Smt Narayanamma vs Sri Syed Iliyaz
2022 Latest Caselaw 10679 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 12TH DAY OF JULY 2022

                          BEFORE

     THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD

                MFA No.4684 OF 2019(MV)

BETWEEN:

Smt. Narayanamma,
S/o Narayanappa,
Now aged about 56 years,
R/at Doddabandahalli Village,
Mulbagal Taluk, Kolar District.               ... Appellant

(By Sri. Gopal Krishna N., Advocate)

AND:

1.     Sri. Syed lliyaz,
       S/o Akbar Sab,
       Major in age,
       Friends bus Service,
       Pragathi School Compound,
       M.G.Road, Chintamani Town-563125,
       Chikkaballapur District.

2.     The New India Assurance
       Company Ltd.,
       Branch Office,
       Bagaluru Mansion,
       2nd Floor, Big Bazar,
       Kolar-563101, Rep. by its Manager.... Respondents

(By Sri.Lakshmi Narasappa., Advocate for
Sri. A.M.Venkatesh, Advocate for R2:
Notice to R1 is served and unrepresented)
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       This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:20.09.2017 passed
in MVC No.530/2013 on the file of the II Additional Senior
Civil Judge, Kolar (Itinerating at Mulbagal), partly allowing
the claim petition for compensation and seeking
enhancement of compensation.

      This MFA, coming on for hearing, this day, this
Court, delivered the following:

                     JUDGMENT

This appeal under Section 173(1) of Motor

Vehicles Act, 1988 (hereinafter referred to as 'the

Act') has been filed by the claimant being aggrieved

by the judgment and decree dated 20.09.2017 passed

by II Addl. Sr.Civil Judge & MACT, Kolar (Itinerating at

Mulbagal) in MVC No.530/2013.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 15.11.2012 at about 3.45

p.m., the claimant has traveled from Bangalore to

Mulbagal in a private bus bearing registration No.KA-

40/4626. When the said bus was stopped at KSRTC

bus stand, Mulbagal town, when the claimant was

alighting from the said bus from front door, the driver

of the bus suddenly moved the same in a reverse

direction in a rash and negligent manner without any

signals from the conductor. As a result of the

aforesaid accident, the claimant sustained grievous

injuries and was hospitalized.

3. The claimant filed a petition under Section

166 of the Act seeking compensation. It was pleaded

that she spent huge amount towards medical

expenses, conveyance, etc. It was further pleaded

that the accident occurred purely on account of the

rash and negligent driving of the offending vehicle by

its driver.

4. On service of notice, the respondent No.2

appeared through counsel and filed written statement

in which the averments made in the petition were

denied. The age, avocation and income of the claimant

and the medical expenses are denied. It was pleaded

that the petition itself is false and frivolous in the eye

of law. It was further pleaded that the accident was

due to the negligence of the claimant herself. It was

further pleaded that the driver of the offending vehicle

did not have valid driving licence as on the date of the

accident. It was further pleaded that the liability is

subject to terms and conditions of the policy. It was

further pleaded that the quantum of compensation

claimed by the claimant is exorbitant. Hence, he

sought for dismissal of the petition.

The respondent No.1 did not appear before the

Tribunal inspite of service of notice and was placed

ex-parte.

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

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant herself was

examined as PW-1 and Dr.M.Praveen was examined

as PW-2 and got exhibited documents namely Ex.P1

to Ex.P19. On behalf of the respondents, one witness

was examined as RW-1 and got exhibited documents

namely Ex.R1 to Ex.R2. The Claims Tribunal, by the

impugned judgment, inter alia, held that the accident

took place on account of rash and negligent driving of

the offending vehicle by its driver, as a result of

which, the claimant sustained injuries. The Tribunal

further held that the claimant is entitled to a

compensation of Rs.5,88,584/- along with interest @

6% p.a. and since the driver of the bus has violated

the permit conditions, directed the owner of the

offending vehicle to deposit the compensation amount

along with interest. Being aggrieved, this appeal has

been filed.

6. Sri N.Gopalakrishna, the learned counsel

for the claimant has raised the following contentions:

Firstly, the Tribunal has fastened the liability on

the owner of the offending vehicle on the ground that

the driver of the bus has violated the permit condition.

Since the insured has violated the policy condition, the

Tribunal has rightly exonerated the Insurance

Company. But, since the claimant is a third party and

the offending vehicle is covered with valid insurance

policy, insurer is liable to pay the compensation to the

claimant with liberty to recover the same from the

owner of the offending vehicle. In support of his

contentions, he has relied on the judgments of the

Hon'ble Apex Court in the cases of RANI vs.

NATIONAL INSURANCE COMPANY LTD. reported

in (2018) 8 SCC 492 and AMRIT PAUL SINGH

AND ANOTHER vs. TATA AIG GENERAL

INSURANCE COMPANY LIMITED AND OTHERS

reported in (2018) 7 SCC 558 and also Full Bench

judgment of this Court in the case of NEW INDIA

ASSURANCE CO. LTD. BIJAPUR vs. YALLAVVA

AND ANOTHER reported in ILR 2020 Kar.2239.

Hence, he sought for allowing the appeal.

7. On the other hand, Sri Lakshmi Narasappa

for Sri A.M.Venkatesh, learned counsel for the

Insurance Company has contended that it is not in

dispute that as on the date of the accident the

offending vehicle was not having valid permit to ply

the bus in Mulabagalu. Since the insured has violated

the policy condition, Insurance Company is not liable

to pay the compensation, the Tribunal has rightly

exonerated the Insurance Company. Hence, he

sought for dismissal of the appeal.

8. Notice to respondent No.1 - owner of the

offending vehicle even though served he has remained

unrepresented.

9. Heard the learned counsel for the parties

and perused the judgment and award and the original

records.

10. It is not in dispute that the claimant has

sustained injuries in the road traffic accident occurred

due to rash and negligent driving of the offending

vehicle by its driver.

11. The offending vehicle has a permit to run

from Dharmapura to Malur via Sira, Tumkur,

Dobbespet, Nelamangala, Bangalore and Hosakote

and the accident occurred at Mulabagalu. Since the

offending vehicle has no route permit to ply on

Mulabagalau road and since the driver of the bus has

violated the permit condition, the Tribunal has rightly

exonerated the Insurance Company from payment of

compensation. This finding of the Tribunal has not

been challenged by the owner of the offending vehicle

and it has attained finality. However, in view of the

law laid down by the Hon'ble Apex Court in the cases

of RANI (supra) and AMRITPAUL (supra) and Full

Bench of this Court in the case of YELLAVVA

(supra), in respect of third parties are concerned, the

Insurance Company has to pay the compensation

amount with liberty to recover the same from the

owner of the offending vehicle.

12. In the result, the appeal is allowed in part.

The judgment of the Claims Tribunal is modified.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 6%

p.a. from the date of filing of the claim petition till the

date of realization, within a period of six weeks from

the date of receipt of copy of this judgment with

liberty to recover the same from the owner of the

offending vehicle.

In view of the order dated 18.11.2021, passed

by this Court, the claimant is not entitled to interest

for the delayed period of 513 days in filing the appeal.

Sd/-

JUDGE

Cm/-