Sri G M Kumarswamy vs Hosakeri Siddappa
2021 Latest Caselaw 1194 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 19TH DAY OF JANUARY, 2021

                     BEFORE

THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR

           M.F.A. NO.4692 OF 2013 (MV)
BETWEEN:

SRI G M KUMARSWAMY,
S/O MAWRULASIDDAIAH,
AGED ABOUT 60 YEARS,
R/O KAMMATTAHALLI VILLAGE,
IN HARAPANAHALLI TALUK,
DAVANAGERE DISTRICT.                 ...APPELLANT

(BY SRI A HANUMANTHAPPA, ADVOCATE)

AND:

  1. HOSAKERI SIDDAPPA,
     S/O LATE UJJAPPA,
     AGED ABOUT 67 YEARS,
     R/O KEREGUDIHALLI VILLAGE,
     IN HARAPANAHALLI TALUK,
     DAVANAGERE DISTRICT-583127.

  2. HOSAKERI MARULASIDDAPPA,
     S/O SIDDAPPA,
     AGED ABOUT 34 YEARS,
     R/O KEREGUDIHALLI VILLAGE,
     IN HARAPANAHALLI TALUK,
     DAVANAGERE DISTRICT-583127.

  3. SMT MANJAKKA,
     D/O LATE THIPPAMMA &
                        2


  W/O VEERAPPA,
  AGED ABOUT 38 YEARS,
  R/O CHIKKAMEGALAGERI VILLAGE
  IN HARAPANAHALLI TALUK,
  DAVANAGERE DISTRICT-583127.

4. SMT SHIVAMMA,
   D/O LATE THIPPAMMA,
   W/O MANJUNATH,
   AGED ABOUT 34 YEARS,
   R/O RANEBENNUR TOWN,
   HAVERI DISTRICT-581110.

5. SMT PARAMMA,
   D/O LATE THIPPAMMA,
   W/O VEERABHADRAPPA,
   AGED ABOUT 32 YEARS,
   R/O HEIREMEGALAGERI VILLAGE,
   HARAPANAHALLI TALUK,
   DAVANAGERE DISTRICT-583127.

6. SMT SAKARAMMA,
   D/O LATE THIPPAMMA,
   W/O CHIKKAPPA,
   AGED ABOUT 30 YEARS,
   R/O MELLAKATTI VILLAGE,
   HARAPANAHALLI TALUK,
   DAVANAGERE DISTRICT-583127.

7. SMT GURUSHANTHAMMA @ SHASIKALA,
   D/O LATE THIPPAMMA,
   W/O B PATREPPA,
   AGED ABOUT 28 YEARS,
   R/O KEREGUDIHALLI VILLAGE,
   HARAPANAHALLI TALUK,
   DAVANAGERE DISTRICT-583127

8. H MAJUNATH,
                             3


     S/O DEVENDRAPPA,
     AGED ABOUT 28 YEARS,
     R/O ARASIKERI VILLAGE,
     HARAPANAHALLI TALUK,
     DAVANAGERE DISTRICT-583127.

  9. THE DIVISIONAL MANAGER,
     SRI CHOLAMANDALAM
     MS GENERAL INSURANCE
     COMPANY LIMITED,
     DARE HOUSE, 2ND FLOOR,
     NO.2, NSC BOSE ROAD,
     CHENNAI-600001,
     BY ITS BRANCH OFFICE,
     P.J.EXTENSION,
     DAVANGERE-577001.              ...RESPONDENTS

(BY SRI MAHESH R UPPIN, ADVOCATE FOR R1-R7,
 R8 SERVED UNREPRESENTED,
 SRI O MAHESH, ADVOCATE FOR R9)

                           ****

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED: 22.12.2012 PASSED IN MVC NO. 61/2011
ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE,
MACT-9,   HARAPANAHALLI,    DAVANGERE,   AWARDING     A
COMPENSATION OF RS.5,46,720/- WITH INTEREST @ 6%
P.A FROM THE DATE OF PETITION TILL ITS REALIZATION.

     THIS APPEAL HAVING BEEN HEARD THROUGH VIDEO
CONFERENCE AND RESERVED FOR JUDGMENT, COMING
ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
                                 4


                          JUDGMENT

This appeal is filed by owner of the vehicle

challenging the judgment and award dated 22.12.2012

passed in MVC No.61/2011 by the Senior Civil Judge and

MACT IX, Harapanahalli, directing the respondent Nos.1

and 2 viz., driver and owner of the vehicle, to pay the

compensation.

