Partly allowed

Sri G Nandeesh v. Sri Surendra Kumar

Karnataka HC14 Oct 2022MFA/10118/2011

Case brief

AI extract

What is this about?

High Court allowed partial appeals under Section 173(1) of the Motor Vehicles Act. It held that despite policy breaches allowing passengers for free, the insurance company must pay compensation with liberty to recover from the vehicle owner, applying the Mukund Dewangan principle. Liability was fastened on the insurer.

What did the court decide?

Insurance company directed to deposit compensation with liberty to recover from vehicle owner; amount ordered to be transferred to the Claims Tribunal.

Sri G Nandeesh Vs Sri Surendra Kumar — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF OCTOBER 2022

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BEFORE

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THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD

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MFA No.10118 OF 2011(MV) C/W

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MFA No.10119 OF 2011(MV)

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IN MFA 10118/2011 BETWEEN

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SRI G NANDEESH

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S/O SRI G NANJUNDAPPA AGED ABOUT 33 YEARS 7-9-33, KAMSOLPETE HINDUPURA, ANANTHAPUR DISTRICT ANDHRA PRADESH STATE.

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...APPELLANT

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(BY SRI. SUNIL K.N., ADV. FOR SRI. K R RAMESH, ADV.)

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AND

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1 . SRI SURENDRA KUMAR S/O SRI CHANDRANNA AGED ABOUT 24 YEARS NO.67 CHANNENAHALLIKADALAVERI GOWRIBIDANUR.

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2 . NATIONAL INSURANCE CO LTD REGIONAL OFFICE NO.144, M G ROAD BANGALORE REPRESENTED BY ITS BRANCH MANAGER.

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.RESPONDENTS

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(BY SRI. P MAHADEVA SWAMY, ADV. FOR R1: SRI. A RAVISHANKAR, ADV. FOR R2)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:30.7.2011 PASSED IN MVC NO.9406/2009 ON THE FILE OF II ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MACT, BANGALORE, AWARDING A COMPENSATION OF RS.1,00,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.

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IN MFA 10119/2011 BETWEEN

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SRI G NANDEESH S/O SRI G NANJUNDAPPA AGED ABOUT 33 YEARS 7-9-33, KAMSOLPETE HINDUPURA, ANANTHAPUR DISTRICT ANDHRA PRADESH STATE-630015.

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...APPELLANT

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(BY SRI. SUNIL K.N., ADV. FOR SRI. K R RAMESH, ADV.)

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AND

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1 . SRI G.H. NARASIMHA RAJU S/O SRI HANUMANTHARAYAPPA AGED ABOUT 30 YEARS NO.142, GUNDAPURA GOWRIBIDANUR-583103.

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2 . NATIONAL INSURANCE COMPANY LIMITED REGIONAL OFFICE NO.144, M G ROAD BANGALORE-560027. REPRESENTED BY ITS BRANCH MANAGER.

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.RESPONDENTS

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(BY SRI. P MAHADEVA SWAMY, ADV. FOR R1: SRI. A RAVISHANKAR, ADV. FOR R2)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:30.7.2011 PASSED IN MVC NO.9405/2009 ON THE FILE OF II ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MACT, BANGALORE, AWARDING A COMPENSATION OF RS.1,43,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.

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THESE MFAS COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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These appeals under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) have been filed by the owner of the offending vehicle being aggrieved by the judgment dated 30.7.2011 passed by MACT, Bengaluru in MVC 9405/2009 and 9406/2009.

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Facts giving rise to the filing of the appeals briefly stated are that on 29.6.2009 when the claimants were traveling in the lorry bearing No.OR07-G-8659 from Gowribidanur towards Ananthapura,

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when they reached Kaludi Village, at that time, the driver of the said lorry drove the same at a high speed and in a rash and negligent manner, dashed to the road side bridge. As a result of the aforesaid accident, the claimants sustained grievous injuries and were hospitalized.

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3. The claimants filed petitions under Section

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166 of the Act seeking compensation. It was pleaded that they spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.

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On service of notice, the respondents appeared through counsel and filed written statements in which the averments made in the petition were denied.

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On the basis of the pleadings of the parties,

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the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants themselves were examined as PWs-1 & 2 and Dr.Chandramohan Reddy was examined as PW-2 and got exhibited documents namely Ex.P1 to Ex.P17. On behalf of the

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respondents, two witnesses were examined as RWs-1 and 2 and got exhibited documents namely Ex.R1 to Ex.R13. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the claimants sustained injuries. The Tribunal further held that the claimant in MVC 9405/2009 is entitled to a compensation of Rs.143,000/- and claimant in MVC 9406/2009 is entitled for a compensation of Rs.100,000/- along with interest at the rate of 6% p.a. and directed the owner of the offending vehicle to deposit the compensation amount along with interest. Being aggrieved, the present appeals have been filed.

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The learned counsel for the owner of the offending vehicle has raised the following contentions: Firstly, the claimants were traveling in the offending lorry along with the goods. But the Tribunal

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has erred in holding that the claimants were traveling in the transport vehicle as paid passengers.

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Secondly, Mr.S.Venkatesh was driving the offending vehicle, who was having valid driving licence to drive the transport vehicle. But the Tribunal has erred in holding that Mr.Nandeesh was driving the offending vehicle, who was not having valid driving licence. Even assuming that Nandeesh was having driving licence to drive LMV (Non-transport) but he was driving the transport vehicle at the time of the accident, the Apex Court in the case of MUKUND DEWANGAN vs. ORIENTAL INSURANCE COMPANY LIMITED reported in (2017) 14 SCC 663, has held that a person holding driving licence to drive LMV (NonTransport) can also drive transport vehicle, the unladen weight of which does not exceed 7500 kgs. In the present case, the unladen weight of the vehicle involved in the accident is less than 7500 kgs.

