The Regional Manager Vs Basavaraju

THE REGIONAL MANAGER HDFC ERGO GIC LTD B.N ROAD NEAR MYSURU TRADE CENTRE OPP KSRTC SUBURB BUS STAND MYSURU AT NOW REP BY LEGAL MANAGER HDFC ERGO GIC LTD., 2^ND FLOOR NO.25/1, BUILDING NO.2 SHANKARANARAYANA BUILDING M.G.ROAD BANGALORE – 560 001

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…APPELLANT

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(BY SRI. PRADEEP B, ADVOCATE)

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Digitally signed by MADHUSHREE H Location: High Court of Karnataka

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AND:

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BASAVARAJU

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S/O DODDABASAVEGOWDA AGED ABOUT 40 EYARS R/O KUPYA VILLAGE KASABA HOBLI T NARASIPURA TALUK MYSURU DISTRICT

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SHASHIKUMAR @ SHASHI S/O MAHADEVA AGED ABOUT 24 YEARS R/O KUPYA VILLAGE KASABA HOBLI

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NC: 2025:KHC:27979 MFA No. 2719 of 2021

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HC-KAR

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T NARASIPURA TLAUK MYSURU DISTRICT

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…RESPONDENTS

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(BY SRI. GOVIND BHARATH M V, ADVOCATE)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 06.10.2020 PASSED IN MVC NO.1202/2016, ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, TIRUMAKUDALU NARASIPURA AND TO PASS SUCH OTHER ORDER OR ORDERS AS THIS HON’BLE COURT DEEMS FIT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE INCLUDING THE COSTS IN THE INTEREST OF JUSTICE AND EQUITY.

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

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CORAM: HON'BLE MR. JUSTICE T.M.NADAF

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ORAL JUDGMENT

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Though the matter is listed for ‘orders’ with the

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consent of both the learned counsel for the parties, the same is taken up for ‘final disposal’.

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This appeal is by the appellant – insurance company against the judgment and award dated

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HC-KAR

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06.10.2020 in MVC No.1202/2016, passed by the Senior Civil Judge and MACT, Tirumakudalu Narasipura (for short ‘Tribunal’).

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The date of accident, injuries sustained by

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respondent No.1 / claimant, involvement of the offending vehicle are not in dispute. The only dispute is with regard

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to the liability to pay the compensation, with a liberty to recover the same, as per the order passed by the Tribunal.

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Heard Sri.B.Pradeep, learned counsel appearing for the appellant and Sri.Govind Bharath M.V., learned counsel appearing for the respondent. Perused the entire appeal papers.

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Sri.Pradeep.B, vehemently submitted that the Tribunal having taken note of the fact that respondent No.2 – owner of the vehicle admitted in his crossexamination that he is not having any valid Driving License (DL) as on the date of the accident, proceeded to direct the appellant/insurance company to pay the compensation

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NC: 2025:KHC:27979 MFA No. 2719 of 2021

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HC-KAR

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with a liberty to recover the same from the owner of the vehicle. In the absence of DL and in the admission of the fact that the rider-cum-owner of the vehicle was not possessing a valid and effective DL, the insurance company ought to have been exonerated from the payment and sought to allow the appeal, while settingaside the impugned judgment and award, so far as the appellant -insurance company is concerned.

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Refuting the submissions of the learned counsel for the appellant-insurance company, Sri.Govind Bharath M.V., learned counsel appearing for the

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claimants/respondents with all vehemence submitted that in view of the law laid down by the Hon’ble Apex Court in

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the case of PAPPU AND OTHERS -Vs- VINOD KUMAR

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LAMBA AND ANOTHER¹ , the Hon’ble Apex Court has held that even in the absence of DL, if the claimant is a third party, the insurer of the offending vehicle is primarily responsible to pay the compensation, with liberty to 1 (2018) 3 SCC 208

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HC-KAR

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recover the same from the owner of the vehicle. In view of

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the settled position of law, the appeal filed by the appellant is not maintainable and sought to dismiss the appeal.

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Having heard the learned counsel for the

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parties, the only point which arises for consideration is:

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“Whether the Tribunal is justified, in directing the insurance company primarily liable to pay the compensation with liberty to recover the same from the owner of the vehicle?

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My answer to the above point for the

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consideration is in ‘affirmative’ for the following reasons:

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As per the contention of the learned counsel for the appellant – insurance company, the respondent No.1 appeared filed his written statement and was examined as RW-1, however, he has not produced the DL. The Tribunal at paragraph No.41 has held as follows:

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“41. Even, the respondent No.1 has been examined as RW.1. Even in the cross-examination, RW.1 has admitted that, he had appeared before the Criminal

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HC-KAR

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Court in C.C.No.254/2014 and pleaded guilty, thereby paid fine of Rs.2,500/-. Thus, it is very much clear that, the respondent No.1 had not possessed driving license as on the date of the accident.”

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That apart, in the cross-examination there is a

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clear admission that he was not possessing valid and effective DL as on the date of the accident, for which he has paid fine under Section-181 of MV Act. The fact is not in dispute. However in view of the principle of law laid

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down by the Hon’ble Apex Court in the case of PAPPU

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AND OTHERS -VVINOD KUMAR LAMBA AND

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ANOTHER supra, the insurance company is primarily liable to pay the compensation with a liberty to recover the same from the owner of the offending vehicle, which is no more res-integra. In view of the settled position of law, the appeal filed by the insurance company fails, and accordingly, the following order is passed:

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ORDER

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i) The appeal filed by the insurance company is

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dismissed.

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HC-KAR

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ii) The impugned judgment and award dated 06.10.2020 in MVC No.1202/2016, passed by

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the Senior Civil Judge and MACT, Tirumakudalu Narasipura is confirmed.

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iii) The amount in deposit before the Court shall be transmitted to the concerned Tribunal for disbursement.

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iv) The respondent No.1 - claimant before the Tribunal is permitted to withdraw the amount in deposit before this Court, deposited by the appellant – insurance company in compliance of the interim order passed by this Court.

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v) The balance amount along with accrued interest at 6% per annum, shall be deposited by insurance company within a period of six weeks.

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vi) On deposit, the same shall be released in favour of the respondent on proper identification.

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