Karnataka High Court
The Divisional Manager, United ... vs Ningavva W/O Peerappa Lakkikoppa on 23 December, 2021
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 23 R D DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
M.F.A.No.22676/2012
C/W M.F.A.Nos.22677, 22678
AND 22679 OF 2012 (MV)
IN MFA No.22676/ 2012
BETWEEN:
THE DIVISIONAL MANAGER,
UNITED INDIA INS URANCE COM PANY LTD.,
ENKAY COMPLEX, KESHWAPUR,
HUBBALLI.
... APPELLANT
(BY SRI. RAJASHEKHAR S.ARANI , AD VOCATE)
AND
1. SMT.NINGAVVA
W/O PEERA PPA LA KKIKOPPA ,
AGE: 60 YEARS , OCC: COOLIE,
R/O TIMMAPUR, T Q: SHI GGAON ,
DISTRICT: HAVERI .
2. SHRI K.PRASAD ,
AGE: MAJOR, OCC: BUSINESS ,
R/O NIDAGUNDI CHAWAL,
NEHARU NAGAR, BYADGI,
OWNER OF TATA A CE BEARING
ITS REGISTRATIONNO.KA-27/A- 168.
... RES PONDENTS
(BY SRI HARISH S .MAIGUR, ADV OCA TE FOR R1;
NOTICE TO R2 SERVED)
2
THIS MISC.FIRST APPEAL IS FI LED UNDER SECTION
173(1) OF MOTOR VEHICLES A CT, 1988, AGAINST THE
JUDGMENT AND A WARD DATED 06.01.2012 PA SSED IN MVC
NO.69/ 2011 ON THE FILE OF T HE ADDL. S ENIOR CIVIL
JUDGE AND ADDL.M.A .C.T ., HA VERI, AWARDIN G THE
COMPENSATION OF RS.1,20,040/- WITH INTEREST A T THE
RATE OF 6% P.A. FROM THE D ATE OF PETITION TILL
REALIZATION .
IN MFA No.22677/ 2012
BETWEEN:
THE DIVISIONAL MANAGER,
UNITED INDIA INS URANCE COM PANY LTD.,
ENKAY COMPLEX, KESHWAPUR,
HUBBALLI.
... APPELLANT
(BY SRI. RAJASHEKHAR S.ARANI , AD VOCATE)
AND
1. SRI FEEROZ,
S/O NINGA PPA KUBIHAL,
AGE: 25 YEARS , OCC: GOUNDI AND
AGRICULTURE WORK,
R/O TIMMAPUR, T Q: SHI GGAON ,
DISTRICT: HAVERI .
2. SHRI K.PRASAD ,
AGE: MAJOR, OCC: BUSINESS ,
R/O NIDAGUNDI CHAWAL,
NEHARU NAGAR, BYADGI,
OWNER OF TATA A CE BEARING
ITS REGISTRATIONNO.KA-27/A- 168.
... RES PONDENTS
(BY SRI HARISH S .MAIGUR, ADV OCA TE FOR R1;
NOTICE TO R2 SERVED)
THIS MISC.FIRST APPEAL IS FI LED UNDER SECTION
173(1) OF MOTOR VEHICLES A CT, 1988, AGAINST THE
JUDGMENT AND A WARD DATED 06.01.2012 PA SSED IN MVC
NO.70/ 2011 ON THE FILE OF T HE ADDL. S ENIOR CIVIL
3
JUDGE AND ADDL.M.A .C.T ., HA VERI, AWARDIN G THE
COMPENSATION OF RS.62,068/- WI TH INTEREST AT THE
RATE OF 6% P.A. FROM THE D ATE OF PETITION TILL
REALIZATION .
IN MFA No.22678/ 2012
BETWEEN:
THE DIVISIONAL MANAGER,
UNITED INDIA INS URANCE COM PANY LTD.,
ENKAY COMPLEX, KESHWAPUR,
HUBBALLI.
... APPELLANT
(BY SRI. RAJASHEKHAR S.ARANI , AD VOCATE)
AND
1. SRI GUD USAB,
S/O LA LASAB HORAKERI,
AGE: 61 YEARS , OCC: COOLIE,
R/O TIMMAPUR, T Q: SHI GGAON ,
DISTRICT: HAVERI .
2. SHRI K.PRASAD ,
AGE: MAJOR, OCC: BUSINESS ,
R/O NIDAGUNDI CHAWAL,
NEHARU NAGAR, BYADGI,
OWNER OF TATA A CE BEARING
ITS REGISTRATIONNO.KA-27/A- 168.
... RES PONDENTS
(BY SRI HARISH S .MAIGUR, ADV OCA TE FOR R1;
NOTICE TO R2 SERVED)
THIS MISC.FIRST APPEAL IS FI LED UNDER SECTION
173(1) OF MOTOR VEHICLES A CT, 1988, AGAINST THE
JUDGMENT AND A WARD DATED 06.01.2012 PA SSED IN MVC
NO.71/ 2011 ON THE FILE OF T HE ADDL. S ENIOR CIVIL
JUDGE AND ADDL.M.A .C.T ., HA VERI, AWARDIN G THE
COMPENSATION OF RS.7,000/- WITH INTEREST AT THE
RATE OF 6% P.A. FROM THE D ATE OF PETITION TILL
REALIZATION .
