IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR M.F.A. NO.2974 OF 2016 (MV) BETWEEN Smt. Thangamani W/o. S. Inbanathan, Aged about 38 years, Residing at 6th Cross, Munivenkatappa Compound, Near KDA Office, Robertsonpet, K G F Kolar District – 563122. ... Appellant (By Sri. Suresh .M., Advocate.) AND 1. Venkatesh . P S/o Pullaiah, No. 909, 1st Block, Andra Line, Oorgaum Post, K G F. Kolar District – 563122 2. Shriram General insurance Co Ltd., Regional Office, No. 5/4, 3rd Floor, S.V. Arcade, Bilekalli Main Road, Opp: B.G. Road, IIM Post, Bangalore – 560 076. ... Respondents (By Sri. T. M. Venkata Reddy, Advocate for R-1 Sri. A.N. Krishnaswamy, Advocate for R-2) This MFA is filed under Sec. 173(1) of MV Act against the judgment and award dated 17.10.2015 passed in MVC No. 107/14 on the file of the 3rd Additional District and Sessions Judge, Kolar, (sitting at KGF), and Member, MACT, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This Appeal coming on for admission, this day, the Court delivered the following:
JUDGMENT This appeal though listed for admission, with the consent of the learned counsel for both the parties is taken up for hearing and is heard and disposed of by this judgment.
2. This appeal is preferred by the appellant challenging the judgment and award dated 17.10.2015 passed by the III Addl. District & Sessions Judge, Kolar in MVC No.107/2014, whereby the Tribunal had awarded compensation in a sum of Rs.76,000/- with interest at 9% from the date of petition till realization.
3. Heard the learned counsel for the appellant and the learned counsel for the respondents.
4. The factual matrix of the appeal is that on 8.11.2012 when the appellant / petitioner was proceeding in an autorickshaw bearing No.KA-08-4512 at about 2.00 p.m. when the said vehicle reached near BEML Nagar Police Station, the driver of the aforesaid autorickshaw drove it in high speed in a rash and negligent manner and dashed to a tree, as a result of which the appellant fell down and sustained grievous injuries. Immediately, she was shifted to BEML Medical Centre and then to R.L. Jalappa Hospital, Kolar where she took treatment as an in-patient from 8.11.2012 to 12.11.2012 and also was under follow up treatment. It is stated that she had incurred huge expenditure for the treatment which she could not cope up with due to her poor economic condition and also had undergone a lot of physical and mental agony. Hence, she filed a claim petition before the Tribunal seeking compensation.
5. On receipt of notice, the first respondent appeared and filed objection denying the petition averments. It was contended that the said autorickshaw being the offending vehicle, was duly insured with Respondent No.2 and as such, Respondent No.2 was liable to pay the compensation as sought for. He had further denied that the said accident took place due to the rash and negligence of the driver of the autorickshaw. Therefore, the first respondent had requested to dismiss the petition filed by the petitioner.
6. Respondent No.2 Insurance Company as well appeared and filed his objection in detail admitting the insurance policy issued to the offending vehicle but that the liability is subject to terms and conditions of the policy. He further contended that the driver of the autorickshaw had no valid and effective driving licence to drive it and thereby there is violation of policy condition and therefore, the Insurance Company was not liable to pay compensation. On all these grounds urged in the statement of objections, the Insurance Company sought for dismissal of the petition filed by the appellant / petitioner for compensation.
7. The Tribunal, after evaluating the oral and documentary evidence held that the accident had occurred due to rash and negligence of the driver of the offending vehicle but held that the vehicle involved in the accident is a passenger transport commercial vehicle and the driver had licence to drive only LMV (NT) and hence was not competent to drive the offending vehicle. There being violation of policy condition, the Tribunal held that the Insurer was not liable to indemnify the insured. Hence, the Tribunal proceeded to award compensation of Rs.76,000/- with interest at 9% per annum from the date of petition till the date of realization and directed Respondent No.1 – owner of the offending vehicle, to pay the said compensation. Aggrieved by the said order, the petitioner / appellant has filed this appeal seeking for enhancement of compensation and with a further prayer that the liability be fastened on the Insurance Company.
8. Learned counsel for the appellant contends that the Court below erred in absolving the second respondent – insurer of its liability on the ground that driver of the vehicle involved in the accident had no valid and effective driving license i.e., he had driving license to drive LMV without transport endorsement. This finding of the Tribunal is contrary to law declared by the Hon’ble Apex Court. He further contends that the Court below ought to have directed the second respondent – Insurance company at the first instance to pay compensation awarded to the third party victim and thereafter should have given liberty to the insurer to recover the compensation so paid from the insured- owner. This settled principle of law is applied by the Supreme Court in the similar facts of the case. The Tribunal has misread these decisions and held that the owner of the vehicle alone was liable to pay the compensation.
In support of his contention learned counsel for the appellants has relied on a decision of the Apex Court in the case of MUKUND DEWANGAN VS. ORIENTAL INSURANCE CO.LTD., ((2017) 14 SCC 663) wherein it is held that the absence of transport endorsement per se cannot be a ground to absolve the insurer from the award liability and the MACT could not have let the insurer go free even in the absence of transport endorsement on the driving license of the driver of the offending vehicle.
9. Learned counsel for the respondent-insurer contends that the policy condition is violated by the owner and the liability of insurer does not arise and the Tribunal has rightly fastened the liability on the owner of the vehicle. Therefore, in this appeal it does not call for any interference of the judgment and award passed by the Court below.
10. Having heard the learned counsel for the parties as stated supra, it is relevant to refer to the judgment rendered in MUKUND DEWANGAN VS. ORIENTAL INSURANCE CO.LTD., (2017) 14 SCC 663 wherein Hon’ble Apex Court has answered the question against the insurer in favour of the claimant holding that the insurer cannot avoid liability only on the ground of absence of Transport Endorsement. Therefore, the issue is no more res integra. Following the judgment passed in the Mukund Dewangan as stated supra, this appeal also stands disposed of. The judgment and award passed by the Tribunal in MVC No.107/2014 is modified insofar as it relates to fastening of the liability on the owner of the offending vehicle. The liability saddled on the owner of the offending vehicle is set aside and entire liability is fastened on second respondent – Shriram General Insurance Company Ltd.
With the above observations, the appeal is partly allowed. Respondent No.2 – Insurance company is directed to deposit the award amount of Rs.76,000/- with accrued interest at 9% within a period of four weeks from the date of receipt of copy of this judgment, before the Tribunal. The same shall be disbursed to the claimant in terms of the award passed by the Tribunal.
SD/- JUDGE KS