Bharti Axa General Ins. Co.Ltd vs Smt. Siddagangamma
2021 Latest Caselaw 5298 Kant

                             1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 2ND DAY OF DECEMBER 2021

                          BEFORE

     THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD

                MFA No.6856 OF 2014(MV)

BETWEEN:

Bharathi AXA General Ins. Co. Ltd.,
#30, 3rd Floor, Pride Quadra,
Bellary Road, Hebbal,
Bangalore-24,
Now represented by
Legal Officer,
Bharati AXA General Ins. Co. Ltd.,
1st Floor, Ferns Icons,
Survey #28,
Doddanekundi, K.R.Puram Hobli,
Bangalore-560 037.                      ... Appellant

(By Sri. A.N.Krishnaswamy., Advocate)

AND:

1.     Smt. Siddagangamma,
       W/o Thimmahanumayya,
       Now aged about 57 years.

2.     Muniraju T.,
       S/o Thimmahanumayya,
       Now aged about 31 years,

       Both are R/o Gopenahalli,
       Yelachagere Post,
       Koratagere Taluk,
                             2



     Tumkur District-572211.

3.   Ranjana Kumar H.J.,
     Age:Major,
     C/O H.H. Gowda Building,
     #5, Anche playa, II Cross,
     Bangalore-560 073.                ... Respondents

(By Sri. K.T.Gurudevaprasad, Advocate for R1 & R2:
Notice to R3 is Held sufficient
V/O dated: 14.02.2018)


      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:02.08.2014 passed
in MVC No.3582/2013 on the file of the 12th Additional
Small Causes Judge, Member, MACT, Bangalore, awarding
a compensation of Rs.4,64,000/- with interest @ 6% P.A.
from the date of the claim petition till its realization.

      This MFA, coming on for hearing, this day, this
Court, delivered the following:

                     JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the Insurance Company

being aggrieved by the judgment dated 02.08.2014

passed by the Motor Accident Claims Tribunal,

Bangalore (SCCH-8) in MVC No.3582/2013.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 05.05.2013 at about 10.30

a.m. the deceased Thimmahanumayya was standing

on the left side of Kunigal - Nelamangala NH-48 road,

Yentaganahalli bus stand. At that time a motorcycle

bearing registration No.KA-02/HU-0158 which was

being ridden in a rash and negligent manner, dashed

against the deceased. As a result of the aforesaid

accident, the deceased sustained grievous injuries and

succumbed to the injuries at the hospital.

3. The claimants filed a petition under Section

166 of the Act seeking compensation for the death of

the deceased along with interest.

4. On service of summons, the respondent

Nos.1 and 2 appeared through counsel and

respondent No.1 filed written statement in which the

averments made in the petition were denied. The

age, occupation and income of the deceased are

denied. It was pleaded that the petition itself is false

and frivolous in the eye of law. It was further pleaded

that the accident was due to the negligence of the

deceased himself. The driver of the offending vehicle

did not possess valid driving licence as on the date of

the accident. The liability is subject to terms and

conditions of the policy. It was further pleaded that

the quantum of compensation claimed by the

claimants is exorbitant. Hence, he sought for

dismissal of the petition.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimants, in order to

prove their case, examined claimant No.1 as PW-1

and another witness as PW-2 and got exhibited

documents namely Ex.P1 to Ex.P10. On behalf of

respondents, one witness was examined as RW-1 got

exhibited documents namely Ex.R1 to Ex.R3. The

Claims Tribunal, by the impugned judgment, inter alia,

held that the accident took place on account of rash

and negligent driving of the offending vehicle by its

driver, as a result of which, the deceased sustained

injuries and succumbed to the injuries. The Tribunal

further held that the claimants are entitled to a

compensation of Rs.4,64,000/- along with interest at

the rate of 6% p.a. and directed the Insurance

Company to deposit the compensation amount along

with interest. Being aggrieved, this appeal has been

filed.

