Padma Nesarikar vs Dundappa Gourawwagol
2021 Latest Caselaw 5452 Kant

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

     DATED THIS THE 4 T H DAY OF DECEMBER, 2021

                         BEFORE

      THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


              M.F.A.No.101656/2014 (MV)

BETWEEN:

1.   SMT.PADMA NESA RIKAR
     W/O. SHASHIKANT NESARIKAR
     AGE: 62 YEARS ,
     OCC: HOUSEHOLD WORK,
     R/O. H NO.11, RA M MANDIR,
     P B ROAD , NIPPAN I, TQ: CHIKODI.

2.   SOU.JYOTI KHOT W/O. ANIL K HOT ,
     AGE: 42 YEARS , OCC: HOUS EHOLD,
     R/O. 5A , MALATI A PARTMENT
     NEAR SHIKKA BOA RDING, NIPANI
     TQ: CHIK ODI.

3.   SOU.MANSI HAVALDAR
     W/O. UMESH HAVA LDAR
     AGE: 40 YEARS ,
     OCC: HOUSEHOLD ,
     R/O. 206, GANES H NIVAS-BHAGYANA GAR,
     4 T H CROSS, BELAGAVI.

4.   SHRI CHETAN NES ARIKAR
     S/O. SHASHIKANT NESARIKAR
     AGE: 34 YEARS ,
     OCC: AGRICULT URE
     R/O. H NO.11, RA M MANDIR,
     P B ROAD , NIPANI , T Q: CHIKODI.
                                          ... APPELLANTS

(BY SRI. NEELEND RA D.GUNDE, ADV OCATE)
                              2




AND

1.     SHRI DUNDA PPA GOURAWWAGOL
       S/O. BASA PPA GOURAWWAGOL
       AGE: 54 YEARS , OCC: DRIVER
       R/O. MANDAPUR, TQ: GOKAK
       DIST: BELA GAVI.

2.     SHRI RAJENDRA POWAR
       S/O. RAMAPPA POWAR
       AGE: 39 YEARS , OCC: BUSINESS
       R/O. GA LATAGA, T Q: CHIKODI
       DIST: BELA GAVI.

3.    UNITED INDI A INSURANCE COMPANY LIMITED
     THE BRANCH MAN AGER,
     NO.24, 1 S T F LOOR, ASHOK NAGAR
     NIPANI 591 237
     TQ. CHIKODI , DIST: BELA GAVI
     (PROPOS ED RES PONDENT)
                                       ... RES PONDENTS
(BY SRI BA LAGOUDA A.PATIL, ADV OCATE F OR R1 AND R2;
 (BY SRI M.K. SOUDAGAR, ADVOCATE FOR PROPOS ED R.3)

       THIS MISC.FIRST APPEAL IS FI LED UNDER SECTION
173(1)   OF   MOTOR   VEHICLES   A CT,   1988,   AGAINST   THE
JUDGMENT AND A WARD DATED 08.02.2012 PA SSED IN MVC
NO.797/ 2010 ON THE FILE OF THE PRESIDING OFFI CER,
FAST   TRACK   COURT-I,   CHIKODI ,   ALLOWING     THE   CLAIM
PETITION       FOR     COMPENSATI ON        AND      SEEKING
ENHANCEMENT OF COMPENSATION .


       THIS APPEAL COM ING ON F OR HEARING ON I .A. THIS
DAY, THE COURT , DELIVERED THE F OLLOWING:
                                   3




                             JUDGMENT

Though matter is listed for hearing on I.A., with

consent of learned counsel on both side, it is taken up

for final disposal.

2. Challenging judgment and award dated

08.02.2012 passed by Presiding Officer, Fast Track

Court-I, Chikodi (for short, 'tribunal') in MVC

No.797/2010, this appeal is filed by claimants seeking

enhancement of compensation.

3. In the said appeal, respondent no.2 - owner

has filed two applications, i.e., I.A.No.1/2018 for

impleading insurance company as proposed respondent

no.3 on the ground that as on date of accident, vehicle

involved was insured with proposed respondent no.3

and another application - I.A.No.2/2018 for permission

to lead additional evidence by way of production of

original copy of insurance policy. It is submitted that

as vehicle involved in accident was insured with

proposed respondent no.3, applicant - owner was

entitled for indemnification.

4. Sri M.K.Soudagar, learned counsel for

proposed respondent no.3 submitted that he is yet to

receive instructions regarding insurance policy filed

along with application. Learned counsel submits that as

owner did not assert this fact before tribunal, insurer

was not impleaded as a party to claim petition. In

case, above applications are allowed, insurer would be

deprived of opportunity to contest claim petition and

therefore, seeks such opportunity.

