Karnataka High Court
Smt. Vijayakumari R vs Smt. Kalpana on 7 July, 2017
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MFA Nos.3697 C/W 4811, 6326 & 6327/2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JULY 2017
PRESENT
THE HON'BLE MR. JUSTICE H.G.RAMESH
AND
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
MISCELLANEOUS FIRST APPEAL NOS. 3697/2015
C/W
4811,6326 & 6327/2015 (MV-D)
M.F.A NO.3697/2015:
BETWEEN :
SMT. VIJAYAKUMARI.R
W/O SHASHIKUMAR.G.V
AGED ABOUT 57 YEARS
RESIDING AT NO.201, 3RD FLOOR
NANDAGOKULA APARTMENTS
SANKEY ROAD
BENGALURU-560 003 ...APPELLANT
(BY SRI D.L.N.RAO, SENIOR COUNSEL FOR SRI RAJASHEKAR.K,
ADVOCATE)
AND :
1. SMT.KALPANA
W/O JAYASHANKAR
AGED ABOUT 44 YEARS
2. JAYASHANKAR
S/O LATE PARAMSHIVA.S.L
AGED ABOUT 54 YEARS
3. KUMARI.BHAVYA
D/O JAYASHANKAR
AGED ABOUT 24 YEARS
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MFA Nos.3697 C/W 4811, 6326 & 6327/2015
ALL ARE RESIDING AT NO.260
KODIGENAHLLI (V) AND (P)
DODDABALLAPUR TALUK
BENGALURU RURAL DIST.
PIN-561 203
4. THE UNITED INDIA INSURANCE
COMPANY LTD.,
SHANKANARAYAN BUILDING, M.G.ROAD
BENGALURU-560 001 ...RESPONDENTS
(BY SRI K.NARAYANA, ADVOCATE FOR R1 TO R3
SRI R.RAJAGOPALAN, ADVOCATE FOR R4)
THIS MFA IS FILED UNDER SECTION 173 (1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:03.03.2015
PASSED IN MVC NO.2715/2013 ON THE FILE OF THE XIII
ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, COURT OF
SMALL CAUSES, BENGALURU, AWARDING COMPENSATION OF
RS.26,30,000/- WITH INTEREST @ 8% P.A. FROM THE DATE OF
PETITION TILL REALIZATION.
M.F.A NO.4811/2015:
BETWEEN :
1. SMT. KALPANA
AGED ABOUT 45 YEARS
W/O SRI JAYASHANKAR
2. SRI JAYASHANKAR
AGED ABOUT 54 YEARS
S/O LATE PARAMASHIVA.S.L
3. MS.BHAVYA, AGED 24 YEARS
D/O JAYASHNAKAR
ALL OF THEM R/AT NO.260
KODIGEHALLI (V) AND (P)
DODDABALLAPURA TALUK
BANGALORE RURAL DIST. ...APPELLANTS
(BY SRI NARAYANA.K, ADVOCATE)
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MFA Nos.3697 C/W 4811, 6326 & 6327/2015
AND:
1. SMT. VIJAYAKUMARI.R
AGED MAJOR
W/O SHASHIKUMAR.G.V
R/OF NO.201, 3RD FLOOR
NANDAGOKULA APARTMENTS
SANKEY ROAD, BANGALORE-560 003
2. THE UNITED INDIA ASSURANCE
COMPANY LTD.,
SHANKARNARAYANA BUILDING
M.G.ROAD, BANGALORE-560 001
(BY ITS BRANCH MANAGER) ....RESPONDENTS
(BY SRI D.L.N.RAO, SENIOR COUNSEL FOR
SRI K.RAJASHEKAR, ADVOCATE FOR R1
SRI R.RAJAGOPALAN, ADVOCATE FOR R2)
THIS MFA IS FILED UNDER SECTION 173 (1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:03.03.2015
PASSED IN MVC NO.2715/2013 ON THE FILE OF THE 13TH
ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, COURT OF
SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
M.F.A NO.6326/2015:
BETWEEN :
SMT. VIJAYAKUMARI.R.
