycle bearing No.KA-02-HA-3417 drove the said vehicle in rash and negligent manner and hit him. Injured Shivaraman was shifted to K.C.General Hospital from there to Nimhans hospital and then to Abhaya Hospital, Bangalore. On 22.08.2008 when he was under treatment in Abhaya Hospital, he succumbed to the injuries.
4. Appellants were claimants and respondent No.1 was the insurer and respondent No.2 was owner of the vehicle. Claimant No.1 is wife and claimant No.2 is daughter of Shivaraman.
5. For the purpose of convenience, parties will be referred to henceforth with their ranks before the Tribunal.
6. Respondent No.2 did not contest the petition.
Respondent No.1 contested the petition and denied the accident, age, injuries and income of the deceased.
Respondent No.1 further contended that the rider of the vehicle was not holding valid driving licence, thereby there was breach of policy condition, therefore, it is not liable to pay compensation.
7. Parties adduced evidence. On behalf of claimants PW.1 was examined and Exs.P1 to P7 were marked. On behalf of respondents, respondent No.1 examined Assistant RTO of Rajajinagar as RW.1 and Senior Assistant (Officer) as RW.2 and got marked Exs.R1 to R2.
8. The Tribunal after hearing the parties held that the accident occurred due to rash and negligent driving of the motor cycle by its rider and at the time of accident, victim was aged 61 years, assessed income at Rs.3,000/- applying 7 multiplier and awarded compensation of Rs.1,98,000/- as aforesaid.
9. The Tribunal further held that at the time of accident, rider of the vehicle was holding only learners licence which was valid from 07.07.2007 upto 06.01.2008 and as on the date of the accident i.e. 15.08.2008, he was not holding any licence, therefore, insurer is not liable and passed award against respondent No.2.
10. Claimants challenge to the said award in this appeal on the limited question of liability of the insurer.
11. Learned Counsel for the appellants-claimants submits that contractual obligations of the insurer and insured are between respondent Nos.1 and 2. He further submits that victim has to be indemnified and the insurer has to recover damages from the insured.
12. In support of his contention, he relies upon the judgment of the Supreme Court in National Insurance Co. Ltd. v. Swaran Singh [(2004) 3 SCC 297] and Pappu v. Vinod Kumar Lamba [(2018) 3 SCC 208].
13. The evidence on record shows that as on the date of accident, rider of the motor cycle was not having any driving licence. His learners licence also had expired few days before accident. However, whether on that ground, the insurer shall be relieved from its liability to the victims is the question.
14. In National Insurance Co. Ltd. v. Swaran Singh’s case referred to supra, the Hon’ble Supreme Court in this regard on reference has held as follows:
“110. The summary of our findings to the various issues as raised in these petitions is as follows:
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(vi) 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 the 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 would apply “the rule of main purpose” and the concept of “fundamental breach” to allow defences available to the insurer under Section 149(2) of the Act.
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(x) Where on adjudication of the claim under the Act the Tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the Tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the Tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. This certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal.”
(Emphasis Supplied) 15. The ratio laid down in National Insurance Co.
Ltd. vs. Swaran Singh’s case referred to supra was followed by the Hon’ble Supreme Court in Pappu’s case referred to supra.
16. In view of aforesaid Judgments of the Supreme Court, respondent No.1-insurer has to satisfy the award and recover the same from respondent No.2. The appeal succeeds to that extent. The award passed by MACT, Court of Small Causes, Bangalore, SCCH-4 in MVC No.3775/2009 on 12.08.2010 is hereby modified as follows:
Claimants are entitled to compensation of Rs.1,98,000/- with interest thereon at 6% per annum payable by Respondent No.1/Insurer from the date of petition till the date of deposit. Respondent No.1 shall pay the compensation within 6 weeks from the date of receipt of copy of this award and recover the same from respondent No.2.
The award with regard to apportionment of compensation and investment in fixed deposit is maintained.
Sd/- JUDGE KSR