Karnataka High Court
The Oriental Insurance Co Ltd vs Sri R Suresh S/O Ramaiah on 19 August, 2011
Author: Subhash B.Adi
Bench: Subhash B.Adi
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 19™ DAY OF AUGUST 2011 BEPORE THE HON BLE MR.JUSTICE SUBHASH B.ADI _ MISCELLANEOUS FIRST APPEAL NO.3082/2010 M.F.A.CROSS OBJECTION NO. 95/2610 _ IN MF A.No. 3082/2010 BETWEEN: The Oriental Insurance Co. ttd., DO-IT No.48, Church Street Bangalore, Through its Bangalore Re gional Olfice No.44/45, Resider: cy oad. Bangalore ~25 0 3. te Represented by its. / Z Deputy Manager, - " SO : .. APPELLANT (By Sri.S.V. Heg de Mulley and, 'Adv, ) AND: | im SER. Suresh, 3/0 Ramaiah --. Aged about 3? years . RY 6 No.180, Second Avalammia ' Temple Kudba, Sariapura Hobli | Bangalore ~ 560065. Prasanna Kumar .5/o0 Deenadayal _ Major in-age, R/o No.16/3, © Rast End Main Road.9 Block, Jayanagar .. Bargalore. . RESPONDENTS (By Sri.S.V.Praksh. Adv. for R-] Notice to R-2 is dispensed with) "this day. the Cour t delivered the followine: . a ey IN M_FLA.CROB.No.99 /2010 BETWEEN: Sri. R.Suresh S/o Ramaiah Aged about 37 years R/o No. 180, Second Avalamma Tr smiple Kudlu, Sarjapura Hobli oo ee Bangalore ~ 560065. LR ER oss. (By Sri. S.V.Praksh, Adv.) ANE: 1. The Oriental Insurance.Co. Ltd. ; DO-IT] No.48, Church Street. Bangalore-560 O01. 2. Prasanna Kum ar S/o Deenad: ayal" Major in age. R/o No. 16/3. East E nd Main Road Of Block, Jayanagar mS Bangalore. - we of ; ; . RESPONDENTS (By Sri 5.V.Heade Muthana, Adv. for RI M.F_A.No.3¢ 0982/2010 is filed under Section 173(1) of MV Act agaiust the judgment and award dated 14.09.2009 passed in MVC. No.G074/2007 6n the file of The Chief Judge and Principal MACY, a ourt of Small Causes, Bangalore, Awarding a compensation of Rs.1,99,500/- with interest @ 6% P. A. from the date of "petitions Lill i realization MCELA CROB. No.99/2010 is fled under Order 41 Rule 29 of CPC, against the judgment and award dated 14.09. 2009 mat passed. in MVC No.6074/2007 on the file of The Chief Judge and' Principal MACT. Bangalore partly allowing the claim _ petition for compensation and seexing enhancement of " compensation. These Appeal and Cross Objection coming on for orders PA SEER cormuwrenie had JUDGMENT
There is a delay of 65 days in filing M.F.A.No.3082 £2010.
Cause shown is accepted. Delay condoned.
2. Admit. heard both side.
3. Appeal and Cross-Objection arise Gut of the judgment and award in M.V ..N0,6074/2C07..dated:.14.9.2009. on the file.
of M.A.C.T., Bangalore.
4. Insurer has filed the appeal, questioning the lability whereas, claimant bas sought for entiancemént of compensation by fling cross-abjection.
5. Tribunal. has awarded compensation of Rs.1,99,500 j-
with interest cand fas. directed the insurer fo pay the compensation arid recover the same from the owner.
"te | 6. the principal contention of the learned Counsel for the instirer fs that, ie driver of the offending vehicle had no | effective driving licence as orn the date of the accident. In this fegacd he relied on the evidence of RW-1 - Officer of the Insurances Company, Ex.R2 ~ charge sheet and submitted that, the. driver is charge-sheeted for an offence punishable under "Section 3 sub-section (1) read with Section 181 of the Motor REE Vehicles Act, which relates to driving a vehicle without licence and submitted that, the materials produced by the insurer show that the driver of the offending vehicle had no licence. However.
he admitted that the driver had the licence to drive light moter vehicle and is valid for a period of 20 vears Le., fronr 19.11.2003 © to 18.11.2023. However, his contention is thal, the said Heenee did not bear ihe endorsement t) drive twanieport "vehicle. : He submitted that, the licence lor driving a transport vehicle is valid only for three years subject" to renewed, wher cas, the licence granted for non-transport vehicle' is valid for a period of 20 years, The insurer cannot be held Hable for the negligence on the part of the owner allowing a persen, who had no eflective licence.
