Sri Sathish Kini Vs. Smt Jnaneshwari M H Nutan - Court Judgment

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE5H DAY OF JULY,2018 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT M.F.A. No.5342 OF2010(MV) BETWEEN: SRI SATHISH KINI S/O LATE N.B.KINI AGED ABOUT46YEARS, R/A FLAT No.204, 11 FLOOR, JUSTIC APARTMENTS, BIJAI, NEW ROAD, MANGALORE DAKSHINA KANNADA DISTRICT ... APPELLANT (BY SRI. G LAKSHMEESH RAO, ADVOCATE) AND:

1. SMT JNANESHWARI M. H. NUTAN W/O LATE M SURESHA AGED33YEARS, R/A "AISHWARYA" NEAR NAVULE, SHIMOGA - 577201 2. SMT GANGAMMA W/O MARIYAPPA AGED ABOUT60YEARS, R/A "AISHWARYA" NEAR NAVULE, SHIMOGA2SINCE DECEASED BY LRS2A) M. SHIVAJIRAO S/O LATE MARIYAPPA, MARIGONDANAHALLI KOTEHAL POST HONNALI TALUK, DAVANGERE DISTRICT. 2(B) RATNABAI W/O LAXMANARAO RENUKAMBANILAYA, NEAR SHANKAR INDUSTRIES, CHANNEK RIGHT SIDE, NAUVALE, SHIVAMOGGA. 2(C) M. BASAVANTHARAO S/O LATE MARIYAPPA, MARIGONDANAHALLI , KOTEHAL PSOT, HONNALI TALUK, DAVANGERE DISTRICT. 2(D) M. RAVI S/O LATE MARIYAPPA MARIGONDANA HALLI, KOTEHAL POST, HONNALI TALUK DAVANGERE DISTRICT2E) SMT. NIRMALA W/O RAVINDRA ANGADI NO.35, SRI LAXMI VENKATASWAMI NILAYA, 8TH B CROSS, VARADARAJA LAYOUT, AMRUTAHALLI, BENGALURU – 92 (CAUSE TITLE AMENDED VIDE ORDER

DATED0803.16) 3. VEERESH S/O SHIVASHANKARA LINGAPPA3SECURITY GUARD,MAJOR, AND DRIVER OF SANTRO CAR BG NO.KA-18P-1818, C/O SATHIS KINI, S/O LATE N.B.KINI AGED46YEARS, TRANSPORT BUISNESS, FLAT II FLOOR, JUSTICAPTS, BIJAI, NEW ROAD,MANGALORE - 4 4. THE ORIENTAL INSURANCE CO LTD CITY BRANCH KALYANI BUILDING, K.S. BUILDING, K.S RAO ROAD, HAMPANAKATTA MANGALORE – 1 BY ITS MANAGER … RESPONDENTS (BY SRI. S.V. PRAKASH, ADV. FOR R1 SRI. H.C. VRUSHABENDRAIAH, ADV. FOR R4 SRI. S.V. PRAKASH, ADV. FOR R2(1-5) V/O DATED2508.2016 SERVICE OF NOTICE TO R2 IS HELD SUFFICIENT R3-VEERESH) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION1731) OF MV ACT AGAINST THE JUDGMENT

AND AWARD DATED1502.2010 PASSED IN MVC NO.387/2005 ON THE FILE OF THE IIND ADDITIONAL CIVIL JUDGE(SR.DN) AND MEMBER. ADDITIONAL MACT, SHIVAMOGGA, AWARDING A COMPENSATION OF RS.7,49,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:- 4

JUDGMENT

This appeal by the owner of the vehicle is directed against the judgment and award dated 15.02.2010, whereby the II Additional Civil Judge (Sr.Dn.) & M.A.C.T., Shivamogga has held that the owner and driver of the vehicle are jointly and severally liable to pay the compensation of Rs.7,49,000/- with 6% annual interest thereon.

