Karnataka High Court
Smt Sukanya W/O Late Manche Gowda vs Bettegowda S/O Chaluvegowda on 5 January, 2017
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5th DAY OF JANUARY, 2017
PRESENT
THE HON'BLE MR.JUSTICE ANAND BYRAREDDY
AND
THE HON'BLE MR.JUSTICE B. A. PATIL
MFA.NO. 5430/2012
C/W
MFA.NOS.4398/2012, 7877/2012, 2062/2012,
2124/2012
IN M.F.A. NO. 5430/2012:
BETWEEN:
SMT. SUKANYA
W/O LATE MANCHE GOWDA
AGED ABOUT 34 YEARS
R/O AREBUVANAHALLI VILLAGE
BOOKANAKERE HOBLI
K.R.PET TALUK, MANDYA DISTRICT
PIN-571 401
...APPELLANT
(BY SRI K.M.SANATH KUMARA , ADV.)
AND:
1. BETTEGOWDA
S/O CHALUVEGOWDA
MAJOR
2
R/O KANIVIKOPPALU VILLAGE
CHINAKURALI HOBLI
MANDYA DISTRICT
PIN-571 401
2. REVANNA
S/O RAJEGOWDA
MAJOR
BYATARAYANAKOPPALU
PANDAVAPURA TALUK
MANDYA DISTRICT
PIN-571 401
3. THE BRANCH MANAGER
CHOLA M.S.GENERAL INSURANCE LTD.
ASHRA LAXMI VILAS ROAD, DEVRAJ MOHALLA
MYSORE
4. SATHISH
S/O LATE MANCHEGOWDA
AGED ABOUT 18 YEARS
5. ASHOKA
S/O LATE MANCHEGOWDA
AGED ABOUT 16 YEARS
THE RESPONDENT NO. 5 IS THE
MINOR REPRESENTED BY HIS MOTHER
NATURAL GUARDIAN RESPONDENT NO. 6
6. SMT. BHARATHI
W/O LATE MANCHEGOWDA
AGED ABOUT 35 YEARS
RESPONDENT NO. 4 TO 6 ARE
R/O AREBHUVANAHALLI VILLAGE
BOOKANAKERE HOBLI, KRISHNARAJPETE ALUK
MANDYA DISTRICT -571 401
...RESPONDENTS
3
(BY SRI M. Y.SREENIVASAN, ADV. FOR R2;
SRI D. MAHESH, ADVOCATE FOR R3;
SRI G.M. ANANDA AND SMT. B.L.ASHA, ADVS. FOR R4
TO R6; R1 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER 173(1) OF MV ACT, AGAINST THE JUDGMENT
AND AWARD DATED 24.01.2012 PASSED IN MVC NO.
737/2011 ON THE FILE OF THE PRESIDING OFFICER,
FAST TRACK COURT IV AND ADDL. MACT, MYSROE,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN M.F.A. NO. 4398/2012:
BETWEEN:
REVANNA
S/O RAJEGOWDA
AGED ABOUT 36 YEARS,
R/O BYATARAYAN KOPPALU
PANDAVAPURA TQ, MANDYA DIST.
...APPELLANT
(BY SRI M. Y. SREENIVASAN, ADV.)
AND:
1. SMT. SUKANYA
W/O LATE MANCHE GOWDA
AGED ABOUT 34 YEARS
R/O AREBUVANAHALLI VILLAGE
BOOKANAKERE HOBLI
K.R.PET - 571 432
4
2. BETTEGOWDA
S/O CHALUVEGOWDA
AGED ABOUT 31 YEARS
R/O KANIVIKOPPALU VILLAGE
CHINAKURALI HOBLI
MANDYA DISTRICT -571 430
3. MANAGER
CHOLA M.S.GENERAL INSURANCE LTD.
