Karnataka High Court
The New India Assurance Co Ltd vs Sri Shiva Marakala on 1 March, 2024
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
-1-
NC: 2024:KHC:8628
MFA No. 5380 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF MARCH, 2024
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
MISCELLANEOUS FIRST APPEAL NO. 5380 OF 2015 (WC)
BETWEEN:
THE NEW INDIA ASSURANCE CO.LTD.,
REPRESENTED BY ITS DIVISIONAL MANAGER,
DIVISIONAL OFFICE, 2ND FLOOR, SRIRAM ARCADE,
OPP. HEAD POST OFFICE, UDUPI,
REPRESENTED BY THE MANAGER,
THE NEW INDIA ASSURANCE CO.LTD.,
MOTOR TP APPEALS HUB,
2ND FLOOR, MAHALAKSHMI CHAMBERS,
9/2, M.G.ROAD, BANGALORE-01.
...APPELLANT
(BY SRI. A.N.KRISHNASWAMY., ADVOCATE)
AND:
1. SRI. SHIVA MARAKALA
S/O SHEENA MARKALA,
Digitally signed by (SINCE DECEASED, R2 IS TREATED
THEJASKUMAR N AS LR OF R1 V/O DATED:05.03.2020)
Location: HIGH
COURT OF
KARNATAKA 2. SMT. JALAJA MARAKALA
W/O SHIVA MARAKALA,
R/AT KELEMANE,
MATHRISHRI MOGAVEERA PETE,
PEJAMANGURU VILLAGE,
KOKKARNE POST,
UDUPI TALUK AND DISTRICT - 576 101.
3. SRI.KARUNAKAR
S/O PADDA MARAKALA,
PROPRIETOR,
STANDARD AUTO CORPORATION,
-2-
NC: 2024:KHC:8628
MFA No. 5380 of 2015
5/291/B, RAJEEV BUILDING,
V.P.NAGAR, UDUPI - 576 101.
...RESPONDENTS
(R2 AND 3 - SERVED AND UNREPRESENTED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 30(1) OF THE EMPLOYEES COMPENSATION ACT,
1923, AGAINST THE JUDGMENT DATED: 18.03.2015 PASSED
IN ECA.NO.1/2014 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE, ADDITIONAL MACT, UDUPI.
THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Sri.A.N.Krishnaswamy., learned counsel for the appellant
has appeared in person.
Since question of law is framed and matter is admitted,
with the consent of learned counsel for the appellant, it is heard
finally.
2. Notice to respondents was ordered on 25.04.2016.
A perusal of the office note depicts that respondents 2 and 3
are served and unrepresented. They have neither engaged the
services of an advocate nor conducted the case as party in
person.
NC: 2024:KHC:8628
3. For the sake of convenience, the parties shall be
referred to as per their rankings before the Tribunal.
4. The brief facts are these:
The claimants are the parents of the deceased. It is said
that the deceased was aged 22 years and he was working as a
salesman and delivery boy under the first respondent's
Standard Auto Corporation. On the 11th day of May, 2005 at
about 11:45 am., the deceased was taking the first
respondent's vehicle Kinetic Honda bearing Registration No.KA-
20-K-1833, near Abhinethri Complex, Chantharu Village, Udupi
Taluk, the vehicle got skid and deceased fell down and badly
injured on the head and died on the spot. Contending that the
accident occurred during the course of employment, the
dependants of the deceased filed a petition under Section 22 of
the Employees Compensation Act seeking compensation.
In response to the notice, the first respondent appeared
through his counsel and filed written statement and contended
that the deceased died when he was proceeding in the
motorcycle and he was working as salesman and the accident
NC: 2024:KHC:8628
occurred due to the negligence of the deceased and contended
that the Insurance company is liable to pay the compensation.
The second respondent - Insurance company appeared
through its counsel and filed written statement and contended
that deceased was not employed under the first respondent and
it is not the accident during the course of employment. It is
also vehemently contended that the deceased was not
possessing valid driving license as on the date of accident.
Among other grounds, it prayed for dismissal of the petition.
Based on the above pleadings, the MACT framed Issues.
The parties led evidence and marked the documents. The MACT
vide Judgment and award dated:18.03.2015 partly allowed the
petition and awarded compensation of Rs.3,32,055/- (Rupees
Three Lakh Thirty Two Thousand and Fifty Five only) with
interest at the rate of 12% per annum from 12.06.2005 till the
date of actual deposit. It is this Judgment that is called into
question in this appeal on several grounds as set-out in the
Memorandum of appeal.
5. This Court vide order dated:01.03.2024 framed the
following substantial questions of law:
NC: 2024:KHC:8628
1. Whether the MACT is justified in coming to
conclusion that the death caused was during
and under the course of employment?
2. Whether the MACT is justified in fixing the
liability on the Insurance Company to pay
compensation when the driver had no license
to ride two wheeler vehicle?
6. Sri.A.N.Krishnaswamy., learned counsel for the
appellant in presenting his arguments strenuously contended
that the Judgment of the MACT is liable to be set-aside on two
counts; first is accident did not occur during the course of
employment and the second is that the deceased was not
having valid driving license as on the date of accident. He drew
the attention of the Court to the decision of BELI RAM VS.
RAJINDER KUMAR AND ANOTHER reported in AIR 2020 SC
4453.
Heard, the contentions urged on behalf of the appellant
and perused the appeal papers and the decision with utmost
care.
NC: 2024:KHC:8628
7. The facts are sufficiently stated and do not require
reiteration. Suffice it to note that the deceased was riding the
first respondent's vehicle Kinetic Honda bearing Registration
No.KA-20-K-1833. The first claimant being the father of the
deceased in the cross examination admits that his son was on
his way to home to attend the function and at that time
accident occurred. If that be so, the death caused was not
during the course of employment. This aspect of the matter has
been over-looked by the MACT. Furthermore, the MACT having
come to the conclusion that the deceased was not having valid
driving license as on the date of accident, has erred in fixing
the liability on the Insurance company.
The Apex Court in the decision referred to supra has held
that a person when he hands his motor-vehicle to a driver owes
some responsibility to Society at large. Lives of innocent people
are put to risk in case the vehicle is handed over to a person
not duly licensed. Therefore, there must be some evidence to
show that the owner had either checked the driving license or
had given instructions to his driver to get his driving license
renewed on expiry thereof. The Apex Court has also held that if
there is a breach of terms of the policy and the Insurance
NC: 2024:KHC:8628
Company cannot be held liable to satisfy the claim. In the
present case, the deceased was not having valid driving
license. Hence, the decision of the Apex Court is squarely
applicable to the facts and circumstances of the case. Hence, I
have no hesitation to set-aside the Judgment of the MACT in so
far as fixing the liability on the Insurance company to pay the
compensation.
The questions of law framed by this Court are answered
accordingly.
For the reasons stated above, the Judgment
dated:18.03.2015 passed by the Prl. Senior Civil Judge, Udupi
and Addl. MACT, Udupi in E.C.A.No.1/2014 is liable to be set-
aside in so far as fixing the liability on the Insurance company
is concerned. Accordingly it is set-aside. The Insurance
company is exonerated from the liability of payment of
compensation.
8. In view of the fact that the Insurance Company is
exonerated from the liability of payment of compensation, the
first respondent is directed to satisfy the compensation
awarded by the Tribunal.
NC: 2024:KHC:8628
9. Resultantly, the Miscellaneous First Appeal is
allowed.
Office is directed to transmit the amount in deposit to the
Tribunal forthwith for refund of the same to the Insurance
Company.
Sd/-
JUDGE
TKN
