Chandrappa and Others vs Ramesh and Others

Budihal R.B., J.—Since these two appeals are arising out of the common judgment passed by the tribunal and since the common questions of law and facts are involved in both the appeals, they have been taken together to dispose off them by this common judgment.

M.F.A. No. 30847/2013 is the appeal preferred by the appellant - Insurance Company, challenging the judgment and award of the tribunal, fastening the liability on the part of the insurance company and the appellant - insurance company challenged the legality and correctness of the judgment and award passed by the tribunal on the grounds urged in the appeal memorandum of the said insurance company.

MFA No. 32415/2013 is the appeal preferred by the appellants/claimants being aggrieved by the quantum of compensation awarded by the tribunal and seeking enhancement of the compensation amount. The appellants/claimants challenged the judgment and award of the tribunal on the grounds as mentioned in the appeal memorandum.

The brief facts leading to filing of the claim petition before the tribunal is that on 8-10-2010 at about 10-00 hours when the deceased was on the extreme end of the road near Chikreddy''s stone crusher machine on NH-218, at that time Car bearing Regn. No. KA-48/777 came from Bijapur side in high speed and zig-zag manner, the driver being unable to control it, dashed to the deceased and caused the accident. On account of the said accident, deceased sustained grievous injuries and died. Hence the legal representatives of the deceased made the claim petition before the tribunal.

The respondent No. 2 insurance company filed the objection statement denying the allegations made in the claim petition and it is also contended that the claim made by the petitioners is highly exorbitant. The insured/owner of the vehicle has not intimated the fact of occurrence of accident to the respondent-insurance company. Hence there is a violation of the conditions U/Sec. 134(c) of M.V. Act and Sec. 158(6) and 159 of Central Motor Vehicle Rules 1989. The accident took place on the negligent act of the deceased himself. Claim made by the claimants is imaginary and false and without any basis. Hence on these grounds the insurance company sought the dismissal of the claim petition.

On the basis of the said pleadings, the tribunal raised 3-Issues and after considering the oral as well as the documentary evidence placed on record, ultimately allowed the claim petition in part and awarded the compensation of Rs. 3,75,000/- with 6% interest. The respondent - insurance company held liable to pay the compensation amount. Being aggrieved by the same, the insurance company preferred the appeal and being aggrieved by the quantum of compensation awarded, seeking enhancement, the appellants/claimants also filed another appeal.

Heard the arguments of the learned counsel appearing for the appellant-insurance company and also learned counsel appearing for the respondents/claimants in the said appeal, who are also appellants in another connected appeal.

Learned counsel appearing for the insurance company, during the course of argument, made the submission that the driver of the vehicle was not holding valid driving license to drive the particular class of vehicle and hence on that ground itself, the insurance company not liable to pay the compensation amount. Learned counsel made the submission that there is no material placed by the claimants or the owner of the vehicle that the driver at the time of the accident, was holding the valid and effective driving license to drive the transport vehicle. Hence the learned counsel made the submission that in the absence of production of such material before the court, the insurance company not at all liable to pay the compensation. Learned counsel submitted that in spite of such contention that was taken before the tribunal, it was not at all considered by the tribunal and ultimately the liability is fixed on the insurance company, which is liable to be set-aside. In support of her contention, learned counsel for the insurance company relied upon the decisions filed along with memo Dated: 25.03.2015 and they are as under:-

1) M.F.A. No. 32560/2011 Dated: 26.02.2015 Mohammed @ Mohd. Haneef Vs. Mallayya and another.

