Partly allowed

M/S. Shriram General Insurance Company Ltd., v. Kempaiah

Karnataka HC1 Dec 2022MFA/4632/2018

Case brief

AI extract

What is this about?

Full Bench of the Karnataka High Court allowed the appeal in part, holding that since the offending lorry lacked a permit, the insurance company must pay compensation to the claimant first and then recover the amount from the vehicle owner.

What did the court decide?

Insurance company directed to pay compensation to claimant at first instance and recover amount from vehicle owner.

M/S. Shriram General Insurance Company Ltd., Vs… — Motor Accident Claims | Karnataka HC (2022)

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MFA No. 4632 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 4632 OF 2018 (MV-I)

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BETWEEN :

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M/S. SHRIRAM GENERAL INSURANCE COMPANY LTD., E-8, EPIP, RIICO, INDUSTRIAL AREA, SITAPURS, JAIPUR, RAJASTHAN STATE-302 022.

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NOW REPRESENTED BY

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Digitally signed by PAVITHRA B Location: High Court of Karnataka

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M/s. SHRIRAM GENERAL INSURANCE COMPANY LTD., No.5/4, 3^RD FLOOR, S.V. ARCADE, BILAKAHALLI, BANNERUGHATTA MAIN ROAD, IIMB POST, BANGALORE, REPTD BY ITS ASSIT. MANAGER. ...APPELLANT (BY SRI B C SHIVANNE GOWDA, ADVOCATE)

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AND:

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1 . KEMPAIAH S/O. ERANNA, NOW AGED ABOUT 48 YEARS, R/AT HARONAHALLI, KASABA HOBLI, TUMAKURU TALUK.

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2 . GOVINDARAJULU S/O. DURGAIAH,

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MFA No. 4632 of 2018

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101, ASHWATHAMMA, KOTALAPALLI, 1^ST CROSS, H. No.251/5, GANESH COLONY, BELLARY. ...RESPONDENTS

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(BY SRI H AHSOK KUMAR, ADVOCATE FOR R1 R2-SERVED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:15.03.2018, PASSED IN MVC No.36/2015, ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND MACT, TUMAKURU, AWARDING COMPENSATION OF Rs.1,85,200/- WITH INTEREST AT THE RATE OF RS.6% PER ANNUM FROM THE DATE OF PETITION TILL ITS REALIZATION.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the appellant-insurance company challenging the judgment and award dated 15.03.2018 passed in MVC No.36/2015 by the Court of the III Addl. Senior Civil Judge and the Motor Accident Claims Tribunal, Tumkur questioning the liability to pay compensation.

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Brief facts of the case are as under:

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On 24.07.2014 the respondent No.1-claimant along with his friend S. Basavaraju had been to Kora village to attend his

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MFA No. 4632 of 2018

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personal work and after attending their work, respondent No.1-claimant along with his friend was returning to their village on a motorbike bearing Reg.No.KA-06-EF-2301 and his friend Basavaraju was riding the said motorbike and the respondent No.1-claimant was pillion rider and when they came near Lingapura village at about 1.00 p.m., the driver of the lorry bearing Reg.No.KA-18-A-9080 has driven his vehicle in high speed, rash and negligent manner and dashed against the motorbike of petitioner and caused accident. Due to the said accident, rider of the bike Basavaraju succumbed to the injuries on the spot and the respondent No.1-claimant sustained injuries. Hence, the respondent No.1-claimant has filed claim petition under Section 166 of MV Act seeking claim. The Tribunal after re-appreciating the evidence on record has awarded compensation of Rs.1,85,200/- along with interest at 6% p.a. from the date of petition till the date of realization.

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Heard the arguments advanced by the learned counsels appearing on both sides and perused the records.

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MFA No. 4632 of 2018

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The Tribunal has awarded the compensation of Rs.1,85,200/- along with interest at 6% p.a. by holding both the insurance company and owner of the lorry are jointly and severally liable to pay compensation and consequently fix the liability on the insurance company to pay compensation by virtue of existence of insurance policy.

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Learned counsel for the appellant-insurance company submitted that in the present case, there is no permit to the offending vehicle lorry and it is also admitted by respondent No.2-claimant i.e. owner of the lorry and it is also stated in the written statement. Therefore, submitted that the lorry did not have permit to ply on the road. Hence, the owner of the lorry has breached the conditions of insurance policy. Therefore, prays that the insurance company is not liable to pay compensation.

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In the present case, when the insurance company has contended that the lorry did not have permit to ply on the road, then it is incumbent on the part of the owner of lorry to produce permit in respect of the lorry before the Court but

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MFA No. 4632 of 2018

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respondent No.2 owner of the lorry has not produced permit before the Tribunal.

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Furthermore, the Tribunal has observed at para

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No.16 of the judgment that as on the date of accident, the lorry bearing Reg.No.KA-18-A-9080 was not holding valid and effective permit. Therefore, when the Tribunal gave finding that the lorry did not have permit to ply on the road, then it amounts to breach of conditions of insurance policy. Accordingly, fixing the liability absolutely on the part of appellant-insurance company is not correct. Therefore, the liability fixed on the insurance company is set aside. The owner of the lorry is liable to pay compensation. Whenever the appellant-insurance company has taken defence and substantially established the defence as per Sub section (2) of Section 149 of M.V.Act, in the present case, the offending lorry

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did not have permit to ply on the road. Hence, as per Sub Section (1)(4) and (7) of Section 149 of Motor Vehicles Act, 1988 and also by virtue of principles of law laid down by the Hon’ble Apex Court in the case of Pappu and Others –v-

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MFA No. 4632 of 2018

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Vinod Kumar Lamba and Another¹ and full bench decision of

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this Court in the case of New India Assurance Company Limited vs. Yellavva And Another² , the insurance company shall satisfy the claim amount at the first instance to the respondent No.1-claimant and then recover it from respondent No.2 i.e.owner of the lorry bearing Reg.No. KA-18-A-9080. Accordingly, an order of ‘pay and recovery’ is made. Therefore, the appellant-insurance company at the first instance has to pay compensation to the respondent No.1-claimant who is a third party and then recover the same from the respondent No.2- i.e. owner of the lorry as per the aforesaid principle of law. As such, to this extent, the award of the Tribunal is modified and the appeal is hereby allowed in part.

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Accordingly, I pass the following:

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ORDER

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i. Appeal is allowed in part .

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1 Reported in (2018) 3 SCC 208

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2 2020 ACJ 2560 (HCK)

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MFA No. 4632 of 2018

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ii. The judgment and award dated 15.03.2018 passed in MVC No.36/2015 by the Court of the III Addl. Senior Civil Judge and the Motor Accident Claims Tribunal, Tumakur is modified to the above extent.

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iii. The appellant-insurance company shall satisfy the claim to the respondent No.1-claimant at the first instance and then recover it from respondent No.2 i.e. owner of the lorry bearing Reg.No. KA-18-A-9080 in accordance with law.

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iv. The amount in deposit shall be transmitted to the Tribunal forthwith.

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v. Registry is directed to return the Trial Court records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.

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vi. Costs made easy.

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vii. Draw award accordingly.

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Sd/JUDGE

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SSD

M/S. Shriram General Insurance Company Ltd., v. Kempaiah

Case brief

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M/S. Shriram General Insurance Company Ltd., v. Kempaiah

Case brief

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