Dismissed

Sri Kantharaju v. Smt. Bhagyamma

Karnataka HC2 Dec 2024MFA/9615/2013

Case brief

AI extract

What is this about?

Appeal by the motorcycle owner against a tribunal award fixing his liability because the rider lacked a licence for two-wheelers despite holding one for heavy vehicles. The High Court upheld the tribunal's finding but directed pay-and-recovery: insurer pays compensation first, then recovers from owner. Appeal dismissed.

What did the court decide?

Insurer to pay compensation at first instance with liberty to recover from owner via execution; appeal dismissed; amount in deposit transmitted to Tribunal.

Sri Kantharaju Vs Smt. Bhagyamma — Insurance | Karnataka HC (2024)

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1 - NC: 2024:KHC:49358 MFA No. 9615 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 9615 OF 2013 (MV-D)

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BETWEEN:

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SRI KANTHARAJU S/O ASHWATH AGED ABOUT 33 YEARS RESIDING AT NO.32, SHIVARA MARAGOWDANAHALLI POST KEROGODU HOBLI MANDYA TALUK MANDYA DISTRICT 571401. (BY SRI. KEMPARAJU.,ADVOCATE)

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…APPELLANT

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AND:

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Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA

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SMT. BHAGYAMMA W/O LATE SHIVAIAH AGED ABOUT 45 YEARS MAHARNAVAMIDODDI KOPPA HOBLI MADDUR TALUK 571428

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SMT KAVITHA M.S. D/O LATE SHIVANNA W/O SRI NAVEEN KUMAR, AGED ABOUT 28 YEARS, R/O THENKANAHALLY VILLAGE, MALUR HOBLI, CHANNAPATNA TALUK, RAMANAGARA DISTRICT, PIN 562138

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SMT SWETHA M.S. D/O LATE SHIVAIAH, W/O SRI SHAVARAMU, AGED ABOUT 26 YEARS

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2 - NC: 2024:KHC:49358 MFA No. 9615 of 2013

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R/O HUULUVADI VILLAGE MALURU HOBLI CHANNAPATNA TALUK, RAMANAGARA DISTRICT 562138

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SMT GEETHA M.S D/O LATE SHIVANNA, W/O SRI PRANESH, AGED ABOUT 24 YEARS R/O HULUVADI VILLAGE MALURU HOBLI CHANNAPATNA TALUK, RAMANAGARA DISTRICT 562138

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THE BRANCH MANAGER THE ORIENTAL INS. CO.LTD., 1ST FLOOR, M.H.BORAIAH BUILDING V.V. ROAD, MANDYA 571401

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…RESPONDENTS

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(BY SMT B L ASHA .,ADVOCATE FOR R1 TO R4 SRI R GOVINDARAJAN, ADVOCATE FOR R5)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21.06.2013 PASSED IN MVC NO.403/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, MADDUR, AWARDING COMPENSATION OF Rs.2,93,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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ORAL JUDGMENT

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This appeal is by the owner under Section 173(1) of the Motor Vehicles Act, 1988, challenging the judgment and award

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3 - NC: 2024:KHC:49358 MFA No. 9615 of 2013

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dated 21.6.2013 passed in MVC No.403/2012 by the Senior Civil Judge, MACT, Maddur, questioning his liability.

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The factum of accident and death of the deceased are not in dispute. The disputed question is regarding the liability to pay compensation.

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The Tribunal while awarding compensation has held that the appellant – owner is liable to pay the compensation by exonerating the insurance company on the reason that the rider of offending motor cycle bearing No.KA-05-X-6234 was not holding a driving licence to drive a two wheeler, but was holding a licence to drive a Heavy Transport Vehicle and Heavy Passenger Vehicle. Therefore, on this reason that it was held that the owner of the motor cycle is liable to pay the compensation.

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Ex.R1 is the DL extract of the rider of the motor cycle bearing No.KA-05-X-6234, which proves that the rider was holding a driving licence to drive a Heavy Transport Vehicle and Heavy Passenger Vehicle, but there is no evidence that the rider of the motor cycle was having a driving licence of motor cycle also. The Tribunal is correct in holding that the rider of

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NC: 2024:KHC:49358 MFA No. 9615 of 2013

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offending motor cycle did not have the driving licence to ride a motor cycle. When the rider of offending motor cycle was having the driving licence to drive the class of vehicle, such as Heavy Transport Vehicle and Heavy Passenger Vehicle, he cannot be said to have being authorized also to drive the motor cycle. The motor cycle is a different class of vehicle. Therefore, for class of vehicle of motor cycle, the rider of motor cycle was not having the driving licence. Therefore, the owner alone shall pay the compensation. Accordingly, the Tribunal is correct in exonerating the insurance company.

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However, the deceased was a third party to the motor cycle as he was hit by the motor cycle. Therefore, to protect the interest of a third party, an order of pay and recovery is necessarily to be made. Hence, 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 a 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 motor cycle. Accordingly, the order of pay and recovery is made as

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5 - NC: 2024:KHC:49358 MFA No. 9615 of 2013

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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

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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. YELLAVVA AND ANOTHER³ . Hence, it is directed to the Insurance Company to pay compensation at the first instance and then recover it from the owner of the motor cycle. Liberty is reserved to the Insurance Company to file an execution petition against the owner of the motor cycle and may seek for attachment of movable and immovable property of the owner of motor cycle for recovery of amount from the owner of motor cycle.

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