IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 2709 OF 2017 (MV) CONNECTED WITH MFA NO. 1246 OF 2017 (MV) MFA NO. 2709/2017 BETWEEN SRI RAJESH S/O NARAYANA AGED ABOUT 34 YEARS R/A 3 CENTS INDIRA NAGAR KOTE GRMA, KATAPADI UDUPI TALUK AND DISTRICT – 576101. ... APPELLANT (BY SRI. SRIKANTH. N.V. ADVOCATE FOR SRI . B.S. SACHIN – ADVOCATE) AND 1. NINGANNA GOWDA S/O SHIVANNA GOWDA AGED ABOUT 30 YEARS R/A THOGANA HALLI MANDARAGI TALUK GADAG DSITRICT-582101.
2. MOHAMMAD RAFIQ S/O LATE DOOLESAAB AGED ABOUT 41 YEARS R/A BEREBANDH OONI NEAR INDICA PUMP POLICE STATION HALEHUBLI – 580020.
3. THE ORIENTAL INSURANCE CO. LTD., REP. BY ITS DIVISIONAL MANAGER DIVISIONAL OFFICE, 3RD FLOOR VISHNU PRAKASH BUILDING COURT ROAD UDUPI-576101. ... RESPONDENTS (BY SRI. H. C. VRUSHABHENDRAIAH – ADVOCATE FOR R-3; NOTICE TO R-1 AND R-2 DISPENSED WITH VIDE COURT ORDER DATED 15.02.2019) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.12.2016 PASSED IN MVC NO. 1161/2011 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT AT UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
MFA NO. 1246/2017 BETWEEN THE ORIENTAL INSURANCE CO. LTD., REP. BY ITS DIVISIONAL MANAGER DIVISIONAL OFFICE, 3RD FLOOR VISHNUPRAKASH BUILDING COURT ROAD, UDUPI NOW REP. BY ITS REGIONAL MANAGER THE ORIENTAL INSURANCE CO LTD., REGIONAL OFFICE LAMINGTON ROAD SUMANGALA COMPLEX HUBLI-58020. … APPELLANT (BY SHRI H.C. VRUSHABHENDRAIAH, ADVOCATE) AND 1. S. RAJESH AGED ABOUT 34 YEARS S/O NARAYANA R/A 3 CENTS INDIRA NAGAR KOTE GRAMA, KATAPADI UDUPI TALUK AND DISTRICT – 576101 2. NINGANNA GOWDA (DRIVER OF THE LORRY) AGED ABOUT 24 YEARS S/O SHIVANNA GOWDA R/A THOGANA HALLI MANDARAGI TALUK GADAG DSITRICT-582101.
3. MOHAMMAD RAFIQ (R.C. OWNER OF LORRY) AGED ABOUT 35 YEARS S/O LATE DOOLESAAB R/A BEREBANDH OONI NEAR INDICA PUMP POLICE STATION HALEHUBLI – 580020.
… RESPONDENTS (BY SRI. SRIKANTH. N.V. –ADVOCATE FOR SRI. SACHIN .B.S. – ADVOCATE FOR C/R-1; NOTICE TO R-2 AND R-3 IS HELD SUFFICIENT) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.12.2016 PASSED IN MVC NO. 1161/2011 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT AT UDUPI, AWARDING COMPENSATION OF RS.1,46,507/- WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Since both the appeals arise out of the same judgment and award rendered by the Tribunal, they are heard together and are finally disposed of by this order.
2. The appeal in MFA.No.2709/2017 is filed by the claimant – appellant seeking enhancement of compensation and the appeal in MFA.No.1246/2017 has been filed by the appellant / Oriental Insurance Company Ltd. challenging the quantum of compensation awarded by the Tribunal as well as the liability. By its judgment dated 01.12.2016 in MVC No.1161/2011, the Tribunal had granted compensation in a sum of Rs.1,46,507/- to the claimant. Being not satisfied with the said compensation, the claimant has filed MFA No.2709/2017.
Further, the Tribunal by its judgment had held the owner of the offending vehicle as well as the insurer jointly and severally liable to pay the said compensation to the claimant. However, the appellant in MFA 1246/2017 – Insurance Company was to indemnify the owner of offending vehicle. The Insurance Company, aggrieved by the said finding, has filed the appeal in MFA No.1246/2017.
3. Heard the learned counsel for the claimant – appellant in MFA No.2709/2017 as well as the learned counsel for the appellant in MFA 1246/2017 – Oriental Insurance Company and perused the impugned judgment as well as the material on record.
4. The factual matrix is that on 14.03.2011 at about 8.00 p.m. on NH-17, Kalya Junction, Udupi, when the claimant was driving an autorickshaw bearing No.KA-20-B-2946 from Katpadi towards Kaup, a lorry bearing Regn. No.KA-25-B-2453 which had come from Padubidri towards Udupi in a rash and negligent manner and at a high speed, is said to have dashed the autorickshaw driven by the claimant head on, and is said to have caused the accident. Due to the said accident, the claimant is said to have suffered head injury and was immediately admitted to Adarsha Hospital, Udupi. He was an in-patient at the said hospital from 14.04.2011 upto 23.04.2011 and had incurred huge expenses towards the treatment. Hence, he filed a claim petition before the Tribunal seeking compensation for the injuries sustained in the road traffic accident.
