Karnataka High Court
The Divisional Manager vs Mallappa S/O. Mahadevappa Bedasur on 6 December, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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MFA No. 20033 of 2012
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.20033/2012(MV-I)
BETWEEN:
THE DIVISIONAL MANAGER,
NATIONAL INSURANCE CO., LTD.,
DIVISIONAL OFFICE, BELAGAVI,
THROUGH ITS REGIONAL MANAGER,
NATIONAL INSURANCE CO. LTD.,
REGIONAL OFFICE, SUJATA COMPLEX,
P.B. ROAD, HUBBALLI.
...APPELLANT
(BY SRI M. K. SOUDAGAR, ADVOCATE)
AND:
1. MALLAPPA S/O. MAHADEVAPPA BEDASUR,
AGE: 53 YEARS,
R/O: KALLAPUR(SHIRASANGI) VILLAGE,
TAL: SAUNDATTI, DIST: BELAGAVI.
Digitally 2. NINGAPPA S/O. ISHWARAPPA BADIGER,
signed by AGE: 42 YEARS, OCC: SERVICE,
BHARATHI
HM R/O: MUNAVALLI, TQ: SAUNDATTI,
DIST: BELAGAVI.
...RESPONDENTS
(BY SRI H. M. DHARIGOND, ADVOCATE FOR R1;
R2 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR
VEHICLE ACT, 1988, PRAYING TO CALL FOR RECORDS IN CASE MVC
NO.529/2009 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIM TRIBUNAL,
SAUNDATTI AND SET ASIDE THE JUDGMENT AND AWARD DATED
12.09.2011 BY ALLOWING THIS APPEAL AND ETC.,
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 20033 of 2012
JUDGMENT
The present appeal is filed by the insurance company
questioning the liability fastened on it to pay
compensation.
2. Factum of accident and claimant sustained injuries
are not disputed. The disputed fact is that whether the
driver of the motorcycle was holding driving license to ride
motorcycle or not.
3. Heard learned counsel for the parties and perused
the material on record.
4. It is the case of claimant that while he was returning
from his field hit by the motorcycle by it's rider. The rider
of the motorcycle was holding driving license to drive light
motor vehicle(Non-transport) as per Ex.R2. Ex.R2 is
driving license of the rider of the motorcycle proving that
the driving license is light motor vehicle (Non-transport).
There is no evidence that rider of the motorcycle was
having driving license to ride motorcycle which is a
different class of vehicle than the light motor vehicle.
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Both these vehicles require their own skills to drive the
vehicles. A person who is holding driving license to drive
light motor vehicle cannot be said that he is competent to
driver motorcycle also or vice-a-versa. Therefore, when a
person who is holding driving license to drive light motor
vehicle (non-transport) cannot be said that he is having
valid and effective driving license to drive motorcycle also.
In this case, there is no driving license to prove that the
rider was having driving license to drive motorcycle.
Hence, it is a case of riding motorcycle by the person who
has no driving license to drive motorcycle. Hence, there is
a breach of insurance policy provision. Hence, insurance
company is not liable to pay compensation by
indemnifying the owner.
5. However, as per Sub-section (2) of Section 149 of
Motor Vehicle Act, when the Insurance Company
established the fact that driver was not holding driving
license, then as per Sub-sections (1), (5), (7) of Section
149 of Motor Vehicle Act, the Insurance Company as if the
NC: 2023:KHC-D:14330
judgment debtor shall satisfy the claim in respect of third
parties and then recover the same from owner of the
offending vehicle. Accordingly, order of pay and recovery
is made as per the principle of law laid down by the
Hon'ble Supreme Court in the cases of Pappu and others
vs. Vinod Kumar Lamba and another1 and also as per
the full bench decision of this Court in the case of New
India Assurance Co. Ltd., Bijapur vs. Yallavva w/o.
Yamanappa Dharanakeri2.
Thus, an order of pay and recovery is made. To this
extent, the judgment and award passed by the Tribunal is
modified.
6. Therefore, the insurance company shall pay
compensation at first instance to the claimant and then
recover the same from the owner of the offending
motorcycle and also liberty is reserved to the appellant-
(2018) 3 SCC 208
2020 (2) AKR 484.
NC: 2023:KHC-D:14330
insurance company to file execution petition directly
before the concerned executive court against the owner of
the motorcycle and may also seek attachment of movable
or immovable or both properties till recover of amount is
made.
7. In the result, I proceed to pass the following:
ORDER
i) Appeal is allowed in part.
ii) The judgment and award passed in
MVC No.529/2009 dated 12.09.2011 by the
Addl. Senior Civil Judge and Addl. MACT.,
Saundatti stands modified holding that the
insurance company is exonerated from payment
of compensation. However, the appellant-
insurance company shall pay compensation at
the first instance to the claimants and then
recover it from the owner of offending vehicle.
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iii) The insurance company is at liberty to
file execution petition before the jurisdictional
executing Court as against the owner of
offending vehicle and may seek attachment of
movables or immovable properties or both, till
recovery is made.
iv) Amount in deposit is transmitted to the
tribunal along with trial Court records and copy
of this judgment.
v) Draw award accordingly.
SD/-
JUDGE
HMB
CT-ASC
