Karnataka High Court
M/S National Insurance Company Ltd vs Smt Venkatalakshmamma on 29 May, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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MFA No.7393/2022 C/W
MFA No.7396/2022 MFA No.7397/2022
MFA No.7398/2022 MFA No.7402/2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
MFA No.7393/2022(MV-I)
C/W
MFA No.7396/2022, MFA No.7397/2022,
MFA No.7398/2022 AND MFA NO.7402/2022
IN MFA NO.7393/2022:
BETWEEN:
M/S NATIONAL INSURANCE CO. LTD.,
SUBHARAM COMPLEX,
NO.144, M.G. ROAD,
BANGALORE - 560 001.
REPRESENTED BY
MS. REKHA S. MENON, DEPUTY MANAGER.
...APPELLANT
(BY SMT. GEETHA RAJ., ADVOCATE)
Digitally AND:
signed by
SOWMYA D 1. MR. G. BABU PRASAD,
S/O KULLAYAPPA,
Location:
High Court AGED ABOUT 42 YEARS,
of Karnataka R/AT NO.107/3,
7TH CROSS, MAGADI ROAD,
CHOLURPALYA,
BANGALORE-560 023.
2. MRS. PUSHPALATHA,
W/O KATE VEDAMURTHY,
NO.22-1, PURA,
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MANDYA TALUK AND DISTRICT,
MANDYA - 571 401.
...RESPONDENTS
(BY SRI. MANJUNATHA REDDY T., ADVOCATE FOR R1;
SRI. RAMANJANAIAH H., ADVOCATE FOR R2)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 31.05.2022 PASSED IN MVC
NO.3690/2016 ON THE FILE OF THE MEMBER, PRL. MACT,
BENGALURU SCCH-1, AWARDING COMPENSATION OF
RS.1,38,000/- WITH INTEREST AT 6 PERCENT P.A. FROM THE
DATE OF PETITION TILL REALIZATION.
IN M.F.A NO.7396/2022:
BETWEEN:
M/S NATIONAL INSURANCE COMPANY LTD.,
SUBHARAM COMPLEX,
NO.144, M.G. ROAD,
BANGALORE - 560 001.
REPRESENTED BY
MS. C.K. PARIMALA,
ASSISTANT MANAGER.
...APPELLANT
(BY SMT. GEETHA RAJ., ADVOCATE)
AND:
1. MASTER JAGANNATH,
S/O G. BABU PRASAD,
AGED ABOUT 16 YEARS,
MINOR,
REPRESENTED BY HIS NATURAL
GUARDIAN FATHER G.BABU PRASAD S/O
KULLAYAPPA,
AGED ABOUT 42 YEARS,
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RESIDING AT NO.107/3,
7TH CROSS,
MAGADI ROAD, CHOLURPALYA,
BANGALORE - 560 023.
2. MRS. PUSHPALATHA,
W/O KATE VEDAMURTHY,
NO.22-1, PURA,
MANDYA TALUK AND DISTRICT,
MANDYA - 571 401.
...RESPONDENTS
(BY SRI. GANGARAJU C., ADVOCATE AND
SRI. MANJUNATHA REDDY, ADVOCATE FOR R1;
SRI. RAMANJANAIAH H., ADVOCATE FOR R2)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 31.05.2022 PASSED IN MVC
NO.3691/2016 ON THE FILE OF THE MEMBER, PRL. MACT,
BENGALURU SCCH-1, AWARDING COMPENSATION OF
RS.40,000/- WITH INTEREST AT 6 PERCENT P.A. FROM THE
DATE OF PETITION TILL REALIZATION.
[
IN MFA NO.7397/2022:
BETWEEN:
M/S NATIONAL INSURANCE COMPANY LTD.,
SUBHARAM COMPLEX,
NO.144, M.G. ROAD,
BANGALORE - 560 001.
REPRESENTED BY
MS. C.K. PARIMALA,
ASSISTANT MANAGER.
...APPELLANT
(BY SMT. GEETHA RAJ., ADVOCATE)
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AND:
1. SMT. VENKATALAKSHMAMMA,
W/O KULLAYAPPA,
AGED ABOUT 71 YEARS,
RESIDING AT NO.107/3,
7TH CROSS,
MAGADI ROAD,
CHOLURPALYA,
BANGALORE - 560 023.