6. The learned counsel for the Insurance

Company has raised the following contentions:

Firstly, as on the date of the accident the driver

of the offending vehicle was not holding a valid and

effective driving licence. The police have filed charge

sheet against the driver of the offending vehicle under

Sections 279, 337, 304-A of IPC r/w. Section 181 of

the Act. Even before the Tribunal the owner was

represented by the counsel but he has not filed any

objection and he has not produced the driving licence

to show that the driver of the offending vehicle was

having a valid and effective driving licence. Inspite of

that the Tribunal has given a finding that the

Insurance Company has failed to discharge its burden.

This finding of the Tribunal is contrary to the materials

available on record.

Secondly, even in the appeal filed by the

Insurance Company before this Court, it has taken a

specific contention that the driver of the offending

vehicle was not having valid and effective driving

licence. Notice sent by this Court has been served to

the respondent owner and he has remained

unrepresented. Therefore, it is very clear that the

driver of the offending vehicle was not having a valid

and effective driving licence and insurer has

discharged its burden. Hence, he prays for allowing

the appeal.

7. On the other hand, the learned counsel for

the claimants has raised the following contentions:

Firstly, even though there is a charge sheet filed

against the driver of the offending vehicle under

Section 181 of the Act since the insurer has failed to

discharge its burden, the Tribunal has rightly fastened

the liability on the Insurance Company.

Secondly, even if this Court holds that the

Insurance Company is not liable, in respect of

claimants are concerned, since the offending vehicle

was covered with valid insurance policy, Insurance

Company has to pay the compensation amount with

liberty to recover the same from the owner of the

offending vehicle. In support of his contention he

relied on the judgment of the Hon'ble Apex Court in

the cases of NATIONAL INSURANCE CO. LTD. Vs.

SWARAN SINGH reported in (2004) 3 SCC 297 and

PAPPU AND ORS. vs. VINOD KUMAR LAMBA AND

ANR. reported in AIR 2018 SC 592. Hence, he

prays for dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award and original

records.

9. It is not in dispute that Thimmahanumaiah

died in the road traffic accident occurred due to rash

and negligent driving of the offending vehicle by its

driver.

On the basis of the complaint lodged against the

driver of the offending vehicle the police have filed

charge sheet for the offences punishable under

Sections 279, 337 and 304-A IPC r/w. Section 181 of

the Act. Pursuant to the summons issued by the

Tribunal, the owner of the offending vehicle was

represented through the counsel, but he has not filed

any objection and he has not produced any document

to show that the driver of the offending vehicle was

having a valid and effective driving licence. Even in

the appeal filed before this Court by the Insurance

Company it has taken specific ground that the driver

of the offending vehicle was not having a valid and

effective driving licence and charge sheet filed under

Section 181 of the Act and even before the Tribunal

he has not produced the document to show that the

driver of the offending vehicle was having valid and

effective driving licence. Inspite of service of notice

by this Court he has not represented and he has not

filed any objection or not produced any document to

show that the driver of the offending vehicle was

having valid and effective driving licence. Hence, an

adverse inference has to be drawn that the driver of

the offending vehicle was not having a valid and

effective driving licence. Since the insured has

violated the policy condition, the Insurance Company

is not liable to pay the compensation. However, the

offending vehicle was covered with a valid insurance

policy in respect of third party is concerned.

Therefore, the Insurance Company has to pay the

compensation amount with liberty to recover the same

from the owner of the offending vehicle.

Accordingly, the appeal is allowed in part. The

judgment and award passed by the Tribunal is

modified. The Insurance Company is directed to

deposit the entire compensation amount along with

interest @ 6% p.a. from the date of petition till the

date of realization within a period of six weeks from

the date of receipt of a copy of this order with liberty

to recover the same from the owner of the offending

vehicle.

If the Insurance Company files an application

before the Executing Court for recovering the

compensation amount from the owner of the offending

vehicle, the owner of the offending vehicle is at liberty

to produce the valid driving licence of the driver of the

offending vehicle. If the owner of the offending

vehicle produces the valid driving licence of the driver

of the offending vehicle, the Executing Court shall

consider the same and pass appropriate orders in

accordance with law.

The amount in deposit is ordered to be

transferred to the Tribunal forthwith.

Sd/-

JUDGE

Cm/-