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2016 DIGILAW 596 (KAR)

Madaiah v. Gangamma

2016-08-02

G.NARENDAR

body2016
JUDGMENT : G. Narendar, J. Heard the learned Counsel for the appellants. 2. The appellants before this Court are the claimants before the Motor Accidents Claims Tribunal in M.V.C. No. 6788 of 2008 and M.V.C. No. 578 of 2009 and are hereinafter referred to as 'first claimant and second claimant' for the sake of convenience. 3. The claimants are before this Court being aggrieved by the judgment and award by the Tribunal dated 20-8-2010 respectively awarding a sum of Rs.1,65,200/- and Rs.2,40,000/-. 4. The appellants are aggrieved by the inadequacy of the compensation and also by the fact the that liability has been fastened on the owner of the vehicle i.e., respondent 1 herein and the that insurer has been absolved of the liability to satisfy the compensation. 5. The appeals are listed for admission and with the consent of the Counsels the matter is heard finally and taken up for disposal. 6. The facts in brief are the that appellants were occupants of an auto-rickshaw bearing No. KA52 3225 and they were proceeding from Dobbaspet towards Halenijagal on NH-4 i.e., Bangalore-Tumkur Road and when they were in the vicinity of Shiva Daba the auto-rickshaw capsized resulting in an accident and it is the contention the that vehicle capsized on account of the rash and negligent driving by the auto-rickshaw driver. It is also contended that he was driving at a high speed and on account of the accident the claimants i.e., the appellant herein sustained grievous injury like segmental fracture and other injuries like abrasion with swelling of the posterior part of right elbow, swelling deformity with severe tenderness over the shaft of right humorous, segmental fracture of right humorous and the second claimant suffered a comminuted fracture distal 3rd right forearm (right hand wrist) and lower end of radius and Ulna; the thaty were shifted to the Government Hospital at Dobbspet for first aid and thereafter they were shifted to Vinayaka Hospital, Tumkur where the first claimant was an inpatient between 3-5-2008 and 8-5-2008 and the second claimant was an inpatient between 3-5-2008 and 4-5-2008. It is their case that on account of the injuries sustained, they have developed partial and permanent disablement and they are unable to continue practicing their respective avocation/work and the that injuries and its aftermath is impairing their daily lives and is a source of constant discomfort in their day-to-day activity. It is their case that on account of the injuries sustained, they have developed partial and permanent disablement and they are unable to continue practicing their respective avocation/work and the that injuries and its aftermath is impairing their daily lives and is a source of constant discomfort in their day-to-day activity. With the said pleading the first claimant demanded a compensation of Rs. 2,40,000/- and the second claimant demanded compensation of Rs. 1,70,000/- respectively. 7. Upon notice, the respondents 1 and 2 i.e., the insured and the insurer respectively entered appearance and filed statement of objections. The insurer preferred its objection on 28-2-2009, whereas the insured-respondent 1 preferred its statement of objections on 7-7-2010. 8. The insurer has raised a specific defence of breach of policy i.e., permitting passengers to occupy the vehicle in excess of the permitted capacity and that insured has allowed a person who is not possessing a valid and effective licence to drive the auto-rickshaw i.e., the person who was actually driving the vehicle when the accident occurred did not possess any driving licence at all. It is also contended that respondent 1-insured is guilty of non-compliance of the mandatory provisions of Section 158 of the Motor Vehicles Act, 1988 and the that liability of the insurer and obligation to satisfy any award is subject to the compliance of sub-section (3) of Section 66 of the Motor Vehicles Act and Rule 3 of the Central Motor Vehicles Rules, 1989 and subject to the limits and defences under Sections 147 and 149 of the Act. Apart from the specific defence, the insurer has also raised other standard defences and they have also invoked the provisions of Section 170 of the Act as they suspected collusion between respondent 1 and the claimants and the police authorities. 9. The respondent 1 entered appearance and did not deny the factum of the accident and it was contended the that driver of the auto-rickshaw one Siddaraju possessed a valid and effective driving licence and the policy issued by respondent 2 was subsisting on the date of the accident and in the event of the Tribunal concluding in favour of the claimants, the insurer be made liable to satisfy the award. 10. Upon these pleadings, the Tribunal framed three issues in each of the petitions. Issue 2 is of relevance. 10. Upon these pleadings, the Tribunal framed three issues in each of the petitions. Issue 2 is of relevance. In the light of the assertions, allegations and counter allegations by the parties, the Tribunal after appraisal of the pleading and the respective testimony of the parties and the documentary evidence was pleased to hold the that claimants have indeed established the factum of accident involving the offending vehicle being an auto-rickshaw bearing No. KA52 3225 as alleged in the petition. The Tribunal was further pleased to hold the that accident occurred on the said date and the said time and at the said place. After having rendered a categorical finding regarding the factum of accident, the Tribunal on appreciation of material on record and while answering issue 2 held the that driver of the auto-rickshaw by permitting passengers in excess of the permit capacity [as was elicited in the cross-examination of P.Ws. 1 and 2 who admitted that about eight passengers were permitted to occupy