Karnataka High Court
The Manager Magma (Hdi) General ... vs Bhupati And Ors on 7 August, 2024
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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MFA No.202310 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF AUGUST, 2024
PRESENT
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
MISCL. FIRST APPEAL NO.202310 OF 2024 (MV-D)
BETWEEN:
THE MANAGER,
MAGMA (HDI),
GENERAL INSURANCE COMPANY LIMITED,
13A, NAGAPPA DNR LAYOUT PALACE,
GUTTAHALLI BANGALORE - 560 020,
KARNATAKA STATE
...APPELLANT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
AND:
Digitally signed
by SWETA
KULKARNI
1. BHUPATI
Location: HIGH S/O YAMANAPPA,
COURT OF
KARNATAKA AGE: 52 YEARS,
OCC: COOLIE,
2. BASAVARAJ
S/O BHUPATI,
AGE: 22 YEARS,
OCC: STUDENT,
3. YAMANOOR
S/O BHUPATI,
AGE: 21 YEARS,
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MFA No.202310 of 2024
OCC: STUDENT,
4. HANUMANTHI
W/O DURGAPPA,
AGE: 26 YEARS,
OCC: COOLIE,
5. AYYAMMA
D/O BHUPATI,
AGE: 27 YEARS,
OCC: COOLIE,
ALL ARE R/O MALLADHGUDDAM VILLAGE,
TQ: MANVI NOW RESIDING AT
KALMALA VILLAGE,
TQ: AND DIST: RAICHUR - 584 101.
6. VEERESH
S/O HUSSAINAPPA NAYAK
AGE: MAJOR,
OCC: DRIVER CUM OWNER OF
AUTO BEARING NO.KA-36/A-6461,
R/O: GONWAR VILLAGE,
TQ: MANVI, DIST: RAICHUR - 584 101.
...RESPONDENTS
(BY SRI BASAVARAJ R. MATH, ADVOCATE FOR C/R1 TO R5)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS
AND ALLOW THE ABOVE APPEAL BY SETTING ASIDE THE
IMPUGNED JUDGMENT AND AWARD DATED 20.04.2024 IN
M.V.C. NO.583/2022 PASSED BY THE III ADDITIONAL SENIOR
CIVIL JUDGE AND M.A.C.T. AND J.M.F.C. RAICHUR IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
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MFA No.202310 of 2024
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR)
The appellant - Insurance Company has challenged
the fastening of the liability of payment of compensation
to the claimants by the III Additional Senior Civil Judge &
JMFC and MACT, Raichur in MVC No.583/2022 dated
20.04.2024.
2. Parties to this appeal are referred to as per
their rank before the Tribunal.
3. The claimants filed the claim petition before the
Tribunal claiming compensation on account of death of one
Renukamma in a road traffic accident that occurred on
06.08.2022 when she was traveling in an auto rickshaw
bearing Reg.No.KA-36/A-6461 towards Amareshwara
Camp. The respondent No.1 was driving the said auto
rickshaw in a rash and negligent manner. Because of his
negligence, the said accident has taken place. In the said
accident Renukamma died. Now the claimants, who are
her legal heirs, have filed the claim petition claiming
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compensation of Rs.30,00,000/-. According to the
claimants deceased was aged 42 years and was earning
Rs.20,000/- per month. Because of untimely death, now
the claimants are deprived of their livelihood. They also
have lost love and affection, etc.
4. Before the Tribunal, respondent No.1 remained
absent and was placed exparte. Respondent No.2
appeared and filed written statement. The entire assertion
made in the claim petition with regard to the rash and
negligent driving of the auto rickshaw by the driver,
income of the deceased etc., have been denied. It is
contended that the said vehicle was not having valid
permit. Therefore, it is prayed to dismiss the petition.
5. Based upon the rival pleadings of the parties,
the Tribunal has framed in all four issues.
6. Before the Tribunal, to prove the case of the
claimants one Bhupathi i.e., claimant No.1 entered into
witness box as PW-1 and got marked Exs.P-1 to P-14 and
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closed the claimants' side evidence. To rebut the evidence
of the claimants, one Suraj H.T. an official of respondent
No.2 entered into witness box as RW-1 and got marked
Exs.R-1 to R5 and closed respondent's side evidence.