W/O SHASHIKUMAR.G.V
AGED ABOUT 57 YEARS
RESIDING AT NO.201, 3RD FLOOR
NANDAGOKULA APARTMENTS
SANKEY ROAD
BENGALURU-560 003 ....APPELLANT
(BY SRI D.L.N.RAO, SENIOR COUNSEL FOR
SMT. S.R.ANURADHA, ADVOCATE)
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MFA Nos.3697 C/W 4811, 6326 & 6327/2015
AND:
1. SRI HANUMANTHA @ HANUMANTHAPPA,
@ HEMANTHA, S/O RAMANJANAPPA
AGED ABOUT 22 YEARS
R/O KASAGHATTA
DODDBALLAPUR TALUK
BANGALORE RURAL DIST.
PRESENTLY R/O NO.10
2ND CROSS, 2ND MAIN
YELAHANKA,BANGALORE-560 064
2. THE UNITED INDIA INSURANCE
COMPANY LTD.,REGIONAL OFFICE
5TH FLOOR, KRUSHI BHAVAN BUILDING
NRUPATHUNGA ROAD, HUDSON CIRCLE
BENGALURU-560 001 ....RESPONDENTS
(BY SRI N.R.NAIK, ADVOCATE FOR R1
SRI R,RAJAGOPALAN, ADVOCATE FOR R2)
THIS MFA IS FILED UNDER SECTION 173 (1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:28.07.2015
PASSED IN MVC NO.56/2014 ON THE FILE OF THE VIII
ADDITIONAL SMALL CAUSES JUDGE AND XXXIII ACMM,
MEMBER-MACT, BANGALORE, AWARDING COMPENSATION OF
RS.2,40,250/- WITH INTEREST @ 8% P.A. FROM THE DATE OF
PETITION TILL REALIZATION.
M.F.A NO.6327/2015:
BETWEEN :
SMT. VIJAYAKUMARI.R.
W/O SHASHIKUMAR.G.V
AGED ABOUT 57 YEARS
RESIDING AT NO.201, 3RD FLOOR
NANDAGOKULA APARTMENTS
SANKEY ROAD
BENGALURU-560 003 ....APPELLANT
(BY SRI D.L.N.RAO, SENIOR COUNSEL FOR
SMT. ANURADHA.S.R., ADVOCATE)
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MFA Nos.3697 C/W 4811, 6326 & 6327/2015
AND:
1. SRI AVINASH
S/O SRINIVASA
AGED ABOUT 23 YEARS
R/O KURUBARAHALLI VILLAGE
KASABA HOBLI
DODDABALLAPUR TALUK
2. THE UNITED INDIA INSURANCE
COMPNAY LTD., TP HUB, 6TH FLOOR
KRISHI BHAVAN BUILDING
HUDSON CIRCLE
BENGALURU-560 001 ....RESPONDENTS
(BY SRI N.R.RANGEGOWDA, ADVOCATE FOR R1)
SRI R.RAJAGOPALAN, ADVOCATE FOR R2)
THIS MFA IS FILED UNDER SECTION 173 (1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:09.07.2015
PASSED IN MVC NO.66/2014 ON THE FILE OF THE JUDGE,
COURT OF SMALL CAUSES, 26TH ACMM, (SCCH-09), MACT,
BENGALURU, AWARDING A COMPENSATION OF RS.96,000/-
WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
ITS REALIZATION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 21.06.2017, COMING ON FOR
PRONOUNCEMENT THIS DAY, K.S.MUDAGAL J., DELIVERED THE
FOLLOWING:
JUDGMENT
K.S.MUDAGAL, J.:
All the above appeals arise out of the Motor vehicle accident which occurred on 19.01.2014 at 6.45 p.m. near RMC yard, on Devanahalli Tumkur Road within Doddaballapura town limits between the Tanker lorry No. -6- MFA Nos.3697 C/W 4811, 6326 & 6327/2015 KA-17 /A-2777 and motor cycles bearing registration Nos.