2. The facts briefly stated are that on 29.06.2010

the deceased Thippamma was traveling in a private bus

bearing Reg.No.KA-17-A-8235 from Davanagere to

Arasikere village, when she was getting down from the bus

at Kerigudihalli bus stop, the driver of the bus suddenly

moved the bus, as a result of which, she fell down and

sustained fracture and grievous injuries. She was

admitted to hospital, but she died on 10.07.2010 due to

the injuries caused in the accident. The legal

representatives have claimed compensation on the reason

that they have lost financial support.

appeared but the respondent Nos.1 and 2, the driver and

owner of the vehicle have not filed objections, respondent

No.3 has filed objections denying the averments made in

the claim petition.

4. On the basis of the pleadings, the Tribunal has

framed the following issues:

1. Whether the petitioners prove that on 29.06.2010 at about 2.00p.m. in the bus stand situated at Kerigudihalli village, Harapanahalli Taluk when the deceased Thippamma was getting down from the bus bearing Reg.No.KA.17/A-8235, the respondent No.1 being its driver moved the same in a rash and negligent manner as a result she fell down and sustained fatal injuries?

2. Whether the petitioners prove the age and income of deceased?

3. Whether the respondent No.3 proves that as on the date of accident the respondent No.1

did not possess a valid and effective driving licence?

4. Whether the petitioners are entitled for compensation? If so, from which of the respondents and to what quantum?

5. What order or award?

5. On appreciating the oral and documentary

evidence placed on record, the Tribunal has came to the

conclusion that there was violation of permit conditions,

as such, the insurance company cannot be saddled with

liability to pay compensation. Further, the Tribunal

directed respondent Nos.1 and 2 i.e., driver and owner of

the vehicle respectively, to pay compensation with

interest. Being aggrieved by the judgment and award, the

owner of the vehicle has preferred the appeal.

6. Learned counsel for the appellant would

contend that the Tribunal has committed error in

fastening the liability on the driver and owner of the

vehicle only on the ground that there is a violation of the

policy condition as the insured vehicle was traveling

beyond the territorial limits of the permit. He further

contended that the private bus was having the valid

permit to ply the vehicle from Davanagere to Jagaluru and

Davanagere to Kandkal. The place of accident was

Kerigudihalli of Harapanahalli Taluk, which is situated

between the border of Jagaluru and Harapanahalli Taluk

and it is the only way to reach from Davanagere to

Jagaluru. Therefore, the appellant has not violated the

policy condition. The compensation awarded is exorbitant

and higher and not justifiable. All the claimants shown in

the petition are major sons and married daughters, as

such, they are not dependent on the income of the

deceased. The compensation awarded is opposed to law

and evidence on record. In support of the said contention,

learned counsel has relied on the decision rendered by

this Court in MFA No.1201/2011 in the case of

Durugamma vs. S.G.Naresh and others.

7. Per contra, learned counsel for the insurance

company has submitted that the Tribunal has rightly

came to the conclusion that there was violation of permit

condition. There are no valid grounds to interfere with the

judgment and award.

8. Having heard the learned counsel for the

appellant and respondents, the only question that arises

for consideration in this appeal is :

"Whether the Tribunal was justified in exonerating the insurance company on the ground that insured private bus bearing Reg.No.KA-17-A-8235 was plying beyond the territorial limits of the permit at the time of accident?"

9. In the present case RW-1-ARTO is examined,

who has stated in examination-in-chief that the private

bus bearing Reg.No.KA-17-A-8235 had no permit to go to

Kerigudihalli, but in cross-examination he has expressed

his ignorance about the exact location of Kerigudihalli

village and whether the said village is on the border of

Jagalur Taluk. There is no specific evidence to show that

the Owner of the vehicle was intentionally plied the bus

outside the territory prescribed in the permit.

10. In a decision of reported in ILR 1991 KAR

4127 in the case of K.V.Thimmegowda vs. Kamalamma

and another decision reported in 2000(2) KLJ 462 in the

case of United India Insurance Company Limited vs.

Chandamma, the Division Bench of this Court held that

infraction of the permit conditions by insured i.e., plying

of the insurer vehicle beyond the territorial limits of the

permit has no nexus to the cause of accident. In the

circumstances, the insurance company cannot avoid its

liability.

