The Divisional Manager, The ... vs Sayyad Subhan S/O Sadani Bellary
2022 Latest Caselaw 1408 Kant

                                                  MFA 21579/2012

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             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

        DATED THIS THE 1ST DAY OF FEBRUARY 2022

                             BEFORE

       THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

                  M.F.A.No.21579/2012 (MV)

BETWEEN:

The Divisional Manager,
The National Insurance Company Ltd.,
Divisional Office,
Sujata Complex, Hubli,
Now represented by its
Administrative Officer,
Regional Office, Hubli.                       ..APPELLANT

(By Sri Rajashekhar S.Arani, Adv.)

AND:

1.     Kumar Sayyad Subhan,
       S/o Sadani Bellary,
       Age: 16 years, Occ: Student,
       R/o Betageri-Gadag,
       Since minor represented by
       her natural mother Smt. Tahira,
       W/o Sayyad Samadani,
       Age: Major, Occ: Household work,
       R/o Betagiri-Gadag.

2.     Smt. Hazarnbee,
       W/o Habibulla Munshi,
       Age: Major, Occ: Household,
       R/o Ashok Road, Marwadi Chwal,
       Betageri-Gadag.                        ..RESPONDENTS

(By Sri K.M.Shiralli & T.R.Patil, Adv. for R-2;
    R-1 served and unrepresented)
                                              MFA 21579/2012

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      This miscellaneous first appeal is filed under Section
173(1) of the M.V.Act, 1988, against the judgment and award
dated 02.01.2012 passed in MVC No.251/2009 on the file of
the District Judge & Member, MACT, Gadag, awarding
compensation of `68,335/- with interest at the rate of 6% per
annum from the date of petition till the date of realization.

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

                         JUDGMENT

1. This appeal is filed by the Insurer of Motor Cycle

bearing registration No.KA-26-L-35 challenging the

judgment and award dated 02.01.2012 passed by the

District Judge and Motor Accident Claims Tribunal,

Gadag, in M.V.C.No.251/2009.

2. For the sake of convenience, the parties to this

appeal are referred to by their rankings assigned to them

before the Tribunal.

3. Brief facts of the case that would be relevant for the

purpose of disposal of this appeal are, the minor claimant

had filed M.V.C.No.251/2009 before the Tribunal under

Section 166 of the Motor Vehicles Act, 1988, claiming MFA 21579/2012

compensation for the injuries sustained by him in the

road traffic accident.

4. It is the case of the claimant that on 08.08.2009 at

about 2.30 p.m., when he was standing on the road side

along with his friend, the offending motor cycle bearing

registration No.KA-26-L-35 which was driven in a rash

and negligent manner, dashed against him and caused

the accident. In the said accident, the minor claimant had

suffered grievous injuries and he was immediately shifted

to CSI Hospital, Betageri, and thereafter, he was shifted to

Vivekananda Hospital, Hubballi. With regard to the

accident in question, a case was registered in Crime

No.25/2009 before the Gadag Traffic Police for the

offences punishable under Sections 279 & 338 IPC and

Section 187 of the Motor Vehicles Act. The Tribunal had

partly allowed the claim petition and awarded

compensation of `68,335/- with interest at 6% p.a. from

the date of petition till realization and saddled the liability

on the Insurer to pay the compensation amount. Being

aggrieved by the judgment and award insofar as it relates MFA 21579/2012

to saddling the liability, the Insurer is before this Court in

this appeal.

5. Learned counsel for the appellant - Insurer submits

that, Ex.P7, which is the discharge card, speaks about the

history of injury caused to the minor claimant, which is

totally different from the case made out before the

Tribunal. He submits that, as per Ex.P7, the injury was

sustained because of a fall at home and not because of

the accident and therefore the Tribunal was not justified

in entertaining the claim petition filed under Section 166

of the Motor Vehicles Act. He further submits that, the

rider of the offending motorcycle was not holding any

driving licence to drive the motorcycle as on the date of

the accident and therefore, a charge sheet has been filed

against him invoking Section 3 of the Motor Vehicles Act,

and therefore, the Tribunal ought not to have saddled the

liability on the Insurer to pay the compensation amount.

He accordingly prays to allow the appeal.

MFA 21579/2012

6. Learned counsel for the respondent No.2 - owner of

the offending vehicle, has argued in support of the

impugned judgment and award and prays to dismiss the

appeal. Respondent No.1 - claimant, though served in

this appeal, has remained absent.

7. I have carefully appreciated the rival arguments and

also perused the material on record.

