Karnataka High Court
The New India Assurance vs Sri Kadurappa on 31 July, 2024
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NC: 2024:KHC:30272
MFA No. 2460 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO. 2460 OF 2014 (MV-I)
BETWEEN:
THE NEW INDIA ASSURANCE
COMPANY LTD.
TUMKUR SHOPPING COMPLEX,
1ST FLOOR, B.H. ROAD,
TUMKUR
BY ITS:REGIONAL OFFICE,
"MAHALAKSHMI CHAMBERS"
2ND FLOOR, 9/2, M.G. ROAD,
BANGALORE-560 001
...APPELLANT
(BY SRI. P B RAJU., ADVOCATE)
AND:
Digitally
signed by
BHARATHI S 1. SRI KADURAPPA
Location: S/O NARASAPPA
HIGH COURT (DEAD BY LRS)
OF
KARNATAKA
1(A) LAKSHMAMMA
AGED ABOUT 68 YEARS,
1(B) GANGAMMA
AGED ABOUT 49 YEARS
1(C) YASHODAMMA
AGED ABOUT 41 YEARS
1(D) RAJANNA
AGED ABOUT 39 YEARS
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MFA No. 2460 of 2014
1(E) PUTTAMMA
AGED ABOUT 37 YEARS
1(F) JAYAMMA
AGED ABOUT 35 YEARS
1(G) CHOWDAIAH
AGED ABOULT 33 YEARS,
PETITIONER NO.1 IS THE WIFE,
AND PETITIONER NOs.2 TO 7 ARE
THE CHILDREN OF LATE KADURAPPA
AND ALL ARE RESIDENTS OF
HULIKAL VILLAGE,
KUDUR HOBLI,
MAGADI TALUK
2. SRI VENKATESHAIAH
S/O LATE GOVINDAIAH
VIRAPURA,
SUGGANAHALLI POST
MAGADI TALUK
...RESPONDENTS
(BY SRI. HARISH N R, ADVOCATE FOR
SRI. PATEL D KAREGOWDA., ADVOCATE FOR R1 ( A TO G)
R2 SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 10.12.2013 PASSED IN MVC
NO.337/2010 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE, MACT-1, TUMKUR, AWARDING A COMPENSATION OF
RS.45,000/- WITH INTEREST @ 6% P.A FROM THE DATE OF
PETITION TILL REALIZATION AND ETC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE C.M. POONACHA
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MFA No. 2460 of 2014
ORAL JUDGMENT
1. The above appeal is filed by the insurer under Section
173(1) of Motor Vehicles Act, 19881 challenging the judgment
and award dated 10.12.2013 passed in MVC No.337/2010 by
the Additional Senior Civil Judge, MACT - XI, Tumkur2,
whereunder the Tribunal has partly allowed the claim petition
and directed respondent Nos.1 and 2 i.e., owner and insurer to
jointly and severally pay the compensation of `45,000/-
together with interest @ 6% per annum.
2. Heard submissions Sri P.B. Raju, learned counsel
appearing for the appellant and Sri Harish N.R., learned counsel
appearing for Sri Patel B. Karegoudar for respondent No.1(A to
G).
3. The sole contention putforth by the learned counsel for
the appellant is that despite there being a permit violation, the
Tribunal has erred in fastening the liability on the insurer to pay
the compensation awarded.
Hereinafter referred to as the 'Act'
Hereinafter referred to as the 'Tribunal'
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4. It is forthcoming that the insured vehicle i.e., Auto
rickshaw bearing registration No. KA/42- 4773 was issued with
a permit (Ex.R2) which discloses that the vehicle was permitted
to ply in Magadi Town and was valid up to 30.07.2014. It is
forthcoming that the insured vehicle was plying in Tumakuru
Town within the jurisdiction of Hebbur police Station at the time
of the accident.
5. Hence, it is clear that although the insured vehicle had a
permit the same was being plied beyond the limits of the said
permit and thus there was a violation of the said permit
condition.
6. It is relevant to note that the Hon'ble Supreme Court in
the case of AMRIT PAUL SINGH AND ANOTHER VS. TATA
AIG GENERAL INSURANCE COMPANY LIMITED AND
OTHERS3 held as follows:
" 24. ........ 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.
(2018) 7 SCC 558
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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. 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."
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7. In view of the settled proposition of law as held by the
Hon'ble Supreme Court as noticed above, the judgment and
award passed by the Tribunal is required to be modified to hold
that the insurer is liable to pay the compensation awarded with
liberty to recover the same from the owner of the vehicle.
Hence, the following
ORDER
i. The above appeal is partly allowed;
ii. The judgment and award dated 10.12.2013
passed in MVC No. 337/2010 by the Additional
Senior Civil Judge and MACT - XI at Tumkur is
modified to the extent of holding that the
appellant/respondent No.2- insurer shall be liable
to pay the compensation awarded with liberty to
recover the same from the owner of the vehicle -
respondent No.1;
iii. The judgment and award passed by the
Tribunal in all other respects remains unaltered;
iv. The amount deposited by the appellant in the
present appeal including the statutory deposit shall
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be transmitted to the Tribunal for disbursement in
terms of the award of the Tribunal.
SD/-
(C.M. POONACHA)
JUDGE
BS
