Karnataka High Court
The Manager vs Smt. Channavva W/O Prakash Gadad on 21 August, 2023
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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NC: 2023:KHC-D:9248-DB
MFA No. 102032 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF AUGUST, 2023
PRESENT
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR JUSTICE G. BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO.102032 OF 2023 (MV-D)
BETWEEN:
THE MANAGER,
BAJAJ ALLIANZ GENERAL INSURANCE COMPANY
LIMITED,
MADIVALE COMPLEX, CLUB ROAD,
BELAGAVI. NOW REPRESENTED BY ITS
AUTHORIZED SIGNATORY.
...APPELLANT
(BY SRI S.K. KAYAKMATH, ADVOCATE)
AND:
1. SMT. CHANNAVVA W/O. PRAKASH GADAD,
AGE: 40 YEARS, OCC: HOUSEHOLD,
SAMREEN R/O: NEGINAHAL, TALUK: BAILHONGAL,
AYUB
DESHNUR DIST: BELAGAVI-590001.
Digitally signed 2. KUMAR PRAVEEN S/O. PRAKASH,
by SAMREEN
AYUB AGE: 23 YEARS, OCC: STUDENT,
DESHNUR
Date: R/O: NEGINAHAL, TALUK: BAILHONGAL,
2023.10.18
11:10:41 +0530 DIST: BELAGAVI-590001.
3. KUMARI BHARATI D/O. PRAKASH GADAD
AGE: 20 YEARS, OCC: STUDENT,
R/O: NEGINAHAL, TALUK: BAILHONGAL,
DIST: BELAGAVI-590001.
SMT. RAMAVVA W/O MAHADEVAPPA GADAD,
SINCE DECEASED BY HER LEGAL HEIRS:
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NC: 2023:KHC-D:9248-DB
MFA No. 102032 of 2023
4. SRI MARUTI MAHADEVAPPA,
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O: NEGINAHAL, TALUK: BAILHONGAL,
DIST: BELAGAVI-590001.
5. SRI CHIDANAND MAHADEVAPPA GADAD
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O: NEGINAHAL, TALUK: BAILHONGAL,
DIST: BELAGAVI-590001.
6. SRI BASAVARAJ S/O. MAHADEVAPPA GADAD
AGE: 37 YEARS, OCC: AGRICULTURE,
R/O: NEGINAHAL, TALUK: BAILHONGAL,
DIST: BELAGAVI-590001.
7. SRI MAHADEVAPPA S/O. BASAVANTAPPA GADAD
AGE: 78 YEARS, OCC: AGRICULTURE,
R/O: NEGINAHAL, TALUK: BAILHONGAL,
DIST: BELAGAVI-590001.
8. SRI BASAPPA BHIMAPPA PADADAPPANAVAR
AGE: 57 YEARS, OCC: AGRICULTURE AND DRIVER,
R/O: NEGINAHAL, TALUK: BAILHONGAL,
DIST: BELAGAVI-590001.
9. SRI SATYAPPA M. BUGADAKATTI
AGE: MAJOR, OCC: AGRICULTURE,
R/O TELAGAINAHATTI, POST. MADIVAL,
TALUK: GOKAK DIST: BELAGAVI-590001.
...RESPONDENTS
(BY SRI YASH NADAKRNI, ADVOCATE FOR
SRI VITTHAL S. TELI, ADVOCATE FOR C/R1;
NOTICE SERVED TO R2 TO 6 R8 AND R9;
R7 DECEASED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173 (1) OF MOTOR VEHICLES ACT, 1988, PRAYING
THE JUDGMENT AND AWARD DATED 20.02.2023 PASSED IN
MVC NO.1802/2019 ON THE FILE THE IX ADDITIONAL
DISTRICT JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, BELAGAVI,
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NC: 2023:KHC-D:9248-DB
MFA No. 102032 of 2023
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
BASAVARAJA, J., DELIVERED THE FOLLOWING:
JUDGMENT
The Insurance Company has preferred this appeal against the judgment and award dated 20th February, 2023 passed in MVC No.1802 of 2019 by the IX Additional District Judge and Additional Motor Accident Claims Tribunal, Belagavi (for short, hereinafter referred to as the "Tribunal").
2. For the sake of convenience, the parties in this appeal are referred to as per their status and rank before the Tribunal.
