The Oriental Insurance Co Ltd vs V M Sundar
2021 Latest Caselaw 2170 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 9TH DAY OF JUNE, 2021

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                  M.F.A.NO.3669/2013 (MV)

BETWEEN:

THE ORIENTAL INSURANCE CO. LTD.,
CBO-9, No.1 AND 2, 2ND FLOOR, 1ST CROSS
SIDDAPURA OPP: 9TH CROSS, WILSON GARDEN
HOSUR ROAD, BENGALURU
THROUGH ITS REGIONAL OFFICE
No.43/44, LEO SHOPPING COMPLEX
RESIDENCY ROAD CROSS, BENGALURU
REPRESENTED BY ITS DEPUTY MANAGER
                                          ... APPELLANT
          (BY SRI S.V.HEGDE MULKHAND, ADVOCATE)
AND:

1.     V.M.SUNDAR
       S/O. LATE MUNIYAPPA
       AGED ABOUT 57 YEARS

2.     SMT. SARASWATI
       W/O. V.M.SUNDAR
       AGED ABOUT 44 YEARS

3.     SUNITA
       D/O. V.M. SUNDAR
       AGED ABOUT 20 YEARS.

       RESPONDENT NOS.1 TO 3 HEREIN ARE
       R/O. No.18, MARUTHI NILAYA
       NEAR SMK SCHOOL ROAD
       OLD BYAPPANAHALLI, M.S.NAGAR POST
       BENGALURU - 560 033.
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4.   N.S.RAJA SHEKAR
     AGE: MAJOR
     No.64/1, 1ST FLOOR
     KRISHNAPPA BUILDING
     H. SIDDAIAH ROAD
     BENGALURU 560027.
                                                   ... RESPONDENTS

        (R1 TO R4 ARE SERVED AND UNREPRESENTED)


     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 25.02.2013
PASSED IN MVC.NO.611/2011 ON THE FILE OF PRINCIPAL
MACT, CHIEF JUDGE, COURT OF SMALL CAUSES, BENGALURU,
AWARDING      A     COMPENSATION       OF      Rs.5,24,000/-   WITH
INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
REALIZATION.


     THIS M.F.A. COMING ON FOR ADMISSION THROUGH
'VIDEO CONFERENCE' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:


                        JUDGMENT

Though this appeal is listed for admission today, with the

consent of learned counsel appearing for appellant/Insurance

Company and learned counsel appearing for

respondents/claimants, the same is taken up for final disposal.

2. This appeal is filed by the appellant/Insurance

Company challenging the Judgment and Award dated

25.02.2013 passed in M.V.C.No.611/2011 by the Principal

MACT., & Chief Judge, Court of Small Causes, Bengaluru ('the

Tribunal' for short), questioning the liability fastened on the

Insurance Company.

3. The factual matrix of the case is that the claimants

have made the claim petition before the Tribunal that the

deceased was succumbed to the injuries in a road traffic accident

that occurred on 22.11.2010 at about 3:20 p.m, on the left side

of Richmond road, near Shoolay Circle, opposite to Cathedral

P.U. College main road, Bengaluru, on account of the rash and

negligent driving of the driver of the Petrol Tanker bearing

registration No.KA-01-B-3886.

4. The Insurance Company in the written statement

took the defense that the driver of the said vehicle was not

holding a valid and effective driving license as on the date of the

accident.

5. The claimants in order to substantiate their claim,

they have examined the second claimant as P.W.1 and also

examined one witness as P.W.2 and got marked the documents

as Exs.P1 to P19. On the other hand, respondent has examined

one witness as RW.1 and got marked the documents as Exs.R1

to R4.

6. The Tribunal, after considering both oral and

documentary evidence available on record, allowed the claim

petition of the petitioners in part granting compensation of

Rs.5,24,000/- with 6% interest per annum from the date of

petition till realization. Hence, the present appeal is filed before

this Court questioning the finding given by the Tribunal in

respect of issue No.2 in coming to the conclusion that the driver

was holding a valid and effective driving licence as on the date of

the accident.

7. The learned counsel for the appellant/Insurance

Company would vehemently contend that the Tribunal has

committed an error in relying upon the judgment of High Court

of Judicature at Allahabad reported in 2012 ACJ 2842. The

learned counsel would submit that this Court in Kalaburagi Bench

in MFA No.30081/2011 vide Judgment dated 16.12.2013 held

that if the driver is not having the endorsement to drive the

hazardous vehicle, the Insurance Company is not liable to pay

the compensation.

8. The learned counsel would vehemently contend that

the owner was placed ex-parte and this Court also issued notice

against the respondent/owner and in both the Courts he did not

appear and contest the matter and in the absence of

endorsement to drive the hazardous goods vehicle, the

Insurance Company cannot be made liable to pay the

compensation.

9. The claimants were also served and they also not

appeared before this Court.

