A Muniraju vs M/S Sri Krishna Associates on 25 October, 2018

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Karnataka High Court

A Muniraju vs M/S Sri Krishna Associates on 25 October, 2018

Bench: Krishna S.Dixit

                               1

     IN THE HIGH COURT OF KARNATAKA, BENGALURU

       DATED THIS THE 25TH DAY OF OCTOBER, 2018

                           BEFORE

        THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

                 M.F.A. NO.8335/2016 (MV)
Between:

1.     A.Muniraju,
       S/o Late Anjanappa,
       Aged about 57 years.

2.     Rajeshwari,
       W/o Muniraju,
       Aged about 46 years,

Both are r/at No.660,
Kumbara Street,
Hessarghatta,
Bangalore North Taluk,
Bangalore - 560 071.                          ...Appellants

(By Sri. M.Y.Sreenivasan, Advocate)

And:

1.     M/s. Sri. Krishna Associates,
       No.239, Gurudeva Layout,
       Banashankari III Stage,
       Bangalore - 560 085.

2.     The Manager,
       Bharathi Axa General Ins. Co. Ltd.
       1st Floor, the Ferns Icon,
       Survey No.28, Doddanekundi,
       Bangalore - 560 037.                 ....Respondents

(By Sri. B.Pradeep, Advocate for R2; R1 served)
                                 2



     This Miscellaneous First Appeal is filed Under Section
173(1) of MV Act against the judgment and award dated
3.5.2016 passed in MVC No.3277/2014 on the file of the
Member, MACT, 16th Additional Judge, Court of Small
Causes, Bengaluru, partly allowing the claim petition for
compensation and seeking enhancement of compensation.

      This Appeal coming on for Hearing on Interlocutory
Application this day, the Court delivered the following:-

                          JUDGMENT

The Claimants call in question the judgment and award dated 03.05.2016 made by MACT, Bangalore City (SCCH-14), allowing the claim in M.V.C.No.3277/2014 whereby, a compensation of Rs.14,26,000/- with interest at the rate of 9 % per annum, subject to a usual condition of three years bank deposit, has been awarded. However, the claim as against the respondent-Insurer is negatived on the ground that the driving license of the driver of the offending vehicle is not a valid and effective driving license for the offending vehicle in question.

2. The brief fact matrix of the case as to the happening of the accident on 15.07.2013, because of the rash and negligent driving of the offending Eicher Canter bearing Registration No.KA-41-4464 and consequent death of the 3 bread winner of the family Mr.Charan, is established by the pleadings of the parties supported by the evidentiary material placed on record. Accordingly, the MACT has made the impugned judgment and award.

3. Learned counsel for the Claimants finds fault with the impugned judgment and award on two grounds, viz.,

(a) the compensation awarded is on the meager side; and

(b) the MACT ought to have levied the award liability on the shoulders of the respondent-Insurer even when the driving license was not valid and effective for the offending vehicle in question. The learned Panel Counsel for the respondent- Insurer vehemently opposes the said contentions. He seeks dismissal of the appeal on the ground that the MACT has considered all aspects of the matter in due perspective and that its findings are entitled to due deference at the hands of this Court.

4. I have heard the learned counsel for the Claimants and learned counsel for the Insurer. I have perused the Appeal Papers.

5. The first contention of the Claimants that the compensation has been awarded on a lower side is not substantiated by pointing out which important evidentiary material has escaped attention of the MACT and that had it been adverted to, the compensation would have been larger. The learned Panel Counsel also points out that the rate of interest fixed by the MACT is 9 % per annum, whereas ordinarily, the admissible being 6 %, there being no exceptional circumstances in the case. Therefore, his submission that no case is made out for enhancement, has force. Consequently, the claim for enhancement stands rejected.

6. The second contention of the Claimants that even when the driving license is not valid and effective, still the Insurer is liable to discharge the award, has force, vide decision of the Apex Court in the case of Pappu and Others Vs. Vinodkumar Lamba and Another AIR 2018 SC 592. However, there is also force in the submission of the learned Panel counsel for the respondent-Insurer that the liability, if any, should be on the principle of 'Pay and Recover'. 5

In the above circumstances, this Appeal partly succeeds; the impugned judgment and award are modified, fastening the liability on the Respondent No.2-Insurer namely Bharathi Axa General Ins. Co. Ltd, which shall discharge the award before long.

In view of the decision of the Apex Court in the case of National Insurance Company Limited Vs. Challa Upendra Rao and others (2004) 8 SCC 517, it is open to the respondent-Insurer to seek recovery/contribution from the insured by putting this judgment in execution before the MACT.

Costs made easy.

Sd/-

JUDGE CBC/RMV

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