Karnataka High Court
Chavali Bai And Anr vs Mallanna And Anr on 19 January, 2022
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MRS. JUSTICE J.M.KHAZI
MFA No.200496/2019 (MV)
Between:
01. Chavali Bai w/o Hanmantha Pawar
Age: 49 Years Occ: Coolie, Now Nil
R/o: Kanne Kolur Mansing Naik Tanda
Tq: Shahapur, Dist: Yadgir - 586 222.
02. Hanmantha s/o Gangaram Pawar
Age: 59 Years Occ: Coolie
R/o: Kanne Kolur Mansing Naik Tanda
Tq: Shahapur Dist: Yadgiri-586 222.
... Appellants
(By Sri. Ganesh Naik, Advocate)
And:
01. Mallanna s/o Honnappa Surpur
Age: 32 Years Occ: Agril,
R/o: Dhoranhalli Tq: Shahapur
Dist: Yadgir-586 222.
(Owner of the offending vehicle)
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02. The Divisional Manager
Oriental General Insurance Co. Ltd.,
Near Vikas Bhavan Station Road,
Kalaburagi-585 103.
(Insurer of the offending vehicle Honda Unicorn)
... Respondents
(By Sri. J. Augustin, Advocate for R2
vide order dated 13.01.2022,
notice to R1 dispensed with)
This Miscellaneous First Appeal is filed under Section 173
(1) of the Motor Vehicles Act, praying to allow the appeal and
set - aside the judgment and award dated 31.05.2018 passed
by the Senior Civil Judge and Addl. MACT, Shahapur at:
Shahapur in MVC.No.254/2015 and consequently be pleased to
discharge the respondent No.1 from its liability to pay the
compensation and also be please to enhance compensation and
fix the liability on the respondent No.2.
This appeal being heard and reserved for judgment on
13.01.2022, coming on for pronouncement of judgment, this
day, the court delivered the following :-
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JUDGMENT
This is claimant's appeal filed under Section 173 (1) of the Motor Vehicles Act, 1988 (hereinafter referred as 'M. V. Act') challenging the impugned judgment and award, on quantum as well as fixing the liability on respondent No.1/owner of the offending vehicle. Appellant has sought for enhancement of the compensation and to fix the liability on respondent No.2/insurance company.
02. For the sake of convenience the parties are referred to by their rank before the Tribunal.
03. The claimants are the parents of the deceased
- Vijayakumar who died in a motor vehicle accident dated 27.11.2014 involving motorcycle bearing Chassis No.ME4CO99CCE8696495 (hereinafter referred to as 'offending vehicle'). It is alleged that on the date of accident the deceased was traveling from Yadgir to Shahapur, as a pillion rider of the offending vehicle and near Bevinahalli, the rider dashed it against the safety 4 stones pitched by the side of the road, as a result of which the deceased sustained injuries and died on spot. The deceased was a Tailor by profession and earning `.10,000/- per month. Being parents, claimants were dependent on him.
04. Respondent No.1 is the owner and respondent No.2 is the insurer and as such they are liable to pay the compensation.
05. Before the Tribunal, respondent No.1 remained ex-parte.
06. The respondent No.2 filed objections, disputing the death of the deceased in the accident involving the offending vehicle, his age, occupation, income and also the fact that claimants were dependent on him. At the time of accident the rider of the offending vehicle was not having a valid and effective driving license and as such respondent No.2 is not liable to pay the compensation. 5
07. Based on these pleadings, the Tribunal has framed necessary issues.
08. In support of the petitioners, petitioner No.1 is examined as PW.1 (however in the index of the judgment the name of PW.1 is wrongly stated as 'Nagamma w/o Siddappa Hosamani' which appears to be a typographical mistake), Exs.P.1 to 5 are marked.
09. On the other hand, on behalf of respondent No.2, RW.1 is examined and Ex.R.1 to 4 are marked.
10. By impugned judgment and award, the Tribunal has partly allowed the petition, granting compensation in a sum of `.9,58,000/- with interest at the rate of 6% p.a. against respondent No.1 i.e., owner of the offending vehicle.
11. It has dismissed the petition, as against respondent No.2 - insurance company.
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12. During the course of appeal memo, though the claimants have pleaded that compensation granted is not just and reasonable and have sought for enhancement and to fix the liability on the respondent No.2 - insurance company, during the course of arguments, the learned counsel representing the claimants submitted that the claimants are satisfied with the quantum of compensation and in view of the decision of the Hon'ble Supreme Court reported in (2004) 3 SCC 297 in the matter of National Insurance Company Limited vs. Swaransingh and others, they are only pressing for a direction to respondent No.2 - insurance company to pay the compensation and recovery from respondent No.1 - owner of the offending vehicle.
13. Admittedly in the written statement, respondent No.2 - insurance company though conceded the fact that at the relevant point of time, the offending vehicle was covered by a valid policy, it has taken up a specific defence that at the time of accident, the rider of 7 the offending vehicle was not having a valid driving license and as such it is not liable to indemnify respondent No.1 - owner. In fact at Para No.13 of the judgment the Tribunal has observed that in the charge-sheet filed against respondent No.1 it is also alleged that at the time of accident the rider of the offending vehicle was not holding a driving license and this fact is not challenged by him. On this ground the Tribunal refused to fasten the liability on the respondent No.2 - insurance company and consequently directed respondent No.1 to pay the compensation.
14. In Swaransigh's case referred to supra the full bench of the Hon'ble Supreme Court held that even where the insurer is a able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid license by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving 8 license is/are so fundamental as are found to have contributed to the cause of accident. In such an event, the insurer is to be directed to indemnify the insured and recover the same from the insured.
15. Applying the dictum of the Swaransigh's case, in (1) Pappu and others vs. Vinodkumar Lamba and another, reported in (2018) SCC 208, (2) Shamanna and others vs. Divisional Manager, Oriental Insurance Company Limited and others, reported in (2018) 9 SCC 650 and (3) Parmindersingh vs. New India Assurance Company Limited, reported in (2019) 7 SCC 217, the Hon'ble Apex Court directed the insurance company to pay the compensation to the claimants and recover the same from the owner.
16. These decisions are applicable to the case on hand. By remaining ex-parte, respondent No.1 the owner of the offending vehicle has failed to prove that at the time of accident, the rider was holding a valid license. On the other hand, based on the material placed on record 9 respondent No.2 insurance company has proved that at the time of accident, the rider of the offending vehicle was not holding any driving license. Therefore, in view of the above referred decisions, respondent No.2 - insurance company is liable to satisfy the award and it is entitled to recover the same from respondent No.1. To this extent the impugned award is liable to be modified. Accordingly, I proceed to pass the following;
ORDER
I. The appeal is partly allowed.
II. The respondent No.2 - insurance company is directed to pay the award amount along with interest to the claimants and recover the same from respondent No.1 - owner of the offending vehicle.
Sd/-
JUDGE KJJ