NO. 271 ASHRA LAXMI VILAS ROAD,
DEVRAJ MOHALLA MYSORE - 560 028
4. SATHISH
S/O LATE MANCHEGOWDA
AGED ABOUT 16 YEARS
5. ASHOKA
S/O LATE MANCHEGOWDA
AGED ABOUT 14 YEARS
THE RESPONDENT NO. 4 AND 5 ARE
MINORS BEING R/BY NATURAL GUARDIAN
AND MOTHER SMT. BHARATHI
APPELLANT NO. 6
6. SMT. BHARATHI
W/O LATE MANCHEGOWDA
AGED ABOUT 33 YEARS
RESPONDENT NO. 4 TO 6 ARE
R/O ARBUVANAHALLI VILLAGE
KRISHNARAJPETE TALUK
MANDYA DISTRICT -571 401
...RESPONDENTS
(BY SRI K.M.SANATH KUMAR, ADV. FOR R1;
R2-NOTICE DISPENSED WITH VIDE ORDER DATED
22/08/2012; SRI O. MAHESH, ADV. FOR R3;
5
SRI G.M.ANANDA AND SMT. ASHA B.L., ADVS. FOR R4
AND R6; R5 IS MINOR REPRESENTED BY R6)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER 173(1) OF MV ACT, AGAINST THE JUDGMENT
AND AWARD DATED 24.01.2012 PASSED IN MVC NO.
737/2011 ON THE FILE OF THE PRESIDING OFFICER,
FAST TRACK COURT IV AND ADDL. MACT, MYSROE,
AWARDING A COMPENSATION OF RS. 1,64,000/-
(TOTAL COMPENSATION AWARDED IS RS.4,10,000/-
LESS 60% AS THERE IS CONTRIBUTORY
NEGLIGENCE ON THE PART OF THE DECEASED AT
THE RATIO 07 60:40=1,64,000/-) WITH
PROPORTIONATE INTEREST AT 6% P.A. FROM THE
DATE OF PETITION TILL DEPOSIT.
IN M.F.A. NO. 7877/2012:
BETWEEN:
1. SATHISH
AGED ABOUT 16 YEARS
S/O LATE MANCHEGOWDA
2. ASHOKA
AGED 14 YEARS
S/O LATE MANCHEGOWDA
3. SMT. BHARATHI
AGED 33 YEARS
W/O LATE MANCHEGOWDA
APPELLANTS NO. 1 AND 2 ARE
BEING MINORS R/BY NATURAL GUARDIAN
MOTHER THE 3RD APPELLANT
ALL ARE
6
R/O ARABUVANAHALLI
BOOKANAKERE HOBLI
KRISHNARAJPETE TALUK
MANDYA DISTRICT -571 401
...APPELLANTS
(BY SRI G.M.ANANDA, ADV.;
A1 AND A2 ARE MINORS REPRESENTED BY A3)
AND:
1. BETTEGOWDA
AGED ABOUT 31 YEARS
S/O CHALUVEGOWDA
R/O KANIVIKOPPALU VILLAGE
CHINAKURALI HOBLI
PANDAVAPURA TALUKA
MANDYA DISTRICT -571 455
2. REVANNA
AGE 36 YEARS, S/O RAJEGOWDA
R/O BYATARAYAN KOPPALU
PANDAVAPURA TQ,
MANDYA DIST - 571 455
3. THE MANAGER
CHOLA M.S.GENERAL INSURANCE LTD.
NO. 271 ASHRA LAXMI VILAS ROAD,
DEVRAJ MOHALLA MYSORE - 570 001
4. SMT. SUKANYA
AGED ABOUT 34 YEARS
W/O LATE MANCHE GOWDA
AREBUVANAHALLI VILLAGE
BOOKANAKERE HOBLI
K.R.PET TALUK
MANDYA DISTRICT - 571 812
...RESPONDENTS
7
(BY SRI M. Y.SREENIVASAN, ADV. FOR R2;
SRI R. NARAYANA, ADVOCATE FOR R3;
SRI K.M. SANATH KUMARA, ADV. FOR R4;
R1 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER 173(1) OF MV ACT, AGAINST THE JUDGMENT
AND AWARD DATED 24.01.2012 PASSED IN MVC NO.
737/2011 ON THE FILE OF THE PRESIDING OFFICER,
FAST TRACK COURT IV AND ADDL. MACT, MYSROE,
AWARDING A COMPENSATION OF RS. 4,10,000/-
WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL THE DATE OF DEPOSIT
IN M.F.A. NO. 2062/2012:
BETWEEN:
THE BRANCH MANAGER
BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD
2ND FLOOR, RAJA TOWER, MOODANIMBUR VILLAGE
NEAR CITY BUS STAND, UDUPI
BY
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
REGIONAL OFFICE, NO. 31
GROUND FLOOR, T.B.R. TOWERS
1ST CROSS, NEW MISSION ROAD
BANGALORE - 560 024
...APPELLANT
(BY SRI O. MAHESH, ADV.)
