Karnataka High Court
Srinivasagowda S/O Narasgowda vs Sannamma S/O Late Chikkaputtegowda on 18 March, 2010
Equivalent citations: 2011 AAC 227 (KAR), 2010 A I H C 3384, 2010 (3) AIR KANT HCR 181, AIR 2010 (NOC) (SUPP) 90 (KAR.), (2011) 5 KANT LJ 578, (2011) 1 ACC 416, (2011) 1 TAC 528, (2010) 4 ACJ 2510
Author: K.Bhakthavatsala
Bench: K.Bhakthavatsala
1
IN THE HIGH COURT OF KARNATAKA AT BANGALoRE _"'»J._
DATED THIS THE 18TH DAY OF MARCH 201Q~~--- I A'
PRESENT _ V V
THE I-ION'BLE MR. JUSTICE V. Gowfifi J.
AND % .. % . .
THE HON'BLE Dr. JUSTICE
M.F.A.No. 1%%13'3/2oos%%L¢/fig} % & L %
M.F.A.No.5é;98/20.05
"
1. Sr1n1vas;igowda»,I;» _v _ .4
S/o.Naraseg:3wda'; ._ *
major, = * _ "
Chlnakuraitr H0b11, "
Pandavapura Tah 1k, ;-- _ '
{0wne1;f of Scootei' N_o.CND-5820)
4, Raju @ Sdiaqcgduzda,
8/ 0. J'ava1'*<::gG*2s'fd av, * .
Rio.Kan1ve}ioVpp.ai1:;
Chinakurali I!fo_bl'i,
. __ Pandavap1_;r'a.TaIuk,
'(Driver cf Scooter). ...APPE}I,.LANTS
.« -..[B3fV.S,11x.S;--P_.Shankar, Sr. Counsel
'-- far S:r1.K.S.Sreekanth, Adv.)
/'H
M.F.A. 1 133/2003 C /W. 5498 /
2
MF.A.1133/2003::/W5498/2003
AND:
1. Smt.Sa11narnma,
W/o.1ate Chikkaputtegowda,
Age: 45 years,
2. Kumari,
D / 0. late Chikkaputtegowda,
Aged 17 years,
8. Ningamrna,
D/o.1ate Chikkaputtegowda,
Aged 16 years, V
4. Ananda,
S/o.1ate Chikkaputtegowda; " » . if
Aged 14 years, * : _
Appellants 2 to are_"mi1'1dr__s, _ V.
Rep. by their rnoti2.er».a.r;.d «-
Natural guardian.+AppelIémt No.1-.
All are r/ 0.1-;'a1egeedu; '
Melukote Hobli," " "
PaI1daVapura'1"5.§1t1}«;. '
5. The Omental I1{su.;}ar1Vc.¢ c§.L£&.,
_ Opp. T.0}.&K.E~.B.OffiCe.._ A.
I\fi..C.R:)ad,i..Marzgiya. " """ " ...RESPONDENTS
{By'Sr::I"I,_C'.»S1*1iyara1?nIi:,.Adv. for R-- 1 ,
"for-rs;-i.F<.Ra3agg5pa1an, Adv. for R6,
. V R-2._ to 4 are" minors,
_ Rep)' by vfiespondent No. 1)
3
M.F.A.1133/2003 C/W.5498/2003
M.F.A.No.5498/2003
BETWEEN:
1. Smtfiannamma,
W/o.1ate Chxkkaputtegowda,
Age: 45 years, : '
2. Kumam,
D / o.1ate Chlkkaputtegowda,
Aged 17 years,
3. Nmgamma, .
D / o.1ate Ch1kkaputtegow<;1&,,_ E
Aged 16 years,
4. Amanda, V
S/o.1ate Ch1kkapu'1itegoWda, g
Aged 14 years, = '
Appellants 2: tovfl-. afe mii?:0rs';' « ,
Rep. by their m0therfa,n_cl".% . .
Natural gua1"d_ian4--Appe11a-at'N031 A'
All are r/0.HaIe.geedu,, . V1 " '
Melukote Hobh, _V V -_ ~*
Pandavapvara _'I'a1uk.~. _ A " ° ' ...APPELLANTS
Sri . ShiVa1:amu, }
A' , V1. Sr'inivasagoWda=,A
, *S/ o.Na1'asVeg0Wda,
«.fj;-'««__l\iIajor, '
-. _ A ' d.Ka_nivekoppalu,
C'hina1;urali Hobli,
K 7.. . e1?ar'1f:iavapura Taluk.
5
M.F.A.1133/2003 c/w.5498/2003
Rs.8,55,000/-- and direct the Insurance Company to pay the entire
compensation to the ciaimants, by modifying the
award dated 8.11.2002 made in MVC N0.824/ 1998~1(1'I1
Add}. Ciairns 'I'r1'buna1/ Civil judge...' (Sée.nier"e.--1.."Ijivision}., 3'
Srirangapatna.
