Karnataka High Court
New India Assurance Co Ltd vs D V Shankar on 9 November, 2010
Author: L.Narayana Swamy
Bench: L.Narayana Swamy
% IN THE HIGH COURT OF KARNATAKA, BANGALORE DATED THIS ON THE 97" DAY OF NOVEMBER 2010 BEFORE THE HONBLE MR. JUSTICE LNARAYANA SWAMY' Qu M.F.A. N0. 7217 OF 2007 (MV) BETWEEN: NEW INDIA ASSURANCE CO. L'1T'D.. No.34, MANAND1 COURT, 27TH CROSS, HI BDOCK, JAYANAGAR, ' ._ BANGALORE-11 BY DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO. _ VINAY COMPLEX, VANIVILAS ROAE, : BASAVANGUD1, BANGALORE¢.56G--0o4'- BY ITS MANA.GER_,_ _ :APPELLANT (BY SRI.O.MAHESH, O _ ' M9: 1. 4..D..v.SHA%-NEAR, 111111 H AGED '24 YEARS, SON OF, 13_.V1sHwANATH, No.20, 11'C..R"OSs,-- CHINNAJVIMA LAYOUT, GUDOADAHALLI ROAD, HEBBAL, R.T.NA.r.;.AR POST; BANGALORE-560 032. ; ' AATEEQA MAJOR. SON OF MOHAMMED ABID SHARIEF, N103./5,"1ST FLOOR V' --MOSQUE ROD CROSS, (RY SR1.LAwYER'S NET FOR R-1} ~GALORE-560 O05. " : RESPONDENTS
K MFA FILED U /S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 07.03.2007 PASSED IN MVC NO.32S7/2005 ON THE FILE OF' XIII ADDL. JUDGE & MEMBER, MACT, COURT OF SMMEL CAUSES, METROPOLnmnI AREA, BANGALORE. AWARDING A COMPENSATION OF' RS.84,300/~ WITII; INTEREST AT THE RATE OF 0% PJ& FRONI'nrE DATE_OE PEHTKDVHLLDEPOSHX .E'."¥~* TIIIS APPEAL COMING ON FOR HEARING DA'Ii'i'THE.'i _ COURT DELIVERED THE FOLLOWING; _ '.
JUDGMENT *I;
This appeal is flied by the Insiirance the judgment and award V C No.3287/2006 on the iiie ofthe .1\ki_A{,C T';~vfBaIir--ga1ore awarding a compensation' of: 6% interest.
2. The the following grounds in Snpport 21P13eai~.--:.V: ggggg H of the vehicle did not have vaiid and id."-A'eifeetiyeidriving licence. He was charge sheeted of the M V Act, which is a proof of his not it it possessing the valid driving licence. ' it The driver which expression also inciudes owner H of the vehicle, did not furnish certain information I to the insurer like insurance policy, date and time I Y of the accident etc., as required under Section 134© of the Act.
(iii) The claim petition did not accompany F charge sheet etc., in order to prove the~'..'accide'hnt "
required under Rule 232 oi"'lridiari Rules.
3. On the other hand, .tl*ie..__learr:ed respondent submitted that it is the vehicle was insured and there is 'policy-_ eziistiiig. on the date of accident. on the part of the insurance the award. He referred to Section 149(4)?' toisubrnit that it is the mandatory duty of ir__1lsi1rerlto*'sat_isvfy the award in respect of the third party risk. _ contended that in order to prove that l *»__,the riderlwas having a driving licence, the insurance has e:>;arnineV the driver which the insurance company has itollédischarge. The learned counsel has relied upon l INSURANCE co._v. ZAHARKELNISHA <3: ORS. (3108 AIR scw 3251) and also RUKMANI & OTHERS v. NEW ( 4 INDIA ASSURANCE CO. LTD. 8: OTHERS (1999 ACJ 171). Hence he prays for dismissal of the appeal.