8
AND:
1. PRAVEEN KUMAR SHETTY
AGED ABOUT 46 YEARS,
S/O SHANKAR SHETTY
C/O C.P. SHETTY, KALAVARA VILLAGE
SALVADY POST, KUNDAPURA TALUKA
UDUPI DISTRICT - 576 101
2. MUMTAZ BANU MAJOR
W/O MOHAMMED RAFIQ
R/O SABBAVAN NAGAR
BANGLEGUDDE, KUKKUNDURU VILLAGE
KARKALA TALUKA
UDUPI DISTRICT - 576 101
...RESPONDENTS
(BYF SRI L. HARISH KUMAR, ADV.FOR R2;
SRI H. PAVANACHANDRA SHETTY ADV. FOR R1)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER 173(1) OF MV ACT AGAINST THE JUDGMENT
AND AWARD DATED 30.11.2011 PASSED IN MV NO.
1133/2007 ON THE FILE OF PRESIDING OFFICER,
FAST TRACK COURT, MACT KUNDAPURA, AWARDING
A COMPENSATION OF RS. 2,75,000/- WITH INTEREST
@ 6% P.A. FROM THE DATE OF PETITION TILL
PAYMENT.
IN M.F.A. NO. 2124/2012:
BETWEEN:
PRAVEEN KUMAR SHETTY
AGED ABOUT 46 YEARS,
S/O SHANKAR SHETTY
C/O C.P. SHETTY, KALAVARA VILLAGE
SALVADY POST, KUNDAPURA TALUKA
...APPELLANT
9
(BY SRI H. PAVANACHANDRA SHETTY, ADV.)
AND:
1. MUMTAZ BANU MAJOR
W/O MOHAMMED RAFIQ
R/O SABBAVAN NAGAR
BANGLEGUDDE, KUKKUNDURU VILLAGE
KARKALA TALUKA
2. BAJAJ ALLIANZ GENERAL INSURANCE
COMPANY LTD
2ND FLOOR, RAJA TOWER,
MOODANIMBUR VILLAGE
NEAR CITY BUS STAND, UDUPI
REP. BY ITS BRANCH MANAGER
...RESPONDENTS
(BY SRI O.MAHESH, ADV.FOR R2;
R1 NOTICE DISPENSED WITH VIDE ORDER DATED
1/7/14)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER 173(1) OF MV ACT AGAINST THE JUDGMENT
AND AWARD DATED 30.11.2011 PASSED IN MV NO.
1133/2007 ON THE FILE OF PRESIDING OFFICER,
FAST TRACK COURT, MACT KUNDAPURA, PARTLY
ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENTOF
COMPENSATION.
THESE MISCELLANEOUS FIRST APPEALS
HAVING BEEN HEARD, RESERVED FOR JUDGMENT
AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, B.A.PATIL, J., DELIVERED
THE FOLLOWING:-
10
JUDGMENT
MFA.No.5430/2012 is filed by the claimant- petitioner against the judgment and award dated 24.1.2012, passed by the Presiding Officer, FTC-IV and Additional MACT, Mysore, in MVC.No.737/2011, seeking enhancement of the compensation.
2. MFA.No.4398/2012 is filed by the owner of the TATA ACE goods auto challenging the very judgment in so far as it relates to fixing of liability to the extent of 40% on the owner of the vehicle.
3. MFA.No.7877/2012 is filed by respondent Nos.4 to 6 before the Tribunal who are claiming to be the legal heirs of the deceased, seeking enhancement of the compensation awarded by the Tribunal.
The above three appeals arise out of the same proceeding.
11
4. MFA.No.2062/2012 is filed by the Insurance Company challenging the judgment and award dated 30.11.2011 passed by the Fast Track and MACT at Kundapura, whereas MFA.No..2124/2012 is filed by the petitioner-claimant seeking enhancement of the compensation as awarded by the Tribunal by the very judgment and award dated 30.11.2011.
5. For the purpose of convenience the parties are referred as they are referred to in the claim petition.
6. The brief facts relating to MFA.Nos.5430/2012, 4398/2012, 7877/2012 are that on 16.3.2010, at about 4.30 p.m., deceased Manchegowda was proceeding on his Suzuki motorcycle bearing Regn.No.KA-6-J7080 from Krishnarajpet side to Arebhuvanahalli, at that time, a TATA ACE goods auto bearing Regn.No.KA-11- A2214 came in a rash and negligent manner and hit the motorcycle, as a result of which the rider had sustained injuries and said to have succumbed to the injuries. 12 The petitioner and respondent No.4 to 6 approached the Tribunal claiming compensation. The Tribunal after hearing the parties and considering the material produced before it, has fixed the liability on the deceased as he has contributed in the accident to the extent of 60% and on the owner and driver of the auto to the extent of 40%. It is also held that since there is no valid driving license, the Insurance Company is not liable to pay any compensation. Being aggrieved by the said award, appellants are before this Court.
