Karnataka High Court
The Oriental Insurance Co. Ltd vs Master Anil on 12 December, 2018
Author: H.P.Sandesh
Bench: H. P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE H. P. SANDESH
MFA NO. 9575 OF 2011 (MV)
Between:
The Oriental Insurance Co Ltd.,
No.221, IML, Building, NR Square,
Opp.Hulusuru Gate Police
Station and City Corporation,
Cubbonpet Main Road,
Bangalore-560 002.
Through its
Bangalore Regional Office
No.44/45, Residency Road
Bangalore-25.
Represented by its
Deputy Manager
...Appellant
(By Sri.S.V.Hegde Mulkhand, Advocate)
And:
1. Master Anil
S/o Chennaram @ Chenaraj
Aged about 17 years
C/o Rajendra
No.12 First D Main road
Shivnagar, Rajajinagar,
Bangalore-560 010 since minor
Represented by his father
and natural guardian
2
Chennaram @ Chenaraj
S/o Pukharaj
Aged about 38 years
2. K.N.Panduranga Shetty
Major in age
R/o No.970, BSK First Stage,
7th Cross, 2nd Block
Bangalore-560 050.
...Respondents
(By Sri.Shripad .V.Shastri, Advocate for R1
Rachana Law Associates for R2-Absent)
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated 14.06.2011 passed in
MVC.No.3253/2009 on the file of IX Additonal Senior Civil
Judge, Court of Small Causes, Member, MACT-7, Bangalore,
awarding a compensation of Rs.71,000/- with interest @ 6%
P.A. from the date of petition till realization.
This MFA coming on for hearing this day, the Court
delivered the following:-
JUDGMENT
This miscellaneous first appeal is filed by the Insurance Company challenging the judgment and award passed in MVC.No.3253/2009 dated 14.06.2011 on the file of IX Additional Senior Civil Judge, Court of Small Causes, Member, MACT-7, Bangalore wherein the liability was fastened on the Insurance Company.
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2. The claimant has filed the claim petition before the Tribunal under Section 166 of MV Act, 1989 claiming a compensation of Rs.6,00,000/- and it is the contention of the claimant before the Tribunal that on 15.01.2009 at about 9.00 am petitioner was walking on the left side of 7th Main Road, BTM 2nd Stage, near Balaji Electricals and at that time, car bearing registration No.KA-05-MF-3693 being driven by its driver in a rash and negligent manner, came from the back side and dashed against the petitioner, as a result, the petitioner sustained grievous injuries all over the body.
3. The respondent-Insurance Company resisted the claim petition by filing objection statement admitting that they have issued policy in respect of offending vehicle and contended that the person who was driving did not possess valid and effective driving licence to drive the said vehicle and violated the terms and conditions of the policy and driver has manipulated the driving license of one Kumar and produced fake driving license copy before the jurisdictional 4 police. Hence, respondent-Company is not liable to indemnify the insured as per the terms and conditions of the policy.
4. The claimants in order to substantiate their claim, have examined father of the minor injured as PW1 and got marked documents at Exs.P1 to P14. On the other hand respondent also examined two witnesses i.e., Assistant Manager of the Insurance Company as RW1 and RW2 is the Official of RTO Office. The Tribunal, after considering the both oral as well as documentary evidence, granted compensation of Rs.71,000/- and fastened the liability on the Insurance Company.
5. In the present MFA, it is contended that the very judgment and award passed is illegal and contrary to the evidence on record and the same is not sustainable in law. Further, contention taken in the appeal is that the driver was one Nitin at the time of driving the car as on the date of accident and though the owner appeared and filed notarized 5 copy of driving licence, which stands in the name of Nitin, the Insurance Company summoned the RTO and on summoning of the RTO, the driving licence in respect of very same number which was in the name of Kumar, was in the name of Nitin. The owner though filed the notarized copy of the driving licence before the Tribunal, did not choose the enter the witness box and substantiate his claim that the said Nitin was having driving license. In spite of that, the documents at Ex.R3 and R4 clearly discloses that the licence was issued in the name of Kumar and not in the name of Nitin.
6. Tribunal has committed an error in coming to the conclusion that except the name of licence holder, all other particulars are tallying in the driving licence and that very conclusion is erroneous and Tribunal has committed error in fastening the liability on the Insurance Company.
7. Learned counsel for the appellant in his arguments reiterated the grounds urged in appeal memo and 6 further contended that there is no dispute with regard to the fact that one Nitin was driving vehicle as on the date of accident and further, the Insurance Company has discharged its burden to prove the fact that he was not having a valid and effective driving licence by examining the RW1 and RW2, i.e., the Assistant Manager of the Company and Official of the RTO and by examining the documents placed at Ex.R3 and R4 before the Tribunal, in spite of which the Tribunal failed to take note of the fact that the person who pleads that the license was in the name of Nitin has not appeared and proved the same. On the contrary the Insurance Company made all efforts to prove the fact that licence was in the name of Kumar and not in the name of Nitin. Hence, the very approach of the Tribunal is erroneous and it ought not to have fastened the liability on the Insurance Company.
8. The counsel appearing for the respondent No.1 vehemently contended that the Tribunal in paragraph-15 of 7 the judgment has discussed in detail and made observation that except the name, all other details tally and only after coming to the conclusion the Tribunal has fastened the liability on the Insurance Company and hence, the judgment and award passed by the Tribunal cannot be interfered with.
9. The insured, though represented through counsel did not choose to appear before this Court and on perusal of the material also, though the insured has filed the notarized coy of the driving licence which stands in the name of Nitin, did not choose to enter the witness box and prove the said document.
