Karnataka High Court
Iffco-Tokio General Insurance ... vs Mr.K.Prabhakar Reddy on 19 September, 2013
Equivalent citations: 2014 AAC 1752 (KAR), 2014 (2) AKR 641, (2014) 4 TAC 623, (2014) 1 KANT LJ 707, (2014) 3 ACC 497, (2015) 1 ACJ 389
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19TH DAY OF SEPTEMBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
M.F.A.NO.865 OF 2011(MV)
BETWEEN:
Iffco-Tokio General
Insurance Co. Ltd.,
KSCMF Building,
III Floor, III Block,
No.8, Cunningham Road,
Bangalore - 560 052,
By it's Manager. ... Appellant
(By Sri. O. Mahesh, Advocate)
AND:
1. Mr. K. Prabhakar Reddy,
Aged about 56 years,
C/o. Sreenivasa Reddy,
No.1106, 2nd Main Road,
3rd Cross, Hongasandra,
Opposite: Gurumurthy Building,
Bangalore - 560 068.
2. Mr. T. Vidya Shankar,
Son of Thimmarayappa,
Residing at No.246,
Kambalipura,
Sarjapura Road,
Bangalore. ... Respondents
(By Sri. N. Gopala Krishna, Amicus Curaie for Respondent
No.1
2
Notice to Respondent No.2 is held sufficient vide court order
dated 16.1.2012 )
This Appeal is filed Under Section 173(1) of MV Act
against the judgment & award dated 18.10.2010 passed in
MVC No.6740/2007 on the file of Chief Judge, Court of
Small Causes and Principal MACT, Bangalore, awarding a
compensation of Rs.75,028.98 with interest a 6% P.A. from
the date of petition till realisation.
This Appeal coming on for Hearing this day, the Court
delivered the following:
JUDGMENT
Insurer is in appeal challenging judgment and award passed by the MACT, Bangalore in M.V.C.No.6740/2007 dated 18-10-2010 whereunder claim petition filed by the first respondent herein has been allowed in part and a compensation of Rs.75,028.98 with interest at 6% per annum from the date of petition till date of realisation has been ordered, as against a claim for Rs.5,00,000/-.
2. I have heard the arguments of Shri O. Mahesh, learned counsel appearing for the insurer and Shri N. Gopala Krishna who has been appointed by this court as amicus curaie, since the first respondent is served and unrepresented.
3
3. It is the contention of Shri O. Mahesh that Tribunal erred in not considering the fact that there was a charge- sheet filed against the driver of the offending vehicle under Section 3(1) read with Section 181 of the Motor Vehicles Act, 1988 as per Exhibit P5 for non-possessing driving licence and as such, insurer ought not to have been fastened with the liability by indemnifying the claim of insured. Hence, he seeks for absolving the insurer from answering the claim under the award in question.
4. Per contra, Shri N. Gopala Krishna would support the judgment and award passed by the Tribunal and would contend that mere production of the charge-sheet would not prove the contents and there being no other evidence available on record to corroborate the contents of Exhibit P5, contention of the insurer is liable to be brushed aside. Hence, he prays for dismissal of the appeal.
5. Having heard the learned Advocates appearing for the parties and on perusal of judgment and award passed by the Tribunal and records secured from the Tribunal, I am of the considered view, that following point would arise for consideration:
4
"Whether award of the Tribunal is just and correct in fastening the liability on the insurer, despite jurisdictional police having filed a charge-sheet against the driver of the offending vehicle for an offence punishable under Section 3(1) read with Section 181 of the Motor Vehicles Act, 1988?"
