Karnataka High Court
Shriram General Insurance Co. Ltd vs Channamma And Ors on 2 December, 2021
Bench: M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 02ND DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
MFA No.200846/2018 (MV)
BETWEEN
SHRIRAM GENERAL INSURANCE CO. LTD.,
THROUGH ITS:DIVISIONAL MANAGER
5/4 FLOOR, S.V.ARCADE, BELEKNALLI MAIN
ROAD, OPP: B.G.ROAD, IIMB POST
BANGALORE-1
(THROUGH AUTHORISED SIGNATORY)
...APPELLANT
(BY SRI SUBHASH MALLAPUR, ADVOCATE)
AND
1. CHANNAMMA W/O LATE KHATALAPPA
AGE: 24 YEARS, OCC: HOUSEHOLD
2. KUM.BHUMIKA D/O LATEKHATALAPPA
AGE: 4 YEARS(MINOR) U/G R-1
3. SUSHILAMMA W/O LATE BASANNA
AGE: 66 YEARS, OCC:HOUSEHOLD
4. KUMAR BHIMARAYA S/O LATE KHATALAPPA
AGE: 2 YEARS(MINOR) U/G R-1
ALL R/O RAMASAMUDRA VILLAGE,
2
TQ & DIST: YADGIR-586202
5. SHIVAPPA S/O SABANNA BAVUR
AGE: 52 YEARS, OCC:AGRI OWNER OF
TRACTOR NO.KA-33/9053, R/O MUNDRIGI
VILLAGE, YADGIR-586202
...RESPONDENTS
(BY SRI SHARANAGOUDA V. PATIL, R1 TO R3;
R2 & R4 MINOR R/BY R1; R5 SERVED)
THIS MFA FILED U/S. 173(1) OF MV ACT, PRAYING
THAT THIS HON'BLE COURT MAY BE PLEASED TO ALLOW
THE ABOVE SAID APPEAL AND CONSEQUENTLY BE PLEAED
TO SET ASIDE THE JUDGMENT AND AWARD DATED
07.02.2018 PASSED BY THE SENIOR CIVIL JUDGE AND
MACT-II YADGIR IN MVC NO.176/2016 IN THE INTEREST
OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is filed by the insurance company under
Section 173(1) of the Motor Vehicles Act, 1988 (for short
'M.V.Act') aggrieved by the judgment and order dated
07.02.2018 passed in MVC No.176/2016 on the file of the
Senior Civil Judge and Motor Accident Claims Tribunal-II at
Yadgir (for short 'Tribunal').
2. The parties will be referred to as per their
rankings before the Tribunal.
3. Facts leading up to filing of the present appeal
in brief are that, on 30.05.2016, at about 9.30 p.m., on
Mundragi - Ramasamudra main road, near warehouse,
deceased Khatalappa along with another person were
proceeding in an auto bearing registration No.KA-33/A-
2305, at that time, a tractor bearing registration
No.KA33/9053 came from opposite direction, in high speed
and in a rash and negligent manner and dashed to said
Khatalappa causing grievous injuries and consequently he
died on the spot.
4. Thereupon, the claimants being the wife,
children and mother of the deceased filed a claim petition
under Section 166 of the M. V. Act seeking compensation
of Rs.30,75,000/- on the premise that the deceased was
aged about 25 years and was earning Rs.15,000/- per
month and was contributing the same to the maintenance
of the family and that untimely death of the deceased has
caused financial and emotional distress to the claimants.
Hence, they filed a claim petition seeking compensation.
5. On service of notice, respondent No.1
remained absent and was placed exparte. Respondent
No.2 - insurance company appeared through its counsel
and filed written statement denying the petition
averments. Mode and manner of the accident, age,
income and occupation of the deceased as also denied. It
was contended that the driver of the said tractor was not
holding valid and effective driving licence, as such, there
was violation of the terms and conditions of the policy, as
such insurance company is not liable to pay any
compensation and sought for dismissal of the claim
petition.
