IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF JULY 2017 PRESENT THE HON’BLE MR. JUSTICE H.G.RAMESH AND THE HON’BLE MRS. JUSTICE K.S.MUDAGAL MISCELLANEOUS FIRST APPEAL NOS. 3697/2015 C/W 4811,6326 & 6327/2015 (MV-D) M.F.A NO.3697/2015:
BETWEEN :
SMT. VIJAYAKUMARI.R W/O SHASHIKUMAR.G.V AGED ABOUT 57 YEARS RESIDING AT NO.201, 3RD FLOOR NANDAGOKULA APARTMENTS SANKEY ROAD BENGALURU-560 003 ...APPELLANT (BY SRI D.L.N.RAO, SENIOR COUNSEL FOR SRI RAJASHEKAR.K, ADVOCATE) AND :
1. SMT.KALPANA W/O JAYASHANKAR AGED ABOUT 44 YEARS 2. JAYASHANKAR S/O LATE PARAMSHIVA.S.L AGED ABOUT 54 YEARS 3. KUMARI.BHAVYA D/O JAYASHANKAR AGED ABOUT 24 YEARS ALL ARE RESIDING AT NO.260 KODIGENAHLLI (V) AND (P) DODDABALLAPUR TALUK BENGALURU RURAL DIST.
PIN-561 203 4. THE UNITED INDIA INSURANCE COMPANY LTD., SHANKANARAYAN BUILDING, M.G.ROAD BENGALURU-560 001 ...RESPONDENTS (BY SRI K.NARAYANA, ADVOCATE FOR R1 TO R3 SRI R.RAJAGOPALAN, ADVOCATE FOR R4) THIS MFA IS FILED UNDER SECTION 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:03.03.2015 PASSED IN MVC NO.2715/2013 ON THE FILE OF THE XIII ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU, AWARDING COMPENSATION OF RS.26,30,000/- WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
M.F.A NO.4811/2015:
BETWEEN :
1. SMT. KALPANA AGED ABOUT 45 YEARS W/O SRI JAYASHANKAR 2. SRI JAYASHANKAR AGED ABOUT 54 YEARS S/O LATE PARAMASHIVA.S.L 3. MS.BHAVYA, AGED 24 YEARS D/O JAYASHNAKAR ALL OF THEM R/AT NO.260 KODIGEHALLI (V) AND (P) DODDABALLAPURA TALUK BANGALORE RURAL DIST. …APPELLANTS (BY SRI NARAYANA.K, ADVOCATE) AND:
1. SMT. VIJAYAKUMARI.R AGED MAJOR W/O SHASHIKUMAR.G.V R/OF NO.201, 3RD FLOOR NANDAGOKULA APARTMENTS SANKEY ROAD, BANGALORE-560 003 2. THE UNITED INDIA ASSURANCE COMPANY LTD., SHANKARNARAYANA BUILDING M.G.ROAD, BANGALORE-560 001 (BY ITS BRANCH MANAGER) ….RESPONDENTS (BY SRI D.L.N.RAO, SENIOR COUNSEL FOR SRI K.RAJASHEKAR, ADVOCATE FOR R1 SRI R.RAJAGOPALAN, ADVOCATE FOR R2) THIS MFA IS FILED UNDER SECTION 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:03.03.2015 PASSED IN MVC NO.2715/2013 ON THE FILE OF THE 13TH ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A NO.6326/2015:
BETWEEN :
SMT. VIJAYAKUMARI.R. W/O SHASHIKUMAR.G.V AGED ABOUT 57 YEARS RESIDING AT NO.201, 3RD FLOOR NANDAGOKULA APARTMENTS SANKEY ROAD BENGALURU-560 003 ….APPELLANT (BY SRI D.L.N.RAO, SENIOR COUNSEL FOR SMT. S.R.ANURADHA, ADVOCATE) AND:
1. SRI HANUMANTHA @ HANUMANTHAPPA, @ HEMANTHA, S/O RAMANJANAPPA AGED ABOUT 22 YEARS R/O KASAGHATTA DODDBALLAPUR TALUK BANGALORE RURAL DIST. PRESENTLY R/O NO.10 2ND CROSS, 2ND MAIN YELAHANKA,BANGALORE-560 064 2. THE UNITED INDIA INSURANCE COMPANY LTD.,REGIONAL OFFICE 5TH FLOOR, KRUSHI BHAVAN BUILDING NRUPATHUNGA ROAD, HUDSON CIRCLE BENGALURU-560 001 ….RESPONDENTS (BY SRI N.R.NAIK, ADVOCATE FOR R1 SRI R,RAJAGOPALAN, ADVOCATE FOR R2) THIS MFA IS FILED UNDER SECTION 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:28.07.2015 PASSED IN MVC NO.56/2014 ON THE FILE OF THE VIII ADDITIONAL SMALL CAUSES JUDGE AND XXXIII ACMM, MEMBER-MACT, BANGALORE, AWARDING COMPENSATION OF RS.2,40,250/- WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
M.F.A NO.6327/2015:
BETWEEN :
SMT. VIJAYAKUMARI.R. W/O SHASHIKUMAR.G.V AGED ABOUT 57 YEARS RESIDING AT NO.201, 3RD FLOOR NANDAGOKULA APARTMENTS SANKEY ROAD BENGALURU-560 003 ….APPELLANT (BY SRI D.L.N.RAO, SENIOR COUNSEL FOR SMT. ANURADHA.S.R., ADVOCATE) AND:
