Partly allowed

United India Insurance Co. Ltd. v. Shri. B.P. Krishnappa

Karnataka HC25 Nov 2024MFA/8746/2011

Case brief

AI extract

What is this about?

This appeal challenges a Motor Vehicles Motor Accident Claims Tribunal award granting compensation. The High Court upheld liability but modified the remedy, directing the insurer to pay first and recover from the owner due to lack of a driving license, citing Supreme Court precedents on pay and recovery.

What did the court decide?

Compensation to be paid by insurance company first, then recovered from vehicle owner; liberty granted to file execution petition.

United India Insurance Co. Ltd. Vs Shri. B.P… — Motor Accident Claims | Karnataka HC (2024)

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1 - NC: 2024:KHC:48180 MFA No. 8746 of 2011

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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MISCELLANEOUS FIRST APPEAL NO.8746 OF 2011 (MV)

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BETWEEN:

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UNITED INDIA INSURANCE CO LTD REGIONAL OFFICE, SHANKARANARAYANA BUILDING, NO.25, M.G.ROAD, BANGALORE

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NOW AT 5^TH AND 6^TH FLOORS, KRISHI BAHVAN, HUDSON CIRCLE, BANGALORE - 560 001 REPRESENTED BY ITS MANAGER

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…APPELLANT

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(BY SRI. JANARDHAN REDDY, ADVOCATE)

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AND:

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Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA

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SHRI. B.P. KRISHNAPPA S/O LATE SHRI. PAPANNA, AGED ABOUT 40 YEARS, BALIGANAHALLI VILLAGE AND POST LAKKUR HOBLI, MALUR TALUK KOLAR DISTRICT - 563 103

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SHRI T SHANKAREGOWDA S/O SHRI THANEGOWDA, CHIRUVANAHALLI VILLAGE AND POST, CHALDIGANAHALLI POST, SRINIVASAPURA TALUK, KOLAR DISTRICT - 563 103

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…RESPONDENTS

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(BY SRI. N. GOPALA KRISHNA, ADVOCATE FOR R-1 R-2 SERVED)

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2 - NC: 2024:KHC:48180 MFA No. 8746 of 2011

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 23.02.2011 PASSED IN MVC NO.1985/2009 ON THE FILE OF THE XVI ADDITIONAL JUDGE, MACT, BANGALORE, AWARDING A COMPENSATION OF Rs.2,68,400/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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ORAL JUDGMENT

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The appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988 by the Insurance Company challenging the judgment and award passed by 16^th Addl. Judge, Court of Small Causes and MACT, Bengaluru. The Tribunal has fastened the liability on insurance company to pay the compensation by indemnifying the owner.

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It is the case of the claimant that on 04.12.2008 at 12.30 p.m. he was going towards Malur town from his village Baliganahalli on Masti-Malur Road by riding his Hero Honda motor cycle bearing registration No.KA-08-J-4304 and at that time one tractor-trailer bearing registration No.KA-07-T-3282 came from opposite direction with high speed in a rash and negligent manner

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3 - NC: 2024:KHC:48180 MFA No. 8746 of 2011

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and dashed against the claimant's motor cycle. Due to which the claimant sustained grievous injuries. Therefore, he has filed claim petition under Section 166 of M.V Act. The Tribunal has awarded compensation of Rs.2,68,400/by saddling burden on appellant/insurance company to pay the compensation by indemnifying the owner of tractor-trailer.

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The appellant/insurance company has preferred

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appeal on the ground that the tractor-trailer was not involved in the accident. Without prejudice to the contention that tractor-trailer was not involved in the accident but the driver of the tractor-trailer was not holding driving licence and subsequently, the name of driver was changed. Therefore, this attempt was made by the police in collusion with the claimant and owner of the tractor-trailer proves that the accused shown in the charge sheet as Gopinath was changed in subsequent additional charge sheet as Shankare Gowda. Therefore, submitted that it is an attempt to cover up the fraud committed that

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4 - NC: 2024:KHC:48180 MFA No. 8746 of 2011

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Gopinath was not having driving licence. Hence, the owner of tractor-trailer to cover up this mistake has changed the version by stating that he himself was driving tractor and caused the accident. There was an attempt made to change the name of accused just to help the owner of the tractor-trailer to avoid payment of compensation and put the burden on the insurance company. Further, there is lapse of 58 days in filing the complaint. Therefore, there was every manipulation in the complaint by falsely fixing the tractor-trailer bearing registration No.KA-07-T-3282 for causing the accident. Therefore, all these grounds are urged to allow the appeal by setting aside judgment and award passed by the Tribunal.