7. In so far as the facts leading to MFA.Nos.2062/2012 and 2124/2012 are concerned that on 5.7.2007 at about 5.15 p.m., when the petitioner-claimant was proceeding on his motorcycle bearing Regn.No.KA-20-K4661 on Udupi-Karkala Road, at that time, the rider of another motorcycle bearing Regn.No.KA-20-S7385 came in a rash and negligent manner and suddenly turned right and dashed against 13 the petitioner-claimant's motorcycle, as a result of which, the petitioner-claimant sustained grievous injuries. Immediately thereafter he was taken to Hi-tech Hospital, Udupi, where he took treatment. The petitioner approached the Tribunal claiming compensation. The Tribunal after hearing the parties and considering the material produced before it, has fixed the liability on respondent No.1, the owner of the motorcycle, but however directed respondent No.2- insurer to pay the award amount to the petitioner at the first instance and recover the same from respondent No.1
8. Heard the learned counsel appearing for both the parties and perused the records.
9. Learned counsel appearing for the petitioner- claimant (appellant in MFA.No.5430/2012) contended that the Tribunal has erred in assessing the income of the deceased at Rs.3,000/- per month even though the 14 deceased was an agriculturist and also doing business and was earning monthly income of Rs.10,000/-. It is further contended that the Tribunal has erred in fixing the liability on the basis of the contribution to the extent of 60% on the deceased, even though the driver of the goods auto was rash and negligent. It is further urged that the sketch has not been properly looked into by the Tribunal and has wrongly assessed the contributory negligence. It is also alleged that the amount of compensation awarded towards loss of dependency and other conventional heads is on the lower side. It is further urged that in view of the decisions of the Apex Court, the Tribunal ought to have directed the Insurance Company to indemnify the award amount and could have advised them to recover from the insured. On these grounds, he prays for allowing the appeals and to enhance the award amount. 15
10. The learned counsel for respondent No.2- owner (appellant in MFA.No.4398/2012) has also contended that the Tribunal has not properly assessed the evidence and the sketch while fixing the liability, and has wrongly come to the conclusion that the driving license produced by the appellant is LMV (light motor vehicle) license and it is not a license to drive the goods auto. It is his further contention that the driver who is having LMV license is also competent to drive a goods auto which is weighing less than 7500 kgs. which falls under the definition of 'light motor vehicle' under Section 2(21) of the Motor Vehicles Act, 1988 ('Act' for short). He has further urged that the Tribunal has erred in fixing the liability to the extent of 40% on the owner and driver of the vehicle even though the said accident has solely occurred due to the negligence of the deceased himself.
16
11. On the contrary, the learned counsel for the Insurance Company contended that since the driver of TATA ACE goods auto is having only LMV license and he is only entitled to drive a light motor vehicle and he is not entitled to drive the transport vehicle, which indicates that the driver did not hold an effective driving license at the time of the alleged accident and there is a breach of contractual obligation, the Insurance Company is not liable to indemnify the amount awarded under the principle of pay and recovery. In support of his contention, he has relied upon various decisions of this Court as well as the Apex Court. On these grounds, he prays for dismissal of the appeals by confirming the award of the Tribunal.
12. Learned counsel appearing for the Insurance Company (appellant in MFA.No.2062/2012 and respondent No.2 in MFA.No.2124/2012) has contended that the Tribunal has erred in fixing the liability on the 17 Insurance Company and directed them to indemnify the award amount under the principle of pay and recovery.
13. Whereas, the learned counsel appearing for the petitioner-claimant (appellant in MFA.
No.2124/2012 and respondent No.1 in MFA.No.2062/2012) has vehemently contended that the amount of compensation awarded by the Tribunal is on the lower side and he prays for enhancement of the said amount of compensation.