6. There is no dispute to the fact that on 21.06.2007, at about 8.40 p.m., while claimant was standing near Ibbalur Lake Service road, Audugodi, Bangalore a tempo bearing Registration No.KA-05-AD-3726 owned by second respondent herein, dashed against claimant, on account of said impact, claimant fell down and sustained grievous injuries. He was admitted to Lake View Hospital and was treated as an in-patient and as such, he sought for compensation on account of disability suffered. Insurance Company appeared before Tribunal through its counsel and filed its statement of objections and denied the contents of claim petition. On appreciation of evidence both oral and documentary, tribunal allowed the claim petition and awarded a compensation of Rs.75,028.98/- with interest at 5 6% per annum, by fastening the liability on the Insurance Company and holding that insurer has failed to prove by cogent evidence, about non-possessing of effective driving licence by the driver of the tempo (offending vehicle). The only document relied upon by the learned counsel for the insurer to buttress his argument that the driver of the offending vehicle was not possessing driving licence was, Exhibit P5, namely charge-sheet. The contents of the document has not been proved by the insurer. There is no witness examined on behalf of the insurer to prove the contents of Exhibit P5. Insurer having taken a defence in its written statement that driver of the offending vehicle did not possess a valid driving licence and the burden was cast very heavily on the insurer to prove that the driver of the offending vehicle did not possess a valid driving licence when the owner of the offending vehicle had remained exparte. It is no doubt true that a negative fact need not be proved, but when defence is raised by the insurer that there was no valid licence possessed by the driver of the offending vehicle, the burden is on the insurer, particularly when there is no dispute with regard to issuance of policy to the offending 6 vehicle and when the insurer tries to wriggle out of its statutory obligation by attempting to take an umbrage under Section 149, the burden is on the insurer to prove this fact. There is also no dispute to the fact that offending vehicle in question was issued with an insurance policy by the appellant - insurer herein. Hence, when the insurer is trying to avoid its liability only on the defence that driver of the offending vehicle did not possess a valid driving licence and thereby, insured had committed violation of the terms and conditions of the policy, the burden was on the insurer. Under identical circumstances and when an identical plea was raised before this court, it has been held in the following cases as under:
In M.F.A.8840/2008 C/W. M.F.A.988/2009 D.D. 28-06-2012:
"22. No doubt, the insurer has taken a specific defence that the rider of the scooter did not possess a valid driving licence at the time of the accident. To substantiate this, the insurer placed reliance on the contents of the charge sheet. The Police after completing the investigation filed charge sheet, alleging that the 7 investigation revealed that the rider of the motorcycle did not possess a valid driving licence to drive the vehicle. The Tribunal based on the accusation made in the charge sheet has proceeded to hold that the insurer has proved his defence. The Tribunal has also taken note of the fact that the owner of the offending vehicle has not led any evidence to rebut the defence of the insurer in this regard. As noticed supra, the owner, after entering appearance though filed statement of objections, subsequently, he has not contested the petition. The burden of proving the defence that the rider of the motorcycle had not possessed a valid driving licence was heavily on the insurer, who had taken such defence. No doubt, the insurer is required to prove a negative fact. Nevertheless, the burden is on the insurer, who has taken up such specific defence, since, the insurer is trying to avoid its liability on the said ground. There is no dispute that the insurer has issued a Policy of Insurance in respect of the offending vehicle and it was in force as on the date of the accident. The insurer is trying to avoid its liability only on the defence that the rider had not possessed a valid driving licence and thereby the insured has committed violation of terms and conditions of the Policy. Therefore, the 8 insurer is under an obligation to prove the said fact. Mere production of the copy of the charge sheet would by itself not prove the defence of the insurer with regard to the rider not possessing a valid driving licence. No. doubt, in the charge sheet, the police have made an accusation that the rider who has been arrayed as accused therein rode the scooter without possessing a valid driving licence. It is an opinion founded by the Investigating Officer on the basis of the evidence said to have been collected during the investigation. All those materials are not before the Tribunal to come to a conclusion that the rider did not possess a valid driving licence. The accusation made in the charge sheet against the accused persons is required to be proved in accordance with law. Mere filing of the charge sheet is not a proof of the contents thereof. Therefore, the finding of the Tribunal that the insurer has proved its defence based on the contents of the charge sheet is perverse."
