Karnataka High Court
M/S.Iffco Tokio General Insurance Co ... vs Sri K Krishnan on 14 June, 2012
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF JUNE 2012
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
MFA NO. 7958/2010 (MV)
BETWEEN
M/S.IFFCO TOKIO GENERAL INSURANCE COMPANY LIMITED,
NO. 8, 3RD FLOOR, 3RD BLOCK,
KSCMF BUILDING,
CUNNINGHAM ROAD,
BANGALORE - 560 052.
REPRESENTED BY ITS BRANCH MANAGER/
HEAD- CUSTOMER SERVICE CENTRE,
BY SRI B GUNASHEKA. ... APPELLANT
(BY SRI: D VIJAYAKUMAR, ADVOCATES)
AND
1. SRI K KRISHNAN,
AGED ABOUT 41 YEARS,
S/O SRI GAVI GOUNDAR
2 SMT K MAHESHWARI,
AGED ABOUT 36 YEARS,
W/O SRI K KRISHNAN
2
3 MASTER GOVIDNARAJU
AGED ABOUT 14 YEARS,
S/O SRI K KRISHNAN
SINCE 3RD RESPONDENT IS MINOR
REPRESENTED BY NATURAL GUARDIAN
HIS MOTHER SMT MAHESHWARI,
ALL ARE RESIDENT OF C/O PALANI,
NO.2, 1ST CROSS, JAYARAMA REDDY BUILDING,
NEAR SANDHYA TENT MADIWALA, BANGALORE
4 SRI M SUBRAMANI,
S/O SRI MAUNIYAPA,
AGED MAJOR,
R/O WARD NO.15,
PUPENA AGRAHARA,
BOMMANAHALLI,
BANGALORE. ... RESPONDENTS
(BY SRI: PRUTHVI WODEYAR ADVOCATE FOR R4, R3 IS MINOR
REPRESENTED BY R2)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 02.07.2010 PASSED IN MVC
NO.3490/2009 ON THE FILE OF XIX ADDITIONAL SCJ AND
MACT, BANGALORE, AWARDING A COMPENSATION OF
RS.4,39,700/- WITH INTEREST AT 6% P..A FROM THE DATE OF
PETITION TIL REALISATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
The appeal filed by the Insurance Company challenging the order passed by the XIX Additional SCJ and M.A.C.T, Bangalore in MVC NO. 3490/2009 dated 02.07.2010.
2. The claimants are the legal representatives of the deceased, the ground urged by the learned counsel appearing for the appellant, that the tribunal committed an error in awarding compensation. The vehicle, which involved in the accident, was not having a fitness certificate. The Fitness certificate - Ex.P10 was issued, though it was renewed on 12.02.2009 the fitness certificate was not there as on the date of the accident. Therefore, the owner is not entitled to be indemnified by the Insurance Company. The deceased died in the accident was aged about 17 years, he was riding motor cycle without having any license. The non-possessing license itself is negligence even that ground also urged before the Tribunal but the same has not been considered. The claim petition filed under Section 166(A) of MV Act, no fault liability is not available to the victim in view of the Hon'ble Supreme Court decision in 4 National Insurance Company Limited v/s Shyam Singh and others reported in AIR 2011 SCW 4126. Hence, learned counsel submitted to set aside the order passed by the tribunal.
3. The Tribunal has taken the multiplier according to the age of the deceased, instead age of the younger parent. In this regard, the learned counsel referred the judgement of full Bench in the case of BMTC Vs Jayamma and others and in connected matters (in MFA 12371/2006).
4. On the other hand, learned counsel for the claimants submits, non-possession of fitness certificate at the most it could attract the penal provision under the different provisions of Act. Though the fitness certificate was not existing as on the date of the accident, but soon after the accident, the Motor Vehicle Inspector has been examined and he opines that vehicle was not in a good condition. In support of the submission, the learned counsel refers the judgement of Gujarat High Court 1992 ACJ 148 where at paragraph 4 it is held, no defence on the ground of absence of any certificate of fitness of the vehicle is available 5 to the insurance company. In another judgement of the Division Bench of this court in M.F.A.No.6621/2006 and connected matters dated 18.09.2007 at paragraph 8 it is held that non-possession of fitness certificate cannot be a reason to deny the compensation to the claimants. Learned counsel submitted that the tribunal has considered all these aspects and awarded compensation. No infirmity to be found. Accordingly appeal to be dismissed.
5. Learned counsel appearing for the claimants further submits that under Section 163(A) of MV Act it follows on the ground of no fault liability. Secondly age of the deceased to be taken as per the judgement of the Full Court of this court.
6. I have heard learned counsel appearing for both the parties and perused the records.
7. The question arises for my consideration is:
(i) Whether the order of the tribunal is erroneous in not dismissing the claim on the ground of non-existence of fitness 6 certificate?
(ii) Whether the Tribunal erred in awarding compensation by not considering the fact of not possessing the driving license by the victim?
(iii) Whether no fault liability apply under Section 163(A) of MV Act".
8. Section 149, stipulates that, the insurer to satisfy the judgement and award. The opinion of the full bench of this court in MFA 12371/2006 c/w MFA Crob 96/2007 in MFA12871/2006 12793 defence is not available to the insurer under Section 149 of MV Act, to deny the compensation on the ground of not possessing. In case of New India Assurance Company Limited v/s Shyam Singh and others reported in AIR 2011 SEW 4126 in MFA NO.6621/2006 and Connected matters. It has been held that the fitness certificate not be in force or expired will not disentitle claimant for claiming compensation. It has been held that non-existence of fitness certificate cannot be a reason to deny the compensation to the claimant.
9. The date of accident occurred on 19.02.2009, however it 7 was got renewed on 21.02.2009 that is third day after the accident. After the accident, the Motor Vehicle Inspector inspected the vehicle and opines that vehicle was not a fit condition to drive and Ex.P10 -Fitness certificate was got renewed. During these days the vehicle and undisputedly in possession of the police. Though it was suspected by the learned counsel appearing for insurance company, that the vehicle must have been taken and got repaired for the purpose of obtaining fitness certificate, cannot be pleaded since, no materials are available.
10. Under these circumstances, in the absence of materials available before the Tribunal of this Court to hold that non-existing of fitness certificate was the cause the same cannot be considered. The next question is under Section 163A of MV Act whether the age of the deceased or younger parent is to be taken. The same is answered by this court in BMTC Vs Jayamma and others in connected matters (in MFA 12371/2006) that age of the mother is to be taken. If that is considered and the age of the younger parent 35 years and appropriate multiplier '17' as per second schedule. Under the circumstances, I do not find any good ground to allow this appeal. Hence, appeal stands dismissed. 8
Amount in deposit to be transferred to Motor Accident Claims Tribunal Sd/-
JUDGE DP*