Research › Search › Judgment

Karnataka High Court · body

2010 DIGILAW 968 (KAR)

Muneendra v. Srinivasappa

2010-09-07

D V SHYLENDRA KUMAR, K.N.KESHAVANARAYANA

body2010
Judgment :- 1) These two appeals filed under Section 173(1) of Motor Vehicles Act, one by the Insurance Company and other by the claimant, are directed against the judgment and award dated 17.6.2005 passed by MACT-III, Bangalore, IN MVC No.2644/2002. 2) The claim petition was filed under Section 166 of the Motor Vehicles Act seeking compensation for the personal injuries said to have been sustained by claimant in the motor vehicle accident that occurred on 25.03.2002 as a result of the tempo bearing registration No.KA.06.2696 dashing against the scooter bearing registration No.KA.04.Q.1027, which he was riding. The claim petition was filed against the owner and insurer of the goods tempo. The owner and the insurer of the tempo contested the petition. The insurer in its objections filed before the Tribunal inter alia contended that, though it has issued a policy of insurance in respect of the offending vehicle and it was in force as on the date of accident, since the driver of the offending vehicle was not possessing a valid and effective driving licence to drive the class vehicle involved in the accident as on that date, it is not liable to indemnify the insured. During the enquiry, the claimant examined himself. However, the respondents did not lead any evidence. 3) After hearing both sides, the Tribunal by the judgment under appeal, after answering the issue regarding actionable negligence in favour of the claimant, proceeded to quantify the compensation payable to the claimant at Rs.30,000/- since the insurer of the offending vehicle had not led any evidence in support of its contention that the driver of the offending vehicle was not possessing valid and effective driving license, the Tribunal held that both the owner and insurer are jointly liable to satisfy the award. Being dissatisfied with the quantum of compensation, the claimant and being aggrieved by the judgment of the Tribunal fastening the liability on it, the insurer are before this Court in these appeals. 4) Heard both sides. Being dissatisfied with the quantum of compensation, the claimant and being aggrieved by the judgment of the Tribunal fastening the liability on it, the insurer are before this Court in these appeals. 4) Heard both sides. During the course of the argument, Sri O. Mahesh, learned counsel appearing for the Insurance Company brought to the notice of this Court that in respect of the very same accident, the rider of the motor vehicle, who also sustained some injuries, had filed claim petition in MVC No.2643/2002, wherein the insurer had taken the same contention and also in support of the said contention, the Insurance Company had led evidence by examining one of its officer and also had produced the documentary evidence, namely, the driving license extract issued by the concerned RTO to show that the driver of the offending vehicle did not possess valid and effective driving licence to drive the class of vehicle involved in the accident. However, the Tribunal without adverting to the said evidence, proceeded to fasten the joint liability on the Insurance Company and against the said judgment both the insurer and the claimant had filed appeals in MVC Nos. 6929/2005 and 4315/2005 and both the appeals were heard and disposed of by this Court on 06.09.2010, wherein this Court has set aside the judgment of the Tribunal and the matter has been remanded to the Tribunal for consideration of the defence raised by the effect whether the driver of the offending vehicle possessed valid and effective driving licence and also with regard to the quantum of compensation. 5) In view of the above, Sri. O. Mahesh submits that since this matter also arise out of the same accident and the defence raised in this case is also same, in order to avoid possible conflicting decisions, this matter also requires to be remanded to the Tribunal for fresh disposal with a direction to the Tribunal to post both the matters before one Court and to proceed further. 6) Sri. Chandrachooda, learned counsel appearing for the claimant though did not dispute the fact that another claim petition arising out of the same accident had been remanded to the Tribunal by this Court, submitted that since in this case the insurer has not produced any evidence to substantiate its contention, there is no ground for remand of this case. 6) Sri. Chandrachooda, learned counsel appearing for the claimant though did not dispute the fact that another claim petition arising out of the same accident had been remanded to the Tribunal by this Court, submitted that since in this case the insurer has not produced any evidence to substantiate its contention, there is no ground for remand of this case. 7) The fact that the two claim petitions arose out of the same accident is not in dispute. The claim petitions were by the rider and the pillion rider of the scooter. However, from the perusal of the records, it is noticed that both the claim petitions were pending before different Courts, though they were represented by one and the same Advocates. It appears, none of the parties had made any endeavor to bring to the notice of the Tribunal about the pendency of the other claim petition and no efforts appears to have been made to consolidate both the claim petitions. Nevertheless, now it is brought to the notice of this Court that in the appeals arising out of the one claim petition, this Court has set aside the judgment and award and has remanded the matter