11. In a decision in MFA No.1201/2011 in the case

of Durugamma vs. S.G.Naresh and others, the

coordinate bench of this Court has observed as under:

"14. Now the first question would be whether the deviation of route would fall under Section 149[2][a][i][c] of the Act. To examine this, in the light of the Judgments referred to supra, it is apt to refer to the phrase 'for a purpose not allowed by the permit'. The next question would be whether 'for a purpose not allowed by the permit' would include violation of the terms and conditions of the permit. To analyze this aspect, it would be beneficial to refer to the definition clause of 'permit' under Section 2[31] of the Act which defines 'permit' as under: "permit" means a permit issued by a State or Regional Transport Authority or an authority prescribed in this behalf under this Act authorizing the use of a motor vehicle as a transport vehicle. Permit is issued to a transport vehicle. Section 66 of the Act contemplates the necessity for permit. Section 72 of the Act provides for grant of stage carriage permit whereby the Regional Transport Authority, if it decides to grant a stage carriage permit, may grant the permit for a stage carriage of a specified description and may, subject to any rule that may be made under the Act, attach to the permit any one or more of the conditions which are 24 in

number. Section 74 deals with grant of contract carriage permit. The condition attached to the permit under Section 74 are about 13 in number. Section 75 deals with scheme for renting of motor cabs. Section 76 deals with application for private service vehicle permit. Section 76[3] contemplates that the Regional Transport Authority if it decides to grant the permit may, subject to any rules that may be made under this Act, attach to the permit any one or more of the conditions which are 7 in number. Similarly, Sections 77, 78 and 79 deals with grant of goods carriage permit. The conditions that could be attached for granting goods carriage permit are about 9 in number."

12. Further it is observed that the legislature in its

wisdom thought it fit to restrict the defence available

under Section 149[2][a][i][c] of the Act 'for a purpose not

allowed by the permit' and not for 'violation of any terms

and conditions of the permit'. For example, if a vehicle

holding goods carriage permit is carrying passengers or

vice-versa. Then, it can be held that the vehicle holding

goods carriage permit is being used for a purpose not

allowed by the permit. The breach of conditions of the

permit would by itself can not be characterised as the

purpose not allowed in the permit.

13. In order to discuss about this point, the

following decisions are referred:

a. K.V.Thimmegowda Vs. Kamalamma (ILR 1991 KAR 4127) b. United India Insurance Co. Ltd. and Others Vs. Chandamma and others (ILR 2000 KAR 1302) c. New India Assurance Co. Ltd., Bangalore Vs. Papaiah and Others (2005 AIR Kant R 1678) d. Divisional Manager, National Insurance Company Limited, Hubli Vs. Smt. Laxmawwa and Others (2010 ACJ 1406) e. Reliance General Insurance Co. Ltd. Vs. Devibai and Another [(2015 (2) AKR 827] f. Rehmat Bee and Others Vs. Liyaqat Ali and Another (M.F.A. No.30274/2010, DD 20.08.2014) g. National Insurance Co.Ltd., vs. N.Siddaiah (MFA No.9791/2010, DD 03.04.2013)

h. Branch Manager, National Insurance Co.Ltd., vs. Anandappa and others (MFA No.5450/2010, DD 09.04.2013)

14. The coordinate bench on referring to the

aforesaid decisions has held that the finding given by the

Tribunal exonerating the insurance company to pay the

compensation cannot be sustained and the insurance

company is liable to pay the compensation. This decision

is applicable to the facts of the present case. There are

valid grounds to set-aside the judgment of the Tribunal in

fastening the liability on the appellant-registered owner of

the vehicle. The respondent No.3-insurer shall be liable to

satisfy the award. The quantum of compensation awarded

by the Tribunal is just and reasonable. The same remains

undisturbed.

15. For the foregoing reasons, this Court proceeds

to pass the following:

i. Appeal is allowed-in-part.

ii. The judgment and award dated 22.12.2012

passed in MVC No.61/2011 by the Senior

Civil Judge and MACT IX, Harapanahalli, is

modified as under:

"The order of the Tribunal directing respondent Nos.1 and 2 viz., driver and owner of the vehicle to pay the compensation of Rs.5,46,720/- with interest is set-aside and the respondent-insurance company is directed to pay the said compensation with interest from the date of petition till realization."

Sd/-

JUDGE

BSR