4
IN MFA No.22679/ 2012
BETWEEN:
THE DIVISIONAL MANAGER,
UNITED INDIA INS URANCE COM PANY LTD.,
ENKAY COMPLEX, KESHWAPUR,
HUBBALLI.
... APPELLANT
(BY SRI. RAJASHEKHAR S.ARANI , AD VOCATE)
AND
1. SRI EKANATH @ RAJESAB
S/O UMMANNA GA NDOLAKAR
AGE: 46 YEARS , OCC: GROCERY SHOP,
R/O TIMMAPUR, T Q: SHI GGAON ,
DISTRICT: HAVERI .
2. SHRI K.PRASAD ,
AGE: MAJOR, OCC: BUSINESS ,
R/O NIDAGUNDI CHAWAL,
NEHARU NAGAR, BYADGI,
OWNER OF TATA A CE BEARING
ITS REGISTRATIONNO.KA-27/A- 168.
... RES PONDENTS
(BY SRI HARISH S .MAIGUR, ADV OCA TE FOR R1;
NOTICE TO R2 SERVED)
THIS MISC.FIRST APPEAL IS FI LED UNDER SECTION
173(1) OF MOTOR VEHICLES A CT, 1988, AGAINST THE
JUDGMENT AND A WARD DATED 06.01.2012 PA SSED IN MVC
NO.72/ 2011 ON THE FILE OF T HE ADDL. S ENIOR CIVIL
JUDGE AND ADDL.M.A .C.T ., HA VERI, AWARDIN G THE
COMPENSATION OF RS.84,800/- WI TH INTEREST AT THE
RATE OF 6% P.A. FROM THE D ATE OF PETITION TILL
REALIZATION .
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 02.12.2021, THIS DAY, THE COURT ,
DELIVERED THE F OLLOWING:
5
JUDGMENT
Challenging common judgment and awards dated
06.01.2012 passed by Addl.Senior Civil Judge and
Addl.M.A.C.T., Haveri (for short, 'tribunal') in MVC
nos.69 to 72 of 2011, these appeals are filed by the
insurer.
2. Though these appeals are listed for
admission, with consent of learned counsel for parties,
they are taken up for final disposal.
3. Brief facts as stated are that on 21.04.2010
at about 2.00 p.m. when claimants were traveling in
TATA ACE bearing registration no.KA-27/9015 from
Timmapur towards Shiggaon. When it stopped suddenly
near Vanahalli, they got down and proceeding towards
Shiggaon by walk when another TATA ACE bearing
registration no.KA-27/A-168 driven by its driver in rash
and negligent manner dashed against them causing
grievous injuries. They were admitted to hospital for
treatment. Despite taking treatment, they sustained
physical disability. Claiming compensation for same,
they filed four separate claim petitions against owner
and insurer of TATA ACE bearing registration no.KA-
27/A-168 under Section 166 of Motor Vehicles Act,
1988 (for short, 'M.V.Act').
4. On service of notice, respondents opposed
claim petitions by denying claim petition averments.
Occurrence of accident due to rash and negligent
driving by driver was denied, but ownership of vehicle
and insured with respondent-Insurance Company was
admitted. Respondent no.2 also contended that claim
was excessive. The insurer specifically stated that on
date of accident, claimants were traveling as
unauthorized occupants in a goods vehicle and
therefore, insurer was not liable to pay compensation.
Claim petitions were also opposed as being excessive.
5. As claim petitions arose out of same
accident, they were clubbed together and common
issues were framed as under.
1. Whether petitioner proves that, on
21.04.2010 at 2.00 p.m. on left side of
the service road, near Rambhapuri
college, she/he was proceeding on left
side of the road, at that time the driver
of Goods vehicle bearing
registrationno.KA-27/A-168 drove with
high speed, rash and negligent manner
and dashed to her/him and she/he
sustained injuries in the accident?
2. Whether respondent no.2 proves that,
the driver of vehicle bearing
registrationno.KA-27/A-168 did not
possess the valid DL at the time of
accident?
3. Whether respondent no.2 proves that,
the petitioner was unauthorized
passenger in goods vehicle at the time
of accident?
4. Whether petitioner is entitled
compensation? If so, what rate and
against whom?
5. What order or award?
6. Thereafter claimants examined nine
witnesses and got marked Exhibits P1 to P41(a). On
behalf of respondents, two witnesses were examined as
RW1 and RW2. Exhibits Ex.R1 to R11 were marked.
7. On consideration, tribunal answered issues
no.1 and 4 in affirmative and issues no.2 and 3 in
negative and issue no.5 by allowing claim petitions in
part awarding compensation as follows:
MVC no.69/2011 Rs.1,20,040/-
MVC no.70/2011 Rs.62,068/-
MVC no.71/2011 Rs.7,000/-
MVC no.72/2011 Rs.84,800/-
It held respondents jointly and severally liable to
pay the same with interest at 6% per annum. Assailing
the said awards, insurer is in appeal.