5. Upon service of notice, the owner and driver of the offending lorry remained absent and were placed exparte. The appellant in MFA 1246/2017 - Insurance Company appeared through its counsel and filed written statement admitting the insurance policy in respect of the offending vehicle, but however subject to terms and conditions of the policy. It was contended that the driver of the offending vehicle did not have a valid driving licence at the time of the accident. Accordingly, the Insurance Company sought for dismissal of the claim petition filed by the claimant / appellant.
6. Based upon the pleadings of the parties, the Tribunal framed issues. Subsequently, the claimant got himself examined as PW.1 and got marked documents at Exhibits P1 to P9. The Insurance Company got examined its Officer as RW1 and got marked documents at Exhibits R1 and R2. Subsequently, on evaluating the entire oral and documentary evidence on record, the Tribunal awarded total compensation in a sum of Rs.1,46,507/- to the claimant. However, the Tribunal had held the owner of the offending vehicle as well as the insurer jointly and severally liable to pay the said compensation to the claimant. However, the appellant in MFA 1246/2017 – Insurance Company was to indemnify the owner of offending vehicle. It is this judgment which is under challenge in these appeals by the claimant as well as the Insurance Company, urging various grounds.
7. Learned counsel for the claimant - appellant in MFA No.2709/2017 contends that the Tribunal erred in fastening 50% of the liability on the owner of the offending vehicle, which is contrary to the law laid down by the Hon’ble Apex Court in a catena of judgments. Further, the Tribunal failed to note that merely because the driver who committed the accident has been charge sheeted for non-production of driving licence to the investigating authorities, it does not mean that the insurance company is not liable to pay the compensation. Further, he contends that the compensation awarded under various heads is on the lower side and the same has to be enhanced by intervening with the impugned judgment of the Tribunal. On all these grounds, learned counsel for the appellant seeks for enhancement of the compensation by allowing the appeal.
8. Per contra, learned counsel for the Insurer respondent in MFA 2709/2017 and the appellant in MFA 1246/2017 vehemently contends that the Tribunal has failed to appreciate the evidence adduced by RW-1 with regard to the non-possession of driving licence by the driver of the offending lorry. He further contends that as per the charge sheet, the driver of the offending vehicle did not have a valid driving licence to drive the vehicle and as such there is violation of policy conditions. He contends that the tribunal, on appreciation of the evidence and material on record has rightly granted compensation towards pain and suffering, medical bills, laid up period, which is just and fair compensation, which does not call for interference and prays for dismissal of the appeal filed by the claimant for enhancement.
9. The learned counsel for the insurer further contends that this is a case of “no valid and effective driving license” and therefore, the insurer cannot be held liable, since it touches the essential condition of contract of insurance. Hence, he contends that the appeal in MFA 1246/2017 filed by the Insurance Company may be allowed by directing the Insurance Company to pay the compensation awarded to the claimant and then they be provided liberty to recover it from the owner of the offending vehicle.
10. The learned counsel for the claimant also contends that the question raised in the appeal is no longer res integra, the same having been answered by the Apex Court against the insurer in the case of Pappu and Others Vs. Vinod Kumar Lamba and Another (AIR 2018 SC 592) wherein it is held that as under:
“S.149 – Insuser’s liability – Accident occurred due to rash and negligent driving of truck – insurer taking plea that driver of offending truck had no valid licence – except copy of driving licence of person, owner of offending truck not producing any evidence establishing that it was driven by authorised person having valid driving licence – fact that offending truck was duly insured – would not per se make insurance company liable – however, insurance company directed to pay award amount to claimants in first instance and in turn, recover same from owner of vehicle.”
11. On a careful evaluation of the material on record and in view of the contentions of the learned counsel for the claimant as well as Insurance Company, I find that the Tribunal on going through the oral and documentary evidence on record has held that the incident has occurred as pleaded by the claimant as a result of which he had suffered grievous injuries as is evident from the medical records. Accordingly, the Tribunal had awarded total compensation of Rs.1,46,507/- with interest @ 8% p.a. Further, it held that as per the charge sheet as the driver had no valid driving licence, for violation of policy condition, fastened the liability on the owner of the offending vehicle as well as the Insurance Company jointly and severally, but however the Insurance Company was to indemnify the owner of the offending vehicle.
12. The question as to the liability of the insurer in the absence of the driver of the offending vehicle possessing a “valid and effective driving license” has been answered by the Apex Court against the insurer and in favour of the claimant in the judgment referred to supra subject to the principle of “Pay and Recover”.
13. Hence, I find justification in the contention of the learned counsel. In view of the decision of the Apex Court in Pappu’s case (supra), the Insurer is required to pay the compensation awarded by the Tribunal and then would have to recover the same from the owner of the offending vehicle. Accordingly, I proceed to pass the following:
ORDER Appeals are allowed in part. The impugned judgment and award dated 01.12.2016 in MVC No.1161/2011 is modified, fastening the liability on the insurer namely, the Oriental Insurance Company Limited. The insurer is directed to deposit the compensation amount in the first instance, with liberty to recover the same from the owner of the offending lorry, in accordance with law.
Appellant - insurer shall deposit the compensation amount awarded by the Tribunal along with interest, before the tribunal within four weeks. The amount already deposited, shall be adjusted. The same shall be disbursed to the claimant as per the award, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest, apportionment and deposit is concerned, shall remain unaltered.
Amount in deposit if any in these appeals, shall be transmitted to the concerned tribunal forthwith.
There shall be no order as to the costs. Office to draw the decree accordingly.
SD/- JUDGE KS