The Manager vs Shivanand S/O Ramappa Kerennavar ...
2022 Latest Caselaw 9045 Kant

                           1



            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

          DATED THIS THE 17TH DAY OF JUNE 2022

                        BEFORE

       THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
                MFA No.200021/2019 (MV)

BETWEEN:

THE MANAGER,
NATIONAL INSURANCE CO. LTD.,
NEAR GOVINDARAO PETROL BUNK,
PARES GARDEN, RAICHUR, THROUGH
ITS DIVISIONAL MANAGER.

(BY SRI. MANVENDRA REDDY, ADVOCATE)
                                            ... APPELLANT
AND:

1.     SHIVANAND S/O RAMAPPA
       KERENNAVAR,
       AGE: 27 YEARS, OCC: AGRICULTURE,
       R/O CHIKKOPPA, TQ. RAMADURG,
       DIST. BELAGAVI, NOW RESIDING AT
       SANGMESHWAR COLONY,
       LINGASUGURU, DIST. RAICHUR-584101.

2.     MUTTAPPA S/O BASAPPA,
       AGE: MAJOR, OCC: BUSINESS,
       R/O BHAGOJIKOPPA, TQ: RAMDURG,
       DIST. RAICHUR-584101.
                                        ... RESPONDENTS

(BY SRI. BABU H.METAGUDDA, ADVOCATE R1;
     R2 - SERVED)
                                 2



     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO
CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT AND
AWARD DATED 02.04.2018 PASSED BY THE MOTOR
ACCIDENT CLAIMS TRIBUNAL AT LINGASUGUR, IN MVC
NO.320/2016 BY ALLOWING THE APPEAL AS PRAYED FOR.

     THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-

                          JUDGMENT

This appeal is filed under Section 173(1) of the Motor

Vehicles Act, 1988 ('MV Act' for short) by the Respondent

No.2-Insurance Company in MVC No.320/2016 challenging the

liability fastened on it by the Motor Accidents Claims Tribunal

at Lingasugur ('Tribunal' for short) vide judgment and award

dated 02.04.2018.

2. For the sake of convenience, the parties herein

are referred as per the ranks occupied by them before the trial

Court.

3. The brief factual matrix leading to the case are

that, on 14.11.2015, the petitioner was proceeding on the

motor cycle bearing Registration No. KA.24/U.1679 as a pillion

rider, which was ridden by his friend, from Gokak towards his

native place and when they reached Mamadapur-Betgeri

Road, near the land of one Patil at about 18 hours, the rider

of the motor cycle rode the same in rash and negligent

manner with high speed and lost control over it. As a result,

the claimant fell into a manure pit by the side of the road and

sustained grievous injuries and he was shifted to hospital for

treatment. Hence, the petitioner filed a claim petition before

the Tribunal seeking for compensation.

4. The respondent-Insurer has raised objections that

the rider of the motor cycle was not possessing valid and

effective driving licence to ride the vehicle and the Tribunal

has not even passed 'Pay and Recover' order, and hence this

appeal came to be filed.

5. There is no dispute that Respondent No.1 is the

owner of the offending vehicle bearing Registration No.

KA.24/U.1679 and it met with an accident on 14.11.2015.

Admittedly, the petitioner was the pillion rider and as a result

of accident, he suffered injuries, and the Tribunal has awarded

compensation of Rs.4,57,190/-. The Insurance Company has

raised objections that the rider was not possessing valid and

effective driving licence to ride the vehicle during the relevant

time of accident. The Tribunal has simply considered the fact

that the charge sheet is not submitted against the rider of the

motor cycle under Section 3 read with Section 181 of the MV

Act and the Insurance Company has failed to prove that the

rider did not possess valid and effective driving licence at the

relevant point of time. No doubt, in the charge sheet, the

Investigating Officer has not incorporated the offence under

Section 3 read with 181 of MV Act. However, it was the duty

of the owner of the vehicle to produce the valid driving

licence. The Tribunal on presumptions held that the rider was

possessing valid and effective driving licence. In fact the

owner did not appear before the Tribunal and he was placed

ex-parte and as such, he did not dispute the claim of the

Insurance Company that the rider was not possessing valid

and effective driving licence. Under such circumstances, the

Tribunal erred in fastening exclusive liability on Insurance

Company, without making any provision for 'Pay and

Recovery' as per the decision rendered by the Hon'ble Apex

Court in Pappu and others Vs. Vinod Kumar Lamba and

another reported in 2018 ACJ 690.

6. Further, in view of the decision in Pappu's case

(cited supra), if it is to be presumed that the rider of the

offending vehicle did not possess valid and effective driving

licence, the contention that the claimant is entitled for

compensation, does not call for any interference. Because,

the main liability is of Respondent No.1. Since the claimant is

a third party, the Insurance Company is required to satisfy the

award and recover it from the owner.

7. Under these circumstances, the judgment and

award passed by the Tribunal calls for interference by this

Court. Accordingly, I proceed to pass the following:-

ORDER

i) The appeal is allowed.

ii) The judgment and award dated 02.04.2018 passed by the Motor Accident Claims Tribunal at Lingasugur, in MVC No.320/2016 is confirmed so far as it relates to quantum, but stands modified regarding liability.

iii) The primary liability is fastened on Respondent No.2-Insurer. The appellant-Insurance Company is directed to satisfy the claim with interest, with a liberty to recover the same from the respondent No.1-Owner.

iv) The statutory amount in deposit shall be remitted back to the concerned Tribunal.

Sd/-

JUDGE

KGR*