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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA No.11025 OF 2010(MV)
BETWEEN:
The Legal Manager,
Cholamandalam Ms. General
Insurance Co. Ltd.,
H.O."Dare House" # 234 NSC,
Bose road, Chennai-600001.
By
Cholamandalam MS General Insurance
Company Limited,
'Dare House' II Floor,
No.2 NSC., Bose Road,
Chennai-600 001.
Also at
Cholamandalam MS General Insurance
Company Limited,
No.9\1, Ulsoor Road,
Bangalore-560 042.
By its Senior Manager-claims. ... Appellant
(By Sri. O.Mahesh, Advocate)
AND:
1. Chennamma,
Age 40 years,
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w/o Late Basava.
2. Shruthi,
Age 17 years
D/o late. Basava.
3. Lokesh,
Age 15 years
S/o Late Basava.
Respondents No.2 & 3 are
Since minors represented by
Their natural guardian
Mother 1st respondents.
4. Madanaika,
Aged 63 years
s/o late Ninganaika
5. Devamma,
Aged 58 years,
w/o Madanaika,
all are residing at Bakkahalli Village
Hadinaru Hobli,
Nanjangud Taluk,Mysore.
6. Mohan Kumar,
Aged 40 years,
S/o Chamaiah,
R/at 3429, II Cross,
Sarvajanika Hostel Road,
Vidyaranyapuram, Mysore.
... Respondents
(By Sri.S.A.Saboor, Advocate for R1:
Sri. H.Mohan Kumar, Adv. for R6:
R4 & R5 are served and unrepresented
R2 & R3 are minors represented by R1 )
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This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:20.10.2010 passed
in MVC No. 158/2010 on the file of Presiding Officer, Fast
Track Court-I Member Officer, Fast Track Court-I, Member
Additional MACT, Mysore, awarding a compensation of
Rs.4,89,300/- with interest @ 6% p.a. from the date of
petition till realization.
This MFA, coming on for admission, through video
conference this day, this Court, delivered the following:
JUDGMENT
This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the insurance company being aggrieved by the judgment dated 20.10.2010 passed by the Motor Accident Claims Tribunal, Mysore in MVC No.158/2010.
2. Facts giving rise to the filing of the appeal briefly stated are that on 26.05.2008 at about 10.30 p.m., the deceased Basava, after purchasing bullocks at Bogadi, Mysore was transporting the same in Appe Goods auto bearing registration No.KA-09/A-5996 towards Bakkahalli of Nanjangud Taluk. When they 4 reached near Dattagalli ring road, at that time, the driver of the said auto drove the same at a high speed and in a rash and negligent manner and lost control over the vehicle and it was turned turtle and fell on the road. As a result of the aforesaid accident, the deceased sustained grievous injuries and was hospitalized. He succumbed to the injuries at the hospital on 05.06.2008.
3. The claimants filed a petition under Section 166 of the Act on the ground that deceased was working as labourer and was earning Rs.9,000/- per month. It was pleaded that they also spent huge amount towards medical expenses, conveyance, funeral and obsequies etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.
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4. On service of notice, the respondent Nos.1 to 3 appeared and filed written statement in which the averments made in the petition were denied. It was pleaded that the offending vehicle was insured with the respondent No.3 subject to terms and conditions of the policy. It was further pleaded that at the time of the accident the driver of the offending vehicle was not holding a valid and effective driving licence to drive the said vehicle. It was further pleaded that the said vehicle was having only one seating capacity which is meant for driver and has not been permitted to carry any person by sharing his seat. It was further pleaded that the bullocks cannot be treated as goods since it is being a live stock. Hence, the deceased cannot be considered as owner of the goods and as such he was traveling as gratuitous passenger in the goods vehicle and there is violation of the terms and conditions of the policy and hence insurance 6 company is not liable to pay the compensation. It was further pleaded that the quantum of compensation claimed by the claimants is excessive. Hence, he sought for dismissal of the petition.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant No.1 - wife of the deceased was examined as PW-1 and the mother of the deceased as PW-2 and got exhibited 13 documents namely Ex.P1 to Ex.P13. On behalf of the respondents, an officer of the insurance company was examined as RW-1 and an official of the RTO office aas RW-2 and got exhibited 2 documents as Exs.R1 and R2. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the deceased died. The Tribunal further held that the 7 claimants are entitled to a compensation of Rs.4,89,300/- along with interest at the rate of 6% per annum and directed the insurance company to deposit the compensation amount along with interest with liberty to recover the same from the insured. Being aggrieved, insurance company has filed this appeal.
6. The learned counsel appearing for the insurance company has raised the following contentions:
Firstly, the offending vehicle - goods auto rickshaw which was having carrying capacity of only driver was carrying four passengers and deceased was traveling in the goods vehicle, which is contrary to the Motor Vehicles Act.
Secondly, the driver of the autorickshaw was not holding the licence with transport endorsement and 8 hence the insurance company is not liable to pay the compensation.
Thirdly, even though the Tribunal has held that the owner of the goods vehicle has violated the terms and conditions of the policy, insurance company is not liable to pay the compensation, it directed the insurance company to pay the compensation with liberty to recover the same, which is unsustainable.
7. Per contra, the learned counsel appearing for the claimants has contended that even though the Tribunal has held that the insurance company is not liable to pay the compensation, in view of the law laid down by a Full Bench of this Court in the case of 'NEW INDIA ASSURANCE CO. LTD. BIJAPUR vs. YALLAVVA AND ANOTHER' ILR 2020 Kar.2239, the Tribunal has rightly held that insurance company has to pay the compensation with liberty to recover the same from the insured.
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8. Heard the learned counsel for the parties and perused the original records and judgment and award passed by the Tribunal.
9. It is not in dispute that the deceased died due to the injuries sustained in the accident that occurred due to the rash and negligent driving of the driver of the offending vehicle. It is also not in dispute that the offending vehicle was covered with insurance policy.
10. The Tribunal on the basis of the evidence of the parties and the materials available on record has given a clear finding that the owner of the offending vehicle has violated the terms and conditions of the policy and insurance company is not liable to pay the compensation and directed the insurance company to pay the compensation with liberty to recover the same 10 from the owner of the offending vehicle. Even as per the law laid down by a Full Bench of this Court in the case of YALLAVVA (surpa), the insurance company is directed to pay the compensation awarded by the Tribunal with liberty to recover the same form the owner of the offending vehicle.
In view of the above, the appeal is dismissed. The amount in deposit is ordered to be transmitted to the Tribunal, forthwith.
Sd/-
JUDGE Cm/-