The Divisional Manager National ... vs Mahadevi W/O Late Bassappa Itiger ...
2021 Latest Caselaw 5444 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH
       DATED THIS THE 04TH DAY OF DECEMBER, 2021
                        BEFORE
        THE HON'BLE MR.JUSTICE M.G.S.KAMAL


              MFA.No.201733/2016 (MV)


Between:
THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO.LTD
KALABURAGI NOW REPRESENTED BY ITS
ASSISTANT MANAGER DVISIONAL OFFICE
KALABURAGI.

                                       ... APPELLANT

(BY SRI.MANVENDRA REDDY, ADVOCATE)

And:

1. MAHADEVI W/O LATE BASSAPPA ITIGER
   AGE:45 YEARS, OCC:HOUSEHOLD

2. KAREPPA S/O LATE BASSAPPA ITIGER
   AGE:25 YEARS, OCC:NIL AS HANDICAPPED

3. RAMESH S/O LATE BASSAPPA ITIGER
   AGE:21 YEARS, OCC: STUDENT

  ALL ARE R/O H.NO. 29, SIDHARTH NAGAR,
  M.S.K MILLS, GULBARGA-585105.
                          2




4. BHIMARAYA S/O MAHADEVAPPA KAGNOOR
   AGE:32 YEARS, OCC:OWNER AND DRIVER OF JEEP
   NO.KA-36/M-2743, R/O ITAGA TQ:CHITTAPUR
   DIST:GULBARGA-585211.

5. SHASHIKANT S/O RAJARAM KATKE
   AGE:33 YEARS, OCC:OWNER OF APE
   VEHICLE NO. KA-32/B-5369
   R/O DHOR GALLI ASAR MOHALLA CHITTAPUR
   DIST:GULBAGRA-585211

6. SANTHOSH S/O RAJARAM KATAKE
   AGE:22 YEARS, OCC:DRIVER
   R/O DHOR GALLI ASAR MOHALLA CHITTAPUR
   DIST:GULBAGRA-585211.

7. THE DIVISIONAL MANAGER FUTURE GENERAL
   INSURANCE CO LTD., 2ND FLOOR,
   KALABURAGI LAND MARK, OPP:T.B.
   GIRLS HIGH SCHOOL DESHPANDE NAGAR,
   HUBLI-580029.
                                  ... RESPONDENTS
(By Sri. BABU H METAGUDDA ADV FOR R1 TO R3;
SRI.KRUPA SAGAR PATIL ADV., FOR R4;
SRI.BASAVARAJ R MATH ADV., FOR R5 & R6
SRI.SUDHARSHAN M ADV., FOR R7 )
     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLE ACT
1988, PRAYING TO CALL FOR THE RECORDS IN MVC
NO.139 OF 2013 ON THE FILE OF HTE PRL. SENIOR CIVIL
JUDGE & MEMBER, MACT, KALABURAGI AND SET ASIDE
AND MODIFY THE JUDGMENT AND AWARD DATED
23.07.2016 BY ALLOWING THIS APPEAL WITH COSTS AND
GRNAT SUCH OTHER RELIEF AND FURTHER RELIEFS, AS
THIS HON'BLE COURT DEEMS FIT TO GRANT INTHE FACTS
AND CIRCUMSTANCES OF THE CASE.
    THIS MFA COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
                               3




                         ORDER

The present appeal is filed under Section 173(1) of

the Motor Vehicles Act, 1988 (for short 'M.V. Act') by the

insurance company against the judgment and award dated

23.07.2016 passed in MVC No.139/2013 on the file of the

Principal Senior Civil Judge and Motor Accidents Claims

Tribunal at Kalaburagi (for short 'Tribunal').

