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2016 Supreme(Kar) 70
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
RAGHVENDRA S. CHAUHAN, J.
C. BALAKRISHNA - APPELLANT
Versus
C. MUNIRAJU –Respondent
MISCELLANEOUS FIRST APPEAL NO.6206 OF 2009 (MV)
Decided On : 22-03-2016
BY SRI N. GOPALA KRISHNA, ADV.
BY SRI O. MAHESH, ADV. FOR R2;
Headnote:MOTOR VEHICLES ACT, 1988 - Sections 147 & 168: [Raghavendra S. Chauhan, J] Liability of Insurer - Accident between Motor Cycle and TVS moped - Claimant riding motor cycle - Vehicles running in opposite directions - Tribunal exonerated Insurer and saddled the liability on moped owner - Compensation of Rs.1,81,000/- award - Challenge as to exoneration of Insurer - Owner and driver of the offending vehicle (moped) remained absent - Details of the accident, driver of vehicle and his licence not reported to Insurer - Held, the contention of Insurer that the burden of proof first lies on driver, or on owner, is an unacceptable - Rule 32 of the Rules merely impose a duty to dairy the documents while driving the vehicle and to show the same when called upon to do so. Therefore, even if the Insurance Company succeeds in proving that the driver did not have a valid driving licence, even then, it is still liable to pay the compensation amount. The only right which can be bestowed on the Insurance Company is the right of recovery. Therefore, the Insurance company will certainly have a right against the owner of the offending vehicle. Tribunal was not justified in concluding that since respondent No. 1, the driver of the offending vehicle, did not have a valid driving licence, therefore, the Insurance company should be absolved of its liability to pay the compensation. Order of the Tribunal in so far as exonerating the Insurer was set aside. Insurer was directed to deposit the compensation amount with interest. However, between the date the appeal was dismissed for non-prosecution and restoration Insurer is not liable to pay interest.
The appellant, Mr. C. Balakrishna, is aggrieved by the award dated 2362009, passed by the II Additional Civil Judge (Senior Division), Bangalore Rural District, Bangalore, whereby the learned Tribunal has exonerated the M/s. Cholamandalam General Insurance Company Limited, respondent No.2, from its liability to pay the compensation to the appellant in M.V.C. No.137 of 2004.
2. The brief facts of the case are that on 2612004 at about 7.30 a.m., the appellant was riding a motor cycle, bearing Registration No.KA02 EH1726, on the Bangalore Sarjapura road. At the relevant time, a TVS Moped, bearing Registration No.KA05 EN2542, came
from the opposite direction, being driven rashly and negligently, dashed against the appellant. Consequently, the appellant suffered grievous injuries. He was admitted in the HOSMAT Hospital at Bangalore for a period of five days. Subsequently, the appellant filed a claim petition before the learned Tribunal. In order to support his case, the appellant examined two witnesses, and submitted fortynine documents. The Insurance Company, on the other hand, examined a single witness and submitted four documents. After going through the oral and documentary evidence, by award dated 2362009, the learned Tribunal granted a compensation of Rs.1,81,000/together with an interest at the rate of 6% per annum from the date of petition till its realisation, but exonerated the Insurance Company. The learned Tribunal imposed the liability of paying the compensation upon Mr. C. Muniraju, the respondent No.1, before this Court. Hence, this appeal filed by the appellant.
3. Relying on the case of the National Insurance Company v. Swaran Singh [(2004) 3 SCC 297], the learned counsel for the appellant has pleaded that even if the driver of the offending vehicle did not have a valid driving licence, even then the Insurance Company can be held liable for paying the compensation amount and the right of recovery can be given to the Insurance Company.
Secondly, relying on the case of Rukmani and Others v. New India Assurance Company Limited and Others (1999 ACJ 171), the learned counsel for the appellant has pleaded that the burden of proof lies upon the respondents to establish that the driver of the offending vehicle did not have a valid driving licence. Moreover, it is for the Insurance Company to prove that there has been a violation of condition of the insurance policy. In case, the Insurance Company fails to discharge the particular burden, it cannot be absolved of the liability to pay the compensation. In the present case, the Insurance Company neither examined the driver, nor the owner of the offending vehicle as a witness, nor a witness from the Regional Transport Authority, in order to establish the fact that the driver of the offending vehicle did not possess a valid driving licence. Merely because the Insurance Company had made a vague statement that the driver of the offending vehicle did not possess a valid driving licence at the pertinent time, the said statement cannot be accepted in the absence of the proof thereof. Since in the present case, the Insurance Company has failed to establish the said fact, the learned Tribunal has erred in absolving the Insurance Company of its liability. Therefore, the impugned award deserves to be modified to the limited extent that the liability to pay the compensation should be imposed upon the Insurance Company and not on the respondent No.1, the owner of the offending vehicle.
Lastly, it would be extremely difficult for the claimant – appellant to realise the compensation amount from the respondent No.1, the owner of the offending vehicle. Hence, the Insurance Company should be directed to pay the appellant, but with the right of recovery from respondent No.1.
4. On the other hand, Mr. O. Mahesh, the learned counsel for the respondent – Insurance Company, has raised the following contentions before this Court:
Firstly, according to Section 134 of the Motor Vehicles Act,
