Ashok Veerabhadrappa ... vs Smt. Somavva W/O Channappa Pujari ...
2022 Latest Caselaw 4090 Kant

         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

      DATED THIS THE 10TH DAY OF MARCH 2022

                          BEFORE

      THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

         M. F. A. NO.32368 OF 2013 (MV-I)

BETWEEN:

ASHOK VEERABHADRAPPA SAMPANNAVAR @ GULED
OCC: VEHICLE OWNER
R/O BASAVANA BAGEWADI,
TQ. BASAVANA BAGEWADI,
DIST. BIJAPUR
                                   ...APPELLANT

(BY SRI. BAPUGOUDA SIDDAPPA, ADV.)

AND

1.    SMT. SOMAVVA
      W/O CHANNAPPA PUJARI
      OCC: COOLIE, R/OMASABINAL,
      TQ. BASAVANA BAGEWADI, DIST. BIJAPUR

2.    THE MANAGER SRIRAM GEN. INSURANCE CO.LTD.
      E-8 EPIP, RIICO, SITAPURA, JAIPUR
      RAJASTHAN
                                        ...RESPONDENTS

(BY SRI. BIRADAR VIRANAGOUDA, ADV. FOR R1)
* SRI. SUDARSHAN M, ADV. FOR R2




* Inserted Vide Court order dated 25/03/2022.
                               2




     THIS MFA IS FILED U/S. 173(1) OF MV ACT,
AGAINST    THE   JUDGMENT     AND  AWARD    DATED-
24.12.2012 PASSED IN MVC NO- 95/2010 ON THE FILE OF
SENIOR CIVIL JUDGE AND MEMBER M.A.C.T AND AT
BASAVANA BAGEWADI, PARTLY ALLOWING THE CLAIM
PETITION AND AWARDING COMPENSATION OF RS
43,000/- WITH INTEREST AT 8 P.A.

     THIS MFA COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the owner of the offending

vehicle being aggrieved by the judgment and award

dated 24.12.2012 passed in MVC No.95/2010 by the

Motor Accident Claims Tribunal.

For the sake of convenience, parties are referred

to as per their ranking before the Claims Tribunal.

Appellant is respondent No.1; respondent No.1 is the

petitioner and respondent No.2 is respondent No.2

before the claims Tribunal.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 22.05.2010, at 9 p.m., when

the petitioner along with her relatives was traveling in

an auto-rickshaw on Basavana Bagewadi-Masabinal

road, near the land of one Sabu Sajjan Masabinal, at

that time, the driver of the auto-rickshaw drove the

same in a high speed and in rash and negligent

manner and having lost control, made the auto-

rickshaw to turtle down by the side of the road. As a

result of the aforesaid accident, the petitioner

sustained grievous injuries.

2.1. The petitioner filed a petition under Section

166 of the Act seeking for compensation.

2.2. The respondent No.1 filed written

statement denying the date, time and place of

accident. It is contended that the claim made by the

petitioner is highly exorbitant and policy was in force

at the time of accident and hence respondent No.2 is

liable to pay the compensation. Hence prayed to

dismiss the petition.

2.3. Respondent No.2 filed written statement

admitting the policy. It is contended that at the time

of alleged accident, the said vehicle was carrying more

passengers than its permitted capacity which resulted

in causing the accident. Further it is contended that

as on the date of alleged accident, respondent No.1

was not having permit to ply beyond the limit. The

said vehicle met with an accident outside the permit

limit. Hence the owner of the offending vehicle

violated the permit conditions and it is also contended

that the driver of the offending vehicle was not

possessing valid and effective driving licence as on the

date of the accident. Further, the date, time and

place of the accident is denied and also the age,

occupation and income of the petitioner are also

denied. Hence prayed to dismiss the claim petition.

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

the Claims Tribunal framed the following issues and

additional issues:

Issues

1) Whether the petitioner proves that on 22.05.2010 at about 9.00 p.m. when she was traveling in auto rickshaw bearing its registration No.KA.29/A.0020 near the land of Sabu Sajjan Masabinal the driver of the auto rickshaw driven the same in a rash and negligent manner and caused the accident, as a result of which the petitioner sustained grievous injuries?

2) Whether the petitioner is entitled for the compensation as sought for? If so, for what extent and from whom?

3) What order or award?

Additional Issues

1) Whether the respondent No.2 proves that the respondent No.1 has violated the permit conditions and the policy conditions?

2) Whether the respondent No.2 proves that the driver of the auto rickshaw was not holding valid and effective driving licence?

2.5. Thereafter the Tribunal recorded the

evidence. The petitioner examined himself as PW-1

and got exhibited documents namely Ex.P1 to Ex.P13.

Legal officer of respondent No.2 is examined as RW-1

and got exhibited document namely Ex.R1. The

Claims Tribunal, after considering the materials

available on record, recorded a finding petitioner has

proved that she was traveling in the offending vehicle

and the driver of the said vehicle drove the same in a

rash and negligent manner and caused the accident as

a result of which she sustained injuries and petitioner

is entitled for compensation and further recorded a

finding that the respondent No.2 has proved that

respondent No.1 has violated the permit conditions

and policy conditions and further held that respondent

No.2 has failed to prove that the driver of the

offending vehicle was not holding a valid and effective

driving licence and consequently allowed the claim

petition in part and awarded compensation of

Rs.43,000/- along with interest at the rate of 8% p.a.

and saddled the liability on respondent No.1 on the

ground that the offending vehicle was plying beyond

the permit limit.