KA 01/ W-6181 and KA 50/ Q-7786. In the said accident one S.J. Punith the pillion rider of motor cycle No. KA-50 /Q7786 died and Avinash, the rider of motor cycle No. KA-
50 /Q7786 suffered injuries. Hanumanthappa, the rider of Motor Cycle No.KA 01-W-6181 also suffered injuries.
2. The injured Avinash, Hanumanthappa and heirs of S.J.Punith, filed different claim petitions before different Tribunals and the awards were passed in their favour as set-out in the table below:
Claimants MVC Nos. Tribunal/ Dt.of Amt.awarded in award Rs. & interest awarded
(i)Lrs of S.J.Punith 2715/2013 SCCH-15 26,30,000/-
3.3.2015 8%
(ii) Avinash SCCH-09 96,000/-
(injured) 66/2014 9.7.2015 6% iii)Hanumanthappa 56/2014 SCCH-05 2,40,250/- (injured) 8-7-2015 8%
3. The Tribunals held that the accident occurred due to the rash and negligent driving of the driver of the Tanker. Tribunals held that though the offending Tanker is covered by the policy issued by the insurer, the driver did not possess the licence as required under Section 14(2) of -7- MFA Nos.3697 C/W 4811, 6326 & 6327/2015 the Motor Vehicles Act, thereby there is violation of policy condition. Therefore, the Tribunals fastened the liability to the owner of the offending vehicle and absolved the insurer from the liability of satisfying the award amount.
4. Aggrieved by such findings, the claimants and the owner have filed the above appeals, the particulars of which are set-out in the table below for clarity:
MFA No. MVC No. Appellant/s 1. 3697/2015 2715/2013 Owner of the Tanker 2. 4811/2015 2715/2013 Claimants 3. 6326/2015 56/2014 Owner of the Tanker 4. 6327/2015 66/2014 Owner of the Tanker
5. The findings of the Tribunals that the accident occurred due to rash and negligent driving of the driver of the Tanker and on the quantum of compensation are not under challenge. The only question is, "Whether the findings of the Tribunals that there is breach of policy condition and therefore, the insurer is not liable to pay the compensation are sustainable?"
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MFA Nos.3697 C/W 4811, 6326 & 6327/2015
6. The learned counsel for the appellants in their arguments seek to challenge the findings of the Tribunals on the following grounds:
(i) The Tanker was not carrying petrol and therefore, special driving licence as required under section 14(2) of the Act is not required;
(2) When the insurer takes defences available under Section 149(2) of the Act, burden is on him to prove the same and the insurer failed to prove the same;
(3) The accident has no nexus to any of the goods allegedly carried in the vehicle.
7. As against that Sri R. Rajagopalan, learned counsel for the insurer contends that the owner introduced the theory of the vehicle not carrying the petrol belatedly and the same is not proved. He further contends that even otherwise for a vehicle meant for carrying hazardous goods the driver has to possess the special licence as required under Section 14(2) of the Act. Thus he supports the findings of the Tribunals.
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MFA Nos.3697 C/W 4811, 6326 & 6327/2015
8. The Apex Court in National Insurance Co. Ltd. vs Swaran Singh & Ors.(AIR 2004 SC 1531) has held that when the insurer sets up a statutory defence available under Section 149 (2) of the Act the burden is on him to prove such defence. The insurer contended that the driver did not possess the licence to drive the Tanker as required under Section 14(2) of the Act and thereby there is breach of policy condition. The insurer did not even produce the policy in evidence. Secondly he did not adduce any evidence to show that the offending Tanker was carrying the petrol at the time of the accident.
9. The driver of the vehicle is examined and he states that the vehicle was empty and that was being taken for securing fitness certificate. It is not the case of the insurer that the concerned regional Transport Office does not situate enroute the scene of accident. The insurer did not even try to produce the R.C. extracts of the Tanker to impeach the theory of carrying the vehicle on that route for securing the fitness certificate.
