Karnataka High Court

Ashok Rudrappa Toranagatti vs The Branch Manager on 8 June, 2022

Bench: P.Krishna Bhat

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                                                        MFA No. 23821 of 2010


                   IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                           DATED THIS THE 08TH DAY OF JUNE, 2022

                                            BEFORE
                          THE HON'BLE MR JUSTICE P.KRISHNA BHAT
                   MISCELLANEOUS FIRST APPEAL NO. 23821/2010 (MV-I)
                   BETWEEN:

                        ASHOK RUDRAPPA TORANAGATTI
                        AGE: 35 YEARS, OCC: DRIVERR/O BUDANUR
                        (SALAHALLI)TAL: RAMADURG, DIST:
                        BELGAUM(OWNER OF THE MINIDOR AUTO
                        RIKSHAWBEARING REG.NO.KA-24/3092)

                                                                 ...APPELLANT
                   (BY SRI. K B NAIK, G L HULLER & SRI. V.K. NAIK, ADVOCATES)

                   AND:

                   1.   THE BRANCH MANAGER,
                        NATIONAL INSURANCE COMPANY LTDAPMC YARD,
                        SAUDATTI, DIST: BELGAUM(INSURER OF MINIDOR
                        AUTO RIKSHAWBEARING REG.NO.KA-24/3092)

                   2.   MAHESH SHIVAPPA PATIL
                        SINCE DECEASED BY HIS LRS

                        R2(A) SAVITRI MAHESH PATIL,
                        AGE: 34 YEARS, OCC: HOUSEHOLD

JAGADISH
TR
                        R2(B) NANDESH MAHESH PATIL,
                        AGE: 14 YEARS, OCC: STUDENT
Digitally signed
by JAGADISH T R
Location: HIGH
COURT OF
KARNATAKA,
                        R2(C) NAMARATHA MAHESH PATIL,
DHARWAD
                        AGE: 12 YEARS, OCC: STUDENT

                        R2(D) NEELAVVA SHIVAPPA PATIL,
                        AGE: 60 YEARS, OCC: HOUSEHOLDALL ARE R/O :
                        SAINAGAR, MUNOLLITQ: SAUNDATTI, DIST:
                             -2-




                                    MFA No. 23821 of 2010


    BELAGAVI-591126

                                          ...RESPONDENTS

(BY SRI. S K KAYAKAMATH, ADVOCATE FOR R1)
(SRI. HANUMANTHREDDY SAHUKAR, ADVOCATE FOR R2(A-D)

     THIS MFA IS FILED UNDER SECTION 173(1) OF THE MV
ACT, PRAYING TO CALL FOR THE RECORDS AND MODIFY THE
JUDGMENT AND AWARD DATED 19.08.2010 IN MVC
NO.1618/2008 PASSED BY THE SENIOR CIVIL JUDGE, ASST.
SESSIONS JUDGE, & ADDL. MACT, BAILHONGAL. BY SHIFTING
THE LIABILITY ON RESPONDENT NO.1 AND BY REDUCING THE
COMPENSATION BY ALLOWING THIS APPEAL IN THE INTEREST
OF JUSTICE AND EQUITY.
    THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
COURT DELIVERED THE FOLLOWING:


                       JUDGMENT

This appeal is at the instance of the owner of the

offending vehicle viz. Goods Auto bearing registration

No.KA-24/3092 calling in question the correctness of the

judgment and award dated 19.08.2010 passed in MVC

No.1618/2008 by the learned Senior Civil Judge, Asst.

Sessions Judge and Addl. MACT, Bailhongal (for short,

'MACT') fastening the liability to pay compensation on the

appellant/owner and exonerating the Insurer from the

liability to pay compensation.

MFA No. 23821 of 2010

2. Brief facts are that, on 21.01.2008 at about

4.30 p.m., while the claimant-Mahesh Shivappa Patil was

traveling in the offending Goods Auto bearing registration

No.KA-24/3092 by hiring the same for purchase of

Drumset for one Mahalaxmi Temple and on account of

rash and negligent driving of the offending Goods Auto, it

capsized resulting in grievous injuries to the claimant.

3. A detailed reference to the entire facts and

circumstances of the evidence is not necessary for disposal

of this appeal in view of the nature of contentions raised

and the grounds urged except stating that the claim

petition came to be allowed in part by awarding

compensation of Rs.8,42,800/- with interest thereon at

6% per annum with the liability fastened to pay

compensation on the owner of the offending vehicle in

question.

4. Learned counsel for the appellant/owner

advanced twofold contentions. Firstly, it was contended

that the learned MACT was in error in recording a finding

MFA No. 23821 of 2010

that the driver of the offending Goods Auto was not having

a valid and effective driving license to drive the same

inasmuch as he was having only LMV driving license and

the offending vehicle was a Goods Auto. It was his

contention that in view of decision of the Hon'ble Apex

Court in the case of Mukund Dewangan Vs. Oriental

Insurance Company Limited, (2017) 14 SCC 663, it is

required to be held that the driver of the offending vehicle

was having valid and effective driving license to drive the

class of the vehicle namely LMV (Transport). Therefore,

the said finding is liable to be set-aside.

5. The 2nd contention advanced by the learned

counsel for the appellant is that the pleadings and the

evidence clearly showed that the claimant had hired the

vehicle in question for the purpose of transporting

Drumset which he was proceeding to purchase and carry

the same to Mahalaxmi Temple and in view of the same,

the case is fully covered by the decision of the learned

Division Bench of this Court dated 4.9.2007 in MFA

MFA No. 23821 of 2010

No.7555/2002 (National Insurance Co. Ltd. Vs.