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On the other hand, learned counsel for respondent/claimant submitted that initially under the mistaken impression that driver was shown as Gopinath, but after realizing bonafide mistake committed in this regard, it was rectified that accused was Shankare Gowda.

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5 - NC: 2024:KHC:48180 MFA No. 8746 of 2011

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Therefore, it is submitted that there was alteration in mentioning the name of the accused and name of surety and hence, it was later rectified by filing additional charge sheet by the appellant. Hence, prayed for dismissal of the appeal.

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As per claimant, the accident was caused on 04.12.2008. The claimant has filed complaint before the police on 31.01.2009. There is delay of 58 days in lodging

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the complaint before the police, but Ex.P7 discharge summary and other material records prove that the claimant was admitted to the hospital on 04.12.2008 with history of road traffic accident.

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Ex.P7 is the discharge summary of Abhaya Hospital that on 04.12.2008 the claimant was admitted to the hospital with history of road traffic accident and that he was hit by another motor cycle and fell on the ground. Later a tractor ran over on the shoulder of the claimant. Therefore, at the very initial point of time while admitting to the hospital, the claimant has given information to the

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6 - NC: 2024:KHC:48180 MFA No. 8746 of 2011

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hospital that he was hit by tractor-trailer. Therefore, though there is delay of 58 days in lodging the complaint, but at very initial point of time in the hospital records, it is mentioned that claimant was hit by tractor-trailer. The reason given by the claimant for delay in lodging the complaint that he was under the impression that hospital authorities have informed to the police station about the accident, but hospital authorities have not sent any information to the police station. Later after discharge from the hospital, he came to know that complaint was not given and accordingly, he has lodged complaint to the police, by which time there was delay of 58 days in lodging the complaint.

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Considering all these aspects and as per the evidence though there is delay of 58 days in lodging the complaint that does not go to the core of the case by disbelieving the factum that accident was caused by tractor-trailer. Therefore, considering the fact that at the very initial point of time, the claimant has stated in the

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NC: 2024:KHC:48180 MFA No. 8746 of 2011

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hospital that he was hit by tractor-trailer, therefore this prove the fact of involvement of tractor-trailer in the accident and claimant has sustained injuries.

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Then coming to the question who was driving the tractor-trailer at the time of accident and who was made as accused is the issue to be decided in this case. While lodging the complaint, the claimant has not mentioned the name of the driver of the tractor-trailer. Later, the claimant and other witnesses who have witnessed the incident have given statement before the police that they came to know that one Gopinath was the driver of tractor-trailer who caused the accident. Therefore, during the course of investigation it is revealed that Gopinath was driving the tractor-trailer and accordingly, in the charge sheet the said Gopinath was arraigned as accused. But subsequently after filing the charge sheet by the police, the police have filed one more additional charge sheet by recording statement of the claimants and other witnesses on 10.08.2010 that one

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8 - NC: 2024:KHC:48180 MFA No. 8746 of 2011

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Shankare Gowda was driving the tractor-trailer and caused accident. This Shankare Gowda is the owner of the tractor-trailer who has got released the tractor-trailer from the police station by executing indemnity bond on 09.02.2009. Therefore, after lapse of more than 1½ year there was an attempt made altering the name of the accused in the criminal case pertaining to the accident and for this there is no cogent reasons by the police/investigating officer. Initially the charge sheet was filed against one Gopinath by showing Shankare Gowda as surety for the accused Gopinath and also for getting release of the vehicle, but subsequently the police have filed additional charge sheet giving explanation before the Magistrate that there was alteration of mentioning the name of the accused and the surety.

