At, High Court of Karnataka Circuit Bench At Dharwad
By, THE HONOURABLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
For the Petitioner: Rajashekhar S. Arani, Advocate. For the Respondents: R1, R2, Chandrashekar P. Patil, Advocate.
(This MFA is filed under Section 173(1) of the M.V. Act, 1988, against the judgment and award dated 06.11.2009 passed in MVC No.144/2007 on the file of the principal Civil Judge (Sr.Dn.) and member, MACT, Hubli, awarding compensation of Rs.81,529/- along with interest at the rate of 6% P.A. from the date of petition till its realisation.)
The insurance company has filed this appeal challenging the judgment and award passed in MVC No.144/2007 dated 06.11.2009 by the Principal Civil Judge (Sr.Dn.) and Member, MACT Hubballi fastening the liability on the insurance company.
2. Respondent No.1 was the claimant, he filed petition under Section 166 of Motor Vehicles Act (for short ‘M.V. Act’) claiming compensation for the injuries sustained in motor vehicle accident, which took place on 19.04.2006 at about 10.30 a.m. when the claimant/respondent No.1 was proceeding on the side of the old Hubli near Karki Nala Bridge, at that time the rider of the motorcycle bearing registration No.KA-25-E-7857 came in rash and negligent manner and dashed to respondent No.1 and caused accident, due to which respondent No.1 sustained grievous injuries.
3. The appellant who was respondent No.2 before the tribunal had taken up the contention that the driver of the vehicle was not possessing valid and effective driving licence as on the date of accident. The tribunal has considered the said aspect in issue No.2 and held that the insurance company failed to prove that the driver of the vehicle was not having driving licence. Against the said finding, the insurance company has come up in this appeal.
4. The charge sheet has been filed against the driver of the said vehicle for offences punishable under Sections 279, 338 of IPC and Section 3 and 181 of M.V. Act. The said charge sheet is marked at Ex.P3. The very filing of the charge sheet for the offence under Sections 3 r/w 181 of M.V. Act itself goes to establish that the driver of the said vehicle was not holding driving licence at the time of the incident. The tribunal without considering the said aspect has held that the insurance company failed to prove that the driver of the vehicle was not having driving licence. The tribunal has committed an error in holding the same. Therefore, the finding of the tribunal on issue No.2 requires to be reversed.
5. The tribunal has assessed the compensation at Rs.81,529/- and awarded the same with interest @ 6% p.a. from the date of petition till its realization. The appellant/Insurance company has not challenged the quantum of compensation. The insurance policy is at Ex.R1 and it was valid as on the date of accident. Respondent No.1 owner of the vehicle has allowed his son to drive the vehicle who was not having driving licence and violated the policy conditions. As the claim made by 3rd party, as the condition of the insurance policy was violated the doctrine of pay and recovery has to be applied. The Hon’ble Apex Court in the case of Shamanna and another V/s. Divisional Manager, Oriental Insurance Company Ltd., and others, reported in (2018) 9 SCC 560 held as under :
“6. As per the decision in Swaran Singh case, onus is always upon the insurance company to prove that the driver had no valid driving licence and that there was breach of policy conditions. Where the driver did not possess the valid driving licence and there are breach of policy conditions, “pay and recover” can be ordered in case of third-party risks.
13. Since the reference to the larger Bench in Parvathneni case has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case followed in Laxmi Narain Dhut and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh and Laxmi Narain Dhut cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored.”
6. In view of the judicial pronouncement in the above said decision, the insurance company has to be directed to pay the compensation amount awarded to the claimants
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and thereafter recover the same from the owner of the vehicle in question. Therefore, to that extent, the impugned judgment and award requires to be modified. In the result, the following: ORDER The appeal is allowed in part. The appellant/insurance company is directed to pay compensation assessed by the tribunal at Rs.81,529/- with interest @ 6%.p.a. from the date of petition till the date of deposit and thereafter recover the same from the owner of the vehicle i.e., respondent No.2.