Karnataka High Court
Arunkumar S/O Rajshekhar Divantagi vs Mahesh And Anr on 18 April, 2024
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NC: 2024:KHC-K:3063
MFA No. 201184 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
MISCL. FIRST APPEAL NO.201184 OF 2023 (MV-I)
BETWEEN:
ARUNKUMAR
S/O RAJSHEKHAR DIVANTAGI,
AGE: 22 YEARS,
OCC: PETTY BUSINESS OF BANANA,
R/O PLOT NO.200, SEDAM ROAD,
NEAR CO-OPERATIVE SOCIETY,
PRAGATI COLONY,
KALABURAGI 585 101.
...APPELLANT
(BY SRI SAKRY K.S., ADVOCATE)
AND:
Digitally
signed by
SACHIN 1. MAHESH
Location:
HIGH COURT S/O GURULINGAPPA,
OF
KARNATAKA AGE: MAJOR, OCC: BUSINESS,
OWNER OF SPLENDOR PLUS BS-IV
MOTOR CYCLE NO.KA-32/ER-3071,
R/O IJERI VILLAGE-585 310,
TQ: JEWARGI, DIST: KALABURAGI.
2. TATA AIG GENERAL INSURANCE CO. LTD.,
THROUGH ITS BRANCH MANAGER,
1ST FLOOR, UNIT NO.F6 AND F8,
BUSINESS PARK CENTRE,
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MFA No. 201184 of 2023
AKKAMAHADEVI COLONY,
KALABURAGI-585 103.
...RESPONDENTS
(SRI SUBHASH MALLAPUR, ADVOCATE FOR R-2;
V/O DTD. 17.08.2023 NOTICE TO R-1 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO ALLOW THE APPEAL AND
INTERFERE WITH THE JUDGMENT AND AWARD DATED
08.12.2022 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE
AND MACT AT KALABURAGI, IN MVC NO.947/2019 AND
CONSEQUENTLY, SET ASIDE THE ORDER OF TRIBUNAL
FASTENED THE LIABILITY ON RESPONDENT NO.1 AND
CONSEQUENTLY, FASTEN THE LIABILITY ON RESPONDENT
NO.2-INSURANCE COMPANY AND DIRECT TO PAY
COMPENSATION TO THE APPELLANT.,
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri Sakry K.S., learned counsel for the
appellant as well as Sri Subhash Mallapur, learned counsel
appearing for respondent No.2. Notice to respondent
Nos.1 stood dispensed with.
2. Challenge in this appeal is the order that is
rendered by the Motor Accident Claims Tribunal,
Kalabuargi in MVC No.947/2019 dated 08.12.2022.
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3. The appellant filed an application claiming
compensation of Rs.15,30,000/- for the injuries sustained
by him in a road traffic accident and the claim was made
against respondent Nos.1 and 2. The Tribunal granting
compensation of Rs.3,79,400/-, fastened the liability as
against respondent No.1 only. Aggrieved by the same, the
present appeal is preferred.
4. Arguing the matter, Sri Sakry K.S., learned
counsel for the appellant submits that only because the
driver of the offending vehicle, in the opinion of the
Tribunal, was not holding valid and effective driving licence
to drive the offending vehicle as on the date of accident,
failed to direct the Insurance Company to pay the
compensation, which is unjustifiable. Learned counsel
states that though the second respondent has taken a plea
that the terms and conditions of the policy are violated, no
evidence is produced to that effect. Learned counsel also
states that in the absence of any proof that the terms and
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conditions are violated, the Tribunal ought not to have
exonerated the Insurance Company from liability.
5. Sri Subhash Mallapur, learned counsel who is
representing respondent No.2-Insurance Company seeks
to dispose of the matter on merits.
6. Stating that as the appellant is a third party and
as no proof is produced with regard to the violation of
terms and conditions of the policy, the Insurance Company
is liable to pay compensation, learned counsel for the
appellant relied upon the decision of the Hon'ble Apex
Court in the case of Rukmani and Others vs. New India
Assurance Co. and Others reported in (1999) 1 ACJ 171,
wherein the Hon'ble Apex Court at paragraphs 2 and 3 of
the judgment held as follows:
"2. The Insurance Company has been
absolved from liability in respect of the claim for
compensation by the High Court on the ground that
the driver had no valid licence. The High Court has
noted that u/s 96(2)(b)(ii) of the Motor Vehicles
Act, 1939, if the Insurance Company contends that
the driver of the vehicle had no valid driving
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license, the burden is on the Insurance Company to
establish it. The High Court, however, came to the
conclusion that this burden had been discharged by
the Insurance Company.
3. We have seen the only evidence which
the Insurance Company produced in support of the
plea. This is the evidence of Inspector of Police who
investigated the accident. In his evidence, PW 1
who was the Inspector of Police, stated in his
examination-in-chief. "My enquiry revealed that the
1st respondent did not produce the license to drive
the above said scooter. The 1st respondent even
after my demand did not submit the license since
he was not having it." In his cross-examination he
has said that it is the Inspector of Motor Vehicles
who is required to check whether the licence is
there but he had not informed the Inspector of
Motor Vehicles that the 1st respondent was not
having a licence since he thought it was not
necessary. In our view, this evidence is not
sufficient to discharge the burden which was cast
on the Insurance Company. It did not summon the
driver of the vehicle, No record from the Road
Transport Authority has also been produced. In
these circumstances, the Insurance Company has
not discharged the burden cast upon it u/s
96(2)(6)(ii) of the Motor Vehicles Act, 1939. The
impugned order of the High Court is, therefore, set
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aside and the order of the Tribunal is restored. The
appeal is allowed accordingly. No order as to costs."
7. The ratio laid down in the aforementioned
judgment aptly applies to the facts and circumstances of
the present case. Respondent No.2-Insurance Company
did not adduce any evidence in proof of the fact that the
first respondent violated the terms and conditions of the
policy. Even if it is stated that the driver of the offending
vehicle had no valid and effective driving licence, liability
vests upon the Insurance Company to pay compensation
to the appellant and thereafter to take steps to recover the
said amount from the owner of the vehicle i.e., respondent
No.1. Therefore, this Court considers desirable to allow the
appeal accordingly.
8. Thus, the following:
ORDER
i. The appeal is allowed.
ii. Respondent No.2 is directed to pay the
compensation as awarded by the Tribunal to
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the appellant within a period of eights weeks
from the date of receipt of copy of this order.
iii. On such payment, respondent No.2 would be at
liberty to recover the same from respondent
No.1 i.e., the owner of the offending vehicle.
iv. On such deposit, the appellant is permitted to
withdraw the entire amount.
Sd/-
JUDGE
LG
