MFA No .8370/2013 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE28H DAY OF APRIL2020R BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL MISCELLANEOUS FIRST APPEAL NO.8370/2013 BETWEEN: IFFCO-TOKIO GIC LTD., BRANCH OFFICE, A/2 1ST FLOOR RELIANCE HOUSE ISIDORO BAPTISTA ROAD PAJILOND, MARGAO GOA STATE – 403 607 NOW REP. BY ITS MANAGER M/S IFFCO-TOKIO GIC LTD., DIVISIONAL OFFICE SHANTI TOWERS, 5TH FLOOR #141, 3RD MAIN EAST OF NGEF LAYOUT KASTURI NAGAR BANGALORE – 560 043 … APPELLANT (BY SRI H.N.KESHAVA PRASHANTH, ADVOCATE) AND:
1. SMT.SUSHEELA W/O H.S.VENKATESH AGED ABOUT46YEARS2 H.S.VENKATESH AGED ABOUT47YEARS S/O LATE SUBBAYYA @ SUBBE GOWDA3 TEJASWINI D/O H.S.VENKATESH AGED ABOUT22YEARS MFA No .8370/2013 2 ALL ARE R/AT HONNATLU HOUSE ETTURU HOBLI, BISALE VILLAGE VANAGOORU POST SAKLESHPURA TALUK HASSAN DISTRICT – 571 001 4. SEBASTIAN ROYDEN BERNARD AGED ABOUT40YEARS S/O JULIAN BERNARD R/O HOUSE NO.1/2034 ADHIKARVALAPPU ROAD FOR KOCHI, KOCHI – 670 001 KERALA STATE …RESPONDENTS (BY SRI KUMARA K.G., ADVOCATE FOR R1 TO R3; SRI FELIX SEBASTIAN, ADVOCATE FOR SRI M.A.SEBASTIAN, ADVOCATE FOR R4) THIS MFA IS FILED UNDER SECTION1731) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT
AND AWARD DATED2006.2013 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE, MEMBER, MACT, PUTTUR, D.K. IN M.V.C.NO.301/2011. THIS MFA HAVING BEEN HEARD AND RESERVED ON1702.2020 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT THROUGH VIDEO CONFERENCE DELIVERED THE FOLLOWING:
JUDGMENT
This appeal of the insurer arises out of the judgment and award dated 20.06.2013 in M.V.C.No.301/2011 passed by the Principal Senior Civil Judge & M.A.C.T., Puttur, D.K. MFA No .8370/2013 3 2. By the impugned award, the Tribunal acting under Section 163A of the Motor Vehicles Act, 1988, has granted compensation of Rs.2,98,000/- to respondent Nos.1 to 3 payable by the appellant and respondent No.4 herein.
3. Appellant was respondent No.2, respondent Nos.1 to 3 were claimants-1 to 3 and respondent No.4 was respondent No.1 before the Tribunal in M.V.C.No.301/2011. For the purpose of convenience, parties will be henceforth referred to with their ranks before the Tribunal.
4. On 15.12.2010 at 3.45 p.m. an accident took place between motor cycle No.KA-20/H-1712 and motor cycle No.KL-43/A-3570 near Bedrodi of Bajathoor village. At that time, respondent No.1 was riding motor cycle No.KL-43/A-3570 and victim Chethan was riding motor cycle No.KA-20/H-1712. In the accident, Chethan suffered injuries and died at the spot. The motor cycle No.KL-43/A-3570 was insured with respondent No.2. MFA No .8370/2013 4 5. Claimants filed M.V.C.No.301/2011 under Section 163A of the Act against respondent Nos.1 and 2 claiming that they were the dependants of the deceased and under the principle of ‘no fault liability’ they are entitled for compensation from the respondents. They claimed compensation of Rs.6,00,000/-.
6. Respondents contested the petition contending that the accident occurred solely due to the rash and negligent riding of the vehicle by deceased Chethan himself and therefore, they are not liable to pay compensation. Respondent No.2 further contended that at the time of the accident, the first respondent was not holding valid driving licence, therefore, it is not liable to pay compensation.
7. The Tribunal on hearing the parties by the impugned award granted compensation of Rs.2,98,000/- as aforesaid and fastened the liability to the insurer on the ground that the insurer has not produced any material to show that the driving licence held by respondent No.1 was not valid in India. MFA No .8370/2013 5 8. Insurer challenges the said award in this case on the grounds that (i) deceased himself was rash and negligent; and (ii) that respondent No.1 was driving the vehicle without valid driving licence which amounts to breach of policy conditions, therefore, it is not liable to pay compensation. Reg. Rashness and negligence:
9. It is no doubt true that the Police registered the FIR and laid the charge sheet against the deceased Chethan himself for the offences of riding the vehicle in a rash and negligent manner and without a driving licence. However, the claim petition was under Section 163A of the Act, which provides for granting compensation under ‘no fault liability’.
10. The Hon’ble Supreme Court in United India Insurance Co.Ltd. –vs- Sunil Kumar and Another1 in para-8 of the judgment in that regard held as follows: “8. From the above discussion, it is clear that grant of compensation under Section 1 AIR2017SC5710MFA No .8370/2013 6 163-A of the Act on the basis of the structured formula is in the nature of a final award and the adjudication there under is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. This is made explicit by Section 163A(2). Though the aforesaid section of the Act does not specifically exclude a possible defence of the Insurer based on the negligence of the claimant as contemplated by Section 140(4), to permit such defence to be introduced by the Insurer and/or to understand the provisions of Section 163A of the Act to be contemplating any such situation would go contrary to the very legislative object behind introduction of Section 163A of the Act, namely, final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability was taking an unduly long time. In fact, to understand Section 163A of the Act to permit the Insurer to raise the defence of negligence would be to bring a proceeding under Section 163A of the Act at par with the proceeding under Section 166 of the Act which would not only be self-contradictory but also defeat the very legislative intention.” (Emphasis supplied) 11. Reading of the above judgment makes it clear that in a claim petition under Section 163A of the MFA No .8370/2013 7 Motor Vehicles Act, the defence of negligence on the part of the victim is not available to the insurer. Therefore, the finding of the Tribunal in that regard does not call for interference. Reg. Liability:
12. Learned Counsel for the Insurer submits that respondent No.1 was not holding the valid driving licence, therefore, the insurer was not liable to pay the compensation.