14. On the rival contentions urged by the learned counsel appearing for the parties, if we look into the document at Ex.P2 the true copy of rough sketch and Ex.P5 the true copy of spot mahazar wherein it is mentioned that road runs from east to west and the accident has occurred at the southern portion of the tar road. It is noticed that the alleged accident has taken place when the deceased was proceeding on his motorcycle from Krishnarajpet towards Arebhuvanahalli 18 and at that time the goods auto belonging to respondent No.2-owner was coming from Mysore side which indicates that the accident had taken place when the vehicles are coming on opposite directions. As could be seen from Exs.P2 and P5 the accident has taken place on the right side of the road. In that light, it indicates that the rider of the motorcycle has driven the same to the right side of the road and at that time the accident took place. At the place of accident, the width of the road was 22 feet and tyre marks of the vehicles were also seen, which shows that both the vehicles have contributed to accident in question and keeping in view all the aforementioned facts and circumstances, the Tribunal has rightly come to the conclusion by fixing the liability in the ratio of 60:40 on the basis of the contributory negligence on the part of the deceased and the owner of the vehicle. In that context, the submissions made by the claimants and the respondent No.2-owner that the Tribunal has erred in fixing the 19 liability on the basis of the contributory negligence at the ratio of 60:40: is wrong, is not acceptable.
15. In so far as the quantum of amount awarded by the Tribunal is concerned, since the claimant did not produce any documents to show as to what was the avocation of the deceased and what was his income, the Tribunal has taken the notional income of the deceased at Rs.3,000/- per month. Having regard to the age of the deceased as 37 years, the Tribunal has adopted the proper multiplier of '15' and has awarded an amount of Rs.3,60,000/- towards loss of dependency and under conventional heads, the Tribunal has awarded Rs.50,000/-. After considering the aspect of contributory negligence in the ratio of 60:40 since the rider of the motorcycle has contributed 60%, after deduction of the same, the Tribunal has awarded Rs.1,64,000/-. In that light, the amount awarded in this behalf to the petitioner-claimant appears to be just 20 and proper and there is no need by this Court to interfere with the award.
16. Even though it is urged during the course of argument that respondent No.6 being the wife and respondent Nos.4 and 5 being the children of the deceased are also entitled for apportionment of the amount awarded, we are of the considered opinion that this Court is not a competent Court to decide and determine their rights and they have to approach the appropriate Civil Court for adjudication of their such rights. In that light, the said contention of respondent Nos.4 to 6 is rejected.
17. In so far as MFA.No.2124/2012 is concerned, it is asserted that the petitioner was working as an Automobile Mechanic at Suraksha Garage and drawing salary of Rs.10,000/- per month, but however, no material is produced to substantiate the said contention. The Tribunal however, by taking notional 21 income of the petitioner at the rate of Rs.36,000/- per annum, and considering the laid up period of 6 months, loss of future income and pain and sufferings, has awarded Rs.2,75,000/-. In that light, the amount awarded in this behalf to the petitioner-claimant appears to be just and proper and there is no need to interfere with the award of the Tribunal.
18. The next point for consideration before us is as to who is liable to pay the compensation awarded by the Tribunal on the rival contentions taken up by respondent No.2-owner and respondent No.3-Insurance Company. Respondent No.2 by producing the xerox copies of the policy and driving license, has contended that respondent No.1-driver of the goods auto is having a driving license of LMV and it is in force from 3.9.2003 to 2.9.2023. When that being so, it cannot be said that respondent No.1 is not having any license, much less of the goods auto. In that context, the Insurance 22 Company cannot escape from paying the compensation to the petitioners-claimants. But the Insurance Company has contended that in view of Sections 147 and 149 of the Act, the Insurance Company has got a right to defend under Section 149(2) of the Act and if it establishes that there is a breach of the policy condition, then their liability to indemnify the insured or the third party does not exist. It is also contended that even though respondent No.1-driver is having a license of LMV he is not permitted to drive the goods vehicle and as such it amounts to breach of contract, and falls under sub-sections (1) and (2) of Section 149 of the Act and therefore the Insurance Company is not liable to pay or pay and recover .
19. In the light of the above submissions, the point for consideration before us is whether a driver possessing a LMV license is enable to drive a goods vehicle and whether any endorsement from the 23 competent authority is required for the same? For the purpose of clarity, it is necessary to refer to Section 2(14) of the Act, under which the 'goods carriage' is defined. The same reads thus:-
"2(14) 'goods carriage' means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods."
Similarly, "light motor vehicle" is defined under Section 2(21) of the Act, which reads as under:-
"2(21) 'light motor vehicle' means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kilograms."
