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2019 DIGILAW 1606 (KAR)

Narayanaswamy @ Narayanappa v. N. Manjunath

2019-07-05

K.SOMASHEKAR

body2019
JUDGMENT : K. Somashekar, J. Though this appeal is listed for admission, with the consent of learned counsel on both sides, the matter is taken up for final disposal. 2. This appeal is preferred by the appellant/claimant challenging the judgment and award dated 12.12.2014 rendered by the MACT, Bangalore in MVC No.4471/2013, whereby compensation of Rs.3,52,749/- with interest @ 6% p.a. from the date of petition till realisation, has been awarded. 3. The factual matrix of the appeal is that on 14.09.2012 at about 4.30 p.m., the petitioner was proceeding in his motor cycle bearing Regn.No.TN-7-E- 9501 near Kuppur Village, Masthi Hobli, Malur Taluk, District Kolar. At that time, one motor cycle bearing Regn.No.KA-02-HM-9816 came with high speed in a rash and negligent manner and dashed against the motor cycle ridden by the petitioner. As a result, petitioner fell down and sustained injuries. Immediately, he was taken to R.L.Jalappa Hospital, wherein he took treatment as an inpatient from 18.9.2012 to 17.10.2012 and spent a sum of Rs.1,00,000/- towards medical expenses. He was working as a Mason and earning income of Rs.10,000/- p.m. and due to the injuries inflicted on his person, he is not able earn the same. On all these grounds, he filed the claim petition before the Tribunal, seeking compensation. 4. On service of notice, first respondent being the owner of the offending vehicle filed written statement denying the petition averments. He contended that the alleged accident was caused by the negligence of petitioner himself. He was having DL at the time of accident and the vehicle is insured with respondent no.2 and hence, if any, liability on his part, it has to be indemnified by respondent no.2 being the insurer. 5. Though the second respondent insurer appeared, did not chose to file written statement. Based upon the pleadings of the parties, the Tribunal framed the issues for consideration. In order to substantiate his case, petitioner himself examined as PW.1 and got marked documents as per Exs.P1 to P11. He also examined the Doctor as PW.2 and through him got marked documents as per Exs.P13 to P15. On behalf of the respondents, RW.1 was examined and Exs.R1 to R8 were got marked. In order to substantiate his case, petitioner himself examined as PW.1 and got marked documents as per Exs.P1 to P11. He also examined the Doctor as PW.2 and through him got marked documents as per Exs.P13 to P15. On behalf of the respondents, RW.1 was examined and Exs.R1 to R8 were got marked. After hearing arguments of learned counsel for the parties and on evaluation of oral and documentary evidence available on record, the Tribunal passed the impugned judgment, awarding compensation of Rs.3,52,749/- with interest @ 6% p.a. from the date of petition till realisation. Further, the liability was fastened on respondent no.1 being the owner of the offending vehicle. The claim petition against respondent no.2 - insurance company came to be dismissed. Hence, this appeal by the claimant seeking enhancement of the compensation and also on the question of liability. 6. Learned counsel for the appellant contends that the Tribunal has erred in exonerating the second respondent insurance company of its liability on the ground that the offending motorcycle rider did not possess valid driving licence accepting the contents of the charge sheet relied upon by the insurer. Mentioning of the rider in the charge sheet that he did not possess driving licence is an opinion founded by the Investigating Officer on the basis of evidence said to have been collected during the course of investigation. All those materials were not before the Tribunal to come to the conclusion that the driver did not possess a valid driving licence. He contends that the accusation made in the charge sheet against the persons is required to be proved in accordance with law. Mere filing of charge sheet is not a proof of the contents thereof. Hence, the finding of the Tribunal that the insurance company has proved its defence based on the contents of the charge sheet is perverse and the same is liable to be set aside and the liability has to be fastened on it. 7. He further contends that the compensation awarded by the Tribunal under different heads requires to be enhanced considering the nature of injuries sustained, treatment taken by him and also the existing disabilities. On all these grounds, learned counsel for the appellant seeks intervention of this Court by allowing this appeal. 8. 7. He further contends that the compensation awarded by the Tribunal under different heads requires to be enhanced considering the nature of injuries sustained, treatment taken by him and also the existing disabilities. On all these grounds, learned counsel for the appellant seeks intervention of this Court by allowing this appeal. 