Karnataka High Court
M/S Reliance General Ins. Co Ltd., vs Jayaramu on 4 March, 2020
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
MFA NO. 2834 OF 2016
C/W
MFA CROB NO.76 OF 2016 (MV)
IN MFA NO. 2834 OF 2016
BETWEEN:
M/S RELIANCE GENERAL INSURANCE
COMPANY LIMITED, NO.28, 5TH FLOOR
CENTENARY BUILDING, M.G.ROAD
BENGALURU - 560 001
REP. BY MANAGER LEGAL ....APPELLANT
(BY SRI. ASHOK N. PATIL, ADVOCATE)
AND:
1. JAYARAMU
S/O RAJEGOWDA
AGED ABOUT 56 YEARS
NO.118/A, RAMPURA VILLAGE
MADDUR TALUK,
MANDYA DISTRICT
2. GANGARAJU
S/O PUTTARANGAIAH
NO.711, 7TH CROSS
KASTURI LAYOUT
RAJAGOPALANAGAR
PEENYA 2ND STAGE
2
BENGALURU - 560 058 ....RESPONDENTS
(BY SRI.C. PUTTASWAMY, ADV. FOR R-1;
SRI.M.R. VIJAYA KUMAR, ADV. FOR R-2)
THIS MFA IS FILED UNDER SECTION 173(1) OF M.V.
ACT PRAYING TO ALLOW THIS APPEAL AND
CONSEQUENTLY SET ASIDE THE JUDGMENT AND AWARD
DATED 24.02.2016 PASSED BY THE COURT OF I ADDL.
JUDGE AND XXVI ACMM, COURT OF SMALL CAUSES
(SCCH-11), AT BENGALURU, IN MVC NO.2586/2014 AND
SUCH OTHER RELIEF AS THIS HON'BLE COURT DEEMS FIT
IN THE FACT AND CIRCUMSTANCES OF THE CASE, IN THE
INTEREST OF JUSTICE AND EQUITY.
IN MFA CROB NO. 76 OF 2016
BETWEEN:
SRI. JAYARAMU
SON OF RAJEGOWDA
AGED ABOUT 57 YEARS
RESIDING AT NO.118/A
RAMPURA VILLAGE
MADDUR TALUK
MANDYA DISTRICT ... CROSS OBJECTOR
(BY SRI. C. PUTTASWAMY, ADVOCATE)
AND:
1. GANGARAJU
S/O PUTTARANGAIAH
NO.711, 7TH CROSS
KASTURI LAYOUT
RAJAGOPALANAGAR
PEENYA 2ND STAGE
BENGALURU - 560 058
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2. RELIANCE GENERAL INSURANCE
COMPANY LIMITED, LEGAL OFFICE
CENTENARY BUILDING
5TH FLOOR, M.G.ROAD
BENGALURU - 560 001
... RESPONDENTS
(BY SRI. M. R. VIJAYA KUMAR, ADV. FOR R-1;
SRI. ASHOK N. PATIL, ADV. FOR R-2)
THIS MFA CROB. IS FILED UNDER ORDER 41 RULE
22 OF THE CIVIL PROCEDURE CODE PRAYING TO SET-
ASIDE THE JUDGMENT AND AWARD DATED 24.02.2016
PASSED IN MVC NO.2586/2014 BY THE I ADDL.SCJ, MACT
(SCCH-11) AT BENGALURU BE PLEASED TO MODIFY THE
AWARD AND ENHANCE THE COMPENSATION AS PRAYED
FOR IN THIS CROSS APPEAL WITH INTEREST AT 9% PER
ANNUM BY ALLOWING THIS CROSS APPEAL IN THE
INTEREST OF JUSTICE.
THIS MFA AND MFA CROB. COMING ON FOR
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The Insurance Company has preferred an appeal in MFA No.2834/2016 whereas, respondent No.1/claimant has preferred cross objections in cross objection No.76/2016 seeking enhancement of compensation being aggrieved by the judgment and award dated 24.02.2016 in M.V.C.No.2586/2014 passed by the Motor Accident Claims Tribunal, Bengaluru, (SCCH-11).
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2. The ranks of the parties before the Tribunal is retained for the sake of convenience.
3. The brief facts leading to the top noted case are as under:-
On 04.03.2014 at about 7.00 p.m. when the claimant was proceeding on his motor cycle bearing No.KA-55-J-9974 on the left side of B.M.Road near Mallaiahdoddi village gate, at that juncture, the driver of offending Maruthi Omni Car bearing No.KA-02-AA-9640 came in a rash and negligent manner and dashed against the motor cycle on which the claimant was proceeding. On account of collusion, the claimant suffered grievous multiple injuries and hence filed claim petition claiming compensation of Rs.5,00,000/-.
4. On receipt of notice by the Tribunal, the insurance company which was arrayed as respondent No.2 has filed written statement and denied the entire averments made in the claim petition. The case of the 5 insurance company before the Tribunal is that the driver of the offending vehicle was not holding valid and effective driving licence and since the owner has violated the terms and conditions of insurance policy, the Insurance Company is entitled to seek protection under Sections 147 and 149 of Motor Vehicles Act, 1988. The Insurance Company also specifically contended in MFA No.2834/2018 that the claimant was also negligent and hence, requested the Tribunal to examine the contributory negligence on the part of the claimant.