10. Now after hearing the appellant's counsel and claimant's counsel and on perusal of the judgment and award, the question that arises before this Court is whether Tribunal has committed any error in fastening the liability of the Insurance company?. The contention of the Insurance Company that Nitin, who was driving at the time of accident, was not having valid licence and on the other hand, though 8 the owner appeared before the Tribunal, he did not choose to examine himself before the Tribunal, even though the notarized copy of the driving licence which stands in the name of Nitin is produced. However, Tribunal in paragraph- 15 of the judgment, regarding the driving licence is concerned, has made an observation that on careful comparison of Exs.R1, R3 and R4 which reveals that except the name of the holder, all other details namely, date of birth, date of issuance of licence, Badge number are tallying, in the cross examination of RW1 being the Officer of the respondent Company, he has admitted that except the name of driving license holder, Nitin and Kumar, there are no changes pertaining to driving licence number, validity of the driving licence etc. Under these circumstances, even it is not possible to rule out that name of Kumar is entered as Nitin in Ex.R1. Respondent-Company has not produced the documents to show the competent authority has initiated criminal proceedings for the manipulation of Ex.R1. Hence, 9 formed an opinion that respondent-Company has failed to establish its defense.
11. On perusal of the evidence of RW1 and RW2, RW1 in his chief-examination in the form of affidavit, has reiterated the grounds urged in the written statement and contended that one Kumar is having the driving license, the details under Ex.R1. In the cross-examination he volunteers that the contents of Ex.R1 shows that Nitin was having valid and effective driving licence to drive the car involved in the present case. He volunteers that father name of Ninin in Ex.R1 is mentioned as Madaiah Gowda. Witness further volunteers that as per Ex.R3, driver name is mentioned as Kumar, S/o Madaiah Gowda and further he says as per the charge sheet, driver name is mentioned as Nitin, S/o Madayappa. It is admitted fact that respondent-Company has not initiated any proceedings pertaining to fake licence and further admitted that in the charge-sheet, there are no allegations that driver of the offending vehicle has violated Section 3(1), which is punishable under Section 181 of M.V. 10 Act. Further it is admitted in Ex.R3, it is mentioned challan date as 03.09.2009. Further admits that Exs.R1 and R3 except the name of driving licence holder Nitin and Kumar, there are no changes pertaining to driving license number, validity of the driving licence etc., The RTO Official who has been examined as RW2, in his evidence, has produced document Ex.R4 and R5 and says he cannot say pertaining to contents of Ex.R1 unless verification of original and further volunteers that in the year 2004, RTO has not issued smart cards. In the cross-examination also he admits that he cannot say whether the contents of Ex.R1 is re-numbered and corrected without seeing original of Ex.R1.
12. Now let me consider the documents Ex.R1 notarized copy and name of the licence holder is mentioned as Nitin. The address mentioned is No.79, V.SNN. Halagar, Malavalli Taluk, Mandya District and on perusal of Ex.R1, the very same address is mentioned in the driving licence extract of Kumar. All other details are one and the same except the name.
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13. The counsel appearing for the appellant submits that except the change of the name in respect of driving licence of Kumar, the insured may have created the documents and if they are having original documents, insured would have entered the witness box to prove the very driving licence. On perusal of Ex.R3, driving licence extract, it is seen name of Kumar and the address is one and the same. On perusal of the charge sheet, the driver of the car, address mentioned as he is the resident of Bangalore and there is a discrepancy in respect of address and it appears the document though filed before the Tribunal that the driver was having driving licence, the insured did not enter witness box, if he is having the original driving licence, he would have placed before the Tribunal and RW2-RTO Official, who has examined before the Tribunal also categorically says unless he sees the original of Ex.R1, he cannot say anything. Details which have been summoned from RTO Office under Ex.R3 and R4, clearly discloses, same stands in the name of Kumar. The very observation of 12 Tribunal that even it is not possible to rule out that the name of Kumar is entered as Nitin in Ex.R1 and very same approach of the Tribunal is not correct and Ex.R1 is not proved by examining the person who relied upon the same and on the contrary, it has formed an opinion that respondent-Company has not produced documents to show that competent authority has initiated the criminal proceedings against the driver for manipulation of Ex.R1 and it is not the duty of the respondent-Company to initiate criminal proceedings against the driver. If it is proved that document is manipulated, the concerned authority is RTO and not the respondent-Company. No doubt in the cross- examination of RW1 it is stated that they have not taken any criminal action against them and the very approach of the Tribunal is erroneous. When the document has been relied before the Tribunal and when the same has not been proved, the Tribunal ought not have come to the conclusion that other details of the driving licence are one and the same and only name of the driver may have been changed as Nitin 13 instead of Kumar. Hence, the very finding of the Tribunal is erroneous and proceeded in an erroneous way in coming to the said conclusion.
14. However, now with regard to liability is concerned, there was no driving licence as on the date of the accident. The Hon'ble Apex Court considered the wisdom of the legislative intention to protect the interest of third parties and held that in the first instance the Insurance Company shall pay the compensation and recover the same from the insured and hence, the ratio of the judgment in Pappu and others vs. Vinod Kumar Lamba and another reported in AIR 2018 SC 592 is aptly applicable to the case on hand with regard to liability is concerned and hence I am of the opinion that the Insurance Company shall pay the compensation at the first instance and recover the same from insured.
15. In view of the observations made I pass the following order.
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i) Appeal is allowed partly insofar as to pay and recovery.
ii) Insurance Company is directed to pay compensation with interest within six weeks at the first instance and recover the same from owner.
iii) Amount in deposit is ordered to be transmitted to the Tribunal forthwith for payment.
Sd/-
JUDGE SB