1. SRI AVINASH S/O SRINIVASA AGED ABOUT 23 YEARS R/O KURUBARAHALLI VILLAGE KASABA HOBLI DODDABALLAPUR TALUK 2. THE UNITED INDIA INSURANCE COMPNAY LTD., TP HUB, 6TH FLOOR KRISHI BHAVAN BUILDING HUDSON CIRCLE BENGALURU-560 001 ….RESPONDENTS (BY SRI N.R.RANGEGOWDA, ADVOCATE FOR R1) SRI R.RAJAGOPALAN, ADVOCATE FOR R2) THIS MFA IS FILED UNDER SECTION 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:09.07.2015 PASSED IN MVC NO.66/2014 ON THE FILE OF THE JUDGE, COURT OF SMALL CAUSES, 26TH ACMM, (SCCH-09), MACT, BENGALURU, AWARDING A COMPENSATION OF RS.96,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 21.06.2017, COMING ON FOR PRONOUNCEMENT THIS DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT K.S.MUDAGAL, J.:
All the above appeals arise out of the Motor vehicle accident which occurred on 19.01.2014 at 6.45 p.m. near RMC yard, on Devanahalli Tumkur Road within Doddaballapura town limits between the Tanker lorry No.
KA-17 /A-2777 and motor cycles bearing registration Nos. KA 01/ W-6181 and KA 50/ Q-7786. In the said accident one S.J. Punith the pillion rider of motor cycle No. KA-50 /Q7786 died and Avinash, the rider of motor cycle No. KA-
50 /Q7786 suffered injuries. Hanumanthappa, the rider of Motor Cycle No.KA 01-W-6181 also suffered injuries.
2. The injured Avinash, Hanumanthappa and heirs of S.J.Punith, filed different claim petitions before different Tribunals and the awards were passed in their favour as set-out in the table below:
Claimants MVC Nos. Tribunal/ Dt.of award (i)Lrs of S.J.Punith 2715/2013 SCCH-15 3.3.2015 Amt.awarded in Rs. & interest awarded 26,30,000/-
8% (ii) Avinash (injured) 66/2014 SCCH-09 9.7.2015 96,000/-
6% iii)Hanumanthappa (injured) 56/2014 SCCH-05 8-7-2015 2,40,250/-
8% 3. The Tribunals held that the accident occurred due to the rash and negligent driving of the driver of the Tanker. Tribunals held that though the offending Tanker is covered by the policy issued by the insurer, the driver did not possess the licence as required under Section 14(2) of the Motor Vehicles Act, thereby there is violation of policy condition. Therefore, the Tribunals fastened the liability to the owner of the offending vehicle and absolved the insurer from the liability of satisfying the award amount.
4. Aggrieved by such findings, the claimants and the owner have filed the above appeals, the particulars of which are set-out in the table below for clarity:
5. The findings of the Tribunals that the accident occurred due to rash and negligent driving of the driver of the Tanker and on the quantum of compensation are not under challenge. The only question is, “Whether the findings of the Tribunals that there is breach of policy condition and therefore, the insurer is not liable to pay the compensation are sustainable?”
6. The learned counsel for the appellants in their arguments seek to challenge the findings of the Tribunals on the following grounds:
(i) The Tanker was not carrying petrol and therefore, special driving licence as required under section 14(2) of the Act is not required;
(2) When the insurer takes defences available under Section 149(2) of the Act, burden is on him to prove the same and the insurer failed to prove the same;
(3) The accident has no nexus to any of the goods allegedly carried in the vehicle.