7. In support of his case, he relied on the judgment of the _Apex Court' reported, in 2009 ACJ 1411 in the matter of Oriental Insurance Co.Ltd. -vs- Angad Kol and others and submitted iba , 'tie 'licence required for transport vehicle and the licence required for non-transport vehicle are different, as ~ Buch one licence to drive light motor vehicle (non transport) will "not be valid for the transport vehicle and is violation of the Conditions of the insurance pelicy and thereby insurer is not "Hable to indernnily the liability of the owner.
8. On the other hand, learned Counsel appearing for the claimant submitted that, clairnant is a third party. He does not Know as to whether the driver of the offending vehicle had. a-.
valid or effective licence or not, burden to prove as.to whether the driver of the offending vehicle had valid-Neen ceor mot, is' mainly on the owner or the insurer. Owner has net contested the case. Though the insurer has' laken the permission under Section 170 of the Motor. Vehicles Act, however. has not produced relevant material to . niove that "the driver of the offending vehicle had, no effective licence ; "Merely by examining the representative of tixe Insurarice Company and producing the charge shect 'by itself will not prove ihe case of the insurer. Charge sheet is only A prime jescte material before the Court, however, the msurer has produced the relevant evidence to prove het the driver of the offending vehicle had only license to rive tight motor vehicle. sven otherwise, he contended that, in the decision ofthe. Apex Court reported In 2004 ACJ J] in the "matter of National insurance Co.Ltd. -vs- Swaran Singh and . others, it is "held that, the question as to whether the driver of the offending vehicle had a valid licence or not, is a dispute belw cen the insurer and th é ower, in sucn cases, as lar as claimant is concerned, he is entitled for compensation to be paid
- fh.
by the insurer, however. the insurer may recover the same. He also submitted that, the Division Bench of this Court in M.F_A.No.1Li710/2005 and connected matter dated 9.8.20 L ne identical circumstances, consider ing the filing of 'the chang v Sheet has held that, mere filing of charge sheet Lora An "offe < under the Motor Vehicles Act by fiiself w ould: Tot be -gsbund come to the conclusion that the driver had 1 Bete lice ence and has"
held that the insurer is liable to pay the compensation.
9. The only question that arises for consideration in this appeal and cross-9iecnon iss, Whether the insur rer is. lable ¢ iD pay the compensation to the claire first and recover' the same from the OUUNeF TE Ca ase 2 of invalid or i inelfe étive licence?
10. As: far Se "th neared he is a third party. Claimant is requiired: to prove the accident, the infury or death 'octurred in the said accident, actionable negligence against the drives of the often ng vehicle and if the vehicle is covered with the poticy. the recovery of compensation from the insurer. As i far as claimant in this case is concerned, he has proved the ' aceident,involvement of the vehicle and has also proved the . ay ary sustained in the accident. Further he has also proved the actionable nesligence against the driver of the offending ae "BES & oe ~ fesued So's the | insurer 0 the owner: and vehicle, If the insurer wants to escape the liability on ihe ace ground that the driver of the offending vehicle had no 0 licence, it.
is for the insurer to produce such material before the Court and = : a prove 'the same. Primarily it is the burden on 1 the ¢ Swner 'of ofthe on vehicle. The insurer should have examined the: driver Or: the: Pa owner of the vehicle or call upon 'the ow: ner of the vei ale by y :
| issuing necessary notice to produce, 'the sence a and 1 produced : . 7 "the same: Admittedly. in this case, ho such material has beef areas "produced t to show that. the j insurer: had called "upon the owner oe
- of the vehicle to produce « copy "of ofthe Hee, tor the driver of ee the > offending veh! dle: was s examined, Mere production of charge : oe sheet by itself does not "absolve the insurer from proving that .
the driver of the offending vehicle chad no licence. "Division :
Bench of this Court, in, identical circumstances has observed thas:
"10. | In isofar 3 as 5 the contention of Mr. ; Srishaita, learned oe : 7 ve "enunsel appearing for the. tisurer, regarding, liability, as "melas the contention regarding pay and recover are nae "concern ec, we ae of the - view that: the insure, ; toe ee copy i of ne : TSG notice has been produced. But thei is significant ts that the notice of this nature is required to be served. on the oumer-criver of the vehicle. Indeed the insurer has not produced the acknowledgement for having served:
the said notice on the owner calling upon him to produce ~ ihe driving Ucence. In the absence of acknowledgement, we cormot hold that the notice has been served on the ouuner-rider, Hence, we are of the view that the, finding recorded by the learned Member of the Tribunal that the. insurer is liable to indemnify ihe insti red cannot be faulted." :
Ll. The Apex Court in the judgment of Sara Singh's" case (supraj, as regard to the dispute of lic ETACE, at 'para-i10 on consideration of the statutory defence available to the insurer under Section 149 sub-section lu) has held thus: "710. The. summary of our: findings. fo ine various issues as raised in these peiilions. is as follows:
fo...
