Chola-Ms General Insurance Co. ... vs Shivalingamma And Ors
2022 Latest Caselaw 6013 Kant

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            THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

       DATED THIS THE 4TH DAY OF APRIL, 2022
                           BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

               MFA No.201931/2018 (MV)

Between:

Chola-MS General Insurance Co. Ltd.,
Dare House, II Floor, NSC Bose Road,
Chennai-01.
(Authorised Signatory)
                                               ... Appellant
(By Sri. Subhash Mallapur, Advocate)

And:

1.     Shivalingamma W/o Late. Basappa,
       Age: 26 years, Occ: Household,

2.     Devaki W/o Sharanappa,
       Age: 59 years, Occ: Household,

3.     Sharanappa S/o Jetteppa Naikodi,
       Age: 64 years, Occ: Household,
       All R/o Siranoor Village, Tq. & Dist.
       Kalaburagi-585 102.

4.     Rajshekar S/o Annarao,
       Age: 49 years, Occ: Owner of
       Tractor & Trailer No.KA-32/TA-3959,
       R/o Bhusnoor village,
       Tq: Aland, Dist: Kalaburagi-585 102.
                                          ... Respondents
(By Sri. B.Ali Mohammed, Advocate for R1 to R3;
     R4 served)
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       This Miscellaneous First Appeal is filed under Section
173(1) of the MV Act praying to allow the above appeal
and consequently be pleased to set aside the judgment
and award dated 02.07.2018 passed by the I Addl. Senior
Civil Judge & MACT, Kalaburagi in MVC No.781/2014.

      This appeal coming on for Admission, this day, the
Court delivered the following:-


                       JUDGMENT

This appeal is filed under Section 173(1) of the

Motor Vehicles Act, 1988 (hereinafter referred to as

'the Act', for short) by the respondent No.2-Insurance

Company, challenging the judgment and award dated

02.07.2018 passed in MVC No.781/2014 by the I Addl.

Senior Civil Judge & Member, MACT, Kalaburagi,

(hereinafter referred to as 'the Tribunal', for short).

2. For the sake of convenience, parties are

referred to as per their ranking before the Claims

Tribunal. Appellant is respondent No.2, respondent

Nos.1 to 3 are petitioner Nos.1 to 3 and respondent

No.4 is respondent No.1 before the Tribunal.

3. Facts giving rise to the filing of the appeal

briefly stated are;

That on 24.12.2013, the deceased after finishing

the driving work on a tractor bearing registration

No.KA-28/TA-3959 belonging to respondent No.1

handed over the said tractor to another driver

Mallappa. While the deceased was alighting from the

said tractor, at about 7.30 p.m., the said driver

Sharanappa immediately driven it with high speed and

in a rash and negligent manner without seeing the

deceased. Due to which, the deceased fell down and

big wheel of the tractor ran over the deceased. As a

result, the deceased sustained injuries and succumbed

to the injuries on the spot.

4. The petitioners being the legal

representatives of deceased filed a petition under

Section 166 of the M.V. Act seeking compensation for

the death of the deceased in the road traffic accident.

5. In spite of service, respondent No.1 did not

appear before the tribunal and placed ex-parte. The

respondent No.2 filed written statement denying the

averments made in the petition and denied the age,

avocation and monthly income of the deceased,

relationship with the deceased, dependency, the

nature of accident. It is contended that the driver of

the offending vehicle was not having valid and

effective driving licence as on the date of the accident

and prayed to dismiss the claim petition.

6. In order to prove their case, petitioner No.1

is examined as PW-1 and got marked documents

namely Ex.P1 to Ex.P7. The respondent No.2 has

examined their legal officer as RW.1 and got marked

two documents as Exs.R1 and R2.

7. On the basis of the pleadings of the

parties, the Tribunal framed the issues and thereafter

recorded the evidence and considering the material on

record held that petitioners have proved that the

accident was occurred due to rash and negligent

driving of the driver of the offending vehicle and held

that the petitioners are entitled for compensation and

consequently allowed the petition in part and awarded

the compensation of Rs.12,27,400/- with interest @

6% p.a. from the date of petition till realization and

further held that respondent Nos.1 and 2 are jointly

and severally liable to pay compensation. Being

dissatisfied with the compensation awarded by the

Tribunal, the respondent No.2 filed the present

appeal.

8. Heard the learned counsel for respondent

No.2 and the learned counsel for petitioners.

9. The learned counsel for the respondent

No.2 submits that there was negligence on the part of

the deceased as he was alighting from the vehicle.

Hence, he submits that the deceased was travelling on

the tractor and seating capacity of the tractor involved

in the accident is only one i.e. driver and there is no

coverage for un-authorized passenger travelling in the

tractor. Hence, on these grounds he prays to allow the

appeal.

10. Per contra, learned counsel for the

petitioners submits that the tribunal was justified in

passing the impugned judgment and award. He

further submits that there was no negligence on the

part of the deceased. He submits that the deceased

after completing his duty, the deceased climbed the

tractor to give chit to Mallappa and suddenly the

driver of the tractor without observing has rashly

driven the vehicle in a rash and negligent manner and

hence the accident was occurred due to rash and

negligent driving of the driver of the tractor. He

submits that the tribunal was justified in passing the

impugned judgment and award. Hence, prays to

dismiss the appeal.

11. Heard and perused the records and

considered the submission made by the learned

counsel for the parties.

12. The point that arise for consideration is

with regard to liability.

13. It is an admitted fact that the deceased

Basappa met with an accident that occurred due to

rash and negligent driving of the driver of the tractor

bearing registration No.KA-28/TA-3959. In order to

establish that the accident was occurred due to rash

and negligent driving of the driver of the offending

vehicle, the petitioners have produced copy of charge

sheet, which marked as Ex.P3. Ex.P3, discloses that

the accident was occurred due to rash and negligent

driving of the driver of the offending vehicle. The

respondent No.2 has taken a specific defence in the

written statement that the deceased was not a driver

at the time of accident and one Mallappa was the

driver of the tractor. It is the case of the petitioners

that the deceased climbed the tractor to give chit to

Mallappa and after giving chit, when he alighting from

the tractor, the driver of the tractor without observing

rashly moved the tractor. In order to prove the

defence of the respondent No.2, respondent No.2 has

not examined any eyewitnesses. Further, from perusal

of the records produced by the petitioners, it is made

clear that the deceased was not travelling on the

tractor engine, but when he was alighting from the

engine after handing over chit the accident occurred.

Further, it is not the case of respondent No.2 that the

deceased was travelling on the tractor engine. After

considering the material on record, the tribunal was

justified in recording a finding that respondent Nos.1

and 2 are jointly and severally liable to pay

compensation and respondent No.2 being the insurer

is liable to indemnify the respondent No.1. Hence, the

impugned judgment and award passed by the tribunal

is just and proper. I do not find any grounds to

interfere with the impugned judgment and award

passed by the tribunal.

Accordingly, the appeal is dismissed.

The amount in deposit to be transmitted to the

tribunal forthwith.

In view of the disposal of appeal, IA.No.1/2018

does not survive for consideration.

Sd/-

JUDGE

msr