The National Insurance Co. Ltd vs Basherunnisa W/O : M. Hidayuthula
2022 Latest Caselaw 1548 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

      DATED THIS THE 2 N D DAY OF FEBRUARY, 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

               M.F.A. No.20106/2010 (MV)

BET WEEN

THE NAT IONAL INSU RANCE COMPANY LIMIT ED,
REP.B Y ITS B RANCH MANAGER,
PARVATH I NAGAR, B ALLARI,
REP.B Y ITS DIVIS IONAL MANAGER,
THE NAT IONAL INSU RANCE COMPANY LIMIT ED,
2 N D FLOOR, SHANBHAG COMPLEX ,
OPPOS ITE TO GLA SS HOU SE,
HU BB ALLI, DIST: DHARWAD.
                                              ...APPELLANT
(BY SRI S.K.KAYAKAMATH, ADVOCATE)

AND

1.    B ASHEERU NNISA W/O M.HIDAYU THULA ,
      AGE: 43 YEARS, HOUSEWIFE,
      R/O DOOR No.1, WARD NO.25,
      NEW TRUNK ROAD, CONTONMENT,
      B ALLARI.

2.    M.HIDAYUT HU LA S/O ABDUL MAJEED,
      AGE: 57 YEARS, EX ECUT IVE ENGINE ER,
      CONSU MER SERVICE CENT RE, GESCOM,
      R/O DOOR NO.1, WARD NO.25,
      NEW TRUNK ROAD, CONTONMENT,
      B ALLARI.

3.    N.KUMAR @ RAMAKRISHNA,
      S/O HANUMANTHAPPA,
      AGE: 29 YEARS,
      OWNER AND DRIVER OF HERO HONDA
      SPLEND OR BEARIN G REG.NO.KA-34/
      R-2143, R/O B ANDIHATT I,
                                 2




     COWL B AZ AAR, B ALLAR I.
                                       ...RESPONDENTS
(BY SRI K.RAVHAVENDRA RAO AND
 SMT.V.VIDYA, ADVOCATES FOR R1 AND R2;
 SRI HANUMANTHAREDDY SAHUKAR, ADV.FOR R3)

      THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 03.10.2 009 PASS ED IN
MVC No.281/ 2007 ON T HE F IL E OF THE PR INCIPAL
DISTR ICT JUDGE AND MOT OR ACCIDENT CLAIMS T RIBU NAL-
I, B ALLR I, AWA RDING COMPENS ATION OF ` 6,10,000/-
ALONG WITH INT EREST @ 6% P.A . FROM THE DAT E OF
PET IT ION T ILL REALIZ ATION.

     THIS APPEAL COM ING ON F OR F INAL HEAR IN G, THIS
DAY THE COU RT DELIVERED THE FOLLOW ING:

                            JUDGMENT

This app eal is preferred by the insurer of the

offending motorcycle b earing registration No.KA-34/

R-2143 challenging the judgment and award dated

03.10.2009 passed in MVC No.281/2007 by the Court

of Principal District Judge and MACT-I, Ballari

(hereinafter referred to as the 'Tribunal', for brevity)

insofar as it relates to saddling of liability to pay the

compensation.

2. The parties to this appeal are referred to by

their rankings assigned to them before the Tribunal

for the sake of convenience.

3. Brief facts of the case that would be

relevant for the purpose of disposal of this appeal

are:

The claimants had filed MVC No.281/2007 under

Section 166 of the Motor Vehicles Act, 1988 (for

short, the 'Act') claiming a compensation of

`1,20,00,000/- with interest from the respondents

who are the owner and insurer of the offending

motorcycle bearing registration No.KA-34/R-2143, in

respect of the death of deceased Mohammed

Thouseef Irfan who was the son of the claimants. It

is the case of the claimants that deceased Mohammed

Thouseef Irfan was riding his motorcycle bearing

registration No.CTY-2464 on 15.12.2006 on Ballari-

Siruguppa road and at about 1.00 p.m. the offending

motorcycle bearing registration No.KA-34/R-2143

which was driven in a rash and negligent manner by

its rider dashed against the motorcycle of deceased

Mohammed Thouseef Irfan and caused the accident.

In the said accident, Mohammed Thouseef Irfan

suffered grievous injuries and he was immediately

shifted to VIMS Hospital, Ballari wherein he

succumbed to the injuries on 16.12.2006. The

deceased was the only son of the claimants and it is

stated he was an engineering student. The Tribunal

partly allowed the claim petition and awarded a

compensation of `6,10,000/- with interest at 6% per

annum from the date of petition till realization and

saddled the liability to pay the award on the

respondent No.2-insurer with liberty to recover the

same from respondent No.1-owner of the offending

vehicle. Being aggrieved by the judgment and award

insofar as it relates to liability, the present appeal is

filed.

4. Learned counsel for the appellant-insurer

submits that the rider of the offending motorcycle did

not possess valid and effective driving licence as on

the date of accident and therefore the Tribunal was

not justified in saddling the liability to pay the

compensation amount on the insurer and recover the

same from the owner. He submits that the Tribunal

ought to have exonerated the liability of the insurer

completely and accordingly he prays to allow the

appeal.

5. Per contra, learned counsels appearing for

respondents No.1 and 2 as well as respondent No.3

jointly submit that the deceased was a third party

and therefore the Tribunal was justified in directing

the insurer of the offending motorcycle to pay and

recover the compensation amount. They submit that

having regard to the judgment of the full bench of

this Court in the case of New India Assurance

Company Limited V/s Yallavva and another

reported in 2020(2) KCCR 1405 (FB), there is no

merit in this appeal. Accordingly, they pray to

dismiss the appeal.

6. I have given my anxious consideration to

the arguments addressed on both sides and also

perused the material available on record.

7. The undisputed facts of this case are on

15.12.2006 when the deceased Mohammed Thouseef

Irfan was traveling in his motorcycle bearing

registration No.CTY-2464, the offending motorcycle

bearing registration No.KA-34/R-2143 owned by the

1 s t respondent and insured by the 2 n d respondent had

dashed against the motorcycle of the deceased

Mohammed Thouseef Irfan and had caused the

accident and as a result of the injury sustained in the

accident, Mohammed Thouseef Irfan had succumbed

to the same. The involvement of the offending

motorcycle in the said accident is not in dispute, so

also the fact that the appellant-insurer had issued

insurance policy in respect of the offending vehicle

which was valid and in force as on the date of

accident.

8. As rightly contended by the learned

counsels appearing for respondents No.1 to 3, the

deceased Mohammed Thouseef Irfan was a third party

and therefore though the rider of the offending

motorcycle did not possess a valid and effective

driving licence as on the date of accident having

regard to the judgment of full bench of this Court in

the case of Yallavva, the Tribunal is completely

justified in saddling the liability to pay the

compensation on the insurer of the offending vehicle

with liberty to recover the same from the owner.

Under the circumstances, I find no illegality or

irregularity in the impugned judgment and award

passed by the Tribunal insofar as it relates to

saddling the liability to pay the compensation amount

on the insurer of the offending motorcycle with

liberty to recover the same from the owner of the

offending motorcycle. Therefore, the appeal is liable

to be dismissed. Accordingly, appeal is dismissed.

The amount in deposit is directed to be

transferred to the Tribunal for the purpose of

disbursement.

Sd/-

JUDGE CLK