5. The Tribunal based on the rival contentions formulated the following issues:-
1. Whether petitioner proves that, he sustained grievous injuries due to actionable negligence on the part of driver of offending vehicle bearing No.KA-02-AA-9640 on 4.3.2014 at about 7.00 p.m. on the left side of the B.M.Road, near Mallaiahdoddi village gate, infront of Annapurna Dhaba, Mandya Taluk and district when he was riding motor cycle No.KA-55-J-9974?6
2. Whether claim petition is bad for non joinder of the parties?
3. Whether respondent No.2 proves that, as on the date of the accident, driver of offending vehicle was not holding valid and effective driving licence and respondent No.1 violated terms and conditions of insurance policy?
4. Whether petitioner is entitled for the compensation as prayed in the claim petition? If so, what is the quantum of compensation and from whom?
5. What order or award?
6. The claimant in support of his contention has examined himself as PW-1 and examined another witness as PW-2 and got marked documents at Exs.P.1 to P.15.
The Insurance Company has examined one witness as RW- 1 and got marked one document as Ex.R.1.
7. The Tribunal having examined the oral and documentary evidence proceeded to award global compensation of Rs.90,000/- along with the interest at the rate of 6% p.a. from the date of petition till the date of realization.
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8. The Tribunal has held that even after the accident, the claimant has reported to duty and was in service for a period of one year two months and later he has taken voluntary retirement having regard to the gravity of injuries suffered. Hence, the tribunal has proceeded to award global compensation of Rs.90,000/-.
9. The learned counsel appearing for the insurance company would vehemently argue and would reiterate the grounds urged in the appeal memorandum filed in MFA No.2834/2016.
10. The learned counsel for the appellant would submit that since the driver of the offending vehicle was holding learning licence, there is clear violation of Rule 3 of the Central Motor Vehicles Rules, 1989, which contemplates that a person possessing learning licence needs to be accompanied by an instructor holding an effective driving license to drive the vehicle and such instructor is required to sit in such a position from where he could control and stop the vehicle. Relying on this rule, 8 the learned counsel for the appellant submit to this Court that there is a breach on the part of the owner of the offending vehicle and hence in this context, he would submit to this Court that the Tribunal ought to have reserved liberty to the insurance company to pay compensation assessed by the Tribunal and thereafter, recover the same from the owner of the offending vehicle. The learned counsel for the insurance company has relied upon the judgment reported in ILR 2011 KAR 5761 [New India Assurance Co. Ltd., vs. M.Sureshappa and another.]
11. The facts in the present case on hand are similar to the facts in the above reported judgment. Relying on the said judgment the learned counsel for the appellant would submit to this Court that though the initial liability is on the insurance company to pay the compensation, the insurance company is entitled to recover it from the owner of the offending vehicle on the ground that there is breach of policy conditions. He would further rely on judgment of 9 the Hon'ble Apex Court in the case of PAPPU AND OTHERS v. VINOD KUMAR LAMBA AND ANOTHER reported in (2018) 3 SCC 208.
12. Having heard the learned counsel for the insurance company and having examined the judgments relied on by the appellant and insurance company, this Court is of the view that there is absolutely no material on record to indicate that the driver of the offending vehicle was accompanied by an instructor, since it is not in dispute that the driver of the offending vehicle was holding learning license for non transport vehicle and in fact was driving transport vehicle and thus, there is violation of Rule 3 of the Central Motor Vehicles Rules, 1989.
13. The Tribunal having determined the compensation ought to have fastened liability on the insurance company to pay the same and recover from the owner of the offending vehicle. In this context, finding of the Tribunal needs modification. Accordingly, appeal filed by the insurance company is allowed in part and the 10 insurance company is liable to pay the compensation determined by this Court and recover the same from the owner of the offending vehicle in accordance with law.
14. The cross objection is filed by the claimant seeking enhancement of compensation. On examination of oral and documentary evidence, this Court is of the view that there is no scope for enhancement. However, having examined the gravity of injuries suffered by the claimant, this Court would further enhance the compensation by a sum of Rs.25,000/- in addition to the amount determined by the Tribunal. The further enhancement of Rs.25,000/- is not seriously objected by the insurance company. Hence, this Court is of the view that claimant is entitled for global compensation of Rs.1,15,000/- with interest at 6% p.a. as against Rs.90,000/- awarded by the Tribunal.
15. Accordingly, the appeal filed by the insurance company in MFA No.2834/2016 is allowed in part and the appellant - Insurance Company is liable to pay the compensation determined by this Court and recover the 11 same from the owner of the offending vehicle. The appeal filed by the claimant in MFA Crob.No.76/2016 is allowed in part and the claimant is entitled for global compensation of Rs.1,15,000/- as against Rs.90,000/- awarded by the Tribunal. The claimant is entitled for enhanced compensation of Rs.25,000/- with interest at the rate of 6% per annum from the date of petition till the date of realization.
The amount in deposit in MFA No.2834/2016 shall be transmitted to the Tribunal to enable the claimant to withdraw the same.
Sd/-
JUDGE MH/-