Karnataka High Court
The Iffco Tokio General Ins. Co. Ltd vs Mohammed Sab And Ors on 5 April, 2022
1
IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH
DATED THIS THE 5TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
MFA No.201380/2018 (MV)
BETWEEN:
THE IFFCO TOKIO GENERAL INS. CO. LTD.,
THROUGH ITS BRANCH MANAGER,
ASIAN G-1, & G-2, G-12 & G-13,
NEAR ANAND HOTEL,
S.B.TEMPLE ROAD,
KALABURAGI - 585 105.
(NOW REPRESENTED BY AUTHORIZED
SIGNATORY, BANGALORE)
... APPELLANT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
AND:
1. MOHAMED SAB
S/O SARDAR SAB
KONGADI,
AGE: 37 YRS,
OCC: MASSON WORK
2. SHALIMBI
W/O MOHAMMED SAB,
AGE: 32 YEARS,
OCC: HOUSEHOLD
BOTH R/O: H.NO.E-14/1129,
SANGAMESHWAR NAGAR,
S.B.TEMPLE ROAD,
KALABURAGI - 585 101
3. GOPAL
S/O BHIMRAYA,
AGE: 42 YRS,
OCC: AGRIL & OWNER OF MOTORBIKE
2
NO.KA-33/R-4438,
R/O: DEVIKARA,
TQ: SHORAPURA,
DIST: YADGIR - 585 201
... RESPONDENTS
(BY SRI. PRASHANT S KUMMAN, ADVOCATE FOR R1 & R2;
SRI. S RAVI G MADABHAVI, ADVOCATE FOR R3)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION
173 (1) OF THE MOTOR VEHICLES ACT, 1988 PRAYING TO ALLOW THE
ABOVE APPEAL BY SETTING ASIDE THE IMPUGNED JUDGMENT AND
AWARD DATED 01.03.2018 IN MVC NO.771/2016 PASSED BY THE II ND
ADDITIONAL SENIOR CIVIL JUDGE & MACT, KALABURAGI, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS MFA BEING HEARD AND RESERVED FOR JUDGMENT ON
08.02.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is by respondent No.2 - Insurance company challenging the impugned judgment and award passed by the Tribunal directing it to pay compensation in a sum of Rs.5,15,000/- with interest at 6% p.a.
2. For the sake of convenience the parties are referred to by their rank before the Tribunal.
3. Petitioners who filed claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'M.V.Act'), sought compensation in a sum of Rs.11,00,000/- for 3 the death of their son Saddam, in a motor vehicle accident dated 31.01.2016.
4. It is the case of the petitioners that on 31.01.2016 at 2.30 p.m. their son Saddam was travelling in a motor cycle bearing registration No.KA-36/EH 1021 as a pillion rider on Devadurga-Arkera Main Road. When the two wheeler was at Maddigaddi Tanda Cross, rider of motor cycle bearing registration No.KA-33/R 4438 (hereinafter referred to as offending vehicle) came in a rash or negligent manner and dashed against it. In the accident, Saddam sustained grievous injuries and died. In respect of the said accident, case in Cr.No.33/2016 is registered against the rider of the offending vehicle and hence the petition.
5. Respondent No.1 appeared and filed written statement denying that accident occurred due to rash or negligent driving by the rider of the offending vehicle.
6. Respondent No.2 has filed written statement denying the petition averments, but admitting that the offending vehicle was insured with it and the insurance policy was in force. At the 4 time of accident, the rider of offending vehicle was not having a valid and effective driving license and as the condition of the policy is violated, it is not liable to pay the compensation.
7. Based on the pleadings, the Tribunal has framed issues including issue No.2 as to whether respondent No.2 proves that rider of the offending vehicle was not holding a valid and effective driving license at the time of accident and thereby violated the terms and conditions of the policy.
8. During the enquiry petitioner No.2 is examined himself as PW-1 and relied upon Ex.P1 to 9.
9. In this case respondent No.2 has not led oral evidence, but with consent got marked copy of the insurance policy as Ex.R1.
10. The Tribunal has answered all the issues in favour of the petitioner and granted compensation in a sum of Rs.1,15,000/- with interest at 6% p.a. and directed respondent No.2 to pay the compensation with interest. The details of the compensation granted are as under:
5
Heads Amount in
Rs.
