M/S UNITED INDIA INSURANCE COMPANY LTD., REGIONAL OFFICE, TP HUB v. B.PRASANNA KUMAR

3. Brief facts of the case are as under: - 3 - NC: 2024:KHC:10048 MFA No. 216 of 2020 On 14.6.2016 the claimant was riding Honda Activa scooter bearing registration No.KA-05-HL-2714 from N.R. Colony Market towards Vidyapeeta Circle, N.R. Colony, Bengaluru carefully and cautiously by observing all the traffic rules and regulations and when he reached Mookambika School Junction, at that time, a Motorcycle bearing registration No.KA-05-EL-5558 ridden by its rider in a high speed came from the Bull temple road all of a sudden in a rash and negligent manner and dashed against vehicle of the claimant. Due to the impact, the claimant was thrown out of the vehicle and sustained injuries and his vehicle was also damaged. He was immediately taken to Shekar hospital, Bengaluru for first aid treatment and thereafter shifted to Apollo hospital, Bengaluru, where he was admitted as an in-patient. Due to the injuries sustained in the accident and the medical expenses incurred, the claimant filed claim petition seeking compensation. - 4 - NC: 2024:KHC:10048 MFA No. 216 of 2020

3.1 On service of notice, respondent No.1/owner of the motorcycle filed written statement denying the averments made in the claim petition including age, avocation and income of the claimant. It is pleaded that claimant had no valid driving licence to ride scooter and as such he is solely responsible for the alleged accident. It is also pleaded that rider of the offending motorcycle was having learner’s licence at the time of accident and he was accompanied by his father, who had driving licence.

3.2 On the other hand, respondent No.2/insurer of the motorcycle filed separate written statement denying the averments in the claim petition including age, avocation and income of the claimant. However, admitted issuance of policy in favour of respondent No.1 as well as its validity at the time of accident. It is specifically pleaded that rider of the motorcycle did not possess driving licence to ride the motorcycle as on the date of occurrence of the accident. FIR and charge sheet filed under Sections 279, 338 of IPC and Section 5 and 180 of - 5 - NC: 2024:KHC:10048 MFA No. 216 of 2020 Motor Vehicles Act clearly show that rider of motorcycle did not possess proper driving licence to ride the vehicle at the time of occurrence of the accident. On these grounds sought for dismissal of the claim petition.

3.3 Based on the pleadings, the Tribunal framed the relevant issues for consideration.

3.4 In order to substantiate the issues and establish the case, the claimant examined himself as PW.1 and doctors as PWs.2 and 3 and got marked Ex.P1 to Ex.P23. The respondents examined RWs.1 to 4 and got marked Ex.R1 to Ex.R9 on their behalf.

3.5 On the basis of the material evidence, both oral and documentary and after hearing learned counsel for the parties, the Tribunal awarded total compensation of Rs.2,95,211/- with interest at 8% per annum and directed respondent No.1/owner of the offending vehicle to pay 20% of the compensation amount and respondent No.2/insurer to pay 80% of the compensation amount within two months. - 6 - NC: 2024:KHC:10048 MFA No. 216 of 2020

3.6 Being aggrieved by the impugned judgment and award passed by the Tribunal, the appellant – Insurance Company is before this Court.

4. I have heard learned counsel – Sri B.C. Shivanne Gowda for the appellant; learned counsel – Sri P. Shivakumar for Respondent No.1 and learned counsel – Sri M.J. Alva for Respondent No.2.

5. It is the vehement contention of learned counsel for the appellant – insurer that the Tribunal erred in fastening liability against the insurer and it ought to have fastened entire liability on owner of the offending motorcycle. Secondly, the interest awarded by the Tribunal on the compensation amount at 8% per annum is on the higher side and same to be reduced to 6% per annum in consonance with Section 34 of CPC. He contended that rider of the offending motorcycle did not possess valid and effective driving licence at the time of the accident. He also contended that respondent/owner of the offending motorcycle did not place ‘L’ Board on front - 7 - NC: 2024:KHC:10048 MFA No. 216 of 2020 and back of the motorcycle and violated Section 3 of the Central Motor Vehicle Rules and therefore insurance company would not be liable to pay the compensation. He also contended that respondent/owner of the offending motorcycle having admitted 20% liability and satisfied the award, cannot now plead in the appeal preferred by the insurer with regard to legal aspect that a person holding learner’s licence would also come within the purview of ‘duly licensed’ and would not fall within the bracket of fundamental breach of terms and conditions of the policy. Therefore, he seeks to set aside the impugned judgment and award passed by the Tribunal insofar as fixing 80% liability on the insurance company and to fix entire liability on respondent/owner of the offending motorcycle.

