Research › Search › Judgment

Karnataka High Court · body

2011 DIGILAW 409 (KAR)

New India Assurance Company Limited v. Nandish

2011-04-11

K.GOVINDARAJULU

body2011
Judgment :- Govindarajulu, J 1. Respondent No.1 in MVC No.6665/2007 on the file of MACT, SCCH-IV, Bangalore is the appellant. 2. Facts necessary for consideration of the appeal are as under: It is the case of the claimant that on 9.9.2007 at 9.30 P.M. when he was travelling in a autorickshaw bearing Regn. No.KA-04/A-6488 from Devanahalli to Bangalore, the driver of the tempo bearing Regn. No.KA-12/5124 has dashed against the Autorickshaw and caused injuries. For the pain, suffering and agony, claimant seeks comp0ensation of Rs.20 lakhs. 3. The respondent No.1 has entered appearance, deny the accident pleaded, call upon the claimant to prove the same. Further contend that the driver of the offending vehicle did not possess valid effective driving licence as on the date of the accident, while admitting the coverage under a policy being issued by the company as on the date of the accident. 4. PWs. 1 & 2 are examined. In response, the representative of the company is examined as RW-1, P1 to P13 are marked. R1 and R2 are marked. The Learned Member of the Tribunal while fixing the compensation at Rs.2,02,000/-directed the Insurance Company along with the owner to pay the compensation jointly and severally, thereby further directed the Insurance Company to deposit the compensation awarded. 5. The learned Advocate for the Insurance Company Sri D.S. Sridhar, contend that in the facts of the case, the positive contention of the Insurance Company is that the driver of the offending vehicle did not hold valid driving licence. To support this contention, RW-1 is examined. Exhibit R-2 is marked. R-2 is the driving licence of the driver in question. It probabalise that the driver has no authority to drive the offending vehicle, namely a tempo, as it is a goods vehicle. So, there is violation of the terms of the policy, so, the company has to be exonerated from paying the compensation. But, it is not considered and the company is directed to pay the compensation. This order is contrary to law. Place reliance on: .(a) NATIONAL INSURANCE CO.LTD., vs. ANNAPPA IRAPPA NESARIA 2008 (1) TAC 812 (SC), wherein, the Apex Court has considered the subject of the driver having a valid driving licence. The driver who had a valid licence to drive LMV has driven transport vehicle – a goods carriage vehicle. This order is contrary to law. Place reliance on: .(a) NATIONAL INSURANCE CO.LTD., vs. ANNAPPA IRAPPA NESARIA 2008 (1) TAC 812 (SC), wherein, the Apex Court has considered the subject of the driver having a valid driving licence. The driver who had a valid licence to drive LMV has driven transport vehicle – a goods carriage vehicle. So, “the Apex Court has come to the conclusion that the company is not liable to pay the compensation. .(b) Place reliance on ORIENTAL INSURANCE COMPANY vs. ANGAD KOL & OTHERS 2009 ACJ 1411 , wherein their lordships have held that if the licence is granted for 20 years, it is meant for driving other than a transport vehicle. So, the Court held that the driving licence relied in the facts of the case was not in consonance with law, so the company was exonerated from paying the compensation. .(c) In the case of M/S. BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD., BANGALORE vs. N.M.RAJAPRAKASH & ANOTHER 2010 (2) AIR KAR R 592, wherein the Learned Single Judge of this Court has found the offending vehicle was a taxi – a commercial vehicle, the driver did not hold a driving licence to drive the commercial vehicle, so held there is a breach of policy. So, held that the company is not liable to indemnify the insured. 6. The point that arise for consideration is: “Whether for a breach of a condition in the policy, the insurance company can be exonerated from paying the compensation?” 7. The subject of defence of the driving licence is considered by this Court in the Division Bench ruling in K.G. SRINIVASA MURTHY vs. HABIB KATHUL AND OTHERS 2002 ACJ 557 . The said ruling is referred to by the Learned Single Judge in UNITED INDIA INSURANCE CO. vs. USUF HASAN SABBUBAK AIR 2006 KANT 237, the ratio reads. 8. The question of law framed in the above appeal is as under: Whether the deceased was holding a valid and effective driving licence to drive the vehicle on the date of the accident, in order to fix the liability on the appellant. “8. This stands answered by the Apex Court in SWARAN SINGH’S case supra. The breach of a licensing condition not being the proximate cause for the accident, the insurer cannot escape the liability to pay the compensation. “8. This stands answered by the Apex Court in SWARAN SINGH’S case supra. The breach of a licensing condition not being the proximate cause for the accident, the insurer cannot escape the liability to pay the compensation. The liability interse as between the insurer and the insured may be independently adjudicated. In the present case, the insurer may avail of such a remedy before a Civil Court to seek reimbursement from the insured if a willful breach of the policy condition is established.” 9. The Learned Single Judge has referred to NATIONAL INSURANCE CO.LTD., vs. SWARAN SINGH AND OTHERS 2004 ACJ 1 a Judgment rendered by three Judges of the Apex Court. In the Judgments relied by the Learned Advocate for the Insurance Company the Judgment of SWARAN SINGH’S CASE is not at all referred to. So, the decisions do not become Ratio decidendi. 10. The raising of Larger Bench Judgment of the Apex Court is not referred to in the Judgments relied by the Learned Advocate for the Insurance Company. So, they are distinguished. In UNITED INDIA INSURANCE CO.LTD., vs. K.M.POONAM & OTHERS Civil Appeal No. 1928/2011, decided on 18-2-2011 the Apex Court has held for the breach of a condition in the policy, Insurance Company cannot be absolved. So, the submission of Sri D.S.Sridhar, for the Insurance Company is rejected. Dismissed.