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2020 DIGILAW 1096 (KAR)

Srinidhi S Ramaswamy v. Lakshmi

2020-06-16

V.SRISHANANDA

body2020
JUDGMENT V. Srishananda, J. - This appeal is filed by the owner of the Maruthi Van bearing No.MH-04/4595 questioning the judgment and award dated 23.11.2012 passed by the Senior Civil Judge and JMFC, K.R.Pet (for short 'the Tribunal') in MVC No.17/2008, whereby the Tribunal fastened the liability on the appellant in the absence of production of Driving Licence of the driver, who drove the said Maruthi Van. 2. Brief facts which are necessary for the disposal of the appeal are as under: It is contended by the claimants that on 29.01.2008 at about 4.30 p.m., one Mr. Kumar alias Kumargowda was riding a motorcycle bearing No.KA- 11/L-6062 from Chinakuruli towards K.R. Pet and when he reached near Hadnoor Village, at that time one Maruthi Van bearing No.KA-04/4595 came from K.R. Pet in a rash and negligent manner resulting in the collision between the motorcycle and the Maruthi Van due to which the motorcyclist sustained injuries on the head and other vital parts of the body and he died on the spot. A claim petition was filed before the Tribunal stating that the deceased was earning Rs.6,000/- per month by doing Mason work and also he had agricultural income. On service of notice, before the Tribunal, respondents No.1 and 2 appeared and filed their separate written statements. 3. Both the respondents denied negligence on the part of the driver of the Maruthi Van and they also stated that the accident had occurred on account of negligence of the rider of the motor cycle (deceased). 4. Further, the Insurance Company denied the liability stating that the driver of the Maruthi Van did not possess valid and effective Driving Licence at the time of the accident. 5. Based on the above pleadings, the Tribunal raised the following issues and also an additional issue was raised as under: ISSUES 1. Whether the petitioner proves that the accident on 29.01.2008 at 4.30 p.m., near Hadanur Village, K.R. Pet, Mysore was due to rash and negligent driving of the Maruthi Van bearing No.MH-04/N-4595 by its driver, as a result, deceased Kumar alias Kumargowda sustained injuries and succumbed to death? 2. Whether the petitioner is entitled to any compensation? If so, to what extent and from whom? 2. Whether the petitioner is entitled to any compensation? If so, to what extent and from whom? ADDITIONAL ISSUE: Whether the 2nd respondent proves that driver of the Maruthi Van bearing No.KA-04/N-4595 did not possess a valid and effective driving license to drive the particular type of vehicle as on the date of the accident? 6. To substantiate the claim petition averments, on behalf of the claimants, two witnesses were examined, viz., Smt. Jayamma-third claimant as PW1 and Sri A.V. Mohan, an eye witness to the accident as PW2. The claimants relied on eight documentary evidence which were marked before the Tribunal vide Exs.P1 to P8. 7. Though in the judgment in annexure portion it is mentioned that no witnesses were examined on behalf of the respondents and no documents are produced. On perusal of the trial Court records it is seen that son of the owner of Maruthi Van was examined as RW1 and on his behalf, R.C.Book of the said Maruthi Van was marked as Ex.R1 and the Insurance policy was marked as Ex.R2. 8. On consideration of the oral and documentary evidence, the Tribunal answered Issue No.1 and additional issue in the affirmative and answered Issue No.2 partly in the affirmative. In view of the trial Court answering the additional issue in favour of the Insurance Company, the liability assessed by the Tribunal to the extent of Rs.5,59,900/- was ordered to be paid by the appellant - owner of the offending vehicle. 9. Sri Ajit Kalyan, learned counsel for the appellant vehemently contended that the Tribunal ought not to have fastened the entire liability on the owner of the vehicle, especially when the vehicle was insured with the fourth respondent Insurance Company. He further submitted that even otherwise as per legal principles enunciated in the case of Pappu and Ors. v. Vinod Kumar Lamba and Anr, (2018) AIR SC 592 the impugned judgment and award passed by the Tribunal is required to be modified. 10. Per contra, Sri K. Suresh, learned counsel for the 4th respondent Insurance Company submits that in the facts and circumstances of the case, fastening the liability on the owner of Maruthi Van is justified and he sought for dismissal of the appeal. 11. 10. Per contra, Sri K. Suresh, learned counsel for the 4th respondent Insurance Company submits that in the facts and circumstances of the case, fastening the liability on the owner of Maruthi Van is justified and he sought for dismissal of the appeal. 11. In view of the rival contentions, the short point that would arise for consideration before this Court is, "Whether the appellant has made out a case for modification of the impugned judgment?". 12. The point is answered in the affirmative for the following: REASONS 13. In this case, there is no dispute as to the accident that has occurred on 29.01.2008 at about 4.30 p.m. near Hadnoor Village involving motorcycle bearing No.KA-11/L-6062 and Maruthi Van bearing No.MH-04/4595 and the motorcyclist by name Kumar @ Kumargowda lost his life on the spot. It is also not in dispute that the claimants filed a claim petition and the trial Court after considering the entire material on record allowed the petition and awarded compensation in a sum of Rs.5,56,900/- and fastened the liability on the appellant in the absence of valid and effective Driving License of the driver of the offending vehicle being available on record and the Insurance Company absolved from the liability. 14. Learned counsel for the appellant relied on the judgment in Pappu's case cited supra and submitted that even in the absence of valid and effective Driving License being placed on record the Insurance Company cannot be absolved in simpliciter and in such circumstances the Tribunal's hands are not tied and can pass an order directing the Insurance Company to pay the liability and to recover the same from the owner. 