Karnataka High Court
Branch Manager vs Kum M S Shreya on 5 January, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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MFA No. 2804 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.2804 OF 2018 (MV-I)
BETWEEN:
BRANCH MANAGER,
UNITED INDIA INSURANCE CO.. LTD.,
P.B. NO.16, S.B.L.T BUILDING,
POLYTECHNIC ROAD, CHINTAMANI.
PIN - 563125
POLICY NO.071502/31/11/02/00010053,
VALID FROM 4-2-2012 TO 3-2-2013.
REPRESENTED BY DEPUTY MANAGER,
UNITED INDIA INSURANCE CO..LTD.,
R.O 6TH FLOOR, KRISHI BHAVAN,
HUDSON CIRCLE,
BANGALORE - 560 001.
...APPELLANT
Digitally signed by
RAMYA D
Location: HIGH
(BY SRI. RAVISH BENNI, ADVOCATE)
COURT OF
KARNATAKA
AND:
1. KUM. M.S. SHREYA,
D/O SRINIVAS. M.S,
R/O MUDDALINGANA DODDI VILLAGE,
HULIYUR DURGA, KUNIGAL TALUK
TUMKUR DISTRICT.
PETITIONER BEING MINOR REPRESENTED BY HER
NATURAL MOTHER BY NAME SMT. ASHWINI.H.R,
PETITIONER 1, W/O SRINIVAS M.S.
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MFA No. 2804 of 2018
AGED ABOUT 31 YEARS
PETITIONER AS HER GUARDIAN AND NEXT FRIEND.
2. KRISHNA T.N.,
S/O LINGEGOWDA
NO.362, 6TH CROSS,
BALAJI TALKIES ROAD,
MARALA HOLA, MANALARAPET
CHENNAPATNA, RAMANAGARA DISTRICT
OWNER OF THE HERO HONDA SPLENDER MOTOR
BIKE BEARING KA-42-E-7434 AS PER POLICY.
3. SULTAN,
S/O IMAM SAHEB,
NO.29/D, AZEEZ NAGAR WEST SIDE
KANAKAPURA TOWN,
RAMANAGARA DISTRICT,
OWNER OF THE HERO HONDA SPLENDER MOTOR
BIKE BEARING KA-42-E-7434 AS PER R.C.
PLACED EX PARTE
...RESPONDENTS
(BY SRI. G.M.ANANDA, ADVOCATE FOR R1;
R2 AND D3 NOTICE SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED29.11.2017 PASSED IN MVC
NO.233/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC, AND MACT-XV, KUNIGAL, AWARDING COMPENSATION
OF RS.55,000/- WITH INTEREST AT 6% P.A. FROM THE DATE
OF PETITION TILL THE DATE OF DEPOSIT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 2804 of 2018
JUDGMENT
This appeal is filed by the insurance company
questioning the liability fastened on it by the Tribunal.
2. The factum of accident, the injuries sustained
by the claimant and coverage of insurance, are not in
dispute.
3. Heard the arguments of learned counsel for
both sides and perused the records. The only dispute that
arises for consideration is, whether the insurance company
is liable to pay the compensation or not?
4. In the present case, the Tribunal while
determining the compensation has fastened liability on the
appellant/insurance company. It is the ground urged by
the learned counsel for the appellant/insurance company
that driver did not have valid driving licence to ride the
motorcycle. The charge sheet is filed against the rider of
the motorcycle that he was not having driving licence.
Therefore, the appellant/insurance company has proved its
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defence that the rider was not having driving licence to
ride the motorcycle and as such, the appellant/insurance
company is exonerated from paying the compensation.
9. However, as per Sub-section (2) of Section 149
of Motor Vehicle Act, when the Insurance Company
established the fact that the driver was not holding driving
licence, then as per Sub-sections (1), (4), (7) of Section
149 of Motor Vehicle Act, the Insurance Company as if the
judgment debtor shall satisfy the claim in respect of third
parties and then recover the same from the owner of the
lorry. Accordingly, the order of pay and recovery is made
as per the principle of law laid down by the Hon'ble
Supreme Court in the cases of PAPPU AND OTHERS Vs.
VINOD KUMAR LAMBA AND ANOTHER1; NATIONAL
INSURANCE COMPANY LIMITED VS. SWARAN
SINGH AND OTHERS 2 and also as per the full bench
decision of this Court in the case of NEW INDIA
ASSURANCE COMPANY LIMITED VS. YELLAVVA AND
(2018) 3 SCC 208
(2004) 3 SCC 297
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ANOTHER3. Accordingly, an order of pay and recovery is
made. To this extent, the judgment and award passed by
the Tribunal is modified.
6. The appellant/insurance company shall pay
compensation to the claimant at the first instance and
then recover the same from the respondent No.2/owner
and for the recovery of the amount, the
appellant/insurance company is at liberty to file execution
petition before the jurisdictional Executing Court and may
also seek attachment of movables or immovable
properties till the recovery is made. Accordingly, the
claimant is entitled for the compensation as awarded by
the Tribunal.
ORDER
i. The appeal is allowed-in-part.
ii. The impugned judgment and award
dated 29.11.2017 in MVC No.233/2014
passed by the Senior Civil Judge and
2020 ACJ 2560
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MACT-XV, Kunigal, awarding
compensation of Rs.55,000/- along with
interest at 6% p.a. from the date of
petition till realisation, is modified to the
extent that appellant/insurance
company is directed to pay the
compensation to the claimant at the first
instance and then recover the same
from respondent No.3/owner.
iii. Amount in deposit shall be transmitted
to the jurisdictional Tribunal forthwith.
iv. No order as to costs.
v. Draw award accordingly.
Sd/-
JUDGE
DR