7. On hearing the documents and on evaluation of
the evidence, the learned Tribunal awarded the
compensation of Rs.24,33,012/- with interest @ 6% per
annum from the date of petition till its realization, to the
claimants and also directed to apportion the said amount
in between the claimants as per the apportionment. So
far as the liability is concerned, the Tribunal has fastened
the liability on respondent No.2 to pay the compensation
holding that respondent Nos.1 and 2 are jointly and
severally liable to pay the compensation.
8. Now the Insurance Company, being aggrieved
by fastening of liability on it, has come up in this appeal.
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9. So far as claimants are concerned, they have
not filed any appeal questioning the quantum of
compensation so awarded.
10. It is submitted by the learned counsel for the
appellant that this appeal is restricted with regard to the
fastening of liability only. The Insurance Company is also
not questioning the quantum of compensation. As this
appeal is restricted to fastening of liability only, now we
are not at all concerned with the quantum of
compensation so awarded by the Tribunal.
11. It is argued by the learned counsel for the
appellant that, at the time of accident, the said offending
auto rickshaw was not possessing valid permit therefore
there is violation of the policy conditions. To that effect
the Insurance Company has examined RW-1. In support
of his evidence, he has produced Exs.R1 to R5. The
evidence of RW-1 shows that there is violation of policy
condition. To that effect notice was issued to the owner of
the vehicle, there is no reply as such. She also has
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produced the Insurance Policy at Ex.R-5 wherein it is
stated that there is violation of permit condition, the
Insurance Company is not liable to pay the compensation.
Hence, she prays to fasten the liability on respondent No.1
and absolve the Insurance Company from payment of
compensation.
12. As against this, counsel for the claimant, with
all fairness submits that, so far as liability is concerned,
respondent No.1 is placed exparte and he has not
contested the petition. He submits that even if there is
violation of the policy condition, in view of the judgment of
the Hon'ble Apex Court in the case of Amrit Paul Singh &
Another vs. TATA AIG General Insurance Co. Ltd. &
others1 so also the Full Bench judgment of this Court in
New India Assurance Co. Ltd. vs. Yallavva w/o
Yamanappa Dharankeri & Another2, as the claimants are
the third parties, therefore, the rights of the third parties
cannot be affected because of violation of the permit
2019 Kant M.A.C.230 (SC)
2020 Kant MAC 91 (Kant)
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conditions. He submits that, if the fastening of liability is
modified with a direction to respondent - Insurance
Company to pay the compensation and recover the same
from the owner of the offending vehicle, it would meet the
ends of justice.
13. We have given our anxious consideration for
the arguments of both sides.
14. In this case the most of the factual features
narrated above are admitted by both sides. There was an
accident on 06.08.2022 wherein the deceased
Renukamma and others were traveling in an auto rickshaw
bearing Reg.No.KA-36/A-6461 from Amareshwar Camp on
Sindhanur - Manvi main road. Respondent No.1 was
driving the said auto rickshaw. The said accident has
taken place because of the rash and negligent driving of
the said auto rickshaw by respondent No.1. The Tribunal,
on consideration of the evidence placed on record by the
claimants and respondent No.2, has awarded a total
compensation of Rs.24,33,012/- together with interest at
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the rate of 6% per annum. Even the Tribunal has passed
an awarded awarding apportionment of the amount. Now
the question is:
Whether the Insurance Company is absolved from
payment of compensation or otherwise.
15. As per the defence of the Insurance Company,
the said auto rickshaw was not having any permit to ply
the said auto rickshaw at the place where the accident has
taken place. This fact is also conceded by the claimants.
To that effect respondents have led evidence of RW-1.
Through RW-1 Exs.R-1 to R-5 are marked. Ex.R-2 is the
notice issued to respondent No.1 - owner of the offending
vehicle calling upon him to produce the permit. Even
before the Tribunal he was placed exparte. He has not
given any reply to the notice to show that respondent No.1
was possessing the effective permit to ply the vehicle
where the said accident has taken place. So the adverse
inference has to be drawn against respondent No.1 that
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there is violation of permit condition by respondent No.1
while driving the said vehicle.
