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2020 Supreme(Kar) 595
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
B.V.NAGARATHNA, RAVI V. HOSMANI, JJ.
Smt. H. Kumari, W/o. Late B.S. Thippeswamy – Appellant
Versus
B.C. Sridhara S/o. Chikke Gowda – Respondent
M.F.A. No.2482 of 2015 (MV-D)
Decided on : 16-06-2020
Advocate Appeared:
For the Appellant :SRI SAGAR B.B., ADVOCATE FOR SRI SATISH M. DODDAMANI, ADOVATE
For the Respondent: SRI GIRISH B. BALEDARE, SRI M.Y. LOKESHA, SRI M. NARAYANAPPA, SRI B. PHALAKSHAIAH, ADV
Headnote:
The insurance company is liable to satisfy the award and seek recovery of the same from the insured. The object and purpose of seeking endorsement on the driving licence after complying with Rule 9 of Rules and the proviso to Section 14(2)(a) of the Act is to seek authorization to drive a transport vehicle meant for carrying hazardous or dangerous goods.
Fact of the Case:
The claimants, being the widow, parents and minor daughter of B.S.Thippeswamy, filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act”), seeking compensation of Rs.45,00,000/- on account of death of Thippeswamy in a road traffic accident that occurred on 02/07/2012.
Finding of the Court:
The Tribunal was not right in fastening the liability entirely on respondent No.2/owner of the oil tanker and thereby exonerating respondent No.3/insurer of the oil tanker. The insurance company is liable to pay the compensation to the claimants and recover the same from the insured.
Issues: (i) Whether the petitioners prove that B.S.Thippeswamy, S/o.Dodda Sanjivappa sustained severe injuries and died in the alleged RTA on 02/07/2012 at about 11.15 p.m. near Malali Cross, on NH-48, B.M.Road, Shanthi Grama Hobli, Hassan Taluk, due to rash and negligence of driving of driver of the Tanker Lorry bearing Reg.No.KA-13/9689 by its driver? (ii) Whether the petitioners are entitled for compensation, if so, at what quantum and from whom? (iii) What order or award?
Ratio Decidendi: Even if the insurer is able to prove and satisfy the Tribunal or the Court that, the driver of the offending insured vehicle did not possess a valid driving licence as on the date of the accident by complying with the twin tests enumerated by the Hon’ble Supreme Court in the case of Swaran Singh, nevertheless, having regard to sub-section (1) of Section 149 read with sub-section (7) of Section 149 in the context of sub-section (2) of Section 149, the insurance company is liable to pay the compensation to the innocent third party victims/claimants and recover the same from the insured.
Final Decision: The appeal filed by the claimants/appellants is allowed in part. Respondent No.3/insurer is directed to satisfy the award by paying compensation of Rs. Rs.26,94,032/- with interest at the rate of 6% per annum from the date of claim petition till deposit and further, the insurance company is entitled to recover the same from respondent No.2/owner of the oil tanker lorry by executing this judgment in accordance with law.
JUDGMENT :
Though this appeal was listed for admission, on hearing learned counsel for the respective parties with their consent, it has been heard finally and is disposed of by this judgment.
2. The claimants in MVC.No.600/2012 have filed this appeal, being aggrieved by the judgment and award passed by the II Addl. Senior Civil Judge & Addl. MACT-V, Chitradurga (hereinafter referred to as “the Tribunal” for the sake of convenience), dated 10/10/2014 in MVC.No.600/2012.
3. For the sake of convenience, the parties shall be referred to in terms of their status before the Tribunal.
4. The claimants, being the widow, parents and minor daughter of B.S.Thippeswamy, filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act”, for short), seeking compensation of Rs.45,00,000/- on account of death of Thippeswamy in a road traffic accident that occurred on 02/07/2012. According to the claimants, on the fateful day, Thippeswamy was discharging his duty as a conductor of KSRTC bus bearing registration No.KA-18/F-469, which was proceeding from Arasikere to Dharmasthala via Bengaluru, in a moderate speed, following all traffic rules. At about 11.15 p.m., when the bus was proceeding near Malali Cross on NH-48, B.M.Road, Shanthi Grama Hobli near Hassan, respondent No.1/driver of the oil tanker lorry bearing registration No.KA-13/9689, which was coming from the opposite direction, drove the same in the wrong side, in a rash and negligent manner at a high speed and dashed to the right side portion of the KSRTC bus. As a result, the driver of the said bus lost control over the bus and dragged to the left-side ditch and dashed against a coconut tree. As a result of the impact, Thippeswamy who was sitting in the bus was thrown out from the front glass, sustained grievous injuries and fractures all over the body and died on the spot. Postmortem examination was conducted on the body of Thippeswamy and his body was shifted in a hired vehicle for cremation to his native place and after performing his last rites, his body was cremated. According to the claimants, deceased Thippeswamy was working as a driver-cum-conductor under respondent Nos.4 and 5 and was earning Rs.11,886/- p.m. He used to contribute his income for the maintenance of the family. On account of sudden and untimely death of Thippeswamy, the family was suffering from agony and sorrow as they had lost the only bread earner of the family. Therefore, they contended that the accident occurred on account of rash and negligent driving of the driver of the oil tanker bearing No.KA-13/9689.
5. In response to the notices issued by the Tribunal, respondent Nos.1 and 2, who are driver and owner of the oil tanker, remained absent and they were placed ex parte. Respondent Nos.3 to 5 appeared and filed their respective statement of objections.
6. Respondent No.3 denied the averments made in the claim petition and contended that the accident had occurred due to rash and negligent driving by the driver of the KSRTC bus and not on account of negligence on the part of the driver of the oil tanker lorry. It was further contended that the driver of the oil tanker was not holding a valid and effective driving licence as on the date of the accident. That respondent Nos.1 and 2 had violated the terms and conditions of the policy of the insurance by allowing respondent No.1, who was not having a valid licence, to drive the oil tanker. Hence, respondent No.3 sought for dismissal of the case. Respondent Nos.4 and 5 contended that the accident had occurred on account of negligence on the part of the driver of oil tanker and not due to negligent driving of the driver of the KSRTC bus. They contended that the compensation claimed was exorbitant. Hence, they also sought dismissal of the claim petition.
7. On the basis of the rival pleadings, the Tribunal framed the f