20. On going through Section 2(21) of the Act, if unladen weight of any vehicle does not exceed 7500 kgs., then, under such circumstances, it is considered 24 to be LMV. It is pertinent to note that there are transport vehicles and those transport vehicles are sub- categorized as medium goods vehicle, heavy goods vehicle and light goods carriage vehicle. In that light, if we see Ex.R1-Register extract particulars in respect of Motor Vehicle No.KA.11-A-2214 (the vehicle involved in the accident), at Sl.No.17, the unladen weight of the said vehicle is 840 kgs., and the Registration of the said vehicle has taken place on 3.2.2011, which means that it is below the unladen weight of LMV, i.e., less than 7500 kgs. In that light, we observe that respondent No.1-driver was having a LMV license with validity period from 3.9.2003 to 2.9.2023. Every driving license shall be in Form No.7 and in addition to that if the licensee wants another clause or description of the motor vehicle driving license, the same should be obtained in Form No.8. In order to substantiate the said fact neither respondent No.1 nor respondent No.2 has produced any material. Section 3 of the Act 25 requires a person holding an effective driving license to drive a motor vehicle, shall not, however drive a transport vehicle unless he has a driving license which entitles him to do so. In that backdrop, even though respondent No.1-driver was having a LMV license, he is not holding an effective driving license to drive a goods auto which will ultimately resulting that he was not having a license to drive the type of the vehicle which was involved in the accident. In that view, the insurer may escape from his liability by contending that there is a breach. To avoid the liability, he has to raise the defence as mentioned in Section 149 of the Act.
21. The question whether the Insurance Company can or could avoid the liability as contemplated under Section 149 of the Act, has been discussed in the case of Skandia Insurance Company Limited Vs. Kokilaben Chandravadan, reported in (1987)2 SCC
654. The Apex Court while interpreting Section 26 96(2)(b)(ii) which is identical to Section 149(2)(a)(ii) of the Act has observed at paragraph-12 that the defence built on the exclusion clause cannot succeed for three reasons, viz.,
(i) On a true interpretation of the relevant clause which interpretation is at peace with the conscience of Section 96, the condition excluding driving by a person not duly licensed is not absolute and the promisor is absolved once it is shown that he has done everything in his power to keep, honour and fulfill the promise and he himself is not guilty of a deliberate breach.
(ii) Even if it is treated as an absolute promise, there is substantial compliance therewith upon an express or implied mandate being given to the licensed driver not to allow the vehicle to be left unattended so that it happens to be driven by an unlicensed driver.
27
(iii) The exclusion clause has to be 'read down' in order that it is not at war with the 'main purpose' of the provisions enacted for the protection of victims of accidents so that the promisor is exculpated when he does everything in his power to keep the promise."
22. The Motor Vehicles Act,1988 is a beneficial legislation, the third party will not be having any knowledge about the existence of the contract between the Insurance Company and the insured. If there is any breach of contract in between the Insurance Company and the insured, it is fight between them. In order to avoid the liability on the ground that the person driving was not having a valid and effective driving license, the Insurance Company must establish that the breach was on the part of the insured and exonerate from its liability. But, the breach of contractual obligation and other things are between the parties to the contract. In no way it affects the rights of the third party. The 28 Insurance Company would remain liable to pay the innocent third party because of the promise which has been made at the time of contract with the insured. Even the rule of subrogation also says in the law of insurance that he will step into the shoes of the owner and vice versa. Keeping the said principle in broader way the Insurance Company is liable to pay compensation and recover the same from the insured.
23. The learned counsel for the petitioners vehemently argued and contended that the provisions of Section 149 of the Act are intended to be benefitted to third party and while interpreting the same, it should be interpreted differently. It is further contended that the corresponding provisions in the Act must be read along with Section 149 of the Act and in that context, if it is looked into, a duty is cast on the insurer to satisfy the judgments and awards against the persons insured in respect of third party risk. The third party is not 29 supposed to look into other aspects of the contract. The position of the insurer and the insured is that of a judgment debtor in so far as the liability is concerned. The party can proceed against any one of them and recover to satisfy the decree. It is also contended that the provisions of Section 149 of the Act are inserted and they specifically refer to the principle of pay and recover. In order to substantiate his contention, learned counsel for the petitioners-claimants has relied upon the various decisions of the Apex Court, namely, (2004)3 SCC 297 - National Insurance Co.Ltd., Vs. Swaran Singh & others; (2007)3 SCC 700 - National Insurance Co.Ltd., Vs. Laxmi Narain Dhut; (2001)4 SCC 342 - New India Assurance Co., Shimla Vs. Kamla & others; and (2003)3 SCC 338 - United India Insurance Co.Ltd., Vs.Lehru & others.