2) Oriental Insurance Co. Ltd. Vs. Angad Kol and Others, (2009) ACJ 1411 : AIR 2009 SC 2151 : (2009) CLT 864 : (2009) 154 PLR 25 : (2009) 3 SCALE 749 : (2009) 11 SCC 356 : (2009) 2 SCR 695

3) MFA No. 30738/2008 Dated: 05.03.2014 National Insurance Co. Ltd., Vs. Basavaraj and others

4) MFA No. 30498/2008 C/w. MFA No. 30499/2008 Sabu Beerappa Vs. Siddappa and another Dated: 23.10.2010

5) MFA No. 20687/2009 C/w. MFA No. 30963/2009 Dated: 19.7.12011 National Insurance Co. Ltd., Vs. Dawal Sab and Others

6) Bajaj Allianz General Insurance Company Ltd. Vs. N.M. Rajaprakash and A. Somaiah, (2010) ILR (Kar) 2296 : (2011) 1 KarLJ 616 .,

7) MFA No. 6495/2009 Dated: 16.01.2012. The New India Assurance Co. Ltd., Vs. S. Lakkanna and another.,

8) Notification U/Sec. 41(4) of M.V. Act; Table Showing transport and non transport vehicle.

Hence submitted to allow the appeal filed by the insurance company and to set aside the judgment and award passed by the tribunal as against the insurance company.

Per contra, learned counsel appearing for the respondents/claimants during the course of his argument, made his submission that the driver of the said vehicle was holding the driving license and it is his submission that the Light Maxi Cab is also the motor car and they are one and the same, having same seating capacity and the driver was holding the driving license to drive the Light Motor Vehicle. Therefore, it is his submission that there is no violation of any terms and conditions and hence the insurance company was rightly held responsible to pay the compensation amount. Hence it is his submission that the tribunal has taken this aspect into consideration and ultimately allowed the claim petition even against the insurance company also. Hence he submitted that there is no merit in the appeal preferred by the insurance company and same is to be dismissed.

Regarding the quantum of compensation, learned counsel appearing for the respondents/claimants made the submission that as per the judgment of the Hon''ble Supreme Court in Kishan Gopal Case, the claimants are entitled to Rs. 5,00,000/-. The tribunal awarded only Rs. 3,75,000/- and hence same is to be enhanced to Rs. 5,00,000/-.

I have perused the grounds urged in the appeal memorandum in both the appeals, judgment and award passed by the tribunal and also the oral and documentary evidence produced by the parties before the tribunal. Looking to the material placed on record and as contended by the appellant-insurance company that the driver of the vehicle was not having the valid and effective driving license to drive the transport vehicle as on the date of the accident and they have not produced any material to prove that he was having such driving license. Perusing the observation made by the tribunal, the said aspect is not considered and the tribunal wrongly came to the conclusion that the insurance company is liable to pay the compensation amount. Perusing the documentary evidence produced in the case, the evidence of the RTO and the documents Ex. R-1 to Ex. R-3, all these materials goes to show that the owner of the vehicle has not produced the document to show that the driver of the vehicle was possessing valid and effective driving license to drive the transport vehicle. In view of this and also the decisions relied upon by the learned counsel for the insurance company, I am of the opinion that the insurance company cannot be held responsible for payment of the compensation that was awarded by the tribunal, as no material has been produced by the respondent/owner of the vehicle to prove the said fact. In the absence of such material, holding the insurance company liable is not correct.

So far as the quantum of compensation is concerned, as submitted by the learned counsel appearing for the claimants/respondents that in view of the decision of the Hon''ble Supreme Court reported in Kishan Gopal and Another Vs. Lala and Others, (2013) 3 ACC 878 : (2013) ACJ 2594 : (2013) 9 AD 193 : (2013) 5 CTC 212 : (2013) 11 JT 563 : (2014) 1 PLR 276 : (2013) 4 RCR(Civil) 276 : (2013) 10 SCALE 580 : (2014) 1 SCC 244 ., claimants are entitled to amount of Rs. 5,00,000/-. The tribunal considered only Rs. 3,75,000/- and hence the amount of compensation is enhanced by Rs. 1,25,000/- with interest at 9% p.a., from the date of the petition. The owner of the vehicle is liable to pay the compensation amount with interest and he has to deposit the amount before the concerned tribunal within 30-days from the date of receipt of copy of this judgment.

The appeal preferred by the insurance company is allowed and the judgment and award passed by the tribunal to the extent holding the insurance company liable is hereby set-aside. So also the appeal preferred by the appellants-claimants seeking enhancement of compensation amount is also allowed.

The amount in deposit is to be refunded to the appellant-insurance company.