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2017 Supreme(Kar) 1240
IN THE HIGH COURT OF KARNATAKA BENCH AT KALABURAGI
RATHNAKALA, J.
The Oriental Insurance Co. Ltd. - Appellant
Vs.
Annemma W/o Late Iranna Javalgi & Ors. - Respondents
M.F.A. No. 201484 of 2016 (MV)
Decided On : 23-11-2017
For the Appellant :Sri S.S. Aspalli, Advocate.
For the Respondents: Sri Bapugouda Siddappa, Adv.
Headnote:
Motor Vehicles Act, 1988 - Section 10(2), 149(1), (1)(b), (2)(a)(ii), (2), (4) and (5), 163 A, 166, 168 and 174 – Constitution of India, 1950 - Article 141 and 142 - Vehicle - Driving License - Whether owner has taken reasonable care to find out as to whether driving licence produced by driver does not fulfil requirements of law - Whether insurance company has to pay amount awarded to third party and recover it from insured – Held, Insurer had issued a notice to owner of vehicle to furnish his driving license, which he failed - It is not as if owner is not aware of claim, he appeared before Tribunal through his counsel however, did not participate thereon - There cannot be any more negligence on part of owner of vehicle to ride his vehicle without a licence - Jurisdictional police have held him entirely responsible for accident and have charge sheeted him - It is a clear case of breach of terms of contract with insurer - Insurer pleaded it’s defence and produced copy of notice issued to owner calling upon him to produce his license - Owner maintaining silence without responding to notice of insurer by itself is sufficient proof of defence though without any effort to prove negative i.e., absence of valid driving license - Valid defence statutorily available under Section 149(1) of Act having raised and established insurer is under no liability to indemnify insurer’s risk to third party - At same time, there can not be any order against Insurance Company to satisfy third party claim and then recover from owner in light of ruling of Division Bench of this Court - Judgment of Tribunal insofar directing appellant/Insurance Company to pay compensation amount to claimants is set aside - It is made clear that respondents/claimants are entitled to recover compensation amount from owner of vehicle/fourth respondent - Appeal allowed.
This is an insurer’s appeal aggrieved by the judgment and award passed by the II Additional Senior Civil Judge & MACT, Kalaburagi, (hereinafter referred to as ‘the Tribunal’ for short) whereby while allowing the claim petition filed by the respondent Nos.1 to 3 (claimants hereinafter). The appellant/insurer is directed to satisfy the award.
2. The crucial question raised in this appeal is, whether the Tribunal was justified to indemnify the Insured/Appellant to satisfy the claim of the third party though there was gross violation on the part of the owner in driving the vehicle without a license to drive the said vehicle and thereby causing the accident.
3. Learned counsel for the appellant Sri S.S. Aspalli, submits that the respondents are the widow and children of deceased Iranna who died in the vehicular accident dated 23.01.2013 due to rash and negligent driving of motor cycle bearing Reg.No.KA-32-Y-1544. Jurisdictional police registered a case against the owner / respondent No.4 and after enquiry charge sheet is submitted against him and the said fact is brought on record before the Tribunal by the claimants itself. The owner of the vehicle though appeared before the Court through his counsel did not contest the claim thereafter. A full fledged enquiry was held. The Tribunal though found that the accident was due to rash and negligent driving of the motorcycle by its owner, fastened the liability against the Insurance company, despite the insurer brought on record that the owner of the vehicle did not possess driving licence to drive the motorcycle. The insurer had produced the copy of the legal notice issued to the owner calling upon him to produce the driving licence. Copy of the said legal notice and a postal endorsement marked were as Ex.R3 to Ex.R5. There was a clear breach of contract between insured and the insurer to bind over the insurer to the terms of the contract of insurance. Policy/ Ex.R1 was required for the owner to establish that he holds valid driving license to drive the vehicle. As per schedule of premium of Ex.R1, a claim is not admissible, even if driving license is found to be fake or not valid. In the absence of the driving license, the Insurance company deserves be absolved of its liability from answering the claim.
4. In reply, Sri Bapugouda Siddappa, learned counsel for the respondents/claimants while seeking to maintain the judgment and award of the Tribunal placed reliance on the judgment of the this Court reported in 2008 (3) Kar R 119 in the matter of National Insurance Co. Ltd. vs. M.R. Shantamma and others. Subsequently followed by another judgment of Co-ordinate Bench of this Court in MFA No.30712/2011 (MV), The Branch Manager, The Oriental Insurance Company Limited vs. Parubai and others, wherein the insurer was directed to pay the compensation and recover the amount from the insured.
5. Learned counsel also places a reported judgment of a Co-ordinate Bench of this Court reported in 2017 Kant M.A.C. 364 (Kant) – The Manager, IFFCO Tokio General Insurance Co. Ltd. vs. Basavaraj and another, in which the contention of the insurer that “the driver of the goods carrying commercial vehicle had no valid and effective driving license at the time of the accident” was brushed aside and the appeal was dismissed. The learned counsel further placed his strong reliance on the following judgments of the Apex Court; 2008 AIR SCW 3251 – Oriental Insurance Company vs. Zahrulnisha and others, 2008 AIR SCW 5416 – Samundra Devi and others vs. Narendra Kour and others and Punam Devi vs. Divisional Manager, New India Assurance Company Limited - Civil Appeal No.7191/2002. DD February 12, 2004, 2004-AIR (SC)-0-1742/2004-SCC-3-386.
6. In the light of the above all, on an empathetic consideration of the question unfolded, I find the following :
The first cited case, it was an instance of a owner of the motor bike driving the motor bike without a license to drive a motor vehicle though he had a license for driv
