Karnataka High Court
The Reliance General vs Shivalingappa And Ors on 15 January, 2025
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MFA No. 200603 of 2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE C.M. JOSHI
MISCL. FIRST APPEAL NO.200603/2018(MV-D)
BETWEEN:
THE RELIANCE GENERAL INSURANCE CO. LTD.,
4, 8TH BLOCK, ASIAN PLAZA COMPLEX,
STATION MAIN ROAD, NEAR SVP CHOWK,
KALABURAGI,
(BOTH LORRY NO. TN-28/AB-2082
AND AMBULANCE NO.AP-09/W-3500
INSURED WITH APPELLANT)
...APPELLANT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
Digitally signed
AND:
by LUCYGRACE
Location: HIGH
COURT OF
KARNATAKA
1. SHIVALINGAPPA S/O. RAJENDRA BIRADAR,
SINCE DEAD BY LRS.,
A) RENUKA W/O. SHIVALINGAPPA BIRADAR,
AGE: 35 YEARS, OCC: HOUSEHOLD,
B) KAVERI D/O. SHIVALINGAPPA BIRADAR,
AGE: 9 YEARS, MINOR,
C) KARTIK S/O. SHIVALINGAPPA BIRADAR,
AGE: 7 YEARS MINOR,
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MFA No. 200603 of 2018
LRS., NO.B & C ARE MINORS THROUGH
THEIR NEXT FRIEND L.R.(A) RENUKA,
ALL R/O. VILLAGE MATAKI,
TQ. ALAND,
DIST. KALABURAGI-585 101.
2. RASAPPA S/O THOPPALAN,
AGE: 47 YEARS, OCC: OWNER AND
DRIVER OF LORRY BEARING NO.TN-28/AB-2082,
R/O. 9/61, NORTH STREET, VELLAPPALAYAM POST,
PARAMATHI VELLUR,
NAMAKKAL DIST.-637 207
(TN).
3. ANAND NAIDU P.,
AGE: MAJOR, OCC: OWNER AND
CUSTODIAN OF AMBULANCE NO.AP-09/W-3500,
R/O. 10-4-338, HABEEB NAGAR, NAMPALLI,
HYDERABAD-500 001
(AP).
...RESPONDENTS
(BY SRI SANTOSH BIRADAR, ADV., FOR R1(A) TO R1(C);
[R1(B) AND R1(C) ARE MINORS U/G OF R1(A)];
R2-V/O. DTD. 04.04.2022 NOTICE HELD SUFFICIENT;
R3-V/O DTD. 01.02.2024 NOTICE IS DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO
CALL FOR THE RECORDS AND ALLOW THE ABOVE APPEAL BY
SETTING ASIDE THE IMPUGNED JUDGMENT AND AWARD
DATED 06.10.2017 IN MVC NO.1011/2013 PASSED BY THE
PRL. SENIOR CIVIL JUDGE AND MACT, KALABURAGI.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE C.M. JOSHI
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MFA No. 200603 of 2018
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE C.M. JOSHI)
1. Heard learned counsel appearing for the appellant
and learned counsel appearing for respondent Nos.1A to 1C.
2. Being aggrieved by the judgment and award
dated 06.10.2017 in MVC No.1011 of 2013 passed by the
Principal Senior Civil Judge and Member, MACT,
Kalaburagi, (for short 'Tribunal'), the Insurance Company
is in appeal before this Court.
3. The factual matrix is as below:
a) On 10.11.2012 at about 5:00 a.m., near
Bogalera Hatti Village on Koodlagi- Chitradurga Main Road
the petitioner/claimant was traveling in an Ambulance
bearing No.AP-09/W-3500 along with one Raju, who was
the Cleaner. When the petitioner parked the vehicle and
was taking rest, the cleaner Raju, who was not having
valid driving license started to drive the same and there
was a head-on collision between the said ambulance and a
truck bearing No.TN-28/AV-2082 coming from the
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opposite direction. In the said accident, the petitioner
sustained injuries and he was admitted to the hospital.