3. The factual background that led to the filing of the claim petition is as follows:
On April 5, 2019, around 12:00 am, the deceased individual, Prakash, and others were traveling in a Tempo Traveller-407 with registration No. KA-30/5811, driven by the first respondent, Basappa. When they reached near Maladinni Yarn Factory on Gokak-Yaragatti Road, the Tempo Traveller drove the same in a reckless and negligent manner at a very high speed and in this manner, maneuvered over a speed breaker, causing Prakash and others to be thrown from the vehicle.-4-
NC: 2023:KHC-D:9248-DB MFA No. 102032 of 2023 Tragically, Prakash suffered severe injuries and succumbed to them in the hospital later that same day.
4. It is further stated that at the time of the accident, the deceased, Prakash, was 45 years old and was in good health. He earned a monthly income of Rs. 15,000/- by working as an agricultural laborer. Due to his untimely demise, the family lost its primary breadwinner. Petitioner No.1 lost her husband, petitioners 2 and 3 lost their father, and petitioners 4 and 5 lost their son. It is also mentioned that there was a dependency on the deceased, and compensation is being sought.
5. Upon service of notice, respondents 1 to 3 appeared through their respective counsel. The gist of objection of respondent No.1 is the complete denial of age, occupation and income of the deceased, so also, the date, time, place and manner of accident. It is contended that the accident took place due to sole, rash and negligent driving of driver of Tempo Traveler. It is also contended that the vehicle is insured with respondent No.3 and hence, the respondent No.1 is not liable to pay the compensation.
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NC: 2023:KHC-D:9248-DB MFA No. 102032 of 2023
6. The substance of the written statement of respondent No.2 is that he has sold the vehicle in favour of the respondent No.1 prior to accident and hence, the vehicle in question was owned by the No.1 and is insured by the respondent No.3 and hence, if the Court comes to conclusion that the claimants are entitled for compensation then the same shall be paid by the respondent No.3.
7. The contention of written statement of respondent No.3 is that the Tempo Traveler was insured for the period from 23rd February, 2019 to 22nd February, 2022 and the vehicle was a goods carriage vehicle and at the time of accident said vehicle was being used to carry passengers without any permit and thus, the risk of the owner is not covered under the policy in question. Further, the averments made in the claim petition are denied and sought for dismissal of claim petition.
8. Based on the above pleadings, the Tribunal framed the following issues for its consideration:
1. Whether the petitioners prove that late Prakash S/o Mahadevappa Gadad succumbed to the injuries in the motor vehicle accident that took place on 06.04.2019 at 12.00 am near Maladinni -6- NC: 2023:KHC-D:9248-DB MFA No. 102032 of 2023 Yarn Factory, on Gokak-Yaragatti road within the limits of Maladinni village, due to the rash and negligent driving of the tempo bearing No.KA-30-
5811 by its driver?
2. Whether the petitioners were the dependants of deceased late Prakash S/o Mahadevappa Gadad?
3. Whether the petitioners are entitled for compensation? If so, at what amount and from whom?
4. What order or award?"
Additional Issue:
1. Whether the respondent No.3 proves that there is violation of policy conditions?
9. To prove the claim of petitioners, petitioner No.1 was examined as PW1 and eight documents were produced as Exhibits P1 to P8. The law Officer of respondent No.3 was examined as RW1 and four documents were got marked as Exhibits R1 to R4. On hearing arguments, the Tribunal has given its finding as under:
Issue No.1: in the affirmative;
Issue No.2: in the affirmative;
Addl. Issue No.1: in the affirmative;
Issue No.3: Rs.20,67,832/- from the 1st respondent;-7-
NC: 2023:KHC-D:9248-DB MFA No. 102032 of 2023 Issue No.4: as per final order
10. In view of the above finding, the Tribunal allowed the petition in part and awarded compensation of Rs.20,67,832/- with interest at the rate of 6% per annum from the date of petition till its realization.
11. Being aggrieved by the above judgment and award, the appellant Insurance Company is in appeal challenging the liability.
12. Learned counsel representing the appellant Insurance Company contends that the impugned judgment and award are contrary to both the law and facts presented in the record. He submits that the vehicle involved in the accident was a goods vehicle, and the deceased was traveling in the same as a gratuitous passenger. In the case of goods vehicles, neither statutory nor contractual coverage exists for the risk of gratuitous passengers. Nonetheless, the Tribunal has imposed liability on the Insurance Company.
