Karnataka High Court
National Insurance Co. Ltd, vs Vithal And Ors on 29 June, 2021
Author: Ashok S. Kinagi
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF JUNE, 2021
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
MFA No.201025/2018 (MV)
BETWEEN:
NATIONAL INSURANCE CO. LTD,
2ND FLOOR, VEERBHADRESHWAR CHAMBERS
OPP. NEHRU STADIUM, BIDAR
THROUGH ITS DIVISIONAL MANAGER
BILGUNDI COMPLEX, OPP. D.C. OFFICE
MAIN ROAD, KALABURAGI
... APPELLANT
(BY SRI S.S.ASPALLI, ADVOCATE)
AND:
1. VITHAL S/O TIPPANNA SIRASGI
AGE: 62 YEARS, OCC: AGRICULTURE
2. SHIVAKANTABAI
W/O TIPPANNA SIRASGI
AGE: 58 YEARS, OCC: H.H.WORK
3. KAVERI
W/O KALYANI @ KALLAPPA SIRASGI
AGE: 26 YEARS, OCC: H.H.WORK
4. TIPPANNA
S/O KALYANI @ KALLAPPA SIRASGI
2
AGE: 10 YEARS, MINOR
5. LAKAMMA
D/O KALYANI @ KALLAPPA SIRASGI
AGE: 8 YEARS MINOR
6. TEJAMMA
D/O KALYANI @ KALLAPPA SIRASGI
AGE: 6 YEARS MINOR
7. VISHNUVARDHAN
S/O KALYANI @ KALLAPPA SIRASGI
AGE: 4 YEARS MINOR
RESPONDENT NOS.4 TO 7 ARE U/G
OF THEIR GENETIC MOTHER I.E.,
RESPONDENT NO.3
ALL ARE R/O VILLAGE KERI AMBALGA
TQ. ALAND, DIST. KALABURAGI - 585302
8. JEEVANSINGH
S/O PRABHU SINGH
AGE: 52 YEARS, OCC: BUSINESS &
OWNER OF LORRY BEARING
NO.KA-29/A-999, R/O H.NO.261
MUDHOL 'B', TQ. AURAD - 585101
DIST. BIDAR
... RESPONDENTS
(BY SRI SANTOSH H. PATIL, ADVOCATE FOR R1 TO R3;
R4 TO 47 ARE MINORS REPRESENTED BY R3;
R8-SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MV ACT PRAYING TO SET
ASIDE THE JUDGMENT AND AWARD DATED 05.02.2018
PASSED BY THE SENIOR CIVIL JUDGE MOTOR ACCIDENT
CLAIMS TRIBUNAL, ALAND, IN MVC NO.447/2016 BY
ALLOWING THE ABOVE APPEAL.
3
THIS APPEAL COMING ON FOR ORDERS, 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 05.02.2018 passed by the Senior Civil
Judge and Motor Accident Claims Tribunal, Aland, (for
short hereinafter referred to as 'the Tribunal') in MVC
No.447/2016.
2. Parties are referred to as per their ranking
before the Tribunal.
3. Facts giving rise to filing of this appeal are
as under:
On 30.01.2016 at about 9.00 p.m., the deceased
Kalyani @ Kallappa was proceeding on motorcycle
bearing registration No.KA-32/S-5417 from Keri
Ambalga to Kalaburagi. When he was near Central
University Gate, a lorry bearing registration No.KA-29-
A-999 came in a high speed and in a rash and
negligent manner and dashed to the motorcycle of the
deceased. Due to which, the said Kalyani @ Kallappa
sustained grievous injuries and died on the spot. The
claimants being the legal representatives of the
deceased have filed claim petition under Section 166
of the Act seeking compensation.
4. The first respondent/owner filed written
statement denying the averments made in the claim
petition and also denied the relationship of the
claimants with the deceased and denied the age and
income of the deceased. It was contended that the
driver of the lorry was having valid and effective
driving licence as on the date of the accident and that
the vehicle involved in the accident is insured with the
second respondent/Insurance company and prayed to
dismiss the claim petition against the first respondent.
5. The second respondent/Insurance company
filed written statement denying the averments made
in the claim petition and denied the age and income of
the deceased as well as dependency of the claimants
on the deceased. It also denied the manner in which
the accident has taken place and denied that the
accident occurred due to rash and negligent driving of
the driver of the lorry. It was further contended that
the driver of the offending vehicle was not possessing
valid and effective driving licence as on the date of the
accident. The second respondent/Insurance company
issued notice to the first respondent to produce the
driving licence of the driver of the offending vehicle.
Inspite of service of notice, the first respondent has
failed to produce the document. Since the owner of
the vehicle has handed over the vehicle to a person
who was not holding driving licence as on the date of
the accident, the first respondent/owner of the
offending vehicle has violated the terms and
conditions of the policy and prayed to dismiss the
claim petition.