2. Facts leading up to filing of the present appeal

in brief are that; on 05/04/2012 at about 12-45 p.m., the

deceased Basappa was traveling in the Ape Goods Vehicle

bearing No.KA-32-B-5369 along with building materials,

like doors, windows, tin sheets for his new house from

Chittapur to his village Satnoor, driver of the said Auto was

driving in a normal speed on left side of the road. When

the said vehicle reached at Satnoor-Chittapur road, at that

time, a Jeep bearing Reg.No.KA-36/M-2743 came from

opposite direction in a high speed and in a rash and

negligent manner and also in a zig zag manner, all of a

sudden dashed to the said auto rickshaw, in which the

deceased was traveling. The Basappa Itagi succumbed to

the injuries while he was shifting to the Government

hospital, Gulbarga.

3. Thereupon, the claimants being the wife and

children of the deceased filed a claim petition under

Section 166 of the M.V.Act seeking compensation of

`.26,50,000/- on the premise that the deceased was aged

about 39 years and was earning `.15,000/- per month, by

doing agricultural work and was contributing his income to

the maintenance of the family and that the untimely death

of the deceased, which caused due to rash and negligent

driving of the Jeep by its driver, has caused financial and

emotional distress to the family.

appeared through their respective counsel, but respondent

Nos.1 to 3 not filed objection statement and respondent

Nos.4 and 5 filed objection statement denying the petition

averment, mode and manner of accident.

5. Respondent No.4, has contended that the

respondent No.1 was using the vehicle for commercial

purpose and driver of the said vehicle did not have valid

and effective driving licence at the time of accident. It was

further contended that respondent No.1 failed to inform

the said accident. Therefore, he was not liable to

indemnify.

6. Respondent No.5, has specifically contended

that the charge sheet has been filed against the drivers of

both the vehicles. The Section 134(c) and 158 (6) of the

M.V.Act was not complied with and that the offending

vehicle was plying on the road without a valid permit. The

drivers of both the vehicles had no valid and effective

driving licence to the drive the same as on the date of

accident. Hence, sought for dismissal of the claim petition.

7. 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 one Smt. Mahaoob Bee, who was

inmate of the Ape Autorickshaw and one Sheshagiri Rao

Kulkarni, who was the inmate of the Jeep were examined

as PWs.2 and 3 and exhibited 9 documents marked as

Exs.P1 to P9. On behalf of the respondents, one

Shashikant Katke, Anilkumar Katake and Akbar Nadaaf

were examined as RWs.1 to 3 got exhibited 3 documents

marked as Exs.R1 to 3.

8. Based on the evidence, the Tribunal held that

the accident in question had occurred on account of rash

and negligent driving of the Jeep bearing Reg.No.KA-36/M-

2743 which dashed the Autorikshaw resulting in the death

of the deceased and consequently held that the claimants

are entitled for compensation of `.6,08,000/- together with

interest at 6% per annum from the date of claim petition

till its realization and directed the insurance company, who

is the appellant herein, to pay the compensation amount

within a period of thirty days from the date of the award.

Aggrieved by the same, the insurance company is before

this Court.

9. The learned counsel appearing for the

appellant/insurance company reiterating the grounds

urged in the appeal memo submitted that the Tribunal

erred in fixing the liability only on the appellant/insurance

company despite there being sufficient materials on record

justifying the fact that the accident had occurred on

account of contributory negligence of drivers of both the

vehicles. He submits that PWs.2 and 3, who have been

examined as eyewitness who were also the inmates of the

Jeep as well as Auto rickshaw have deposed that the

accident had occurred because of the said vehicles being

driven by their drivers in a rash and negligent manner. He

further submits that IMV report produced at Ex.P5 would

establish that both the vehicles sustained damages on

account of the head on collision. He submits that

apparently accident had taken place on the middle of the

road. He further submits that the FIR, complaint and

charge sheet at Exs.P1, P2 and P3 which have been filed

against the drivers of both the vehicles, this aspect of the

matter has not taking into consideration by the Tribunal.

Hence, reasons assigned by the Tribunal is perverse and

contrary to the material available on record. Hence sought

for allowing of the appeal.

