Karnataka High Court
The New India Assurance Co. Ltd vs Mr. Akmal Pasha on 19 February, 2024
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MFA No. 5986 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO. 5986 OF 2013
BETWEEN:
THE NEW INDIA ASSURANCE CO., LTD.,
NO.23/2, VITTAL MALLYA ROAD,
GRANT ROAD, BANGALORE - 560 001.
REPRESENTED BY ITS REGIONAL OFFICE,
NO.2B, UNITY BUILDING ANNEX,
MISSION ROAD, BANGALORE - 560 027.
REPRSENTED BY ITS MANAGER.
...APPELLANT
(BY SRI.RAVISHANKAR C.R., ADVOCATE)
AND:
1. MR. AKMAL PASHA,
AGED ABOUT 29 YEARS,
Digitally S/O SRI. AZMATHULLA SHAIK,
signed by R/O NO.1965, KADUGONDANAHALLI,
BHARATHI S
Location: SAMDHA NAGAR, BANGALORE-560 045.
HIGH COURT
OF
KARNATAKA PERMANENT ADDRESS:
# 1080, 1ST STAGE, 3RD BLOCK,
H.B.R.LAYOUT, BANGALORE-43.
2. MR.AMIRUDDIN,
MAJOR,
S/O SRI.ABDUL KHUDDUS,
R/O NO.670, GOVINDAPURA,
FARIDA SHOE FACTORY,
BANGALORE-562 106.
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MFA No. 5986 of 2013
3. MR. WASIM,
MAJOR,
S/O SRI. BASHA,
R/O NO.16, 5TH CROSS,
LALBAGH FORT ROAD,
DODDAMAVALLI, BANGALORE-02.
...RESPONDENTS
(BY SRI. R.CHANDRASHEKAR ., ADVOCATE FOR R1)
(VIDE ORDER DATED 28.10.2015 NOTICE TO R2 HELD
SUFFICIENT.)
(R3 - SERVED AND UNREPRESENTED.)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 08.05.2013 PASSED IN MVC
NO.2353/2011 ON THE FILE OF THE XVI ADDITIONAL JUDGE,
MACT, BANGALORE, AWARDING A COMPENSATION OF
Rs.2,49,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL PAYMENT.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The above appeal is filed by the Insurer challenging
the judgment and award dated 08.05.2013 passed in
MVC.No.2353/2011 by the XVI Additional Judge, MACT,
Bengaluru1.
Hereinafter referred as 'Tribunal'
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2. For the sake of convenience, the parties herein are
referred as per their rank before the Tribunal.
3. It is the case of the claimant that on 24.10.2010
when the claimant was standing in front of his house, the
driver of a car came in a high speed, in a rash and
negligent manner and hit the claimant causing the
accident in question. The claimant filed a claim petition
claiming compensation for the injuries sustained in the
said accident, arraying the owners of the car as
respondent Nos.1 and 2, and the Insurer as Respondent
No.3. The Respondent No.3 entered appearance before the
Tribunal and contested the claim proceedings. Respondent
Nos.1 and 2 remained exparte.
4. The claimant examined himself as PW.1 and the
doctor was examined as PW.2. Exs.P1 to P18 were marked
in evidence. The official of the insurer was examined as
RW.1. Exs.R1 to R6 were marked in evidence. The Tribunal
by its judgment and award dated 08.05.2013 allowed the
claim petition and awarded a total compensation of
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`2,49,000/- together with interest at 6% per annum and
directed respondent No.3 - Insurer to pay the
compensation awarded. Being aggrieved, the present
appeal is filed by the Insurer.
5. Learned counsel for the Insurer vehemently
contended that the charge sheeted driver of the insured
vehicle did not have a valid and effective driving licence to
drive the vehicle as on the date of the accident and hence
the insurer ought not to be held liable having regard to the
breach committed of the terms and conditions of the policy
of insurance. He further submitted that the charge sheet
was filed against the driver of the vehicle under Sections
279, 337 and 338 of IPC as well as, under Section 181 of
the Motor Vehicles Act for driving the insured vehicle
without a driving licence and the accused had pleaded
guilty before the criminal Court for the same. Hence, the
Tribunal erred in fastening the liability on the insurer to
pay the compensation awarded.
