Karnataka High Court
The National Insurance Company Ltd vs Mohini on 28 March, 2024
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NC: 2024:KHC:14361
MFA No. 6019 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
MISCELLANEOUS FIRST APPEAL NO. 6019 OF 2018 (MV-I)
BETWEEN:
THE NATIONAL INSURANCE COMPANY LTD.,
DIVISIONAL OFFICE,
I FLOOR, VIDYAPOORNA COMPLEX,
NEAR HEAD POST OFFICE,
UDUPI TALUK AND DISTRICT.
REP. BY AUTHORISED SIGNATORY
AT REGIONAL OFFICE,
#144, SHUBHARAM COMPLEX,
M G ROAD, BANGALORE-560 001.
...APPELLANT
(BY SRI SRISHAILA S, ADVOCATE [V/C])
AND:
1. MOHINI,
Digitally W/O BABURAYA ACHARYA,
signed by AGED ABOUT 54 YEARS,
SUVARNA T R/AT 'MATHRUCHAYA'
Location: PADEBETTU, PADIBIDRI,
HIGH UDUPI TALUK AND DISTRICT.
COURT OF
KARNATAKA
2. SAGAR D KOTIYAN,
S/O DODDANNA KOTIAN,
AGED ABOUT 20 YEARS,
R/AT H NO.5-188,
SANDHYA NIVASA, GATLE HOUSE,
PADU VILLAGE, KAPU, UDUPI TALUK.
...RESPONDENTS
(BY SMT. MAMATHA SHETTY, ADVOCATE FOR R1;
R2 SERVED)
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NC: 2024:KHC:14361
MFA No. 6019 of 2018
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 02.05.2018 PASSED IN MVC
NO.145/2016 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE, ADDITIONAL MACT, UDUPI, AWARDING
COMPENSATION OF RS.44,107/- WITH INTEREST AT 6% P.A.
FROM THE DATE OF THE PETITION TILL FULL AND FINAL
REALIZATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the judgment and award passed by the Principal Senior Civil Judge and Additional MACT, Udupi in MVC.No.145/2016 dated 02.05.2018, the Insurance company is before this Court questioning the liability.
2. The claim petition is filed seeking compensation of an amount of Rs.10,00,000/-. It is the case of the claimant that on 26.10.2015 at about 01.30 pm, the claimant was walking towards eastern side of the road, at that point of time, a motorcycle came from Udupi side towards Mangalore, the rider of the said bike rode the said vehicle in a high speed and a negligent manner and came towards the eastern mud portion and hit the pedestrian. -3-
NC: 2024:KHC:14361 MFA No. 6019 of 2018 On account of the same, the pedestrian sustained injuries and taken treatment by spending huge amount.
3. Insurance Company has filed the written statement stating that the driver of the offending vehicle was not having a driving license as on the date of the accident. As such, they are not liable to indemnify the owner and amount that has been spent for medical treatment, food, nourishment, conveyance and other incidental expenses has been denied by them. The Court below on issue No.1 has held that on perusal of the entire cross-examination except for a suggestion to PW.1 nothing worth is elicited as to discard their consistent evidence of PW.1. The accident that has resulted in injury is not denied by the respondent. The convincing evidence of PW.1 coupled with the prosecution papers clinchingly proves that its due to the negligence of the offending motorcycle, the accident took place because of the rash and negligent driving of the driver of the offending vehicle.
4. The below Court had granted compensation of an amount of Rs.44,107/-. When it comes to the liability, -4- NC: 2024:KHC:14361 MFA No. 6019 of 2018 it is the case of the insurance company that the driver of the offending vehicle is having a Learners License. When he is having the Learners License, he should exhibiting a 'L' board towards front and back portion and he should be accompanied by a competent license holder, at on that time, he was accompanied by a minor and as there is clear violation of terms and conditions of the policy, the Insurance Company is not liable to pay the compensation. They relied on judgments of the Hon'ble Apex Court in the cases of NATIONAL INSURANCE CO. LTD. VS.
SWARAN SINGH AND OTHERS1, UNITED INDIA
INSURANCE CO. LTD. VS. BHARAMAPPA
DODDABIRAPPA PUJARI AND ANOTHER2, UNITED INDIA INSURANCE CO. LTD. VS. SMT. RATHNA AND ANOTHER3, K.P. ABDUL GAFOOR VS. NEW INDIA ASSURANCE CO. LTD.4, ORIENTAL INSURANCE CO. LTD VS. BABY5 and submitted that they are not liable to 1 (2004) 2 SCC 297 2 2005 ACJ 1509 3 2017 ACJ 646 4 2018 ACJ 577 5 2015 3 TAC 686 KERALA -5- NC: 2024:KHC:14361 MFA No. 6019 of 2018 pay the compensation. The Court below had negatived the said stand taken by the Insurance Company. Observing that the conditions of the policy is binding between the owner and the Insurance Company and the same cannot be applied to the facts of the case. Apart from that in the referred case liability was fixed on the owner to pay the compensation and claimed against the insurer was dismissed. Further, Court had observed that the owner and driver cannot evade the liability, pay and recover only be invoked by the victim. Therefore, the decision cannot be made applicable to the facts of the present case and accordingly, held that the Insurance Company is liable to pay the compensation.