13. Learned counsel further asserts that the complaint was filed by one Prakash Fakeerappa Gadad. The First Information Report and the complaint have been submitted and -8- NC: 2023:KHC-D:9248-DB MFA No. 102032 of 2023 marked as evidence, identified as Exhibits P1 and P2. These documents explicitly state that the deceased was traveling in the vehicle as a gratuitous passenger, specifically to attend the Fair. The insurance policy was issued in compliance with Section 147 of the Motor Vehicles Act. However, there is no statutory coverage provided under Section 147 of the Act for a gratuitous passenger. Nevertheless, the Tribunal has directed the Insurance Company to fulfill the award initially and recover the amount from the vehicle owner, which is deemed erroneous.
14. Furthermore, it is noted that a charge sheet has been submitted and marked as evidence at Exhibit P6, revealing that the driver was charged under Section 3, read with 181 and 192 of the Motor Vehicles Act, for driving the vehicle without a driving license and without a permit. The Insurance Company had previously filed an application before the Tribunal requesting the respondent owner to produce the driving license and permit. Although both the driver and the owner were represented by their Advocate, they failed to produce these documents. Additionally, the counsel argues that the Tribunal neglected to adhere to the provisions of the -9- NC: 2023:KHC-D:9248-DB MFA No. 102032 of 2023 Minimum Wages Act. Based on these grounds, learned counsel requests that the appeal be allowed. To substantiate his argument, he relies on the judgment of the Hon'ble Supreme Court in the case of BALU KRISHNA CHAVAN v. THE RELIANCE GENERAL INSURANCE COMPANY LIMITED AND OTHERS reported in 2022 LIVELAW (SC) 932.
15. On the other hand, learned counsel appearing for the respondent-claimants submits that the Tribunal has properly appreciated the evidence on record in accordance with law and facts and awarded the just compensation. That there are no grounds to interfere with the impugned judgment and award and sought for dismissal of the appeal. To buttress his submissions, he relied upon the Division Bench judgment of this Court in the case of H. KUMARI AND OTHERS v. B.C. SRIDHAR AND OTHERS reported in (2021)1 AKR 18; and in the case of ANU BHANVARA v. IFFCO TOKIO GENERAL INSURANCE COMPANY LIMITED AND OTHERS reported in (2020)20 SCC
632.
16. With regard to the quantum of the compensation, the Tribunal has assessed the income of the deceased at
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NC: 2023:KHC-D:9248-DB MFA No. 102032 of 2023 Rs.13,250/- per month as per the guidelines issued by the Karnataka State Legal Services Authority which cannot be found fault with. The Tribunal has rightly awarded the compensation as per the decision of Hon'ble Supreme Court in the case of SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER reported in (2009)6 SCC 121; in the case of MAGMA GENERAL INSURANCE COMPANY LIMITED v. NANU RAM AND OTHERS reported in (2018)18 SCC 130; and the judgment of the Hon'ble Supreme Court in the case of KIRTHI AND ANOTHER ETC. v. ORIENTAL INSURANCE COMPANY rendered in Civil Appeals No.19 & 20 of 2021. On re-appreciation of the evidence on record, we do not find any illegalities/infirmities in the compensation awarded by the Tribunal.
17. As regards liability of the appellant Insurance Company is concerned, the Tribunal, at paragraph 15 of the impugned judgment, has observed as follows:
"15. Once it is held that the petitioners are entitled for compensation and the quantum is fixed, the liability has to be fixed. Ex.R2 is the policy copy. It shows that the offending vehicle has valid policy from 23.02.2019 to 22.02.2020. Date of accident is 05.04.2019. Therefore,
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NC: 2023:KHC-D:9248-DB MFA No. 102032 of 2023 as on the date of the accident, the vehicle had a valid insurance policy.
The 3rd respondent has contended that there is a violation of policy condition. While answering additional issue No.1, it is held that there is violation of policy condition by the 1st respondent. Therefore, the 3rd respondent cannot be held liable to pay compensation. Therefore, now the question is whether the Tribunal can pass the orders for pay and recovery.
Learned advocate for the 3rd respondent argues that as per the petitioner was not a 3rd party, the Insurance Company cannot be held liable to pay compensation. He cites judgment of Hon'ble High Court of Chatisgarh in THE NEW INDIA ASSIRANCE COMPANY LIMITED v. ASHOK KUMAR YADAV reported in (2018) ACJ 69 wherein it is held as under:
"Motor Vehicles Act, 198: Sections 147 and 149 - Motor Insurance Gratuitous passenger - Goods vehicle - pay and recover - there being no contract between Insurer and Insured, Insurer gets exonerated from the statutory liability. 'pay and recover' principle cannot be made applicable in such a case - Decision of Tribunal to direct appellant to pay compensation and recover it from insured not in accordance with principle laid down - Order of 'pay and recover' passed against appellant set aside"."