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6. Per contra, learned counsel for the claimant
submits that the insurer has failed in demonstrating that
the driver of the vehicle did not have a valid driving
licence to drive the insured vehicle by adducing adequate
evidence to demonstrate that the driver of the vehicle did
not have a valid licence. He further submits that, the
insurer has failed in demonstrating that the breach alleged
was so fundamental that it contributed to causing the
accident. Hence, he submits that the judgment of the
Tribunal was just and proper and claimant being a 3rd
party ought not to be penalized, due to the driver not
having a proper and valid driving licence. In support of his
contention he relies on the following judgments:
(i) Rukmini and others Vs New India Assurance
Co. Ltd., and others2
(ii) National Insurance Co.Ltd., Vs Swaran
Singh and others 3
1999 ACJ 171
2004 ACJ 1
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(iii). Pappu and others Vs Vinod Kumar Lamba
and another 4
7. The submissions made by both the learned
counsels have been considered and the material on record
have been perused including the records of the Tribunal.
The question that arises for consideration is 'whether the
finding of the Tribunal fastening the liability on the insurer
is just and proper?'
8. To the claim petition filed by the claimant, 3rd
respondent - insurer has entered appearance before the
Tribunal and filed its statement of objections, wherein it
has stated that the liability of the insurer is subject to the
terms and conditions of the policy. The insurer has also
examined its official as RW.1, who has stated that the
charge sheet has been filed against the driver of the car
under Section 3(1) of the Act including under Section 181
of the Motor Vehicles Act and it is specifically mentioned
that the driver was not having a valid driving licence.
(2018) 3 SCC
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9. The Insurer has produced the authorization letter
(Ex.R1), policy of insurance (Ex.R2), letter dated
21.06.2011 issued to respondent No.2 (Ex.R3), postal
acknowledgment (Ex.R4), certified copy of order sheet in
C.C No.1180/2011 with plea (Ex.R5) and the true copy of
the charge sheet (Ex.R6). It is forthcoming from Ex.R5
that in the accusation made against the driver of the car it
was alleged that he had no valid driving licence and that
he has committed an offences punishable under Section
3(1) read with Section 181 of the Motor Vehicles Act and
the accused has pleaded guilty to the said charge and he
was sentenced to pay a fine of `3,000/-.
10. Section 3(1) and Section 181 of the Motor
Vehicles Act reads as follows:
3(1). Necessity for driving licence.--(1) No person
shall drive a motor vehicle in any public place unless he
holds an effective driving licence issued to him
authorising him to drive the vehicle; and noperson
shall so drive a transport vehicle [other than 3[a motor
cab or motor cycle] hired for his own use or rented
under any scheme made under sub-section (2) of
section 75] unless his driving licence specifically
entitles him so to do.
181. Driving vehicles in contravention of section
3 or section 4.--Whoever, drives a motor vehicle in
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contravention of section 3 or section 4 shall be
punishable with imprisonment for a term which may
extend to three months, or with fine which may extend
to five hundred rupees, or with both.
(emphasis supplied)
11. The Hon'ble Supreme Court in the case of
RUKMINI2 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 under Section 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 licence, 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 respondent No.1 did not produce the
licence to drive the abovesaid scooter. The
respondent No.1 even after my demand did not
submit the licence 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
respondent No.1 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 Regional Transport
Authority has also been produced. In these
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circumstances, the insurance company has not
discharged the burden cast upon it under section
96(2) (b) (ii) of the Motor Vehicles Act, 1939.
The impugned order of the High Court is,
therefore, set aside and the order of the Tribunal
is restored. The appeal is allowed accordingly. No
order as to costs.
(emphasis supplied)
12. The Hon'ble Supreme Court in the case of
NATIONAL INSURANCE COMPANY2 held as follows:
"110. The summary of our findings to the various issues
as raised in these petitions is as follows:
(i) xxx
(ii) xxx
(iii) xxx
(iv) Insurance Companies, however, with a view to
avoid their liability must not only establish the
available defence(s) raised in the said proceedings
but must also establish "breach" on the part of the
owner of the vehicle; the burden of proof wherefore
would be on them.
(v) The Court cannot lay down any criteria as to how
the said burden would be discharged, inasmuch as
the same would depend upon the facts and
circumstances of each case.