2. MRS. PUSHPALATHA,
W/O KATE VEDAMURTHY,
NO.22-1, PURA,
MANDYA TALUK AND DISTRICT
MANDYA - 571 401.
...RESPONDENTS
(BY SRI. GANGARAJU. C, ADVOCATE AND
SRI. MANJUNATHA REDDY, ADVOCATE FOR R1;
SRI. RAMANJANAIAH H., ADVOCATE FOR R2)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 31.05.2022 PASSED IN MVC
NO.3693/2016 ON THE FILE OF THE MEMBER, PRL. MACT,
BENGALURU SCCH-1, AWARDING COMPENSATION OF
RS.4,68,000/- WITH INTEREST AT 6 PERCENT P.A. ONLY ON
RS.4,28,000/- FROM THE DATE OF PETITION TILL
REALIZATION.
IN MFA NO.7398/2022:
BETWEEN:
M/S NATIONAL INSURANCE COMPANY LTD.,
SUBHARAM COMPLEX,
NO.144, M.G. ROAD,
BANGALORE - 560 001.
REPRESENTED BY
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MS. C.K. PARIMALA, ASSISTANT MANAGER.
...APPELLANT
(BY SMT. GEETHA RAJ., ADVOCATE)
AND:
1. MRS. G. KRISHNAVENI,
W/O G.BABU PRASAD,
AGED ABOUT 39 YEARS,
RESIDING AT NO.107/3,
7TH CROSS, MAGADI ROAD,
CHOLURPALYA,
BANGALORE - 560 023.
2. MRS. PUSHPALATHA,
W/O KATE VEDAMURTHY,
NO.22-1, PURA,
MANDYA TALUK AND DISTRICT
MANDYA - 571 401.
...RESPONDENTS
(BY SRI. GANGARAJU C., ADVOCATE AND
SRI. MANJUNATHA REDDY, ADVOCATE FOR R1;
SRI. RAMANJANAIAH H., ADVOCATE FOR R2)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 31.05.2022 PASSED IN MVC
NO. 3692/2016 ON THE FILE OF THE MEMBER, PRL. MACT,
BENGALURU SCCH-1, AWARDING COMPENSATION OF
RS.50,000/- WITH INTEREST AT 6 PERCENT P.A. FROM THE
DATE OF PETITION TILL REALIZATION.
IN MFA NO.7402/2022:
BETWEEN:
M/S. NATIONAL INSURANCE COMPANY LTD.,
SUBHARAM COMPLEX,
NO.144, M.G. ROAD,
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BANGALORE - 560 001.
REPRESENTED BY
MS. C.K. PARIMALA, ASSISTANT MANAGER
...APPELLANT
(BY SMT. GEETHA RAJ., ADVOCATE)
AND:
1. MR. KULLAYAPPA @ GUGUDU,
S/O GUGUDU KULLAYAPPA,
AGED ABOUT 76 YEARS,
RESIDING AT NO.107/3,
7TH CROSS,
MAGADI ROAD,
CHOLURPALYA BANGALORE - 560 023.
SINCE DEAD BY LR'S.
1) MR. GUDUGU BABU PRASAD,
S/O LATE GUDUGU KULLAYAPPA,
AGED ABOUT 42 YEARS,
RESIDING AT NO.18/1,
12TH CROSS,
NEAR GANESHA TEMPLE ROAD,
CHOLURPALYA BANGALORE - 560 023.
2) MR. GUDUGU SHIVA SHANKAR,
S/O LATE GUDUGU KULLAYAPPA,
AGED ABOUT 36 YEARS.
RESIDING AT NO.7-81,
KUMMARI STREET,
TADPATHRI, ANANTHAPURA DISTRICT,
ANDHRAPRADESH - 519 411.
3) MR. GUDUGU PEDDIRAJU,
S/O LATE GUDUGU KULLAYAPPA,
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AGED ABOUT 31 YEARS.
RESIDING AT NO.7-81,
KUMMARI STREET,
TADPATHRI,
ANATHAPURA DISTRICT,
ANDHRAPRADESH - 519 411.
4) MR. GUDUGU VENKTALAKSHMAMMA,
W/O LATE GUDUGU KULLAYAPPA,
AGED ABOUT 71 YEARS,
RESIDING AT NO.8/195-2,
BANAKAMATI STREET,
TADPATHRI, ANATHAPURA DISTRICT,
ANDHRAPRADESH - 519 411.
