Devindrappa And Ors vs M.Himachalam Babu And Ors
2022 Latest Caselaw 622 Kant

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            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

       DATED THIS THE 13TH DAY OF JANUARY 2022
                            PRESENT

     THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
                               AND
       THE HON'BLE MRS.JUSTICE K.S.HEMALEKHA

                  MFA NO.201869/2017 (MV)

BETWEEN:
1.     Devindrappa S/o Manappa,
       Age: 57 years, Occ: Bus Conductor,

2.     Droupati W/o Devindrappa,
       Age: 49 years, Occ: Household,

3.     Nagaratnamma W/o Iranna Pattar,
       Age: 34 years, Occ: Household,
       All R/o Kothi Mahal Ward No.6,
       Shorapur, Dist. Yadagiri.
                                                   ... ...Appellants
(By Sri. Krupa Sagar Patil, Advocate)
AND:
1.     M.Himachalam Babu,
       Age: 54 years, Occ: Owner of Tourist Bus
       R/o P/A1-282, Kavama temple,
       STR Puttur, Chittur 637 109.

2.     S.Rajagopal S/o Salva Raja,
       Age: 54 yeas, Occ: Driver of Tourist Bus,
       R/o No.73 A East Street, Koliyanur,
       villupuram-625012.
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3.    L & T Insurance Divisional Manager,
      Subam Building, First Floor,
      MC Grath Road,
      Bangalore-560 025.
                                                  ..... Respondents
(By Sri.C.S.Kalburgi, Advocate for R3;
R1 served;
Notice to R2 is dispensed with)

       This Misc. First Appeal is filed under Section 173(1) of the
Motor Vehicles Act, 1988, praying to call for the records and modify
the judgment and award passed by the Senior Civil Judge and
Addl. MACT, Shorapur dated 23.08.2017 in MVC No.353/2013 and
allow the Claim Petition by enhancing the award to the amount of
Rs.47,45,000/- as claimed for in the Claim Petition and holding
respondents No.1 & 3 both equally and severally liable to pay the
entire compensation in the interest of justice and equity.

      This appeal coming on for orders                  this   day,
S.R.Krishna Kumar, J, delivered the following:

                           JUDGMENT

This appeal by the claimants in MVC No.353/2013 on

the file of the Senior Civil Judge & Addl. MACT, Shorapur is

directed against the impugned judgment and award dated

23.08.2017 whereby the tribunal while allowing the claim

petition filed by the claimant fastened the entire liability to pay

compensation upon the respondent No.1-owner of the

offending vehicle and absolve the respondent No.3/insurance

company of its liability to pay compensation.

2. Heard the learned counsel for the claimants and

learned counsel for the respondent No.3 / insurance company

and perused the material on record.

3. A perusal of the material on record including the

impugned judgment and award would indicate that the tribunal

has noticed that the respondent No.3-insurance company has

admitted that the vehicle was insured as on the date of

accident; however, the defense of the insurance company was

that there was breach of the terms and conditions of the

insurance policy since the driver of the offending vehicle did

not possess a valid and effective driving licence as on the date

of the accident.

4. On the basis of the pleadings of the parties, the

tribunal framed issue No.2 in relation to whether the driver of

the offending vehicle possessed a valid and effective driving

licence. At paragraph No.11 of the impugned judgment and

award, the tribunal has recorded a categorical finding that the

driver of the offending vehicle possessed a valid and effective

driving licence and consequently the said issue was answered

by the MACT against the insurance company.

5. However, despite the admission of the insurance

company that the vehicle was duly insured and after

answering the issue No.3 in favour of the claimants by coming

to the conclusion that the driver of the offending vehicle

possessed a valid and effect driving licence, the tribunal has

come to the incorrect conclusion that the insurance company

was not liable to pay compensation on the erroneous premise

that there was no insurance policy insofar as the offending

vehicle is concerned, in our considered view that finding

recorded by the tribunal is not only contrary to the material on

record but also runs counter to the finding recorded in the

earlier portion impugned judgment and award and

consequently the impugned judgment and award passed by

the tribunal deserves to be modified by shifting the liability

from the owner of the offending vehicle to the insurance

company. Insofar as the quantum of compensation is

concerned, in our view the compensation awarded by the

tribunal thus fair, reasonable and proper and the same does

not warrant interference by this court.

6. It is also relevant to state that in MVC

No.171/2013 arising out of the same accident, the insurance

company has satisfied the award arising out of the same

accident and in relation to the very same vehicle i.e. Tourist

bus bearing No.UP 65-AR-3141. This circumstance is also

sufficient to show that the impugned judgment and award

passed by the tribunal in the instant case deserves to be set

aside.

7. In the result, we proceed to pass the following:

ORDER

i) The appeal is hereby allowed.

ii) The impugned judgment and award dated 23.08.2017 passed by the Tribunal in MVC No.353/2013 is hereby modified by holding that the respondent No.3-insurance company is liable to pay compensation as awarded by the tribunal together with interest at 6% per annum from the date of claim petition till the date of payment.

iii) It is however made clear that in view of the

order dated 27.10.2021 passed by this court,

the claimants shall not be entitled to interest

for delayed period of 751 days.

Sd/-

JUDGE

Sd/-

JUDGE SMP