8. Heard learned counsel for appellant-insurer
and respondents. Perused impugned judgment and
award.
9. Sri Rajashekhar S.Arani, learned counsel for
appellant-insurer submitted that tribunal committed
grave irregularity and illegality in ignoring specific
objections taken by insurer that claimants were
unauthorised occupants in a goods vehicle and not
entitled for compensation. It was submitted that Ex.P1-
complaint given by one of the inmates of vehicle, it
was stated that claimants were proceeding towards
Shandy at Shiggaon. Therefore, contention of claimants
that they were pedestrians would be false. Learned
counsel further submitted that even if they were
traveling along with goods to go to Shandy, mandate of
sub-rule (4) (a) of Rule 100 would be violated, as
there were about 15 persons traveling in a TATA ACE
vehicle which was having limited floor area. If area
required for all fifteen passengers were to be
accounted for, there would hardly be any space for
goods which allegedly was being carried to Shandy. It
was lastly contended that appellant-insurer had in fact
filed an I.A. for examining private investigator, but
which came to be dismissed in view of opposition by
claimants.
10. On the other hand, Sri Harish S.Maigur and
Sri Laxman C.Kulkarni, learned counsel for respondents
supported awards and opposed insurer's appeals. It
was submitted that claimants were in fact pedestrians
when vehicle dashed against them. Claimants had
consistently deposed about manner of occurrence of
accident and PW4 was in fact an eyewitness. It was
further submitted that RW1 - owner of vehicle admitted
that accident occurred when walking by side of road.
Learned counsel would further contend that as
claimants were third parties, insurer could not escape
liability even if it were to succeed on the grounds
urged.
11. From the above submission, occurrence of
accident, involving insured vehicle and claimants
sustaining injuries therein, due to rash and negligent
driving of same by its driver, is not in dispute. While
claimants asserted that they were pedestrians at the
time of accident, insurer contends that they were
unauthorised passengers in goods vehicle. On contest,
tribunal assessed compensation and passed award
holding insurer liable to pay compensation. Insurer is
in appeal challenging award on liability. Therefore,
point that arises for consideration herein is:
"Whether finding of tribunal on liability of
insurer is justified?"
12. At the outset, occurrence of accident due to
rash and negligent driving of insured vehicle by its
driver and claimants sustaining injuries therein is not
in dispute. Issuance of insurance policy and its validity
on date of accident is also not in dispute. It is also not
in dispute that insured vehicle was a goods vehicle.
The only ground on which insurer is challenging the
finding on liability is that claimants were unauthorised
occupants in goods vehicle at the time of accident.
13. Copy of complaint annexed to FIR is marked
as Ex.P.1. Complainant is one of the inmates of insured
vehicle. He stated that on 21.04.2010, when he was
intending to go to Shandy at Shiggaon few others like
him were also waiting by side of Pune - Bengaluru road
and on waiving at vehicles going in that direction. At
that time TATA ACE bearing registration no.KA-21/A
168 stopped near them. When they boarded vehicle,
there were two other persons already inside vehicle.
Thereafter driver was driving it in rash and negligent
manner. After Vanahalli cross, vehicle fell into a road
side ditch resulting claimants sustaining injuries.
Complaint is filed on 21.04.2010 at 3.20 p.m.
Interestingly, further statement of complainant is
recorded on same day, in which complainant states
that offending TATA ACE vehicle dashed against him
and claimants, while they were walking by side of road.
Ex.P.3 - charge sheet is based on later version of
complainant.
14. Claimants examined as PWs.2 to PW5 have
reiterated that accident occurred when they were
pedestrians. Nothing worthwhile is elicited during their
cross-examination. In fact, there is no cross-
examination of witnesses with regard to their assertion
that they were pedestrians at the time of accident.
From perusal of Ex.P.5 - Motor Vehicle Inspector's
report, damages noted on vehicle are to windscreen,
front body shape, bumper and left side head light etc.,
15. From the damages noted by Motor Vehicle
Inspector, occurrence of accident in the manner stated
by claimants is probable. If the accident had occurred
as per complainant's version i.e., falling into a road
side ditch, vehicle would have sustained more severe
damages especially on its sides and cabin. In the
absence of any evidence to elucidate same and as
insurer has failed to cross-examine claimants with
regard to manner of accident, finding of tribunal that
accident occurred when claimants were pedestrians
would be justified. On an examination of quantum of
compensation, none of the award are found to be
either excessive or unjustified. Hence, there are no
good or sufficient grounds to interfere. Point for
consideration is answered in affirmative.
16. In the result, I pass following:
ORDER
i. Appeals are dismissed.
ii. Amount in deposit is ordered to be
transmitted to the Tribunal.
iii. Appellant - insurer is directed to
deposit balance compensation within
six weeks from date of receipt of
certified copy of this order.
Sd/-
JUDGE
CLK / p sg *