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Therefore, the Insurance Company is liable to pay compensation. Hence, he sought for allowing the appeal.

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On the other hand, the learned counsel for the Insurance Company has raised following counter contentions:

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Firstly, even though PW-1 in his evidence has stated that he has hired the vehicle for Rs.200/- for transporting the household articles, he was traveling along with the goods, but in the complaint he has specifically stated that when he and PW-2 were waiting for bus to go to work, the insured lorry came and they boarded the lorry. Hence, it is clear that they were traveling in the offending vehicle as gratuitous passengers and hence, the Tribunal has rightly exonerated the Insurance Company from liability.

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Secondly, he contended that Mr.Nadeesh was driving the offending vehicle at the time of the

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accident and he was not having valid driving licence to drive the transport vehicle. To make false claim, the claimants have implicated Mr.Venkatesh as driver of the offending vehicle to prove that he was having valid driving licence. As per the records, it is clear that Mr.Nandeesh was driving the offending vehicle as on the date of accident. Since the insured has violated the policy conditions, the Tribunal has rightly fastened the liability on the owner of the offending vehicle. He further contended that the claimants have not challenged the judgment and award of the Tribunal and they have not challenged the exoneration of the Insurance Company from liability. At this stage, the Insurance Company cannot be directed to pay the compensation and recover the same from the owner of the offending vehicle. Hence, he sought for dismissal of the appeal.

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8. The learned counsel for the claimants

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contended that even assuming that the insured has violated the policy conditions and the Insurance Company is not liable to pay compensation, since third party risk is involved, the Insurance Company has to pay compensation to the claimants and later recover the same from the owner. In support of his contention, he has relied upon the decision of this Court passed in MFA 6334/2014 c/w MFA 3275/2013 disposed of on 1.8.2022.

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Heard the learned counsel for the parties and perused the judgment and award of the Tribunal and records .

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It is not in dispute that the claimants have sustained injuries in the road traffic accident occurred due to rash and negligent driving of the offending vehicle by its driver.

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These appeals have been filed by the owner of the offending vehicle challenging the fastening of liability on the owner of the offending vehicle.

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The first ground raised by the owner of the offending vehicle is that the claimants were traveling in the offending vehicle as the owner of the goods and they were not traveling as paid passengers. But in the complaint given by PW-1, it is stated that he and PW2 were waiting for a bus in order to go to work and at that time, the insured lorry had come and they had boarded the same in order to go to factory. As per the contents of the complaint, it reflects that claimants were traveling in the lorry as paid passengers and nowhere it is stated that they had hired the vehicle to transport the household articles. The Tribunal after considering the evidence of the parties and materials available on record has rightly held that the claimants

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were traveling in the offending vehicle as

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gratuitous/paid passengers in the offending vehicle.

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In respect of second ground raised by the owner is that the driver of the offending vehicle was having valid driving licence. Even assuming that the driver of the offending vehicle was having LMV (Non-transport) but he was driving transport vehicle as on the date of the accident, the Apex Court in the case of MUKUND DEWANGAN (supra), has held that a person holding driving licence to drive LMV (Non-transport) can also drive transport vehicle, wherein the unladen weight of said vehicle does not exceed 7500 kgs. In the case on hand, the unladen weight of the vehicle involved in the accident is less than 7500 kgs. Therefore, in view of the above said decision of the Apex Court, I am of the opinion that the driver of the offending vehicle was having valid driving licence as on the date of the accident.

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However, since the insured has violated the policy conditions by allowing the claimants to travel in the offending vehicle as gratuitous/paid passengers, the Tribunal has rightly exonerated the Insurance Company from liability and directed the owner of the offending vehicle.

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This Court in MFA 6334/2014 c/w MFA 3275/2013 disposed of on 1.8.2022 has held that in the case of appeal filed by the owner of the offending vehicle, even if there is breach of policy condition, the court can pass an order directing the Insurance Company to pay compensation with liberty to recover the same from the owner of the offending vehicle.

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Hence, in the present case, in view of the said decision, I am of the opinion that the Insurance Company is liable to pay compensation to the claimants with liberty to recover the same from the owner of the offending vehicle.

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In the result, the appeals are allowed in

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part . The judgment of the Claims Tribunal is modified. In MFA 10119/2011 (MVC 9405/2009):

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The claimant in MVC 9405/2009 is entitled for compensation of Rs.143,000/awarded by the Tribunal with interest @ 6% p.a. from the date of filing of the claim petition till the date of realization.

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The amount in deposit is ordered to be transferred to the Tribunal forthwith.

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On 20.1.2012, this Court had ordered to issue notice and granted interim order subject to deposit of 50% of the compensation amount before the Tribunal in four weeks.

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But it appears that the appellant-owner has not deposited 50% of the award amount as per the order. Hence, if it is not deposited, the appellant-owner is directed to pay the said 50% of the compensation to the claimant. Remaining 50% of the compensation is

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directed to be deposited by the Insurance Company with liberty to recover the same from the owner of the offending vehicle.

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In MFA 10118/2011 (MVC 9406/2009):

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The claimant in MVC 9406/2009 is entitled for compensation of Rs.100,000/awarded by the Tribunal with interest @ 6% p.a. from the date of filing of the claim petition till the date of realization.

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The amount in deposit is ordered to be transferred to the Tribunal forthwith.

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The Insurance Company is directed to deposit the compensation amount with liberty to recover the same from the owner of the offending vehicle, after deducting the amount, if any, already deposited by the owner.

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Sd/JUDGE

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Sri G Nandeesh v. Sri Surendra Kumar

Case brief

What is this about?

What did the court decide?

Sri G Nandeesh v. Sri Surendra Kumar

Case brief

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What did the court decide?

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