10. On the other hand, the learned counsel for the

respondent No.5 and 6 owner and driver respectively of

the Ape Goods Vehicle bearing No.KA-32-B-5369 submits

that PW.2/Mahaoob Bee, who was also traveling in the said

Auto had specifically deposed to the effect that the

accident had occurred due to sole negligence on the part of

driver of the Jeep. Further referring to para No.2 of the

affidavit evidence of PW.3/Sheshigirirao, wherein he has

stated that the driver of the Jeep drove the said vehicle

with high speed and negligent manner, he submits that

from the above evidence, it is sufficient to hold that the

accident had occurred on account of default of the driver of

the Jeep. Therefore, the appeal filed by the insurance

company deserves to be rejected.

11. On consideration of the rival submissions made

by the learned counsel for the parties, the point that arises

for consideration is:

             Whether         the       appellant-insurance
      company       has     made       out   a    case     for
      interference?

12. The accident in question that had taken place

on 05/04/2012 involving Ape Goods vehicle and the Jeep is

not in dispute. The injuries resulting in the death of

Basappa Itigar arising out of the above accident is also not

in dispute. The present appeal is filed only to the extent of

liability having been saddle on the appellant/insurance

company-insurer of the Jeep in question. The Tribunal at

paragraph 14 of its judgment taking note of the contention

of the claimant has held as under:

"14. It is the main contention of the petitioners is that the accident occurred due to the rash and negligent driving of the offending jeep. The petitioners have examined PW.2 and PW.3 as eyewitnesses of the accident. In cross examination at page No.5, the PW.2 has clearly admitted the suggestions that the Tum Tum vehicle was slowly going and the jeep caused accident by dashing to the tum tum vehicle by coming at high speed from opposite and that the accident occurred due to the fault of the jeep driver only. The PW.1 to 3 have

clearly denied the suggestion during their cross examination that the accident occurred due to the rash and negligent driving of the said offending Ape Goods Autorickshaw driver. Though the accident as per Ex.P4 and the charge sheet occurred in the middle of the road, the evidence of PW.2 and 3 who are the eye-witnesses of the accident clearly establishes that the accident occurred due to the rash and negligent driving of the offending jeep vehicle by its driver. To disprove this fact, the respondents have not adduced the supportable, believable and acceptable evidence".

13. Further at paragraphs 21 and 22 while fixing

the liability has held as under:

"21. In so far as liability to pay the compensation is concerned, it is the specific contention of the petitioners and an admitted fact that the respondents No.1 and 2 are the owners, the respondent No.3 is the driver of the Ape Goods Autorickshaw and the respondent Nos.4 and 5 are the insurers of the offending vehicles. As per Ex.R1, the insurance policy of the offending jeep vehicle was valid and in force at the time of accident. Though the driver of the offending jeep vehicle has been charge sheeted for the offence punishable U/s. 3 r/w 181 of the M.V.Act, the respondents have failed to prove by producing the supportable evidence that the said driver had no valid and effective DL. In a decision reported in (2015 KANT M.A.C.301 (KANT) (IFFCO TOKIO GENERAL INSURANCE COMPANY Vs. K.

PRABHAKAR REDDY AND ANOTHER), our Hon'ble High Court has held that the contents of charge sheet have not been proved either by examining the investigating officer or any other concerned official to prove the same. Out Hon'ble High Court in another decision reported in HRC 2011 KANT 390 (RELIANCE GENERAL INSURANCE COMPANY LMITED VS. NAZIM AND ANOTHER) has held that the 3rd respondent-insurance company has neither summoned the respondent No.1-rider of the motor cycle to give evidence nor obtained and produced any record issued by the RTO nor summoned anybody from the office of RTO to show that the respondent No.1 had no DL to drive motor cycle.