4. From the submissions and materials placedston record, there was a policy issued by the appellant the date of the accident. The contention of T that the driver was not having Valid lic_vences.lfivS'ecti,o11 M V Act contemplates necessity of h__olding_ drivingV'ii.Vce4nce_T§and A. Section 5 prescribes that it is the r:e'spo--nsibilityl_:of owners of the motor vehicles for contrax;en'tiAon2.j_of 3 8: 4 that no owner or a person inv.Charge'}"of::'the permit any person without to drive the vehicle. It is submitted thatllllthe rider thefvehicle was charge sheeted for
8.v],1"'.Qvff€TlVCE"l«:. pi_i'nishable«,_i,1ncier M V Act and also IPC. This con'pl'edVvit1"i.,_earj'dei*1ce of RW--l and EX.P3 charge sheet and 'lbs'-..__fuvrther' to the owner as per EX.R4 and EXR5 iypyroveps the serfsrice of notice which prove that the rider of the not having valid and effective driving licence. . 'TE-i-ther__lithe claimant or the owner have not rebutted the said stand taken by the insurance company. When it is held that A 'the rider was not having vajlhd driving licence, the next 4 question would be whether the insurance is liable to pay the compensation u/s 149 of the M V Act. It is the duty of the insurer to satisfy the judgment and award agaisnt insured in respect of third party risk. The Victimiis the party. Section 147 of the Act manolatesmrequ.irem;ent' and limits of liability. The policyyissued.pii'i._respec_:t:'of or classes of person specified policy"'tclV-I the extent specified in sub--section (2) and yofitpersonvsllas referred in the proviso to subsection Sub--section (2) further limits o-fijthe accident and policy of insurance':lrelferred.Vltoffini'subfsection (1) shall cover any liability incurrediri any accident up to certain limits. W]_1en_Section'l.éi'7 of the Act specifies policy issued by the respect of persons or class of perso'nVs;i'__ terms and conditions of the policy, insurance Company has to satisfy it. But in a case Where 4 _:ou.?riernof_.the"vehicle commits breach of conditions of Section the Act, liability is fixed on the insurance company ' .___un:der''Section 149 of the Act. Sub-section (4) of Section 149 ldconteniplates that "where certificate of insurance has been i' issued under sub--section {3} of Section 147 it purports to restrict the insurance of the persons insured by reference to any conditions other than those in clause (b) of subfsection [2] for such liabilities as are covered by policy und.er "
of sub~section [1] of Section 147, be of it section [3] no insured to whom notice 'i'efe-.r'_red in .sub--secti~on~._ {2} or sub--section {3} shall be entit1t:e'd.ypto a.void--hi_"s liabi'lity to i any person entitled to the :'benefit"'oi judgment or award as is referred to in judgment. These sub--sections§.-5) hrayeibeenldiscussed in the judgment v. ZAHARULNISHA 8: OT HERS, in which Para--l6 reads as follows: 'V H A V' d.
V. fifiomedclases, violation of criminal law, yioijation of the provisons of the M V Actfrnayé in absolving the insurers but, the _ g sarne not necessarily hold good in the case of third "party. In any event, the exception applies _«'only.to acts done intentionally or "so recklessly as to? denote that the assured did not care what the '4 consequences of his act might be". The provisions of sub--sections (4), [5] and {7) of Section 149 of the i' MV Act may be considered as to the liability of the i insurer to satisfy the decree at the first instance. The liability of the insurer is a statutory one favour of a third party. The liability of the to satisfy the decree passed in favour of A party is also statutory".
5. In another judgment in A' Supreme Court held that "in this 'islnot sufficient to discharge the» burdperi' wast-ast: on the insurance company, who did riot' driver of the vehicle or any docun'ien't is Iprod.uceda'by. securing record from the
6. In the insurance company has not discharged upon. it u/s 96(2](b}(ii] of it is held by the Supreme Court that the licence issued by the 'competent ai.i'thor'ity does not arise because it was the case of l insiiyrancle' that the rider was not at all having any licence. is not help?1 to the appellant.
7. Therefore, the insurance company has to satisfy the award and right is reserved to recover the same f1i(3'rn:3t'h.¢ OWIIEF.
With these observations, the appeal is The amount in deposit to be Vtrans'113itte.('1 .. a.kd*