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Upon considering the entire records summoned by the Malur Police Station, it is evident that there was a deliberate attempt for altering the name of the accused subsequently. The indemnity bond proves that Shankare

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9 - NC: 2024:KHC:48180 MFA No. 8746 of 2011

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Gowda was the owner of the tractor-trailer. During the course of investigation, charge sheet is filed by showing Gopinath as accused by making accusations against him that he was driving tractor-trailer and caused the accident and after 1½ year charge sheet is filed against Gopinath by recording statement on 10.08.2010 from the very same complainant and witnesses showing Shankare Gowda was driving the tractor-trailer by showing him as accused. Therefore, considering all the scenarios evident from the evidence on record it is clear that there was a deliberate attempt made for altering the name of accused in the charge sheet, perhaps because Gopinath might not have driving licence as on the date and time of the accident. Therefore, it is proved from all the evidence on record on its preponderance of probabilities that there was an attempt made by altering the name of the accused in the charge sheet just to help the owner of the tractor-trailer to avoid giving compensation to the claimants in case if it is proved that Gopinath was not having driving licence, then the burden is on the owner of the tractor-trailer to pay the

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10 - NC: 2024:KHC:48180 MFA No. 8746 of 2011

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compensation to the claimants. Therefore, it is found that for this reason there was a deliberate attempt made for altering the name of the accused.

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Therefore, the driver of the tractor-trailer has caused the accident and as per the charge sheet filed by the police, Gopinath was arrayed as accused and he was not having driving licence. Hence, it is proved that there is infraction of violation of conditions of policy. The first respondent owner of the tractor and trailer has not produced the driving licence to show that Gopinath was having driving licence to drive the tractor-trailer. Due to such infraction found in the conditions of policy the insurance company is not liable to pay the compensation. However, the claimants are third parties to the tractortrailer.

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REGARDING PAY AND RECOVERY:

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In the present case, the Tribunal has observed that the driver of the tractor-trailer had not possessed driving licence at the time of the accident. Therefore, the

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11 - NC: 2024:KHC:48180 MFA No. 8746 of 2011

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Tribunal is not correct in fastening liability on the Insurance Company to pay the 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 the driver was not holding driving licence, then as per Sub-sections (1), (4), (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 the owner of the tractor-trailer. Accordingly, the order of pay and recovery is made as per the principle of law laid down by the Hon’ble Supreme Court in the cases of PAPPU AND OTHERS Vs. VINOD KUMAR LAMBA AND ANOTHER¹ ; NATIONAL INSURANCE COMPANY LIMITED VS. SWARAN SINGH AND OTHERS² and also as per the full bench decision of this Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED VS.

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1 (2018) 3 SCC 208

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2 (2004) 3 SCC 297

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12 - NC: 2024:KHC:48180 MFA No. 8746 of 2011

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YELLAVVA AND ANOTHER³ . Accordingly, an order of pay

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and recovery is made. To this extent, the judgment and award passed by the Tribunal is modified.

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Accordingly, an order of pay and recovery is made directing the insurance company to pay the compensation at the first instance and then recover the same from the second respondent/owner of tractor-trailer as per law. During recovery process, appellant/Insurance Company is given liberty to file execution petition directly before concerned jurisdictional Court and may seek attachment of movable or immovable properties till recovery of amount from respondent No.2/owner of offending vehicle. Accordingly, an order of pay and recovery is made.

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Accordingly, I proceed to pass the following:

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ORDER

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i. The appeal filed by the insurance company is

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allowed .

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3 2020 ACJ 2560

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13 - NC: 2024:KHC:48180 MFA No. 8746 of 2011

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ii. The impugned judgment and award dated 23.02.2011 passed in MVC No.1985/2009 by the XVI Addl. Judge, MACT, Bangalore City, is modified to the extent that appellant/Insurance Company shall pay the compensation amount to the claimant at the first instance and then recover the same from the owner of the tractor-trailer bearing No.KA-07-T-3282 and 3283.

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iii. The amount in deposit, if any, shall be transmitted to the Tribunal forthwith.

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iv. Registry is directed to transmit the TCR along with copy of this order to the Tribunal forthwith.

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SD/(HANCHATE SANJEEVKUMAR) JUDGE

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RR,DR

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List No.: 1 Sl No.: 19

United India Insurance Co. Ltd. v. Shri. B.P. Krishnappa

Case brief

What is this about?

What did the court decide?

United India Insurance Co. Ltd. v. Shri. B.P. Krishnappa

Case brief

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