Sarojamma & Others). He therefore submits that the

finding of the learned MACT that the claimant was a

gratuitous passenger is wholly unsustainable and the same

is liable to be set-aside by fastening the liability to pay

compensation on the insurance company.

6. Learned counsel appearing for the Insurance

Company, per contra, contended that the decision of the

Hon'ble Apex Court in the case of Mukund Dewangan1

(supra) is referred to a larger Bench and therefore, the

said decision cannot be relied upon by this Court. He

further submitted that there is no evidence placed by the

claimant to show that the temple authorities wanted to

purchase the drumset and he was authorized to transport

the same to the Temple and therefore, finding of the

learned MACT that the claimant was only a gratuitous

passenger is fully in accordance with law and hence, the

(2017) 14 SCC 663

MFA No. 23821 of 2010

same is not liable to be interfered with and appeal requires

to be dismissed as devoid of merits.

7. I have given my careful consideration to the

submissions made on both sides and I have perused the

original records.

8. There is no dispute about the fact that the

driver of the offending Goods vehicle was in possession of

valid and effective LMV driving license at the time of the

accident. There is also no dispute about the fact that the

offending goods vehicle is LMV (Transport) namely Goods

Auto. In that view of the matter, decision of the Hon'ble

Apex Court in Mukund Dewangan (supra) which has not

so far been varied/modified applies squarely to the present

case and therefore, it is required to be held that the driver

was in possession of a valid and effective driving license,

since the offending vehicle belongs to the class of LMV

(Transport).

9. The claimant has clearly urged in the pleadings

to the effect that he had hired the offending vehicle for the

MFA No. 23821 of 2010

purpose of proceeding to the Market for purchasing the

Drumset and to carry the same to Mahalaxmi Temple and

while he was so proceeding, on account of rash and

negligent driving of the driver of the said vehicle, it

capsized resulting in serious injuries to him. In the

complaint which is marked as Ex.P1 also, there is

reference to the same effect. In his examination-in-chief,

he has stated the same fact. Learned counsel for the

insurance company has not been able to shake the said

version of the claimant in the cross-examination. There is

only a vague suggestion put-forward to this witness from

the side of the insurance company. In that view of the

matter, finding is inevitable that at the time of the

accident, the claimant was proceeding as hirer of the

offending vehicle in question for the purpose of

transporting drumset to the Temple. In a similar set of

facts and circumstances where a vegetable vendor had

hired a goods vehicle and was proceeding to Market for

purchasing vegetables in order to bring the same to his

MFA No. 23821 of 2010

shop for selling it in retail, a learned Division Bench of this

Court by its decision dated 4.9.2007 in MFA No.7555/2002

(National Insurance Co. Ltd. Vs. Sarojamma & Others) has

observed that in such cases, the person who had hired the

goods vehicle and was traveling in the same cannot be

regarded as gratuitous passenger and the observations

made in the said case at paragraph-12 is very relevant for

the purpose of present case which reads as under:

"12. In the instant case, it is the specific case of the claimants that deceased Kalaiah by hiring the vehicle in question was traveling in the vehicle in order to bring vegetables to his shop from a village and the evidence of PW-1 clearly reveals that her husband was traveling in the goods vehicle only to secure vegetables to his shop. The evidence of PW-1 or the pleadings of the claimants are not challenged by the insurance company. In other words, hiring of the vehicle by the deceased for transportation of vegetables only and that the deceased was traveling in the goods vehicle, in order to transport the vegetables and that he was not traveling as a gratuitous passenger or a fair paid passengers. Ex-R- 1 insurance policy covers the risk of a person who was traveling either as a owner of the goods or an

MFA No. 23821 of 2010

authorized representatives of the owner of the goods. Admittedly, deceased was not traveling in the vehicle as a fair-paid passenger or a gratuitous passenger. The accident has occurred before reaching the destination to load the goods during the course of such journey. When a person by hiring the vehicle was proceeding to the place of goods with an intention to bring those goods back to Bangalore, if such vehicle met with an accident it has to be deemed that the vehicle was hired by the deceased only for transporting the goods and that he was traveling in the goods vehicle for the purpose of transportation of his goods. Therefore, it is clear that even though goods were not in the vehicle when the vehicle met with an accident since vehicle was proceeding to reach the place of goods for the purpose of transportation, we have to hold that the risk of such passenger covered as he was neither a gratuitous passenger or a fair-paid passenger."

10. In that view of the matter, I do not find any

merit in the contention put-forward by the learned counsel

for the insurance company and I reject the same.

11. Resultantly, finding of the learned MACT that

the claimant was a gratuitous passenger is unsustainable

and the same is liable to be set-aside. Since the evidence

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MFA No. 23821 of 2010

clearly showed that the claimant had hired the vehicle for

the purpose of transporting drumset to be used in the

Temple, the Insurance Company cannot disclaim its

liability to pay compensation. Hence, the following:

ORDER

a) The above appeal is allowed.

b) In modification of the judgment and award

dated 19.08.2010 in MVC No.1618/2008 on

the file of the learned Senior Civil Judge,

Asst. Sessions Judge and Addl. MACT,

Bailhongal, while maintaining the quantum of

compensation and the rate of interest

awarded thereon, it is directed that the

respondent/insurance company is liable to

pay compensation awarded with interest

thereon.