Partly allowed

The Oriental Insurance Co. Ltd., v. Sri. Bheemarajaiah

Karnataka HC25 Nov 2022MFA/987/2018

Case brief

AI extract

What is this about?

In an appellate motor vehicle compensation matter, the High Court modified the lower tribunal's award, holding that the insurer must pay the claimant first and recover the amount from the vehicle owner, even if the driver lacked a license.

What did the court decide?

The insurance company shall satisfy the compensation in favour of the claimant at first instance and then recover it from the owner of the offending vehicle.

The Oriental Insurance Co. Ltd., Vs Sri. Bheemarajaiah — Insurance | Karnataka HC (2022)

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MFA No. 987 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF NOVEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 987 OF 2018 (MV-I)

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BETWEEN:

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Digitally signed by PAVITHRA B

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Location: High Court of Karnataka

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THE ORIENTAL INSURANCE CO. LTD., P.B. NO. 7037, NEW DELHI, HAVING BRANCH OFFICE AT JAYADEVA HOSTEL BUILDING, B. H. ROAD, TIPTUR, NOW REPTD. BY THE REGIONAL MANAGER, THE ORIENTAL INSURANCE CO. LTD., TP HUB, REGIONAL OFFICE, LEO SHOPPING COMPLEX, 44/45, RESIDENCY ROAD, BENGALURU-560 025.

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…APPELLANT

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(BY SRI. A N KRISHNA SWAMY, ADVOCATE)

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AND:

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SRI. BHEEMARAJAIAH S/O. VEERABHADRAIAH, AGED ABOUT 65 YEARS, R/AT MELANAHALLI KASABA HOBLI, C. N. HALLI TALUK, TUMKUR DISTRICT-572 102.

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SRI. L M. SURESH S/O. MAHALINGAIAH,

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MFA No. 987 of 2018

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R/O. LAKKASANDRA, TURUVEKERE TALUK, TUMKURU DISTRICT-572 102.

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… RESPONDENTS

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(BY SRI. M.V. MAHESHWARAPPA, ADVOCATE FOR R1, R2-SERVED)

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED05.12.2013 PASSED IN MVC NO.1241/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE & 19TH MACT, ITINERATE COURT, C.N.HALLI, AWARDING COMPENSATION OF RS.1,51,161/- WITHIN TWO MONTHS FROM THE DATE OF THIS ORDER.

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

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JUDGMENT

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This appeal is filed under Section-173(1) of the Motor Vehicles Act 1988 (hereinafter referred to as ‘MV Act’ for brevity) by the appellant–insurance company, calling in question the judgment and award dated 05.12.2013, passed in M.V.C.No.1241/2010, on the file of the Senior Civil Judge & XIX MACT, at Chikkanayakanahalli,

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MFA No. 987 of 2018

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(hereinafter referred to as ‘the Tribunal’ for brevity) questioning the liability fastened on the Insurance company to pay the compensation.

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Brief facts:

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On 08.12.2009, at about 4.15 p.m., the

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claimant was proceeding in Hero Honda to go to C.N.Hally to his APMC shop on the left side of the road, when he reached near Balaji Sawmill, at that point of time, the vehicle bearing registration No.KA-44-H-4664 ridden by the first respondent in a rash and negligent manner with high speed and dashed the claimant, resulting in the claimant sustaining injuries all over the body.

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Hence, a claim petition was filed by the appellantclaimant under Section-166 of the M.V. Act, claiming compensation for the injuries suffered in the accident. The Tribunal on appreciating the materials on record, allowed the claim petition in part, and awarded a global

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MFA No. 987 of 2018

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compensation of Rs.1,51,161/-, along with interest at 9%

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per annum from the date of petition till the date of realisation. The Tribunal held both the owner, as well as the insurer of the offending vehicle jointly and severally liable to pay the compensation and consequently, directed the appellant-insurance company to pay the compensation on the ground that there was existing insurance policy as on the date of the accident.

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Heard arguments of the learned counsel for the appellant-insurance company and the learned counsel for respondent No.1 – claimant and perused the materials on record.

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The learned counsel for the appellant - insurance company submitted that in the present case the driver of the offending vehicle did not have the driving license to drive the offending vehicle. Therefore, there is a fundamental breach. Hence, the insurance company is not

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MFA No. 987 of 2018

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liable to pay the compensation. Exhibit-P2 is the charge-

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sheet. One of the charge-sheet accusation is that the driver of the offending vehicle did not have driving license to drive the offending vehicle and accordingly foisted offence under Section-3, read with Section-181 of the M.V. Act. Therefore, it is incumbent on the part of either the owner or the driver to produce the driving license before the Tribunal. But the respondent No.2 - owner of the offending vehicle has not produced any evidence to prove that the driver was holding the driving license.

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Therefore, from the charge-sheet material, it is

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seen that the insurance company has discharged its onus. Then the onus now shifts on the owner to prove that the driver of the offending vehicle that he was holding a driving license. But the second respondent – owner has not discharged his burden to prove that the driver

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possessed the driving license to drive the offending vehicle. Therefore, it is not the onus of the insurance

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MFA No. 987 of 2018

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company to prove the negative evidence that is to say that

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the driver was not holding the driving license. In this regard, the Tribunal has committed an error by observing that the insurance company did not choose to enter the witness box.

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Therefore, from the charge-sheet material it is

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proved that the driver was not holding the driving license to drive the offending vehicle. Hence, the insurance company is able to take the defense and established it successfully as per Section-149(2) of the M.V. Act. The insurance company is able to establish the defense under Section-149(2) of the M.V. Act, then the insurance company as if judgment debtor has to satisfy the claim in favour of the claimant.

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As per the principle of ‘Pay And Recover’ as laid

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down by the Hon’ble Apex Court in the case of (i) PAPPU

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YADAV AND OTHERS -V- VINOD KUMAR LAMBA AND

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MFA No. 987 of 2018

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ANOTHER¹ (ii) NATIONAL INSURANCE CO. LTD. V. CHELLABHARATAMMA² , (iii) NATIONAL INSURANCE

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CO. LTD. V. SWARAN SINGH AND OTHERS³ and Full

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Bench judgment of this Court in the case of NEW INDIA

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ASSURANCE COMPANY LIMITED VS. YELLAVVA AND

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ANOTHER , the insurance company shall satisfy the compensation in favour of the claimant at the first instance and then recover it from the owner of the offending vehicle bearing registration No.KA-44-H-4664.

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Accordingly, an order of pay and recovery is made.

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Accordingly, I pass the following:

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ORDER

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i. The appeal is Allowed In Part .

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ii. The impugned judgment and award dated

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05.12.2013, passed in M.V.C.No.1241/2010, on

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1 (2018) 3 SCC 208

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2 AIR 2004 SC 4882

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3 2004 ACJ 1

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MFA No. 987 of 2018

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the file of the Senior Civil Judge & XIX MACT, at Chikkanayakanahalli, is modified to the aforesaid extent.

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iii. The insurance company shall satisfy the compensation in favour of the claimant at the first instance and then recover it from the owner of the offending vehicle bearing registration No.KA-44-H-4664.

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iv. The amount in deposit to be transferred 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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MFA No. 987 of 2018

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vi. Draw award accordingly.

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vii. No order as to costs.

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Sd/JUDGE

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JJ List No.: 1 Sl No.: 49