The Branch Manager vs Sethuram
2021 Latest Caselaw 6133 Kant

                        1



  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 14TH DAY OF DECEMBER, 2021

                     BEFORE

THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

           M.F.A NO. 1727 OF 2016(MV-I)

BETWEEN:

THE BRANCH MANAGER
RELIANCE GIC LTD
I FLOOR, MAGANOOR BASAPPA COMPLEX
P B ROAD, CHITRADURGA
NOW REP BY ITS LEGAL MANAGER
RELIANCE GENERAL INSURANCE CO. LTD
REGIONAL OFFICE, 5TH FLOOR
CENTENARY BUILDING, NO.28
M G ROAD, BANGALORE-560 001

                                      ...APPELLANT

(BY SRI.PRADEEP B, ADVOCATE)

AND:

1. SETHURAM
S/O MANJUNATHA AMAIAH
NOW AGED ABOUT 6 YEARS
R/AT BOVI COLONY, DAVANAGERE ROAD
CHITRADURGA-577501
1ST RESPONDENT IS SINCE MINOR
REP BY HIS NATURAL GUARDIAN MOTHER
SMT. KOMALA
W/O MANJUNATH
NOW AGED ABOUT 27 YEARS
                           2



2. S NAYAZ
S/O SARDAR
NOW AGED ABOUT 29 YEARS
R/AT I CROSS, TIPPU CIRCLE
AGASANAKALLU
CHITRADURGA TOWN-577501

                                      ...RESPONDENTS

(NOTICE TO R1 & R2 ARE SERVED & UNREPRESENTED)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED: 18.1.2016 PASSED
IN MVC NO.701/2014 ON THE FILE OF II ADDITIONAL
SENIOR     CIVIL    JUDGE,    ADDITIONAL    MACT-5,
CHITRADURGA,     AWARDING    A   COMPENSATION    OF
RS.35,000/- WITH INTEREST @ 7.5% P.A FROM THE DATE
OF PETITION TILL THE DATE OF DEPOSIT.

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


                    JUDGMENT

The captioned appeal is filed by the Insurance

Company questioning the quantum and the rate of

interest awarded as well as the liability fastened by

the Tribunal on the Insurance Company.

2. Respondent No.1-claimant filed a claim

petition for having sustained grievous injuries in a

road traffic accident dated 12.06.2012 claiming

compensation of Rs.4,30,000/-.

The appellant-Insurance Company on receipt of

summons tendered appearance and filed written

statement stoutly denying the entire averments made

in the claim petition. It was specifically contended

that the driver of the offending vehicle did not possess

valid and effective driving licence and claimed that the

Insurance Company has to be exonerated on account

of breach of policy conditions.

The Tribunal though has referred to the charge

sheet at Ex.P6 and arrived at a conclusion that the

driver of the offending vehicle did not possess the

driving licence, however, declined to accept the stand

taken by the appellant-Insurance Company in regard

to the breach of policy conditions and has drawn an

adverse inference in not examining the Investigating

Officer to substantiate its claim in regard to breach of

policy conditions. Further, the Tribunal on

appreciation of oral and documentary evidence has

proceeded to award a sum of Rs.35,000/- with 7.5%

interest from the date of petition till its realisation to

the claimant.

Being aggrieved by the same, the present appeal

is filed by the Insurance Company.

     3.      Respondents      who     are    the    owner     and

claimant        though       served         have      remained

unrepresented.      Heard the learned counsel for the

appellant-Insurance      Company          and      perused     the

records.

     4.      On    perusal    of    the      judgment        under

challenge, it clearly reveals that the driver of the

offending vehicle did not possess driving licence. The

Tribunal has referred to Ex.P6-charge sheet, which

clearly shows that the driver of the offending vehicle

did not possess driving licence. If the charge sheet

reveals that the driver did not possess driving licence,

then this Court is of the view that the Tribunal erred in

discarding Ex.P6 while adjudicating the question of

liability. The Tribunal by relying on the very same

document has arrived at a conclusion that the driver

of the offending vehicle was rash and negligent but

while examining the liability however has discarded

Ex.P6. Therefore, the finding recorded by he Tribunal

that the appellant-Insurance Company ought to have

examined the Investigating Officer to substantiate its

claim that the driver of the offending vehicle did not

possess driving licence is palpably erroneous and the

said finding is not at all sustainable. Therefore, by

placing reliance on Ex.P6, this Court would proceed to

hold that the appellant-Insurance Company has

succeeded in establishing that the driver of the

offending vehicle did not possess driving licence as on

the date of the accident and therefore, there is breach

of policy conditions. It is trite law that under Section

149(1) of the M.V. Act, the initial liability to indemnify

the insurer would still operate against the appellant-

Insurance Company even where there is breach of

policy conditions. The principles laid down by the Apex

Court in Pappu and others Vs. Vinod Kumar

Lamba & another1 and the Full Bench decision of

this Dourt in New India Assurance Company

Limited, Bijapur Vs. Yallavva w/o.Yamanappa

Dharanakeri and another2 are squarely applicable

to the present case on hand. Further, there is some

force in the submission made by the learned counsel

for the appellant-Insurance Company in regard to

award of interest by the Tribunal at 7.5% per annum,

which is on the higher side and contrary to the rate of

interest consistently awarded by this Court.

AIR 2018 S.C.592

2020(2) AKR 484

5. In the result, the appeal is allowed in part.

The impugned judgment and award dated 18.1.2016

passed by the II Additional Senior Civil Judge and

Add.MACT-V, Chitradurga in MVC.No.701/2014 is

modified. The appellant-Insurance Company is

directed to satisfy the award passed by the Tribunal

and thereafter proceed to recover the same from

respondent No.2-owner. Further, the amount awarded

by the Tribunal shall carry interest at the rate of 6%

per annum.

The amount in deposit shall be transmitted to

the Tribunal.

Sd/-

JUDGE

*alb/-.