IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JULY, 2019 BEFORE THE HON' BLE MR. JUSTICE K.SOMASHEKAR MFA NO.6488 OF 2010 (WC) BETWEEN UNITED INDIA INSURANCE COMPANY LIMITED REGIONAL OFFICE 5TH AND 6TH FLOORS KRISHI BHAVAN NRUPATHUNGA ROAD BENGALURU – 560 009 REP. BY ITS MANAGER SMT. P. NAVAMANI ... APPELLANT (BY SRI. K. S. LAKSHMINARASAPPA, ADV. FOR SRI. B. C. SEETHARAMA RAO, ADV.) AND 1. SMT. JAYALAKSHMI AGED ABOUT 24 YEARS W/O LATE MALLESH 2. MISS. LIKITHA* AGED ABOUT 05 YEARS D/O LATE MALLESH 3. MASTER PREETHAM M @ PRAVEEN * AGED ABOUT 02 YEARS S/O LATE MALLESH * Corrected vide court order dated 29.11.2019.
4. SRI. DEVAKONDAPPA AGED ABOUT 57 YEARS S/O LATE CHIKKA MOOGAPPA 5. SMT. KARAGAMMA AGED ABOUT 50 YEARS W/O SRI. DEVAKONDAPPA SINCE R2 AND R3 ARE MINORS THEY ARE REP., BY THEIR NATURAL GUARDIAN/FIRST RESPONDENT.
ALL ARE R/O H-MANCHENAHALLI JIGANI HOBLI, ANEKAL TALUK BENGALURU DISTRICT 6. SMT. NAHEEDA KHANUM MAJOR, W/O MR. U. L. BABU R/AT NO.7, RAJIVGANDHI NAGAR, S. B. LAYOUT JIGANI HOBLI, NEAR S. N. HIGH SCHOOL ANEKAL TALUK BENGALURU DISTRICT (OWNER OF TEMPO NO.KA-51/1351) ... RESPONDENTS (BY SRI. K. T. GURUDEVA PRASAD, ADV. FOR R1 TO R3; SRI. A. S. GIRISH, ADV. FOR R4 AND R5;
V.O.D. 20.08.2013 NOTICE TO R6 IS HELD SUFFICENT) THIS MFA IS FILED U/S 30(1) OF WC ACT AGAINST THE JUDGMENT DATED 26.05.2010 PASSED IN CWC FC/CR/19/2008 THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB DIVISION-6, BENGALURU, AWARDING A COMPENSATION OF RS.4,30,560/- WITH INTEREST AT 12% P.A.
THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is directed against the order dated 26.05.2010 rendered by the Labour Officer and Workmen Compensation Commissioner, Sub-Division-6, Bangalore in Case No.CWC:FC:CR:19/2008.
2. It is stated in the claim petition that claimants are dependants of deceased Mallesh, aged 26 years, who died in the accident dated 21.07.2008 while driving Tempo No.KA.51/1351 belonging to the 6th respondent. They filed claim petition seeking compensation on account of death of said Mallesha. The same has been averred in the claim petition made by the claimants. Even after dispute, neither the claimants nor the owner of the vehicle gave details of the DL held by the deceased nor that the deceased had added peril to his life by indulging in driving a transport vehicle without holding any kind of licence.
3. Learned counsel for the appellant further contends that while making the insurance company liable to pay the compensation under a motor policy, the Commissioner has ignored Section 149 which disentitles the insured to claim indemnification of the Award. Further, the Commissioner has ignored the fact that the deceased is not a third party and he steps into the shoes of the owner of the vehicle while driving the goods vehicle. Section 5 of the Motor Vehicles Act mandates the owner to ensure that the vehicle is entrusted to a person possessing effective driving licence and Section 3 imposes obligation on the person engaged in driving to comply with the driving licence requirement. If these two requirements are not complied, the insurer cannot be made liable to indemnify the insured. The insured did not even furnish the details of the driving licence held by the driver at the time of accident while submitting claim form as per Ex.R2 and that the respondent did not produce the DL, if any, held by the deceased to drive a transport vehicle. Therefore, the Commissioner acted contrary to law in making the appellant liable to pay compensation assessed for the death of person who had engaged in driving a goods transport vehicle without possessing any kind of licence. Hence, sought for setting aside the impugned order passed by the Labour Officer and Workmen Compensation Commissioner.
4. Learned counsel for the respondents submit that the court below on appreciation of entire oral and documentary evidence available on record has passed the judgment awarding just and fair compensation and it does not call for interference of this Court. Therefore, there is no substance in the contention of learned counsel for appellant seeking intervention of the judgment rendered by the court below. Consequently, the appeal appears to be devoid of merits and dismiss the same by confirming the judgment and award of the court below.
5. Having regard to the strenuous contention as taken by the learned counsel for the appellant and countered by the learned counsel for respondents, the question raised in this appeal has already been answered by the Apex Court against the insurer.
The Hon’ble Supreme Court in Gurmail Singh v. Bajaj Allianz General Insurance Co. Ltd and another reported in 2019 ACJ 713 has held as under:
“Employee’s Compensation Act, 1923, Section 22 and Motor Vehicles Act, 1988, section 149(2)(a)(ii) – Motor insurance – Driving licence – Liability of insurance company – Pay and recover order – Insurance company disputes its liability on the ground that employee driver was not holding a licence at the time of accident – Statement of driver that he had lost his driving licence during the accident but he failed to produce duplicate copy of the same – whether insurance company is liable to satisfy the award and then recover the amount from the owner.”
In the above said decision the Hon’ble Apex Court has held that insurance company is liable to satisfy the award and then recover the amount from the owner.
Further, the Hon’ble Apex Court in National Insurance Co. Ltd vs. Challa Upendra Rao and others reported in (2004)8 SCC 517 held as under:
“Section 149(2)(a)(i)(a) – vehicle driven not covered by a permit to ply for hire or reward and held, plying of a vehicle without a permit is an infraction – therefore, in terms of the said provision, such defence is available to the insurer – High Court was of the view that since there was no permit, the question of violation of any condition thereof did not arise – Held, the view of the High Court is clearly fallacious – a person without a permit to ply a vehicle cannot be placed in a better position vis-à-vis one who has a permit, but has violated any condition thereof.”
In this judgment rendered by the Hon’ble Supreme Court, all the issues have been addressed in detail and also extensively with regard to pay and recovery concept.
In the above circumstances, no other ground having been urged, I have to proceed to pass the following:
ORDER Appeal is hereby dismissed. Consequently, the judgment and award rendered by the Labour Officer and Workmen Compensation Commissioner, Sub – Division -6, Bangalore is hereby confirmed. However, liberty is reserved to the insurer to execute this judgment by taking appropriate proceedings before the concerned Court on the principle of ‘pay and recover’ in the light of the judgment of the Hon’ble Apex in National Insurance Co.Ltd vs. Challa Upendra Rao (supra).
Further, keeping in view the submission made by learned counsel for respondents/claimants, the amount in deposit, with accrued interest, shall be disbursed in favour of the claimants, on proper identification, in terms of the award passed by the court below.
Sd/- JUDGE DKB