The Manager vs Khusbu And Ors
2022 Latest Caselaw 6075 Kant

                             1




          IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 5TH DAY OF APRIL, 2022
                         BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

              MFA No.200356/2018 (MV)

Between:

The Manager,
TATA AIG General Insurance Co. Ltd.,
501, 5th Floor, Building No.4,
Infinity Park, Dhindoshi, MALAD (E)
Mumbai.
through TATA AIG Gen. Insurance Co. Ltd.,
Bangalore.
Its Senior Executive Claims
                                               ... Appellant
(By Sri. S.S.Aspalli, Advocate)

And:

1.     Khusbu @ Khusnu W/o Ravindra Sanwe,
       Age: 31 years, Occ: Nil,
       R/o 433, Sriram Road, G.P.Chandwad,
       Tq. Chandwad, Dist. Naseek-422 001.

2.     Jaleel Miyan S/o Mastan Sab Carpenter
       Age: 63 years, Occ: Business,
       R/o Village Nandgaon, Tq. Humnabad,
       Dist. Bidar-585 401.

3.     Sonawale Ravindra S/o Vasanth,
       Age: 38 years, occ: Business,
       R/o Mahatma Phule Nagar,
       Ganur Road, at Post Chandwad,
       Tq. Chandwad, Dist. Nashik-423 101.
                              2




4.   The Divisional Manager,
     United India Insu. Co. Ltd.,
     Jawali Complex, Super Market,
     Gulbarga-585 101.
                                         ... Respondents
(Notice to R1, R3 & R4 are served;
By Sri. Babu H.Metagudda, Advocate for R2)

      This Miscellaneous First Appeal is filed under Section
173(1) of the M.V. Act praying to call for the records in
MVC No.115/2014 on the file of the Senior Civil Judge &
MACT Humnabad. Set aside the judgment and award
dated 31.08.2017 in MVC No.115/2014 passed by the
Senior Civil Judge & MACT Humnabad, by allowing the
above appeal.

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


                       JUDGMENT

This appeal is filed by the respondent No.2-

Insurance Company under Section 173(1) of the

Motor Vehicles Act (hereinafter referred to as the Act)

challenging the common judgment and award passed

by the Motor Accident Claims Tribunal, Humnabad,

(hereinafter referred to as 'the Tribunal' for short) in

MVC No.115/2015 dated 31.08.2017.

2. The parties are referred to per their

ranking before the Tribunal.

3. Facts giving rise to filing of this appeal are

as under:

On 07.05.2012 at 4.00 p.m., the petitioner

proceeding towards Tirupati Mandir for taking darshan

in the car bearing registration No.MH.15/CM-1608

have reacahed near Fakeer Tekda, Humnabad, on NH-

9, at that time, Tata Magic Motor Cab bearing

registration No.KA.39/6853 to Humnabad from

Hipparga Cross Road and the said vehicle was driven

in a rash and negligent manner by its driver, dashed

to the said vehicle and due to head on collision, the

said motor cab capsized and thereby the petitioner

sustained injuries and admitted to government

hospital at Humnabad and thereafter, she was shifted

to Yashodhara Super Speciality Hospital at Solapur

and spent huge amount for treatment. The petitioner

filed claim petition under Section 166 of the Act

seeking compensation.

4. Respondent Nos.1, 2 and 4 filed written

statement and respondent No.3 has not filed written

statement. Respondent No.1 has contended that the

petitioner and others were proceeding in a car at that

time the accident has taken place. It is also contended

that petitioner has filed a false case by creating

documents and as such the petition is not

maintainable. Further it is contended that the vehicle

was duly insured with respondent No.2 and driver was

having valid and effective driving licence. Hence, the

liability may be shifted on respondent No.2.

5. Respondent No.2/Insurance Company

contended and denied the nature of accident, the age

and income of the petitioner. It is contended that the

accident was occurred due to rash and negligent

driving of the driver of Tata Magic bearing registration

No.KA-39/6853 for which they are not liable to pay

compensation. Hence, prayed for dismissal of petition.

6. Respondent No.4/insurer of Car filed

written statement denying the averments made in the

claim petition and also denied the age, income,

occupation, funeral expenses and other contents of

the petition. It was contended that petitioner has not

furnished the policy particulars of the vehicle in

question and accident has not taken place due to the

rash and negligent act of the driver of car bearing

registration No.MH-15/1608. It is also contended that

the owner of the vehicle has violated the terms and

conditions of the policy and motor vehicle rules by

carrying passengers more than the capacity of the

said vehicle at the time of accident and prayed to

dismiss the claim petition.

7. The Tribunal framed the issues and

recorded evidence.

8. The petitioner in examined as PW.2 and got

marked documents Exs.P1 to P50. The claimant in

MVC No.125/2014 was examined as PW.1. The

respondent No.1 examined as RW.1 and got marked

the documents as Ex.R1.

9. The Tribunal after recording the evidence

and after considering the material on record recorded

a finding that the petitioner has proved that the

accident occurred due to rash and negligent driving of

driver of both the vehicles and that the petitioner has

sustained injuries in the said accident and respondent

No.2 being the insurer of the said tata magic and

respondent No.4 is the insurer of car are liable for

paying the said compensation amount to the

petitioner to the extent of 50% each out of the award

amount and held that the petitioner is entitled to

compensation and awarded compensation of

Rs.1,06,948/- along with interest at the rate of 6%

per annum from the date of claim petition till the date

of payment.

10. Respondent No.2/Insurance Company

aggrieved by the judgment and award passed by the

Tribunal has filed this appeal challenging the liability.

11. Heard the learned counsel for respondent

No.2/Insurance Company and the learned counsel for

the petitioner.

12. The learned counsel for respondent

No.2/Insurance Company submits that charge sheet

has been filed against the driver of the offending

vehicle Tata magic vehicle which was driven by its

driver in drunken condition and police have filed

charge sheet against the driver. The owner of the

vehicle has violated the conditions of the policy. He

further submits that the tribunal has committed an

error in fastening the liability jointly and severally on

respondent No.2. On these grounds, he prays to allow

the appeal.

13. Per contra, learned counsel for the

petitioner supports the impugned judgment and award

passed by the Tribunal.

14. I have perused the material on record and

considered the submissions of made by the learned

counsel for the parties. The point that arises for

consideration is with regard to liability.

15. The occurrence of the accident,

involvement of both the vehicles in the accident and

the petitioner having sustained injuries in the said

accident are not in dispute. The criminal case was

registered against drivers of both the vehicles. In

order to prove that the accident occurred due to rash

and negligent driving of drivers of both the vehicles,

the claimants have produced copy of FIR, copy of

complaint, spot panchanama, MVI report, charge

sheet and wound certificate and they are marked as

Exs.P1 to P6. From perusal of the said records, it

discloses that the accident occurred due to rash and

negligent driving of the drivers of both the offending

vehicles and both the drivers have equally contributed

for cause of accident.

16. The Tribunal on the basis of material on

record was justified in recording a finding that the

accident has taken place on contributory negligence of

both vehicles contributing 50% each. Further held

that respondent No.2 and respondent No.4 are being

the insurer of both vehicles are liable for payment of

compensation amount to the petitioners to the extent

of 50% each out of the award amount. The tribunal

was justified in passing impugned judgment and

award. I do not find any grounds to interfere with the

impugned judgment and award.

17. In view of the above discussions, I proceed

to pass the following:

ORDER

The appeal is dismissed.

In view of disposal of appeal, IA.No.2/2018 does

not survive for consideration.

Sd/-

JUDGE

msr