Karnataka High Court
The Manager vs Sri. Mushappa Balappa Naik on 30 January, 2023
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 30TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
MISCELLANEOUS FIRST APPEAL NO.100846 OF 2020 (MV)
BETWEEN:
THE MANAGER,
IFFCO-TOKIO GENERAL INSURANCE
CO., LTD., 2ND FLOOR, SIKSHAKA
VISHWASTA MANDALA SHIKSHAK
BHAVAN, COLLEGE ROAD,
BELAGAVI - 590001, NOW
REPRESENTED BY ITS AUTHORISED
SIGNATORY.
Digitally
signed by
ANNAPURNA
... APPELLANT
CHINNAPPA
DANDAGAL
Location: High
court of
Karnataka,
(BY SRI. SUBHASH J.BADDI, ADV.)
Dharwad
AND
1 . SRI. MUSHAPPA BALAPPA NAIK,
AGE: 33 YEARS,
OCC: AGRICULTURE/COOLIE,
R/O: PASCHAPUR, TQ: HUKKERI,
DIST: BELAGAVI - 590008.
(Deleted v.c.o.dated 08.11.2022)
R1 died. LR. On record i.e. R2
2
2. SMT. MAHADEVI W/O. MUSHAPPA NAIK,
AGE: 29 YEARS,
OCC: HOUSE HOLD AND COOLIE,
R/O: PASCHAPUR, TQ: HUKKERI,
DIST: BELAGAVI - 590008.
3. SRI. NINGAPPA BALAPPA HATTARKI,
AGE: 50 YEARS,
OCC: AGRICULTURE,
R/O: HUNNUR MASTIHOLI
(NARASINGPUR),
TQ: HUKKERI,
DIST: BELAGAVI.
...RESPONDENTS
(BY SMT. SUNANDA P.PATIL ADV. FOR R2
SMT. CHITRA M.GOUNDALKAR, ADV. FOR R3)
THIS MFA FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED
21.10.2019 PASSED IN MVC NO.701/2015 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, HUKKERI, AWARDING
COMPENSATION OF Rs.5,00,000/- WITH INTEREST AT 6
PERCENT P.A. FROM THE DATE OF PETITION TILL ITS
REALISATION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 09.01.2023, THIS DAY, THE COURT, PRONOUNCED
THE FOLLOWING:
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JUDGMENT
Challenging impugned judgment and award dated 21.10.2010 passed by Senior Civil Judge and AMACT, Hukkeri, in MVC No.701/2015, this appeal is filed.
2. Brief facts as stated are that on 08.3.2014, Kum.Satish Mushappa Naik was playing nearby a Mahindra tractor bearing engine no.ZKJCOO205 and chassis no.ZKJCOO205 which belonged to respondent no.1. When he got into driving seat as vehicle key was available, he accidentally started it. While vehicle was moving, it dashed against two other children. Thereafter, Satish himself fell down, came under wheels of tractor and died on spot. Due to untimely death, his parents filed claim petition under Section 166 of Motor Vehicles Act against owner and insurer of offending vehicle.
3. On service of summons, respondent no.1 owner denied accident occurred due to negligence of 4 driver of tractor. Claim petition was also opposed as being excessive and arbitrary.
4. Insurer opposed claim petition on ground that driver of tractor was not holding valid and effective driving licence and claim petition was false, vexatious. Though accident did not occur as alleged, they had managed to file a false complaint. It was also contended that deceased was charge-sheeted as accused no.2 for offences under Sections 287, 338 and 304-A of Indian Penal Code. It was further submitted that deceased himself was tort-feasor and could not take benefit of his own mistake.
5. Based on pleadings, tribunal framed issues and recorded evidence wherein claimant no.2 was examined as PW1 and Exhibits P1 to P7 were marked. In rebuttal, official of insurer was examined as RW1 and Exhibits R1 to R12 were marked.
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6. Thereafter, tribunal answered issues in favour of claimant by holding that accident occurred due to rash and negligence of driver of tractor and as vehicle was insured with respondent no.2-insurer, insurer was liable to pay compensation. Assailing said award, insurer is in appeal.
