Karnataka High Court
Cholamandalam M.S.General Insurance ... vs Mahadevi S/O Sharanappa Madar And Ors on 15 February, 2018
Author: L Narayana Swamy
Bench: L.Narayana Swamy
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
MISCELLANEOUS FIRST APPEAL No.200393/2014(MV)
BETWEEN:
Cholamandalam M. S.
General Insurance Co. Ltd.,
N.S.C.Bose Road,
Chennai-600001,
By its Law Officer
... Appellant
(By Sri C. S. Kalaburgi, Advocate
& Sri Manjunath M. Shetty, Advocate)
AND:
1. Mahadevi S/o Sharanappa Madar
Age: 49 years, Occ: House hold work,
2. Kenchappa S/o Sharanappa Madar
Age: 30 years, Occ: Nil,
3. Laxmibai W/o Shivappa Madar
Age: 28 years, Occ: H.H.work,
4. Hanamanth S/o Sharanappa Madar
Age: 26 years, Occ: Nil,
5. Ningawwa W/o Huchchappa Madar
Age: 24 years, Occ: H.H.work,
2
All are R/o Vadavadgi Village,
Tq. B.Bagewadi, Dist.Bijapur 586101.
6. Revansiddappa S/o Annarao Nimbargi
Age: 32 years, Occ: Agriculture and
Owner of vehicle, R/o Sultanpur,
Tq. & Dist. Gulbarga 585103.
7. The Govt. of Karnataka
Through the Principal Secretary
Department of Transport
Bangalore.
... Respondents
(By Sri S. S. Mamadapur, Advocate for R1 to R5 (Ab);
Notice to R6 d/w v/o dated 06.02.2018;
Sri R. V. Nadagouda, AAG &
Smt. Archana P. Tiwari, AGA for R7)
This Miscellaneous First Appeal is filed under Section
173(1) of M.V.Act, praying to set aside the Judgment
and Award dated 04.09.2013 passed in
M.V.C.No.70/2012 on the file of Senior Civil Judge and
Member, MACT No.IX at Basavan Bagewadi.
This appeal coming on for hearing this day, the Court
delivered the following:
JUDGMENT
Appeal by the insurer challenging the judgment and award dated 04.09.2013 passed in MVC No.70/2012 by the Senior Civil Judge & Member MACT- 3 IX, Basavana Bagewadi. The Tribunal has awarded compensation of Rs.6,36,400/- with interest @ 8% p.a.
2. There was a road traffic accident on 02.02.2011. At about 2:00 p.m. while the deceased, along with his wife and daughter-in-law, were travelling in the jeep bearing No.KA-37/M-1545 from Balaganur cross to Sasanur village, the deceased Sharanappa was sitting on the top of the jeep holding materials. When they came near Sasanur village, Government Hostel, the driver of the jeep driven the same in a very high speed, rash and negligent manner and made sudden turn due to which deceased who was sitting on the top of the jeep lost balance and fell down. As a result of which, Sharanappa sustained grievous injuries to the right ear and head. Immediately after the accident, he was shifted to Talikoti Hospital and for higher treatment shifted to Government Hospital, Bijapur. He succumbed 4 to the accidental injuries while he was taking treatment. Hence, the claim petition has been filed.
3. It is the case of the claimant that due to rash and negligent driving by the driver of the jeep, accident took place. Hence, complaint was made by one Ningamma who has been examined as PW.2 and complaint was made to Basavan Bagewadi police station for the offences punishable under Sections 279, 338 of IPC and 187 of M.V.Act. It is the case of the claimant that the accident had taken place by rash and negligent driving by the driver. Since the vehicle was insured, liability was indemnified. The insured was indemnified for payment of compensation of Rs.6,36,400/-.
4. The respondent-insurance company before the Tribunal has taken two specific grounds, namely, the policy does not cover risk of the person who travel on the top of the vehicle which is an offence under IPC and under the provisions of M.V.Act. Secondly, the 5 driver was not holding valid and effective driving licence. Though these grounds have been examined by the Tribunal, but it rejected the same and fastened the liability on the insurer.
