Karnataka High Court

Sakamma vs Gurukiran on 6 December, 2021

Bench: Sachin Shankar Magadum

                             1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 6TH DAY OF DECEMBER, 2021

                         BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

             M.F.A.NO.4159 OF 2013 (MV-INJ)

BETWEEN:

SAKAMMA
W/O BASAVEGOWDA
AGED ABOUT 60 YEARS
R/AT SADAHOLALU VILLAGE
KASABA HOBLI, MADDUR TALUK
MANDYA DISTRICT-571 428

                                              ...APPELLANT

(BY SRI PRAKASHA H.C., ADVOCATE)

AND:

1. GURUKIRAN
S/O SHEKHAR
AGED ABOUT 10 YEARS
SINCE MINOR REPRESENTED BY HIS
NATURAL GUARDIAN NEXT FRIEND FATHER

SRI SHEKHAR
S/O SHANKARACHAR
AGED ABOUT 39 YEARS
RESIDING AT # 397, 10TH CROSS
B M SHREE NAGARA, METAGALLI
MYSORE-570 016
                               2


2. CHANDRA
S/O CHENNEGOWDA
MAJOR
R/AT NO.115, BANNUR TOWN
T NARASIPURA TALUK
MYSORE DISTRICT-571101
(DRIVER OF TRACTOR AND TRAILOR BEARING REG NO.
KA-11-T-4231 & KA-07-T-378)

3. K S SIDDAREDDY
S/O CHIKKASUBBA REDDY
MAJOR
R/AT KOTHUR VILLAGE,
KURIGEPPALLI POST
SRINIVASAPURA TALUK
KOLARA DISTRICT-563135
(OWNER OF THE TRAILER)

4. UNITED INDIA INSURANCE CO. LTD.
NO.1119/B, M C ROAD
MANDYA-571 401

5. G C DEVENDRA KUMAR
S/O CHANDRAPPA
MAJOR
DOOR NO.5, HEBBAL MAIN ROAD
MYSORE-570 001

                                          ...RESPONDENTS

(BY SRI L.SREEKANTA RAO, ADVOCATE FOR R4;
NOTICE TO R1 & R3 ARE SERVED & UNREPRESENTED;
NOTICE TO R2 & R5 ARE H/S)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 21.01.2013 PASSED IN MVC
NO.113/2011 ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT-II, MEMBER, ADDITIONAL MACT, MYSORE, PARTLY
                                3


ALLOWING THE CLAIM PETITION FOR COMPENSATION               AND
SEEKING ENHANCEMENT OF COMPENSATION.

    THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

The captioned appeal is filed by the owner of the

offending vehicle questioning the liability fastened on the

owner by the Tribunal in MVC.No.113/2011.

2. The respondent No.1/claimant filed claim petition

for having sustained injuries in a road traffic accident dated

21.05.2010. The respondent No.1/claimant contended that on

21.05.2010 at about 1.40 p.m., he was standing in front of a

shop and in the abutting property there was construction of a

school, at that juncture, the driver of the tractor while taking

the tractor in a reverse direction came in a rash and negligent

manner and dashed against the respondent No.1. In the said

accident, the respondent No.1/claimant suffered injuries and

he underwent surgery of skin grafting to the left leg.

3. The respondent No.4/Insurance Company on

receipt of notice, contested the proceedings by filing written

statement. The respondent No.4 specifically contended that

there is gross violation of terms and conditions of policy

inasmuch as the offending vehicle was required to be used

only for agricultural purpose. However, the offending vehicle

was used for commercial purpose and therefore, the

respondent No.4/Insurance Company is not liable to indemnify

the insured.

      4.     The      Tribunal    having     assessed       the    oral   and

documentary          evidence    has       awarded        compensation     of

Rs.1,25,000/-. While examining the liability, the Tribunal

having perused Ex.R-1 has recorded a finding that the policy

was issued and risk was covered by the respondent

No.4/Insurance Company only for agricultural purpose,

however, on perusal of Ex.P-1, the Tribunal found that the

vehicle was being used for commercial purpose. The Tribunal

having verified the records found that the vehicle was being

used for transportation of construction materials for

construction of school and therefore, held that the owner of

the offending vehicle has grossly violated the policy condition.

On these set of reasonings, the Tribunal has proceeded to

dismiss the claim petition against the respondent

No.4/Insurance Company. Since there is breach of policy

condition, the Tribunal has proceeded to fasten the liability on

the appellant, respondent No.2/driver and respondent No.3

who is the owner of the trailer.

5. Heard learned counsel for the appellant and learned

counsel appearing for the respondent No.4/Insurance

Company.

