Karnataka High Court
The Iffco- Tokio General Insurance ... vs Vithal And Anr on 2 July, 2024
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NC: 2024:KHC-K:4455-DB
MFA No. 201148 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF JULY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
MISCL. FIRST APPEAL NO. 201148 OF 2019 (MV-I)
BETWEEN:
THE IFFCO- TOKIO GENERAL INSURANCE COMPANY
LIMITED,
THROUGH ITS BRANCH G-1, G-12, G-13,
ASIAN ARCADE, NEAR ANAND HOTEL,
S.B.TEMPLE ROAD, KALABURAGI.
...APPELLANT
(BY SRI. SUBHASH MALLAPUR, ADVOCATE)
AND:
Digitally signed by 1. VITHAL
BASALINGAPPA
SHIVARAJ S/O MANIK SAYGONDE,
DHUTTARGAON
Location: HIGH
AGE: 23 YEARS, OCC: NOW, NIL AFTER
COURT OF R/O AT POST: HOL, TQ: KAIJ, DIST: BEED
KARNATAKA
NOW RESIDING AT GATTARGA, TQ: AFZALPUR,
DISTRICT: KALABURAGI-585 202.
2. GURUNATH
S/O LAXMAN GHATTARGI
AGE: MAJOR, OCC: OWNER OF AUTO NO. KA-32/C-
0713, R/O DEVAL GHANAGAPUR,
TQ: AFZALPUR, DISTRICT: KALABURAGI-585 213.
...RESPONDENTS
(R1 IS HELD SUFFICIENT,
NOTICE TO R2 SERVED)
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NC: 2024:KHC-K:4455-DB
MFA No. 201148 of 2019
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO
ALLOW THE ABOVE APPEAL BY SETTING ASIDE THE JUDGMENT
AND AWARD DATED 19.03.2019 IN MVC NO.910/2018 PASSED
BY THE SENIOR CIVIL JUDGE AND JMFC AND MACT, AFZALPUR
IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY RAJESH RAI K J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment and award dated 19.03.2019 passed in MVC No.910/2018 on the file of the Senior Civil Judge and JMFC & MACT at Afzalpur, (henceforth referred as 'Tribunal'), wherein the Tribunal allowed the claim petition filed by the petitioners under Section 166 of M.V.Act by awarding compensation of Rs.28,00,663/- along with interest @ 6% p.a. and directed the respondent Nos.1 and 2 to pay compensation.
02. Parties to the appeal shall be referred to as per their status before the tribunal.
03. The facts giving rise to the filing of the appeal briefly stated are that:
On 03.12.2017 at around 11.00 p.m., the petitioner along with other inmates were traveling in an auto bearing -3- NC: 2024:KHC-K:4455-DB MFA No. 201148 of 2019 registration No.KA-32/C-1240 from Chowdapur on Chowdapur-Kalaburagi road and when they were near stone crushing unit, at that time, another auto bearing registration No.KA-32/C-0713 came from opposite direction in a rash and negligent manner and dashed to the auto in which the petitioner was traveling. Due to which the petitioner sustained grievous injuries and admitted to Government Hospital, Kalaburagi and thereafter shifted to Super Speciality Hospital, Kalaburagi for higher treatment. Therefore, the petitioner filed claim petition under Section 166 of the Motor Vehicles Act, claiming compensation.
04. After service of notice, respondent No.1 did not appear and he placed ex-parte. Respondent No.2- Insurance Company appeared and filed written statement denying the contents of claim made by the petitioners and sought for dismissal of the claim petition.
05. On the basis of pleadings, the Tribunal framed relevant issues for consideration.
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06. In order to substantiate the contention of claim petition, the petitioner examined himself as PW.1 and also examined one doctor as PW.2 and got marked 17 documents as Exs.P.1 to P17. The respondent-Insurance Company examined its official as RW.1 and got marked 5 documents as Exs.R1 to R5.
07. The Tribunal, after recording the evidence and considering the material on record, allowed the claim petition by awarding compensation of Rs.28,00,663/- along with interest @ 6% p.a. The Insurance Company has challenged the said judgment and award in this appeal.
08. We have heard Sri.Subhash Mallapur, learned counsel appearing for the appellant-Insurance Company. Though notice was issued, none appears for the respondents/petitioners.
09. It is the primary contention of the learned counsel for the appellant-Insurance Company that the tribunal has overlooked the fact while awarding compensation that the driver of the offending vehicle was -5- NC: 2024:KHC-K:4455-DB MFA No. 201148 of 2019 not having valid and effective driving license as on the date of the accident and police have filed the charge sheet under Section 3(2) of IMV Act. Moreover, the Insurance Company has also issued notice to the owner of the vehicle, hence the tribunal ought to have drawn an inference against the petitioner, however fastened the liability on the respondent-Insurance Company. He would further submits that, at the most, the tribunal would have ordered for pay and recovery as per the law laid down by the Hon'ble Apex Court in the case of Pappu and others Vs. Vinod Kumar Lamba and another reported in (2018)3 SCC 208. Hence, he prays to allow the appeal.
10. Perused the records. Having heard the learned counsel for the appellant, the only point that would arise for our consideration is:
"Whether the tribunal is justified in fastening the liability on the respondent No.2 in the absence of driving license of the driver of the offending vehicle?" -6-
NC: 2024:KHC-K:4455-DB MFA No. 201148 of 2019
11. As could be seen from the records, it is clear that the petitioner has sustained injuries in the said accident. Further the coverage of Insurance Policy to the offending vehicle is not in dispute. It is the contention of the learned counsel for the appellant that the driver of the offending vehicle was not having valid and effective driving license as on the date of the accident. The Insurance Company had not led any evidence to prove the said aspect. The burden of proving the same is on the respondent-Insurance Company and Insurance Company has not led any evidence in order to disprove the contents of the claim petition. On perusal of the evidence of PW.1 and PW.2, they categorically stated that the driver was having valid and effective driving license as on date of the accident. The investigation papers also reveals that the accident was occurred due to the negligent act on the part of the driver of the offending vehicle. In the absence of any such documents, to substantiate the contents of the Insurance Company, we are of the view that the tribunal has rightly fastened the liability on the Insurance -7- NC: 2024:KHC-K:4455-DB MFA No. 201148 of 2019 Company. Hence, we answer the point above raised in the affirmative.
12. In view of the above discussion, we proceed to pass the following:
ORDER The appeal is dismissed.
The amount in deposit shall be transmitted along with trial Court records to the concerned tribunal forthwith.
Sd/-
JUDGE Sd/-
JUDGE MSR List No.: 1 Sl No.: 6 CT:BN