13. Learned Counsel for the first respondent (Insured) submits that the first respondent was holding an international driving licence issued by the Transport Authorities of United Kingdom of Great Britain.
14. The Tribunal held that insurer did not produce any material to show that said driving licence was not valid in India. Respondent No.1 himself produced the copy of his driving licence. Therefore, though that was not produced by the Insurer, since that is an admitted document, Tribunal could look into that. MFA No .8370/2013 8 15. Perusal of the said document indicates that the said driving licence was issued to the first respondent by the Secretary of State, Transport, United Kingdom of Great Britan and Northern Ireland and that was an international driving permit. That was valid for one year with effect from 06.10.2010. Therefore, as on the date of occurrence of the accident, the licence was in force. Whether that was valid to drive vehicle within Puttur limits/Karnataka is the question.
16. Section 3 of the Indian Motor Vehicles Act, 1988 (for short 'the Act') states that no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him.
17. Section 2(10) of the Act defines driving licence as follows:
"2(10) "driving licence" means the licence issued by a competent authority under Chapter II authorising the person specified therein to drive, otherwise than as a learner, a motor vehicle or a motor vehicle of any specified clause or description" MFA No .8370/2013 9 18. Section 139(1)(c) of the Act provides for the Central government making notification in the official gazette and the rules for the purpose of prescribing the conditions subject to which persons entering India from any place outside India for a temporary stay in India may drive motor vehicles in India.
19. Rule 2(t) of the Central Motor Vehicles Rules, 1989 which are framed by virtue of the powers conferred on the Central Government under Section 137 of the Act defines International Driving Permit as follows:
"2(t)"International Driving Permit" means the licence issued by the licensing authority in India under Chapter-II of the Act to an Indian National authorising the person specified therein to drive any category of motor vehicles as specified in Form No.6A in the areas or territories of the Countries, other than India that are parties to the convention on road traffic signed at Geneva on 19th day of September, 1949". Thus it is clear that Rules 2(t) and 14 of the Central Motor Vehicles Rules, 1989 apply to the international MFA No .8370/2013 10 driving licence issued by Indian Authority not vice-versa.
20. Rule 14 of the Central Motor Vehicles Rules, 1989 provide for issuance of driving licence. Rule 14(2) of the said Rules states that an application for international driving permit shall be made in Form No.4A. The application in Form No.4A prescribes making such application to the licensing authority.
21. As already pointed out, licensing authority means an authority empowered to issue licence under Chapter-II or Chapter-III of the Act. Chapter-II deals with issuance of licence to drivers and Chapter-III deals with the licence of the conductors.
22. Section 28(2)(a) in Chapter II of the Act states that the State Government may make rules providing for the appointment, jurisdiction, control and functions of licensing authorities and other prescribed authorities. MFA No .8370/2013 11 23. Exercising powers under Sections 28, 38, 65, 68, 95, 96, 107, 138, 178 and 211 of the Act, Karnataka State has framed Karnataka Motor Vehicles Rules, 1989 (' KMV Rules'). As per Rule 3(1) of KMV Rules, the Regional Transport Officers are the licensing authorities to exercise powers and discharge duties and functions under the Act within their respective jurisdictions. The driving licence of respondent No.1 was not endorsed by any such transport authority.
24. The Punjab and Haryana High Court in the judgment in Dilpreet Singh and another vs. United Insurance Company Limited2 held as follows:
".......................... I have considered the submissions made by counsel for the appellants, but I am unable to accept the same in the light of the fact that the driving licence held by appellant No.1 was not endorsed by any competent licensing authority of India, which is a requirement of the statute i.e. the Motors Vehicles Act, 1988 and the Rules framed there under and, therefore, the driving licence held by the driver on the date of the accident cannot be said to be valid one. Merely because, appellant No.1 was holding an 2 2014 SCC Online P & H17429MFA No .8370/2013 12 international driving licence which is valid upto 20.02.2016 would not be ground for declaring it valid in India without an endorsement of any competent authority entitling to drive the vehicle in India."
(Emphasis supplied) 25. The above judgment and integral reading of the above provisions shows that a foreigner visiting India, if wants to drive a vehicle registered in India in a public place, is required to obtain the authorisation of the jurisdictional Regional Transport Officer.
26. The material on record shows that at the time of accident, rider of the offending vehicle was not holding such authorization. Thereby, there was breach of policy condition and insurer was not liable to indemnify the damages to the insured. However, in the light of the judgment of the Supreme Court in Shamanna v. Oriental Insurance Company3 the appellant has to pay the compensation to the claimants and recover the same from the insured in the same proceeding. Therefore, the appeal is partly allowed. 3 (2018) 9 SCC650MFA No .8370/2013 13 The impugned award with regard to quantum of compensation, interest, apportionment and investment is maintained. The appellant shall pay the award amount to the claimants within four weeks from the date of receipt of copy of this order and recover the same from the Insured in the proceedings before the Tribunal. The impugned award is modified accordingly. Sd/- JUDGE KNM/-