24. Per contra, the learned counsel appearing for the insurer has vehemently argued by contending that 30 Section 149(7) of the Act makes it clear that if there is any breach, then the insurer is entitled to set up his defence and restrict the payment. It is his contention that when the Parliament has expressly provided the principle of pay and recovery in the cases falling under sub-sections (4) and (5) of Section 149 of the Act and has extended the benefit to the cases falling under sub- sections (2) and (7) of Section 149 of the Act, the Court cannot take into consideration only that part of the said provisions and extend the benefit. It is further contended that no other interpretation need to be made by supplying the words in the said provision to give benefit. It is further contended that if it is done it amounts to the Court supplying causus omissus which is not permissible. In that backdrop, the insurer is not liable to pay any compensation much less under the principle of pay and recovery. It is also contended that the Apex Court while exercising the power conferred under Article 142 of the Constitution of India has 31 extended the benefit, but it has made more clear that it is not a precedent. In that view of the matter, the insurer is not liable to pay any compensation in view of the breach of the contract by the insured.
25. In order to substantiate his contention, the learned counsel for the Insurance Company has also relied upon various decisions of this Court and the Apex Court (1998)9 SCC 160 - Rukmani & others Vs. New India Assurance Co.and others; in the case of the Oriental Insurance Co.Ltd., Vs. Sri K.C.Subramanyam & another ((MFA.No.2596/2007, decided on 12.7.2012); in the case of National Insurance Co. Ltd., Vs. Gangadhar & another (MFA.No.21080/2009 & connected matters, decided on 5.1.2015; and in the case of National Insurance Co.Ltd., Vs. Nagamma (MFA.30903/2009, decided on 2.4.2014).
32
26. In order to appreciate the aforesaid rival contentions, we feel it necessary to extract the provisions of Section 149 of the Act which relates to the duty of the insurers to satisfy the judgments and awards against the persons insured in respect of the third party risk, which reads as under:-
"149.Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks- (1) If, after a certificate of insurance has been issued under sub-section (3) of section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under clause(b) of sub-section (1) of section 147 (being a liability covered by the terms of the policy) or under the provisions of section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to 33 the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.
(2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-34
(i) a condition excluding the use of the vehicle-
(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organised racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or
(d) without side-car being attached where the vehicle is a motor cycle; or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or 35
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or
(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.
(3) Where any such judgment as is referred to in sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer {being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country} shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in sub-section (1), as if the judgment were given by a Court in India:36
Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in sub-section (2).
(4) Where a certificate of insurance has been issued under sub-section (3) of section 147 to the person by whom a policy has been effected, so much of the policy as purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in clause (b) of sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under clause (b) of sub-section (1) of section 147; be of no effect:
Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue 37 only of this sub-section shall be recoverable by the insurer from that person.
(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured by a policy exceeds the amount for which the insurer would apart from the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.
(6) In this section the expression "material fact"
and "material particular" means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will take the risk and, if so, at what premium and on what conditions, and the expression "liability covered by the terms of the policy" means a liability which is covered by the policy or which would be so covered but for the fact that the insurer is entitled to avoid or cancel or has avoided or cancelled the policy.
(7) No insurer to whom the notice referred to in sub-section (2) of sub-section (3) has been given 38 shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in sub- section (1) or in such judgment as is referred to in sub-section (3) otherwise than in the manner provided for in sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.
Explanation:-For the purposes of this section, "Claims Tribunal" means a Claims Tribunal constituted under section 165 and "award" means an award made by that Tribunal under section 168."
27. On perusal of aforesaid provision of law and the language used therein, it specifies about the third party risk. When the Act specifically makes it clear that if any vehicle is to be used on the road at the first instance, then the said vehicle should be in roadworthy conditions and the said vehicle shall have insurance coverage. In that light, it indicates that the paramount object of the Act is that the third party should not 39 suffer, or it should not be a paper decree in view of the tortuous act committed either by the insurer or his agent. If a strict interpretation is made in respect of the provisions of Section 149 of the Act, the right of the third party would be taken away and in that event, greater hardship would be caused to the third party. Section 149 of the Act further specifies that a duty is cast upon the insurer to satisfy the judgments and the awards in respect of the third party risks. It also clarifies that the insurer shall pay to the person benefitted under the judgments or awards as if the insurer were to be the judgment debtor in respect of the liability, that too, when such judgment or award is obtained against the insurer in whose favour a certificate of insurance has been issued. No doubt it is true that if the other provisions of Section 149 of the Act are read conjointly, it gives a right in case of breach of specified conditions of the policy, but if the proviso to Section 149(4) of the Act is taken into consideration, the 40 same provides that any sum paid by the insurer in or towards discharge of liability of any person which is covered by the policy by virtue of the said proviso shall be recoverable by the insurer from that person. In that backdrop, if we see when a valid insurance policy has been issued in respect of the vehicle, then under such circumstances the insurer is duty bound to make payment of the loss which has been sustained by the third parties.