7. As against that Sri R. Rajagopalan, learned counsel for the insurer contends that the owner introduced the theory of the vehicle not carrying the petrol belatedly and the same is not proved. He further contends that even otherwise for a vehicle meant for carrying hazardous goods the driver has to possess the special licence as required under Section 14(2) of the Act. Thus he supports the findings of the Tribunals.
8. The Apex Court in National Insurance Co.
Ltd. vs Swaran Singh & Ors.(AIR 2004 SC 1531) has held that when the insurer sets up a statutory defence available under Section 149 (2) of the Act the burden is on him to prove such defence. The insurer contended that the driver did not possess the licence to drive the Tanker as required under Section 14(2) of the Act and thereby there is breach of policy condition. The insurer did not even produce the policy in evidence. Secondly he did not adduce any evidence to show that the offending Tanker was carrying the petrol at the time of the accident.
9. The driver of the vehicle is examined and he states that the vehicle was empty and that was being taken for securing fitness certificate. It is not the case of the insurer that the concerned regional Transport Office does not situate enroute the scene of accident. The insurer did not even try to produce the R.C. extracts of the Tanker to impeach the theory of carrying the vehicle on that route for securing the fitness certificate.
10. The second respondent filed I.A.2/2017 in MFA No.3697/2015 to adduce additional evidence. Under the said application the second respondent seeks to produce the motor claim form said to be submitted by the first respondent/owner on 10.08.2013 regarding the accident. The second respondent contends that in the said claim form the owner has declared that the vehicle was carrying the petrol. The first respondent opposes the application denying the declaration as alleged and maintainability of the application at this stage. The very defence of the second respondent all along was that the vehicle was carrying petrol and the driver did not possess the required/specific driving licence. Though the second respondent claims that the claim form now sought to be produced was with it, has not produced the same during the evidence before the Tribunal. No convincing reasons are assigned to explain such omission. There was no impediment for the second respondent to produce and confront the document during the evidence stage before the Tribunal. In addition to that the document does not advance the case of the second respondent. Therefore, I.A.2/2017 is dismissed.
11. This Court in New India Assurance Company Ltd. vs Sri Velumurugan V & Anr. (ILR 2015 Kar.390) has held as follows:
Proviso to Section 14(2) (a) clearly indicates that special licence is required to drive a vehicle, which is carrying on goods of dangerous of hazardous nature and such licence will be effective for a period of one year and thereafter the driver has to undergo one day refresher course of the prescribed syllabus. Therefore, it is clear that the special licence to be granted under this proviso will be valid for one year and thereafter it will be renewed subject to the driver undergoing one day refresher course, which indicates that in order to grant such special licence, the driver has to undergo a course which is meant for safety measure. Safety measure is required when the vehicle is carrying on combustible, dangerous or hazardous nature of goods. In other words, if a tanker is not carrying on goods of dangerous or hazardous nature, there is no necessity to obtain such special licence to drive an empty tanker. Therefore, the arguments of Sri R. Jaiprakash that the driver did not possess an endorsement is not acceptable. Accordingly, we hold that in order to drive empty tanker, no such incence is required because the vehicle did not carry any dangerous or hazardous nature goods. Accordingly, point No.1 is answered in negative.” (emphasis supplied) 12. Further it is not the case of the insurer also that the accident has any nexus with any goods carried in the offending Tanker. The Apex Court in National Insurance Co. Ltd.’s case referred to supra has held as follows:
“In each case on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence. Minor breaches of licence conditions, such as want of medical fitness certificate, requirement about age of the driver and the like not found to have been the direct cause of the accident, would be treated as minor breaches of inconsequential deviation in the matter of use of vehicles. Such minor and inconsequential deviations with regard to licensing conditions would not constitute sufficient ground to deny the benefit of coverage of insurance to the third parties.” (emphasis supplied) 13. For the aforesaid reasons the defence of the insurer that there is breach of policy conditions for want of a valid driving licence and for violation of Section 14(2) of the Act fails. The Tribunals committed error in law firstly in casting the burden of negative proof namely the vehicle was not carrying the petrol on the claimants/owner, secondly in holding that the owner has failed to prove that the vehicle was not carrying the petrol, thirdly in holding that the insurer is not liable to pay the compensation.
14. For the aforesaid reasons all the above appeals are allowed with costs. The impugned judgments and awards are modified holding that in all the above cases the respondent –The United India Insurance Company Ltd., Regional Office, Shankaranarayana Building, M.G. Road, Bengaluru shall pay the compensation awarded by the Tribunals to the claimants. Rest of the award in each of the cases is maintained.
Sd/- JUDGE BRN Sd/- JUDGE