In M/S. ORIENTAL INSURANCE COMPANY LIMITED VS. RAMESH B. JAIN AND OTHERS reported in ILR 2003 KAR 5164 it has been held as follows:
"5. Sri A.M. Venkatesh, learned Counsel for the appellant contends that the MACT 9 committed an error in law and on fact in fastening the liability to pay compensation on the Insurance Company though the appellant had established the fact that the driver of the tempo did not have a valid driving licence. Dilating on the said contention, the learned Counsel pointed out that he had examined RW.2-the Investigating Officer in the Criminal Case, in which the driver of the tempo was charge sheeted for not possessing a driving licence under Section 181 of the M.V. Act. In addition, he also contends that he had examined R.W.1 - the Officer of the Appellant - Insurance Company to establish that notices were issued to the driver and the owner of the tempo calling upon them to produce the driving licence of the driver of the tempo. Learned Counsel further submits that there was substantial legal evidence both oral and documentary, placed before the MACT by the appellant to clinch the issue that the driver of the vehicle did not possess a valid driving licence and as a result, the defence taken by the appellant under Sub- section (2) of Section 149 of the Motor Vehicles Act, 1998, ought to have been allowed and the liability if at all was to be fastened on the owner of the tempo alone. It is his further case that the records Exs. R1 to R8 established breach of 10 terms of the insurance policy. On the aforesaid contentions, the learned Counsel sought for interference with the finding of the MACT, by this Court.
6. The fact that the tempo had caused the accident due to the rash and negligent driving by its driver is not in dispute. The fact that the deceased Roopesh Jain died due to the accident and Ramesh Jain, the pillion rider suffer grievous injuries is also not in dispute. The compensation awarded to the claimants is also not dispute. The only point that requires consideration is "whether the evidences of RW.1 and RW.2 coupled with the documentary evidence at Exhibits R1 to R8 are sufficient to substantiate the case of the appellant of proof of breach of terms of the policy thereby entitled to be discharged from the liability to pay compensation. It is no doubt true that the driver of the tempo has been prosecuted for the offences punishable under Section 3 read with Section 181 of the M.V. Act for not possessing a valid licence and also for rash and negligent driving. The evidence of RW.2 i.e., the Circle Inspector, who investigated the said crime, testified to the materials collected in the course of investigation and the prosecution commenced 11 against the driver. This evidence of RW.2-Circle Inspector, does not finally establish that the driver of the tempo did not at all possess a valid driving licence, but discloses that he has prosecuted the tempo driver for not producing the driving licence. His evidence therefore, is not of much assistance to the appellant in order to establish that the driver of the tempo did not possess a valid driving licence at all. The evidence of RW.1, one of the officers of the appellant is only with regard to the issuance of certain letters said to have been addressed to the owner and the driver of the tempo. Neither it is the case of the appellant that notice was served on the said driver and the owner nor is it in the evidence of RW.1 that the notices had been served on them personally. RW.1 has spoken to the records and has no personal knowledge of the fact of addressing letters or their service on the owner and the driver of the motor vehicle. This evidence also does not come to the aid of the appellant to discharge its primary duty to establish that there was breach of terms of the policy. The MACT has held that the insurer - appellant herein had failed to substantiate the said contention in order to escape from the liability to pay the compensation. No exception can be taken to the said finding of the MACT in 12 the present facts and circumstances of the case. The appellant having not been able to establish the case in order to secure the benefit of Sub- section (2) of Section 149 of the Act, this Court cannot interfere with the impugned judgment and decree on the grounds set out in the appeal memorandum. It is needless to say that the claimants are entitled to recover the compensation amount awarded in the common judgment and award impugned in these appeals from the insured in accordance with law, if so advised. The amount in deposit before this Court is directed to be transmitted to the MACT forthwith."