2. The brief facts of the case are that: a) In a vehicular accident that happened on 11.04.2005 because of rash and negligent driving of Santro Car bearing Registration No.KA-18-P-1818 belonging to the appellant herein, one Mr. Suresh suffered fatal injuries and succumbed to the same. b) The claim petition by the legal representatives of the deceased in M.V.C.No.387/2005 was stoutly resisted by the Insurance Company by filing the Written Statement 5 inter alia contending that the person who drove the vehicle in question did not possess a valid and effective driving license. c) To prove their case, the first claimant got examined herself as PW-1 and in her deposition, ten documents came to be marked as Exs. P-1 to P-10. To prove their contention of resistance to the claim, the Insurance Company had examined two witnesses, namely, Satish Kini who is the appellant herein as RW-1 and one Smt. Komal Dinesh, an Administrative Officer of the Insurance Company as RW-2. In the evidence of the Insurance Company, eight documents came to be marked as per Ex. R-1 to R-8, which included a certified copy of the judgment of conviction and sentence made by a Criminal Court in C.C.4518/2005. d) The Tribunal, after looking to the pleadings of the parties, the evidentiary material placed on record as also the oral evidence of three witnesses in all entered the judgment and award, awarding a 6 compensation of Rs.7,49,000/- with interest at the rate of 6% p.a. thereon, which are the subject matter of challenge in this appeal.

3. I have heard Shri Lakshmeesh Rao, the learned counsel for the appellant, Shri S.V.Prakash, learned counsel for the claimants and Shri H.C. Vrushabendraiah, the learned counsel for the Insurance Company. I have also perused the Lower Court Records and the appeal papers.

4. The learned counsel for the appellant- owner of the vehicle in question submits that the impugned judgment and award firstly suffer from a grave illegality inasmuch as the liability of the Insurance Company is allowed to be disowned on the sole ground that the person who drove the vehicle rashly and negligently causing the accident in question was not only a thief but also he did not have a valid and effective driving license. The learned counsel banks upon the dictum of the Apex Court in the case of UNITED INDIA INSURANCE7COMPANY vs. LEHRU AND OTHERS reported in 2003 (3) SCC338to contend that the insurer is liable even in such fact matrix.

5. The learned counsel for the Insurance Company per contra submits that for the act of the thief in unauthorisedly taking away the vehicle in question that too without having no valid & effective driving license and further causing the accident by his rash and negligent driving, the insurer cannot be made liable. He hastens to add that an argument to the contrary would virtually amount to placing premium on illegality. He further submits that nowhere in the contract of insurance the company has undertaken to discharge the liability arising in the said fact situation and therefore asking the company to discharge the liability even there amounts to adding terms to the concluded contract between the parties by way of interpretation, which the Court should refrain from doing. 8 6. The learned counsel for the Insurance Company also in substance (though not that articulately) submits that the case cited by the appellant side did not involve a ‘precedential fact’, namely, theft of vehicle by the person who did not have a driving license and therefore the same cannot be taken to have laid down any ratio having the binding force. He further submits that what is cited as the dictum is not more than a passing observation from which no binding rule of conduct emanates. In any event, the said judgment is not more than an obiter dictum so far as the question assumed and answered in the said paragraph is concerned.

