Karnataka High Court
Sri Rajesh Kashyap H vs Sri N Muniraju on 2 August, 2018
Author: Krishna S Dixit
Bench: Krishna S. Dixit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S. DIXIT
M.F.A.NO.4717/2011
C/w.
M.F.A.NO.4718/2011 (MV)
IN M.F.A.NO.4717/2011
BETWEEN:
SRI RAJESH KASHYAP H.,
S/O. H.RANGANATH,
AGED ABOUT 35 YEARS,
R/AT NO.77, 1ST MAIN,
1ST 'C' CROSS, 3RD BLOCK,
BSK 3RD STAGE, BANGALORE. ... APPELLANT
(BY SRI A.S. GIRISH, ADVOCATE)
AND:
1. SRI N. MUNIRAJU,
S/O. NANJUNDAPPA,
MAJOR IN AGE, NO.51,
36TH CROSS, URS COLONY,
EAST END MAIN ROAD,
JAYANAGAR 9TH 'T' BLOCK,
BANGALORE.
2. THE NATIONAL INSURANCE
COMPANY LIMITED,
REGIONAL OFFICE,
2ND FLOOR, NO.144,
SHUBHARAM COMPLEX, M.G. ROAD,
BANGALORE - 01.
REPTD. BY ITS REGIONAL MANAGER. ... RESPONDENTS
(BY SRI M.NARAYANAPPA, ADVOCATE FOR R-2;
R1 - SERVED)
2
THIS MISCELLANEOUS FIRST APPEAL IS FILED
U/S. 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 30.06.2010 PASSED IN MVC NO.4775/2009 ON THE FILE
OF THE II ADDITIONAL JUDGE AND MACT, COURT OF SMALL
CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN M.F.A.NO.4718/2011
BETWEEN:
SMT. PRATIBHA KASHYAP,
W/O. RAJESH KASHYAP H.,
AGED ABOUT 32 YEARS,
R/AT NO.77, 1ST MAIN,
1ST 'C' CROSS, 3RD BLOCK,
BSK 3RD STAGE, BENGALURU. ... APPELLANT
(BY SRI A.S. GIRISH, ADVOCATE)
AND:
1. SRI N. MUNIRAJU,
S/O. NANJUNDAPPA,
MAJOR IN AGE, NO.51,
36TH CROSS, URS COLONY,
EAST END MAIN ROAD,
JAYANAGAR 9TH 'T' BLOCK,
BENGALURU.
2. THE NATIONAL INSURANCE
COMPANY LIMITED,
REGIONAL OFFICE, 2ND FLOOR, NO.144,
SHUBHARAM COMPLEX, M.G. ROAD,
BENGALURU - 01.
REPTD. BY ITS REGIONAL MANAGER. ... RESPONDENTS
(BY SRI SHIVARAJ PATIL, ADVOCATE FOR R-2;
R1 - SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.
173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
3
DATED 30.06.2010 PASSED IN MVC NO.4776/2009 ON THE FILE
OF THE II ADDITIONAL JUDGE, COURT OF SMALL CAUSES,
MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THESE APPEALS COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
These two appeals by the claimants challenge the judgment and award dated 30.06.2010 made by the MACT, Bengaluru (SCCH-13) allowing M.V.C.No.4775/2009 and M.V.C.No.4776/2009 whereby, a compensation in sums of Rs.2,77,000/- and Rs.1,16,000/- is respectively awarded with interest at the rate of 6% per annum. The challenge is on the ground that the MACT ought not to have been absolved from the award liability.
2. In a vehicular accident that happened on 16.02.2009 because of rash and negligent driving of an offending vehicle Maruthi Omni bearing registration No.KA- 05/AA-9991, the claimants, a married couple were dashed down from their motor cycle bearing registration No.KA-51/K- 4 9463. They were grievously injured. Their above claim petitions for compensation were stoutly opposed by the respondent-insurer by filing the written statement.
3. To prove their case, both the claimants were examined as PW-1 and PW-2 and Dr. R. Shashikanth was examined as the medical witness as PW-3/PW-4. From the side of the claimants, twenty three documents came to be marked as per Ex-P1 to Ex-P23. The respondent-insurer had examined its official Mr. A. Nagesh as RW-1 and two documents came to be marked as per Ex-R1 and Ex-R2 in his evidence. The MACT after looking to the pleadings of the parties in the light of all the evidentiary material has made the impugned judgment and award fastening no liability on the respondent-insurer.
4. Learned counsel for the claimants pressing into service the judgment of the Apex Court in Pappu's Case AIR 2018 SC 592 submits that, regardless of the fact that the insurer had taken up the contention as to the absence of a valid and effective driving license, still it did not avail the 5 benefit of 'Limited Defense Clause' enacted under Section 149 (2) of the Motor Vehicles Act, 1988 as interpreted by the Hon'ble Apex Court in catena of decisions, the MACT ought to have held the respondent-insurer jointly liable with the owner of the vehicle.
5. Per contra, learned counsel for the respondent- insurer contends that the owner of the offending vehicle himself being a party having been placed ex-parte, the plea of "pay and recover" which the learned counsel for the claimants wants to press into service does not come to his aid even within the matrix of the law laid down by the Hon'ble Apex Court in Pappu's Case.
6. I have heard the learned counsel of the claimants as well as the learned counsel appearing for the second respondent- insurance company. I have also perused the original LCR along with appeal papers.
7. Learned counsel for the appellants is justified in stating that the fact matrix of the present appeals admits 6 invocation of 'principle of pay and recover', in the light of the law laid down in Pappu's Case, inasmuch as the 'Limited Defense Clause' enacted under Section 149 (2) of the Act has not been invoked by the respondent-insurer by examining some proper and competent RTO official or the owner of the offending vehicle as to the availability of the driving license. Merely because, the police have stated about the absence of the driving license, in the Charge Sheet, no milk can be drawn by the respondent-insurer from the same.
8. In more or less a similar fact matrix involved in the case of Smt. Gangamma and Others vs. Sri Thimmarayappa and Another in M.F.A.No.3462/2010, this Court vide judgment 16.07.2018 has held both the owner of the offending vehicle and his insurer jointly and severally liable. Nothing has been shown from the side of the respondents as to why the same result should not follow in these appeals too.
9. Except the above, no other ground has been urged in these appeals from either side of the parties. 7
10. In the circumstances, these appeals are allowed; the impugned judgment and award in M.V.C.Nos.4775/2009 and 4776/2009 dated 30.06.2010 are modified fastening the liability on the respondent-insurer on the 'principle of pay and recover'.
However, it is open to the respondent-insurer to take appropriate proceedings for recovery under the "principle of pay and recover".
Sd/-
JUDGE ST