2.6. Respondent No.1 aggrieved by the

judgment and award passed by the Tribunal, has filed

this appeal.

3. Heard learned counsel for the parties.

4. The learned counsel for respondent No.1

submits that respondent No.1 has not violated the

terms of policy conditions. If the vehicle is plying

beyond the limits, it is contravention of permit

condition which is punishable according to Section

192A of the MV Act. But the Insurance Company

cannot escape from the payment of compensation. In

order to buttress his argument, he has placed reliance

on the judgment of the Division Bench of this Court in

MFA No.201648/2015 & Connected Mattes, disposed

of on 26.11.2020. Hence he submits that the Tribunal

has committed an error in fastening the liability on the

respondent No.1. Hence, on these grounds, he prays

to allow the appeal.

5. Per contra, learned counsel for respondent

No.2 and learned counsel for the petitioner supports

the impugned judgment and award passed by the

Tribunal.

6. Perused the records and considered the

submissions made by learned counsel for the parties.

7. The point that arise for consideration is

with regard to liability.

8. It is not in dispute that petitioner met with

an accident on 22.05.2010 and sustained injuries. In

order to establish that the said accident occurred due

to rash and negligent driving of the driver of the

offending vehicle, petitioner has produced copy of FIR

and charge-sheet marked as Ex.P1 and Ex.P9

respectively. Ex.P9 discloses that the accident

occurred due to rash and negligent driving of the

offending vehicle by its driver. The Tribunal,

considering the material available on record, was

justified in recording a finding that the accident

occurred due to rash and negligent driving of the

driver of the offending vehicle.

9. Insofar as liability is concerned, it is not in

dispute that the driver of the offending vehicle was

possessing driving licence and further the said vehicle

was insured with respondent No.2 and further the said

vehicle was having a valid permit. It is the case of the

respondent No.2 that the vehicle was plying beyond

the permit limit and thus there is violation of policy

condition. There is no dispute that the auto-rickshaw

was plying beyond the permit limit. It is not the case

of the respondent No.2 that there was no permit at all

for the auto rickshaw. It had a valid permit, but it

was taken beyond the permitted limit. There is some

difference between the two. If there is no permit at

all, or if the transport vehicle is used for a purpose not

allowed by the permit as envisaged in Section

149(2)(a)(i)(c), the Insurance Company need not

indemnify the liability of the insured for violation of

policy condition. It is in contravention of permit

condition which is punishable according to Section

192A of the MV Act. The said view is reiterated by the

Co-ordinate Bench of this Court in MFA

Nos.30752/2011 c/w 30753/2011 and 30388/2012,

disposed of on 11.07.2018. Subsequently, the

Division Bench of this Court has re-affirmed the said

judgment in MFA No.201648/2015 & Connected

Matters, disposed of on 26.11.2020. Thus, in view of

the above, the contention of the learned counsel for

the respondent No.2 that the offending vehicle was

plying beyond the permitted limit and the Insurance

Company has no liability to satisfy the award amount,

cannot be accepted.

10. Admittedly, the vehicle was insured with

respondent No.2 and the driver of the offending

vehicle was possessing a valid and effective driving

licence as on the date of the accident. Respondent

No.2 is liable to indemnify the respondent No.1. the

Tribunal has committed an error in fastening the

liability on respondent No.1. Hence, this Court holds

that respondents No.1 and 2 are jointly and severally

liable to pay the compensation.

11. In view of the above discussion, I proceed

to pass the following:

ORDER

The appeal is allowed in part.

The judgment and award passed by the Tribunal is modified.

Respondents No.1 and 2 are jointly and severally liable to pay compensation to the petitioner as awarded by the Tribunal.

     As    the    vehicle     was   insured   with
respondent       No.2,   respondent     No.2    is
directed   to     deposit     the   compensation

amount within a period of eight weeks from the date of receipt of copy of this order.

The respondent No.1 at the time of filing the appeal, has deposited statutory deposit of Rs.25,000/-. The petitioner has withdrawn the said statutory deposit. In view of the liability saddled on respondents No.1 and 2, jointly and severally, the petitioner is liable to return the statutory deposit to respondent No.1.

Learned counsel for the petitioner submits that a direction be issued to

respondent No.2 to deduct the statutory deposit of Rs.25,000/- out of the total compensation amount and repay the same to respondent No.1.

Submission is placed on record.

Respondent No.2 is directed to deduct Rs.25,000/- from the total compensation amount awarded by the Tribunal and to pay the same to respondent No.1, within a period of 8 weeks from the date of receipt of a copy of this order. If respondent No.2 fails to pay the amount of Rs.25,000/- (statutory deposit) to respondent No.1, respondent No.1 is at liberty to execute the same, in accordance with law.

SD/-

JUDGE

RD