In M.F.A.6729/2008 in the case of Bajaj Allianz General Insurance Company Ltd. vs. Rajesh and others disposed of on 01-03-2010:
"2. I have heard the learned counsel appearing for the appellant and perused the impugned judgment. The sole contention urged by the learned counsel appearing for the appellant - Insurance Company is that the driver of the insured/offending vehicle namely Autorickshaw bearing No.KA-01-B-5931 had no driving licence as on the date of the accident. In support of the said defence, no evidence was produced before the Tribunal except the chargesheet-Ex.R3 filed by police. The charge 13 sheet is no evidence to prove that the driver had no valid driving licence as on the date of accident. Charge sheet is only a report alleging offences against the accused. Therefore, the Tribunal has rightly rejected the contention of the appellant relating to driving licence. The appeal is devoid of merit and is accordingly dismissed. The amount lying in deposit with this Court shall be transferred to the Tribunal forthwith."
A perusal of these judgments of the co-ordinate benches of this court would indicate that, when insurer has failed to prove the defence raised in the statement of objections, such plea cannot be accepted.
The Hon'ble Supreme Court, under similar circumstances, had examined the plea of the Insurance Company in the case of RUKMANI AND OTHERS VS. NEW INDIA ASSURANCE CO. LTD. AND OTHERS reported in 1999 ACJ 171, and held when record is not summoned from the transport authority it has to be held that insurer has failed to discharge its burden. It has held as under: 14
"3. We have seen the only evidence which the Insurance Company produced in support of the plea. This is the evidence of Inspector of Police who investigated the accident. In his evidence, PW 1 who was the Inspector of Police, stated in his examination-in-chief, "My enquiry revealed that the 1st respondent did not produce the licence to drive the abovesaid scooter. The 1st respondent even after my demand did not submit the licence since he was not having it." In his cross-examination he has said that it is the Inspector of Motor Vehicles who is required to check whether the licence is there but he had not informed the Inspector of Motor Vehicles that the 1st respondent was not having a licence since he thought it was not necessary. In our view, this evidence is not sufficient to discharge the burden which was cast on the Insurance Company. It did not summon the driver of the vehicle. No record from the Road Transport Authority has also been produced. In these circumstances, the Insurance Company has not discharged the burden cast upon it under Section 96(2)(b)(ii) of the Motor Vehicles Act, 1939. The impugned order of the High Court is, therefore, set aside and the order of the Tribunal is restored. The appeal is allowed accordingly. No order as to costs."15
7. Keeping the dicta laid down by the Apex Court in the above referred case and also the judgments of the co- ordinate benches of this court and applying the same to the facts on hand, it would clearly indicate that insurer having raised a plea in its written statement about the driver of the offending vehicle not possessing a valid licence, by relying upon Exhibit P5 to claim that it should be absolved of its liability, particularly when the contents of Exhibit P5, (charge-sheet) has not been proved either by examining the Investigating Officer or any other concerned official to prove the same. Said plea has remained as such without proof. In that view of the matter, I do not propose to interfere with the well-reasoned award passed by the Tribunal in fastening the liability on the insurer. I do not find any merit in this appeal and hence, following:
ORDER
i) Appeal is hereby dismissed.
ii) Judgment and award passed by MACT, Bangalore, in M.V.C.No.6740/2007 dated 18.10.2010 is hereby affirmed.16
iii) Amount in deposit is ordered to be transmitted to the Jurisdictional Tribunal forthwith, for disbursement.
iv) The balance amount with interest if any remains to be deposited or paid to the claimant, it shall be deposited by the appellant - insurer before the Jurisdictional Tribunal, within four weeks from the date of receipt of certified copy of this order.
This court would like to place on record effective assistance rendered by Shri Gopala Krishna as an amicus curaie and as such, recommends to the State Government for payment of a Professional fee quantified at Rs.7,500/-.
A copy of this order is directed to be made available to the concerned officials of the State Government by the Registry of this Court, to take steps to effect payment of fee to the learned Amicus Curaie.
Sd/-
JUDGE KS