15. The relevant portion of the said judgment is culled out here for ready reference. "Motor Vehicles Act (59 of 1988), 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 authorized 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." 11. The question is: whether the fact that the offending vehicle bearing No.DIL- 5955 was duly insured by respondent No.2 Insurance Company would per se make the Insurance Company liable? This Court in the case of National Insurance Co. Ltd. (supra), has noticed the defences available to the Insurance Company under Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988. The Insurance Company is entitled to take a defence that the offending vehicle was driven by an unauthorised person or the person driving the vehicle did not have a valid driving licence. The onus would shift on the Insurance Company only after the owner of the offending vehicle pleads and proves the basic facts within his knowledgethat the driver of the offending vehicle was authorised by him to drive the vehicle and was having a valid driving licence at the relevant time. In the present case, the respondent No.1 owner of the offending vehicle merely raised a vague plea in the Written Statement that the offending vehicle DIL-5955 was being driven by a person having valid driving licence. He did not disclose the name of the driver and his other details. Besides, the respondent No.1 did not enter the witness box or examine any witness in support of this plea. The respondent No.2 Insurance Company in the Written Statement has plainly refuted that plea and also asserted that the offending vehicle was not driven by an authorised person and having valid driving licence. The respondent No.1 owner of the offending vehicle did not produce any evidence except a driving licence of one Joginder Singh, without any specific stand taken in the pleadings or in the evidence that the same Joginder Singh was, in fact, authorised to drive the vehicle in question at the relevant time. Only then would onus shift, requiring the respondent No.2 Insurance Company to rebut such evidence and to produce other evidence to substantiate its defence. Merely producing a valid insurance certificate in respect of the offending Truck was not enough for the respondent No.1 to make the Insurance Company liable to discharge his liability arising from rash and negligent driving by the driver of his vehicle. Merely producing a valid insurance certificate in respect of the offending Truck was not enough for the respondent No.1 to make the Insurance Company liable to discharge his liability arising from rash and negligent driving by the driver of his vehicle. The Insurance Company can be fastened with the liability on the basis of a valid insurance policy only after the basic facts are pleaded and established by the owner of the offending vehicle - that the vehicle was not only duly insured but also that it was driven by an authorised person having a valid driving licence. Without disclosing the name of the driver in the Written Statement or producing any evidence to substantiate the fact that the copy of the driving licence produced in support was of a person who, in fact, was authorised to drive the offending vehicle at the relevant time, the owner of the vehicle cannot be said to have extricated himself from his liability. The Insurance Company would become liable only after such foundational facts are pleaded and proved by the owner of the offending vehicle." 12. xxxxx 13. xxxxx 14. xxxxx 15. In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No. DIL- 5955 was comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law. 16. Accordingly, the appeal is allowed to the extent that the compensation amount awarded by the Tribunal and confirmed by the High Court shall be paid and satisfied by the insurer (respondent No.2) in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law. 16. Applying the above legal principles to the facts of this case, this Court finds that the impugned judgment and award needs to be modified to the extent that the liability to be paid by the Insurance Company at the first instance and may be directed to recover the same from the Owner of the vehicle. 17. The counsel for the claimants remained absent today. 17. The counsel for the claimants remained absent today. Since, there is no modification in quantum of compensation, deciding the appeal in their absence would not prejudice the claimants. 18. Learned counsel for Insurance Company submits that three deposits have already been made by the owner of the vehicle before the Court payable to the claimant in satisfaction of the adjudged compensation amount. They are as under: 1. Rs.25,000/- on 13.11.2013 2. Rs.1,03,500/- on 31.05.2014 3. Rs.1,50,000/- on 25.03.2014 19. On verification of the ordersheet, the submission made on behalf of the respondent-Insurance Company found correct. The same needs to be transmitted to the Tribunal. 20. Hence, in view of the foregoing discussion, the point is answered in the affirmative and I proceed to pass the following: ORDER In partial modification of the judgment and award passed by the Tribunal adjudged compensation amount of Rs.5,59,900/- is ordered to be paid with interest from the date of compensation till realization by the Insurance Company to the claimants, less Rs.2,78,500/- already deposited by the owner and the Insurance Company is at liberty to the claim the same from the owner of the offending vehicle. The amount in deposit in a sum of Rs.25,000/-, Rs.1,03,500/- and Rs.1,50,000/- as referred to in Para No.18 of the body of the judgment be transmitted to the Tribunal for payment to the claimants at the earliest. Balance amount shall be paid by the Insurance Company within a period of six weeks from the date of receipt of certified copy of this order, failing which, it shall carry 8% interest p.a., from the date of petition till realization and recover the same from the owner.