16. The Hon'ble Supreme Court in Amrit Paul
Singh's case stated supra in para-23 of the said judgment
has observed as under:
"23. In the case at hand, it is clearly demonstrable
from the materials brought on record that the vehicle
at the time of the accident did not have a permit.
The appelalnts had taken the stand that the vehicle
was not involved in the accident. That apart, they
had not stated whether the vehicle had temporary
permit or any other kind of permit. The exceptions
that have been carved out under Section 66 of the
Act, needless to emphasize, are to be pleaded and
proved. The exceptions cannot be taken aid of in the
course of an argument to seek absolution from
liability. Use of a vehicle in a public place without a
permit is a fundamental statutory infraction. We are
disposed to think so in view of the series of
exceptions carved out in Section 66. The said
situations cannot be equated with absence of license
or a fake license or a license for different kind of
vehicle, or, for that matter, violation of a condition of
carrying more number of passengers. Therefore, the
principles laid down in Swaran Singh (supra) and
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Lakhmi Chand (supra) in that regard would not be
applicable to the case at hand. That apart, the
insurer had taken the plea that the vehicle in
question had no permit. It does not require the
wisdom of the "Tripitaka", that the existence of a
permit of any nature is a matter of documentary
evidence. Nothing has been brought on record by
the insured to prove that he had a permit of the
vehicle. In such a situation, the onus cannot be cast
on the insurer. Therefore, the tribunal as well as the
High Court had directed the insurer was required to
pay the compensation amount to the claimants with
interest with the stipulation that the insurer shall be
entitled to recover the same from the owner and the
driver. The said directions are in consonance with
the principles stated in Swaran Singh (supra) and
other cases pertaining to pay and recover principle."
17. So also in the Full Bench judgment of this Court
in Yallavva's case, the Full Bench has observed that, if
there is violation of policy condition as required under the
provisions of Section 149 of M.V.Act, the Insurance
Company has to make good the compensation amount
awarded by the Tribunal and recover the same from the
owner of the offending vehicle.
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18. If the principles laid down in the afore
judgments are applied to the present facts of the case, as
in this case respondent No.1 has violated the permit
conditions, the Insurance Company has to pay the
compensation and thereafter recover the compensation
from the owner of the said offending vehicle. The learned
Tribunal has not considered this aspect while fastening the
liability on the Insurance Company.
19. In this case the appellant has admitted that the
insurance was in force as on the date of accident but there
is violation of policy condition therefore as respondent
No.1 is primarily liable to pay the compensation, the
Insurance Company has admitted the policy as on the date
of accident, the Insurance Company has to indemnify the
compensation amount and in view of the principles laid
down in the afore judgments, has to recover the same
from the owner of the offending vehicle. To that extent
the interference in the impugned judgment is required.
Accordingly, it is held that respondent No.1 is liable to pay
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the compensation, however, respondent No.2 - Insurance
Company has to pay the compensation and recover the
same.
20. The counsel for the appellant submits that the
Tribunal has awarded penal interest at the rate of 3% per
annum from the date of award till complete realization if
there is delay in depositing compensation award amount.
In view of the fastening of liability on respondent No.1, the
said imposition of penal interest is set aside.
Resultantly, we pass the following:
ORDER
(i) The appeal is allowed.
(ii) Respondent No.1 - owner of the offending
vehicle is held liable to pay the
compensation awarded by the Tribunal.
(iii) However, respondent No.2 - Insurance
Company shall deposit the compensation
amount within four weeks from today and
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recover the same in accordance with law
from respondent No.1.
(iv) In view of the fastening of liability on
respondent No.1, the imposition of penal
interest is set aside.
The statutory amount in deposit before this Court be
transferred to the Tribunal forthwith.
Sd/-
(S.SUNIL DUTT YADAV)
JUDGE
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
SWK
Ct;Vk
