Karnataka High Court
Smt Uma Raghu vs Smt Mamtaz on 3 October, 2018
Equivalent citations: AIRONLINE 2018 KAR 2390
Author: Krishna S Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU R
DATED THIS THE 3RD DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
M.F.A. NO. 9293 OF 2015 (MV)
C/W
M.FA. NO. 9292 OF 2015 (MV)
IN M.F.A. NO. 9293 OF 2015:
BETWEEN:
SMT UMA RAGHU
W/O RAGHU
MAJOR BY AGE
R/AT NO 3, SOMESHWARA TEMPLE COMPLEX
1ST MAIN, 7TH BLOCK
KORAMANGALA
BANGALORE - 560095
... APPELLANT
(BY SRI. A K BHAT FOR
SRI.VASANTHAPPA, ADVOCATES)
AND:
1. SMT MAMTAZ
W/O LATE SYED
AGED ABOUT 53 YEARS
2. SRI SYED BAKASH
S/O LATE SYED
AGED ABOUT 36 YEARS
RESPONDENT NO. 1& 2
R/AT NO 340, GARIBNAGAR,
BANDRA, MUMBAI - 400051
3. SMT SYED GAFTER
W/O LATE SYED
AGED ABOUT 34 YEARS
4. SRI GULAB TAZ @ NAGINA BANU
D/O LATE SYED
AGED ABOUT 32 YEARS
R/AT NO 86 MUSLIMPUR,
HOUSAF BLOCK, KANAKAPURA,
BANGALORE RURAL DISTRICT
2
5. SYED RAFI
S/O LATE SYED
AGED ABOUT 29 YEARS
6. YASMIN TAZ
LATE SYED
AGED ABOUT 27 YEARS
RESPONDENT NO. 5 & 6 ARE
R/AT NO 2, 2ND MAIN ROAD,
GANGONDANAHALLI,
BANGALORE NORTH
7. SYED MUKTIYAR SHAH
S/O LATE SYED
AGED ABOUT 25 YEARS
8. SYED SALEEM
S/O LATE SYED
AGED ABOUT 23 YEARS
9. HAZEERA TAZ
D/O LATE SYED
AGED ABOUT 21 YEARS
10.SHABREEN TAZ
D/O LATE SYED
AGED ABOUT 19 YEARS
11.SYED NAWAZ
S/O LATE SYED
AGED ABOUT 16 YEARS
SINCE THE RESPONDENT NO.11
IS MINOR REPRESENTED BY HIS MOTHER
SMT MAMTAZ (R1)& NATURAL GUARDIAN
RESPONDENT NO.1,3,7 TO 11 ARE
R/AT NIDAGATTA VILLAGE,
HOSKOTE TALUK
BANGALORE RURAL DISTRICT - 562114
... RESPONDENTS
(BY SRI. K T GURUDEVA PRASAD &
SRI. H R SATHYAPAL, ADVOCATES FOR R1 TO R11;
SRI. O MAHESH, ADVOCATE FOR R12)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 29.01.2015 PASSED IN MVC NO.1836/2012
ON THE FILE OF THE COURT OF SMALL CAUSES, MAYOHALL
UNIT, BANGALORE, AWARDING THE COMPENSATION OF
3
RS.5,38,000/- WITH INTEREST AT 6% P.A. FROM THE DATE
OF PETITION TILL THE DEPOSIT.
IN M.F.A NO. 9292 OF 2015:
BETWEEN:
SMT UMA RAGHU
W/O RAGHU
MAJOR BY AGE
R/AT NO.3, SOMESHWARA TEMPLE COMPLEX,
1ST MAIN, 7TH BLOCK,
KORAMANGALA
BANGALORE- 560095
... APPELLANT
(BY SRI. A K BHAT FOR
SRI.VASANTHAPPA, ADVOCATES)
AND:
