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High Court of Karnataka
N. KUMAR & H.S. KEMPANNA
The Oriental Insurance Co. Ltd. Through its Regional Office, Leo Shopping Complex Versus
K.C. Subramanyam & Another
M.F.A.No.2596 of 2007 (MV)
Decided on : 12-07-2012
MOTOR VEHICLES ACT, 1988 - Sections 147(1) (b), (3) and 149(2): [N. Kumar & H.S. Kempanna, JJ] Liability of insurer -Towards third party - Vehicle involved in accident was duly insured - Claimant issued notice to insurer in claim petition and tribunal passed a ward - Effect - Insurer by virtue of Section 149(1) steps into shoes of judgment debtor, insured and is bound to pay amount awarded to third party.
If the Claims Tribunal passes an award against the insured, the insurer steps into the shoes of the insured as a judgment debtor and he has to pay to the person entitled to the benefit of the decree in a sum not exceeding the sum assured payable thereunder. In other words, though there is no privity of contract between the third party and the insurer and the contract is only between the insured and the insurer, by virtue of the statutory provision, a statutory liability is foisted on the insurer to satisfy the decree obtained by the third party against the insured. The insurer shall be deemed to be a judgment debtor in respect of liability in view of sub-section (1) of Section 149 of the Act. Therefore, the liability of the insurer is a statutory one. The liability of the insurer to satisfy the decree passed in favour of a third party is also statutory. However, such a legal consequence would follow only if the conditions stipulated under sub-section (2) of Section 149 is satisfied by the claimant. The said condition is before the commencement of the proceedings in which the judgment and award are given, notice is given to the insurer through the Court about the commencement of the proceedings before the Claims Tribunals or in respect of the judgment and award passed by the Claims Tribunal is stayed in appeal, notice is given to the insurer about such proceedings. The effect of giving such notice would be that the insurer shall be entitled to be made a party thereof. Once he is made a party thereof, then sub-section (2) of Section 149 of the Act confers a right on the insurer to defend the action on any of the grounds mentioned therein. Therefore, what follows is, if a third party wants an award or decree compensation executable against the insured by virtue of the statutory liability as contained in sub-section (1) Section 149, he shall make the insurer a party to the claim petition. If the insurer is not made a party to the claim petition, as is clear from the opening words of subsection (2) of Section 149, no sum shall be payable by the insurer under sub-section (1) of Section 149 in respect of any judgment or award.
N. Kumar, J.
1. The Insurance Company has preferred this appeal challenging the liability to pay the compensation to the claimant in MVC No.5667/2005, which is fastened on them by the Claims Tribunal.
2. For the purpose of convenience, the parties are referred to as they are referred to their rank in the claim petition.
FACTS IN BRIEF
3. The claimant – K.C. Subramanya was traveling in Tata Victra bearing No.KA-03-B-8180 driven by its driver Prasanna Babu on 25.4.2005. At about 03.30 hours when the said vehicle came near Sundepalli on NH-7 in Kurnool – Donu road, the vehicle met with an accident on account of rash and negligent driving of the driver. The claimant sustained injuries. The police registered a case against the driver of the vehicle in Crime No.49/2005. In fact, the wife of the claimant, who was traveling with him died. He preferred a claim petition in MVC No.5667/2005 claiming compensation for the injuries sustained by him. In fact, another injured person in the said accident had also filed separate petition. Respondents filed common defence denying all the allegations made in the claim petition. The insurance company did not dispute the insurance coverage to the vehicle involved in the accident. They specifically pleaded that their liability is subject to the terms and conditions of the policy. The claimants have to prove that the documents of the vehicle like RC, FC, permit and payment of premium in respect to the said passenger carrying on commercial vehicle is valid and current as on the date of the accident. Further they have to establish that the person who was driving the vehicle had valid and effective driving license to drive the same as on the date of the accident. The owner of the vehicle willfully entrusted the vehicle to a person who was without valid license and violated the terms and conditions of the policy. Therefore, the insurance company is not liable to indemnify the owner of the vehicle. Hence, they sought for dismissal of the petition.
4. On the aforesaid pleadings, the Tribunal framed the following issues:-
1. Whether the petitioner proves that on 25.4.2006 at about 3.30 hours when he/she was traveling along with his/her family members in a Tata victra bearing registration No.KA-03-B-8180 near Sundepalli Bus Stage, NH-7 Road, Kurnool to Donu, Velladurthi Mandal, he met with an accident and sustained grievous injuries was due to rash and negligent driving by the above said vehicle by its driver as alleged?
2. Whether the petitioner is entitled for compensation? If so, how much and from whom?
3. What order?
5. Claimant in order to establish his case examined himself as PW.1 and produced 13 documents which are marked as Exs.P.1 to P.13. On behalf of the respondents, one of the Insurance Company official has been examined as RW.1 and they also produced four documents, which are marked as Exs.R.1 to R.4.
6. The Tribunal on consideration of the aforesaid oral and documentary evidence on record held that the accident was on account of rash and negligent driving of the driver of the vehicle and therefore, the claimant has established actionable negligence. After looking into the medical evidence on record, the Tribunal held that the claimant sustained the following injuries:-
(a) (R) Black Eye
(b) Abrasion on the (R) face anterior to (R) Ear
(c) Sutured lacerated wound oblique over center of forehead.
The Medical Officer was of the opinion that the injuries are simple in nature. He was an inpatient in the hospital from 25.4.2005 to 27.4.2005. Therefore, it awarded a sum of Rs.3000/- each for the simple injuries sustained, Rs.13,310/- towards medical expenses, a sum of Rs.5,000/-towards mental shock and agony and a sum of Rs.2,000/- towards conveyance, and nourishment charges. Thus in all a sum of Rs.29,310/- is awarded as compensation.
7. After referring to the documents produced by the Insurance Company and also taking note of the evidence of the witness on behalf of the insura
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