Karnataka High Court
National Insurance Co. Ltd vs Savita W/O Maruti Chalawadi on 10 November, 2021
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAVI V. HOSMANI
M.F.A.NO.21985/2012 (MV)
BETWEEN:
NATIONAL INSURANCE CO. LTD.,
REP. BY MANAGER,
NEAR SIDDESHWAR TEMPLE
BIJAPUR, NOW REP. BY
THE DIVISIONAL MANAGER,
THE NATIONAL INSURANCE CO. LTD.,
SUJATHA TALKIES COMPLEX, HUBBALLI.
...APPELLANT.
(BY SMT.ANUSHA, ADVOCATE, FOR SHRI S K KAYAKAMATH,
ADVOCATE.)
AND:
1. SAVITA W/O MARUTI CHALAWADI
AGE: 33 YEARS, OCC: HOUSEHOLD WORK
R/O. MUDHOL TOWN, TQ: MUDHOL,
DIST: BAGALKOTE.
2. KUMAR SURAJ S/O MARUTI CHALAWADI
AGE: 8 YEARS, OCC: NIL,
MINOR REP. BYNEXT FRIEND AND
NATURAL MOTHER SAVITA I.E. RESP. NO.1
3. INDRABAI W/O DANAPPA CHALAWADI
AGE: 63 YEARS, OCC: HOUSEHOLD WORK,
2
R/O. MUDHOL TOWN, TQ: MUDHOL,
DIST: BAGALKOTE.
4. RAJASHEKHAR
S/O SHIVALINGAGOUDA PATIL
AGE: MAJOR, OCC: OWNER OF VEHICLE,
AT RAMPUR TOWN,
TQ: JAMAKHANDI, DIST: BAGALKOTE.
...RESPONDENTS.
(BY SHRI N.D.GUNDE, ADVOCATE, FOR R.3;
R.1 - NOTICE SERVED;
R.2 - MINOR, REP. BY R.1;
R.4 - PLACED EXPARTE.)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO SET
ASIDE THE JUDGMENT AND AWARD DATED 24.01.2012, PASSED IN
MVC NO.430/2004, ON THE FILE OF THE MEMBER, MACT-IX,
MUDHOL, ETC.,.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by insurer against judgment and award
dated 24.1.2012, passed by Motor Accident Claims Tribunal-IX,
Mudhol, MVC No.430/2004, on solitary ground that rider of
insured motorcycle was not having valid and effective driving
licence to ride the same and was also charge sheeted for riding
motorcycle without possessing driving licence. However tribunal
erroneously fastened liability against insurer.
2. Smt. Anusha, appearing for Shri S.K.Kayakamath,
learned counsel for appellant insurer submitted that as per
Ex.P.18 charge sheet, rider of insured motorcycle Shri
Chandrashekhar Madar was prosecuted for committing an
offence under Section 3 read with Section 181(3) of Motor
Vehicles Act apart from Section 279, 304-A of IPC, which
establishes that rider was not having driving licence. Even
though claimants did not produce driving licence nor led any
evidence to establish the same, tribunal referring to decision of
Jawahar Singh vs. Bala Jain and others, reported in 2011
ACJ 1677, passed impugned award directing insurer to pay
compensation with liberty to recover from insured. It was
submitted that non-possession of driving licence would be a
fundamental breach of terms and conditions of policy and
insurer cannot be held liable.
3. On the other hand, Shri Neelendra D. Gunde,
learned counsel for respondent/claimant supported the award
and opposed the appeal.
4. It was submitted that Hon'ble Supreme Court under
similar circumstances held that insured would be liable to pay
compensation to third party with right to recover the same from
owner and impugned judgment passed by tribunal was passed
following said ratio. Therefore no interference was sought for.
5. From above submission, only point that arises for
consideration in this case is:
"Whether tribunal was justified in holding
insurer liable to pay compensation even in a case
where rider of insured vehicle was not having
driving licence at the time of accident?"
6. Admittedly rider of motorcycle Chandrashekhar
Madar has been found to have prosecuted not only for
negligence in causing accident and death of Maruti, but also for
driving vehicle without possessing driving licence.
7. From a perusal of facts in Jawahar Singh's case
(supra), it is seen that rider of offending motorcycle in the said
case was a minor who was also not having driving licence to ride
motorcycle. Hon'ble Supreme Court held that as claimant was a
third party, even after establishing a defence under Section 149,
insurer would still be liable to pay compensation to third party
claimant with right to recover the same from insured. A Full
Bench of this Court in New India India Assurance Co. Ltd.,
Bijapur vs. Yallavva w/o. Yamanappa Dharanakeri,
reported in 2020 (2) AKR 484, has reiterated said position
in paragraph Nos.140(i) and (ii), which reads as under:
"140. In the result, the questions referred to
in this appeal are answered as under:
i) Having regard to Section 149(1) read
with Section 149(7) whenever a case falls
under Section 149(2)(a) and the same is
successfully established or proved by the Insurance
Company, as per the twin tests laid by the Hon'ble
Supreme Court in Swaran Singh, nevertheless, the
insurer or Insurance Company is liable to satisfy
the award vis-à-vis a third party and is entitled to
recover from the insured. This is irrespective of,
the policy being an Act policy in terms of Section
147 pertaining to compulsory coverage of risks of
third parties and other classes of persons stated
therein or a policy covering other risks by specific
contract being entered into in that regard and
where additional premium is paid by the insured
i.e., a contractual policy.
ii) Thus, the rule of pay and recover is
applicable in view of the mandate in Section
149(4) of the Act and even if there is a breach of
the terms of the insurance policy, the insurer is
bound to satisfy the judgment and award as if it
were a judgment debtor, even if it satisfies the twin
tests enunciated by the Hon'ble Supreme Court
under Section 149(4)(a) of the Act."
8. In view of above legal position, award passed by
tribunal would be fully justified. Point for consideration is
answered in affirmative and against appellant.
9. In the result, appeal being devoid of merit and is
accordingly dismissed.
Amount in deposit is ordered to be transmitted to tribunal
for payment.
Sd/-
JUDGE
Mrk/-