to the Tribunal for fresh consideration in view of the fact that the Tribunal had not even adverted to the oral and documentary evidence produced by the Insurer with regard to its contention that the driver of the offending vehicle did not possess valid and effective driving licence as on the date of accident. In view of the fact that the above two appeals arise out of the same accident and since in this claim petition also the insurer has also taken-up a specific contention as had been taken in the other claim petition and this petition is also not remanded to the Tribunal and disposed of by this Court, in the event of the Tribunal holding that the driver of the offending vehicle did not possess valid and effective driving licence as on the date of accident, as such, the insurer is not liable to indemnify the insured, would certainly result in conflicting decision. If these appeals are dismissed by affirming the judgment and award of the Tribunal holding that the insurer is liable to indemnify the insured, the Tribunal, in the remanded case arising out of the same accident cannot take a different view regarding the liability of the insurer. If these appeals are dismissed by affirming the judgment and award of the Tribunal holding that the insurer is liable to indemnify the insured, the Tribunal, in the remanded case arising out of the same accident cannot take a different view regarding the liability of the insurer. Under these circumstances, it is just and proper that this claim petition is also required to be remanded to the Tribunal with a further direction that both the petitions are to be heard and disposed of by one and the same Tribunal. If the parties agree, they could be consolidated, otherwise, they have to be disposed of by independent judgments, but on the same day by considering the evidence on record. Under these circumstances, the fact that the insurer has not placed any evidence in this case would not make much difference, as the fact of pendency of another claim petition arising out of the same accident on account of remand by this Court has been brought to the notice of this Court. This Court cannot oblivious of the above fact. Under these circumstances, the judgment under appeal deserves to be set aside and the matter requires to be remanded to the Tribunal. 8) Accordingly, these appeals are allowed. The judgment under appeal dated 17.6.2005 passed by MACT-III, Metropolitan Area, Bangalore, in MVC No.2644/2002 is hereby set aside. The claim petition is remanded to the Tribunal for fresh disposal in accordance with law. It is further directed that both the claim petitions namely MVC Nos.2643/02 dated 2644/02 should be heard and disposed of by one and the same Court. 9) The parties herein are directed to appear before the Tribunal on 29.10.2010. 10) The statutory deposit of Rs.25,000/- is ordered to be transmitted to the Tribunal with a direction that the said amount should be kept in Fixed Deposit in any Nationalised Bank till the disposal of the claim petition. Disbursement of the said amount is subject to the result of the claim petition. 10) The statutory deposit of Rs.25,000/- is ordered to be transmitted to the Tribunal with a direction that the said amount should be kept in Fixed Deposit in any Nationalised Bank till the disposal of the claim petition. Disbursement of the said amount is subject to the result of the claim petition. Per SHYLENDRA KUMAR, J. (1) While the facts of the case leading to the above two appeals and contentions urged on behalf of both appellants by the learned counsel, are as noticed by, my esteemed and learned brother Justice K.N. Keshavanarayana who has rendered the judgment for remanding the matters to the Tribunal; and however much I have tried to persuade myself to agree with the conclusion part of the judgment, I regret my inability to do so for more than one reason, which are as under:- (2) In the first instance, the present appeals, one by the insured-claimant seeking for enhancement of compensation as awarded by the Tribunal which is quantified at a total sum of Rs.30,000/- and another appeal by the insurer questioning the correctness of the judgment and the award fastening the joint liability on the Insurance Company also to make good this amount in favour of the claimant, along with the liability of the owner of the vehicle, arises out of the claim petition in MVC No.2644/2002, an independent and separate claim petition by another person than the claimants in the other pair of appeals disposed of by us yesterday and remanding the matter to the Tribunal, on the question of the correctness or otherwise of the finding of the Tribunal, for fastening joint liability on the insurer. 13) The opposition to the claim petitions by the Insurance Company along with the owner of the vehicle through its statement of objections filed in the petition, paving way for the filing of this pair of appeals on behalf of the Insurance Company filed on 13.12.2002/09.01.2003 contains hand written corrections on the aspect relating to the material defence taken by the Insurance Company, particularly the later inserted hand written portion of the plea reading as “As the driver of the tempo was not having valid and effective driving licence to drive goods vehicle”, as it occurs in Para-4 of the written statement and also insertion of words ‘driver of the tempo’ in handwriting in place of typed word “vehicle” at the end of Paragraph 7(b) of the written statement and the insertion of the further words “in any event there is contributory negligence on the part of the vehicle involved in the accident” and also the material