1. SMT HASEENA B
W/O LATE SYED ANWAR
AGED ABOUT 43 YEARS
2. SRI. IMRAN PASHA
S/O SYED ANWAR
AGED ABOUT 26 YEARS
3. SMT. SHANAWAZ @ HINO
S/O LATE SYED ANWAR
AGED ABOUT 24 YEARS
4. SRI. IRFAN PASHA
S/O LATE SYED ANWAR
AGED ABOUT 22 YEARS
RESPONDENT NO.1 TO 4 ARE
R/AT NIDAGATTA VILLAGE,
HOSAKOTE TALUK
BANGALORE RURAL DISTRICT-562114
5. UNITED INDIA INSURANCE CO. LTD.
NO.40/3, 3RD FLOOR,
GEETHA MANSION,
K.G. ROAD, BANGALORE-09
... RESPONDENTS
(BY SRI. K T GURUDEVA PRASAD, ADVOCATE FOR R1 TO R4;
SRI. O MAHESH, ADVOCATE FOR R5(VK NOT FILED))
4
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 29.01.2015 PASSED IN MVC NO.1674/2012
ON THE FILE OF THE ADDITIONAL JUDGE, COURT OF SMALL
CAUSES, MAYOHALL UNIT, MACT, BENGALURU, AWARDING
COMPENSATION OF RS.8,12,000/- WITH INTEREST @ 6% P.A
THESE APPEALS COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
These two appeals by the owner of the offending insured vehicle lay a challenge to the common Judgments and plural Awards dated 29.01.2015 made by the MACT, Bengaluru (SCCH-19) allowing MVC No.1836/2012 and MVC No.1674/2012, whereby two sums of compensation i.e., Rs.5,38,000/- in the former and Rs.8,12,000/- in the latter with interest at the rate of 6% p.a. subject to a usual condition of bank deposit have been awarded.
2. The brief fact matrix of the case as to the happening of the accident on 12.03.2012, the rash and negligent driving of the offending Tanker Lorry bearing Registration No.KA-01/C-9630 and consequent death of two unfortunate victims namely, Mr. Syed and Mr. Syed Anwar, has been acted upon by the MACT on the basis of the pleadings of the parties supported by the evidentiary material on record. The MACT accordingly has made the impugned Judgment and Award fastening the liability on the appellant - owner of the offending vehicle and letting the insurer go free. 5
3. The learned counsel for the appellant submits that on the eventful day, the lorry was not carrying any hazardous substance, there being neither a plea nor evidence to assume otherwise; the offending tanker lorry was thus an ordinary goods transport vehicle for all practical purposes; there was no need for any special driving licence, the normal one being valid and effective; that being so, the MACT ought to have fastened the award liability on the respondent-insurer. In support of this submission, the counsel banks upon a Division Bench judgment of this Court in the case of New India Assurance Co. Ltd., vs. Sri. Velumurugan and another ILR 2015 KAR 393 and another decision of Hon'ble High Court of Allahabad in the case of National Insurance Co. Ltd., vs. Savita Katiyar and others 2017 ACJ 1386.
4. The learned Senior Panel Counsel for the respondent-insurer, Sri. O. Mahesh, repels the above contention and submits that the ratio in the aforesaid decisions does not avail to the appellant-owner of the offending insured vehicle because: (a) the appellant being the insured, did not participate in the proceedings before the MACT and therefore, he was placed ex parte; (b) he had never taken up any contention as to the offending tanker lorry not carrying any hazardous substance at the time of accident; (c) despite the mandate of Section 151 of the Motor Vehicles Act, 1988, the appellant-insured failed to furnish the statutory information to 6 the insurer; the question of insurer taking up a contention as to offending tanker carrying the hazardous substances is too farfetched since that information was exclusively within the knowledge of the insured/driver.
5. I have heard learned counsel for the appellant- owner of the offending insured vehicle lorry and the learned panel counsel for the insurer. I have perused the papers.
6. The first contention of the insured/owner that the offending lorry at the time of accident was not carrying any hazardous substance and therefore an ordinary driving licence, which the offending driver had, is a valid & effective driving licence and consequently, the MACT ought to have made the award against the respondent insurer cannot be at once answered this way or that way; there is absolutely no pleading nor evidence taken up by any of the parties to the lis, as to the offending tanker lorry was an empty or loaded vehicle at the time of accident. The respondent insurer contends that it is only the owner and the driver of the lorry in question who would ordinarily be in the knowledge of the material the vehicle was carrying; it is too much to expect the insurer to take up a contention as to what the lorry was carrying at the time of accident especially when the insured having not discharged the statutory duty of informing the insurer about its particulars. 7
7. The learned panel counsel for the respondent insurer further submits that in the claim petition before the MACT, the appellant did not file any Written Statement nor did he participate in the proceedings and therefore the MACT justifiably had placed him exparte; he also further contends that going by the ordinary rules of pleadings, a plea cannot be made in the absence of the requisite information and therefore the plea that the contention as to what the transport vehicle was carrying does not avail to the appellant - owner / insured, has a lot of force. However, either of the contentions does not assist this Court to decide the issue once for all, in the absence of plea and evidence.
