Karnataka High Court
Chavali Bai And Anr vs Mallanna And Anr on 19 January, 2022
Bench: J.M.Khazi
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MRS. JUSTICE J.M.KHAZI
MFA No.200496/2019 (MV)
Between:
01. Chavali Bai w/o Hanmantha Pawar
Age: 49 Years Occ: Coolie, Now Nil
R/o: Kanne Kolur Mansing Naik Tanda
Tq: Shahapur, Dist: Yadgir - 586 222.
02. Hanmantha s/o Gangaram Pawar
Age: 59 Years Occ: Coolie
R/o: Kanne Kolur Mansing Naik Tanda
Tq: Shahapur Dist: Yadgiri-586 222.
... Appellants
(By Sri. Ganesh Naik, Advocate)
And:
01. Mallanna s/o Honnappa Surpur
Age: 32 Years Occ: Agril,
R/o: Dhoranhalli Tq: Shahapur
Dist: Yadgir-586 222.
(Owner of the offending vehicle)
2
02. The Divisional Manager
Oriental General Insurance Co. Ltd.,
Near Vikas Bhavan Station Road,
Kalaburagi-585 103.
(Insurer of the offending vehicle Honda Unicorn)
... Respondents
(By Sri. J. Augustin, Advocate for R2
vide order dated 13.01.2022,
notice to R1 dispensed with)
This Miscellaneous First Appeal is filed under Section 173
(1) of the Motor Vehicles Act, praying to allow the appeal and
set - aside the judgment and award dated 31.05.2018 passed
by the Senior Civil Judge and Addl. MACT, Shahapur at:
Shahapur in MVC.No.254/2015 and consequently be pleased to
discharge the respondent No.1 from its liability to pay the
compensation and also be please to enhance compensation and
fix the liability on the respondent No.2.
This appeal being heard and reserved for judgment on
13.01.2022, coming on for pronouncement of judgment, this
day, the court delivered the following :-
3
JUDGMENT
This is claimant's appeal filed under Section 173 (1)
of the Motor Vehicles Act, 1988 (hereinafter referred as
'M. V. Act') challenging the impugned judgment and
award, on quantum as well as fixing the liability on
respondent No.1/owner of the offending vehicle. Appellant
has sought for enhancement of the compensation and to
fix the liability on respondent No.2/insurance company.
02. For the sake of convenience the parties are
referred to by their rank before the Tribunal.
03. The claimants are the parents of the deceased
- Vijayakumar who died in a motor vehicle accident dated
27.11.2014 involving motorcycle bearing Chassis
No.ME4CO99CCE8696495 (hereinafter referred to as
'offending vehicle'). It is alleged that on the date of
accident the deceased was traveling from Yadgir to
Shahapur, as a pillion rider of the offending vehicle and
near Bevinahalli, the rider dashed it against the safety
stones pitched by the side of the road, as a result of which
the deceased sustained injuries and died on spot. The
deceased was a Tailor by profession and earning
`.10,000/- per month. Being parents, claimants were
dependent on him.
04. Respondent No.1 is the owner and respondent
No.2 is the insurer and as such they are liable to pay the
compensation.
05. Before the Tribunal, respondent No.1 remained
ex-parte.
06. The respondent No.2 filed objections, disputing
the death of the deceased in the accident involving the
offending vehicle, his age, occupation, income and also the
fact that claimants were dependent on him. At the time of
accident the rider of the offending vehicle was not having a
valid and effective driving license and as such respondent
No.2 is not liable to pay the compensation.
07. Based on these pleadings, the Tribunal has
framed necessary issues.
08. In support of the petitioners, petitioner No.1 is
examined as PW.1 (however in the index of the judgment
the name of PW.1 is wrongly stated as 'Nagamma w/o
Siddappa Hosamani' which appears to be a typographical
mistake), Exs.P.1 to 5 are marked.
09. On the other hand, on behalf of respondent
No.2, RW.1 is examined and Ex.R.1 to 4 are marked.
10. By impugned judgment and award, the
Tribunal has partly allowed the petition, granting
compensation in a sum of `.9,58,000/- with interest at the
rate of 6% p.a. against respondent No.1 i.e., owner of the
offending vehicle.
11. It has dismissed the petition, as against
respondent No.2 - insurance company.
12. During the course of appeal memo, though the
claimants have pleaded that compensation granted is not
just and reasonable and have sought for enhancement and
to fix the liability on the respondent No.2 - insurance
company, during the course of arguments, the learned
counsel representing the claimants submitted that the
claimants are satisfied with the quantum of compensation
and in view of the decision of the Hon'ble Supreme Court
reported in (2004) 3 SCC 297 in the matter of National
Insurance Company Limited vs. Swaransingh and
others, they are only pressing for a direction to
respondent No.2 - insurance company to pay the
compensation and recovery from respondent No.1 - owner
of the offending vehicle.
13. Admittedly in the written statement,
respondent No.2 - insurance company though conceded
the fact that at the relevant point of time, the offending
vehicle was covered by a valid policy, it has taken up a
specific defence that at the time of accident, the rider of
the offending vehicle was not having a valid driving license
and as such it is not liable to indemnify respondent No.1 -
owner. In fact at Para No.13 of the judgment the Tribunal
has observed that in the charge-sheet filed against
respondent No.1 it is also alleged that at the time of
accident the rider of the offending vehicle was not holding
a driving license and this fact is not challenged by him. On
this ground the Tribunal refused to fasten the liability on
the respondent No.2 - insurance company and
consequently directed respondent No.1 to pay the
compensation.
14. In Swaransigh's case referred to supra the
full bench of the Hon'ble Supreme Court held that even
where the insurer is a able to prove breach on the part of
the insured concerning the policy condition regarding
holding of a valid license by the driver or his qualification
to drive during the relevant period, the insurer would not
be allowed to avoid its liability towards the insured unless
the said breach or breaches on the condition of driving
license is/are so fundamental as are found to have
contributed to the cause of accident. In such an event, the
insurer is to be directed to indemnify the insured and
recover the same from the insured.
15. Applying the dictum of the Swaransigh's
case, in (1) Pappu and others vs. Vinodkumar Lamba
and another, reported in (2018) SCC 208, (2)
Shamanna and others vs. Divisional Manager,
Oriental Insurance Company Limited and others,
reported in (2018) 9 SCC 650 and (3) Parmindersingh
vs. New India Assurance Company Limited, reported
in (2019) 7 SCC 217, the Hon'ble Apex Court directed
the insurance company to pay the compensation to the
claimants and recover the same from the owner.
16. These decisions are applicable to the case on
hand. By remaining ex-parte, respondent No.1 the owner
of the offending vehicle has failed to prove that at the time
of accident, the rider was holding a valid license. On the
other hand, based on the material placed on record
respondent No.2 insurance company has proved that at
the time of accident, the rider of the offending vehicle was
not holding any driving license. Therefore, in view of the
above referred decisions, respondent No.2 - insurance
company is liable to satisfy the award and it is entitled to
recover the same from respondent No.1. To this extent the
impugned award is liable to be modified. Accordingly, I
proceed to pass the following;
ORDER
I. The appeal is partly allowed.
II. The respondent No.2 - insurance company is
directed to pay the award amount along with
interest to the claimants and recover the same
from respondent No.1 - owner of the offending
vehicle.
Sd/-
JUDGE
KJJ