part of the defence taken in para-9 by way of handwriting insertion to the typed version after the end of typed matter and reading as under: “This respondent may be permitted to file an additional written statement if found necessary at a later stage and also puts the petitioner to strict proof that he has not filed any other petition for the alleged accident before any Hon’ble Court at any place”, Are all corrections which are not properly authenticated either by the official who has signed the statement on behalf of the 2nd respondent-Insurance Company or by the Advocate who had appeared on behalf of the Company before the Tribunal. In the wake of such interpolations and corrections which are not even properly authenticated and not even indicated as to when the corrections have been made, it is as good as tampering of the record of the Court as such developments have taken place without commensurate permission/orders from the Court. Be that as may be. It is made to give more appropriate meaning to these insertions than to give weightage. This reason apart in the claim petition leading to the above two appeals, even such interpolated/inserted additional pleas have not been signed/authenticated by the respondent or their counsel. Be that as may be. It is made to give more appropriate meaning to these insertions than to give weightage. This reason apart in the claim petition leading to the above two appeals, even such interpolated/inserted additional pleas have not been signed/authenticated by the respondent or their counsel. It is also not made good by way of commensurate supporting evidence as no person on behalf of the Insurance Company has been examined either to give any oral evidence or to mark any documents in support of their defence as has been done in the case of the other claimant, viz., in MVC No.2643/2002 and in which the appeal by the claimant for enhancement and the appeal by the Insurance Company challenging the finding that it is also jointly liable, had been heard and both the appeals were allowed remanding the matters to consider both aspects keeping them open to be re-examined by the Tribunal and to record fresh finding. 14) In the absence of any supporting evidence to support the plea in the written statement filed in MVC No.2644/2002 out of which, the above two appeals arise. It is obvious that nothing is made good by the Insurance Company before the Tribunal to give a finding other than the finding as recorded by the Tribunal in this case holding the Insurance Company jointly liable along with the owner of the vehicle. 15) The provisions of Section 166 of the Motor Vehicles Act and the claim petition under Section 166 of the Act and the present appeals under Section 173 of the Act have their origin to their corresponding provisions under Section 110 (a) to (d) respectively of the Motor Vehicles Act 1939. 16) After the provisions of Motor Vehicles Act 1939 were repealed, the present enactment was put in place. Corresponding provisions for putting-forth the claim petitions, and appeal thereafter are to be found in Sections 166 and 173 respectively of this Act. 16) After the provisions of Motor Vehicles Act 1939 were repealed, the present enactment was put in place. Corresponding provisions for putting-forth the claim petitions, and appeal thereafter are to be found in Sections 166 and 173 respectively of this Act. The provisions of 1939 Act as amended was tested for its Constitutional validity and the Supreme Court had occasion to examine such constitutional validity and has upheld the validity of these provisions particularly providing for a different Tribunal other than civil court, providing for a different procedure for examining such claim petitions for compensation, which are essentially in nature of claims in tort, providing a civil remedy to that affected person and fixing different period of limitation tort, providing a civil remedy to that affected person and fixing different period of limitation (which was 6 months time under the 1939 Act, later made to 6 months – 6 months) and subsequently the limitation period itself is removed from the Statute Book by amendment Act No.54g, 1994 (Central Act) amending the provisions of the MV Act, by omitting Sub-Section 3 of Section 166 of the Act. 17) The Supreme Court had occasion to express that the provisions as incorporated into the Motor Vehicles Act has a definite objective and social purpose to serve that the victims of the accident involved in motor vehicles should be compensated commensurately and should not be denied relief only because of the delays and procedural wrangles involved in getting relief before the Civil Court. It was also felt that the poor and helpless victims of motor accidents should not be burdened with the liability of paying Court fee, on the suit claim as otherwise if a civil suit for the damages should be brought the Civil Court for the amount of compensation, as otherwise enabled under the present enactment, the claimants/victims will have to pay Court fees unless they are able to seek shelter by prosecuting the suit or proceedings as indigent persons under the enabling provisions of Code of Civil Procedure. 18) Perusal of the statement and objections, introducing such legislative changes and the judgment of the Supreme Court upholding validity of the enactment, clearly points out that the provisions have a definite social purpose to serve i.e., to provide quick and inexpensive relief to the victims of road accidents involving motor vehicles. 