8. The counsel for the appellant-insured in support of his submission that no special licence is required when the offending vehicle which did not carry any hazardous substance when it met with accident, relies upon the Division Bench decision of this Court in Velumurgan's Case supra. Relevant part of paragraph No.10 of the said decision reads as under:
"10. So far as point No.1 is concerned, the appellant is not disputing the driver possessing a valid licence to drive a HGV. The contention of the appellant is that since the vehicle in question is registered as petrol tanker, special endorsement was required to be obtained byte driver to drive a petrol tanker. Admittedly, when the accident occurred, it was an empty tank. In the cross-examination of RW.1, he has admitted as hereunder:-8
"When the accident occurred, there was no petroleum product in the tanker."
Therefore, it is clear that when the accident occurred, it was an empty tanker. In order to drive an empty tanker, no endorsement is required by a driver to drive such vehicle since it was not carrying on ay hazardous or combustible material. Xxxxxxx"
This decision does not come to the aid of the insured inasmuch as, in the said case it was an admitted position that the offending tanker lorry at the time of accident did not carry any hazardous/combustible substance. This important fact matrix is lacking in the present appeals, and it makes much difference to the same.
9. The other decision of Allahabad High Court cited by the learned counsel for the appellant-insured is Savita Katiyar's Case, supra. Paragraph Nos.12 and 13 of the said decision read as under:
"12. Perusal of rule 9 of the Rules indicates that any person driving a goods carriage carrying goods of dangerous or hazardous nature to human life shall, in addition to being the holder of the driving licence to drive a transport vehicle, also have the ability to read and writ at least one Indian language out of those specified in Schedule VIII of the Constitution and English and also possess a certificate having successfully passed a course consisting of the syllabus as mentioned in the said rule and periodicity connected with the transport of such goods and for endorsement of the driving licence holder shall move an application before the prescribed authority who shall make the endorsement in the driving licence to the said effect.9
13. Rule 9 of Rule shall apply where a transport vehicle is carrying goods of dangerous or hazardous nature to human life. It is not the case of the appellant that as on the date and time of accident the tanker in question was carrying goods of dangerous or hazardous nature to human life. Since it is undisputed that driver of the tanker in question was having a valid driving licence to drive a transport vehicle effective from 12.10.2000 and it is not the case of the appellant that on the date and time of accident the tanker was carrying goods of dangerous or hazardouos nature and the documentary evidence as aforementioned brought on record before the Tribunal could not be disputed by appellants and, therefore, I do not find any error in the impugned award of the Tribunal."
This decision too does not come to the assistance of the appellant-insured inasmuch here too as there was no dispute as to the fact matrix namely, the offending tanker lorry having not carried any hazardous substance at the time of accident.
10. It has been more than a century ago observed by Lord Halsbury of House of Lords in the case of Quinn v Leathem (1901) A.C. 495, 506:
"Now before discussing the case of Allen v. Flood, (1898) A.C. 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law 10 is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all."
11. The ratio of the above two decisions is built on the substratum that the offending vehicle at the time of accident was not carrying any hazardous substance and therefore, a special licence prescribed for the vehicles actually carrying such substance is not the requirement. In other words, even though the offending vehicle is a vehicle of special category requiring a special licence, still an ordinary licence would be a valid and effective licence to drive the said vehicle if it is an empty vehicle. However, the questions that arises for the consideration of the Court in the present appeals are:
i) When a special vehicle requiring a special driving licence, met with an accident, which of the parties to the claim petition should take up the plea/contention as to the fact that the said vehicle at the time of accident was, or was not carrying any hazardous substance?
ii) When a special vehicle requiring a special driving licence, met with an accident, upon whom does the burden of proving the fact that the said vehicle at the time of accident was not carrying any hazardous substance, lie?
These two questions apparently had not fallen for the consideration of the Courts in the aforementioned decisions.
