M/S Shriram General Insurance Company Ltd. v. Master Suraj

Karnataka HC29 Aug 2023MFA/8307/2012

Case brief

AI extract

What is this about?

The Karnataka High Court allowed an appeal in part by the insurance company. While affirming liability to pay compensation due to lack of conclusive evidence proving no driving license, the court applied the 'pay and recovery' principle, directing the insurer to deposit compensation and recover it from the vehicle owner.

What did the court decide?

The appellant-insurance company must pay the awarded compensation within eight weeks and recover the amount by filing a suit or proceeding against the owner of the offending vehicle.

M/S Shriram General Insurance Company Ltd. Vs Master… — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC:31002 MFA No. 8307 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29^TH DAY OF AUGUST, 2023 BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI MISCELLANEOUS FIRST APPEAL NO. 8307 OF 2012 (MV-I)

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BETWEEN:

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M/S. SHRIRAM GENERAL INSURANCE COMPANY LTD REGIONAL OFFICE AT

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#5, 2^ND FLOOR, MONARCH CHAMBERS, INFANTRY ROAD, BANGALORE – 560 001

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…APPELLANT

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(BY SRI. B.C. SHIVANNEGOWDA,ADVOCATE)

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AND:

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MASTER C.S. SURAJ S/O. B.N. MANJUNATH, AGED ABOUT 6 YEARS, SINCE MINOR REPRESENTED BY FATHER/NATURAL GUARDIAN

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Digitally signed by JAI JYOTHI J Location: HIGH COURT OF KARNATAKA

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SRI B.N.MANJUNATH, S/O, NARAYANAPPA, AGED ABOUT 35 YEARS R/A NO.11, RAMAIAH LAYOUT S G PALYA, D.R COLLEGE POST, BANGALORE-36

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SINGARAM.M SARJAPURA VILLAGE ATTIBELE HOBLI, ANEKAL TALUK BANGALORE – 591 213

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…RESPONDENTS

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(BY SRI. DEVARAJ.M. ADVOCATE FOR SMT. SUNITHA M ADVOCATE FOR R1; NOTICE TO R2 IS HELD SUFFICIENT V/O DATED 31.08.2016)

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NC: 2023:KHC:31002 MFA No. 8307 of 2012

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 15.3.2012 PASSED IN MVC NO. 5866/2010 ON THE FILE OF THE XXI A.C.M.M AND XXIII A.S.C.J, BANGALORE, AWARDING A COMPENSATION OF RS. 2,38,000/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL DEPOSIT.

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

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JUDGMENT

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This is an appeal filed by the insurance company, aggrieved by the award passed in MVC No.5866/2012 dated 15.03.2012 on the file of the XXI ACMM AND XXIII A.S.C.J. Bengaluru.

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The claim petition is filed seeking compensation of an amount of Rs.25,00,000/- towards the injuries sustained by him in the motor vehicle accident. The case of the claimant is that on 14.06.2010, he along with his uncle went to shop to purchase snacks. After the purchase at about 4.00 p.m. while crossing the road west-east wise, in front of the Vinayaka Darshini Hotel on Tavarekere main road, suddenly the driver of the Mini tempo drove the same from Tavarekere north-south wise in a rash and negligent manner without observing the traffic rules and dashed against the appellant, due to which he

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3 - NC: 2023:KHC:31002 MFA No. 8307 of 2012

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sustained grievous injuries. Immediately after the accident, he was shifted to the St. John Medical College Hospital, wherein first aid treatment was given. As he had sustained grievous injuries, he was shifted to Ramakrishna Hospital for further management, wherein he took treatment as an inpatient from 14.06.2010 to 18.06.2010. He had sustained degloving injury over outer aspect of left foot and cut lacerated wound over left fore head and he underwent surgery. Wound debridement of the left foot was done and external fixator application to left ankle and skin grafting was also done on 17.06.2010. It had stated that he was inpatient again from 18.06.2010 to 28.06.2010. The external fixation was removed on 03.07.2010 and was discharged on 10.07.2010. He was advised for the follow up treatment and he spent an amount of Rs.5,00,000/towards medical expenses. It is the case of the insurance company that the driver of the vehicle was not having valid driving license and the police have filed the charge sheet under Sec.3(1) r/w Sec.181 of the Motor Vehicles Act along with the provisions under the IPC. The owner of the vehicle was set exparte, he filed his counter. It is submitted that that no driving license is produced by the owner of the vehicle. The