7. Sri Subash J. Baddi, learned counsel for appellant-insurer submitted that tribunal was not justified in holding insurer liable to pay compensation. Even when no negligence could be assigned to driver of insured vehicle. It was submitted that in fact Ex.P1
- complaint filed by claimant no.2 was alleging negligence against deceased Satish also. Relying upon decision of Hon'ble Supreme Court in Minu B. Mehta v/s Bala Krishna Ramchandra Nayan, reported in AIR 1977 SC 1248, it was submitted that Hon'ble Supreme Court has held it was incumbent upon claimant to prove negligence before owner or insurer could be made liable to pay compensation to victim. 6
8. Learned counsel further submitted that Hon'ble Supreme Court in Sudhir Kumar Rana v/s Surinder Singh, reported in (2008) 12 SCC 436, held:
"5. We do not intend to lay down a law that a child can never be guilty of contributory negligence but ordinarily the same is a question of fact."
9. Therefore, whether deceased was himself negligent or otherwise would be a question of fact required to be established by leading evidence. It was submitted that after vehicle was parked, accident occurred when deceased Satish had started vehicle and was driving it when he fell down and came under wheels. As complaint was filed against deceased Satish himself, insurer could not be held liable.
10. It was also contended that award was contrary to mandate of Sections 146 and 147 of Motor Vehicles Act ('MV Act' for short). It was submitted 7 that Section 146 of M.V. Act mandates that no person shall allow any 'other person' to use a motor vehicle unless there was in force a policy of insurance. It is submitted that since a 'child' was not covered under Section 146 of M.V. Act, there could not be valid permission for user of vehicle by child. Therefore, user of tractor by deceased was in violation of Section
146.
11. It was further submitted that Section 147(1) of M.V. Act, does not intend extension of insurance coverage in respect of third party, who had stepped into shoes of owner as rider. Even Section 168 of M.V. Act, emphasized said principle. It was submitted that since deceased was driving tractor attached with trailer without possessing valid driving licence and owner/insured had entrusted vehicle to be driven by unlicenced person, there would be breach of terms of policy calling for discharge of insurer's liability. 8
12. It was submitted that since provisions of MV Act provided that insurer would be liable only upon proof that there was lawful entrustment of vehicle to a person who was authorized to drive it, apart from establishing negligence, tribunal was required to give findings regarding these aspects as they would be jurisdictional issues. Tribunal was also required to determine whether driver, owner, insurer, all or any of them would be liable to pay compensation. Since, there was no lawful entrustment, Tribunal was not justified in holding insurer liable to pay compensation. It was further submitted that even insured vehicle was under temporary registration and therefore liability of insurer was required to absolved and sought for allowing appeal.
13. On other hand, Smt.Sunanda P. Patil, learned counsel for claimant, and Smt.Chitra M. Goundalkar, learned counsel for owner, supported award and opposed appeal. Insofar as filing of 9 complaint alleging negligence against her deceased son also, it was submitted that complainant - claimant no.2 being illiterate and not being in position to understand contents of complaint (due to sudden death of her minor son) had affixed her LTM on Ex.P1- complaint written by Abdulrajak Nadaf. Therefore, contents of complaint cannot be sole basis for determining negligence. It was submitted that driver had negligently failed to remove key after parking vehicle. Consequently, when deceased, while playing on tractor had accidentally turned key, started vehicle which began moving. Therefore, it cannot be held that deceased was 'driving' it. It was submitted that as per Section 82 of Indian Penal Code, child below 7 years of age was incapable of attracting any criminal liability. Basis for said provision was principle of 'doli incapax'. Without specific prove of fact that child was capable of knowing consequences of his acts, ratio in Minu B Mehta's case (supra) would not be attracted. 10
14. Insofar as deceased being third party, reliance was placed on Division Bench decision of this Court in Dr.S.Jayaram Shetty v/s National Insurance Co. Ltd., wherein after interpreting Section 145(g) of M.V. Act, had held that all persons other than insurer and insured would be third party.
15. Insofar as contention that vehicle was under
temporary registration, it was submitted that time for permanent registration had yet expired. In Ex.R4 - RC extract, it was clearly mentioned that vehicle was required to be permanently registered on or before 28.04.2014 and since accident occurred on 08.03.2014 i.e. before said date, insurer could not escape liability.