18) Perusal of the statement and objections, introducing such legislative changes and the judgment of the Supreme Court upholding validity of the enactment, clearly points out that the provisions have a definite social purpose to serve i.e., to provide quick and inexpensive relief to the victims of road accidents involving motor vehicles. 19) This apart, the business of general insurance while is now nationalized, the provisions of this Act make it compulsory for vehicles used on public roads to be insured to meet third party claims and no vehicle can ply on a road without being insured. That is the mandate of the law. A combined reading of these developments and particularly when business of general insurance has been nationalized, though of-late, the policy appears to have changed, and yet again, it is one free market and privatization, one cannot lose sight of the initial purpose and object of introduction of these provisions in the Statute Book and therefore, while understanding and interpreting such provisions it should be the endeavor of the Tribunal and Court to effectuate the provisions of the Act and to provide relief to the victims of road accident, than to deny such reliefs on a mere technical ground, by having a pedantic approach to the issue. 20) Yet another reason why I am unable to persuade myself with the conclusion indicated by my learned brother is that litigation is adversary in nature and while it is the duty of the litigant who approaches the Court to make good his case before the Court and normally the burden lies upon the claimant or plaintiff to prove his case, the defendant or respondents in a claim petition are entitled to defend but if any special defence is set up, burden is on such person to make good that defence by supporting the plea with commensurate evidence. 21) In the present appeals, the statement filed in the motor vehicle case on behalf of the Insurance Company is undoubtedly a special defence to contend that the driver of the offending vehicle did not have a valid and effective licence to drive the transport vehicle which is the vehicle which has caused the accident while a defence of this nature is undoubtedly permitted, tenable and is supported not only by statutory provisions, but the corresponding terms and conditions of the policy which the Insurance Company has issued, but nevertheless has to be made good by commensurate evidence. 22) In the claim petition leading to the above two appeals, admittedly, the Insurance Company for whatever reason it may have, has not led any evidence oral or documentary to support the special plea in the petition leading to these appeals. 23) Under such circumstances, if the Tribunal has concluded the proceedings with the available evidence on record which is the evidence let on behalf of the claimant, the liability on the part of the Insurance Company, who has admittedly issued a policy in favour of the owner to cover third party claims and have indemnified the owner of the vehicle involved in the accident, the claimant can not be put to any disadvantage, due to the inability of the insurer to make good the special defence, which is not supported by evidence on behalf of the Insurance Company, the joint liability does not cease and the claimants cannot be denied on. Otherwise, just compensation payable to the claimant. 24) In my opinion, the Tribunal has rightly proceeded to quantify the same and has also very correctly fastened the liability jointly on the Insurance Company also, having regard to the evidence on record. 25) While it is no doubt proved that in the very case leading to the other claim petitions at the instance of the Insurance Company in their appeal, this Court has remanded the matter for re-examination by the Tribunal on the issue relating to joint liability on the part of the Insurance Company in the context of the plea and the evidence available on record in that case. Factually the position is not the same in this appeal and in the claim petition out of which the above two appeals arise, which is already noticed. Factually the position is not the same in this appeal and in the claim petition out of which the above two appeals arise, which is already noticed. 26) The mere fact that an anomaly could arise in one claim petition arising out of the same accident, the Insurance Company is made jointly liable along with the insured and in another claim petition out of the same accident, but by another injured person, the very same insurer and the insured figuring as respondents while the insured may be liable, the insurer is not liable to indemnify or to be fastened with the joint liability because of the violation of the terms of the policy, in my considered view is not a situation, warranting a remand in the present appeals also for the reason that a remand cannot be made just because the connected matter is remanded, until and unless a remand is justified and serves a purpose. Yet another reason is that an anomaly would have been the possibility, if the Insurance Company should not have chosen to prefer an appeal against the award made in the claim petition of the respondent in the Appeal of the Insurance Company. Therefore, the logic of a remand order for avoiding an anomaly fails! 