5. After hearing both the parties for a while, it is felt by this Court to implead the Government in order to assist this Court and also for the reason that if insurance company is exonerated from liability, then someone should take responsibility. Accordingly, learned Additional Advocate General has taken time and today learned AAG appears on behalf of respondent- State. He submits that appeal has to be dismissed on the ground that it falls under the provisions of M.V.Act there cannot be liability to be fixed on the Government and the Government in no way liable to pay compensation. Under the provisions of M.V.Act it is very clear that a tortfeasor, i.e. the driver, has to pay the compensation and if the relationship is established by 6 the owner of the vehicle, vicariously owner is liable and when the vehicle is covered with policy, absolutely, there is no ground for the Government to pay the compensation. He further submits that if all the liability is to be fastened it should be against insurance, if not on the owner, but it cannot be fastened on the Government.
6. Heard learned counsel for both the parties.
7. Though the claimants are served, but unrepresented.
8. The complainant is one Ningamma. In the complaint Ex.P2 stated that the driver of the jeep has driven the vehicle in a rash and negligent manner and the jeep suddenly turned turtled and her husband who was sitting on the top of the jeep had a fall, and due to accident he got injuries on the right ear and on the head. Ex.P1 is the FIR and Ex.P7 is the copy of the 7 charge sheet, which reveals that the driver of the jeep was not holding valid and effective driving licnece. It proves the fact that the deceased was travelling on the top of the jeep. PW.1 is also the injured. In her chief examination she has admitted the fact that the deceased was travelling on the top of the jeep. Similarly PW.2 Ningamma who is also injured and related to the deceased and who admitted the complaint made and identified her thumb impression, in her chief examination she has deposed that the deceased was made to sit on the top of the jeep along with materials. These evidences of PWs.1 and 2 with reference to Ex.P2- complaint shows that the deceased was made to sit on the jeep and travel. The capacity in the jeep is only as prescribed and permitted under the RC book and also premium would be collected on seating capacity and travel on the top of the jeep is a breach of policy and it is the negligence on the part of the driver of the jeep and when the driver, himself is tortfeasor, owner of the 8 vehicle is vicariously liable. When there is admission by PWs.1 and 2 wherein Exs.P1-FIR and P2-complaint proves the deceased was travelling on the top of the jeep, when such admission is made the question would be whether risk is covered under policy. The policy covers the risk of only the inmates. In case, if the policy is of comprehensive package policy, then also it cannot cover the risk of the person travelling on the top and on this ground it is to be held that the policy does not cover risk. Accordingly, the insurance is to be exonerated from liability. Then, without any doubt, the driver who permitted the person to sit on the top of the jeep, which is illegal under the Act, correctly he has been charge sheeted for the said offences. The provisions make it clear that the driver of the jeep was driving the vehicle without having driving licence.
9. It is mandatory that the driver of the vehicle has to possess the effective and valid driving licence for 9 the purpose. The driver has been charge sheeted for the offence that he was not having valid and effective driving licence. On these grounds there is breach of policy. For all these reasons, the insurance is to be exonerated and owner to be saddled with liability.
10. In cases of this nature it is very difficult and sometimes it is impossible to collect award amount to pay compensation to the victims. Under these circumstances, there may be the cases where the injured or deceased may not be compensated in any way. When driver is poor, though he may be a tortfeasor he will not be in a position to pay compensation, but, that is not the end in itself. Then liability has to be fastened on the owner and the owner who owns the vehicle fails to satisfy the compensation, then the jeep is to be brought into public auction to make good the compensation. Then who is right person to pay compensation to victims, I find it is only 10 Government who is ultimate authority to pay compensation to the poorer sections people. Sometime the victims are poor agriculturists, daily wagers, illiterate etc. Taking note of all these aspects if no one is able to pay the compensation, the minor children and the aged parents will have to come to streets and the children will not be in a position to go to school or has to dropout from school and found to do child labout. In that circumstances, it is the system who has to look after these poor people. Therefore, the Government is the ultimate authority. The Hon'ble Apex Court in the case of Aruna Ramachandra Shanbaug v. Union of India & Ors. [AIR 2011 SC 1290] "129. In the Constitution Bench decision of this Court in Charan Lal Sahu vs. Union of India (1990) 1 SCC 613: (AIR 1990 SC 1480) (vide paras 35 and 36), the doctrine has been explained in some details as follows :
"In the "Words and Phrases" Permanent Edition, Vol. 33 at page 99, it is stated that parens patriae is the inherent power and 11 authority of a legislature to provide protection to the person and property of persons non sui juris, such as minor, insane, and incompetent persons, but the words parens patriae meaning thereby `the father of the country', were applied originally to the King and are used to designate the State referring to its sovereign power of guardianship over persons under disability. Parens patriae jurisdiction, it has been explained, is the right of the sovereign and imposes a duty on the sovereign, in public interest, to protect persons under disability who have no rightful protector. The connotation of the term parens patriae differs from country to country, for instance, in England it is the King, in America it is the people, etc. The government is within its duty to protect and to control persons under disability".