The complaint was lodged by the driver of the lorry
against the driver of the ambulance, which was
investigated by the Police and ultimately a charge-sheet
was filed against the driver of the ambulance for negligent
driving as well as for driving the vehicle without a driving
license.
b) Later the petitioner filed a claim petition under
Section 166 of the Motor Vehicles Act, arraying the owner
and insurer of both the vehicles. Incidentally, the insurer
of both the vehicles involved in the accident is one and the
same i.e., the appellant herein. The petitioner contended
that the accident was due to the negligence on the part of
the lorry driver and therefore, the owner and insurer of
the lorry are liable to pay the compensation.
c) The owners of both vehicles didn't contest the
petition before the Tribunal, however, the Insurance
Company appeared and filed its written statement
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contending that the accident was due to the negligence on
the part of the driver of the ambulance, who was not
having a valid driving license and seek to draw support
from the charge-sheet in this regard. It was contended
that there was no negligence on the part of the driver of
the lorry and therefore, the Insurance Company is not
liable to pay the compensation to the petitioner.
d) Appropriate issues were framed by the Tribunal
and the petitioner was examined as PW1 and Exs.P1 to
P22 were marked in his evidence. Two witnesses were
examined on his behalf as PWs.2 and 3. The official of the
Insurance Company was examined as RW1 and Exs.D1 to
D4 were marked in evidence. After hearing both the
sides, the Tribunal held that the negligence on the part of
the ambulance driver is not proved and therefore, the
Insurance Company is liable to pay the compensation and
accordingly allowed the petition and compensation was
awarded under different heads as below:
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Pain and suffering Rs.40,000/-
Loss of amenities and Rs.10,000/-
employment of life
Medical Expenses Rs.27,500/-
Attendant Charges, food, Rs.9,500/-
nourishment & conveyance
charges
Towards loss of income during Rs.27,000/-
period of treatment
Total Rs.1,14,000/-
4. The Tribunal while dealing with issue No.3 in
the impugned judgment at Para No.14 observes as below:
"However, the driver of the offending vehicle
has been charge sheeted for the offence
punishable u/s 3 r/w section 181 of the M.V.
Act alleging that the offending vehicle driver
had no driving licence. However, the
respondent No.3 has failed to prove this issue
by producing the supportable and believable
evidence. The contents of the charge sheet
are not the conclusive proof of the offence
punishable U/s.3 r/w section 181 of the M.V.
Act unless the fact that the driver had no DL
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is established by producing the supportable
and believable documentary evidence and
oral evidence. In this, the respondent No.3
has not examined any concerned officials
including the RTO and has not produced any
other documents to prove that the offending
vehicle driver had no a valid and effective DL.
Under such circumstances, it cannot be held
that the driver had no a valid and effective DL
at the time of accident."
5. The learned counsel appearing for the appellant
submits that the Tribunal totally erred in holding that the
driver of the ambulance was not having a valid driving
license when the charge-sheet which is relied by the
petitioner showed that the driver was not having valid
driving license. It is contended that the primary liability of
proving that the driver was having valid driving license on
the petitioner and only when it was prima facie shown, the
burden shifts upon the Insurance Company to show that
such driving license contended by the petitioner was not
valid or that it was not a driving license at all. Therefore,
it is contended that the Tribunal has erred in shifting the
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burden of proving the driving license of the ambulance
driver or the lorry driver upon the Insurance Company.
Thus, she contends that the approach of the Tribunal in
totally burdening the appellant to prove the driving license
was erroneous and it erred in rejecting the charge-sheet
which clearly showed that the ambulance driver was not
having a valid driving license.
