Karnataka High Court
Manager vs Ganapathi Sabhahit on 1 June, 2012
Author: L.Narayana Swamy
Bench: L.Narayana Swamy
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IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 1ST DAY OF JUNE 2012
BEFORE
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
MFA No.7435/2010
BETWEEN :
MANAGER
UNITED INDIA INSURANCE CO LTD
J C ROAD, SAGAR, NOW REPRESENTED BY
DIVISIONAL MANAGER, UNITED INDIA
INSURANCE CO LTD, DIVISIONAL OFFICE,
B H ROAD, A A CIRCLE, SHIMOGA
...APPELLANT
(BY SRI. A N KRISHNA SWAMY, ADVOCATE)
AND :
1 GANAPATHI SABHAHIT
S/O GANAPATHI SABHAHIT
AGED ABOUT 58 YEARS
AGRICULTURIST, R/O BELUR IN
NAGODI VILLAGE, KASABA HOBLI
HOSANAGARA TALUK
2 SUNDAR SHETTY
S/O SHANKAR SHETTY
MAJOR, DRIVER OF GOODS AUTO
R/O NITTUR VILLAGE
HOSANAGARA TALUK
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3 K RATHNAKARA SHETTY
S/O KRISHNAPPA SHETTY
AGE:MAJOR, OWNER OF GOODS AUTO
NITTUR VILLAGE
HOSANAGARA TALUK
...RESPONDENTS
(SRI. S V PRAKASH, ADVOCATE FOR RESPONDENT NO.1
SRI.C.VINAY SWAMY, ADVOCATE FOR
RESPONDENT NO.3, RESPONDENT NO.2 - SERVED )
THIS MISCELLANEOUS FIRST APPEAL FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 31.3.2010 PASSED IN MVC NO.82/2008 ON
THE FILE OF ADDITIONAL CIVIL JUDGE (SR.DN.) AND
MEMBER ADDITIONAL MACT, SAGAR, AWARDING A
COMPENSATION OF RS.61,516/- WITH INTEREST AT 6% P.A.
FROM THE DATE OF PETITION TILL REALISATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THIS
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appeal is by the insurance company challenging the judgment and award dated 31.3.2010 in MVC No.82/2008 passed by the Additional MACT, Sagar.
2. The ground urged by learned counsel for the -3- appellant is that the Tribunal ought to have considered the fact that the driver of the offending vehicle was not in possession of the valid driving licence as on the date of accident. Since the injured has committed breach of policy, the liability should have been fastened on the owner.
3. Learned counsel for the appellant submitted that the accident that occurred on 30.4.2007 involved a goods auto rickshaw. The driving licence issued to the driver was valid from 5.6.2007 to 4.6.2010. Hence, it is submitted that as on the date of accident there was no valid driving licence. Hence the appellant - insurance company cannot be held to be liable. In support of his claim, learned counsel relied on following judgments
(i) NATIONAL INSURANCE CO. LTD vs. KUSUM RAI & OTHERS reported in 2006(2) TAC 1 SC -4-
(ii) ORIENTAL INSURANCE CO. LTD. vs. ANGAD KOL & OTHERS reported in 2009 ACJ 1411 SC
(iii) NEW INDIA ASSURANCE CO. LTD. vs. ROSHANBEN RAHEMANSHA FAKIR & ANOTHER reported in 2008 ACJ 2161
4. Learned counsel for the owner as well as the claimant have submitted to dismiss the appeal. Learned counsel for the owner submitted that the insurance has taken the ground with regard to non-possession of valid driving licence on the date of accident, but the same has not been proved. The driver of the offending vehicle was not examined and the driver was in possession of the LLR valid for the period from 17.5.2006 to 16.11.2006. In view of the failure on the part of the insurance company, the owner cannot be held liable.
5. Learned counsel for the claimant relied on the following judgments:
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(i) UNITED INDIA INSURANCE CO. LIMITED vs. SMT.
