The Legal Manager vs Chennamma
2021 Latest Caselaw 356 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 7TH DAY OF JANUARY 2021

                         BEFORE

     THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD

                MFA No.11025 OF 2010(MV)

BETWEEN:

The Legal Manager,
Cholamandalam Ms. General
Insurance Co. Ltd.,
H.O."Dare House" # 234 NSC,
Bose road, Chennai-600001.

By
Cholamandalam MS General Insurance
Company Limited,
'Dare House' II Floor,
No.2 NSC., Bose Road,
Chennai-600 001.

Also at

Cholamandalam MS General Insurance
Company Limited,
No.9\1, Ulsoor Road,
Bangalore-560 042.
By its Senior Manager-claims.              ... Appellant

(By Sri. O.Mahesh, Advocate)

AND:

1.     Chennamma,
       Age 40 years,
                              2



     w/o Late Basava.

2.   Shruthi,
     Age 17 years
     D/o late. Basava.

3.   Lokesh,
     Age 15 years
     S/o Late Basava.

     Respondents No.2 & 3 are
     Since minors represented by
     Their natural guardian
     Mother 1st respondents.

4.   Madanaika,
     Aged 63 years
     s/o late Ninganaika

5.   Devamma,
     Aged 58 years,
     w/o Madanaika,

     all are residing at Bakkahalli Village
     Hadinaru Hobli,
     Nanjangud Taluk,Mysore.

6.   Mohan Kumar,
     Aged 40 years,
     S/o Chamaiah,
     R/at 3429, II Cross,
     Sarvajanika Hostel Road,
     Vidyaranyapuram, Mysore.
                                              ... Respondents
(By Sri.S.A.Saboor, Advocate for R1:
Sri. H.Mohan Kumar, Adv. for R6:
R4 & R5 are served and unrepresented
R2 & R3 are minors represented by R1 )
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       This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:20.10.2010 passed
in MVC No. 158/2010 on the file of Presiding Officer, Fast
Track Court-I Member Officer, Fast Track Court-I, Member
Additional MACT, Mysore, awarding a compensation of
Rs.4,89,300/- with interest @ 6% p.a. from the date of
petition till realization.

      This MFA, coming on for admission, through video
conference this day, this Court, delivered the following:

                    JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the insurance company

being aggrieved by the judgment dated 20.10.2010

passed by the Motor Accident Claims Tribunal, Mysore

in MVC No.158/2010.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 26.05.2008 at about 10.30

p.m., the deceased Basava, after purchasing bullocks

at Bogadi, Mysore was transporting the same in Appe

Goods auto bearing registration No.KA-09/A-5996

towards Bakkahalli of Nanjangud Taluk. When they

reached near Dattagalli ring road, at that time, the

driver of the said auto drove the same at a high speed

and in a rash and negligent manner and lost control

over the vehicle and it was turned turtle and fell on

the road. As a result of the aforesaid accident, the

deceased sustained grievous injuries and was

hospitalized. He succumbed to the injuries at the

hospital on 05.06.2008.

3. The claimants filed a petition under Section

166 of the Act on the ground that deceased was

working as labourer and was earning Rs.9,000/- per

month. It was pleaded that they also spent huge

amount towards medical expenses, conveyance,

funeral and obsequies etc. It was further pleaded that

the accident occurred purely on account of the rash

and negligent driving of the offending vehicle by its

driver.

4. On service of notice, the respondent Nos.1

to 3 appeared and filed written statement in which the

averments made in the petition were denied. It was

pleaded that the offending vehicle was insured with

the respondent No.3 subject to terms and conditions

of the policy. It was further pleaded that at the time

of the accident the driver of the offending vehicle was

not holding a valid and effective driving licence to

drive the said vehicle. It was further pleaded that the

said vehicle was having only one seating capacity

which is meant for driver and has not been permitted

to carry any person by sharing his seat. It was

further pleaded that the bullocks cannot be treated as

goods since it is being a live stock. Hence, the

deceased cannot be considered as owner of the goods

and as such he was traveling as gratuitous passenger

in the goods vehicle and there is violation of the terms

and conditions of the policy and hence insurance

company is not liable to pay the compensation. It was

further pleaded that the quantum of compensation

claimed by the claimants is excessive. Hence, he

sought for dismissal of the petition.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant No.1 - wife of

the deceased was examined as PW-1 and the mother

of the deceased as PW-2 and got exhibited 13

documents namely Ex.P1 to Ex.P13. On behalf of the

respondents, an officer of the insurance company was

examined as RW-1 and an official of the RTO office

aas RW-2 and got exhibited 2 documents as Exs.R1

and R2. The Claims Tribunal, by the impugned

judgment, inter alia, held that the accident took place

on account of rash and negligent driving of the

offending vehicle by its driver, as a result of which,

the deceased died. The Tribunal further held that the

claimants are entitled to a compensation of

Rs.4,89,300/- along with interest at the rate of 6%

per annum and directed the insurance company to

deposit the compensation amount along with interest

with liberty to recover the same from the insured.

Being aggrieved, insurance company has filed this

appeal.

6. The learned counsel appearing for the

insurance company has raised the following

contentions:

Firstly, the offending vehicle - goods auto

rickshaw which was having carrying capacity of only

driver was carrying four passengers and deceased was

traveling in the goods vehicle, which is contrary to the

Motor Vehicles Act.

Secondly, the driver of the autorickshaw was not

holding the licence with transport endorsement and

hence the insurance company is not liable to pay the

compensation.

Thirdly, even though the Tribunal has held that

the owner of the goods vehicle has violated the terms

and conditions of the policy, insurance company is not

liable to pay the compensation, it directed the

insurance company to pay the compensation with

liberty to recover the same, which is unsustainable.

7. Per contra, the learned counsel appearing for

the claimants has contended that even though the

Tribunal has held that the insurance company is not

liable to pay the compensation, in view of the law laid

down by a Full Bench of this Court in the case of

'NEW INDIA ASSURANCE CO. LTD. BIJAPUR vs.

YALLAVVA AND ANOTHER' ILR 2020 Kar.2239,

the Tribunal has rightly held that insurance company

has to pay the compensation with liberty to recover

the same from the insured.

8. Heard the learned counsel for the parties and

perused the original records and judgment and award

passed by the Tribunal.

9. It is not in dispute that the deceased died due

to the injuries sustained in the accident that occurred

due to the rash and negligent driving of the driver of

the offending vehicle. It is also not in dispute that

the offending vehicle was covered with insurance

policy.

10. The Tribunal on the basis of the evidence of

the parties and the materials available on record has

given a clear finding that the owner of the offending

vehicle has violated the terms and conditions of the

policy and insurance company is not liable to pay the

compensation and directed the insurance company to

pay the compensation with liberty to recover the same

from the owner of the offending vehicle. Even as per

the law laid down by a Full Bench of this Court in the

case of YALLAVVA (surpa), the insurance company

is directed to pay the compensation awarded by the

Tribunal with liberty to recover the same form the

owner of the offending vehicle.

In view of the above, the appeal is dismissed.

The amount in deposit is ordered to be

transmitted to the Tribunal, forthwith.

Sd/-

JUDGE

Cm/-