6. Per contra, learned counsel appearing for the
respondents/claimants (during the pendency of the
proceedings before the Tribunal, the original claimant died
and his legal representatives are brought on record),
submits that the Tribunal though came to the conclusion
that the negligence was on the part of the ambulance
driver and that there was no evidence to show that the
ambulance driver was not having valid driving license, it is
a case of composite negligence and therefore, the claimant
being an inmate of the ambulance, had nothing to do in
contributing the negligence in the matter. Therefore, it is
a case of composite negligence so far as the petitioner is
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concerned, therefore, on this count the question whether
the ambulance driver was having valid driving license or
not recede to oblivion. The owner and insurer of the lorry
are squarely liable to pay the compensation to the
petitioner and as such, there is no need for indulgence by
this Court.
7. The fact that the driver of the ambulance was
not having driving license is borne out of the charge-sheet
papers. Evidently the owner of the ambulance has not
appeared before the Tribunal as well as before this Court.
Therefore, the charge-sheet papers, which clearly depict
that the driver of the ambulance was not having driving
license, is not rebutted by any evidence. Apparently the
Insurance Company squarely draws support from the
charge-sheet which is relied by the petitioner to show the
accident. Hence, it was not necessary for the Insurance
Company to say anything else except relying upon the
charge-sheet. The burden of proving that the driver of the
ambulance had a driving license was squarely upon the
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petitioner. Therefore, it is evident that the Tribunal erred
in shifting the burden of proof to the Insurance Company
by absolving such burden from the petitioner. It failed to
notice that the primary burden of proving a valid driving
license is on the petitioner when he had approached the
Tribunal. Unless such burden is discharged, the owner
would not shift to the Insurance Company to disprove such
fact.
8. Be that as it may, as rightly pointed out by the
learned counsel for the respondent Nos.1(A) to 1(C) it is a
case of composite negligence. It is a settled principle of
law that a person who is not at all involved in contributing
any part of the negligence in the accident, is at liberty to
go against anyone of the tortfeasors. The petitioner
before the Tribunal had no role to play in the accident. It
is nobody's case that the petitioner having slept in the
ambulance, allowed the Cleaner, who was not having a
valid driving license, to drive the ambulance. In the
absence of any such contention being taken up by any of
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the parties, it results in a clear case of composite
negligence and therefore, the owners and Insurers of both
the vehicles are liable to compensate the petitioner.
9. It is worth to note that the propositions of law
laid down by the Apex Court in the case of KHENYEI Vs.
NEW INDIA ASSURANCE COMPANY LIMITED AND
OTHERS1 squarely come into play. It is also worth to
note that such proposition laid down by the Apex Court is
also supported by two Full Bench decisions of this Court in
the case of Ganesh v. Syed Munned Ahmed2, and in the
case of KSRTC v. ARUN3. Under these circumstances,
the appellant herein cannot escape from the liability to pay
the compensation.
10. A feeble attempt is made by learned counsel
appearing for the appellant to contend that the case of
composite negligence is not pleaded. The case of
(2015) 9 Supreme Court Cases 273
1998 SCC OnLine Kar 603:ILR 1999 Kar 403
2003 SCC OnLine Kar 715:AIR2004 Kar 149
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composite negligence need not be pleaded as it emanates
from the facts of the case. A proposition of law which is
applicable to a set of facts has to be inferred and the law
is to be applied. Moreover, it was the case of the
petitioner that there was negligence on the part of the
lorry driver. However, such contention was refuted by the
appellant, but, the Tribunal held that there was negligence
on the part of the ambulance driver by saying he was
having a valid driving licence. Under these circumstances,
the contention of the petitioner that there was negligence
on the part of the lorry driver would definitely amount to
pleading of the facts, which constitute composite
negligence. In that view of the matter, the appellant
being the Insurer of both the vehicles is liable to pay the
compensation to the petitioner, who had nothing to
contribute in the negligence resulting in the accident.
Hence, the appeal fails and as such, the following order is
passed:
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ORDER
i) The appeal is dismissed.
ii) The amount in deposit before this Court
be transmitted to the Tribunal
forthwith.
Sd/-
(C.M. JOSHI)
JUDGE
SBS
CT: AK