6. Learned counsel appearing for the appellant/owner

would vehemently argue and contend before this Court that

the appellant/owner has established by producing ocular

evidence of PW.2 who has stated in unequivocal terms that

the vehicle was being used only for agricultural purpose. The

said ocular evidence of PW.2 would clearly establish that the

offending vehicle was carrying agricultural manure and not

construction materials as alleged by the respondent

No.4/Insurance Company.

7. Per contra, learned counsel appearing for the

respondent No.4/Insurance Company would submit to this

Court that Ex.P-1 which is the first information report would

clearly establish that the vehicle was being used for

commercial purpose. In that view of the matter, he would

submit to this Court that the finding recorded by the Tribunal

fastening the liability on the owner of the offending tractor and

trailer would not warrant any interference.

8. Heard learned counsel for the appellant/owner and

learned counsel for the respondent No.4/Insurance Company.

Perused the records.

9. It would be useful for this Court to refer to the

relevant paragraph 12 of the first information report which

reads as follows:

"12. First Information Contents:

"¢£ÁAPÀ 21.05.2010 gÀAzÀÄ ªÀÄzÁåºÀß 1-40 UÀAmÉ ¸ÀªÀÄAiÀÄzÀ°è ¦gÁåzÀÄzÁgÀgÀÄ CAUÀrAiÀÄ°è EzÁÝUÀ ¥ÀPÀÌzÀ°è ¸ÉÆÌÃ¯ï ©®ØAUï PÉ®¸À £ÀqÉAiÀÄÄwÛzÀÄÝ. ¸ÀzÀj ©°ØAUÁUÉ mÁæPÀÖgï PÉJ11-n-4231 ºÁUÀÆ CzÀgÀ mÉæöÊ®gï £ÀA PÉJA7-n- 378 gÀ°è ªÀÄtÄÚ vÀÄA©PÉÆAqÀÄ ZÁ®PÀ ¸ÉÆÌÃ¯ï M¼ÀUÉ ºÉÆÃUÀ®Ä mÁæPÀ×gï£ÀÄß AiÀiÁªÀÅzÉÃ ¸ÀÆZÀ£É E®èzÉ KPÁJQ vÉUÉzÀÄPÉÆAqÀÄ »A¨ÁUÀPÉÌ £ÀÄVÎzÁÝUÀ C°è ¤AwzÀÝ UÀÄgÀÄQgÀuï ªÀÄvÀÄÛ UÀuÉÃ±ï JA§ ªÀÄPÀÌ½UÉ ªÀiÁr ©½¹zÀÝjAzÀ 11 ªÀµÀðzÀ UÀÄgÀÄQgÀuïUÉ JgÀqÀÄ PÁ°UÉ½UÉ gÀPÀÛUÁAiÀÄªÁVzÀÄÝ, 3 ªÀµÀðzÀ UÀuÉÃ±ï£À vÉÆqÉUÉ KmÁVzÀÄÝ C°è d£À ¸ÉÃgÀÄwÛzÀÝAvÉ mÁæPÀÖgï ZÁ®PÀ mÁæPÀÖgï£ÀÄ ©lÄÖ ¸ÀÜ¼À¢AzÀ ºÉÆÃgÀlÄ ºÉÆÃzÀ, ¦gÁåzÀÄzÁgÀgÀÄ C°èzÀÝªÀgÀ ¸ÀºÁAiÀÄ¢AzÀ ªÀÄPÀÌ£ÀÄß DmÉÆÃ MAzÀgÀ°è CªÀgÀ vÁ¬Ä eÉÆvÉ «PÀæA D¸ÀàvÉæUÉ PÀ¼ÀÄ»¹PÉÆnÖzÀÄÝ F C¥ÀWÁvÀPÉÌ mÁæPÀÖgï ZÁ®PÀ£À CwªÉÃUÀ ªÀÄvÀÄÛ ¤®ðPÀëvÉ£ÀzÀ ZÁ®£É PÁgÀtªÁVzÀÄÝ DvÀ£À «gÀÄzÀÝ ¸ÀÆPÀÛ PÁ£ÀÆ£ÀÄ PÀæªÀÄ dgÀÄV¸À¨ÉÃPÉAzÀÄ ºÉÃ½PÉ ¦gÁå¢£À ªÉÄÃgÉUÉ F ¥Àæ.ªÀ.ªÀgÀ¢."

10. If the contents of the first information report are

examined, it is clearly evident that the offending vehicle was

being used at the site where school building was constructed.

Therefore, it is clearly evident that the offending vehicle was

used for commercial purpose when the risk was covered and

policy was issued for only agricultural purpose. In that view of

the matter, this Court is of the view that the finding recorded

by the Tribunal in fastening liability on the owner does not

suffer from any infirmity. The question of pay and recover

would also not arise in the present case on hand. Since the

present appeal is filed by the owner and therefore, the

appellant being owner of the offending vehicle cannot seek