Allowed

National Insurance Co. Ltd., v. Sri. Mahabubsab S/O Husensab Madallikar

Karnataka HC8 Aug 2023MFA/100482/2018

Case brief

AI extract

What is this about?

Appeal by National Insurance Company challenging liability for accident compensation. Court found driver lacked license, validating insurance defense under Section 149(2), but held insurer must pay first and recover later per Supreme Court precedents. Interest adjusted to 6%.

What did the court decide?

Appeal allowed in part; award modified to sustain appellate liability and transmission to Tribunal; interest reduced to 6% per annum.

National Insurance Co. Ltd., Vs Sri. Mahabubsab S/O… — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC-D:8517 MFA No. 100482 of 2018

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 8^TH DAY OF AUGUST, 2023 BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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MISCELLANEOUS FIRST APPEAL NO.100482/2018(MV-I)

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BETWEEN:

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NATIONAL INSURANCE CO. LTD., REPRESENTED BY ITS BRANCH OFFICE, KRISHNA AGENCY BUILDING, P.B.ROAD, HAVERI-581110, REPRESENTED BY ITS ADMINISTRATIVE OFFICER.

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…APPELLANT

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(BY SMT. PREETI SHASHANK, ADVOCATE)

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AND:

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SRI. MAHABUBSAB S/O. HUSENSAB MADALLIKAR, AGED: 38 YEARS, OCC: MASON (GOUNDI), R/O: NAGENDRANAMATTI, TQ AND DIST: HAVERI-581110.

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Digitally signed by SUJATA SUBHASH PAMMAR

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NINGAPPAP S/O. GUDDAPPA MAJJAGI, AGE: 39 YEARS, OCC: BUSINESS, R/O: KARAJAGI, TQ AND DIST: HAVERI-581112.

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…RESPONDENTS

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(R1 IS SERVED; NOTICE TO R2 IS HELD SUFFICIENT)

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THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING TO CALL FOR THE RECORDS CONNECTED WITH MVC 238/2014 ON THE FILE OF ADDITIONAL SENIOR CIVIL AND A.M.A.C.T., HAVERI EXAMINE THE SAME AND SET ASIDE THE AWARD DATED 11.10.2017 AS AGAINST THE APPELLANT IN THE INTEREST OF JUSTICE.

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

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NC: 2023:KHC-D:8517 MFA No. 100482 of 2018

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JUDGMENT

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This appeal is filed by the National Insurance Company questioning the liability to pay the compensation fixed on the Insurance company.

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The nature and occurrence of the accident, coverage

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of insurance the offending vehicle by respondentInsurance Company is neither in question nor in dispute.

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Heard the learned counsel for the parties and perused the material available on record.

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In the present case, the Tribunal while awarding the compensation has fixed the liability on the Insurance Company. The offending vehicle is motorcycle bearing No.KA-31/A-1048 and the driver of the said motorcycle has caused the accident. But the said driver was not having driving license to drive the motorcycle. The said rider of the motorcycle was charge sheeted for one of the offence under Section 3 read with Section 181 of M.V. Act,

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3 - NC: 2023:KHC-D:8517 MFA No. 100482 of 2018

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1988 that the rider was not having driving license to ride the motorcycle. From the charge sheet, it is proved that the rider of the motorcycle was not having driving license. When the Police have issued notice under Section 134(c) of the Motor Vehicle Act,1988, it is the duty cast on the driver or owner to produce driving license before the Investigating Officer, but he has not produced and also the owner has an opportunity to produce driving license before the Tribunal, but not produced. Therefore, it is conclusively proved that the rider of the motorcycle was not having driving license to drive motorcycle as on the date of the accident. Therefore, the Insurance Company has successively established the defence as per Section 149(2) of the M.V. Act, 1988. Therefore, Insurance Company is not liable to indemnify the owner and to pay compensation.

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But, as per sub-sections (1),(5) and (7) of Section 149 of M.V. Act,1988, Insurance Company as if judgment debtor to pay the compensation at first instance to the

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4 - NC: 2023:KHC-D:8517 MFA No. 100482 of 2018

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claimant and then recover the same from the owner of the motorcycle also as per principle of law laid down by the Hon’ble Supreme Court in the case of New India Assurance Company Limited Vs. Yellavva w/o Yamanappa Dharanakeri and another reported in 2020 (2) KAR 484 and in the case of National Insurance Company Limited Vs. Swaran Singh and others reported in (2004) 3 SCC 297 . Accordingly, the order of pay and recovery is made. Therefore, the appeal filed by the Insurance Company is liable to be allowed in part.

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The Tribunal has ordered interest at 7% but the

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same is scaled down to 6% per annum. Therefore, the claimant is entitled for compensation what is determined by the Tribunal along with interest at 6% per annum from the date of petition till realization of the amount. Hence, I pass the following:

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ORDER

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i. Appeal is allowed.

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