United India Insurance Co Ltd vs Smt. Sangamma W/O Ramanna Madare ...
2021 Latest Caselaw 2952 Kant

                           1




         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

       DATED THIS THE 23RD DAY OF JULY, 2021

                        BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


              MFA No.201023/2015 (MV)

BETWEEN:

UNITED INDIA INSURANCE CO., LTD.,
THROUGH ITS DIVISIONAL MANAGER
P.B.NO.47, SUPER MARKET
DR. JAWALI COMPLEX, GULBARGA
                                          ... APPELLANT
(BY SRI S.S.ASPALLI, ADVOCATE)

AND:

1.     SMT. SANGAMMA
       W/O RAMANNA MADARE
       AGE: 35 YEARS, OCC: HOUSEHOLD

2.     RAMANNA S/O MALLAPPA MADARE
       AGE: 40 YEARS, OCC: COOLIE

       BOTH R/O ISLAMPUR, TQ. B. KALYAN
       DIST. BIDAR, NOW RESIDING AT
       DENGREGAON, TQ. & DIST. GULBARGA

3.     BASAWARAJ S/O CHANNAVEERAPPA
       AGE: MAJOR
       OCC: OWNER OF TRACTOR & TROLLY
       SINCE DECEASED THROUGH HIS LRS.,

3(A). SATISH S/O BASWARAJ
      AGE: MAJOR, OCC: AGRICULTURE
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     R/O PETH SIROOR, TQ. CHITTAPUR
     DIST. GULBARGA
                                      ... RESPONDENTS

(BY SRI BASAVARAJ R. MATH,
 ADVOCATE FOR R1 & R2; R3(A)-SERVED)


     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MV ACT PRAYING TO SET ASIDE THE
JUDGMENT   AND   AWARD    DATED   09.03.2015   IN   MVC
NO.600/2013 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE
AND CJM AT KALABURAGI, BY ALLOWING THE ABOVE APPEAL.


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


                     JUDGMENT

This appeal is filed by the Insurance company

under Section 173(1) of the Motor Vehicles Act (for

short 'the Act') challenging by the judgment and

award dated 09.03.2015 passed by the Principal

Senior Civil Judge and CJM, Kalaburagi (for short

hereinafter referred to as 'the Tribunal') in MVC

No.600/2013.

2. Parties are referred to as per their ranking

before the Tribunal.

3. Facts giving rise to filing of this appeal are

that on 05.09.2011 at about 10.00 p.m., the deceased-

Mallappa was working as a Labour in Tractor and Trolley

bearing registration No.KA-32/T-7373/7374. The said

tractor was carrying Lord Ganesh statue for visarjana.

As per the directions of first respondent, the deceased

was holding the Ganesh statue in the said tractor. While

the procession was going on the road, the driver of the

above said tractor started to drive it in rash and

negligent manner. As there was ditch on the road, the

driver of the tractor suddenly applied brake, due to

which, the deceased-Mallappa and statue of Lord

Ganesh fell from the tractor on the road and the

deceased sustained grievous injuries and died on the

spot. The claimants being the legal representatives of

the deceased-Mallappa filed claim petition under Section

166 of the Act seeking compensation of Rs.6,60,000/-

for the death of Mallappa in the road traffic accident.

4. The first respondent/owner did not appear

before the Tribunal inspite of service of notice and he

was placed exparte by the Tribunal.

5. The second respondent/Insurance company

filed written statement denying the averments made in

the claim petition with regard to the age, occupation and

income of the deceased and further contended that the

deceased was travelling as gratuitous passenger and

first respondent has violated the terms and conditions of

insurance policy. Hence, second respondent/Insurance

company is not liable to pay compensation. The second

respondent/Insurance company further contended that

the driver of the offending vehicle tractor and trailer was

not possessing valid and effective driving licence as on

the date of the accident. Hence, prayed to dismiss the

claim petition.

6. The Tribunal on the basis of the pleadings of

the parties framed the issues. In order to prove the

claim petition, the claimant No.1 was examined as PW.1

and got marked the documents as Exs.P1 to P7. The

second respondent/Insurance company examined its

Administrative Officer as RW.1 and got marked the

insurance policy as Ex.R1.

7. The Tribunal after recording the evidence

and considering the material on record has recorded a

finding that the claimants have proved that the

deceased-Mallappa met with an accident occurred on

05.09.2011 and sustained grievous injuries and

succumbed to the injuries and the accident was occurred

due to rash and negligent driving of the driver of the

tractor and trailer. The Tribunal further held that the

claimants are entitled for compensation and

consequently allowed the claim petition and awarded

compensation of Rs.5,11,000/- with interest at the rate

of 6% per annum from the date of petition till its

realisation. The Tribunal further held that the second

respondent/Insurance company is directed to deposit

the compensation.