3. Since these two appeals are"'e«directed against one and the
same judgment and award I:"iae1e ji\Iti.'824/199A81Aen the file
of Claims Tribunal, heard eomnion appeals are
disposed of by thié ¢o:_%;i"'9n 'V ' "
4. The are hereinafter
1'€f€I'I'€d 1111 it The k appellants in
M.F.A.N0.1133}/2003 as 'the owner' and 'the driver'
of the scooter. qnestion has been insured with the
I11suI?ance.. Limited, and hereinafter referred to
as 'the__ i:n.s.t,1rerfi>.«V" , ' .. _ V V _}~
1 «V 5. bVraie.f1f1°aets of the 'case leading to the filing of the
"may be stated as under:
L
6
M.F.A.1133/2003 c/w.5498/2003
On 22.08.1993 at about 10.30 a.m., when thevggdeceased
Chikkaputtegowda was going on the left side of the road
he was in front of Government Primary School
Pandavapura Road. the driver of the
came in a rash and negligent ,manner and dashed' aga'i'nstg
Chikkaputtegowda from behind susta,inedV-lfatalflinjuries.
He was admitted to K.R.H*o~s_p1tal;'"mjéscre;,_i,aterHonvyshifted to
NIMHANS Hospital and then Bangalore, Where
it was declared t11_a+,i:;}1¢. 15.09.1993 the
Victim was taker: same day he died. The
claimants, rninorchildren have filed a claim
petition under it Motor Vehicles Act, 1988,
seeking cornpenxsation. to Rs.8,55,000/ -- with costs
the"'owzv.er, the insurer and the driver of the
sco--ot'e1:respectively."On service of notice in the claim petition, the
ownerarhidltthe of the scooter entered appearance through
l7,_'the'ir counlseliiouhtéthey did not file written statement. The insurer
.1 scooter liled Written statement denying the averments of the
lhpgetition and sought for dismissal of the petition. The Trial
Coulrthframed in all three issues. In support of the case of the
L
7
M.F.A.l133/2003 c/W.5498/2003
claimants, the wife of the deceased Chikkaputtegowda gotiherself
examined as P.W.l besides examining one Rajegowda as "cVI~'V':§"V'.i',:'2. and
got marked Exs.P-1 to P-6. The insurer has got--'..e:5<amiVne'dl
Putta Nanjaiah, Asst. Administrative officer-as ;tnd"co;3yli'nr 3
Insurance Policy, extract of the History L7)riVe'i*..§
driving licence were marked asV3E:§is...VD--1A"'lto__ claims"
Tribunal, after hearing arguments "perusingl theevidence and
material on record, held accident due to
negligent driving of the and awarded
compensation interest at the rate
of 9% p.a., from in favour of the
claimants againystthe-3 driver of the scooter holding
that they are A_'ioi_ntly and liable to pay the compensation.
The claim: 'petition Vtdisrnissed as against the insurer. The
forflenhancernent of compensation as prayed
for the pe'ti_.tion and to direct the insurer to pay the
' »__ Aicompensationslv' '
A 6;' owner and the driver of the scooter in question have
filed; the appeal in MFA No.1133/2003 contending that death of
La
8
M.F.A.1 133/2003 c/w.5498/2003
Chikkaputtegowda was not due to the injuries sustained-'-in the
accident and the compensation awarded is exorbitant 3. :It-.i;'s.y.aiso
contended that the driver of the scooter had valid
to drive HMV and therefore, he was hOldiI1g--VEili('}_ driving licencehto '
drive the scooter, which was insured the "l'nsu1*ance Cofiipyaiiy
is liable to pay the entire compensation to the clainriant:-;;""
7. In support of the case learned counsel
Sri.H.C.Shivaramu submitted has awarded
meager compensatio'n_:y1'towards'«..dt5I3endency, loss of
consortium, loss'-' medical expenses.
transportationHciiargesaaifid lhoflinjterest awarded is also on
the lower side, that compensation awarded
by the Tribunal°*«1nayyfibe as prayed for in the claim
petition. urged.---that the Tribunai erred in absolving the
---from the liability even though the insurer
neither .plcaded'2n.'Qre1'proved the ingredients of Section 149(2) read
Sectic-nV"'A.._1£lQ9{7) of the Motor Vehicles Act. It is further
«:.'~contennded«..that the Tribunai erred in not making the insurer liable
'A' -4"_~ to the award.
