Allowed

Royal Sundaram Allainace Insurance Co.Ltd., v. Ramappa Siddappa Gondyal

Karnataka HC9 Oct 2023MFA/21974/2013

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed appeals by an insurance company against liability to pay compensation. While the company was exonerated from direct liability due to the driver lacking a valid license, the court ordered the company to pay first and later recover the amount from the vehicle owner under Section 149 of the Motor Vehicles Act, based on Supreme Court precedents.

What did the court decide?

Insurance company ordered to pay compensation to claimants first and later recover the amount from the vehicle owner with liberty to file execution.

Royal Sundaram Allainace Insurance Co.Ltd., Vs… — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC-D:12177 MFA No. 21975 of 2013 C/W MFA No. 21974 of 2013

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 9^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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MISCELLANEOUS FIRST APPEAL NO.21975/2013(MV) C/W MISCELLANEOUS FIRST APPEAL NO.21974/2013(MV)

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IN MFA.NO.21975/2013:

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BETWEEN:

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ROYAL SUNDARAM ALLAINACE INSURANCE COMPANY LIMITED, 315 ARENSA CORNOR 3^RD FLOOR, PLOT NO.71 SECTOR 17, NASHI NAVI MUMBAI-400703, NAVI MUMBAI, REPRESENTED BY ITS AUTHORIZED OFFICER, ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED, LEGAL DEPARTMENT, SUBRAMANIAN BUILDING, II FLOOR, CLUB-HOUSE ROAD, ANNASALAI, CHENNAI-600002.

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…APPELLANT

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(BY SRI G. N. RAICHUR, ADVOCATE)

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AND:

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Digitally signed by BHARATHI H M

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SHRI RAJU @ RAJAPPA S/O. GIRIYAPPA ALADAGERI, AGE: 32 YEARS, OCC: AGRICULTURE, R/O: NITAPALLI VILLAGE, TQ: RANEBENNUR, DIST: HAVERI.

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SURENDRA D. SHARMA, AGE: 37 YEARS, OCC: BUSINESS, R/O: VASTU SANKALP CO-OP HOUSING, SOCIETY C-WING, ROOM NO.701 PLOT NO.10 SEC NO.10, P.NO.61/62 AT KAMOTHE, TQ: PANVEL, DIST: RAIGAD NAVI MUMBAI, (MAHARSTRA STATE), OWNER OF CANTER GOODS VEHICLE, BEARING REG.NO.MH-43/U-8078 …RESPONDENTS (BY SRI ANJANEYA M., ADVOCATE FOR R1; NOTICE TO R2 IS HELD SUFFICIENT)

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NC: 2023:KHC-D:12177 MFA No. 21975 of 2013 C/W MFA No. 21974 of 2013

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THIS IS MFA FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO CALL FOR THE RECORDS HEAR THE PARTIES AND SET ASIDE THE JUDGMENT AND AWARD DATED 01.04.2013 IN MVC NO.371/2010 PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE AND ADDL. MOTOR ACCIDENT CLAIMS TRIBUNAL, RANEBENNUR, BY ALLOWING THIS APPEAL WITH COST IN THE ENDS OF JUSTICE AND EQUITY.

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IN MFA.NO.21974/2013:

BETWEEN:

…APPELLANT

(BY SRI G. N. RAICHUR, ADVOCATE)

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AND:

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SHRI RAMAPPA SIDDAPPA GONDYAL, AGE: 34 YEARS, OCC: AGRICULTURE AND COOLIE, R/O: NITAPALLI VILLAGE, TQ: RANEBENNUR, DIST: HAVERI.

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SURENDRA D. SHARMA, AGE: 37 YEARS, OCC: BUSINESS, R/O: VASTU SANKALP CO-OP HOUSING, SOCIETY C-WING, ROOM NO.701 PLOT NO.10 SEC NO.10, P.NO.61/62 AT KAMOTHE, TQ: PANVEL, DIST: RAIGAD NAVI MUMBAI, (MAHARSTRA STATE), OWNER OF CANTER GOODS VEHICLE, BEARING REG.NO.MH-43/U-8078

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…RESPONDENTS

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(BY SRI ANJANEYA M., ADVOCATE FOR R1; NOTICE TO R2 IS HELD SUFFICIENT)

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THIS IS MFA FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO CALL FOR THE RECORDS HEAR THE PARTIES AND SET ASIDE THE JUDGMENT AND AWARD DATED 01.04.2013 IN MVC NO.457/2010 PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE AND ADDL. MOTOR ACCIDENT CLAIMS TRIBUNAL, RANEBENNUR, BY ALLOWING THIS APPEAL WITH COST IN THE ENDS OF JUSTICE AND EQUITY.