28. The legislative intent and the object has to be kept in view while construction of any provision of law. No doubt, while construing any provision of the Act the whole of the Act should be taken into consideration and not any provision in isolation. In the Maxwell's Interpretation of Statutes, it is observed that while interpreting any particular Section or sub-section, the whole intent and object of the Act has to be kept in view and in that light, what could have been the object or intent of the legislature while enacting such legislation 41 should be kept in view and one should lean towards the beneficial aspect of the Act while interpreting and giving benefit to the victims. The same principle is also stated in 'golden rule of interpretation'. In that light, if we peruse the whole Section 149 of the Act, it intends to give the benefit. On perusal of the decisions cited by the learned counsel appearing for both parties, it is clear that the Apex Court in order to do complete justice between the parties and keeping in view the object and intent of the legislation has issued direction to the Insurance Company to pay the claim and recover the said amount from the insured.
29. If the legislature did not intend to give benefit of principles of pay and recovery, it ought not to have incorporated the said provision in Section 149 of the Act. If the said provision is not incorporated, then under such circumstances, by virtue of contractual obligation, the insurer will be liable to pay the compensation subject to the conditions mentioned in 42 the policy. Even in the policy the insurer can avoid the payment if there is a breach of any one of the conditions.
30. In the case of United India Insurance Co.Ltd. Vs. Lehru and others, reported in (2003) 3 SCC 338, the Apex Court has observed that where the owner satisfied himself that the driver has a license and is driving competently, there would be no breach of Section 149(2)(a)(ii) of the Act. The Insurance Company would not then be absolved of liability. It is further observed that if ultimately the license is found to be fake, then the Insurance Company would continue to remain liable unless they prove that the owner/insured was aware that the license was fake and still permitted that person to drive. It is further observed that more importantly, even in such a case the Insurance Company would be liable to pay to the innocent third party. But it may be able to recover from the insured. In that background, if we peruse the material produced 43 before the Tribunal, on behalf of respondent No.3, RW.2 has been examined. No where he has deposed that the owner was aware or had notice that he was having only LMV license and even then he was allowed or permitted to drive the goods auto. In that background, the innocent third party should not suffer and therefore the Insurance Company is liable to pay at the first instance, and thereafter if at all it wants to recover, it can recover from the insured.
31. The Apex Court even though has exercised the power under Article 142 of the Constitution of India and has issued direction, the same will have the binding effect until such law has been either overruled or a specific decision by laying down the ratio which comes from a Larger Bench.
32. On looking to the letter and spirit of Section 149 of the Act, it is clear that Insurance Company can avoid the liability only by establishing a willful violation of the law or terms of the policy by the assured. It must 44 also prove that the said act of the assured was intentionally or so recklessly as to denote that he did not care for the consequences of his such act. This principle is also made clear in the case of National Insurance Co.Ltd., Vs. Swaran Singh, reported in 2004(3) SCC 297. Keeping in view the said ratio, if we peruse the material produced by the Insurance Company before the Tribunal, the same was not substantiated with cogent and reliable evidence. Hence, it is to be ignored.
33. In view of the aforesaid discussion, we are of the considered opinion that the contentions raised by the learned counsel for the Insurance Company are not acceptable and are liable to be rejected. In that view of the matter, if at all there is any breach of policy conditions by the insured by virtue of Section 149 of the Act, at the first instance, the insurer has to satisfy the award amount and thereafter recover the same with 45 interest from the insured under the principle of pay and recovery.
In that view of the matter, these appeals filed by the claimants, owner and the Insurance Company stand dismissed.
If any amount is deposited by the Insurance Company, the same shall be transmitted to the Tribunal for disbursement of the same in terms of the award passed by the Tribunal.
Registry is directed to send back the LCRs.
Sd/-
JUDGE Sd/-
JUDGE *ck/-