Karnataka High Court
P.C.Jacob vs The Manager on 8 June, 2022
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.NO.1781/2016 (MV)
BETWEEN:
P.C. JACOB
S/O CHACO, AGED ABOUT 53 YEARS
NO.50, J.C. COTTAGE
VIDYARANYAPURA
LAKSHMIPURA POST
DASANAPURA HOBLI
BENGALURU - 23
...APPELLANT
(BY SRI. P. MAHADEVA SWAMY, ADVOCATE)
AND:
1. THE MANAGER
ICICI LOMBARD GEN. INS. CO. LTD
NO.89, SUR COMPLEX
HOSUR MAIN ROAD
MADIWALA
BENGALURU - 68
2. THE MANAGING PARTNER
M/S A.S. TRANSPORT
NO.827/6, RAMAMURTHYNAGAR
MAIN ROAD, DOORVANI NAGAR POST
BENGALURU - 560016
...RESPONDENTS
(BY SRI. H.N. KESHAVA PRASHANTH, ADV., FOR R1,
R2 NOTICE HELD SUFFICIENT V/O DT.08.02.2021)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
22.07.2015 PASSED IN MVC NO.5749/2009 ON THE
-2-
FILE OF THE VIII ADDITIONAL SMALL CAUSES JUDGE
AND XXXIII ACMM, MEMBER, MACT, BANGALORE,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS M.F.A. COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed under Section-173(1), of the
Motor Vehicles Act, 1988 (hereinafter referred to as 'MV
Act' for brevity) by the appellant - petitioner,
challenging the judgment and award dated 02.05.2011,
passed in MVC No.5749/2009, on the file of MACT, at
Bangalore (hereinafter referred to as 'the Tribunal' for
brevity).
2. Brief facts of the case of the appellant is
that on 10.07.2009 at about 4.30 p.m., the appellant
was riding his motor cycle bearing registration
No.K.A.04-ES-2410 from Peenya towards
Madanayakanahalli when he came near Padmavathi
Kalyana Mantapa, Bangalore, and when he was taking U
turn, the lorry bearing No.K.A.21-7340 without following
the traffic rules, came from Tumkur side and struck the
motor cycle of the appellant. Due to the impact, the
appellant fell down and sustained grievous injuries.
Immediately the appellant was shifted to life line
hospital and from there he was shifted to Columbia Asia
hospital where he took treatment as inpatient for a
period of 6 days in the said hospital and he underwent
closed reduction internal fixation and wound
debridement. It is stated that, the appellant has spent
Rs.3,00,000/- towards treatment, medicines,
conveyance and nourishment charges. Hence the
appellant filed the claim petition before the tribunal for
compensation under general and special damages
against the respondents.
3. The Tribunal has fixed liability on the 2nd
respondent - owner of the vehicle to pay compensation
and dismissed the claim petition against respondent -
insurance company. Therefore, being aggrieved by
fixing the liability on the owner of the vehicle, the
claimant had preferred the present appeal.
4. The Tribunal had determined compensation
and directed the 2nd respondent to pay the
compensation and dismissed the claim petition against
respondent No.1 - Insurance company. The Tribunal
had given finding and reasons for fastening liability on
the respondent No.2 owner that the accident was
occurred on 10.07.2009, the driving licence was in force
and valid till 10.03.2009. Thereafter the said driving
licence was renewed on 24.12.2009. Therefore, after
expiry of the validity period, the above said accident has
occurred on 10.07.2008 and on this date, there was no
valid driving licence and the driving licence was not in
force. Therefore, on this ground the Tribunal has
directed the 2nd respondent - owner of the offending
vehicle to pay the compensation.
5. The learned counsel appearing for the
appellant submitted that though the driving licence was
expired prior to the accident and got renewed after the
accident and the driving licence was not in force as on
the date of the accident, but order for pay and recovery
can be made. In this regard, he has placed reliance of
the Hon'ble Apex Court in the case of Singh Ram v.
Nirmala and Others reported in 2018 (3) SCC 800
and New India Assurance Company Ltd., Vs.
Yellavva and another reported in 2020 ACJ 2560.
Therefore, prays for issuing direction to the 1st
respondent - insurance company of the offending
vehicle to pay the compensation at first instance, then
recover from the 2nd respondent - owner, as the
appellant is the 3rd party as per Section 147 of the MV
Act.
6. On the other hand, learned counsel for
respondent No.1 insurance company vehemently
submitted that, admittedly as it is proved that there is
no valid and effective driving licence as on the date of
the accident. The driving licence was expired much
prior to the accident and it is not renewed within the
prescribed period. The driver of the aforesaid vehicle
was not holding driving licence and it was renewed on
24.12.2009, the insurance company is not liable to pay
the compensation. Therefore, submitted that the
decision of the Tribunal is correct in observing the
insurance company not to pay the compensation.
7. In the present case it is not disputed that
the accident occurred on 10.07.2009. It is also not
disputed that the driver of the offending vehicle was
holding driving licence till 10.03.2009. The driving
licence has expired on 10.03.2009. It was not renewed
thereafter within the prescribed period. Subsequently on
24.12.2009 the driving licence got renewed. But in the
mean time, the accident was occurred on 10.07.2009.
Therefore, under these circumstances, the insurance
company is able to prove the defence that the driver of
the offending vehicle did not have valid and effective
driving licence as on the date of the accident. But, there
is no evidence that the driver of the offending vehicle
was disqualified to drive the vehicle. Mere driving
licence was expired and got renewed driving licence
after the date of the accident as above stated does not
disqualify to drive the vehicle. Therefore, under these
circumstances, the principle of law laid down by the
Hon'ble Apex Court in the case of Singh Ram VS.
Nirmala And Others, reported in (2018) 3 SCC 800,
are applicable in this case.
8. I also place reliance on the judgment of the
Full Bench of this Court in New India Assurance
Company Limited vs. Yellavva And Another,
reported in 2020 ACJ 2560, at Paragraph
Nos.57, 149, it was held Third Party risk to be satisfied
by the Insurance Company. Further, in the case of
Singh Ram referred to supra, also the facts are similar
as in the present case and the Tribunal has ordered pay
and recovery by putting first liability on the insurance
company to pay the compensation, then recover from
the owner of the offending vehicle, which is confirmed
by the High Court and also by the Hon'ble Apex Court.
Further, the order of pay and recovery can be made as
per the principles of law laid down by the Full Bench of
this Court in Yellavva's case and in other
decisions of Hon'ble Apex Court.
9. Even though, respondent No.1-Insurance
Company is liable to pay the compensation by virtue of
Section 149(1) of the Act, the Insurance Company has
to satisfy the compensation to the third party and in the
present case, the appellant is third party, hence, pay at
first instance and recover from the owner of the
offending vehicle. Therefore, the order of pay and
recovery can be made in the present case also. Hence,
I proceed to pass the following:
ORDER
i. The appeal filed in MFA No.1781/2016 is
hereby allowed in part.
ii. The judgment and award 22.07.2015 passed
in M.V.C.No.5749/2009 is hereby modified .
iii. The insurance company is directed to satisfy
the compensation amount at first instance
and then recover from the 2nd respondent
owner of the lorry bearing No. KA21/7340
as per law, as laid down by the Hon'ble Apex
Court in the catena of decisions.
iv. Draw award accordingly.
It is made clear that the appellant is not entitled
to interest for a period of 118 days in filing the appeal.
Sd/-
JUDGE
MR
