The Royal Sundram vs Basawaraj S/O Shanthappa And Anr
2022 Latest Caselaw 7839 Kant

                              1


             IN THE HIGH COURT OF KARNATAKA
                    KALABURAGI BENCH

           DATED THIS THE 1ST DAY OF JUNE 2022

                           BEFORE

       THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
                 MFA No. 201414/2014 (MV)

BETWEEN:

The Royal Sundram
Alliance General Insurance
Company Ltd., through its
Divisional Manager, Head Office,
46, Whites Road, Chennai.
Now at # 3rd Floor,
Above JDBI Bank,
S.B.Temple Road,
Gulbarga-585103.
                                              .....Appellant

(By Sri. Sanjay.M.Joshi, Advocate)

AND:

1.     Basawaraj S/o Shanthappa Ijeri,
       Age: 21 years,
       Occ: Private work & Student,
       R/o UKP Camp, area
       Bheemarayangundi, tq. Shahapur,
       Now residing at Plot No.109,
       Behind Bus Stand, CIB Colony,
       Gulbarga-585 102.

2.     Hanmanth S/o Yallappa,
       Age: 36 years,
       Occ: Driver-cum-owner of
       Vehicle bearing No.KA-28/B-1857,
                                      2


     R/o Hanchinal, Tq. Shahapur,
     Dist: Yadagir-585 202.
                                        .....Respondents
(By Sri. Babu A.Metagudda, Advocate for R1;
       Notice to R2 served)

       This MFA is filed under section 173(1) of the Motor
Vehicles Act, praying to Set aside the award of the Prl. Senior
Civil Judge & MACT, Gulbarga in MVC No.336/2013, dated
05.06.2014 of compensation of Rs.4,10,940/- and be pleased
to reduce the same to Rs.2,03,040/- and to modify the
judgment and award and to hold that the appellant Insurance
Company would be entitled to recover the compensation paid
to the respondent No.1 herein from the respondent No.2
(owner cum driver of the vehicle).

      This appeal coming on for hearing, this day, the court
delivered the following:

                              JUDGMENT

This appeal is filed under Section 173 of the Motor

Vehicle Act, 1988 ('MV Act' for short) seeking

compensation on account of injuries sustained by the

claimant in a road traffic accident.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them

before the Principal Senior Civil Judge and Motor

Accidents Claims Tribunal at Gulbarga ( 'Tribunal' for

short).

3. The brief factual matrix leading the case is

that, on 12.12.2012 at about 2.00 or 2.30 p.m. the

claimant was proceeding on the motor cycle bearing No.

KA.38/K-5913 and the said vehicle was hit by a TATA

ACE Goods Vehicle bearing No. KA.28/B.1857 coming

from opposite direction. In the result, the claimant

suffered grievous injuries.

4. Respondent No.2 has disputed the claim on

various grounds and also disputed that the driver of the

TATA ACE vehicle was holding the valid and effective

driving licence and he was chargesheeted for the office

punishable under Section 3 read with 181 of the MV Act

and as such there is breach of policy conditions and

hence, he seeks for exonerating him from the liability.

5. The Tribunal after appreciating the oral as

well as documentary evidence has awarded compensation

of Rs.4,10,940/- to the claimant. Being aggrieved by

this order, the appellant/Insurance company has filed this

appeal.

6. Heard the arguments advanced by the learned

counsel for the appellant and the learned counsel for the

1st respondent/claimant. Perused the records.

7. Learned counsel for the appellant would

contend that the driver of the offending vehicle was

chargesheeted for not possessing valid and effective

driving licence and as such, there is breach of policy

conditions. Hence, he would contend that the Tribunal

has erred in fastening the liability on the

insurer/respondent No.2. He would also contend that

The income taken by the Tribunal was on higher side and

as such, he would seek for allowing the appeal.

8. Per contra, the learned counsel for the 1st

respondent/claimant would support the judgment of the

Tribunal and sought for dismissal of the appeal.

9. Having heard the arguments and perusing the

records, it is evident that the claimant met with accident

on 12.12.2012 when the motor cycle on which he

travelling was hit by TATA ACE vehicle bearing

No.KA.28.B.1857. The records also disclose that the

driver of TATA ACE vehicle was prosecuted for the offence

under Section 3 read with 181 of the MV Act for driving

the vehicle without valid driving licence along with other

offences under the provisions of Indian Penal Code.

Respondent No.1 has not produced any material evidence

to establish that he was possessing a valid and effective

driving licence. Hence, adverse inference is required to be

drawn that the driver was not possessing valid and

effective driving licence as on the date of the accident.

10. The petitioner/claimant in his claim petition

contended that he was earning Rs.4,000/- p.m. and

however considering the prevailing cost of living, the

Tribunal has taken the monthly income at 4,500/-. It is

also important to note here that, this Court consistently

taking Rs.6,500/- as notional income pertaining to the

accident occurred during the year 2012. Considering

these aspects, the learned counsel for appellant-

Insurance Company submits that, he is not pursuing

appeal on the ground of quantum and his appeal is only

restricted regarding the liability.

11. The evidence clearly establish that the driver

of the offending vehicle was not possessing valid and

effective driving licence. In the decision reported in

Pappu and others Vs. Vinod Kumar Lamba and

another reported in 2018 ACJ 690, this Court has

reiterated the fact that in respect of third party claim,

the liability of the Insurance Company cannot be

exonerated and the Insurance Company is liable to pay

compensation by satisfying claim and recover it from

the owner in case of breach of policy conditions. The

Tribunal though rightly fastened the liability on

Respondent No.2-Insurance Company, there is no order

regarding pay and recovery. Hence, to this extent only

the appeal needs to be allowed by modifying the

operative portion of the judgment. Accordingly, the

appeal needs to be allowed and hence, I proceed to pass

the following:-

ORDER

i) The appeal is allowed-in-part. The judgment and award passed by the Tribunal in MVC No.336/2013 awarding compensation of Rs.4,10,940/- is confirmed.

ii) Respondents No.1 & 2 are jointly and severally held liable to pay compensation by fixing primary liability on Respondent No.2- Insurance Company to pay compensation and Respondent No.2 is at liberty to recover the same from Respondent No.1, by executing this decree against him.

The amount in deposit before this Court is directed

to be transmitted to the Tribunal.

Sd/-

JUDGE

KGR*