The duty of the King in feudal times to act as parens patriae (father of the country) has been taken over in modern times by the State."
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11. In the case of Charan Lal Sahu v. Union of India [AIR 1990 SC 1480] "100. In this connection, the concept of 'parens patriae' in jurisprudence may be examined. It was contended by the learned Attorney General that the State had taken upon itself this onus to effectively come in as parens patriae. We have noted the long line of Indian decisions where, though in different contexts, the concept of State as the parent of people who are not quite able to or competent to fight for their rights or assert their rights, have been utilised. It was contended that the doctrine of parens patriae cannot be applicable to the victims. How the concept has been understood in this country as well as in America has been noted. Legal dictionaries have been referred to as noted before. It was asserted on behalf of thevictims by learned Counsel that the concept of 'parens patriae' can never be invoked for the purpose of suits in domestic jurisdiction of any country. This can only be applied in respect of the claims out of the 13 country in foreign jurisdiction. It was further contended that this concept of 'parens patraie' can only be applied in case of persons who are under disability and would not be applicable in respect of those who are able to assert their own rights. It is true that victims or their representatives are sui generis and cannot as such due to age, mental capacity or other reason not legally incapable for suing or pursuing the remedies for the rights yet they are at a tremendous disadvantage in the broader and comprehensive sense of the term. These victims cannot be considered to be any match to the multinational companies or the Govt. with whom in the conditions that the victims or their representatives were after the disaster physically, mentally, financially, economically and also because of the position of litigation would have to contend. In such a situation of predicament the victims can legitimately be considered to be disabled. They were in no position by themselves to look after their own interests effectively or purposefully. In that background, they are 14 people who needed the State's protection and should come within the umbrella of State's sovereignty to assert, establish and maintain their rights against the wrong doers in this mass disaster."
12. In the instant case dependents of the deceased and the injured may not be allowed to starve. The Government machinery, including police and RTO, are supposed to take care of it. They have to discharge duty by preventing to travel on the top of the vehicle and any committing contradiction of provisions of M.V.Act or IPC. Under these circumstances, the Government should take responsibility to discharge their duty for their lapse. Under these circumstances, the liability is to be fastened on the Government. Accordingly, compensation amount is directed to be satisfied by the Government. The concerned authority would be the Chief Secretary and the Secretary to Government of concerned departments. 15
13. It is further directed to the Secretary of the Government to initiate action on the officers concerned department who committed breach of policy by allowing to travel on the top and thereby committed an error in discharging their duty. Hence, personal recovery shall be made unless it is very difficult to prove the illegality under the provisions of law. Secretary of Government to initiate action to recover from them, and pending that action, initially the Government is directed to satisfy the award within a period of eight weeks from today. Accordingly, the order of the Tribunal stands modified and insurance is exonerated from payment of compensation. Further the jurisdictional police is directed to register the criminal case against the owner who engaged services of a driver who did not posses valid and effective driving licence.
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14. With these observations the appeal stands allowed. The order of the Tribunal stands modified, to the extent of modifying the fastening of liability.
The statutory amount if any deposited by the insurance company is ordered to be refunded.
Sd/-
JUDGE sdu