L
9
M.F.A.1133/2003 c/w.5498/2003
8. Learned Senior Counsel, Sri.S.P.Shankar, appearing for
the owner and the driver of the scooter has not urged with___regard
to the cause of death of Chikkaputtegowda and _ of
compensation awarded by the Tribunal. What is
Court is with reference to not saddlirig the."'Iiabilitv"-oiid the
Insurance Company. He vehemently stints' 'ti.'.r_1e
driver of the scooter had valid driving licerice 1:3I.M.'VVi'»
[Heavy Motor Vehicle}, he was entitled to 'drive. scooter and
therefore, he had valid lieenee.l.to"'drive the scooter and
there is no breach of terms of 'i.nsi.1rance'.pVo}ir,-ylhand the insurer
is liable to indemniilyfthe Qtynefiir the"sc'oo'ter in question. In
support of the Vt«h_ve'the vehicle in question, he has
cited the following decisions: ,_
ii" - _ ILRQ 35 1v1.----.{«U'NITED INDIA INSURANCE COMPANY
' 1;1":\2Iaifif1«31):_'~v'_/'st; 'B PA DODDABIRAPPA PUJARI AND
point that the rider who had effective
ClI'1'\..f44illI1gVl!lll'i:.CE.3VI4l1iCf: to drive L.M.V as on the date of accident
could' drive motor cycle and the Insurance Company cannot
* avoid its liability to pay compensation to a third party.
Li
3.0
M.F.A.1133/2003 C/W. 5498/2003
ii} 2005 (1) TAC 704 (PUNJAB 81 HARYANA) (NATIONAL
INSURANCE CO.LTD., V/s. PARVEEN KUra1J$af"g;<--,gg2\_1xID
OTHERS) on the point that Insurance
absolved of its liability to pay.;eom_pen'satior1..'fi.
pleading that the licence granted to 1:5e~
class or description, but vehiel_e inxl/'o1ved,in,accident was"
different class or 3 desorfiption. A_ Z
iii) 2004 ACJ (1) {NAHONAL.1I\l-SU§R;tlN'(iei~:'.:lt;Oil/IPANY LIMITED
V/s. SWARAN SINGH the point that the
Insurance award in favour of
the third and then to recover the
award:va1no'ant.;.ff,orn.3theloavner' or driver of the vehicle even
where the linsuraniete' could establish breach of
terms policy. on the tirart of the owner of the vehicle.
Sri--..Rajago'pa_lan, learned counsel appearing for the
insurern-igllsztbtnitted the claims Tribunal has rightly held that
the~vdriveru"of Lhgenvscooter had no valid driving licence to drive the
4: viannd therefore, insurer was not liable to pay the
Icoznjgaenslation. He has cited the following decisions:
L
.
OTHERS] on the point that the tractor .--vvrv1i gm).
M.F.A.1133/2003 C/W.5498/2003 2009 ACJ 581 (NATIONAL INSURANCE CO_iLTD., V/s.TULNA DEVI AND OTHERS) on the "pVoinjt'.t:.that when no evidence to prove that ownerhadv care before the vehicle was given to --'thevV'4'cl'r;TverVltofdrive b it or owner was guilty ofl-ne:g'jligenc(=3-- exercise reasonable care-before" the veiv1icle"vvas"'given"
to the driver regarding licenced driver, from liability.
2009 AC}. V 1426" V/s.ORIEN'l'AL on the point thatitilgfivfiiriver learners' licence which »d'av's.v..bcfore the accident, had no valid drivingolicenceAantitherefore, Insurance Company was 5 'not liable Atojaay compensation to the claimants. ZEUDBVVHAQJ (SARDARI AND OTHERS V/s.SUSHIL ci1_*i=v=e_1fuf:hlad no licence to drive a tractor and the lfiiatirance Company was exempted from liability. E2008 ACJ 1928 {ORIENTAL INSURANCE CO.LTD., V/SZAHARULNISHA AND OTHERS} on the point that L 12 M.F.A.1 133/2003 C/w.5498/2003 the driver had licence to drive heavy motor vehicle, but he was driving two-wheeler W scooter. had effective licence and the Insurance liable as he was driving a different vehjfclen-in if violation of Section 10(2) t1%i_é'* 1988 and the Insuran'ce..V_ C013n'parzy_u vvas';._:di1'ec'ted to'? satisfy the award andVAeshall._have rightv.to,r§ecover the amount from _ V ' 3 _ .3 x V
v) 2008 ActrV.21855:.{UI§iijeo* co. LTD.
v/s._ OTHERS} on the driving the car at the time of licence, the Insurance Company not ,0 V"
2008 Agca 00216.1 '-»{1x;Evv INDIA ASSURANCE CO.LTD., RAHEMANSHA FAKIR AND the.--:'point that the driver of offending vehicle«.__had'Iicence to drive three--wheeler who had no driving licence to drive transport vehicle. It was held 3 <._tij'a't"h.e_lc.3.--was not possessing valid driving licence and L Vii)
viii) 13 M.F.A.1133/20.03 c/w.5498/2003 the Insurance Company to satisfy the award and recover the amount from the owner.