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MFA Nos.3697 C/W 4811, 6326 & 6327/2015
10. The second respondent filed I.A.2/2017 in MFA No.3697/2015 to adduce additional evidence. Under the said application the second respondent seeks to produce the motor claim form said to be submitted by the first respondent/owner on 10.08.2013 regarding the accident. The second respondent contends that in the said claim form the owner has declared that the vehicle was carrying the petrol. The first respondent opposes the application denying the declaration as alleged and maintainability of the application at this stage. The very defence of the second respondent all along was that the vehicle was carrying petrol and the driver did not possess the required/specific driving licence. Though the second respondent claims that the claim form now sought to be produced was with it, has not produced the same during the evidence before the Tribunal. No convincing reasons are assigned to explain such omission. There was no impediment for the second respondent to produce and confront the document during the evidence stage before the Tribunal. In addition to that the document does not -11- MFA Nos.3697 C/W 4811, 6326 & 6327/2015 advance the case of the second respondent. Therefore, I.A.2/2017 is dismissed.
11. This Court in New India Assurance Company Ltd. vs Sri Velumurugan V & Anr. (ILR 2015 Kar.390) has held as follows:
Proviso to Section 14(2) (a) clearly indicates that special licence is required to drive a vehicle, which is carrying on goods of dangerous of hazardous nature and such licence will be effective for a period of one year and thereafter the driver has to undergo one day refresher course of the prescribed syllabus. Therefore, it is clear that the special licence to be granted under this proviso will be valid for one year and thereafter it will be renewed subject to the driver undergoing one day refresher course, which indicates that in order to grant such special licence, the driver has to undergo a course which is meant for safety measure. Safety measure is required when the vehicle is carrying on combustible, dangerous or hazardous nature of goods. In other words, if a tanker is not carrying on goods of dangerous or hazardous nature, there is no necessity to obtain such special licence to drive an empty tanker. Therefore, the arguments of Sri R. Jaiprakash that the driver did not possess an endorsement is not acceptable. Accordingly, we hold that in order to drive empty tanker, no such incence is required because the vehicle did not carry any dangerous -12- MFA Nos.3697 C/W 4811, 6326 & 6327/2015 or hazardous nature goods. Accordingly, point No.1 is answered in negative." (emphasis supplied)
12. Further it is not the case of the insurer also that the accident has any nexus with any goods carried in the offending Tanker. The Apex Court in National Insurance Co. Ltd.'s case referred to supra has held as follows:
"In each case on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence. Minor breaches of licence conditions, such as want of medical fitness certificate, requirement about age of the driver and the like not found to have been the direct cause of the accident, would be treated as minor breaches of inconsequential deviation in the matter of use of vehicles. Such minor and inconsequential deviations with regard to licensing conditions would not constitute sufficient ground to deny the benefit of coverage of insurance to the third parties." (emphasis supplied) -13- MFA Nos.3697 C/W 4811, 6326 & 6327/2015
13. For the aforesaid reasons the defence of the insurer that there is breach of policy conditions for want of a valid driving licence and for violation of Section 14(2) of the Act fails. The Tribunals committed error in law firstly in casting the burden of negative proof namely the vehicle was not carrying the petrol on the claimants/owner, secondly in holding that the owner has failed to prove that the vehicle was not carrying the petrol, thirdly in holding that the insurer is not liable to pay the compensation.
14. For the aforesaid reasons all the above appeals are allowed with costs. The impugned judgments and awards are modified holding that in all the above cases the respondent -The United India Insurance Company Ltd., Regional Office, Shankaranarayana Building, M.G. Road, Bengaluru shall pay the compensation awarded by the Tribunals to the claimants. Rest of the award in each of the cases is maintained.
Sd/-
JUDGE Sd/-
JUDGE BRN