6. The Tribunal, on the basis of the pleadings,
framed the following issues:
i. Whether the claimants prove that on
30.01.2016 at about 09.00 p.m. one
Kalyani @ Kallappa S/o Vittal Sirasgi
was proceeding on his motor cycle
bearing No.KA-32 S-5417 from
Keriambalga to Kalaburagi via
Kadaganchi along with his minor
children, near central University gate
a Lorry bearing No.KA-29 A-999 being
driven by its driver in rash and
negligent manner and dashed to the
motor cycle in the result Kalyani @
Kallappa sustained grievous multiple
fracture and head injury and injury to
all over the body and he died on the
hospital?
ii. Whether the respondent No.2 proves
that accident was caused due to the
rider of motor cycle bearing No.KA-32
S-5417 as such owner of the motor
cycle and its insurer are the
necessary parties to the petition?
iii. Whether the respondent No.2 proves
that the driver of the said vehicle was
not holding valid license as on the
date of alleged accident has such
Resp.No.2 Insurance company is not
liable to pay compensation to the
claimant/petitioners?
iv. Whether the claimant is entitled for
compensation? If so, at what
quantum and from whom?
v. What order or award?
7. The claimants examined claimant No.1 as
PW.1 and got marked the documents as Exs.P1 to
P10. The second respondent examined its officer as
RW.1 and got marked the documents as Exs.R1 to
R10.
8. The Tribunal after recording the evidence
and after considering the material on record, recorded
a finding that the claimants have proved that the
deceased-Kalyani @ Kallappa died in the accident
which occurred, on 30.01.2016, due to rash and
negligent driving of the driver of the offending lorry
and the second respondent has failed to prove that
the accident occurred due to the rider of the
motorcycle/deceased and as such, the owner and
insurer of the motorcycle are necessary parties to the
petition and held that the claimants are entitled to
compensation and awarded compensation of
Rs.13,89,875/- with interest at the rate of 6% per
annum from the date of claim petition till the date of
its realization and also held that the respondents are
jointly and severally liable to pay compensation.
9. Being aggrieved by the judgment and
award passed by the Tribunal, the second
respondent/Insurance company has filed this appeal
challenging the liability.
10. Heard the learned counsel for the second
respondent/Insurance company and the learned
counsel for the claimants.
11. The learned counsel appearing for the
second respondent/Insurance company submits that
the driver of the offending lorry was not possessing
valid and effective driving licence as on the date of the
accident and further, the notice dated 12.08.2016 was
issued to the first respondent calling upon the first
respondent to furnish particulars about the accident
and also to furnish driving licence, registration
certificate and fitness certificate. The said show cause
notice was received by the first respondent. Inspite of
the same, the first respondent failed to furnish the
driving licence of the driver of the offending vehicle.
Hence, he submits that the offending vehicle was
driven by a person who was not having valid and
effective driving licence hence, there is violation of the
policy conditions. On this ground, he prays to allow
the appeal.
12. Per contra, the learned counsel for the
claimants supports the impugned judgment and award
passed by the Tribunal and submits that the Tribunal
was justified in fastening the liability on the Insurance
company i.e., the second respondent and prays to
dismiss the appeal.
13. 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.
14. The occurrence of the accident and the
death of the deceased-Kalyani @ Kallappa in the said
accident and involvement of the offending vehicle in
the accident are not in dispute. The claimants have
produced copy of FIR, complaint, further statement of
the complainant, charge sheet, copy of mahazar, IMV
report, PM report and they are marked as Exs.P1 to
P7. Exs.P1 and P4 disclose that the accident occurred
due to rash and negligent driving of the driver of the
offending vehicle.
15. Insofar as liability is concerned, the second
respondent/insurer has filed written statement
wherein the respondent has taken specific defence
that the driver of the offending vehicle was not
possessing valid and effective driving licence as on the
date of the accident and further it was pleaded that
the second respondent has issued show cause notice
calling upon the first respondent to furnish the
document such as driving licence, registration
certificate, fitness certificate. The said show cause
notice was served on the first respondent. Inspite of
service of notice, the first respondent failed to produce
the documents. The first respondent filed written
statement contending that the driver of the said
vehicle was having valid and effective driving licence
to drive the type of vehicle involved in the accident.
Except filing written statement, the first respondent
has not entered into witness box and has not
produced any record to show that the driver of the
offending vehicle was having valid and effective
driving licence as on the date of the accident. The
second respondent examined its officer as RW.1 who
in the examination in chief deposed that the driver of
the offending vehicle was not possessing valid and
effective driving licence as on the date of the accident
and there is no cross-examination by the first
respondent on the said aspect. The Tribunal without
considering the said aspect has committed an error in
fastening the liability on the Insurance company.
Considering the evidence of RW.1 and also documents
produced by the second respondent, this Court holds
that the driver of the offending vehicle was not
possessing valid and effective driving licence as on the
date of the accident. The offending vehicle was
insured with the second respondent/Insurance
company as on the date of the accident and the
insurance policy was in force as on the date of the
accident. When the insurance policy was in force as
on the date of the accident, if a person was driving the
vehicle without holding valid driving licence, the
Insurance company is liable to indemnify the first
respondent and has to recover the same from the first
respondent in view of the 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.
16. In view of the above discussion, I proceed
to pass the following:
ORDER
i. The appeal is allowed.
ii. The impugned judgment and award
passed by the Tribunal is modified.
iii. The liability is fastened on the first
respondent/owner. Further, the
second respondent is directed to pay
compensation amount awarded by the
Tribunal to the claimants, at the first
instance and liberty is reserved to the
second respondent to recover the
same from the first respondent/owner
of the vehicle, in accordance with law.
iv. The amount in deposit be transmitted
to the Tribunal.
In view of disposal of the appeal, I.A.No.1/2020
for release of award amount/deposited amount does
not survive for consideration.
Sd/-
JUDGE
NB*