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NC: 2023:KHC-D:12177 MFA No. 21975 of 2013 C/W MFA No. 21974 of 2013

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

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JUDGMENT

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MFA No.21975/2013 and 21974/2013 are filed by the insurance company challenging the liability fastened on the insurance company to pay compensation.

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Factum of accident and the claimant sustained injuries in the accident are not disputed. The only disputed fact is that the insurance company is not liable to pay compensation on the ground that the driving license produced is a fake license.

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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 by determining the compensation has fixed liability on the insurance company of the canter goods vehicle bearing No.MH-43/U-8078. It is submitted by the learned counsel for the insurance company that Ex.P19-copy of driving license is a

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- 4 - NC: 2023:KHC-D:12177 MFA No. 21975 of 2013 C/W MFA No. 21974 of 2013

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manipulated document, in which the date of renewal of driving license is manipulated in such a way that the covering the risk as on the date of the accident. But, it is over written.

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Ex.P.19 is a zerox copy of driving license. The owner of the canter goods vehicle has not produced original driving license. EX.R.2 is the extract of register maintained in the RTO, Mumbai from whom driving license are issued. RW.1 is the official; working in the office of the RTO Mumbai has stated that pertaining to driver of canter lorry what is found in the Ex.P19-xerox of driving license, the original records are not available. In the Ex.R2-extract of the register, the number of driving license found in Ex.P19 is not found. Therefore, there is a force in the argument canvassed by the learned counsel for the insurance company. Ex.P.19 is the zerox copy of driving license which is seriously disputed by the insurance company.

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RW1 is the official of RTO Mumbai has stated that

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there is no particular of driving license issued to the

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5 - NC: 2023:KHC-D:12177 MFA No. 21975 of 2013 C/W MFA No. 21974 of 2013

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person who is shown in the Ex.P.19. Therefore, there is no cogent evidence placed before the Tribunal that the driver of the canter lorry was holding driving license. Hence, in the absence of driving license, it can be held that the driver of canter lorry without driving license driven lorry and caused accident. In this way, when the evidence is considered on all it’s preponderance of probability, it is not proved that driver of canter lorry is not holding driving license. Therefore, insurance company has succeeded in establishing that the driver of the canter lorry is not having driving license. Therefore, the Insurance Company is exonerated from paying compensation to the claimants. However, as per Sub-section (2) of Section 149 of Motor Vehicle Act, when the Insurance Company established the fact that driver was not holding driving license, then as per Sub-sections (1), (5), (7) of Section 149 of Motor Vehicle Act, the Insurance Company as if the judgment debtor shall satisfy the claim in respect of third parties and then recover the same from owner of the offending vehicle. Accordingly, order of pay and recovery is made as per the

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6 - NC: 2023:KHC-D:12177 MFA No. 21975 of 2013 C/W MFA No. 21974 of 2013

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principle of law laid down by the Hon’ble Supreme Court in the cases of Pappu and others vs. Vinod Kumar Lamba and another¹ and also as per the full bench decision of this Court in the case of New India Assurance Co. Ltd., Bijapur vs. Yallavva w/o. Yamanappa Dharanakeri² . Hence, order of pay and recovery is made.

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The insurance company is at liberty to file execution petition directly before the Executing Court as per Part-II of Code of Civil Procedure r/w Order 21 of CPC for execution against the owner of Canter goods vehicle bearing No.MH-43/U-8078 as per principles of law laid down by the Hon’ble Supreme Court in the case of Oriental Insurance Co. Ltd. Vs. Nanjappa and others³ .

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Thus, an order of pay and recovery is made. To this extent, the judgment and award passed by the Tribunal is modified.

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1 (2018) 3 SCC 208

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2 2020 (2) AKR 484.

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3 (2004) 13 SCC 224

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NC: 2023:KHC-D:12177 MFA No. 21975 of 2013 C/W MFA No. 21974 of 2013

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In the result, I proceed to pass the following:

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ORDER

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i) Both the appeals are allowed.

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ii) The common judgment and award dated 01.04.2013 passed in MVC Nos.371/2010, and MVC No.457/2010 by the Addl. Senior Civil Judge and AMACT, Ranebennur is stands modified holding that the insurance company is exonerated from payment of compensation. However, the appellant-insurance company shall pay compensation at the first instance to the claimant and then recover it from the owner of offending canter goods vehicle bearing Registration No.MH-43/U-8078.

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iii) The insurance company is at liberty to file execution petition before the jurisdictional executing Court as against the owner of offending canter lorry and may seek attachment

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