Karnataka High Court
Shri.S.B.Shivamurthy vs Shabir Ahamed And Ors on 8 February, 2022
Bench: S.R.Krishna Kumar, K S Hemalekha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF FEBRUARY 2022
PRESENT
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
AND
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
M.F.A. NO.202245/2018 (MV)
BETWEEN:
Shri S.B. Shivamurthy
S/o Shivachary Hiremath
Age: 36 Years, Occ: Priest of Matha
R/o Devapur, Tq. Shorapur
Dist. Yadgiri
... Appellant
(By Sri Krupa Sagar Patil, Advocate)
AND:
1. Shabir Ahmed
Age: Major, Occ: Owner of Truck
Bearing No.KA-38-7947
R/o Sha Gunj, Bidar -585 401
2. The Manager
New India Assurance Co. Ltd.
Sangameshwar Colony
S.B. Temple Road, Kalaburagi-585 103
3. Amrut G. Patne S/o Gurlingappa
Age: Major, Occ: Owner of Jeep
Bearing No.MH-13/5529
R/o Kumbhari, Tq. & Dist. Solapur
Maharashtra State-513 006
2
4. The Manager
New India Assurance Co. Ltd.,
Sangameshwar Colony
S.B. Temple Road, Kalaburagi-585 103
... Respondents
(By Smt. Shashikala Jahgirdar, Advocate for R2 & R4;
Notice to R1 & R3 dispensed with)
This Miscellaneous First Appeal is filed under Section 173 (1) of
MV Act, praying to set aside the judgment dated 23.08.2017 passed by
the Court of Senior Civil Judge & Addl. MACT, Shorapur in file bearing
MVC No.175/2013 and allow the claim petition as prayed.
This appeal coming on for Admission, this day,
S.R.Krishna Kumar J., delivered the following:
JUDGMENT
This appeal by the claimant in MVC No.175/2013 is
directed against the impugned judgment dated 23.08.2017
passed by the Senior Civil Judge & Addl. MACT, Shorapur
whereby the application in I.A.No.IV filed by the respondent
No.2-Insurance company under Order VII Rule 11(d) of Code
of Civil Procedure seeking rejection of the claim petition was
allowed by the Tribunal which consequently dismissed the
claim petition filed by the appellant-claimant.
2. Heard the learned counsel for the appellant and
learned counsel for the respondent Nos.2 and 4-Insurance
Companies and perused the material on record.
3. In additional to reiterating the various contentions
urged in the appeal and referring to the material on record
including the impugned order, learned counsel for the
appellant/claimant submits that the Tribunal committed a
grave and serious error of law and jurisdiction in allowing the
application-I.A.No.IV filed by the Insurance company for
rejection of the claim petition which is contrary to the well
settled principles of law relating to an application under Order
VII Rule 7(d) of CPC, which mandate that it is only the
averments made in the claim petition that have to be looked
into and not the averments made in the statement of
objections nor the affidavit/memorandum of facts in support of
the application filed under Order VII Rule 11 (d) of CPC. It is
further submitted that the deceased - Sri Suntreshwar
Shivacharya Mahaswamy was the Mathadipathi of Balal
Honnur Shrimad Rambapur Virsinhasan at the time of his
death and upon demise of the said Mathadipathi, the claimant
succeeded to the post of Mathadipathi and consequently the
claimant is his legal representative within the meaning of
Section 166 of the Motors Vehicle Act, 1988 read with Section
2(11) of the Code of Civil Procedure which is a wide and
omnibus definition including all persons who have even a
semblance of a right over the estate of the deceased. It is
therefore contended that the impugned order passed by the
Tribunal allowing the application filed by the Insurance
company and consequently dismissing the claim petition is
perverse and capricious and the same deserves to be set
aside.
4. Per contra, learned counsel for the Insurance
company would support the impugned order and submits that
there is no merit in the appeal and the same is liable to be
dismissed.
5. We have given our anxious consideration to the
rival submission and perused the material on record.
6. As rightly contended by the learned counsel for
the appellant/claimant, a perusal of the impugned order clearly
indicate that the Tribunal has committed an error of law and
jurisdiction in taking into account the averments made in the
statement of objections filed by the Insurance company as
well as the application I.A.IV and accompanying memorandum
of facts filed by the Insurance company in order to come to the
erroneous conclusion that the appellant/claimant is not the
legal representative of the deceased Suntreshwar
Shivacharya Mahaswamy. While doing so, the Tribunal has
failed to consider and appreciate the well settled principle of
law relating to consideration of application under Order VII
Rule 11 of CPC which postulates that it is only the averments
in the claim petition that can be looked into and not the
defence put forth by the Insurance company either in its
statement of objections to the main petition or in I.A.No.IV and
its accompanying memorandum of facts.
7. Under these circumstances, we are of the
considered opinion that the impugned order passed by the
Tribunal deserves to be set aside and the matter requires
remitted back to the Tribunal for re-consideration afresh
bearing in mind the observations made in this order.
8. In the result, we pass the following:
ORDER
(i) The appeal is hereby allowed.
(ii) The impugned order dated 23.08.2017 in MVC
No.175/2013 passed by the Senior Civil Judge
& Addl. MACT, Shorapur is set aside and
consequently I.A.No.IV filed by the Insurance
company hereby stands dismissed.
(iii) The matter is remitted back to the Tribunal for
reconsideration afresh in accordance with law
after hearing both parties.
(iv) The Tribunal is directed to proceed further in
the matter and dispose of the main claim
petition in accordance with law as
expeditiously as possible bearing in mind the
observations made in this order.
(v) The parties are directed to appear before the
Tribunal on 07.03.2022 without expecting
further notice from the Tribunal.
(vi) All rival contentions are kept open. No opinion
is expressed on the same.
Sd/-
JUDGE
Sd/-
JUDGE
BL