18. The operative portion of the impugned judgment is as follows:
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NC: 2023:KHC-D:9248-DB MFA No. 102032 of 2023 "ORDER The petition filed under Sec.166 of the Motor Vehicles Act is allowed in part with costs.
The petitioners are entitled to receive a total compensation of Rs.20,67,832/- (Twenty lakhs sixty seven thousand eight hundred and thirty two rupees only) along with interest at the rate of 6% p.a. from the date of the petition. The petitioners No.1, 2, 3 and 5 are entitled to receive the compensation in the ratio of 40:25:25:10.
The 1st respondent is liable to pay compensation. However, the 3rd respondent is directed to pay the amount and recover it from the 1st respondent.
xxx"
19. The Division Bench of this Court in the case of H.KUMARI (supra) at paragraphs 27, 28 and 30 has observed thus:
"27. In the instant case, it is noted that respondent No.3 had examined the concerned RTO with regard to driving licence of respondent No.1 as RW.1. In his evidence, it has been clearly admitted that respondent No.1 had possessed licence to drive a heavy goods vehicle, but not to drive hazardous goods vehicle at the time of accident as there was no endorsement on the licence.RW.1 produced 'B' register extract of the offending vehicle as per Ex.R-1 and permit as per Ex.R-2. Ex.R-3 is the history sheet for drivers pertaining to respondent
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NC: 2023:KHC-D:9248-DB MFA No. 102032 of 2023 No.1. On perusal of the same, the Tribunal has come to the conclusion that respondent No.1 did possess a licence to drive heavy goods vehicle, but no endorsement on the licence to drive a hazardous goods vehicle. On the side of the claimants, Ex.P-15 was produced, which pertains to respondent No.1. Ex.P-15 reveals that respondent No.1 possessed a driving licence to drive a hazardous goods vehicle for the period from 26/03/2013 to 09/10/2013 which is a period subsequent to the accident. But as on the date of the accident i.e., on 02/07/2012, there was no such endorsement on the licence of respondent No.1. In the circumstances, the Tribunal held that he did not possess a valid driving licence to drive a hazardous goods vehicle on the date of the accident and hence, the insurance company was exonerated from its liability to satisfy the award and the same was fastened on the ownerof the oil tanker.
28. In this context, it would be useful to refer to a judgment of a Co-ordinate Bench of this Court of which, one of us (Nagarathna J.) was a member, in the case of Smt. Nandhitha N.S. & another vs. Subramanya P. & others in MFA.No.1716/2017, disposed of on 02/12/2019, wherein on the facts of the said case, this Court held that the insurance company was liable to satisfy the award and seek recovery of the same from the insured. The relevant portion of the said judgment at paragraph Nos.32 to 36 read as under:
"32. In the instant case, considering the documentary evidence on record, we find that RW.3/Anandamurthy possessed a licence to drive a transport vehicle as per Ex.R-1 and Exs.R-3
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NC: 2023:KHC-D:9248-DB MFA No. 102032 of 2023 and R-4 are the certificates to the effect that he had undergone one day refresher course for renewal of licence for the relevant period, but the fact remains that there is no endorsement on the said licence. The question is, merely because there is no endorsement to drive a transport vehicle carrying goods of dangerous or hazardous in nature, would it amount to RW.3/the driver, in the instant case, not having an effective driving licence. In other words, was he not duly licenced or lacked the skill and therefore, was not qualified to drive such a licence? In this regard, we would like to consider the matter in light of the provisions of law as stated in Section 14 read with Rule 9 of the Rules and thereafter, the facts of the present case.
33. When we consider the requirement of possessing a licence to drive a transport vehicle carrying dangerous or hazardous nature, what are necessary to be complied with, as already noted above are, the requirements which are stated in Rule 9. Once the requirements of Rule 9 are satisfied, an application must be made to seek an endorsement on the driving licence and the endorsement is made by the concerned licensing authority authorizing to drive such a vehicle is granted. Therefore, there can be no two views in the matter that the requirements as stipulated in Rule 9 of the Rules must be mandatorily complied with for the purpose of making an application to get an endorsement on the driving licence. There cannot be any deviation nor any exemption from the said requirements, but once the requirements have been fulfilled, then the only remaining requirement is, to make an application to the concerned licensing authority to seek an authorization in the form of an endorsement. In the instant case, we find that RW.3/Anandamurthy driver of the offending vehicle had complied with all the requirements under Rule 9 of the Rules. But there was no endorsement made in the driving licence at the relevant point of time.