5. Learned counsel appearing for the Insurance Company submits that the driver of the offending vehicle is having learners license and he has failed to comply with the rules, wherein, he has to be accompanied by a person who is having a license and also to exhibit the 'L' Board. When it amounts to clear violation of the terms and conditions of the policy, the Court below ought to have -6- NC: 2024:KHC:14361 MFA No. 6019 of 2018 applied the principles of pay and recover. Though the Court had discussed the judgments of the Apex Court in SWARAN SINGH's case referred to supra, but failed to apply the principles of pay and recover. It is submitted that it is the owner who is liable to pay the compensation and the said finding of the Court below is contrary to the settled law.
6. Learned counsel appearing for the owner of the vehicle submits that he could not contest the matter before the Court below. It is further submitted that after a full-fledged trial, the Court below has acquitted the driver of the offending vehicle. The Court has observed that while the accident had taken place, the claimants were crossing the road where there is no zebra crossing and the pillion rider has also given evidence that the rider of the vehicle was driving the vehicle in a slow, careful and cautious manner. The Court below had acquitted the accused and also observed that there is no material to show that the accident had taken place because of the negligence on the part of the rider and in fact the claimants were crossing -7- NC: 2024:KHC:14361 MFA No. 6019 of 2018 the road where there was no zebra crossing. He submits that when he has not contributed for the accident and just because these violation of the rules with regard to the obligation of a person who is having a Learners License that itself cannot be a ground. He also relied on the judgment of the Apex Court in SWARAN SINGH's case referred to supra and submits that when he has not contributed to the accident, the owner is not liable to pay the compensation and the Court below had rightly fixed the liability on the Insurance Company.
7. Having heard the learned counsel on either side, perused the material on record. The main thrust of the Insurance Company is on the issue that the rider of the offending vehicle has contributed to the accident and as on that day, though he was having Learners License, he failed to comply with the rules and by exhibiting a 'L' Board on front and backside of the vehicle and also he is not accompanied by a person who is having a license to drive the motorcycle. The Hon'ble Apex Court in SWARAN SINGH's case referred to supra had dealt the cases of -8- NC: 2024:KHC:14361 MFA No. 6019 of 2018 Learners License and observed that when a vehicle is being driven by learner subject to the conditions mentioned in the license, he would not be a person who is not duly licensed, resulting in conferring a right on the insurer to avoid the claim of the party. It cannot be said that a person holding a Learners License is not entitled to drive the vehicle. Even if there exists a condition in the contract of insurance that the vehicle cannot be driven by a person holding Learners License. The same would run contrary to the provisions of Section 149(2) of the Act. The Court had discussed several judgments of the Apex Court. The Court has also observed that mere absence, fake or invalid driving license or disqualification of a driver for driving at the relevant point of time are not in themselves defenses available to the insurer against either the insured or third party. To award its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of the vehicle by a duly licensed driver or one who has disqualified to driver at the relevant point of -9- NC: 2024:KHC:14361 MFA No. 6019 of 2018 time. Even when the insurer is able to prove breach on the part of the insured, then the next thing that has to be proved is the said breach of condition which is so fundamental and has contributed to the cause of the accident. The Tribunal in interpreting the policy conditions would apply within "the rule of main purpose" and the concept of "fundamental breach" to allow the defences available to the insurer under Section 149(2) of the Act.
8. Coming to the facts of this case, the order of acquittal passed by the Criminal Court, wherein the Criminal Court has observed that the claimants were crossing the road and the material placed before the Court clearly shows that they were crossing road where there is no zebra crossing and the material do not show that there is negligence on the part of the rider of the vehicle. In light of the law laid down by the Apex Court in SWARAN SINGH's case referred to supra the breach of conditions as stated by the Insurance Company is not fundamental breach.
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NC: 2024:KHC:14361 MFA No. 6019 of 2018
9. In that view of the matter, this Court is of the opinion that the Court below had rightly held that the Insurance Company is liable to pay the compensation. Hence, the following:
ORDER
i) The appeal of the Insurance Company is dismissed.
ii) The amount in deposit shall be transmitted to the Tribunal forthwith.
iii) Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.
SD/-
JUDGE NR/-
List No.: 1 Sl No.: 0