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4 - NC: 2023:KHC:31002 MFA No. 8307 of 2012

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court below on the issue of liability has held that the insurance company is liable to pay the compensation. While fastening the liability on the insurance company, the Court below has observed that the copy of the charge sheet marked as Ex.P-3 discloses that the crime has been registered against the driver of the offending vehicle under section 3 (1) r/w Sec. 181 of Motor vehicles Act. The charge sheet is not the conclusive proof. The respondent No.1 who is the owner/insurer of the offending vehicle is represented through its counsel to file objections. The respondent No.2 has not bothered to take notice to the counsel. Further the respondent No.1 had to produce the driving license of the driver of the insured vehicle. No material was placed by the respondent No.2 to show that

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the driver of the offending vehicle is convicted for the offence under section 3 (1) r/w Sec. 181 of Motor Vehicles Act. Further the driver of the offending vehicle is not a party to the petition. No notice is taken to the driver to produce the driving license. Hence, it was held that insurance company is liable to pay the compensation and the court below had granted the compensation of an amount of Rs.2,38,000/-.

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NC: 2023:KHC:31002 MFA No. 8307 of 2012

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Aggrieved thereby, the insurance company has filed this appeal. Sri B.C.Shivanne Gowda, learned counsel representing the insurance company submits that though they have adduced evidence of RW-1 and the police filed the charge sheet under section 3 (1) r/w Sec.181 of the Motor Vehicles Act also shows that he is not having a valid driving license. In that case, when there is clear violation of the terms and conditions of the policy and it is the case of no driving license, the tribunal ought not have fastened the liability on the insurance company. Learned counsel for the claimant submits that when it is the case of the insurance company that there is no driving license, the burden lies on the insurance company to prove the same by adducing the evidence. In this case except taking a plea and examining their own officer as RW-1 no other evidence is adduced by the insurance company and they have failed to discharge their burden. It is submitted that the court below had rightly held that the insurance company is liable to pay the compensation. In this case, the respondent No.2 was set exparte. Though notice is served on respondent No.2 by way of paper publication, none appeared on his behalf.

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NC: 2023:KHC:31002 MFA No. 8307 of 2012

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Having heard the learned counsels on either sides,

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perused the entire material on record. The contention of the insurance company is that when the charge sheet is filed under section 3 (1) r/w Sec.181 of the Motor Vehicles Act, it shows that there is no driving license to the driver of the vehicle. Once there is no driving license, there is violation of the terms and conditions of the insurance policy and the insurance company is not liable to pay the compensation. It is submitted that, even the charge sheet that is filed under Sec.181 of Motor Vehicles Act also supports the case of the insurance company. The court below ought to have absolved the insurance company from the liability.

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It is the case of the insurance company that there is no driving license with the driver of the vehicle and they are not liable to pay the compensation, and the burden lies on the insurance company. In this case, except taking plea there is no driving license, taking a clue from the charge sheet filed before the court under section 3(1) r/w Sec.181 of Motor Vehicles Act. No other positive evidence was adduced by the respondent insurance company. In that case, it cannot be held that it is in the knowledge of owner of the vehicle. Even if there is

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NC: 2023:KHC:31002 MFA No. 8307 of 2012

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violation of terms and conditions of the policy, the claimant being the third party to the insurance, is not concerned with the same. The owner of the vehicle has chosen not to appear either before this court or before the court below, though he had filed the counter but has not taken steps to contest the matter. In view of the same, the ends of justice would be met if the appeal is Allowed-in-part by applying the principle of pay and recovery. The insurance company shall pay the amount and recover the same from the owner of the offending vehicle.

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(a) Accordingly, the appeal is Allowed-in-part by applying the principle of pay and recovery, the appellant-insurance company shall pay the amount within a period of 8 (Eight) weeks and recover the same from the owner of the offending vehicle. On such deposit the claimant is entitled to withdraw the same without furnishing any security.

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(b) The amount that is deposited by the insurance company shall be transmitted forthwith to the court below.

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8 - NC: 2023:KHC:31002 MFA No. 8307 of 2012

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certified copy of the order passed by this Hon'ble court forthwith without any delay.

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(d) No Costs

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Pending miscellaneous petitions, if any, shall stand

closed.

SD/JUDGE

List No.: 1 Sl No.: 31

M/S Shriram General Insurance Company Ltd. v. Master Suraj

Case brief

What is this about?

What did the court decide?

M/S Shriram General Insurance Company Ltd. v. Master Suraj

Case brief

What is this about?

What did the court decide?

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