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34. Further, when it comes to the renewal of driving licence, it is noted that the condition precedent is that the driver has to undergo a refresher course, which requirement is also complied with by the driver of the offending vehicle, in the instant case. Merely because there is no endorsement on Ex.R-1, can it be said that the driver of the offending vehicle did not possess the skill or did not have the eligibility to drive the vehicle in question? We do not think that such a view could be taken in the instant case as we find that the driver of the offending vehicle did possess the licence to drive a transport vehicle as on the date of accident. He had also undergone the requisite one day refresher course, which is a mandatory requirement for the renewal of a licence to drive a transport vehicle carrying dangerous and hazardous nature. Thus the driver had acquired the skill to drive the offending vehicle in the instant case. The only thing which is absent in Ex.R-1 is there is (no renewal of the driving licence to drive the transport vehicle carrying goods of hazardous in nature) no endorsement, which was made on the driving licence. But, by that, it cannot be said that the driver of the vehicle lacked skill or the eligibility to drive the vehicle in question i.e., a transport vehicle carrying goods dangerous and hazardous in nature. In other words, there is no endorsement to the effect that there was renewal of the licence for a period of one year after although the driver of the vehicle had undergone one day refresher course on 03/03/2013 (Ex.R-3). What is pertinent to note in the instant case is that the conditions precedent for securing renewal of licence of the driving licence to drive a transport vehicle carrying dangerous or hazardous nature had been complied by RW.3 as there cannot be any exemption from complying with such conditions. But, once the said conditions have been complied with, merely because there is no endorsement on the driving licence it would not mean that the driver of the vehicle in question was not authorized to drive the same in the
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NC: 2023:KHC-D:9248-DB MFA No. 102032 of 2023 context of not having the skill to drive such a vehicle. In the circumstances, while we are in full agreement with what has been contended by the learned counsel for the respondent/insurer insofar as the mandatory requirements of proviso to Section 14(2)(a) read with Rule 9 of the Rules are concerned, at the same time, when we apply the same to the facts of the present case, we find that we cannot take an extreme view by holding that because there was no endorsement on Ex.R-1 would imply that the driver in the instant case did not have nor possessed the skill or the ability or for that matter, the qualification to drive the transport vehicle in question which was meant to carry goods of dangerous or hazardous nature.
35. In the above context, we have perused the oral evidence on record. As already noted, RW.1 is the owner of the vehicle and the insured who has produced Exs.R-1 to R-4 in his examination-in-chief and there is nothing incriminating which has been elicited in his cross-examination. RW.2 is Ashwaq Ahmed, RTO, Yeshwanthpur, Bengaluru, who has also spoken about the requirements of a valid driving licence to drive a transport vehicle meant for carrying hazardous or dangerous goods as referred to above. RW.3/driver of the offending vehicle has also stated that he possessed a driving licence to drive the heavy goods vehicle from the year 2010 onwards and that he also stated in his examination-in-chief that he had undergone the refresher course, which is as per Exs.R-3 and R-4. In his cross-examination, he stated that he had paid a sum of Rs.700/- as fee for the training for the refresher course and he had received the certificates from the office of the RTO at Yeshwanthpur.