8. The second respondent/Insurance company

being aggrieved by the judgment and award passed by

the Tribunal has filed this appeal challenging liability.

9. Heard the learned counsel for the second

respondent/Insurance company, the learned counsel for

the claimants.

10. Learned counsel for the second

respondent/Insurance company submits that the driver

of the offending vehicle was not possessing a valid and

effective driving licence as on the date of the accident

and the police have filed the charge sheet. The charge

sheet discloses that the driver of the offending vehicle

was not possessing a driving licence. The second

respondent submits that there is violation of policy

conditions. He further submits that Insurance company

is liable to indemnify the first respondent and to recover

the compensation amount awarded by the Tribunal from

the first respondent. In view of law laid down by the

Hon'ble Apex Court in the case of Pappu and Others

vs. Vinod Kumar Lamba and Another reported in

2018 (3) SCC 208. Hence, on these grounds second

respondent/Insurance company prays to allow the

appeal.

11. Per contra, the learned counsel for the

claimants submits that the charge sheet is filed against

the driver of the offending vehicle. If there is no driving

licence, Insurance company being the insurer is liable to

indemnify the first respondent and to recover the

compensation amount from the first respondent. Hence

placing reliance on the judgment of the Hon'ble Apex

Court in the case of Pappu (supra), prays to dismiss the

appeal.

12. I have perused the records and considered

the submissions made by the learned counsel for the

parties. The point that arises for consideration is with

regard to liability.

13. The occurrence of the accident, involvement

of the offending tractor and trolley in the accident and

death of the deceased-Mallappa are not in dispute. In

order to prove that the accident occurred due to the

rash and negligent driving of the driver of the offending

vehicle, the claimants have produced copy of the FIR

and charge sheet which are marked as Exs.P1 and P3.

Ex.P3/charge sheet discloses that the accident occurred

due to rash and negligent driving of the driver of the

offending vehicle. Therefore, the Tribunal is justified in

recording a finding that the accident occurred due to

rash and negligent driving of the driver of the offending

vehicle.

14. Insofar as liability is concerned, the second

respondent/Insurance company has taken specific

defence in the written statement that the driver of the

offending vehicle was not possessing a valid and

effective driving licence as on the date of the accident or

at any point of time. Further, the Tribunal has issued a

notice to first respondent, inspite of service of notice

first respondent remained absent. The first respondent

has not produced any records to show that the driver of

the offending vehicle was possessing a valid and

effective driving licence as on the date of the accident.

Further, the second respondent/Insurance company has

examined its Administrative Officer as RW.1 who has

deposed that the driver of the offending vehicle was not

possessing a valid and effective driving licence as on the

date of the accident. The said fact has not been

seriously disputed by the claimants, except denying the

same. The claimants have produced a copy of

chargesheet, which is marked as Ex.P3. Ex.P3 discloses

that the driver of the offending vehicle was not

possessing valid and effective driving licence as on the

date of the accident. The owner of the vehicle handed

over the offending vehicle to an unauthorised person

who was not holding a valid and effective driving licence.

Thus there is violation of policy conditions. The Tribunal

has committed an error in saddling the liability on the

second respondent. This Court holds that the second

respondent has proved that the first respondent has

violated the terms and conditions of the policy. In view

of the law laid down by the Hon'ble Apex Court in the

case of Pappu (supra), wherein the Hon'ble Apex Court

held that if a person is driving the vehicle without

driving licence, it amounts to violation of policy

conditions and second respondent being the insurer is

liable to indemnify the insured and recover the same

from the insured.

15. In view of the above discussion, the appeal is

allowed in part. The judgment and award passed by the

Tribunal is modified. The liability fastened on the

second respondent/Insurance company is set aside. The

liability is saddled on the first respondent/owner. The

second respondent/Insurance company is directed to

deposit the compensation amount, awarded by the

Tribunal, within a period of eight weeks from the date of

receipt of copy of this judgment. However, liberty is

reserved to the second respondent/Insurance company

to recover the compensation amount from the owner, in

accordance with law.

16. The amount in deposit is directed to be

transferred to the Tribunal.

17. Registry is directed to transmit the Trial

Court Records, forthwith.

Sd/-

JUDGE VNR