Karnataka High Court
The New India Assurance vs Sri Kadurappa on 31 July, 2024
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NC: 2024:KHC:30272
MFA No. 2460 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO. 2460 OF 2014 (MV-I)
BETWEEN:
THE NEW INDIA ASSURANCE
COMPANY LTD.
TUMKUR SHOPPING COMPLEX,
1ST FLOOR, B.H. ROAD,
TUMKUR
BY ITS:REGIONAL OFFICE,
"MAHALAKSHMI CHAMBERS"
2ND FLOOR, 9/2, M.G. ROAD,
BANGALORE-560 001
...APPELLANT
(BY SRI. P B RAJU., ADVOCATE)
AND:
Digitally
signed by
BHARATHI S 1. SRI KADURAPPA
Location: S/O NARASAPPA
HIGH COURT (DEAD BY LRS)
OF
KARNATAKA
1(A) LAKSHMAMMA
AGED ABOUT 68 YEARS,
1(B) GANGAMMA
AGED ABOUT 49 YEARS
1(C) YASHODAMMA
AGED ABOUT 41 YEARS
1(D) RAJANNA
AGED ABOUT 39 YEARS
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MFA No. 2460 of 2014
1(E) PUTTAMMA
AGED ABOUT 37 YEARS
1(F) JAYAMMA
AGED ABOUT 35 YEARS
1(G) CHOWDAIAH
AGED ABOULT 33 YEARS,
PETITIONER NO.1 IS THE WIFE,
AND PETITIONER NOs.2 TO 7 ARE
THE CHILDREN OF LATE KADURAPPA
AND ALL ARE RESIDENTS OF
HULIKAL VILLAGE,
KUDUR HOBLI,
MAGADI TALUK
2. SRI VENKATESHAIAH
S/O LATE GOVINDAIAH
VIRAPURA,
SUGGANAHALLI POST
MAGADI TALUK
...RESPONDENTS
(BY SRI. HARISH N R, ADVOCATE FOR
SRI. PATEL D KAREGOWDA., ADVOCATE FOR R1 ( A TO G)
R2 SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 10.12.2013 PASSED IN MVC
NO.337/2010 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE, MACT-1, TUMKUR, AWARDING A COMPENSATION OF
RS.45,000/- WITH INTEREST @ 6% P.A FROM THE DATE OF
PETITION TILL REALIZATION AND ETC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE C.M. POONACHA
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MFA No. 2460 of 2014
ORAL JUDGMENT
1. The above appeal is filed by the insurer under Section 173(1) of Motor Vehicles Act, 19881 challenging the judgment and award dated 10.12.2013 passed in MVC No.337/2010 by the Additional Senior Civil Judge, MACT - XI, Tumkur2, whereunder the Tribunal has partly allowed the claim petition and directed respondent Nos.1 and 2 i.e., owner and insurer to jointly and severally pay the compensation of `45,000/- together with interest @ 6% per annum.
2. Heard submissions Sri P.B. Raju, learned counsel appearing for the appellant and Sri Harish N.R., learned counsel appearing for Sri Patel B. Karegoudar for respondent No.1(A to G).
3. The sole contention putforth by the learned counsel for the appellant is that despite there being a permit violation, the Tribunal has erred in fastening the liability on the insurer to pay the compensation awarded.
1 Hereinafter referred to as the 'Act' 2 Hereinafter referred to as the 'Tribunal' -4- NC: 2024:KHC:30272 MFA No. 2460 of 2014
4. It is forthcoming that the insured vehicle i.e., Auto rickshaw bearing registration No. KA/42- 4773 was issued with a permit (Ex.R2) which discloses that the vehicle was permitted to ply in Magadi Town and was valid up to 30.07.2014. It is forthcoming that the insured vehicle was plying in Tumakuru Town within the jurisdiction of Hebbur police Station at the time of the accident.
5. Hence, it is clear that although the insured vehicle had a permit the same was being plied beyond the limits of the said permit and thus there was a violation of the said permit condition.
6. It is relevant to note that the Hon'ble Supreme Court in the case of AMRIT PAUL SINGH AND ANOTHER VS. TATA AIG GENERAL INSURANCE COMPANY LIMITED AND OTHERS3 held as follows:
" 24. ........ Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66.3
(2018) 7 SCC 558 -5- NC: 2024:KHC:30272 MFA No. 2460 of 2014 The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh [National Insurance Co.
Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] and Lakhmi Chand [Lakhmi Chand v. Reliance General Insurance, (2016) 3 SCC 100 : (2016) 2 SCC (Civ) 45] in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] and other cases pertaining to pay and recover principle."
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7. In view of the settled proposition of law as held by the Hon'ble Supreme Court as noticed above, the judgment and award passed by the Tribunal is required to be modified to hold that the insurer is liable to pay the compensation awarded with liberty to recover the same from the owner of the vehicle. Hence, the following ORDER i. The above appeal is partly allowed; ii. The judgment and award dated 10.12.2013 passed in MVC No. 337/2010 by the Additional Senior Civil Judge and MACT - XI at Tumkur is modified to the extent of holding that the appellant/respondent No.2- insurer shall be liable to pay the compensation awarded with liberty to recover the same from the owner of the vehicle - respondent No.1;
iii. The judgment and award passed by the Tribunal in all other respects remains unaltered; iv. The amount deposited by the appellant in the present appeal including the statutory deposit shall -7- NC: 2024:KHC:30272 MFA No. 2460 of 2014 be transmitted to the Tribunal for disbursement in terms of the award of the Tribunal.
SD/-
(C.M. POONACHA) JUDGE BS List No.: 1 Sl No.: 24