Karnataka High Court
Basavaraj S/O Mahantappa Reddy vs Smt. Shivubai W/O Gurappa Chavan ... on 11 March, 2022
Bench: Ashok S. Kinagi
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF MARCH 2022
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
M. F. A. NO.32369 OF 2013 (MV-I)
BETWEEN:
BASAVARAJ S/O MAHANTAPPA REDDY
AGE: 41 YEARS, OCC: BUSINESS AND AGRICULTURE,
R/O GHALPUJI, TQ.MUDDEBIHAL,
DIST. BIJAPUR-586202.
...APPELLANT
(By SRI.BAPUGOUDA SIDDAPPA, ADVOCATE)
AND
1. SMT. SHIVUBAI W/O GURAPPA CHAVAN
AGE: 38 YEARS, OCC: COOLIE AND HOUSEHOLD
R/O: INGALESHWAR LT, TQ. BASAVANA BAGEWADI,
DIST. BIJAPUR-586203.
2. THE BRANCH MANAGER NATIONAL INS.CO.LTD.
RUNWAL BUILDING, SIDDESHWAR CROSS ROAD,
BIJAPUR-586101.
...RESPONDENTS
(BY SRI. SUDHIRSINGH R.VIJAPUR, ADV. FOR R1
SRI. MALLANNA REDDY, ADV. FOR R2)
THIS MFA IS FILED U/S. 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED- 22.12.2012 PASSED IN MVC
NO.13/2010 ON THE FILE OF SENIOR CIVIL JUDGE AND
MEMBER M.A.C.T-IX AT BASAVANA BAGEWADI, AND ALLOW
THIS APPEAL AND ETC.
2
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 dated
22.12.2012 passed in MVC No.13/2010 by the Senior
Civil Judge & Motor Accident Claims Tribunal-IX
Basavana Bagewadi.
2. 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.
3. Facts giving rise to the filing of the appeal
briefly stated are that on 20.08.2009, at about 4.00
p.m., when the petitioner along with her relatives was
traveling in tumtum auto-rickshaw bearing
registration No.KA-28/A-2807 and returning from
Jalawadi Tanda to her native, when the said
autorickshaw plying on Huvinhippari to Dindawar
road, 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.
3.1. The petitioner filed a petition under Section
166 of the Act seeking for compensation.
3.2. 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.
3.3. Respondent No.2 filed written statement
denying the policy. It is contended that at the time of
alleged accident, the said vehicle was used to carry
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 the said
vehicle at the spot of the accident. 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 is also denied. Hence prayed to dismiss the
claim petition.
3.4. On the basis of the pleadings of the parties,
the Claims Tribunal framed the following issues:
Issues
1) Whether the petitioner proves that on
20.08.2009 at about 4.00 p.m. near
Aralichandi cross, on Huvinhippargi to
Dindawar road, when she was traveling in
a tumtum autorickshaw bearing its
registration No.KA.28/A.2807 the driver
of the auto rickshaw driven the same in a
rash and negligent manner and lost
control over the auto and made it topple
down, as a result of which the petitioner
sustained grievous injuries?
2) Whether the respondent No.2 proves that
the respondent No.1 is not liable to pay
the compensation to the petitioner?
3) Whether the petitioner is entitled for the
compensation as sought for? If so, for
what extent and from whom?
4) What order or award?
3.5. Thereafter the Tribunal recorded the
evidence. The petitioner examined herself as PW-1
and got exhibited documents namely Ex.P1 to Ex.P8.
Legal officer of respondent No.2 is examined as RW-1
and got exhibited document namely Exs.R1 and R2.
The Claims Tribunal, after considering the materials
available on record, recorded a finding that 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.87,600/- 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 outside
the permit limit.
3.6. Respondent No.1 being aggrieved by the
judgment and award passed by the Tribunal, has filed
this appeal.
4. Heard learned counsel for the parties.
5. The learned counsel for respondent No.1
submits that respondent No.1 has not violated the
terms of policy conditions. If the vehicle was 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
amount. 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.
6. Per contra, learned counsel for respondent
No.2 and learned counsel for the petitioner supports
the impugned judgment and award passed by the
Tribunal.
7. Perused the records and considered the
submissions made by learned counsel for the parties.
8. The point that arise for consideration is with
regard to liability.
9. It is not in dispute that petitioner met with
an accident on 20.08.2009 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.P5
respectively. Ex.P5 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.
10. 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
traveling beyond the permitted limit and the
Insurance Company has no liability to satisfy the
award amount, cannot be accepted.
11. 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.
12. 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.
Learned counsel for the respondent
No.2 submits that respondent No.1 has
withdrawn the amount deposited by the
respondent No.2 at the time of filing the
suit. In view of disposal of the appeal,
respondent No.2 is directed to deduct the
statutory deposit amount out of the
compensation amount and pay it to the
petitioner.
In view of disposal of appeal,
IA.No.2/2013 does not survive for
consideration.
SD/-
JUDGE
msr