22. In the case in hand also, the contents of the charge sheet are not proved by examining the I.O. or any other concerned official nor the respondent No.2 summoned the driver to give evidence nor obtained and produced any record to be issued by the RTO nor has summoned anybody from the RTO office to show that the offending vehicle driver had no DL. Therefore, the contention of the respondent No.4 that the said jeep vehicle driver had no DL is not proved. Therefore, the evidence on record establishes that the respondents No.1 and 4 are jointly and severally liable to pay the compensation to the petitioners with cost and interest at the rate of 6% p.a. from the date of the claim petition till the realization of entire compensation amount. Since it is the liability of the respondent No.4 to indemnify the respondent No.1, it has to deposit the entire compensation amount with cost and interest. So, considering the facts and circumstances of the case and the evidence, I have to say that the petitioner is entitled for the above said compensation, but not so much as claimed in the claim petition".

14. The aforesaid finding of the Tribunal is called in

question. PW.1 is not the eyewitness. PW.1 in her

evidence, has deposed regarding the death of her

husband, about his income and lost of dependency that

occurred on account of his death. Therefore, for the

purpose of determination of issue regarding negligence or

her evidence is very limited. As regards the evidence of

PW.2-Mahoob Bee produced by the claimant wherein she

has stated that she was also traveling along with deceased

Basappa Itegar on the fateful day in the Ape Goods Vehicle

and when the said Ape Goods vehicle being driven in

normal speed on the left side of the road, the Jeep which

came from the opposite direction in a rash and negligent

and in a zig zag manner all of a sudden dashed to the Ape

vehicle causing the accident, resulting in death of the

deceased. However, during the cross-examination by the

respondents No.2 and 3, she has deposed that;

"it is not true to suggest that the accident had occurred only on account of the negligence on the part of the Jeep driver".

15. PW.3, is another eyewitness produced by the

claimant, who was one of the passenger traveling in the

Jeep. At para-2 of his affidavit filed in lieu of the evidence

he states that the driver of the said jeep was driving the

said vehicle in a high speed and rash and negligent

manner. At para-3 of the affidavit states that at the same

time one Auto/Ape Goods bearing Reg.No.KA-32-569 came

in high speed, both vehicles dashed. All the passengers of

Ape Goods also passengers of Jeep fell down on road. At

para-4, he states that due to negligence and driving of

high speed of both the vehicles, the above said accident

had occurred. In the cross-examination, the said witnesses

have answered that it is true that accident had occurred

due to negligence on the part of the driver of the jeep. He

further states that "it is true that the accident did not

occur due to negligence on the part of the driver of the

tum tum."

16. PW.2 and PW.3 though claimed to be the

occupants of Ape Goods Vehicle and the Jeep respectively

in view of the inconsistence in their affidavit filedin view of

evidence and their answers, during the cross-examination

it may not be appropriate to solely rely upon their

depositions. Since, the other material on record indicate

that the accident had taken place right on the middle of

the road and also in view of the contents of Para No.4 of

the affidavit filed by PW.3 that accident occurred in view of

both the vehicles being driven in high speed, the Courts

needs to corroborates the evidence of PW.2 and PW.3 with

other available documentary evidence.

17. It is not in dispute that the FIR is registered

against the drivers of both the vehicles, based on Ex.P2

complaint. The complaint was given by one Bheemarao

stating that he was traveling in the jeep along with other

persons and the jeep driver was driving the same in a high

speed and in a rash and negligent manner at the same

time, the driver of tum tum auto came in high speed and

in rash and negligent manner and dashed against the jeep.

This complainant Bheemarao has not been examined.

However, his statement in the complaint is consistent with

the statement given by PW.2 in her cross-examination and

of the PW.3 in his affidavit at Para No.4 that is both the

vehicles were bearing driven in high speed and dashed

against each other. The Charge sheet has been filed

against the drivers of both the vehicles who are

responsible for the accident.