27) More over it is to be noticed that the insure if it was very keen for making good its defence in the statement filed in the motor vehicles leading to above appeals, should have taken concerted steps for the same and that the very set of Counsel had appeared both for the two different claimants and the Insurance Company as well as the owner in the two different MVC cases, but even then the fact remains that no effort appears to have been made to have the two cases clubbed together or evidence in one case to be made part of evidence in the other case which again can be a dereliction on the part of the Insurance Company or its counsel but the claimant cannot be victimized for the failure on the part of the Insurance Company as otherwise it will amount to placing a premium on carelessness or negligence. That cannot be so! That cannot be so! 28) On the other hand, the two claim cases were before two different claim Tribunals and two separate judgments and awards have come into existence and in such a situation, I am of the definite and clear opinion that there cannot be any premium placed on the lapse on the part of the Insurance Company to make good its plea to the detriment of the claimant who is already a victim of an accident, involving a motor vehicle and to interfere with the said just and proper award of the Tribunal in this appeal at the instance of the Insurance Company on the only ground that in the connected matter i.e., two appeals arising out of the same accident, this Court has remanded the matter to the Tribunal for re-examination of the question, will only amount to further victimizing the already harassed victim, who has already compensation of a single pie, hitherto either by the owner of the vehicle causing the accident or by the insurer who is in appeal before this Court contesting its joint liability. 29) Sri. O. Mahesh, learned counsel appearing for the appellant-Insurance Company has submitted that in the wake of the said order granted by this Court, the Insurance Company has not paid any amount except for depositing the statutory amount before the Court. The deposit before the Court is no solace to a victim of motor accident. 30) Be that as it may, I find that in a matter of this nature, it is definitely not justified for this Court sitting in appeal over the judgment and award of the Tribunal, to interfere with the same to the detriment of the claimant by merely setting aside the judgment and award of the Tribunal not because, the merits of the case warrants it, but because of the extraneous reason that two appeals arising out of the same claim petition and same Insurance Company and two different courts, the matter has been remanded to the Tribunal for the purpose of re-examination of the joint liability of the insurer. 31) In MVC claim cases, focus is always on the claim and claimant and not on the insurer providing cover to the insured or the owner of the motor vehicle. 31) In MVC claim cases, focus is always on the claim and claimant and not on the insurer providing cover to the insured or the owner of the motor vehicle. Examination is and should always be from the angle of a claimant and for the effectuation of the claim rather than to defeat the claim, more so at the behest of the Insurance Company to enable the Insurance Company to wriggle out of the liability who has agreed to provide cover to the insured, which, obviously works to the detriment of the claimant, as in our system and society, more often, than not owners of the motor vehicles will not be in a position to meet the liability arising out of the claims by third parties and the whole object of making Insurance compulsory against third party claims will be defeated. 32) If the cover/protection given in favour of the owner against such third party claims that too by statutory compulsion, does not ensure to the benefit of the claimants and the right to receive compensation is in any way defeated by the inability or unwillingness on the part of the owner of the vehicle causing the accident. 33) I am of the opinion that the Insurance Company, which is in Court day-in and day-out and is ably guided by very competent and senior advocate, ought to know the implications of supporting or not supporting pleas putforth by them in their statements before the Tribunal by commensurate evidence. Therefore, I am also of the view that the present appeal by the Insurance Company is nothing but a frivolous appeal and arguments addressed are only cantankerous in nature without any real merit in them. 34) With Sri. Chandrachooda, learned counsel appearing for the appellant/claimant in the appeal preferred by the claimant having virtually conceded that having regard to the facts and circumstances of the case, there may not be much scope for improving the quantification of the compensation as quantified by the Tribunal and in such an event if there is no question of remanding the matter for any enhancement of compensation by the Tribunal or to re-determine the same, I am of the clear view that the appeal of the Insurance Company only deserves to be dismissed by levying exemplary cost which is quantified at Rs.10,000/-. 35) Accordingly, I would dismiss not only the appeal of the claimant for enhancement but also the appeal filed by the Insurance Company with cost in favour of the respondents in the appeal by the Insurance Company quantified at Rs.10,000/-. Therefore, I would direct that the amount in deposit before this Court is to be transmitted to the Tribunal and is to be made available to the claimant and the cost if not paid within four weeks from today, it has to be made good along with the balance of the amount payable in terms of the award of the Tribunal and to be deposited before the Tribunal within a period of Eight weeks from today. 36) However, in view of the divergence of opinion between the two of us, the matter requires resolution on this divergence and therefore, we direct the registry to place this matter before the Hon’ble Chief Justice to take necessary steps for resolution of this divergence of opinion. Ordered accordingly.