8. Per contra, learned counsel for the respondent insurance company contends that the Tribunal relied on the charge sheet which shows that the driver was not having valid licence and hence, the owner of the vehicle having violated the terms and conditions of the policy the Tribunal rightly fastened the liability on him. Further, the Tribunal on evaluation of oral and documentary evidence on record has awarded just and fair compensation, which does not call for interference of this Court. Accordingly, he sought for dismissal of the appeal. 9. Having regard to the strenuous contentions as taken by learned counsel for the appellant and so also counter made by the learned counsel for the insurance company, it is relevant to state that the injuries sustained by the appellant/claimant in a road traffic accident is not in dispute. Further, in support of his case, petitioner has examined himself as PW.1 and stated that the accident occurred due to the actionable negligence on the part of the driver of the offending vehicle. He has produced documents such as Ex.P1 - FIR, Ex.P2 - complaint, Ex.P3 - charge sheet, Ex.P4 - Panchanama, Ex.P5 - IMV report, Ex.P6 - MLC register extract, Ex.P7 - discharge summary, in proof of the sustenance of injuries due to the accident. The Tribunal on consideration of all these oral and documentary evidence on record has held that the accident occurred due to the actionable negligence of the driver of offending vehicle. Further, the Tribunal by considering the nature of injuries sustained by the petitioner and so also the treatment taken by him has rightly awarded a sum of Rs.3,52,749/- with interest @ 6% p.a. I find no justifiable grounds to interfere with the same. 10. While giving finding on the issue relating to liability, the Tribunal dismissed the petition against respondent- insurance company and fastened the entire liability on the owner of the offending vehicle, holding that the driver of the offending vehicle was not holding DL and respondent no.1 being owner of the offending vehicle has violated the terms and conditions of the policy. While giving finding on the issue relating to liability, the Tribunal dismissed the petition against respondent- insurance company and fastened the entire liability on the owner of the offending vehicle, holding that the driver of the offending vehicle was not holding DL and respondent no.1 being owner of the offending vehicle has violated the terms and conditions of the policy. Hence, the respondent insurance company is not liable to indemnify the liability of the owner. 11. This issue has been answered by the Hon'ble Supreme Court in the case of Pappu and Others Vs. Vinod Kumar Lamba and Another, (2018) AIR SC 592 wherein it is held that as under: "S.149 - Insurer's liability - Accident occurred due to rash and negligent driving of truck - insurer taking plea that driver of offending truck had no valid licence - except copy of driving licence of person, owner of offending truck not producing any evidence establishing that it was driven by authorised person having valid driving licence - fact that offending truck was duly insured - would not per se make insurance company liable - however, insurance company directed to pay award amount to claimants in first instance and in turn, recover same from owner of vehicle." 12. The question as to the liability of the insurer in the absence of the driver of the offending vehicle not possessing a "valid and effective driving license" is no more res integra, as the same has been answered by the Apex Court against the insurer and in favour of the claimant in the judgment referred to supra subject to the principle of "Pay and Recover". 13. In view of the judgment of Hon'ble Apex Court in Pappu's case referred to supra, the liability has to be fastened on the insurer subject to the principle of pay and recover. The Apex Court in the said judgment has held that insurance company can be fastened with liability on the basis of valid insurance policy and negatived the contention of insurer that no liability can be levied on it, when the driver of the offending vehicle lacks a valid driving licence. Insurance company was directed to pay award amount to the claimants in first instance and in turn, recover the same from the owner of the vehicle. For the aforesaid reasons and findings, I proceed to pass the following: ORDER Appeal is allowed in part. Insurance company was directed to pay award amount to the claimants in first instance and in turn, recover the same from the owner of the vehicle. For the aforesaid reasons and findings, I proceed to pass the following: ORDER Appeal is allowed in part. Consequently, the impugned judgment and award passed by the Tribunal in MVC No.4471/2013 is here modified. The liability saddled on the owner of the offending vehicle is set aside and entire liability is fastened on second respondent - TATA AIG General Insurance Company Ltd. The second respondent - insurer shall pay the compensation awarded to the appellant at the first instance, with liberty to recover the same from the owner of the offending vehicle, in accordance with law. Respondent- TATA AIG Insurance Company Ltd. shall deposit the entire compensation with accrued interest, before the Tribunal, within four weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimant, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest and deposit is concerned, shall remain unaltered. Office to draw the decree accordingly.