6. Per contra, learned counsel for respondent No.2/owner of the offending motorcycle contends that there is no error, illegality or perversity in the impugned judgment and award passed by the Tribunal and the same does not call for interference. - 8 - NC: 2024:KHC:10048 MFA No. 216 of 2020

7. Having heard the learned counsel for the parties and on perusal of the material on record, it is seen that the claimant has produced the documents as per Exs.P1 to P23, out of which, Ex.P1 to Ex.P10 are the Police records, which clearly depict registration of the FIR and filing of charge sheet against rider of the offending motorcycle and same has not been challenged or controverted. Therefore, the tribunal rightly attributed the negligence against rider of the motorcycle. Ex.P11 to Ex.P23 are the medical records, which depict the injuries sustained in the accident and the expenses incurred for treatment.

8. Now coming to the aspect of liability, it is seen that the Tribunal has fixed liability of 20% against owner the offending motorcycle and 80% against appellant/insurer. It is well settled that a person holding learner’s licence would come within the purview of “duly licensed” as such a licence is also granted in terms of the provisions of the Motor Vehicles Act and the Rules framed thereunder and he is not barred or prohibited from riding - 9 - NC: 2024:KHC:10048 MFA No. 216 of 2020 the motorcycle alongwith a person possessing a valid Driving Licence. In the present case, the rider of the offending motorcycle was possessing a valid learner’s licence as on the date of occurrence of the accident and therefore, it cannot be said that he breached the terms and conditions of the policy.

9. My view is fortified by the judgment of the Hon’ble Apex Court in the case of National Insurance Co. Ltd., - vs- Swaran Singh and others reported in (2004)3 SCC 297, wherein it is held at clauses (iv) and (viii) of paragraph-110 as under: (iv) Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised proceedings but must also establish “breach” on the part of the owner of the vehicle; the burden of proof wherefor would be on them. (viii) If a vehicle at the time of accident was driven by a person having a learner’s licence, the insurance companies would be liable to satisfy the decree” - 10 - NC: 2024:KHC:10048 MFA No. 216 of 2020

10. The Hon’ble Apex Court in the case of Shamanna and another -vs- Divisional Manager, Oriental Insurance Company Limited and others reported in (2018)9 SCC 650 while reiterating the principles enunciated in the judgment in the case of Swaran Singh cited supra, has further held that where the driver did not possess the valid driving licence and there are breach of policy conditions, “pay and recover” can be ordered in case of third party risks.

11. In view of the above, it is apparently clear that a person holding learner’s licence would come within the purview of “duly licensed” and if a vehicle at the time of accident was driven by a person having a learner’s licence, the insurance company would be liable to satisfy the award. However, it is for the insurance company to bring out cogent evidence by way of cross-examination that the rider of the two wheeler has committed an offence by violating necessary rules and regulations as contemplated under the Motor Vehicles Act and the Rules such as not - 11 - NC: 2024:KHC:10048 MFA No. 216 of 2020 placing ‘L’ board on front and back of the vehicle and not following certain rules specified therein. Such a thing is not forthcoming in the present case and therefore, it cannot be ordered for ‘pay and recover’.

12. I do not agree with the contention of learned counsel the appellant insurance company respondent/owner of the offending motorcycle having admitted 20% liability and satisfied the award, cannot now plead with regard to legal aspect that a person holding learner’s licence would also come within the purview of ‘duly licensed’ and would not fall within the bracket of fundamental breach of terms and conditions of the policy.

13. In view of the above, I do not find any ground to interfere with the finding of the Tribunal insofar as fastening 20% liability on owner of the offending motorcycle and 80% liability on the appellant/insurance company in respect of payment of compensation and the said finding is affirmed. - 12 - NC: 2024:KHC:10048 MFA No. 216 of 2020

14. I am in agreement with the learned counsel for the appellant/insurer that the interest awarded by the Tribunal on the compensation amount at 8% per annum is on the higher side and accordingly, same to be reduced to 6% per annum in consonance with Section 34 of CPC. Therefore, interest is awarded at 6% per annum on the entire compensation amount.

15. Accordingly, I pass the following: O R D E R i) ii) The appeal is allowed in part. The impugned Judgment & Award dated 30th January 2019 passed by the Tribunal in MVC No.5521/2016, is modified. iii) The respondent No.1/claimant would be entitled compensation Rs.2,95,211/- (Rupees two lakhs ninety-five thousand two hundred and eleven only) alongwith interest at 6% per annum. iv) The respondent No.2 herein - owner of the offending motorcycle is liable to pay 20% of compensation amount - 13 - NC: 2024:KHC:10048 MFA No. 216 of 2020 appellant/insurer is liable to pay 80% of the compensation amount . v) The statutory deposit, if any before this Court shall be transmitted to the jurisdictional Tribunal alongwith original records. vi) The balance amount of compensation alongwith interest shall be deposited within four weeks from the date of receipt of copy of this judgment. vii) The compensation amount shall be released in favour of the claimant in accordance with the the Tribunal, upon proper identification. viii) All other terms and conditions stipulated by the Tribunal shall stand intact. Sd/- JUDGE GSS List No.: 1 Sl No.: 83