IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 8727 OF 2010 (MV) BETWEEN United India Insurance Company Limited DO-III, Bangalore – 25 Through its Regional Office 5th and 6th Floors, Krishi Bhavan Nrupathunga Road Hudson Circle Bangalore – 560001 Rep. by its Manager Smt. Navamani.
... Appellant (By Sri. S Krishna Kishore - Advocate for Appellant) AND 1. Smt. Lakshmamma Aged about 50 years W/o G. Srinivasa Residing at No. 13 12th Cross, Wilson Garden Sunakalapura Road Adugodi Post Bangalore – 30.
2. Sri Aswatha M Major S/o Muniswamappa No. 309, 10th Cross Wilson Garden, Bangalore.
... Respondents (By Sri. Shripad V Shastri – Advocate for R-1; R-2 served) This MFA is filed under Section 173(1) Of MV Act against the judgment and award dated 03.07.2010 passed in MVC No. 9947/2008 on the file of Member, MACT & XI Additional Judge, Court of Small Causes, Member, MACT, Bangalore, awarding a compensation of Rs. 1,94,000/- with interest at 6% p.a. from the date of petition till payment.
This MFA coming on for hearing this day, the court delivered the following:
JUDGMENT Heard the learned counsel for the appellant – Insurance Company and the learned counsel for the Respondent No.1 and perused the records. Respondent No.2 – owner is served but remains unrepresented.
2. The insurance company has preferred this appeal, challenging the liability fastened on it by the Tribunal in MVC No.9947/2008 by its impugned judgment dated 03.07.2010.
3. The factual matrix is that on 17.12.2008 at about 8.30 a.m. when the claimant – injured was crossing the road on K.H. Road near BMTC Junction, at that time a Milk Tempo bearing No.KA-27-4581 driven by its driver at very high speed in a rash and negligent manner coming from Dalal Junction side, had dashed against the claimant and caused the accident. As a result, she suffered grievous injuries and was treated as an in-patient in hospital. Since she incurred huge medical expenses for the treatment, she filed a claim petition before the Tribunal seeking compensation.
4. After service of notice, the owner of the offending vehicle as well as the insurer did appear and filed their written statement and contested the claim petition. During the enquiry before the tribunal, the claimant had established the occurrence of the accident, actionable negligence on the part of the driver of the offending vehicle and its insurance coverage with the appellant herein.
5. The tribunal, after evaluation of the oral and documentary evidence has held that the accident had occurred due to rash and negligence of the offending vehicle. Taking the income of the injured at Rs.3,000/- p.m. the Tribunal awarded total compensation of Rs.1,94,000/- with interest at 6% per annum from the date of petition till the date of payment and held the Insurer liable to pay the compensation. It is this liability fastened on the Insurance Company which is questioned in this appeal.
6. The learned counsel for the appellant – Insurance Company vehemently contends that the tribunal has erred in fastening the liability on the Insurer, in spite of the fact that Exhibits R1 and R2 marked before the Tribunal established the fact that the driver of the offending Milk Tempo did not possess a valid driving licence; in that, he had a licence to drive LMV-NT and PSV Badge to drive motor cab only and did not possess the required transport endorsement, which is a must to drive the milk tanker.
The learned counsel contends that in order to drive a transport vehicle, the driver should possess a valid and effective driving licence with proper transport endorsement. However, the driver had licence to drive only light motor vehicle as on the date of the accident. Hence, the learned counsel contends that the Tribunal has erred in fastening the liability on the Insurer. In support of his contention, the learned counsel places reliance on a recent judgment of the Apex Court rendered on 01.07.2019 in Civil Appeal No.5123/2019 in the case of Parminder Singh vs. New India Assurance Company Ltd., pertaining to invalid driving licence. The relevant portion of the said judgment reads as under:
“7. On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. 7.1. This Court in Shamanna & Ors. V. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.4 4 (2018) 9 SCC 650.”
(emphasis supplied) Hence, the learned counsel for the Insurer seeks for an appropriate direction from this court with regard to ‘pay and recover.’ 7. The learned counsel appearing for the injured – Respondent No.1 as well does not dispute this position and hence concedes for an order directing the insurance Company to first pay the compensation to the claimant and then recover it from the owner of the offending vehicle.
8. Having regard to the contentions put forth by the learned counsel for both the parties and on going through the material on record, I find that there is no dispute about the accident that occurred on 17.12.2008 and the injuries sustained by the first respondent in the said accident. There is also no dispute as regards the compensation awarded by the Tribunal in this regard in the claim petition filed by the injured. The issue in this appeal is as regards the liability fastened on the Insurer solely, to pay the compensation.
Since it is proved that the driver of the insured offending Milk Tempo did not have a valid and effective driving licence with proper transport endorsement and had licence to drive only light motor vehicle as on the date of the accident, in view of the decision of the Apex Court in the case of Parminder Singh vs. New India Assurance Company Ltd. in Civil Appeal No.5123/2019, it is just and proper to direct the Insurance Company to pay the compensation to the claimant in the first instance and then grant liberty to the Insurer to recover it from the owner of the offending vehicle.
Accordingly, I proceed to pass the following:
ORDER The appeal is allowed in part. The impugned judgment and award dated 03.07.2010 passed by the Tribunal in MVC No.9947/2008 is hereby modified. Though there is no enhancement in the compensation granted by the Tribunal, the Insurer – United India Insurance Co. Ltd. is directed to deposit the entire compensation of Rs.1,94,000/- awarded by the Tribunal along with interest at 6% from the date of petition till the date of payment at the first instance and thereafter they are granted liberty to recover the compensation so paid to the claimant - injured, from the owner of the offending milk tanker, in view of the judgment in Parminder Singh (supra).
The amount in deposit in this appeal shall be transmitted to the concerned Tribunal forthwith. On such deposit, the same shall be disbursed to the claimant in terms of the award, on proper identification.
Office to draw the decree accordingly.
Sd/- JUDGE KS