The Branch Manager vs Smt Shivamma
2021 Latest Caselaw 2077 Kant

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 1ST DAY OF JUNE, 2021

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                  M.F.A.NO.839/2013 (MV)

BETWEEN:

THE BRANCH MANAGER,
ICICI LOMBARD GEN INS CO. LTD.,
MYTHRI ARCADE,
NEW KANTHARAJ URS ROAD, MYSURU.
NOW REPRESENTED BY ITS
LEGAL MANAGER,
ICICI LOMBARD GIC LTD.,
# 89, II FLOOR, SVR COMPLEX,
HOSUR MAIN ROAD, MADIVALA,
BENGALURU-68.                                 ... APPELLANT

              (BY SRI B. PRADEEP, ADVOCATE)

AND:

1.     SMT. SHIVAMMA,
       W/O SHIVAPPACHARI,
       NOW AGED ABOUT 50 YEARS.

2.     SHIVAPPACHARI,
       S/O LATE SINGHACHARI,
       NOW AGED ABOUT 65 YEARS.

       BOTH ARE RESIDING AT
       KALAMMA TEMPLE STREET,
       HINKAL VILLAGE & POST,
       MYSURU-570017.

3.     AZEEZ KHAN,
       S/O GHOUSE KHAN,
                                 2



      NOW AGED ABOUT 50 YEARS,
      R/O NO.7B, JALAMANGALA CROSS ROAD,
      GEETHA EXTENSION,
      RAMANAGARAM TOWN & DISTRICT.
                                       ... RESPONDENTS

   (R-1 AND R-2 ARE SERVED THROUGH PAPER PUBLICATION
              VIDE ORDER DATED 16.10.2017;
       NOTICE TO R-3 IS DISPENSED WITH VIDE ORDER
                     DATED 26.07.2017)

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 26.11.2012
PASSED IN MVC.NO.522/2012 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-I, MEMBER, ADDITIONAL MACT,
MYSURU,AWARDING COMPENSATION OF Rs.4,12,500/- WITH
INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
REALIZATION.

     THIS M.F.A. COMING ON FOR ADMISSION THROUGH
VIDEO CONFERENCE THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                        JUDGMENT

Though this matter is listed for admission today, with the

consent of the learned counsel for the appellant it is taken up for

final disposal.

2. This appeal is filed challenging the judgment and

award dated 26.11.2012 passed in M.V.C.No.522/2012 on the

file of the Fast Track Court-I and Additional MACT, Mysore ('the

Tribunal' for short) challenging the fastening of the liability on

the Insurance Company.

3. The parties are referred to as per their original

rankings before the Tribunal to avoid the confusion and for the

convenience of the Court.

4. The factual matrix of the case is that the claimants

had filed a petition under Section 163-A of the Motor Vehicles

Act ('MV Act' for short) before the Tribunal claiming

compensation contending that in the road traffic accident which

took place on 21.09.2007 at 7.00 p.m. on Mysore -

Manandavadi Road, Kolagala Gate, near the land of one

Kendagannaswamy, H.D. Kote Taluk caused the death of one Sri

Narasimhachari @ Vasu. Hence the claimants had filed the claim

petition before the Tribunal. The same was opposed by

respondent No.2 Insurance Company by filing a detailed

objection statement. The claimants in order to substantiate their

claim, examined one witness as P.W.1 and got marked the

documents at Exs.P.1 to 8 and the respondents examined one

witness as R.W.1 and got marked the documents at Exs.R.1 to

5. The Tribunal after considering both oral and documentary

evidence placed on record, awarded compensation of

Rs.4,12,500/- with interest at the rate of 6% per annum from

the date of petition till the date of realization fastening the

liability on respondent No.2 Insurance Company. Hence, the

present appeal is filed before this Court by respondent No.2.

5. The main contention of the learned counsel for the

appellant in this appeal is that the Tribunal has committed an

error in ignoring the police documents which clearly indicate that

the deceased was the author of the accident and the deceased

was not having driving licence as on the date of the accident.

He was carrying more than one pillion rider as against the

seating capacity. Hence, the award passed by the Tribunal

fastening the liability on the Insurance Company is erroneous.

6. The respondents did not choose to appear before this

Court inspite of service of note.

7. Having heard the arguments of the learned counsel

for the appellant, the point that arise for the consideration of this

Court is:

(i) Whether the Tribunal has committed an error in fastening the liability on the Insurance Company?

(ii) What Order?

8. Having heard the learned counsel for the appellant

and also on perusal of the material on record, the claim petition

is filed under Section 163-A of the MV Act. The main contention

of the Insurance Company is that the Tribunal failed to consider

the material on record and erroneously fastened the liability on

the Insurance Company ignoring the documents which clearly

discloses that the abated charge-sheet has been filed against the

deceased and he himself was the author of the accident. The

Apex Court in its judgment in the case of UNITED INDIA

INSURANCE COMPANY LIMITED v. SUNIL KUMAR AND

ANOTHER reported in (2014) 1 SCC 680 has categorically held

that in a claim petition filed under Section 163-A of the MV Act,

the Insurance Company cannot raise the issue of negligence on

the part of the deceased and hence I do not find any force in the

contention of the appellant that the Tribunal has committed an

error in fastening the liability on the Insurance Company.

9. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is dismissed.

(ii) The amount in deposit, if any, is ordered to be transmitted to the concerned Tribunal forthwith.

(iii) The Registry is directed to transmit the Trial Court Records to the concerned Tribunal, forthwith.

Sd/-

JUDGE

MD