5) MRS. PUSHPALATHA,
W/O KATE VEDAMURTY,
NO.22-1, PURA,
MANDYA TALUK AND DISTRICT,
MANDAY - 571 401.
...RESPONDENTS
(BY SRI. GANGARAJU C., ADVOCATE AND
SRI. MANJUNATHA REDDY, ADVOCATE FOR R1 AND R4;
SRI. RAMANJANAIAH, ADVOCATE FOR R5)
THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DT.31.05.2022 PASSED IN MVC
NO.4123/2016 ON THE FILE OF THE PRL. MACT, MEMBER,
BENGALURU, (SCCH-1), AWARDING COMPENSATION OF
RS.13,64,801/- WITH INTEREST AT 6 PERCENT P.A. FROM THE
DATE OF PETITION TILL REALIZATION.
THESE APPEALS COMING ON FOR 'DICTATING
JUDGEMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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COMMON JUDGMENT
All these appeals are filed by the appellant/Insurance
Company, who is Respondent No.1 before the Tribunal
under Section 173(1) of M.V. Act, 1988, challenging the
common Judgment dated 31.05.2022 passed by the
Member, Principal MACT, Bengaluru, in MVC
No.3690/2016, 3691/2016, 3692/2016, 3693/2016 and
4123/2016.
2. The brief factual matrix leading to the case are
that, respondent No.2-Pushpalatha is the owner of the car
bearing No.KA.41/2184 and the said vehicle was returning
towards Bengaluru on 20.05.2016 at 10.30 p.m., near
Kiraganduru Gate, Mandya, it met with an accident. As a
result, the petitioners/claimants sustained grievous
injuries in the said accident. Hence, the
petitioners/claimants have filed the claim petitions for
seeking compensation under Section 166 of M.V. Act.
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3. Respondent No.1-Insurance Company, who is the
appellant herein has resisted the claim petition on various
grounds. The specific defence raised by the Insurance
Company is that the driver was not holding a valid and
effective Driving Licence and there is breach of policy
conditions and thereby disputed the liability.
4. The Tribunal after appreciating the oral and
documentary evidence has allowed the petitions in-part by
awarding compensation to the petitioners/claimants by
fastening the liability of both Respondent Nos.1/Insurance
Company and Respondent No.2- Owner and primary
liability is fastened on Respondent No.1/Insurance
company, the appellant herein.
5. Being aggrieved by the impugned Judgment of
fastening the liability on the Insurance
Company/Respondent No.1 in the claim petitions is before
this Court by filing this appeal.
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6. Heard the learned counsel for the
appellant/Insurance Company and learned counsel for the
respondents/claimants. Perused the records.
7. Learned counsel for the appellant/Insurance
Company would contend that, admittedly RW.5-Smt.
Pushpalatha is the owner of the vehicle and RW.2-
Sri.Sandesh K.S., who was the driver of the offending car
was possessing only Learner's Licence Registration (LLR)
and it cannot be termed as a valid driving license to
consider that he is duly authorised to drive the vehicle. In
this regard, the learned counsel for the
appellant/Insurance Company invites the attention of the
Court to Section 3(2) of the M.V. Act., as well as the Rules
framed by the Central Government under the M.V. Act., as
well as Section 149 (2A) of M.V. Act,. It is further
submitted that, though there is a defence regarding
authorised license holder was accompanying the driver,
the said person is not examined and his D.L. is also not
produced and she has also submitted that, the DL holder
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accompanied the driver of offending vehicle was also not
cited as a witness in the charge sheet and in Ex-R9-The
Motor Insurance Claim Form produced by the owner, there
is no reference regarding the authorized license holder
accompanying RW.2-Sandesh K.S., the driver of the
offending car. Hence, she would contend that there is a
clear breach of policy conditions and as such she would
contend that the liability cannot be fastened on Insurance
Company and though the claimant is a third party, an
order regarding 'Pay and Recovery' needs to be passed.
8. Per Contra, the learned counsel for the
claimants/respondents would support the order of the
Tribunal and contended that as per the decision of the
Apex Court reported in (2004) 3 SCC 297 (National
Insurance Co. Ltd. Vs. Swaran Singh and Others) the
Learner's Licence Registration (LLR) is required to be
treated as valid for all the purposes and it is to be
considered that the driver was authorized to drive the
vehicle and hence, he sought for dismissal of the appeals.
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9. Having heard the arguments and perusing the
records. it is evident that there is no serious dispute
regarding the quantum of compensation awarded to the
claimants.
