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2022 Supreme(Kar) 359
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Hanchate Sanjeevkumar, J.
A Banu Prakash S/o Anniah – Appellant
Versus
Thimma Setty S/O Late Sri Govinda Setty And Ors. – Respondents
M.F.A.No.4945 of 2014 (MV)
Decided On : 01-09-2022
Advocate Appeared:
For the Appellant :Sri Vinod Gowda., Advocate
For the Respondent: Smt. Aishwarga Hegde, Adv. Sri Vigneshwara S Shastri, Adv., Sri Jwala Kumar, Adv.
Point of Law: As per clause (i) sub-section (2) of Section 149 of the Act, if the Insurance Company has successfully established the defence, then the Insurance Company has to satisfy the claim of third party at first instance and recover the same from the owner of offending vehicle.
Headnote:
Motor Vehicles Act, 1988 - Section 173(1), 166, 149(1), (2)(i) - Accident - Lost his Income - Compensation - Claimant had been to Kalasapura in order to attend festival - After attending festival, he was proceeding in a Maruthi Omni bearing Reg. driven by respondent No.1 from Kalasapura to his village - While he was so proceeding, respondent No.1 being driver of Maruthi Omni drove said vehicle in a rash and negligent manner in a high speed - As a result, vehicle toppled - Due to accident, claimant sustained grievous injuries - Immediately, claimant was taken to Hospital, where he took treatment as inpatient and after discharge from hospital, he took treatment as out patient - Due to injuries sustained in accident, he could not attend to his duty for about one and half months and thereby, lost his income - Therefore, he has preferred a claim petition seeking compensation. [Para 11]
Finding of the Court: Admittedly, in present case claimant is a third party - Therefore, interest of third party, who is victim in motor vehicle accident is statutorily protected under Section 149 of M.V.Act - As per clause (i) sub-section (2) of Section 149 of Act, if Insurance Company has successfully established defence, then Insurance Company has to satisfy claim of third party at first instance and recover same from owner of offending vehicle - On principle of pay and recovery, Hon'ble Apex Court in cases of Pappu and this Court in case of Yellavva, this Court has laid down guidelines - Therefore, an order of pay and recovery is made directing Insurance Company to pay compensation amount at first instance and then recover same from owner of offending vehicle as per decision of Hon'ble Apex Court in catena of decision - Therefore, it is ordered that Insurance Company shall pay compensation amount as awarded by Tribunal at first instance and recover same from owner of maruthi van as per law - Judgment and award passed in MVC by I Additional District Judge and MACT, is modified to extent that third respondent shall pay compensation amount as determined by Tribunal along with interest at first instance and then recover said amount from owner of maruthi omni in accordance with law.
Result: Appeal allowed in part.
JUDGMENT :
This appeal is filed by the owner/appellant under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as 'MV Act' for short), challenging the judgment and award passed in MVC No.392/2010 dated 01.03.2014, by the I Additional District Judge and MACT, Chikmagalur (hereinafter referred to as the 'Tribunal' for short), wherein the Tribunal has awarded a compensation of Rs.59,500/-along with interest at 6% p.a. and holding respondent Nos.1 and 2 jointly and severally liable to pay the compensation. The petition against respondent No.3-Insurance Company is dismissed.
2. The brief facts of the case are as under:
The claim petition came to be filed under Section 166 of the MV Act in MVC No.392/2010, contending that on 13.04.2010 at about 10.00 p.m., the claimant had been to Kalasapura in order to attend the festival. After attending the festival, he was proceeding in a Maruthi Omni bearing Reg.No.KA-01-M-7359 driven by respondent No.1 from Kalasapura to his village. While he was so proceeding, two kilometers away from Kalasapura, respondent No.1 being the driver of Maruthi Omni drove the said vehicle in a rash and negligent manner in a high speed. As a result, the vehicle toppled. Due to the accident, the claimant sustained grievous injuries. Immediately, the claimant was taken to MG Hospital, Chikmagalur where he took treatment as inpatient and after discharge from the hospital, he took treatment as out patient. He spent more than Rs.30,000/- towards medical and other incidental expenses. Due to the injuries sustained in the accident, he could not attend to his duty for about one and half months and thereby, lost his income. Therefore, he has preferred a claim petition in MVC No.392/2010, seeking compensation under Section 166 of the MV Act.
3. Learned counsel for the appellant/owner submitted that the Tribunal has fastened the liability on the appellant/owner on the ground that the driver of the omni car was not holding driving license as on the date and time of the accident. But the driver was having driving license. Therefore, submitted that without considering this aspect, the Tribunal has wrongly fastened the liability on the owner of the vehicle and prays for exoneration of liability on the owner/appellant and to fasten the liability on the Insurance Company since there was a valid and effective driving license, as on the date of accident. Hence, prays to allow the appeal.
4. On the other hand, learned counsel for respondent No.3 -Insurance Company submitted that the Tribunal has fastened the liability on the owner/appellant on the ground that the appellant/owner has failed to prove that the driver of the offending vehicle was holding driving license as on the date of the accident. It is submitted that the driver of the offending vehicle or the owner of the offending vehicle had not produced valid and effective driving license. Further, the learned counsel submitted that the maruthi omni car was used for hire/commercial purpose but the vehicle was private vehicle. Therefore, in this regard, the claimant has admitted that they have offered Rs.20/-to drop him to Belur and therefore, the claimant is passenger. Hence, the Insurance Company is not liable hence it is rightly considered by the Tribunal. Hence, submitted that the judgment and award passed by the Tribunal in fastening the liability on the owner of the offending vehicle is justified. Hence, prays to dismiss the appeal.
5. The learned counsel for respondent No.1-claimant submitted that an order of pay and recovery may be made since the claimant is third party. Therefore, it is submitted that even though the insurance company is successful in establishing his defence under Section 149 of the M.V. Act, but as per Section 149(1) of the M.V. Act, an order of pay and recovery can be made and in this regard, he places reliance on the judgment of the Hon'ble Apex Court in the cases of Pappuu and others Vs. Vinod Kumar Lamba and another reported in (2018) 3 S