the auto-rickshaw] and relied upon the ruling of the Apex Court rendered in United India Insurance Company Limited v. K.K. Suresh and Another, AIR 2008 SC 2871 to hold the that insured had breached the policy condition by permitting a passenger to occupy the driver's seat along with the driver and it is a violation of the policy condition and the insurer cannot be held liable. As such, it held the that breach of the condition is apparent and in view of the ratio of the judgment of the Hon'ble Apex Court stated supra, the insurer is not bound to indemnify the respondent-insured. The Tribunal also accepted the case canvassed by the insurer the thatir investigation has yielded results and the that driver who was actually driving the auto was one Siddaraju but he was not the said Siddaraju who was prosecuted by the police but the husband of the insured, who is also named Siddaraju and to demonstrate this they have confronted P.W. 1 with the photograph of the husband of the insured who has then admitted the that person in the photo i.e., husband of the insured was indeed driving the vehicle at the relevant point of time and it has also been demonstrated the that said Siddaraju, husband of the insured did not possess a driving licence at all. It is seen the that Tribunal has also relied upon the ruling of this Court rendered in Bajaj Allianz General Insurance Company Limited, Mysore v. B.C. Kumar and Another, ILR 2009 Kar. 2921, to reject the contention of the respondent-insured the that person Siddaraju has pleaded guilty and hence an assumption ought to be raised the that person who indeed was driving the auto-rickshaw at the relevant point of time was the said Siddaraju and not her husband. The Tribunal has also relied upon one more admission of the insured, who has been examined as R.W. 2, and during her cross-examination she has also admitted the fact the that person present in the photo i.e., Ex. R. 1 is her husband and the Tribunal deemed it fit to absolve the insurer of any liability to indemnify the insured on the above said counts. Being aggrieved by the said judgment and award the appellants are before this Court. 11. The entire endeavour of the appellants in the appeals is the that liability to satisfy the awards must be cast upon the insurer. It is their contention that it is impossible to recover the said sums from the insured as they are not people of means. 12. The learned Counsel for the appellant would vehemently canvass the that judgment and award of the Tribunal absolving the insurer of the liability amounts to defeating the very object of the Act i.e., to provide relief to the victims of accident. He would contend the that Tribunal ought to have directed the insurer to pay compensation to the claimants and thereafter recover it from the insured. The said contention cannot be countenanced. The insurer is not the proprietor of private funds but is in a position of trustee holding public funds and it is the requirement of law that a person is entitled to be indemnified only in accordance with law or subject to any contract and not persons who practise fraud. 13. The said contention cannot be countenanced. The insurer is not the proprietor of private funds but is in a position of trustee holding public funds and it is the requirement of law that a person is entitled to be indemnified only in accordance with law or subject to any contract and not persons who practise fraud. 13. Per contra, the learned Counsel for the respondent-insurer would contend the thatre is no such legal duty cast upon the insurer to compensate the victims who are dis-entitled in law to seek relief from the insurer and the entitlement stems out of a illegal act or breach of the conditions of contract entered into between the insurer and the insured and it is settled law by the Apex Court that in the event of the insurer pleading and demonstrating with cogent evidence, the breach of conditions and policy, the insurer cannot be mulcted with the duty of satisfying the award and in such circumstances, it would amount to penalizing the insurer for an offence/crime committed by the insured. It is seen the that insurer has conducted investigation and surreptitiously obtained photos of the insured and her husband and thereafter, confronted the witnesses and elicited the fact the that person who was actually driving the auto-rickshaw at the relevant point of time was indeed the husband of the insured and it was not the person who was prosecuted before the Criminal Courts. It is also elicited in the cross-examination of the witnesses the that said Siddaraju, husband of the insured did not possess a licence at all. Hence, the above facts by itself constitute an act of fraud. The Tribunal has rightly concluded and absolved the insurer of any liability to indemnify the insured and has directed the insured to satisfy the award. Justice and fraud cannot dwell together. 14. The facts, prima facie demonstrate the that insured has in collusion with the authorities resorted to impersonation before the Criminal Court to not only avoid prosecution of the person who was actually guilty of causing the accident but also to negate the defence of the insurer and to aid the claimants. This fact coupled with the admitted fact the that vehicle was carrying passengers in excess of the capacity permitted under the certificate of registration will suffice and enable this Court to conclude regarding the sustainability of the appeal. This fact coupled with the admitted fact the that vehicle was carrying passengers in excess of the capacity permitted under the certificate of registration will suffice and enable this Court to conclude regarding the sustainability of the appeal. This Court is of the considered opinion that no good ground is made out which warrant interference with the well-considered judgment and award passed by the Tribunal. Hence, appeal being devoid of merits stands rejected.