10. Having heard the arguments of learned counsel

appearing for the appellant/Insurance Company and on perusal

of the grounds urged in the appeal and the materials available

on record, the points that would arise for consideration of this

Court are:

             (i)        Whether the Tribunal has committed an
             error in coming to the conclusion that the




            Insurance   Company      is   liable   to   pay   the
            compensation?


            (ii)   What order?


Point Nos.(i) & (ii):

11. In keeping the contentions urged by the learned

counsel for the appellant, this Court has to re-appreciate the

material available on record. The vehicle involved in the accident

is a Petrol Tanker. No doubt, the Petrol Tanker is a hazardous

vehicle to carry the hazardous material. The question is whether

the driver was having the driving licence. But in the case on

hand, the driver had no such endorsement to drive the vehicle.

RW.1, who has been examined before the Tribunal also,

reiterated the same, but he has produced the Driving Licence

Extract and also produced the letter issued to the Insurer and

the policy documents. The history sheet of driver Venkatesh S/o

Venkate Gowda is produced by the Insurance Company as per

Ex.R3, wherein, it is stated that the driver has authorized to

drive HTV Vehicle w.e.f. 07.04.2006. The driving license had

been renewed from 23.05.2009 to 22.05.2012. The accident was

occurred in between i.e., on 22.11.2020. Hence, it can be said

that as on the date of the accident, the driver had driving licence

to drive Heavy Goods Vehicle. Ex.R4 is the B-Register Extract of

a Lorry, wherein, in column No.7, the class of vehicle is shown

as HGV-Heavy Goods Vehicle.

12. The contention of the Insurance Company is that

there should be a separate endorsement on the license to drive

the vehicle containing the hazardous substance. The material

also discloses that there is no endorsement on the driving

license. The evidence of RW.1 is that in order to drive the vehicle

containing the hazardous material, the driver should have an

endorsement to that effect in the Driving Licence Extract. The

Tribunal also had taken note of the Spot Mahazar, which is

marked as Ex.P2 and the Spot Mahazar for having seized the

Lorry-Ex.P3, it has not been mentioned that the tanker was filled

with petrol or hazardous material. In the absence of evidence to

that effect, it cannot be said that the driver had no valid and

effective driving licence to drive the said vehicle. It is also

observed that if the tanker had been filled with Petrol, in that

case it could have been said that, since there is no endorsement

authorizing him to drive the vehicle containing hazardous

material and therefore the driver did not possess valid driving

licence. The Tribunal comes to the conclusion that no material

was placed before the Court at the time of the accident that the

vehicle which was used was carrying the hazardous material. By

referring the Judgment of the High Court of Judicature at

Allahabad (supra), the contention was raised and the Allahabad

High Court also observed that there was no evidence on record

to establish that the tanker was carrying some hazardous

material and that the driver was also not cross examined by the

Insurance Company on the question of hazardous goods in the

vehicle. It is in that context, the Allahabad High Court of

Judicature held that the Tribunal was justified in holding the

Insurance Company liable. Having referred to this Judgment, the

Tribunal considered the material in order to prove the fact that

the vehicle which was involved in the accident was not

containing the hazardous material and further observed that the

Insurance Company has failed to establish that the driver was

driving the tanker containing the hazardous material i.e., Petrol.

Therefore, it cannot be said that the driver was not authorized to

drive the said tanker without an endorsement of the Licensing

Authority empowering him to drive the vehicle carrying

hazardous material.

13. Having considered the material on record available

before the Court, particularly, considering the document Exs.P2

and P3, nothing is placed before the Court that the vehicle which

was driven by the driver he was carrying the hazardous material

in the said vehicle and though the Insurance Company took the

said defence in order to substantiate the same, nothing is placed

on record except examining the official of the Insurance

Company i.e., RW.1. Hence, I do not find any force in the

contention of the learned counsel for the appellant that the

Insurance Company is not liable to pay any compensation unless

the Insurance Company is proved the fact that the vehicle which

was involved in the accident was carrying the hazardous material

at the time of the accident. Merely because it was a Petrol

Tanker, the very contention of the Insurance Company cannot

be accepted. No doubt, it requires separate special training and

the endorsement to drive the hazardous vehicle, which is

carrying the hazardous material. But in the case on hand, no

such material is placed before the Tribunal to come to a

conclusion that he was driving a hazardous material at the time

of the accident. Hence, the very contention of the learned

counsel for the appellant that the Insurance Company is not

liable cannot be accepted.

14. The other contention of the learned counsel for the

appellant/Insurance Company is that the owner was placed ex-

parte before the Tribunal and in this Court also the owner was

not responded to the notice issued by this Court and the same

cannot be a ground to come to other conclusion. The very

contention that the Court can draw inference cannot be accepted

and when the Insurance Company took the specific defence

before the Tribunal that he was not having a valid and effective

driving license to drive the vehicle, it is the burden to prove the

same and the same has not been proved by the Insurance

Company by placing any material. Hence, I do not find any

merit in the appeal to reverse the finding of the Tribunal.

15. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is dismissed.

(ii) The amount in deposit, if any, is ordered to be transmitted to the concerned Tribunal, forthwith.

Sd/-

JUDGE

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