8. The injured claimant was a minor aged 13 years as

on the date of the alleged accident. The material on

record would go to show that, the mother of the injured

minor had taken the injured to the hospital for the

purpose of treating him and in the discharge card dated

14.08.2009, issued by the Vivekananda General Hospital,

wherein the injured claimant was admitted, it is

mentioned that the patient was brought with a history of

self fall from a height of 5 feet at home. The police

complaint is given by the father of the injured minor with

regard to the alleged incident and on the basis of the said

complaint, FIR was registered against the rider of the MFA 21579/2012

offending motorcycle for the offences punishable under

Sections 279 and 338 of the IPC and Section 187 of the

Motor Vehicles Act. Subsequently, the police after

investigation have filed a charge sheet invoking Sections 3

and 181 of the Motor Vehicles Act, in addition to the

aforesaid Sections.

9. Though the learned counsel for the Insurer has

vehemently submitted before this Court that the injuries

were not caused to the minor claimant in the alleged

accident involving the offending motorcycle, but the same

was caused because of self fall at his home, no such

contention has been urged by the Insurer in its written

statement. A reading of the written statement would go to

show that, virtually the accident in question was

admitted, but it was contended that the pedestrian, who

had suffered the injuries, had caused the accident due to

his negligence. Further, it was also contended that the

rider of the motorcycle was riding the motorcycle at the

time of accident without holding a valid driving licence

and therefore, the Insurer was not liable to pay the MFA 21579/2012

compensation. In effect, the Insurer had virtually

admitted the accident in question. Even the owner of the

vehicle has not disputed the involvement of his vehicle in

the accident in question.

10. The mother of the minor claimant, who admittedly

took the injured minor to the hospital immediately after

he suffered injuries, has been examined before the

Tribunal as PW1. The Insurer has not elicited anything

from this witness so as to disbelieve the case put forward

by the minor claimant before the Tribunal. Not even a

suggestion has been made on behalf of the Insurer about

the false implication of the offending motorcycle in the

accident or that the injuries sustained by the minor was

not as a result of the accident in question, but because of

the self fall at home. It is for the first time such a

contention is being raised by the Insurer of the offending

vehicle before this Court and therefore, such a contention

cannot be appreciated in this appeal.

MFA 21579/2012

11. The material on record would go to show that the

minor claimant had suffered multiple fractures and

therefore, it is difficult to believe that, if a child falls from

the height of 5 feet, he would suffer such fracture injuries.

Therefore, I find no error in the finding recorded by the

Tribunal that the injuries were caused to the minor in the

alleged accident involving the offending motorcycle that

had taken place on 08.08.2009.

12. Insofar as the contention urged by the Insurer that

the Tribunal was not justified in saddling the liability to

pay the compensation on the Insurer of the offending

motorcycle is concerned, the material on record would go

to show that, as on the date of accident, the offending

motorcycle was duly insured by the appellant Insurer.

However, the fact remains that the rider of the motorcycle

had no valid driving licence to drive the offending

motorcycle as on the date of accident.

13. There is a specific contention raised by the Insurer

in its written statement to the effect that the rider of the MFA 21579/2012

motorcycle had no valid driving licence as on the date of

accident. The 1st respondent - owner of the motorcycle,

who had entered appearance before the Tribunal and had

filed her written statement, though admitted the accident

in question, had failed to produce the valid driving

licence, held by the rider of the motorcycle. In addition to

the same, the material on record would go to show that

the charge sheet has been filed against the rider of the

offending motorcycle invoking Section 3 of the Motor

Vehicles Act and therefore, it is very clear that, even

before the police, neither the rider of the motorcycle nor

the owner of the motorcycle, have produced any valid

driving licence held by the rider of the motorcycle as on

the date of accident. Since the motorcycle was used in

violation of the terms and conditions of the policy, the

Tribunal while saddling the liability to pay the

compensation on the Insurer ought to have reserved the

liberty to the Insurer to recover the same from the owner

of the motorcycle and therefore, to that extent, the MFA 21579/2012

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judgment and award passed by the Tribunal is required to

be modified. Accordingly, the following order:

ORDER

The appeal is allowed in part.

It is held that the Appellant-Insurer is entitled to

pay and recover the compensation amount awarded by

the Tribunal from the owner of the offending motorcycle

bearing registration No.KA-26/L-35.

The amount in deposit is directed to be transferred

to the Tribunal for the purpose of disbursement.

Sd/-

JUDGE

KK/gab