5. Sri Neelendra D.Gunde, learned counsel for

claimants submits that appeal is filed seeking

enhancement of compensation. If applications require

consideration and matter be remanded to tribunal, a

direction be issued to determine compensation afresh

by considering grounds urged in appeal.

6. At this stage, learned counsel for proposed

respondent no.3 submits that application for

impleading is filed during pendency of this appeal and

insurer cannot be burdened with payment of interest

from date of petition till filing of application.

7. From above submission, occurrence of

accident due to rash and negligent driving of tractor by

its driver leading to death of Chinmay is not in dispute.

Claimants are seeking enhancement of compensation,

while owner has filed application for impleading and for

permission to lead additional evidence. Therefore,

points that arise for consideration in this appeal are:

1. Whether I.A.No.1/2018 for impleading proposed respondent no.3 and I.A.No.2/2018 for additional evidence merit consideration?

     2.    Whether       claimants     are   entitled   for
           enhancement        of      compensation       as
           sought for?

8. Point no.1: In the affidavit filed in support of

application for additional evidence, respondent no.2-

owner has stated that vehicle involved in accident was

insured with United India Insurance Company Limited,

Nippani Branch, Chikodi, from 16.02.2007 to

15.02.2008. Therefore, it was valid as on date of

accident i.e. 17.04.2007. It is further stated that

during pendency of claim petition, copy of said policy

could not be found despite due diligence by owner.

Therefore, he was unable to produce it before tribunal.

It was submitted that as owner would be entitled to

indemnification from insurer, production of this

document would be required for proper disposal of

matter.

9. On perusal of impugned award, it is seen

that owner and driver of offending vehicle did not

contest the matter before tribunal. Based on evidence

led by claimant, tribunal held that accident was on

account of rash and negligent driving of driver of

insured vehicle and passed award against owner. But

owner would be entitled for indemnification, as he had

taken insurance policy. Therefore, production of said

document would be necessary for proper disposal of

matter.

10. On remand, if owner is able to establish

coverage of insurance, liability requires to be shifted

on insurer. For the said purpose, impleading of

proposed respondent no.3 to these proceedings would

be necessary. Hence, I.A.No.1/2018 and I.A.No.2/2018

merit consideration. Point no.1 is answered in the

affirmative.

11. Point no.2:- In view of finding on point no.1,

matter requires remand to tribunal. But claimants are

in appeal seeking enhancement of compensation on the

ground that tribunal had applied incorrect multiplier

contrary to law declared by Hon'ble Supreme Court in

the case of National Insurance Company Limited

V/s Pranay Sethi and others reported in AIR 2017

SCC 5157. Tribunal also erred in not adding 'future

prospects' to income of deceased and even award

under conventional heads was inadequate. As the

matter is being remanded to provide an opportunity to

insurer to contest matter, it would be appropriate to

direct tribunal to redo the award of compensation by

following the directions issued in Pranay Sethi's case

(supra).

12. Tribunal to proceed from the stage of filing

objections and after affording an opportunity to all

parties and pass award afresh. In order to facilitate

same, impugned award requires to be set aside.

13. However submission of learned counsel for

respondent no.3 to absolve insurer from liability to pay

interest is meritorious, as insurer would have notice of

claim only after filing of application for impleading. The

responsibility to pay interest for said period would

have to be fastened on owner of vehicle.

14. Hence, it is held that after remanding matter

and passing award afresh by tribunal, in case, insurer

is held liable to pay compensation, claimants would be

entitled to claim interest from date of filing of claim

petition till 06.03.2018 i.e., filing of impleading

application from respondent no.2 - owner of vehicle. It

is clarified that insurer would be liable to pay interest

only from 07.03.2018. Hence, I pass the following:

ORDER

i. I.A.No.1/2018 and I.A.No.2/2018 are allowed.

ii. Proposed respondent - United Insurance Company Limited, is permitted to be impleaded as respondent no.3. iii. Appeal is allowed in part.

iv. Award dated 08.02.2012 passed by Presiding Officer, Fast Track Court-I, Chikodi, in MVC.no.797/2010 is set aside.

v. Matter remanded to permit respondent no.2 - owner to file objections and lead evidence and with direction to tribunal to pass fresh award.

vi. Claimants are directed to amend claim petition impleading insurer respondent no.3 herein as respondent to claim petition.

vii. As all parties are represented before this Court, they are directed to appear before tribunal on 24.01.2022 without expecting fresh notice and shall take further orders from tribunal.

viii. As matter is of 2014, tribunal to dispose of matter as expeditiously as possible, in any case, not exceeding one year.

ix. Parties are directed to co-operate the Court in the matter for early disposal.

      x.     Registry    to   return    original   insurance
             policy     to    respondent        no.2    after

replacing same with attested copy.

xi. Appellant is permitted to amend the cause title forthwith.

Sd/-

JUDGE

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