Karnataka High Court
Mariyappa vs Manjesh on 28 February, 2024
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
-1-
NC: 2024:KHC:8182
MFA No. 3275 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
MISCELLANEOUS FIRST APPEAL NO.3275 OF 2014(MV-I)
BETWEEN:
MARIYAPPA
S/O LATE SIDDALINGAIAH,
47 YEARS,
R/AT NO.155, ADAKIMARANAHALLI,
TUMKUR ROAD, BANGALORE.
PERMANENT R/AT GUDEMARANAHALLI @ POST,
MAGADI TALUK, RAMANAGARA DISTRICT.
...APPELLANT
(BY SRI. SHRIPAD.V.SHASTRI., ADVOCATE)
AND:
1. MANJESH
S/O MARISWAMAIAH,
MAJOR,
R/AT T.BEGUR, NELAMANAGALA TALUK,
Digitally signed by BENGALURU RURAL DISTRICT-562 123.
THEJASKUMAR N
Location: HIGH
COURT OF 2. RELIANCE GENERAL INSURANCE CO.LTD.,
KARNATAKA NO.28, EAST WING, V FLOOR,
CENTENARY BUILDING, M.G.ROAD,
BENGALURU-560 001.
REPRESENTED BY ITS MANAGER.
...RESPONDENTS
(BY R1-NOTICE DISPENSED WITH V/O DATED:26.02.2024)
SRI. ASHOK.N.PATIL., ADVOCATE FOR R2;
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED: 26.08.2013
PASSED IN MVC NO.1243/2012 ON THE FILE OF III ADDL.
-2-
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MFA No. 3275 of 2014
SENIOR CIVIL JUDGE AND MACT, BANGALORE (SCCH-18),
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR
HEARING ON INTERLCUTRY APPLICATION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Sri.Shripad.V.Shastri., learned counsel for the appellant
has appeared through video conferencing.
Sri.Ashok.N.Patil., learned counsel for respondent No.2
has appeared in person.
Though the appeal is listed today for hearing on
interlocutory application, with the consent of learned counsel
for the respective parties, it is heard finally.
2. For the sake of convenience, the parties are
referred to as per their status and ranking before the Tribunal.
3. Learned counsel for the appellant Sri.Sripad
V.Shastri., submits that if the finding of the Tribunal with
regard to the liability is considered, the appellant would not
press the appeal with regard to enhancement of compensation.
He further submits that the Tribunal has directed the owner of
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the vehicle to pay the compensation awarded having regard to
the fact that there was violation of the permit condition and
that having regard to the judgment of the Hon'ble Supreme
Court in the case of AMRIT PAUL SINGH VS. TATA AIG
GENERAL INSURANCE CO. LTD., reported in (2018) 7 SCC
558, the compensation is required to be paid by the insurer,
who in turn is entitled to recover the same from the owner of
the vehicle.
4. Per Contra, learned counsel Sri.Ashok N.Patil.,
appearing for the second respondent - insurer submits that
although in terms of the judgment in AMRIT PAUL SINGH's
case, the insurer is liable to pay the compensation, that the
Tribunal while awarding compensation has ordered for payment
of the same together with interest at 8% per annum and that
the award of interest at 8% per annum is contrary to the
judgment of the Division Bench of this Court in the case of
MS.JOYEETA BOSE AND OTHERS Vs. VENKATESHAN.V
AND OHERS in MFA No.5896/2018 disposed of on
24.08.2020 and submits that the interest is required to be
awarded at 6%.
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5. Heard the contentions urged on behalf of the
respective parties and perused the appeal papers and also the
records with utmost care.
6. The following points would arise for consideration:
1. Whether the second respondent is liable to pay
the compensation awarded and recover the
same from the owner?
2. Whether the interest is required to be ordered
at 6% per annum?
7. It is relevant to note that considering the aspect
regarding the vehicle in question i.e., auto rickshaw had the
requisite permit, it was noticed that the accident had occurred
between Athingere and Gollaradoddi Village and the complaint
has been registered in the jurisdiction of Magadi Police Station,
Ramanagara District. That as per the permit - Ex.R3, the auto
rickshaw was required to ply within the radius of 10 km from
Nelamangala Rural, but the place of accident is more than
10 km. The Tribunal has recorded a finding that there is
violation of policy condition and held that the owner is liable to
pay the composition awarded.
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8. In the case of AMRIT PAUL SINGH, the Hon'ble
Supreme Court after considering the aspect of violation of
permit condition has held as follows:
"24. 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 appellants 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 emphasise, 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
licence or a fake licence or a licence 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 [National
Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC
297 : 2004 SCC (Cri) 733] and Lakhmi Chand
[Lakhmi Chand v. Reliance General Insurance,
(2016) 3 SCC 100 : (2016) 2 SCC (Civ) 45] in that
regard would not be applicable to the case at hand.
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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 that 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 [National
Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC
297 : 2004 SCC (Cri) 733] and other cases
pertaining to pay and recover principle."
(emphasis supplied)
9. In view of the judgment of the Hon'ble Supreme
Court as noticed above, the judgment and award of the
Tribunal is required to be interfered with only to the extent of
directing the second respondent - insurer to pay the
compensation awarded with liberty to recover the same from
the owner of the vehicle in question. Accordingly, point No.1 is
answered in the affirmative.
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10. The Tribunal has awarded interest at 8% per
annum. Learned counsel for the insurer is justified in
contending that the Division Bench of this Court in the case of
MS.JOYEETA BOSE has held that the interest is liable to be
paid at 6% per annum and that the same is required to be
applied in the present case also. Learned counsel for the
appellant does not dispute the position of law held by the
Division Bench in MS.JOYEETA BOSE's case. Hence, as the
judgment of the Division Bench is binding on this Court, it is
just and proper that the interest awarded by the Tribunal also
be interfered to direct payment of interest at 6% per annum.
Accordingly, point No.2 is answered in the affirmative.
11. In view of the aforementioned, the following:
ORDER
i) The appeal is allowed in part;
ii) The judgment and award dated:26.08.2013
passed in MVC No.1243/2012 passed by the III
Additional Senior Civil Judge and MACT,
Bangalore (SCCH-18), is modified to the extent
stated herein. In all other respects, the
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judgment and award of the Tribunal remain
unaltered;
iii) The appellant/ claimant is entitled to the
compensation awarded by the Tribunal with
interest at 6% per annum from the date of
petition till its realization.
iv) Respondent No.2 - Insurance Company is
directed to deposit the compensation awarded
together with accrued interest within a period
of six weeks from the date of receipt of a copy
of the judgment;
v) The Registry to draw the modified award
accordingly.
vi) No costs.
vii) Needless to observe that the appellant/
claimant is not entitled for the interest for
delayed period.
Sd/-
JUDGE
MRP