2008 ACJ 2654 (RAM BABU TIWARI V/i;.i;~;.I..;r:r~a.1t1T:§;1) INDIA INSURANCE CO.LTD. AND Omaha)' point that driving licence ofwthe driirer"
about three years prior to the 'Vifas renewed after the acoicierzp It held*»t.he driVe1'--. L' of the offending vehioke had..yalid' iicence on the date of accident_ and Company is not Iiabfe to indemnify.tfi€'=i.na1;r;edix". L * 2007 e..VCv'iiA2€DRA AND OTHERS V/s,o"R":t*.1:~N%r_At,p 1NS'URAN_'cE CO.LTD., AND omens} on thepointth'at:_'t}<t.e"iieenoe of the driver of offending 5 'vehicle h.ad'e§(pir'edvon 27.08.1984 and the licence was renewed on 28.04.1995 and as on the date of i'aoCident,.Vidriver had no valid driving licence and the A Insuranee Company is not liable to pay compensation tothe claimants.
_ j'f;2oo7 ACJ 2816 [ORIENTAL INSURA§\iCE co. LTD, V/s. SYED IBRAHIM AND OTHERS) on the point that. L X1) 14 M.F.A.1133/2003 c/w.54.~98/2003 the driver who had licence to drive light rriotor"-.r,ehicle was driving heavy goods vehicle at * of accident. .
licence and exonerated the lns'ui'ance Co.rrip'a11y.' 2007 ACJ 1336 (NAnoNA'L.V1i¥$.sURANcE~.tcoI v/s. KUSUM RAE AND>OLil1J{7IER$J. on the driver had licence to drivelight"vmotorfivehicle. but was driving a jeep giplied as a taxi-- a commercial vehicle." the driver did not possessrla vehicle and exempted from liability.
econ GANGADHAR MARATHA v/s.
oR1sNrAL"viNsnRAig:ce co. LTD.) on the point that ;the driver, _ possessed a licence to drive light motor but he was driving the goods carriage vehicle). The driver who was holding licence topdrivie light motor vehicle was driving a transport vehicle. There was no endorsement authorising the it = _ rdriver to drive transport vehicle. It was held that the driver had a valid licence and the Insurance company L It was held that the driver%'IhadV'~ndo' 16 M.F.A.1133/2003 C/W.5498/2003 scooter and there is no vioiation of Section 3(1) of the Motor Vehicles Act, 1988?
iv} Whether the insurer is Iiabie to indemnify__t'he ovvner ~ the scooter in question?
v) What order?
11. Our answer to the above points is1asv.'tinder;,..".1, Point No.1» in the negative. .1 ' 1 Point No.2-- partiy in the 1' Point Nos.3 and 4_«_-~ in 1 Point No.5 -- asfpeiffinaiVordieri
12. Poi11t_;_No.'1 the claimants is that on 22.08.1993 at ahoilt 1.0.1.031 Aa._7iI1.,;.~'1when the deceased was going on theieft ovfuthe roVad;«.S£2__Qoter bearing No.CND--5826 driven by the"d1-iygjjrr»(Withtm,§"pi_iiion--fiders) came from behind and dashed 7*.against'éhikitatidmfittegourda, as a result of which, the injured dasustained iVnju1ries and he was admitted to various hospitals. .1 Officer at Victoria Hospital opined that he would not did."'SuI'Vi've"andijtherefore on 15.9.1993 he was taken to his house at %"r.__15andavapura and he died Tithe same day. The deceased was 21 M.F.A.1133/2003 C/V6/'.5498/2003 apply to the licensing authority having jurisdiction in thearea in which he resides or carries on his business in such "fonIi*.g.and accompanied by such, documents and with such fees prescribed by the Central Government_for.._the other class or description of the motor vehiclest to the in
15. In the instant case, the has~got one Putta Nanjaiah, the Assistant of the Insurance company as R.W.1. ~.i1b'_'_the driver of the scooter was possessing:.:d:ivin:g He has got marked copy of 'Ex.D--1. The insurance policy was The accident occurred on the extract of the history of drivers issued byficencinvgéd A.R.T.O, Mysore. According toy.--that jwas "b'orn..o11 21.05.1955 and he was authorised to dr1v"eV:VH~eavy_goodVs"vehicle [HGV). The licence was issued during 1988--E'39.AV"'i*hevVdiVivingr:=.Iicence has been renewed from time to time Wand the sariie vviashvin force as on the date of accident. 11$. hA't;uest1on that occurs to our mind is that a person, who . _ is I«i,.cen's'ed to drive motor cycle with gear, can he not drive motor Le