10. The appellant/Insurance Company is not
disputing the quantum of compensation and at the same
time the owner has also not challenged the award
disputing the quantum. The Insurance Company is only
disputing the liability. The undisputed fact in the instant
case is that RW.2-K.S. Sandesh was the driver of the
offending car. He was examined as RW-2. There is no
serious dispute of the fact that he was possessing LLR. No
doubt the LLR is being issued under the provisions of
Indian Motor Vehicle Rules.
11. The evidence on record discloses that RW-2 had
Learner's License for the period from 26.02.2016 to
25.08.2016 and regular license was issued on 21.06.2016
i.e., one month after the accident. The accident has
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occurred on 20.05.2016 itself. There is no evidence to
show that any authorised instructor was travelling along
with RW-2 in the offending vehicle. Though RW-2 and
owner RW-5 tried to take up a defence that one Mr.
Murali, who was authorized driver was traveling in the
vehicle along with the driver, but the said person is not
examined. Apart from that the D.L. of so called Murali is
not produced before this Court and no attempt has been
made to examine him.
12. Further, Ex.R-9 is the Motor Insurance Claim
Form submitted by the owner-RW.5. In Ex.R9 there is only
reference that RW-2 was the driver, who was authorized
to drive the vehicle, but there is no reference of Murali
travelling in the offending vehicle. Hence, it is evident
that respondent No.2/RW-5 and RW.2 tried to put forward
a new story of one Mr.Murali being accompanying RW-2
during the accident period holds no water. Even otherwise,
the said Murali himself was not examined and his D.L. was
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not produced to substantiate contention of RW.5, who is
the owner of the vehicle.
13. The main reliance placed by the claimant is on
Swaran Singh's case cited supra.. The Trial Court has
considered observation made in Swaran Singh's Case in
para-95. But in the said case there was no condition in
insurance policy that the vehicle is required to be driven
by authorized D.L. holder. Admittedly, the person having
LLR cannot be termed as a authorised person. Even RW.5-
Smt.Pushpalatha, who is the owner of the offending car
did not assert that she has verified the D.L. of RW-2 and
so-called Murali and there is no explanation as to why she
did allow RW-2, who was holding LLR to drive the vehicle,
when there is a regular driver in the vehicle. However, in
the instant case there is a specific condition in policy Ex.R6
that the vehicle is required to be driven by a authorized
license holder and that condition is also breached in the
instant case. Considering these facts and circumstances,
the principles of decision reported in (1996) 2 SSC 328.
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(New Indian Insurance Company Ltd. vs. Mandhar
Madhava Tambe's) would prevail, which was distinguished
in Swaran Singh's case. But, the facts and circumstances
of Swaran Singh's case are entirely different. Even in
Swaran Singh's case, there is an observation in Para
No.110 that, even where the insurer is able to prove the
breach on the part of the insured concerning the policy
conditions regarding holding of a valid license 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 license is/are so fundamental as are
found to have contributed to the cause of accident. But at
the same time, it is further observed that the fundamental
breach includes the defences available to the Insurance
Company under Section 149(2) of the M.V. Act, and the
said defence is raised by the Insurance Company in the
instant case which is available. Under these
circumstances, the evidence on record clearly discloses
that the owner has clearly breached the conditions of the
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policy and handed-over the vehicle to a person, who is not
authorised to drive the vehicle. Under such
circumstances, it is the owner who is responsible to pay
the compensation. The Tribunal has erred in completely
fastening the liability on the Insurance Company.
However, at the same time it is also evident that the
claimant is third party and hence the liability of the
Insurance Company cannot be absolved all together.
However, the Insurance Company is required to first
satisfy the award and recover the same from the owner, in
view of the breach of policy conditions.
14. Since there is no dispute regarding quantum of
compensation passed by the Tribunal, the quantum of
compensation awarded by the Tribunal in this case stands
confirmed.
15. However, as far as liability is concerned, the
award of the Tribunal stands modified to the effect that
appellant/Insurance Company shall satisfy the award and
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thereafter, it is entitled to recover the same from
respondent No.2-Owner of the vehicle in the same
execution proceedings. Accordingly, the appeals are
allowed-in-part.
The amount if any deposited by the
appellant/Insurance Company in all these appeals, shall be
transmitted to the concerned Tribunal.
Sd/-
JUDGE
PTM
