Dismissed

The Legal Manager v. Mr Dasharath.K

Karnataka HC18 Aug 2022MFA/249/2014

Case brief

AI extract

What is this about?

An appeal by an insurance company challenging a compensation award and an order of pay and recovery arising from a motor accident. The court held that while the insurer could argue against liability under Section 149, third-party claimants are entitled to receive compensation first, with liberty to recover the amount later from the vehicle owner.

What did the court decide?

Appeal dismissed; judgment and award of the Tribunal confirmed; Insurance Company directed to pay compensation and recover same from vehicle owner.

The Legal Manager Vs Mr Dasharath.K — 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 18^TH DAY OF AUGUST 2022

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BEFORE

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THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR

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MFA No. 249 OF 2014 (MV-D)

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BETWEEN:

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THE LEGAL MANAGER TATA AIG GENERAL INSURANCE COMPANY LIMITED, NO.69, II FLOOR, J.P. & DEVI JAMBUKESHWAR ARCADE, MILLERS ROAD, BANGALORE-560 052 BY ITS MANAGER.

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…APPELLANT

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(BY SRI.O.MAHESH, ADVOCATE)

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AND:

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MR DASHARATH.K AGED 32 YEARS, S/O KRISHNAPPA,

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SMT.DHANALAKSHMI AGED ABOUT 29 YEARS, W/O DASHARATH.K,

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BOTH ARE R/O V.V.EXTENSION, RUKMINI HOUSE, 7^TH CROSS, NEAR BYREGOWDA PETROL BUNK, HOSKOTE, BANGALORE RURAL-562 114.

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MR.MUNIRAJU K.C. MAJOR, S/O CHINNAPPA, R/AT NO.125, VIJAYAPURA, DEVANAHALLI TALUK BANGALORE RURAL DISTRICT-562 110

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...RESPONDENTS

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(BY SRI.SHRIPAD V.SHASTRI, ADVOCATE FOR R1 AND R2; R3-NOTICE HELD SUFFICIENT)

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THIS MFA IS FILED UNDER SECTION 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 11.11.2013 PASSED IN MVC NO.5833/2012 ON THE FILE OF THE XX ADDITIONAL SMALL CAUSE JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE, AWARDING COMPENSATION OF RS.3,50,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALISATION.

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

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J U D G M E N T

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This appeal is filed under Section-173(1), of the Motor Vehicles Act, 1988 by the appellant - Insurance Company, challenging the judgment and award dated 11.11.2013, passed in MVC No.5833/2012, on the file of the XX Additional Small Causes Judge, Bengaluru (SCCH22) (for short ‘the Tribunal’).

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For the sake of convenience, the parties are referred to as per their ranking before the Tribunal.

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The brief facts of the case are that on 31.08.2012 at about 7.30 a.m., while their deceased son Jeevan D. was attending nature’s call at 7^th cross, T.G.Extension, Hoskote, Bengaluru, at that time, the driver of the Tractor bearing Reg.No.KA-08-T-4520 drove the same in a rash and negligent manner and dashed against the deceased. Due to the impact, the deceased-Jeevan.D sustained fatal injuries and died on the spot. Hence, a claim petition was filed by the claimants under Section-166 of the Motor Vehicles Act, 1989, claiming compensation. The Tribunal on appreciating the materials on record, allowed the petition in-part, and awarded a compensation of Rs.3,50,000/- along with interest at 6% per annum, from the date of petition till the date of deposit. The Tribunal held that the appellant-Insurance Company is liable to pay the compensation.

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Learned counsel for the appellant submitted that the Tribunal has grossly erred in fastening liability on the appellant to pay compensation to the claimant at first instance and then recover it from the owner of the vehicle. But, the said principle is not applicable in the present case. Further, he submitted that at the time of the accident, the tractor was attached to the water tanker. But, the driver of the tractor was holding driving license only for LMV and he was not holding driving license to drive Tractor along with water tanker. Therefore, there is a fundamental breach of conditions. Hence, the Insurance company is not liable to pay the compensation and the owner of the Tractor alone is liable and the principle of pay and recovery is also not applicable. Therefore, the insurance company is not liable to pay the compensation. Hence, he prays to allow the appeal by setting-aside the impugned judgment and award passed by the Tribunal.