18. Further, as per the rough sketch attached at

column No.10 of crime details at Ex.P4 indicate that the

accident had occurred on the middle of the road, which is

not disputed. IMV report at Ex.P5 provides the nature of

damage particulars of vehicles as extracted herein under:

a) Ape goods vehicle bearing No.KA-32/B-5369 has sustained damages as under;

1. Wind glass broken into pieces and its left frame pressed inward;

2. Front body at right corner pressed and damaged and front right indicator damaged;

3. driver door pressed inward;

4. Handle at left side damaged after gear marks;

5. Cargo body at right side pressed inward;

6. Cabin body at rear side pressed inward of right side.

b) Jeep bearing Reg.No.KA-36/M-2743 has sustained

following damages;

1. Wind glass broken into pieces and its right side frame pressed and damaged;

2. Front bumper at right pressed inward and front right wheel arch dislocated from M.V;

3. Bonnet at right side pressed inward;

4. Battery dislocated from M.V.;

5. Right side rear view mirror assemble.

19. Reading of the IMV report and the nature of

damages to the vehicles mentioned, there would be no

doubt that both the vehicles have sustained damages on

their front portions. The specific damages would indicate

that the damages have been caused on the right side, the

left side and on the entire front portion of both vehicles

have been deeply damaged. In the light of the aforesaid

evidence of the eyewitnesses read with documentary

evidence made available, it can be concluded that the

accident had occurred on account of contributory

negligence on the part of drivers of both the vehicles.

Thus, in view of the material evidence on record, the

finding given by the Tribunal at paragraph 14 with regard

to the negligence cannot be sustained. Therefore,

negligence can be attributed equally on the part of the

driver of jeep as well as on the part of driver of Ape goods

vehicle.

20. The finding of the Tribunal is modified to the

above extent.

21. As regards the driver of the jeep not having

driving license, the Tribunal at Para No.22 has held that

the respondent No.4 has failed to establish the fact that

the driver of the Jeep had no valid driving license. There is

however, no proof regarding that driver of both the

vehicles having valid and effective driving license as on the

date of accident. In view of the law laid down by the Apex

Court in the case of Pappu and others Vs. Vinod Kumar

Lamba and another, reported in (2018) 3 SCC 208,

wherein the Hon'ble Supreme Court held that,

"the Insurance Company can be fastened with the liability on the basis of valid of insurance policy only after the basic facts are pleaded and established by the owner of the offending vehicle - that the vehicle was not only duly insured, but also that it was driven by an authorized person having a valid driving licnese. Without disclosing the name of the driver in the written statement or producing any evidence to substantiate the fact that the copy of the driving license produced in support was of a person who in fact, was authorized to drive the offending vehicle at the relevant time, owner of the vehicle cannot be staid to

have extricated himself from his liability. The insurance company would become liable only after such foundational facts are pleaded and proved by the owner of the offending vehicle."

22. Further, in the said judgment the Apex

Court held that if there was a violation of any terms

of policy, the insurance company may pay the award

amount to the claimant in the first instance and

recover the same from its owner of the vehicle in

accordance with law.

23. In view of the aforesaid position of law and in

view of the fact that the accident had occurred on account

of equal contributory negligence on the part of both the

vehicles, the appellant/insurer of the Jeep bearing

Reg.No.KA-36/M-2743 and respondent No.7 - insurer of

Ape Goods Auto bearing Reg.No.KA-32/B-5369 are liable

to pay compensation to the claimants at the ratio of 50:50

with liberty to recover the same from the owners of the

offending vehicles. Hence, the point raised above is

answered accordingly and pass the following:

ORDER

A. The appeal in MFA.No.271733/2016 filed by

the appellant/insurance company is partly

allowed.

B. The appellant-insurance company - insurer of

the Jeep is directed to pay 50% of the

compensation and remaining 50% shall be paid

by the respondent No.7 - insurance company

of the Ape Goods Vehicle, at the first instance

to the claimant.

C. After payment as above, the appellant -

insurance company and respondent No.7 -

insurance company are entitled to recover the

amount paid by them to the claimant from the

owner of the Jeep bearing No.KA-36-M-2743

and the owner of the Ape Goods Vehicle

No.KA-32-B-5369 in accordance with law.

D. The   judgment and     award   passed        by   the

  Tribunal        dated        23.07.2016             in

MVC.No.139/2013 is modified to the above

extent.

E. The amount in deposit, if any, is ordered to be

transferred to the concerned Tribunal.

Sd/-

JUDGE Mkm