36. RW.4 is the ARTO of Indiranagar, who, in his cross-examination, has categorically stated that as per Ex.R-1, the driver of the offending vehicle had licence to drive a heavy goods vehicle. That Exs.R- 3 and R-4 are the certificates issued to the driver of the offending
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NC: 2023:KHC-D:9248-DB MFA No. 102032 of 2023 vehicle for having undergone refresher training course for a day i.e., as stipulated. He also admitted that without certificates like Exs.R-3 and R-4, the driver cannot be permitted to drive a hazardous goods vehicle. He also admitted that Exs.R-3 and R-4 should be shown to the RTO Authorities for an endorsement within a particular time. The said evidence would indicate that once the certificates of undergoing training refresher course is issued, no time is fixed under the Act or in the Rules for making an application seeking an endorsement on the driving licence so as to obtain authorization to drive a transport vehicle meant for carrying hazardous or dangerous goods. In the instant case, as already noted, there is no such endorsement issued on Ex.R-1, but we have already noted that though there is no such endorsement issued on Ex.R-1, the other conditions required for seeking such an endorsement were fulfilled by the driver of the offending vehicle RW.3 in the instant case. Therefore, we think that this is not a case where there can be an exoneration of the insurance company from its liability to satisfy the award. At the same time, as we have stated that the object and purpose of seeking endorsement on the driving licence after complying with Rule 9 of Rules and the proviso to Section 14(2)(a) of the Act is to seek authorization to drive a transport vehicle meant for carrying hazardous or dangerous goods, we cannot also ignore the importance of such an authorization. For seeking such an authorization, it is necessary to make an application and get an endorsement on the driving licence. The object and purpose of an endorsement on a driving licence to make a public declaration that the holder of such a licence is authorized to drive the said vehicle namely, a transport vehicle meant for carrying dangerous or hazardous goods is in the instant case. But merely because there is no authorization or public declaration in the instant case, it cannot be held that the driver did not possess the skill or qualification to drive such a vehicle, but there was no declaration of the
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NC: 2023:KHC-D:9248-DB MFA No. 102032 of 2023 same on the driving licence by way of an endorsement. Hence, in the instant case, we hold that the insurance company is liable to satisfy the award and seek recovery of the same from the insured. The reason why we are stating so is on account of the fact that there is an absence of the endorsement on the driving licence, but there is compliance of all the conditions required for making an application to seek such an endorsement under the Act as well as under the Rules. Hence, point No.1 is answered accordingly by reversing the finding of the Tribunal."
The observations made in the aforesaid judgment are squarely applicable in the present case.
29. XXX XXX XXX
30. Applying the aforesaid ratio and dicta to the present case, since it has been established by respondent No.3/insurer that the driver of the offending vehicle respondent No.1 did not possess a valid driving licence on the date of the accident inasmuch as he did not have an endorsement to drive a hazardous goods vehicle, though he had a valid licence to drive a heavy goods vehicle which is a transport vehicle, respondent No.3/insurer would have to pay compensation to the claimants and recover the same from respondent No.2/owner of the vehicle. The same could be done by executing the judgment of this Court. In the circumstances, point No.1 is answered in favour of the appellants/claimants by modifying the judgment of the Tribunal by directing respondent No.3/insurer to pay compensation to the appellants/claimants and to recover the same from respondent No.2/owner of the offending vehicle by
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NC: 2023:KHC-D:9248-DB MFA No. 102032 of 2023 executing this judgment. Accordingly, point No.1 is answered."
20. In the case of ANU BHANVARA (supra), at paragraphs 11 and 12, the Hon'ble Supreme Court has observed thus:
"11. We have heard the learned counsel for the parties and perused the record as well as the various decisions cited by the learned counsel for the parties. The Insurance, of the vehicle, though as a goods vehicle, is not disputed by the parties. The claimants in the present case are young children who have suffered permanent disability on account of the injuries sustained in the accident. Thus, keeping in view the peculiar facts and circumstances of this case, we are of the considered view that the principle of "pay and recover" should be directed to be invoked in the present case.
12. Accordingly, these appeals are disposed of with the direction that respondent No.1 insurance Company shall be liable to pay the awarded compensation to the claimants in both the appeals. However, respondent No.1 Insurance Company shall have the right to realise the said amount of compensation from respondents 2 and 3 (driver and owner of the vehicle) in accordance with law."
21. We have also examined the decision relied upon by the learned counsel representing the appellant Insurance Company in the case of BALU KRISHNA CHAVAN (supra). Upon
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NC: 2023:KHC-D:9248-DB MFA No. 102032 of 2023 re-evaluation of the evidence presented in the record and considering the aforementioned decisions in the cases of H. KUMARI and ANU BHANVARA (supra), we are of the opinion that the Tribunal has correctly assessed the evidence on record and issued the impugned judgment and award. We do not find any grounds to interfere with the judgment and award, both in terms of liability and the quantum of compensation. Accordingly, we proceed to pass the following:
ORDER
1. Appeal is dismissed;
2. Judgment and award passed dated 20th February, 2023 passed in MVC No.1802 of 2019 is confirmed;
3. Amount in deposit if any, as well as the trial Court Records, be transmitted to the Tribunal forthwith for onward disbursal of the compensation amount to the claimants.
Sd/-
JUDGE Sd/-
JUDGE LNN LIST NO.: 1 SL NO.: 25