Towards love and affection 50,000
Towards funeral expenses & 15,000
transportation charges
Loss of dependency 4,50,000
TOTAL 5,15,000
11. Petitioners have not challenged the impugned
judgment and award.
12. Heard the arguments and perused records.
13. Being aggrieved by the impugned judgment and award respondent No.2 has come up with this appeal contending that impugned judgment and award is contrary to the provisions of M.V.Act. There is no application of judicious mind. The Tribunal has erred in overlooking the charge sheet at Ex.P3 which is admittedly a document relied upon by the petitioners, wherein the rider of the offending vehicle was charge sheeted for driving the vehicle without possessing a valid driving license in contravention of Section 181 of the M.V.Act. The finding of the Tribunal on this issue is perverse. In addition to the above contentions, respondent No.2 has also challenged the quantum 6 of the compensation granted on the ground that it is on the higher side and without any basis.
14. As discussed in impugned judgment and award, a criminal complaint came to be filed against the rider of the offending vehicle in Cr.No.33/2016 as per Ex.P1 - the FIR. After completing the investigation, the Investigating Officer has filed charge sheet against the rider of the offending vehicle for the offences punishable under Sections 279, 337, 338, 304 (A) IPC r/w Section 181 of the M.V.Act which is in addition to causing simple, grievous injuries as well as death due to the rash or negligent act and also at the time of accident not possessing a valid driving license.
15. It is pertinent to note that in MVC.No.770/2016, which is a petition arising out of the same accident, the Investigating Officer who has filed charge sheet against the driver of the offending vehicle is examined as RW-1. He has deposed to that effect. The Tribunal has not accepted the contention of the respondent No.2 that at the time of accident the driver of the offending vehicle was not holding a valid and 7 effective driving license, only on the ground that the RTO is not examined and the evidence of Investigating Officer is not sufficient to prove the said fact.
16. However, in (2004) 3 SCC 2971 the Hon'ble Supreme Court though held that in order to avoid liability, the Insurance company is required to prove that insured was guilty of negligence and failed to exercise reasonable care in fulfilling the conditions of the policy regarding use of vehicle by duly licensed driver or by one who was not disqualified to drive the vehicle at the relevant point of time, it further held that no criteria could be laid how to discharge this burden. It further held that when the Insurance company has satisfactorily proved the defence under Section 149 (2) read with 149 (7) of M.V.Act, the Tribunal may direct the insured to reimburse the amount paid under the award to third party.
17. Following Swaran Singh's case, in (2018) 3 SCC 2082 (Full Bench), the Hon'ble Supreme Court held that the Insurance company is entitled to defences that vehicle was 1 National Insurance Co. Vs Swaran Singh & Others 2 Pappu and others vs. Vinod Kumar Lamba and another 8 driven by unauthorized person or did not have a valid driving license. However, the onus would shift on the Insurance company only after the insured prove basic factors within his knowledge that the driver of offending vehicle was authorized by him and he was having a valid driving license at the relevant point of time.
18. Admittedly, in spite of a charge sheet being filed against the driver of the offending vehicle that he was not possessing a valid and effective driving license, respondent No.1 has not chosen to establish that in fact at the time of accident, the rider of the offending vehicle was possessing a valid and effective driving license. Therefore, the findings of the Tribunal that respondent No.2 is liable to pay the compensation, without ordering for recovery of the same from respondent No.1 is incorrect. To that extent the appeal filed by respondent No.2 succeeds.
19. So far as quantum of compensation is concerned, since the deceased was aged 8 years relying upon the decision 9 of the Hon'ble Supreme Court reported in (2014) 1 SCC 2443 the Tribunal has correctly granted the compensation in a total sum of Rs.5,15,000/- with interest at 6% p.a. and there is no scope for interference and accordingly, I proceed to pass the following:
ORDER
(i) Appeal is allowed in part.
(ii) The impugned judgment and award is confirmed so far as quantum of compensation granted by the Tribunal is concerned.
(iii) Respondent No.2 is directed to pay the compensation with interest at 6% p.a. and recover the same from respondent No.1.
(iv) Office is directed to transfer the amount in deposit to the Tribunal.
Sd/-