HONNAMARADI HANUMAKKA AND OTHERS reported in 2011 (2) KCCR SN 148 (DB)
(ii) RUKMANI AND OTHERS vs. NEW INDIA ASSURANCE CO. LTD. AND OTHERS reported in 1999 ACJ 171
(iii) Unreported judgment between THE ORIENTAL INSURANCE CO. LTD. vs. SRI.R.SURESH AND ANOTHER in MFA No.3082/2010 c/w MFA.CROB.No.99/2010 disposed off on 19.8.2011.
Learned counsel for the claimant submitted that pay and recovery could be made against the insurance company since they have failed in proving their case of non-possessing of valid driving licence.
6. Heard learned counsel for both the parties. I have perused the LCR.
7. The questions that arise for my consideration are as follows:
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(i) Whether the insurance company has discharged its duty in proving that the driver of the offending vehicle was not in possession of the valid driving licence as on the date of accident?
(ii) Whether the owner has proved his case that the vehicle was handed over to the driver after verifying that the driver was in possession of valid driving licence?
8. It is the case of the insurance company that the driver of the goods auto rickshaw was not in possession of the valid driving licence. The driver was in possession of LLR valid from 17.5.2006 to 16.11.2006 and regular licence for a period of 10 years with effect from 5.6.2007. The accident occurred on 30.4.2007, i.e. within gap period of LLR and regular licence. This contention has been urged even in the written statement before the Tribunal. The disputed fact is whether the driver was in possession of valid driving licence or not? When the facts are -7- disputed before the Tribunal, it is of the insurance company to satisfy the Tribunal. In the instant case, except stating that the driver was not in possession of valid driving licence and producing Ex.R4 - copy of D.L., no other material is produced. The insurance company should have atleast produced the endorsement issued by the competent authority to the effect that valid licence was not issued to cover the period of accident. Driver of the offending vehicle should have been summoned to examine whether he was in possession of licence or not? Placing the driver, ex-parte is not an excuse in dispensing the evidence of driver. The insurance company could have taken coercive steps as provided under Motor Vehicle Act to summon the driver who was placed exparte. Mere taking a contention without producing available records is insufficient. Hence it is held that the insurance company has not discharged its duty. I answer first point accordingly.
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9. The second point is whether the owner has discharged his duty as required by the provisions of Motor Vehicles Act. As per Section 5 of the MVC Act, it is the duty of the owner that he shall not cause or permit any person who does not possess valid driving licence to drive the vehicle. Though it is true that at the time of handing over the vehicle to the driver, he was possessing LLR, it was the duty of the owner to restrain the driver from using the vehicle after the expiry of LLR period on 16.11.2006. The driver possessed regular driving licence from 5.6.2007 i.e. only after the occurrence of the accident on 30.4.2007. For the negligent action on the part of the driver, the owner is vicariously liable.
10. Under Section 134(c) of the Act, it is the duty of the owner to inform the insurance company who had issued the certificate of policy about the occurrence of the -9- accident and furnish other particulars namely:
(i) insurance policy number and period of its validity; date, time and place of accident;
(ii) particulars of the persons injured or killed in
the accident;
(iii) name of the driver and the particulars of his
driving licence
For the purposes of this section the expression "driver" includes the owner of the vehicle.
Even after the accident, the owner has not taken steps to inform the insurance company immediately after the accident. Hence, there is breach on his part.
11. In order to substantiate he could have examined the driver, but no such effort is taken in this case. Under this circumstance, the owner has also committed breach. Hence the second point is answered against the owner. Hence the third party victim who met with an accident
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and sustained injury cannot be allowed to go with empty hand. The purpose of the Act is to rescue the victim at an earliest possible time. In the instant case both the insurance company and the owner have committed breach. The insurance company has not satisfied the ground taken with regard to non-possessing of valid driving licence. Secondly, the owner has committed breach and violation of Section 5 read with Sections 3 and 134(c) of MV Act. In the circumstances, I pass the following order:
The Tribunal has awarded compensation of Rs.61,506/- with 6% interest. Since both the insurance company and owner have committed breach, both are held liable evenly. 50% of compensation shall be paid by the insurance company and remaining 50% by the owner.
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The owner and the insurance company are directed to satisfy the award within eight weeks from the date of receipt of copy of this order.
Sd/-
JUDGE AHB