7. This is a case wherein the accident in question happened because a person unauthorisedly took away the vehicle and drove it rashly and negligently. The records show that he was subsequently convicted by a Criminal Court of competent jurisdiction. It is also not in doubt he did 9 not have a valid & effective driving license. In a similar fact matrix, the Apex Court ruled that the Insurance Company is still liable, is supported by the dictum of the Apex Court in the aforesaid judgment at paragraph 18 which reads as under: “18. Now let us consider Section 149(2). Reliance has been placed on Section 149(2)(a)(ii). As seen, in order to avoid liability under this provision it must be shown that there is a “breach”. As held in Skandia and Sohan Lal Passi cases the breach must be on the part of the insured. We are in full agreement with that. To hold otherwise would lead to absurd results. Just to take an example, suppose a vehicle is stolen. Whilst it is being driven by the thief there is an accident. The thief is caught and it is ascertained that he had no license. Can the insurance company disown liability?. The answer has to be an emphatic “No”. To hold otherwise would be to negate the very purpose of compulsory insurance. The injured or relatives of the person killed in the accident may find that the decree obtained by them is only a paper decree as the owner is a man of straw. The owner himself would be an innocent sufferer. It is for this reason that the Legislature, in its wisdom, has made insurance, at least third party insurance, compulsory. The aim and purpose being that an insurance company would be available to pay. The business of the company is insurance. In all businesses there is an element of risk. All persons carrying on business must risk associated with that business. Thus it is take 10 the is in loss. equitable that the business which is run for making profits also bears risk associated with it. At the same time innocent parties must not be made to suffer or These provisions meet these requirements. We are thus in agreement with what the aforementioned cases viz. that in order to avoid liability it is not sufficient to show that the person driving at the time of accident was not duly licensed. The Insurance company must establish that the breach was on the part of the insured”. laid down This above dictum of the Apex Court is a complete answer to the arguments of the learned counsel for the Insurance Company, which eventually may have a claim for contribution from the concerned. The contention that the said dictum is only a ‘passing observation’ or at the most an ‘obiter dicta’ and therefore the same cannot be taken to be a gospel of law, does not impress me. Even the ‘obiter dicta’ of the highest court of the country is always and as of necessity entitled to the highest deference by one and all. Even otherwise also, it is not for this Court to sit in appeal over the jurisprudential wisdom with which the said dictum is animated.

8. 11 The learned counsel for the appellant vehemently submits that a plethora of judgments makes the law very clear that the plea of lack of valid & effective driving license, ordinarily is not admitted as an defence in the teeth of Limited Defence Clause enacted u/s. 149 (2) of the Motor Vehicles Act, 1988, and therefore the impugned judgment and award to the extent of absolving the insurer from the liability, suffer from apparent error of law. Though the learned counsel for the Insurance Company somehow tried to rob off the probative force of the said submission, he is not in a position to justify the impugned judgment and award in this regard.

9. The learned counsel for the appellant also brings to my notice a particular paragraph of the impugned judgment and award of the Tribunal ie., paragraph 14, wherein the Tribunal has considered the issue of a Criminal Court’s finding as to rash and negligent driving in a grossly erroneous way. The 12 Tribunal says the finding of the Criminal Court, of conviction and sentence does not bind the Civil Court, herein the Tribunal.

10. The learned counsel points out that the findings of a Criminal Court being pressed into Civil proceedings as res judicata before a Civil Court is one thing, and the judgment of conviction & sentence by the Criminal Court being traded as evidentiary material in a civil proceeding is another. The Tribunal grossly erred in not differentiating between these two aspects which in law stand as poles asunder and thereby refusing to admit the said order into evidence for proving material facts of the case ie., the same was tendered to show that the person who took away the vehicle in question unauthorisedly was later convicted by the Criminal Court. Here too, the submissions of the learned counsel for the Insurance Company contradicting the above propositions are very meek and weak. 13 11. It is well established that the findings in a Criminal Court do not bind a Civil Court, but such findings can be subject matter of evidence in Civil Court by marking of the orders of conviction and sentence which are made admissible under the provisions of Sections 40 to 44 of the Indian Evidence Act, 1872, of course subject to certain conditions. However, what weightage is to be attached to such judgments tendered as evidentiary material is a matter lying within the province of adjudicating authority. This aspect of the matter, having not being adverted to, by the Tribunal shows the apparent error of law warranting indulgence of this Court as a Court of First Appeal.

12. Except the above, no other ground is urged by either of the parties in this appeal.

13. For the above reasons, this appeal succeeds. The impugned judgment and award are modified to the extent that the respondent-Insurance 14 Company is hereby made liable to pay to the claimants all that money by way of compensation and the interest that has accrued thereon, within eight weeks. The amount in deposit in the Registry be refunded to the appellant, forthwith. JUDGE Sd/- Snb/