(vi) Even where the insurer is able to prove breach
on the part of the insured concerning the policy
condition regarding holding of a valid licence by the
driver or his qualification to drive during the relevant
period, the insurer would not be allowed to avoid its
liability towards the insured unless the said breach or
breaches on the condition of driving licence is/are so
fundamental as are found to have contributed to the
cause of the accident. The Tribunal in interpreting the
policy conditions would apply "the rule of main
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purpose" and the concept of "fundamental breach" to
allow defences available to the insurer under Section
149(2) of the Act.
(x) Where on adjudication of the claim under the Act
the Tribunal arrives at a conclusion that the insurer
has satisfactorily proved its defence in accordance
with the provisions of Section 149(2) read with sub-
section (7), as interpreted by this Court above, the
Tribunal can direct that the insurer is liable to be
reimbursed by the insured for the compensation and
other amounts which it has been compelled to pay to
the third party under the award of the Tribunal. Such
determination of claim by the Tribunal will be
enforceable and the money found due to the insurer
from the insured will be recoverable on a certificate
issued by the Tribunal to the Collector in the same
manner under Section 174 of the Act as arrears of
land revenue. The certificate will be issued for the
recovery as arrears of land revenue only if, as
required by sub-section (3) of Section 168 of the Act
the insured fails to deposit the amount awarded in
favour of the insurer within thirty days from the date
of announcement of the award by the Tribunal."
(emphasis supplied)
13. The Hon'ble Supreme Court in the case of
PAPPU AND OTHERS2 held as follows:
19. In the present case, the owner of the vehicle
(Respondent No.1) had produced the insurance
certificate indicating that Vehicle No. DIL 5955 was
comprehensibly insured by Respondent No.2 (insurance
company ) for unlimited liability. Applying the dictum in
National Insurance Co.Ltd.2, to subserve the ends of
justice, the insurer (Respondent 2) shall pay the claim
amount awarded by the Tribunal to the appellants in
the first instance, with liberty to recover the same from
the owner of the vehicle (Respondent 1 ) in accordance
with law.
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14. The Tribunal appreciating the fact situation has
noticed that the charge sheet was filed by the police
against the driver of the vehicle who was held guilty for
the offence punishable under Section 3(1) and read with
Section 181 of the Motor Vehicles Act. The Tribunal has
noticed that in the cross examination of RW.1, wherein he
had deposed that he did not enquire about the driver of
the offending vehicle.
15. It is relevant to note that the Division Bench of
this Court in the case of ADILAKSHMAMMA V/S SRI
RAJU B.5 after noticing the cases of RUKMINI3,
SWARAN SINGH3 and PAPPU3, has held that if the driver
of the insurer vehicle did not possess a driving licence, the
insurer is not liable to pay the compensation.
16. In the present case, the insurer has produced the
charge sheet (Ex.P6) as well as the order passed in
C.C No.1180/2010 (Ex.P5) which clearly demonstrates
that the driver has pleaded guilty of the charge under
MFA No.3297/2019 order dated 13.04.2023
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Sections 3(1) read with Section 181 of the Motor Vehicles
Act. The insurer had also issued notice to its insured to
produce the necessary details and particulars and the said
notice has been served.
17. Having regard to the same, this Court being
bound by the Division Bench judgment in the case of
ADILAKSHMAMMA2, is required to accept the plea made
by the insurer, and it is required to exonerate the insurer
from payment of compensation and direct that the owners
of the vehicle who are arrayed as respondent Nos.1 and 2
before the Tribunal and respondent Nos.2 and 3 in the
present appeal, to pay the compensation awarded. Hence,
the question framed for consideration is answered in the
negative.
18. In view of the aforementioned, the following
order is passed:
ORDER
i) The above appeal is allowed;
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ii) The judgment and award dated
08.05.2013 passed in MVC No. 2353/2011
on the file of the XVI Additional Judge,
MACT, Bengaluru, is modified to the extent
ordered herein. In all other respects, the
judgment and award of the Tribunal
remain unaltered;
iii) The claim petition as against the insurer
who is arrayed as Respondent No.3 before
the Tribunal and appellant before the Court
is dismissed;
iv) The compensation awarded by the Tribunal
herein who are arrayed as respondent
Nos.1 and 2 before the Tribunal;
v) The amount deposited by the Appellant in
the present appeal be refunded to the
Appellant;
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vi) Registry to draw the modified award
accordingly;
vii) No costs.
SD/-
JUDGE
RMS
