United India Insurance Co. Ltd. vs G.S. Mahalaxmi and Others

S.N. Satyanarayana, J—The common third respondent insurer in MVC Nos. 1150/2009 and 1151/2009 on the file of MACT, Mysuru has come up in these two appeals impugning the common judgment and separate awards passed in both the claim petitions on 14.12.2010 in awarding compensation to claimants in the said proceedings in a sum of Rs. 47,340/- and Rs. 30,000/- respectively and consequently saddling liability to pay the same on respondent Insurance Company with liberty to recover the same from the owner of offending vehicle and also father of the rider of offending vehicle.

Brief facts leading to these appeals are as under:

"On 29.06.2008 H.R. Swagath a minor boy who is first respondent before the tribunal and son of second respondent H.R. Raghu, owner of motorcycle bearing registration No. KA 09 S 9667 was riding the same without valid driving license. When he was proceeding near the junction of Hunsur road and JCE college road at Mysuru he hit a Bajaj Scooter bearing registration No. KA 09 U 7538 on which D V Sripada claimant in MVC No. 1150/2009 and Smt. G.S. Mahalaxmi claimant in MVC No. 1151/2009 were traveling. Due to said accident the rider and pillion on the said scooter were injured. The accident is not in dispute. So also injury suffered by the husband and wife who are rider and pillion on the aforesaid scooter. Thereafter claim petition was filed by them seeking compensation for the injuries suffered in the said road traffic accident."

In the proceedings before tribunal the claim petition filed by the husband and wife in MVC Nos. 1150/2009 and 1151/2009 were clubbed together and common evidence were recorded. On behalf of claimants they examined themselves as PWs. 1 and 2. On behalf of respondents the minor rider of the motorcycle was examined as RW.1, his father the owner of the offending motorcycle was examined as RW.2 and other two witnesses namely K.M. Aiyappa an officer of the Insurance Company as RW.3 and one Ramanathan, the medical records keeper of Basappa Memorial Hospital was examined as RW.4 for production of medical records.

The court below on appreciation of oral and documentary evidence available on record has observed that the accident is caused due to rash and negligent driving of first respondent who was minor at the relevant point of time and it was also observed that the second respondent - father of first respondent has handed over the vehicle to his son who did not have valid driving license to drive the same and had committed breach of the policy which was issued in his favour to the said scooter. Inspite of such observations the tribunal proceeded to saddle the liability to pay compensation on the insurer of the offending motorcycle with liberty to them to recover the same from the owner of offending motorcycle. Being aggrieved by the same the insurer has come up before this court challenging the same.

Heard the learned counsel for the appellant as well as contesting respondent namely claimants in the court below. On going through the record it is clearly seen that as on the date of accident first respondent rider of the offending motorcycle was aged about 17 years and he was not having valid driving license. It is seen that the said vehicle was entrusted to him by the second respondent father of the offender and also owner of the offending motorcycle. With this it is clearly seen that he has committed breach of the policy condition in entrusting the vehicle to his son, who did not have valid driving license and also allowed him to be a threat to road users which has resulted in the first respondent riding the said motorcycle in a rash and negligent manner and causing accident resulting in injuries to the claimants in both the claim petitions before the tribunal.

In that view of the matter, this court feel when the second respondent owner consciously and knowing fully well that his son, first respondent who did not have valid driving license to drive the vehicle has entrusted with the same not only in violation of the terms of the policy, but also with utter disregard to the safety and life of people who use the road and thereby causing injury to them. Therefore, this court feel that the finding of the tribunal in ordering compensation to be paid by the Insurance Company with liberty to recover the same is nothing but encouraging the tortuous act committed by the father and son duo who are respondents No. 1 and 2 in the court below.

The said lenience is nothing but misplaced sympathy to them. Such kind of lenient view on the part of tribunal cannot be entertained and also cannot be permitted to be continued. In that view of the matter, the judgment and award passed by the tribunal in saddling liability to pay the compensation on the Insurance Company with liberty to recover the same is hereby set aside and the appellant Insurance Company is exonerated from making any payment of compensation to the claimants in the court below. However, while recording this finding it is made clear that the claimants in court below are at liberty to receive the compensation from respondent No. 2.

While observing that this court would further hold that the claimants in the court below are entitled to recover the said amount from the rider and owner of the motorcycle seeking attachment of their personal property and also seeking their arrest and sending them to civil prison till such time the compensation is recovered from them.

In view of the appeal filed by the Insurance Company being allowed, amount in deposit is ordered to be refunded to the Insurance Company.