Poe. , litt} The breach of policy éordition e.g. disqualification of the driver or inwalicd driving licence of the driver. as contained in, sub-section (2)a}lit} of Section 149, has to be proved to have been committed by the insured for avoiding lability by the insurer. Mere absence. fake or . . moclicd. driving licence or disqualification of the driver for
- driving atthe relevant time, are not in themselves defences. available to the insurer against either the insured or the third parties. To avoid its lability fiavords the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fiudfilling the conelifion . of the policy regarding use of vehicles by a duly 'Réensed driver or one who was not disqualified to drive al Ue relevant tne.
fip) Insurance companies, however, with a view to avoid their lability must not ory establish the available
9.
dejence(s) raised in the said proceedings but must also establish "breach" on the part of the ovwner of the vehicle; the burden of proof wherefor would be OF them." MO l2. The Apex Court in Swaran Singh's case (supraf has observed that. mere absence. fake or invalid d rivire licence or disqualification of the driver for driving. at. the relevant lime. ave not in themselves defences available to the insurer against ither- the insured or the third parties. If the defence of absence. invalid licence or ineflective licence js not available te the insurer, the insurer cannot escape the Uebility, however, this position was clarified subsequently that the defence as ré8ard to the licence is also one of the .statitory defences available under Section 149 sub-section (2) of MV.Aet. Th my opinion, though such defence could be avatlable to. the insurer: mere pleading of such defence in the proceedinis is not enough, unless the insurer proves the : same with dmaterial evidence, it cannot absolve itself from the hiabiliiy, 'The padgment in Swaran Singh's case is later on ; followed by the A sex Court in a judgment reported in 2011 ACJ 926 in the matter ol Kusum Lata and others -vs- Sathir and
- others whereis the Apex Court has observed at para-13 as os "dider:
"LG. in respect of the dispute about licence. the Tribunal has held and, in our view rightly, that the insurance
10. company has to pay and then may recover it from the owner of the uehicle. This court is affirming that direction in view of the principles taid down by a three- Judge Bench of this court in the case of National. Insurance Co.Ltd. v. Siwaran Singh, 2004 ACJ | (SCh
13. In view of the findings of the Tribunal hat-the insurer has not proved the case that the driver of the offending. vehicle had no licence merely the absence of the endersemerit ef"
transport on the licence that by itself is not a arolind to. deny the claim of the claimant. May. be, that re a dispute between the owner and the insurer. It is also tin dispute tha t the driver of the offending vehicle, had the licence com drive the light motor vehicle. There: is no 'dispute as regard to the class of vehicle involved in the aceidelity the skit "Of dtiver to drive light motor vehicle cannot be aispated, but endorsement of transport limits the period of Validity of the 'Heence to three years whereas, non- 4 ransport, extends u pi 5 20. years. In view of the failure on the part of the insurer fo prove as regard to the invalid or no licence of the 'river Of the offending vehicle, the Tribunal has rightly held that the insurer to pay the compensation to the claimant varid recover the same from the owner. I do not find there is any error cotimitted by the Tribunal in isSuuing such direction.
= FC re Rr OC
14. As far as enhancement of compensation is concerned, claimant has suffered fracture of both bones of right leg with partial tear of TA. No doubt, the injury is grievous in nat ure, The Doctor. who has been examined as PW-1, has stated what there is 10% disability. The Tribunal has taken 10% disability of 6 SI H Sa ¢ UB me os .
= mm % oa es ~~ feet
-e ras and has calculated the loss of future income. It has said compensation on the head "of 'Toss of amenities: AS. ar as future loss of income is concerned, same "has been rightly determined. however, towards . pain 'atid ~ suffering, loss of amenities, incidental expenditure, : ff : ay opinion. the compensation rewuirss reasori able | en ha noement. Accordingly, claimani is entitled for additional compensation of Rs.30,000/- over and above the. compensation awarded by the Tribunal with imteresi.
In. the: result. -M.F.A.No.3082/2010 is dismissed. Cross fon No.g9/2010 is partly allowed. The compensation is enhanced by Rs,30,000/- with interest, Phe'amount in deposit be transferred to the Tribunal.