Karnataka High Court
Sri. Vinod S/O Maneshwar Gouda vs Mr. Mahadev S/O. Yeshwant Desai on 2 April, 2024
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MFA No. 101522 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 2ND DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 101522 OF 2022 (MV-I)
BETWEEN:
SRI. VINOD S/O. MANESHWAR GOUDA,
AGE: 32 YEARS, OCC: CENTERING &
BAR BENDING, R/O. NO.70, VILLAGE-I,
KADIME VILLAGE, KUMTA-581319,
NOW AT GANDHI NAGAR, DHARWAD.
...APPELLANT
(BY SRI. ANJANEYA M, ADVOCATE)
AND:
1. MR. MAHADEV S/O. YESHWANT DESAI,
AGE: 50 YEARS, OCC: BUSINESS,
R/O. H.NO. 560, SHABIGIR KAKODA,
CURCHOREM, GAO-403706.
2. THE MANAGER LEGAL,
BAJAJ ALLIANZ GENERAL INSURANCE
Digitally signed
CO. LTD, R/O. 1ST FLOOR,
by JAGADISH T KALABURGI NOOLVI MEJESTIC,
R
Location: HIGH
NEW COTTON MARKET, HUBBALLI-580029.
COURT OF
KARNATAKA ...RESPONDENTS
(BY SRI. S. K. KAYAKMATH, ADV. FOR R2;
NOTICE TO R1 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF
MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS HEAR
THE PARTIES AND MAY KINDLY BE MODIFIED THE JUDGMENT AND
AWARD DATED 31.12.2021 BY ENHANCING THE COMPENSATION IN
MVC NO.840/2016 PASSED BY THE IV ADDL. SENIOR CIVIL JUDGE
AND ADDL. MACT, DHARWAD, BY ALLOWING THIS APPEAL WITH
COST IN THE ENDS OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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MFA No. 101522 of 2022
JUDGMENT
Though this appeal is listed for admission, with the
consent of learned counsel for the parties, it is taken up for
final disposal.
2. This appeal is filed by the appellant/injured
challenging the saddling of liability on the respondent
No.1/Owner, being aggrieved by the judgment and award
dated 31.12.2021 passed in MVC No.840/2016 on the file of the
learned IV Addl. Senior Civil Judge and Addl. MACT, Dharwad
(for short, 'Tribunal').
3. Heard the learned counsel Sri.Anjaneya M for the
appellant/injured and learned counsel Sri.S.K.Kayakmath for
the respondent/Insurer.
4. Learned counsel for the appellant submits that the
present appeal is filed being aggrieved by direction of the
Tribunal to respondent No.1/owner to pay compensation on the
ground that driver of the offending vehicle was not having valid
and effective driving license as on the date of accident. He
submits that this Court considering various law laid down by
the Hon'ble Apex Court has directed the insurance company to
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pay compensation to the claimant and recover the same from
the owner of the offending vehicle and he seeks to pass the
order for 'pay and recover'.
5. Per contra, learned counsel Sri. S.K. Kayakmath for
the respondent/insurer supports the impugned judgment and
award of the Tribunal and submits that there cannot be any
saddling of liability on the insurance company, since non-
possession of driving license is a fundamental breach of policy
conditions. Thus, he seeks dismissal of the appeal.
6. I have heard the learned counsel for the parties and
perused the material available on record.
7. This Court keeping in mind the law laid down by the
Hon'ble Apex Court in the case of Shamanna Vs. Oriental
Insurance Company Limited1, is of the considered view that
the insurance company shall pay compensation to the claimants
and later recover the same from the owner of the offending
vehicle. The relevant paragraphs of the said judgment are
extracted below:
(2018) 9 SCC 650
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7. As per the decision in Swaran Singh case, onus is
always upon the insurance company to prove that the
driver had no valid driving licence and that there was
breach of policy conditions. Where the driver did not
possess the valid driving licence and there are breach of
policy conditions, "pay and recover" can be ordered in case
of third party risks. The Tribunal is required to consider as
to whether the owner has taken reasonable care to find
out as to whether the driving licence produced by the
driver, does not fulfill the requirements of law or not will
have to be determined in each case.
10. In Oriental Insurance Co. Ltd. v. Brij Mohan and
others (2007) 7 SCC 56, the claimant was travelling in the
trolley attached to tractor carrying earth to brick kiln. It
was found that the tractor and the trolley were not used
for "agricultural works", the only purpose for which the
tractor was insured, when the claimant sustained the
injuries. The Supreme Court though held that the
insurance company is not liable to pay compensation,
however, invoked the power vested in the Supreme Court
under Article 142 of the Constitution of India in directing
the insurance company to satisfy the award by paying
compensation to the insured/claimant and realise the same
from the owner of the tractor.
11. In the present case, to deny the benefit of 'pay and
recover', what seems to have substantially weighed with
the High Court is the reference to larger Bench made by
the two-Judge Bench in National Insurance Co. Ltd. v.
Parvathneni and another (2009) 8 SCC 785 which doubted
the correctness of the decisions which in exercise of
jurisdiction under Article 142 of the Constitution of India
directing insurance company to pay the compensation
amount even though insurance company has no liability to
pay. In Parvathneni case, the Supreme Court pointed out
that Article 142 of the Constitution of India does not cover
such type of cases and that "if the insurance company has
no liability to pay at all, then, it cannot be compelled by
order of the court in exercise of its jurisdiction
under Article 142 of the Constitution of India to pay the
compensation amount and later on recover it from the
owner of the vehicle". The above reference
in Parvathneni case has been disposed of on 17.09.2013
by the three-Judges Bench keeping the questions of law
open to be decided in an appropriate case.
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12. Since the reference to the larger bench
in Parvathneni case has been disposed of by keeping the
questions of law open to be decided in an appropriate
case, presently the decision in Swaran Singh case followed
in Laxmi Narain Dhut and other cases hold the field. The
award passed by the Tribunal directing the insurance
company to pay the compensation amount awarded to the
claimants and thereafter, recover the same from the
owner of the vehicle in question, is in accordance with the
judgment passed by this Court in Swaran Singh and Laxmi
Narain Dhut cases........"
(Emphasis supplied)
8. In view of enunciation of law laid down by the
Hon'ble Apex Court in the judgment referred supra, this Court
confirms the saddling of liability on the respondent No.1/owner,
however, directs the respondent No.2/Insurance Company to
pay the compensation amount along with accrued interest to
the claimant and recover the same from the owner of the
offending vehicle.
9. With the aforesaid modification of the impugned
judgment and award of the Tribunal, the appeal stands
disposed off.
Sd/-
JUDGE
JTR
Ct-an