12. True it is that the provisions of Evidence Act, 1872 or the provisions of Code of Civil Procedure, 1908 do not apply proprio vigore to the proceedings before the MACT, vide Sections 166 and 169 of the Act and, Rules 240 to 254 of the Karnataka 11 Motor Vehicles Rules, 1989; as a corollary of this, it also can be said that the strict rules of pleadings, as well do not apply to the proceedings. It is a striking feature of the Act vide Section 166(4) read with Section 158 of the Act injuncts that the accident report which is required to be submitted by the police to the MACT itself shall be treated as a claim petition. But all of this does not mean that the MACT could operate in vacuum. There has to be ordinarily, version and counter version of the contending parties; issues arising therefrom have to be tried vide Rule 254 Karnataka Motor Vehicle Rules, 1989.
13. Although the provisions of the Evidence Act and the CPC as already stated above, are not applicable to the adjudication of claims strictly; however, the general principles of law relating to procedure and proof cannot be kept at a bay and the rudimentary principles of adjudication have to be borne in mind, notwithstanding the statutory prescription of summary procedure. Anyway, much of this pales into insignificance since the battle lines were drawn up before the MACT by filing the pleadings; the appellant owner of the offending vehicle was placed ex parte, since he stayed out of participation.
14. As already discussed above, it is the owner/insured or/and the driver of the offending vehicle who would invariably be in the know of the goods/substances that are carried in the vehicle, more specially if such goods or substances being 12 hazardous are being regulated by law, eg., like petroleum products, acids, etc.; generally, the transport and distribution of these hazardous substances are a matter of official record/public record, to which the police or the parties to the claim petition or the MACT will have mediate access.
15. The above questions have to be considered in the light of the aforesaid discussion. The insured intends to derive benefit from the Contract of Insurance and therefore, what all the contract or the law requires has to be satisfied by the insured. If a question arises as to a particular fact matrix for availing the benefit, then ordinarily the responsibility of taking the plea/contention in that regard is of the party who seeks benefit on that basis. Normally, the burden of proof in this regard rests on the shoulders of such seeker. This is reasonable and consistent with the legal position as to the nature of proceedings before the MACT. Conversely, it is too much to expect that this responsibility should lie with the insurer, who comes into picture long after the accident.
16. Admittedly, in the fact matrix of these appeals, nothing is coming forth either from the pleadings or from the evidentiary material as to whether the offending tanker lorry was an empty vehicle or a loaded vehicle at the time of accident. However, in the absence of plea and evidence, with regard to this, the MACT has fastened the liability only on the insured 13 leaving the insurer to go free, although the reasoning part that led to the operative portion of the order is not articulately worded. The MACT accepted the contention of the insured that the driver of the offending vehicle did not possess a special licence and thereby absolved the insurer from the liability. This is on the assumption that such a special licence was required.
17. In the appeals in hand, as already stated above, there is neither a plea nor evidence as to whether the offending vehicle was carrying the hazardous substance when it met with accident. In the absence of such a plea and evidence, there can be no presumption that the said vehicle was carrying or not carrying the substance. Thus the due adjudication is not possible for adjudging the issue of liability of the insurer. Not adjudging the same, may result into prejudice to the insured or the insurer.
18. Having said all that, this Court hastens to add that these appeals are not by the claimants nor have the claimants preferred any Cross Objections; had there been the appeals or cross-objections by the claimants, the considerations would have been much different and obviously the same would have made a difference to their outcome as well. Perhaps, in such circumstances, arguably, the decisions of the Apex Court in relation to the principle of 'Pay & Recover' would have become significantly invokable. The interest of the claimants in these 14 appeals is otherwise also protected since their vested right under the impugned awards has been left undisturbed.
19. In the above circumstances, these appeals succeed in part; the impugned judgment and awards, so far as the appellant-insured and the respondent-insurer only are concerned are set at naught; the matter is remanded to the jurisdictional MACT for consideration afresh, within an outer limit of six months after affording a reasonable opportunity to the rival parties.
It is needless to mention that the claimants are entitled to put the impugned awards in execution; the amount in deposit shall be transmitted to the jurisdictional MACT for being disbursed as compensation to the claimants.
Costs made easy.
Sd/-
JUDGE Bsv/sac*