Karnataka High Court
United India Insurance Co. Ltd. vs R. Kashyap S/O D M Ravikumar on 14 August, 2012
Author: N.K.Patil
Bench: N.K. Patil
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF AUGUST, 2012,
: BEFORE :
THE HON'BLE MR. JUSTICE N.K. PATIL
M.F.A.NO. 9007 OF 2009 (MV)
Between:
United India Insurance Co., Ltd.,
Divisional Office No.7,
No.25/1, II Floor, Vinod Complex,
J.C.Road, Bangalore.
Now rep. by its Regional Office,
United India Insurance Co., Ltd.,
Regional Office, Shankaranarayana
Building, NO.25, M.G.Raod,
Bangalore-1.
... Appellant
(By Shri. A.N.Krishna Swamy, Advocate)
And:
1. R. Kashyap,
S/o. D.M.Ravikumar,
Now aged about 16 years,
R/o. No.5, Renukambanagar,
Chunchagatta Main Road,
Konanakunte, Bangalore-62.
Since minor rep. by father
D.M.Ravikumar.
2. Head Master,
M/s. Webster Education Society,
No.933, BSK I Stage,
Bangalore-50.
... Respondents
(By Shri. Mallesh Gowda, Advocate for R1;
Shri. M. Babu, Advocate for R2)
2
This MFA is filed U/S 173(1) of MV Act, against the
Judgment and Award dated: 20/04/2009 passed in MVC
No.3044/2008 on the file of the XIII Additional Small Cause
Judge, Court of Small Causes, Member, Motor Accident
Claims Tribunal, Bangalore (SCCH-15), awarding a
compensation of `1,25,000/- with interest at the rate of
6% p.a. on `75,000/- from the date of petition till deposit.
This MFA coming on for Hearing this day, the Court
delivered the following:
JUDGMENT
This appeal by the Insurer is directed against the judgment and award dated 20th April 2009, passed in MVC No.3044/2008, by the XIII Additional Small Cause Judge, Court of Small Causes, Member, Motor Accident Claims Tribunal, Bangalore (SCCH-15), (for short, 'Tribunal'), awarding compensation of `1,25,000/- in favour of the first respondent/claimant, on the ground that the Tribunal is not justified in fastening liability on the Insurer to satisfy the award.
2. The facts in brief are that, the first respondent/injured claimant had filed the claim petition under Section 166 of the Motor Vehicles Act, contending that at about 06:00 A.M, on 10-02-2008, he met with an accident, when he was travelling in a motor bike 3 bearing Registration No.KA-01/EC-7799, as a pillion rider, near Jaraganahalli junction, on account of rash and negligent driving by the driver of a School Van bearing Registration No.KA095/8906. On account of the accident, he sustained fracture of left olecranon and fracture of mandible. Due to the injuries sustained, he took treatment in Rajashekar Hospital from 10-02-2008 to 14-02-2008.
3. On account of the injuries sustained in the accident, the first respondent/claimant filed the claim petition before the Tribunal, seeking compensation of a sum of `06.00 lakhs against the appellant and another. The said claim petition had come up for consideration before the Tribunal on 20th April 2009. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of `1,25,000/- under different heads, with 6% interest per annum on `75,000/-, from the date of petition till the date of deposit and directed the 4 appellant Insurer to satisfy the award. Being aggrieved said liability fastened on it, the Insurer is in appeal before this Court, seeking to set aside the impugned judgment and award passed by Tribunal.
4. I have gone through the grounds urged in the memorandum of appeal and the impugned judgment and award passed by Tribunal and heard the learned counsel appearing for the appellant/Insurer and the learned counsel appearing for first respondent/ claimant.
5. The principal submission canvassed by Shri. A.N. Krishna Swamy, learned counsel appearing for appellant/ Insurer is that, the driver of the offending vehicle did not possess the valid and effective Driving Licence as on the date of accident and this fact has been accepted by the Tribunal and a finding has also been recorded by it, stating that the second respondent, being the owner of the vehicle is primarily liable to pay the compensation as awarded by Tribunal. But, subsequently, erred in directing the Insurer to satisfy 5 the award amount. The said direction issued by Tribunal cannot be sustained in view of the well settled law laid down by the Hon'ble Apex Court in the case of Swaran Singh Vs. National Insurance Company Ltd.[2004 (3)SCC 297] (paragraph 100). Therefore, he submits that in view of the law laid down by the Apex Court in the said judgment, the impugned judgment and award passed by Tribunal is liable to be modified, by setting aside the liability fastened on the Insurer.
6. As against this, learned counsel appearing for second respondent/owner submits that the impugned judgment and award passed by Tribunal is after due assessment of the oral and documentary evidence available on file and hence, it does not call for interference.
7. After perusal of the impugned judgment and award passed by Tribunal and after hearing the learned counsel for both parties, the only question that arise for my consideration in this appeal is as to: 6
Whether the Tribunal is justified in fastening liability on the Insurer?
The occurrence of accident and the resultant injuries sustained by the claimant are not in dispute. After critical evaluation of the impugned judgment and award passed by Tribunal and after hearing the learned counsel appearing for Insurer as well as the second respondent/owner of the offending vehicle, it is seen that, the driver of the offending vehicle, in fact, did not possess the valid and effective Driving Licence to drive the School Van, as rightly pointed out by the learned counsel appearing for Insurer. The Tribunal, has recorded a specific finding of fact at paragraph 23 of its judgment. In the Driving Licence produced by the driver, there is a specific entry made by the competent authority. Further, it is stated that the driver of the offending School Van did possess a LMV licence with effect from 10-01-1984 which was renewed from 14-10- 2003 to 13-02-2006. He also possessed HTV licence 7 with effect from 20-01-2000, which was renewed with effect from 12-02-2008 to 11-02-2011. The occurrence of accident is on 10-02-2008. It could be seen that as on the said date of accident, the driver of the School Van did not possess the valid and effective Driving Licence. Hence, the Tribunal held that the second respondent, being the owner of the offending School Van is primarily liable to pay the compensation awarded by Tribunal. Having held so, the Tribunal ought not to have directed the Insurer to indemnify the award passed by Tribunal. The said direction issued by Tribunal is opposed to the principles of law laid down by the Hon'ble Supreme Court in Swaran Singh's case (supra) and cannot be sustained. Therefore, I am of the considered view that the Tribunal grossly erred in directing the Insurer to satisfy the award amount and hence, it is liable to be set aside.
8. Therefore, for the foregoing reasons, the appeal filed by Insurer is allowed in part. 8
The impugned judgment and award dated 20th April 2009, passed in MVC No.3044/2008, by the XIII Additional Small Cause Judge, Court of Small Causes, Member, Motor Accident Claims Tribunal, Bangalore (SCCH-15), is hereby modified, setting aside the direction issued by the Tribunal to the Insurer to satisfy the award amount.
However, liberty is reserved to the first respondent/claimant to recover the award amount from the second respondent/owner of the offending vehicle, in accordance with law.
Office is directed to refund the amount in deposit to the authorized officer of the Insurer, forthwith.
Office to draw the award, accordingly.
SD/-
JUDGE BMV*