Karnataka High Court
The Branch Manager vs K. Ravikuamr on 29 October, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC:43587
MFA No. 6180 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.6180 OF 2015(MV-D)
BETWEEN:
THE BRANCH MANAGER
RELIANCE GENERAL INSURANCE CO. LTD.,
BRANCH OFFICE, MAGANOOR COMPLEX
1ST FLOOR, B.D.ROAD,
CHITRADURGA TOWN
LEGAL MANAGER,
RELIANCE GENERAL INSURANCE CO. LTD.,
REGIONAL OFFICE
CENTENARY BUILDING,
NO.28, 5TH FLOOR, EAST-WING
M.G.ROAD
BENGALURU-560 001
...APPELLANT
(BY SRI. PRADEEP B.,ADVOCATE)
Digitally signed AND:
by RAMYA D
Location: HIGH
COURT OF
KARNATAKA 1. K. RAVIKUAMR
S/O LATE KRISHNACHARI
NOW AGED ABOUT 37 YEARS
2. VIJAYALAKSHMI
D/O LATE KRISHNACHARI
NOW AGED ABOUT 41 YEARS
BOTH ARE R/O G.R.HALLI,
CHITRADURGA TOWN - 577 501
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MFA No. 6180 of 2015
3. NIRMALA
W/O NAGARAJACHAR BADEGA,
NOW AGED ABOUT 43 YEARS,
R/AT GANESH TAMPLE,
ANAND NAGAR ROAD
OLD HUBLI-24
4. MUKTHAMBA
W/O LATE SUBRAMANYACHARI
NOW AGED ABOUT 39 YEARS,
R/AT GANESH TEMPLE,
ANAND NAGAR ROAD
OLD HUBLI-24
5. SHIVA NAIK
S/O MANYA NAIK
MAJOR, DRIVER OF LORRY,
R/O BELAGALA THANDA
BELLARY - 583 211
6. VENKATESH
S/O SHANKAR NAIK
AGE: MAJOR, R/O BELAGALA THANDA,
BELLARY - 583 211
...RESPONDENTS
(BY SRI.SUNIL KUMAR P BANGARI, ADVOCATE FOR R1 TO R4;
V/O DTD 28.03.2017, NOTICE TO R6 IS HELD SUFFICIENT
V/O DTD 15.06.2021, NOTICE TO R5 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 05.06.2015
PASSED IN MVC NO.754/2013 ON THE FILE OF THE
I ADDITIONAL SENIOR CIVIL JUDGE, MACT-4, CHITRADURGA,
AWARDING A COMPENSATION OF RS.1,60,000/- WITH
INTEREST @ 8% P.A FROM THE DATE OF PETITION TILL DATE
OF DEPOSIT.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2024:KHC:43587
MFA No. 6180 of 2015
CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
ORAL JUDGMENT
This appeal is filed under Section 173(1) of the Motor
Vehicles Act, 1988 (hereinafter referred to as 'MV Act' for
brevity) by the Insurance Company, challenging the
judgment and award dated 05.06.2015, passed in MVC
No.754/2013, on the file of 1st Senior Civil Judge & IV
MACT, Chitradurga (hereinafter referred to as 'the
Tribunal' for brevity), wherein the Tribunal has fastened
the liability on the Insurance Company.
2. The factum of the accident and death of the
deceased in the accident are not in dispute. The only
dispute is whether the Insurance Company is liable to
indemnify the owner or not.
3. Learned counsel for the appellant submitted
that Tipper Lorry bearing registration No.KA-34/9183
(hereinafter referred to as 'the offending vehicle' for
brevity) was not having permit. Therefore, the Insurance
Company is not liable to pay compensation but the
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Tribunal has fastened the liability on the appellant-
Insurance Company directing to indemnify the owner, is
not correct. Therefore, Insurance Company is not liable to
indemnify the owner and pay compensation and hence,
prays to modify the judgment and award of the Tribunal.
4. On the other hand, learned counsel for the
claimant submits that the judgment and award passed by
the Tribunal is justified.
5. In the present case, the appellant-Insurance
Company has taken specific contention that the offending
vehicle Tipper Lorry was not having permit at all to ply on
the road. When this being the contention of the Insurance
Company, the burden is on respondent No.6-owner to
produce the permit in respect of the tipper lorry and to
prove that the tipper lorry was having permit. Proving the
negative evidence cannot put the burden on the Insurance
company to prove that the tipper lorry was not having
permit. When the Insurance Company has taken
contention that the tipper lorry was not having permit, the
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burden lies on the owner of the tipper lorry to produce the
permit and to prove the fact that the tipper lorry was
having permit but respondent No.6 - owner has not proved
the fact that the tipper lorry was having permit. Therefore,
the Tribunal is not correct in directing the appellant-
Insurance Company to indemnify the owner. Mere
adducing of Policy is not sufficient. Insurance Policy is a
contract of insurance between the owner and the insurer
and that is subject to the terms and conditions of the
Insurance Policy. One of the condition is vehicle should
have permit to ply on the road. If there is no permit to ply
on the road, then it is one of the violation as per terms
and conditions of the policy. Therefore, in this regard, the
appellant-Insurance Company has proved that the tipper
lorry was not having permit. Then the onus shifts on the
owner to prove that the tipper lorry is having permit but it
is not discharged by the owner of the tipper lorry. Hence,
fastening the liability on the Insurance Company is not
correct and it is liable to be set aside. Therefore, the
liability fastened on the Insurance Company is set aside.
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6. However, the claimant is the third party to the
tipper lorry as per Section 149 of the MV Act. If any of the
violation of conditions is proved as per Section 149(2)(i) of
the MV Act, the interest of the third party could be
protected on the principle of pay and recovery under
Section 149(1) of the MV Act.
7. 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 Amrit Paul Singh and
another vs. TATA AIG General Insurance Co. Ltd.,
and others1, Pappu and Others vs. Vinod Kumar
Lamba and Another2; National Insurance
Company Limited Vs. Swaran Singh and
others 3 and also as per the full bench decision of this
Court in the case of New India Assurance Company
Limited Vs. Yellavva and another4. Accordingly, an
AIR 2018 Supreme Court 2662
(2018) 3 SCC 208
(200 4 ) 3 SCC 29 7
2020 ACJ 2560
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order of pay and recovery is made. To this extent, the
judgment and award passed by the Tribunal is modified.
8. Therefore, an order of pay and recovery is
made. Though Insurance Company is liable to be
exonerated to indemnify the owner but on the principle of
pay and recovery, the Insurance Company at the first
instance shall pay the compensation to the claimant and
recover the same from the owner of the tipper lorry.
9. Liberty is reserved to the appellant-Insurance
Company to file execution case directly against the owner
tipper lorry and is at liberty to seek attachment of
movable/immovable properties of the owner of the tipper
lorry through recovery process.
10. Accordingly, I proceed to pass the following:
ORDER
i) Appeal filed by the Insurance Company is
allowed.
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ii) Judgment and award dated 05.06.2015,
passed in MVC No.754/2013, on the file of
1st Senior Civil Judge & IV MACT,
Chitradurga is hereby modified.
iii) The liability of the Insurance Company to
pay compensation is hereby set aside.
iv) The owner alone is liable to pay the
compensation. The Insurance Company at
the first instance shall pay the
compensation and recover the same from
the owner.
v) Amount in deposit is transferred to the
appellant-Insurance Company.
vi) Draw award accordingly.
SD/-
(HANCHATE SANJEEVKUMAR)
JUDGE
MDS
