The Sr. Dn. Manager Vs Bhupal Siddappa Myageri

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1 - NC: 2025:KHC-D:8907 MFA No. 20110 of 2012

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 17^TH DAY OF JULY, 2025 BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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MISCELLANEOUS FIRST APPEAL NO.20110 OF 2012 (MV-I)

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BETWEEN:

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THE SR. DN. MANAGER, DIVISIONAL OFFICE, THE ORIENTAL INSURANCE COMPANY LIMITED, KIRLOSKAR ROAD, BELGAUM, THROUGH ASSISTANT MANAGER, ORIENTAL INSURANCE COMPANY LIMITED, REGIONAL OFFICE, SUMANGALA COMPLEX, LAMINGTON ROAD, HUBBALLI.

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… APPELLANT

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(BY SRI. S.K. KAYAKAMATH, ADVOCATE)

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AND:

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BHUPAL SIDDAPPA MYAGERI, AGE: 58 YEARS, OCC: AGRICULTURE, R/O: NIPANI, TQ: CHIKODI.

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MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.08.14 12:07:11 +0530

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SRI. BALAPPA RAMAGONDA PATIL, AGE: MAJOR, OCC: TRANSPORT BUSINESS, R/O: PRABHU NAGAR, POST: NITTUR, TQ: KHANAPUR, DIST: BELAGAVI, (OWNER OF HEAVY GOODS VEHICLE BEARING NO.KA 22/6140).

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… RESPONDENTS

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(BY SRI. RAVIRAJ C. PATIL, ADVOCATE FOR R2; R1-SERVED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF THE MV ACT 1988, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED: 09-11-2011 PASSED IN M.V.C. NO.1848/2006 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-IV, BELGAUM, AT BELGAUM.

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NC: 2025:KHC-D:8907 MFA No. 20110 of 2012

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HC-KAR

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

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)

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This appeal is filed by the appellant/Insurance

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Company challenging the judgment and award dated 09.11.2011 passed in MVC No.1848/2006 on the file of Presiding Officer, Fast Track Court-IV, Belgaum¹ , questioning the liability fastened on it to pay the compensation.

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For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Tribunal.

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The factum of accident and injuries sustained by the claimant are not in dispute. The only disputed question is with regard to fastening liability on it to pay the compensation.

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1 (hereinafter referred to as ‘the Tribunal’ for short)

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3 - NC: 2025:KHC-D:8907 MFA No. 20110 of 2012

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HC-KAR

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Learned counsel for the appellant/Insurance Company has taken a specific contention that the rider of the motorcycle M.80 bearing Reg.No.KA-23/H-6703 was not holding driving licence to ride the said motorcycle. When it is specific contention taken by the Insurance Company that as on the date of accident, the rider of the motorcycle did not possess a driving licence, then it is burden on the owner of the motorcycle to prove that the rider was holding driving licence as on the date of accident.

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Upon considering the documentary evidence at

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Ex.R-3, which is driving licence extract issued by the transport authorities and produced by the Insurance Company, it is clear that the rider was holding driving licence from 12.10.2002 to 11.10.2005, but it was expired on 11.10.2005.

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The accident is taken place on 12.02.2006. On that day, the driving licence was not renewed, as the

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4 - NC: 2025:KHC-D:8907 MFA No. 20110 of 2012

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HC-KAR

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driving licence had expired on 11.10.2005 itself and the grace period of 30 days from the date of expiry had lapsed. Hence, the benefit of this grace period is not available to the rider of the motorcycle and owner to claim that the valid period is extended.

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Subsequently, on 14.02.2006, the driving

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licence was renewed, two days after the date of the accident. Therefore, Ex.R-3-licence particulars prove the fact that, as on the date of accident, the rider of the motorcycle was not holding valid driving licence. Hence, the Insurance Company is not liable to pay compensation. Therefore, the Insurance Company is liable to be exonerated and the owner of the motorcycle shall pay compensation to the claimant.

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REGARDING PAY AND RECOVERY:

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In the present case, the Tribunal has observed

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that the rider of the motorcycle had not possessed valid driving licence at the time of the accident, but the Tribunal

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5 - NC: 2025:KHC-D:8907 MFA No. 20110 of 2012

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HC-KAR

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committed an error by fastening liability both on owner and insurer of the offending motorcycle. However, as per Sub-section (2) of Section 149 of the MV Act, when the Insurance Company establishes the fact that the rider was not holding valid driving licence, then, as per Sub-sections (1), (4), (7) of Section 149 of the Act and also 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 ANOTHER² ; NATIONAL INSURANCE COMPANY LIMITED VS. SWARAN SINGH AND OTHERS³ and also as per the full bench decision of this Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED VS. YELLAVVA AND ANOTHER⁴ , the appellant/Insurance Company shall satisfy the claim at the first instance to the claimant and then recover it from the owner of the motorcycle. However, the Insurance Company is at liberty to file execution petition before the jurisdictional executing Court as against the owner of the

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2 (2018) 3 SCC 208

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3 (2004) 3 SCC 297

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4 2020 ACJ 2560

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6 - NC: 2025:KHC-D:8907 MFA No. 20110 of 2012

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HC-KAR

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motorcycle and may seek attachment of movables or immovable properties or both, till recovery is made and also the recovery process can be as per the decision of the Hon’ble Supreme Court in ORIENTAL INSURANCE CO. LTD., VS. NANJAPPAN AND OTHERS⁵ (Nanjappan case).

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Just because an order of pay and recovery made, that does not mean that the Insurance Company is jointly and severally liable to pay compensation along with the owner of the motorcycle. As discussed above, the benefit of pay and recovery is to the third party. Since, the claimant/respondent No.1 in this case is a third party to the motorcycle, by exonerating the Insurance Company, it is directed the Insurance Company to pay compensation at the first instance, then recover it from the owner of the motorcycle. Therefore, the appeal filed by the Insurance Company is liable to be allowed in part.

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5 2004 AIR SCW 952.

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NC: 2025:KHC-D:8907 MFA No. 20110 of 2012

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HC-KAR

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Hence, I proceed to pass the following:

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ORDER

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i. The appeal is allowed in part .

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ii. The judgment and award dated 09.11.2011 passed in MVC No.1848/2006 on the file of Presiding Officer, Fast Track Court-IV, Belgaum, stands modified.

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iii. The liability fastened on the Insurance Company to pay compensation is set aside.

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iv. The insurance company shall satisfy the claim at the first instance to the claimant then recover it from the owner of the motorcycle.

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v. The Insurance Company is at liberty to file execution petition before the jurisdictional executing Court as against the owner of the motorcycle and may seek attachment of movables or immovable properties or both, till recovery is made and also the recovery process can be as per the decision of the Hon’ble Supreme Court in

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Nanjappan case (Supra).

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