Full Judgment
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 31ST DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.21368 OF 2012 (MV) BETWEEN: THE DIVISIONAL MANAGER, M/S. NEW INDIA ASSURANCE CO. LTD., BELLARY, R/BY B.R. SHANKAR S/O. C. RAMAIAH, AGE: 48 YEARS, OCC: ASSISTANT MANAGER, NEW INDIA ASSURANCE CO. LTD., (MTPC HUB) NEW COTTON MARKET, HUBLI. …APPELLANT (BY SRI S.V. YAJI, ADVOCATE) AND:
1. A. LINGANGOUDA S/O. DODDAPPA, AGE: 58 YEARS, OCC AGRICULTURE, R/O. NEAR AYYAPPA SWAMY TEMPLE, TORANAGALLU R.S. TQ: SANDUR, DIST: BELLARY.
2. HULUGANNA S/O. NARASIMHA, AGE: 24 YEARS, OCC: DRIVER, R/O. VINAYAK NAGAR, TQ: BELLARY, DIST: BELLARY.
3. S. MOHAMMAD S/O. ABDULLA SAB, Digitally signed by AGE: 34 YEARS, OCC: BUSINESS, MALLIKARJUN R/O. WARD NO.30, VINAYAK NAGAR, RUDRAYYA
KALMATH HOSAPET ROAD, TQ: BELLARY. DIST: BELLARY. Location: HIGH 4. B. LOGANATHAN S/O. R. BALAKRISHAN, COURT OF AGE: 38 YEARS, OCC: BUSINESS,KARNATAKA R/O. M/S. B.L. TRANSPORT, NAGAPPA LAYOUT, TILAKNAGAR, CONTONMENT, TQ: BELLARY, DIST: BELLARY. …RESPONDENTS (NOTICE TO R1 AND R3 ARE SERVED; R2 - SERVICE OF NOTICE DISPENSED WITH; R4 - NOTICE HELD SUFFICIENT) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, 1988, PRAYING TO SET ASIDE THE -2-
JUDGMENT AND AWARD DATED 02.12.2011 PASSED BY THE COURT
OF III MOTOR ACCIDENT CLAIMS TRIBUNAL, BELLARY, IN MVC NO.251/2009 DIRECTING THE APPELLANT TO SATISFY THE AWARD AMOUNT BY ALLOWING THIS APPEAL AND ETC., THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This appeal is filed by the insurance company praying to exonerate insurance company to pay compensation by challenging the judgment and award dated 02.12.2011, passed by the III Motor Accident Claims Tribunal, Bellary, in MVC No.251/2009, on the ground that the driver of lorry was not having driving licence to drive the lorry at the time of accident.
2. The occurrence of accident, injuries sustained by the claimant are not in dispute.
3. The Tribunal while awarding compensation had
fastened liability on the appellant-insurance company. It is submitted by the appellant-insurance company that the driver of lorry was not holding driving licence to drive lorry -3- and in this regard, the appellant has issued legal notice to the owner of lorry as per Ex.R-2 and the owner has
received the said legal notice as per Ex.R-3- acknowledgement card. Ex.R-4 is a legal notice calling upon the owner to produce driving licence. In spite of it, the owner has not produced driving licence. Therefore, the appellant has discharged his burden in proving that the driver of lorry was not holding driving licence. Hence,
prays to exonerate the insurance company to pay compensation.
4. When the insurance company has taken a
specific contention that the driver of lorry was not holding driving licence to drive lorry and also legal notice is issued upon the owner of lorry calling upon to produce driving licence, but the owner has not produced driving licence, then an adverse inference can be drawn against the owner of the lorry as per Section 114(g) of the Indian Evidence Act. It could not be expected insurance company to lead negative evidence regarding the driver was not having
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proving his driver was holding driving licence. The insurance company has taken contention in this regard and also issued legal notice as per Ex.R-2 and R-3 and the owner has received notice which is proved by producing legal notice as per Ex.R-2 acknowledgement card as per Ex.R.3 for having received notice, but the owner has not produced driving licence. Therefore, it is proved that the owner has entrusted the lorry to the person who was not holding valid driving licence. Hence, violation of conditions of insurance policy is proved. Hence, insurance company is liable to be exonerated from payment of compensation. Thus, the Insurance Company would not liable to pay compensation.
5. The insurance company is able to establish the
defence as per sub-section (2) of section 149 of M.V.Act. However, the claimant is third party to the lorry. Hence as per sub-section (1), (5) and (7) of section 149 of the M.V.Act, and also as per the principle of law laid down by -5- the Hon’ble Supreme Court in the cases of PAPPU AND OTHERS Vs. VINOD KUMAR LAMBA AND ANOTHER
reported in (2018) 3 SCC 208; NATIONAL INSURANCE COMPANY LIMITED VS. SWARAN SINGH AND OTHERS reported in (2004) 3 SCC 297; and also as per the Full Bench decision of this Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED VS. YELLAVVA AND ANOTHER reported in 2020 ACJ 2560, the insurance company shall satisfy the claim at the first instance to the claimant and then recover it from the owner of the offending vehicle. However, the insurance company is at liberty to file execution petition before the jurisdictional executing Court as against the owner of the offending vehicle and may seek attachment of movables or immovable properties or both, till recovery is made and also the recovery process can be as per the decision of the Hon’ble Supreme Court in ORIENTAL INSURANCE CO. LTD., VS. NANJAPPAN AND OTHERS, reported in 2004 AIR SCW 952.
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6. Therefore, the insurance company is directed to
deposit the compensation within eight weeks from the date of receipt of a certified copy of this judgment at the first instance and then recover it from the owner of offending vehicle as discussed above.
7. In the result, I proceed to pass the following:
ORDER
i) The appeal is allowed in part. ii) The judgment and award dated 02.12.2011, passed by the III Motor Accident Claims Tribunal, Bellary, in MVC No.251/2009, is modified. iii) The Insurance Company shall deposit the amount within a period of eight weeks from the date of receipt of a copy of this judgment. iv) The insurance company shall satisfy the claim at the first instance to the claimants and -7- then recover it from the owner of the offending vehicle. v) The insurance company is at liberty to file
execution petition before the jurisdictional executing Court as against the owner of the offending lorry and may seek attachment of movables or immovable properties or both, till recovery is made and also the recovery process can be as per the decision of the Hon’ble Supreme Court in Oriental Insurance Co. Ltd., vs. Nanjappan and others, reported in 2004 AIR SCW 952.
vi) The amount in deposit by the appellant/insurer shall be transmitted to the Tribunal. vii) Send a copy of this judgment to the trial Court. viii) No order as to costs. -8- ix) Draw award accordingly. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE RKM List No.: 1 Sl No.: 31