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2020 Supreme(Kar) 2307
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
H.P. SANDESH, J.
M.R. Gangadhar, S/o Late M.R. Ramaiah – Appellant
Versus
Smt. G. Mallika, W/o Late Ganeshmurthy – Respondent
M.F.A.No.8607 of 2010 (MV)
Decided on : 09-12-2020
Advocate Appeared:
For the Appellant :Sri K. Hanumantharayappa, Advocate
For the Respondent:Sri A. Ravishankar, Advocate
Headnote:
Motor Vehicle Act, 1988 - Section 3(1) r/w Section 181 - Indian Penal Code, 1860 - Section 279, 304(A) - Accident – Death – Compensation Awarded – Challenged - Liability of Insurance Company - Case is that claimants are legal heirs of deceased – When deceased was crossing road - At that time, a Kinetic Honda motor bike rider came in a rash and negligent manner in extreme right side of the road and hit said deceased. As a result, said deceased sustained injuries and he was shifted to Hospital wherein he was treated – Unfortunately he succumbed to the injuries - Whether he was having driving licence or not and he categorically admits that he did not verify same - Insured also did not dispute fact that driver was not having the driving licence - Held, The terms and conditions of policy is very clear that if there is no valid driving licence, Insurance Company is not liable. The law is also clear on this aspect. Hence, I do not find any error committed by Tribunal in fastening liability on the insured - Insured/appellant would submit that if policy is in force, Insurance Company has to pay amount and recover same from insured - Apex Court and also this Court has directed Insurance Company to pay compensation and recover same from insured, only with an object to protect interest of third parties - When such being case, question of directing Insurance Company to pay and recover from insured does not arise - Primary liability is on insured to pay compensation - When this appeal is filed by the insured himself, there cannot be a direction to Insurance Company to pay and recover the same - Appeal is dismissed.
JUDGMENT :
This appeal is filed challenging the judgment and award dated 09.07.2010 passed in M.V.C.No.1387/2006, on the file of the Fast Track Court-V and MACT, Mysore (‘the Tribunal’ for short), fastening the liability on the appellant/insured.
2. The factual matrix of the case is that the claimants are the legal heirs of the deceased Ganesh Murthy. The deceased was aged about 65 years at the time of the accident and he was doing welding work and thereby earning Rs.250/-per day. Out of his income, he was maintaining the family. That on 10.08.2006 at about 8.45 p.m., on B.M.Sree Main Road near Nandini Milk Centre, Mysore City, the deceased Ganesh Murthy was crossing the road. At that time, a Kinetic Honda motor bike rider came in a rash and negligent manner in the extreme right side of the road and hit the said Ganeshh Murthy. As a result, the said Ganesh Murthy sustained injuries and he was shifted to K.R.Hospital, Mysore and thereafter to JSS Hospital, Mysore, wherein he was treated from 10.08.2006 to 17.08.2006. Unfortunately, on 17.08.2006 he succumbed to the injuries.
Hence, the claim petition was filed before the Tribunal by the legal heirs of the deceased Ganesh Murthy.
3. In pursuance of the claim petition, notice was issued against respondent Nos.1 to 3. Respondent No.1 was placed exparte. Respondent Nos.2 and 3 were represented though their counsel and filed the objection statement. Respondent No.2 – owner of the vehicle, in his written statement, took the defence that the vehicle was sold and possession was delivered to respondent No.1 on 09.08.2006 itself after obtaining the delivery note duly signed by respondent No.1. It is also contended that intimation of transfer of the vehicle to respondent No.1 was given to the RTO on the very same day. Hence, as on the date of the accident, he was not the owner of the offending vehicle and it was not at all in his possession and there was a valid insurance to the offending vehicle and hence claimed that the petition has to be dismissed against him.
4. Respondent No.3 in the written statement denied the age, occupation and income of the deceased and also compensation claimed in the petition. It is contended that the liability is subjected to terms and conditions of the policy and valid driving licence.
5. The claimants in order to substantiate their claim examined petitioner No.1 – wife of the deceased as P.W.1 and more witness as P.W.2 and got marked the documents at Exs.P.1 to 11. On the other hand, respondent No.2 examined himself as R.W.1 and got marked the documents at Ex.D.1. The Insurance Company also examined one witness as R.W.2 and marked the documents at Exs.D.2 and 3.
6. The Tribunal after considering both oral and documentary evidence placed on record, allowed the petition in part and exonerated the liability of the Insurance Company and directed the owner/insured to pay the compensation. Hence, the present appeal is by the owner/appellant.
7. The main contention in the appeal is that the vehicle was already sold on 09.08.2006 and intimation was given to the RTO, Mysore. The Tribunal did not apply its mind to the said fact. It is also contended that the policy was in force as on the date of the accident. The Tribunal also did not consider the fact that in the first FIR, which was registered on the date of the accident, one vehicle with registration was shown as involved in the accident. In the second FIR filed after eight days, the vehicle sold by the appellant to respondent No.1 was shown to have been involved in the accident. This clearly shows that the vehicle mentioned in the first FIR was not covered by insurance and for the purpose of claiming the compensation, the appellant’s vehicle which had insurance coverage, was mentioned in the second FIR. It is also contended that the Tribunal did not consider the important evidence of medical report that the deceased was drunk when the accident took place. He was one among the group of eight people and he was not alone.
