Karnataka High Court
M/S United India Insurance Co Ltd vs Smt Sharada R on 23 October, 2018
Author: Krishna S Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 23RD DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
M.F.A. NO.5397/2011 (MV)
C/W
M.F.A. NO.5398/2011 (MV)
IN M.F.A. NO. 5397/2011:
BETWEEN:
M/S UNITED INDIA INSURANCE CO LTD
DIVISIONAL OFFICE, B H ROAD,
SHIMOGA,
REP BY ITS DIVISIONAL MANAGER. ... APPELLANT
(BY SRI A.M.VENKATESH, ADVOCATE)
AND
1. SMT SHARADA R
W/O LATE RUDRAPPA,
AGED 44 YEARS,
GROUP 'D' EMPLOYEE IN
GOVT. URDU HIGH SCHOOL,
R/O 12TH CROSS, VIDYANAGAR,
SHIMOGA.
2. SHIVAPPA S/O NANJUNDAPPA
AGED 46 YEARS,
DRIVER OF BUS BEARING
NO. KA-18-8303,
R/O AIGINABYLU, HOSUR,
ANANDAPURA, SAGAR TLAUK,
SHIMOGA DISTRICT.
3. CHANDRASHEKAR S/O K NINGAPPA,
OWNER OF BUS BEARING
NO.KA-18 8303,
R/O KADUR,
CHIKKAMAGALUR DISTRICT ...RESPONDENTS
2
(BY SRI S.V.PRAKASH, ADVOCATE FOR R1;
NOTICE TO R2 SERVED BUT UNREPRESENTED
SRI S.P.SHANKAR, SR. ADVOCATE FOR
SRI SHANTKUMAR N, ADVOCATE FOR R3)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 19.01.2011 PASSED IN MVC
NO.79/2008 ON THE FILE OF THE II ADDITIONAL SR. CIVIL JUDGE
& MACT-7, SHIVAMOGGA.
IN M.F.A NO.5398/2011:
BETWEEN:
M/S. UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE, B.H.ROAD,
SHIMOGA, REP. BY ITS
DIVISIONAL MANAGER. ... APPELLANT
(BY SRI A.M.VENKATESH, ADVOCATE)
AND
1. KUM WAHEEDA BANU
D/O ISMAIL SAB,
AGED 19 YEARS,
R/A 1ST CROSS, O.T ROAD,
AZAD NAGAR, SHIMOGA.
2. CHANDRASHEKAR
S/O K NINGAPPA,
OWNER OF BUS BEARING
NO. KA-18-8303,
R/O KADUR, CHIKKAMAGALUR DISTRICT.
3. SHIVANNA @ SHIVAPPA
S/O NANJUNDAPPA,
AGED 46 YEARS,
DRIVER OF BUS BEARING
NO KA-18-8303,
R/O AIGINABYLU, HOSUR,
ANANDAPURA,
SAGAR TALUK, SHIMOGA DISTRICT.
...RESPONDENTS
(BY SRI S.V.PRAKASH, ADVOCATE FOR R1
NOTICE TO R2 & R3 SERVED BUT UNREPRESENTED)
3
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 19.01.2011 PASSED IN MVC
NO.41/2008 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE
AND M.A.C.T., SHIMOGA.
THESE APPEALS COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
JUDGMENT
The appeals in MFA No.5397/2011 and MFA No.5398/2011 by the insurer call in question the judgments and awards dated 19.01.2011 and 02.02.2011 separately entered by the Additional MACT-7 Shimoga, allowing the claim petitions in MVC No.79/2008 and MVC No.41/2008 respectively whereby two sums of compensation i.e., Rs.4,50,000/- and Rs.3,16,982/- respectively with interest at the rate of 6 % per annum, subject to usual condition of bank deposit, have been awarded.
2. The brief fact matrix of the case as to the happening of the accident on 12.12.2007 involving the rash and negligent driving of the offending Vijayalakshmi Bus bearing Registration No.KA-18-8303 and consequent sustaining of injuries by the respondent-claimants herein is established by the pleadings of the parties supported by the evidentiary material placed on record by them. Accordingly, the MACT has entered these judgments and awards fastening the liability on the appellant-insurer. 4
3. The learned Senior Panel counsel for the appellant- insurer submits that (a) the accident in question admittedly happened outside the area comprised in the Permit in question; the owner of the offending vehicle had applied on 12.12.2007 by registered post to the jurisdictional authority for the grant of a temporary Permit for the destination to which the offending Bus was scheduled to travel, for taking the school children for excursion and (c) that the said application was rejected on 14.12.2007 i.e., the day on which the misfortune befell.
4. That being the case, the counsel argues that the MACT could not have fastened the award liability on the insurer at all. Alternatively, he submits that if at all the insurer is to be fastened with the award liability, it has to be on the principle of 'pay and recover' vide 5-Judge-Bench decision of Kerala High Court in the case of Pareed Pillai v. Oriental Insurance Company Ltd., in MACA No.2030/2015 disposed off on 09.10.2018
5. Per contra, the learned Senior advocate Sri.S.P.Shankar appearing for the insured, refuting the above contentions of the insurer submits that (a) the absence of Permit is not a ground for avoiding the award liability (b) it is not a case of absence of Permit in as much as the vehicle in question had the Permit vide order No.STA-6/Renl-60/05-06 dated 24.02.2006 5 (now placed on record by memo) and (c) the FIR and the other evidentiary material show that the accident happened within the Permit Area and therefore, the insurer is liable.
6. I have heard the learned counsel for the insurer and the learned counsel for the owner of the insured offending vehicle. I have perused the appeal papers and some relevant papers from the Lower Court Records.
7. Ordinarily, the defences enumerated under Sub Section 2 of Section 149 of the Act avail to the benefit of the claimants subject to all just exceptions. The defences available to the insurer qua the insured are not confined to and coterminous with those enlisted in the said provision. The absence of a Route Permit or an Area Permit goes to root of the contractual liability and therefore, the liability of the insurer in such circumstances cannot be otherwise than on the "Principle of Pay and Recover".
8. However, the issue whether the accident in question happened within the area comprised in the Route Permit dated 24.02.2006 has not been satisfactorily discussed by the MACT, presumably because the owner of the insured vehicle could not participate in the proceedings before it, having been placed ex 6 parte. The question whether the accident occurred at the place comprised in the Route Permit/Area Permit can be easily ascertained by seeing the official record namely, the permit itself coupled with other evidentiary material on record.
In the above circumstances, no other ground having been urged, these appeals partly succeed; the impugned judgments and awards are retained intact on the "Principle of Pay and Recover".
The appellant-insurer after paying the compensation, may put this judgment in execution, in terms of the decision of the Apex Court in the case of National Insurance Company Limited Vs. Challa Upendrarao and Others (AIR 2004 SC 4882), for recovering the compensation amount from the insured.
However, it is open to the 3rd respondent-insured in the said execution proceedings to oppose such recovery by showing that the accident happened within the area comprised in the Route Permit/Area Permit, as the case may be by leading appropriate evidence.
This judgment does not prejudice the right of the claimant to enjoy the usufruct of the impugned judgment and award of the MACT.
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The amount in deposit shall be transmitted to the jurisdictional MACT for being disbursed as compensation to the claimant, forthwith. The appellant-insurer is liable to discharge the award liability, forthwith.
Sd/-
JUDGE PYR/RMV