16. It was submitted that deceased was four years old and contributory negligence could not be alleged against child. It was submitted that owner had entrusted vehicle to duly licenced driver and said driver had parked it in open land, at time of accident. 11 But, inadvertently left key in it. Since, vehicle was duly insured, insurer was liable.
17. From above submission, occurrence of accident involving insured vehicle leading to death of minor Satish is not in dispute. Issuance of insurance policy and its validity on date of accident is also not in dispute. Tribunal held that accident had occurred due to negligence of driver of tractor insured with insurer and claimants were entitled for compensation from insurer. Insurer is in appeal on liability as well as negligence. Therefore, point that arises for consideration is:
"Whether tribunal was justified in fastening liability upon appellant-insurer?"
18. At outset, there is no dispute about basic principle that only upon establishment of occurrence of motor vehicle accident due to negligence, liability to pay compensation under M.V. Act, would arise. Insofar as contention that there was violation of policy 12 conditions by referring to Sections 146 and 147 of M.V. Act, that as owner had allowed minor who did not possess driving licence to drive, there was no valid entrustment; it is seen that in instant case, vehicle was parked near place where children were playing. Further, owner/driver had failed to remove key from vehicle without anticipating unauthorized use. In fact leaving a vehicle untended with key inside would by itself amount to negligence. Hon'ble Supreme Court in Jawahar Singh v/s Bala Jain and Ors., reported (2011) 6 SCC 425, held that it was responsibility of owner to ensure that his motor vehicle was not misused that too by a minor without licence, even where it was contended that minor had taken keys without knowledge and caused accident while driving vehicle. Hon'ble Supreme Court held that principle of vicarious liability would be attracted and owner/insurer would be liable.
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19. Insofar as contention of negligence against minor child by relying upon Ex.P1-complaint, it is seen that complaint is also filed alleging negligence against driver/owner of vehicle for negligence in leaving vehicle unattended with key inside. Complaint insofar as against deceased would be contrary to Section 82 of IPC and as such, liable to be ignored.
20. Even contention that accident occurred while minor was 'driving' insured vehicle without driving licence, is only to be noted for purpose of being rejected as it is clear case of claimant as well as prosecution that vehicle started moving when minor accidentally turned ignition key. Without establishing that minor was capable of knowing consequences of his action, result of such action cannot be considered due to his negligence. It would be apposite to refer to observations of Hon'ble Supreme Court of Ireland in Fleming v/s Kerry County Council, reported in [1955-56] Ir. Jur. Rep. 71:
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"In the case of a child of tender years there must be some age up to which the child cannot be guilty of contributory negligence. In other words, there is some age up to which a child cannot be expected to take any precautions for his own safety. In cases where contributory negligence is alleged against a child, it is the duty of the trial Judge to rule, in each particular case, whether the plaintiff, having regard to his age and mental development, may properly be expected to take some precautions for his own safety and consequently be capable of being guilty of contributory negligence. Having ruled in the affirmative, it becomes a question of fact for the injury, on the evidence, to determine whether he has fallen short of the standard which might reasonably be expected from him having regard to his age and development. In the case of an ordinary adult person the standard is what should be expected from a reasonable person. In the case of a child, the standard is what may reasonably be expected, having regard to the age and mental development of the child and the other circumstances of the case."15
21. Therefore, invoking principle of vicarious liability, as in Jawahar Singh's case (supra), owner/driver of vehicle have to be held negligent and consequently insurer liable to indemnify them as undertaken while issuing policy.
22. Reliance upon Sudhir Kumar Rana's case (supra) would not be of much help to appellant as even in said case, it was held that only by reason of driver not possessing driving licence, it cannot be presumed that said driver would be rash and negligent and said aspect would always be question of fact. In instant case, insurer as merely produced copies of FIR, compliant, charge-sheet, which were also produced by claimant. There is no effort on part of insurer to establish that deceased was in a position to understand consequences of his action. Hence, point for consideration is answered in negative.
23. Consequently following:
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O R D E R
i) Appeal is dismissed with costs.
ii) Amount in deposit is ordered to be transmitted to tribunal for payment.
iii) Insurer is directed to deposit balance compensation within six weeks.
SD JUDGE Vmb