The National Insurance Company ... vs Pavan
2021 Latest Caselaw 5422 Kant

                               1


      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 3RD DAY OF DECEMBER, 2021

                             BEFORE

     THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

              M.F.A NO. 7430 OF 2014 (MV-INJ)

BETWEEN:

THE NATIONAL INSURANCE COMPANY LTD.,
LAKSHMI BAZAAR, CHITRADURGA
REPRESENTED BY ITS
AUTHORISED SIGNATORY
AT REGIONAL OFFICE,
NO.144, SHUBHARAM COMPLEX
M G ROAD,
BANGALORE - 560 001.
                                                ... APPELLANT
(BY SRI. SRISHAILA S., ADVOCATE)

AND:

1.     PAVAN
       S/O THIPPESWAMY
       AGED ABOUT 10 YEARS
       BEING A MINOR, REPRESENTED BY HIS
       NATURAL GUARDIAN / MOTHER
       SMT MAHANTHAMMA
       W/O THIPPESWAMY
       R/AT BUDHNAHATTY VILLAGE,
       CHALLAKERE TALUK - 577 522.

2.     VEERESH V
       S/O HULIKUNTAPPA
       AGED ABOUT 29 YEARS
       R/OF CHURCH FASTER,
                                 2


     SULENAHALLI CHURCH
     VENKATESHWARA EXTENSION
     WARD NO.12,
     MOLAKALMURU TOWN - 577 535.
                                              ... RESPONDENTS

(BY SMT.VIJAYALAKSHMI R., ADVOCATE FOR R1;
    SRI.SHIVAKUMAR N., ADVOCATE FOR R2)

                              *****

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 28.07.2014 PASSED IN MVC
NO.80/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE &
ADDITIONAL MACT, CHALLAKERE, AWARDING COMPENSATION OF
Rs.21,846/- WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL REALIZATION.

    THIS MFA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                            JUDGMENT

The captioned appeal is filed by the Insurance Company

questioning the finding in regard to liability passed by the

Tribunal in MVC.No.80/2013.

2. The respondent No.1/claimant filed a claim petition

for having sustained injuries in a road traffic accident dated

01.03.2012. In the said proceedings, the present

appellant/Insurance Company contested the proceedings and

stoutly denied the entire averments made in the claim

petition. A specific contention was taken by the

appellant/Insurance Company that the rider of the offending

motorbike bearing Reg.No.KA-16 W-2921 did not possess

licence and therefore, the appellant/Insurance Company

contended that there is breach of policy condition and

therefore, the liability of the Insurance Company needs to be

exonerated.

3. The Tribunal having assessed the oral and

documentary evidence at paragraph 21 of the judgment has

recorded a finding that the rider of the offending bike did not

possess licence and further a categorical finding was also

recorded by holding that the respondent No.2 i.e., rider of the

offending bike has violated the policy condition. The Tribunal

further recorded a finding that the initial liability of

indemnifying the respondent No.2 would still stay inspite of

there being breach of policy condition. Having recorded the

said finding, the Tribunal however ought to have directed the

appellant/Insurance Company to pay the compensation

reserving liberty to recover the same from the respondent

No.2/owner.

4. The appellant/Insurance Company is aggrieved by

only this part of the order.

5. Heard learned counsel for the appellant/Insurance

Company. Perused the records.

6. In the light of the judgment rendered by the Full

Bench in the case of New India Assurance Company

Limited, Bijapur vs. Yallavva W/o Yamanappa

Dharanakeri and Another1, the issue in regard to breach of

policy condition is no more res integra. Even if there is breach

of policy condition, under Section 149(1) of Motor Vehicles

Act, the appellant/Insurance Company is still liable to satisfy

the compensation. Since breach is established by producing

rebuttal evidence, the appellant/Insurance Company though

2020 (2) AKR 484

liable to satisfy the award is entitled to recover the same from

the respondent/owner. On this short point, the appeal is liable

to be allowed.

7. Accordingly, the appeal is allowed. The

appellant/Insurance Company shall pay the compensation

determined by the Tribunal and thereafter proceed to recover

the same from the respondent/owner.

Sd/-

JUDGE

CA