IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 3556 OF 2013 (MV) BETWEEN SRI SHANKARAPPA SON OF M. MUNIYAPPA AGED 46 YEARS R/AT NO:3850, 32ND CROSS BANASHANKARI 2ND STAGE BANGALORE – 560 070.
... APPELLANT (BY SRI. K. VENKATEGOWDA - ADVOCATE) AND 1. NINGEGOWDA S/O CHANNEGOWDA MAJOR, R/A NO:46 UJJANICHANNANADODDI MANDYA DISTRICT AND TALUK-571401.
2. THE LEGAL MANAGER SHRIRAM GENERAL INSURANCE COMPANY LTD., S5, 2ND FLOOR MONARCH CHAMBER INFANTRY ROAD BANGALORE – 560 001.
... RESPONDENTS (BY SRI. B. PRADEEP – ADVOCATE FOR R-2; R-1 SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.01.2013 PASSED IN MVC NO. 3158/2011 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE AND XXVIII ACMM, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimant has preferred this appeal aggrieved by the impugned judgment and award dated 29.01.2013 in MVC No.3158/2011 of the Tribunal fastening the liability on the owner of the offending vehicle solely to pay the compensation of Rs.35,000/- with interest at 6% p.a. from the date of petition till the date of deposit.
2. Heard the learned counsel for the claimant – appellant as well as the learned counsel for the second respondent – Shriram General Insurance Company Ltd.
and perused the impugned judgment as well as the material on record.
3. The factual matrix is that on 2.5.2011 at about 3.30 p.m. when the appellant was proceeding in his car bearing No.CAY 1213 on Bangalore-Mysore road, near Petrol Bunk, Bidadi Hobli, a Canter bearing Regn.No.KA-09-6807 had come at a high speed from behind and dashed the car of the appellant and caused the accident. Due to the impact, the appellant’s car was completely damaged beyond repair, in respect of which an estimate was issued by Maruthi service station stating that Rs.1,59,570/- ought to be spent towards repair. Hence, he preferred a claim petition before the Tribunal seeking compensation for the damage of his vehicle.
4. Upon service of notice, the owner of the offending canter remained absent and was placed exparte. The 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.
5. 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 P15. 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.35,000/- with interest at 6% p.a. to the claimant for the damage to the car. However, the Tribunal had held the owner to pay the said compensation to the claimant. It is this judgment which is under challenge in this appeal by the claimant seeking to fix the liability on the insurer as well.
6. Learned counsel for the claimant – appellant 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 – Insurer’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.”
7. Per contra, learned counsel for the Insurer contends that the Tribunal taking into consideration the fact that the driver of the offending canter did not possess a valid and effective driving licence as on the date of the accident, has rightly fastened the liability on the owner, which does not call for interference and prays for dismissal of the appeal.
8. 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 accident has occurred as pleaded by the claimant as a result of which his car had been damaged beyond repair. Accordingly, the Tribunal has awarded total compensation of Rs.35,000/- with interest @ 6% p.a.
9. 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”.
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 Appeal is allowed in part. The impugned judgment and award dated 29.01.2013 in MVC No.3158/2011 is modified, fastening the liability on the insurer namely, the Shriram General Insurance Company Limited. The second respondent - insurer is directed to deposit the compensation amount in the first instance, with liberty to recover the same from the owner of the offending canter, as laid down in Pappu’s case.
Appellant - insurer shall deposit the compensation amount awarded by the Tribunal along with interest, before the tribunal within four weeks from the date of receipt of a copy of this order. The same shall be disbursed to the claimant in terms of the award, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest shall remain unaltered.
Office to draw the decree accordingly.
Sd/- JUDGE KS