Karnataka High Court
Chandrashekhar S/O Basavant ... vs Sadashivappagouda And Ors on 21 December, 2021
Bench: M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
MFA.No.200481/2020 (MV)
BETWEEN:
CHANDRASHEKHAR S/O BASAVANT GOLASANGI
AGE: 50 YEARS OCC: AGRICULTURE
R/O: UTNALLA TQ: & DIST: VIJAYAUR
... APPELLANT
(BY SRI. SHARANAGOUDA V. PATIL, ADVOCATE)
AND:
01. SADASHIVAPPAGOUDA S/O DYMANAGOUDA PATIL
AGE: 45 YEARS OCC: GRAM PANCHAYAT CLERK
02. SMT. MAHADEVI W/O SADASHIVAPPAGOUDA PATIL
AGE: 40 YEARS OCC: HOUSEHOLD
BOTH ARE R/O: UNTAL TQ: & DIST: VIJAYAPURA
03. THE BRANCH MANAGER
NATIONAL INSURANCE COMPANY LTD.,
S.S. CROSS ROAD, HERALAGI BUILDING, VIJAYAPUR
... RESPONDENTS
(BYSRI.SANGANABASAVA B. PATIL,ADV.,FOR R1&R2
SRI. SUDHARSHAN M., FOR R3)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173 (1) OF THE M.V. ACT, 1988 PRAYING
TO ALLOW THE APPEAL BY SETTING ASIDE THE
IMPUGNED JUDGMENT AND AWARD DATED 24.01.2018
PASSED BY THE III ADDITIONAL DISTRICT JUDGE AND
MACT-IV, VIJAYAPUR IN MVC.NO.129/2014 AND LIABILITY
SHIFTED FROM OWNER TO INSURANCE COMPANY
RESPONDENT NO.3 HEREIN.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
2
JUDGMENT
The present appeal in MFA.No.200481/2020 is filed
by the appellant - owner of the offending vehicle aggrieved
by the judgment and order dated 24.01.2018 passed in
MVC.No.129/2014 on the file of MACT Vijayapura, in and
which the Tribunal while awarding compensation to the
claimants at Rs.06,06,000/- along with interest at the rate
of 6% p.a. exonerated the insurance company from
payment of compensation on the premise that the
appellant - owner violated the terms and conditions of the
policy by allowing a minor to ride the motorcycle involved
in the accident.
02. At para No.27 of the judgment, the Tribunal
referring to Ex.R.1 - charge sheet has found that the rider
of the motorcycle namely one Vithal Golasangi was aged
about 17 years as on the date of accident and he was a
minor at charge sheet was filed before the Juvenile Court,
at Bagalkot. Taking into consideration of the said material,
the Tribunal had concluded that as on the date of accident
the motorcycle in question was ridden by the minor and he
did not possess a valid and effective driving license to ride
the motorcycle. Consequently, fixed the liability of
payment of compensation on the appellant - owner of the
offending vehicle.
03. The learned counsel for the appellant has filed
an application under Order 41 Rule 27 read with Section
151 of Code of Civil Procedure on 02.12.2021 seeking
production of license of the aforesaid Vithal Golasangi, who
was riding the motorcycle as on the date of accident. The
said driving license bears No.MH-01-20040042777 dated
16.08.2014 issued by the Maharastra State Motor Driving
License MH-01 (RTO Mumbai Central). The said driving
license is upto 15.08.2014.
04. In the affidavit accompanying with application
the appellant has stated that he was not able to procure
the said license at the earlier point of time as the said
Vithal Golasangi was not available all these days. That
recently, with effort, he found the said Vithal Golasangi
and obtained the driving license from him.
05. The learned counsel for the appellant submits
that the mentioning of the age as he was 17 years in the
charge sheet was without any basis. Merely, on the wrong
mentioning of the said age, the Tribunal has fixed the
liability on the appellant, considering the rider to be a
minor. Therefore, now in view of the availability of the
license, the contention of the appellant with regard to the
non-violation of the terms and conditions of the policy
stands forfeited. Therefore, he submits that an opportunity
be given to the appellant to produce the said document in
support of his case.
06. The learned counsel for the insurance company
submitted that the said document has been issued by the
Maharastra State Motor Driving License MH-01 (RTO
Mumbai Central). The genuineness and authentication of
the said document needs to be verified, particularly in view
of the finding already given by the Tribunal with regard to
the age of the rider being 17 years. He further submits
that the matter may be remanded to the Tribunal for
production of the said document and an opportunity may
be given to lead rebuttal evidence by the insurance
company in this regard.
07. Accepting the aforesaid submission and taking
note of averments made in the affidavit accompanying
application I.A.No.3/2021 is allowed.
08. Since, issue in the present appeal is only with
regard to the liability in the aforesaid facts of the matter,
this Court is of the considered opinion that the appeal to
be allowed and matter be remanded to the Tribunal
permitting the appellant herein to lead further evidence in
the nature of production of the said driving license and an
opportunity be given to the respondent - insurance
company to lead rebuttal evidence in this regard.
09. In the result, the following.
ORDER
I. The MFA.No.200481/2020 is allowed.
II. The order of the Tribunal dated 24.01.2018
passed in MVC.No.129/2014 to the extent of
fixing the liability on the appellant - owner of
the vehicle is, is set-aside.
III. The matter is remitted to the Tribunal to
provide an opportunity to the appellant and the
respondent - insurance company lead further
evidence as referred above.
IV. The Tribunal shall take the aforesaid document
subject to all exceptions in accordance with
law.
V. After affording sufficient opportunity to the
parties the Tribunal shall dispose off the matter
with regard to the fixing liability afresh within a
period of six months from the date of receipt of
certified copy of this judgment.
VI. Since the parties are represented through their
counsel, they shall appear before the Tribunal
without expecting any further notice on
17.01.2022 and they shall co-operate in the
matter for early dispose of the matter.
VII. The statutory amount in deposit if any be
refunded to the appellant herein.
In view of the disposal of the main appeal,
I.A.No.2/2021 for stay does not survive for consideration
and the same is disposed off.
Sd/-
JUDGE
KJJ