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On the other hand, Sri.Shripad V. Shastri,

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learned counsel for respondent Nos.1 and 2 – claimants submitted that in the present case appellant - Insurance

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Company is exonerated but because of the fact that the claimant is third party and the defence taken by insurance company is established on the grounds enumerated in Section 149 of Motor Vehicle Act. Therefore, the order of pay and recovery made by the tribunal is justified and legal and it is as per decision of Supreme Court and full bench of this Court. Therefore, prays to dismiss the appeal.

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In the present case, the deceased died in the accident which occurred on 31.08.2012 at 7.30 P.M deceased-Jeevan.D was attending nature’s call and at that time, the tractor attached to water tanker dashed against him and due to said accident, the deceased died on the spot. The tribunal after appreciating the evidence on record, has awarded compensation of Rs.3,50,000/- along with interest at the rate of 6% p.a. from the date of petition till its realization.

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The Tribunal exonerated appellant-Insurance company but an order of pay and recovery is made by giving liberty to the insurance company to recover

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compensation amount from the owner of the Tractor bearing Reg.No.KA-08-T-4520. This finding and order passed by tribunal and the order of pay and recovery made is challenged. In the present case. The deceased was two years old and died in the accident. It is not disputed that the claimant is third party. The driver of the tractor was holding driving license to drive light motor vehicle only. Tractor engine alone is light motor vehicle. In the present case, said tractor is attached with water tanker then the tractor looses its class as light motor vehicle. Therefore, Ex.R.2 is the copy of DL of Devaraj and Ex.R.7 is extract of DL which prove that the driver of tractor was holding driving license only to drive light motor vehicle. Therefore, when the tractor is attached with the water tanker, it looses its class as light motor vehicle. To drive tractor attached with water tanker separate category of Driving license is required. Therefore, in this regard, the appellant-Insurance company has successfully taken defence and established that a non-competent driver who was holding driving license to drive only a particular class of vehicle but drove another class of vehicle and caused

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accident. Therefore, on these circumstances the tribunal has passed an order of pay and recovery directing the appellant-Insurance company to pay the compensation at the first instance to the claimant and then recover the same from the owner of the tractor bearing Reg.No.KA-08T-4520

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The said issue is no more res-integra in view of the judgment rendered by Hon’ble Apex court in "Pappu Yadav and Others Vs. Vinod Kumar Lamba and another reported in [(2018) 3 SCC 208]" and "Shamanna & another Vs. Divisional Manager, Oriental Insurance Company Limited and others reported in[(2018) 9 SCC 650]" and also the full Bench decision of this court in "New India Assurance Company Limited Vs. Yellavva and another reported in 2020 ACJ 2560" . When ever the Insurance Company takes defence under Section 149 of Motor Vehicle Act and if it defends the same successfully, then the Insurance Company will not liable to pay compensation. However, in the present case the claimants are third parties and they are entitled to receive

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compensation from the Insurance company. As the claimants are third parties, liberty is reserved to the Insurance company to recover said amount from the owner of the offending vehicle. The principle of law laid down in the above said cases is applicable to the case on hand also. Hence, in this regard the finding and the order passed by the tribunal for pay and recovery is justified . Hence, the appeal is liable to be dismissed .

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However, the Insurance company shall recover the amount from the owner of the tractor bearing Reg.No.KA-08-T-4520 as per the guidance issued by the Hon'ble Apex court in the case of Oriental Insurance Co.Ltd. Vs. Nanjappan and Others reported in (2004) 13 SCC 224 .

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Hence, I proceed to pass the following:

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ORDER

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(i) The appeal is dismissed .

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(ii) The judgment and award dated 11.11.2013 in M.V.C.No.5833/2012 passed by the XX

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Additional Small Causes Judge, Bengaluru (SCCH-22) is hereby confirmed.

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(iii) The appellant-Insurance Company shall pay the compensation to the claimants and thereafter recover the said compensation amount from the owner of the offending vehicle bearing Reg. No.KA-08-T-4520 as per principle laid down by Hon'ble Apex court in the case of Oriental Insurance Co.Ltd. Vs. Nanjappan and Others reported in (2004) 13 SCC 224.

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(iv) The deposit made by the Insurance company shall be transferred to the Tribunal forthwith along with trial court records and copy of this order. (v) Costs made easy.

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(vi) Draw award accordingly.

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Sd/JUDGE

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The Legal Manager v. Mr Dasharath.K

Case brief

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The Legal Manager v. Mr Dasharath.K

Case brief

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