6. Based on the pleadings of the parties, the
Tribunal framed issues and recorded evidence. The
claimant No.1 being the wife of the deceased examined
herself as PW.1 and exhibited eight documents, which
were marked as Exs.P1 to P8. One Subhas has been
examined as DW.1 and marked five documents as Exs.R1
to R5 on behalf of the respondents.
7. On evaluation of evidence, the Tribunal held
that the accident in question had occurred due to rash and
negligent driving by the driver of the said tractor, resulting
in the death of the deceased. Consequently, held that the
claimants being the widow, children and the mother of the
deceased are entitled for total compensation of
Rs.12,06,000/- together with interest at 6% per annum
and directed the respondent No.2 - insurance company to
deposit the compensation amount. Aggrieved by the
same, the insurance company is before this Court
questioning the liability to pay compensation.
8. The learned counsel for the
appellant/insurance company reiterating the grounds
urged in the appeal memorandum submitted that the
driver of the tractor had no licence to drive the same and
the police after investigation have filed the charge sheet
for the offences punishable under Section 187 of I. M. A.
Act. He contended that the insurance company has also
issued notice to respondent No.1 - Shivappa as per Exs.P3,
P4 and P5 calling upon the respondent No.1 to produce the
licence and despite the same, he did not responded and
had not come before the Court to prove that he was
holding valid and effective licence. He further contended
that the Tribunal has not appreciated any of these aspects
of the matter even while fixing the liability on the
insurance company. Therefore, he submits that the
impugned judgment and order required to be set aside.
9. On perusal of the records, it is seen that the
respondent No.2 - insurance company had taken a specific
plea with regard to violation of terms and conditions of the
policy by the driver of the tractor. It has also produced
the charge sheet and notice dated 13.12.2017 issued by
the insurance company. calling upon respondent No.1 -
owner of the tractor to furnish the licence. Respondent
No.1 - the owner of the tractor, who has remained absent
and placed exparte has neither responded nor produced
the document with regard to the driver of the tractor
holding a valid licence. The postal acknowledgements for
having served the above notices have been marked as
Exs.P5 and P6 respectively. The Tribunal has neither
framed any issues with regard to liability nor has referred
to the case of the respondent No.2 - insurance compnay.
10. In the light of the above, the Tribunal without
adverting to the aforesaid contention with regard to
violation of the terms and conditions of the policy and with
regard to the driver of the tractor not having valid driving
licence, has disposed off the matter fixing the liability of
paying the compensation on the respondent No.2 -
insurance company. Thus, there is illegality committed by
the Tribunal. In the facts and circumstances, it is just and
proper that the matter be remitted to the Tribunal for fresh
consideration of the matter with regard to violation of
terms and conditions of the policy on account of the driver
of the tractor apparently not having valid driving licence.
Hence, the following:
ORDER
i. The appeal filed by the insurance
company is partly allowed setting
aside the order of the Tribunal in
MVC No.176/2016 dated
07.02.2018 only to the extent of
fixing the liability on the insurance
company.
ii. The matter is remitted to the
Tribunal to consider the issue with
regard to violation of terms and
conditions of the insurance policy
on account of the driver of the
tractor not having valid driving
licence and thereafter for fixing the
liability for payment of
compensation. The Tribunal shall
dispose off the matter within a
period of six months from the date
of receipt of a certified copy of this
judgment by affording opportunity
to the parties to lead evidence and
rebuttal evidence.
iii. The appellant - insurance company
has already deposited 50% of the
award amount before this Court
and it shall deposit the remaining
50% along with interest before the
Tribunal.
iv. The claimants are at liberty to seek
release of the amount and the
Tribunal shall pass appropriate
orders upon on the request made
by the claimants.
v. Since the parties are represented
by their respective counsel, they
shall appear before the Tribunal on
18.01.2022 and shall cooperate in
speedy disposal of the matter.
vi. The amount in deposit before this
Court be transmitted to the
Tribunal.
Sd/-
JUDGE
Srt
