Karnataka High Court
The Reliance General Insurance ... vs Durgayya S/O Somayya And Ors 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.201119 OF 2015 (MV-I)
BETWEEN:
THE RELIANCE GENERAL INSURANCE CO. LTD.,
THROUGH ITS DIVISIONAL MANAGER,
ASIAN PLAZA, S.V.PATEL, CHOWK,
GULBARGA-102
(INSURER OF OFFENDING VEHICLE)
PRESENTLY REPRESENTED BY ITS
MANAGER-LEGAL,
RGICL, V.A.KALBURGI SQUARE,
3RD FLOOR, CTS NO.472-474,
DESAI CROSS, DESHPANDE NAGAR,
HUBLI-580 029.
...APPELLANT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
AND
1. DURGAYYA S/O BHEEMARAYA KOTHIGUDDA,
AGED ABOUT 34 YEARS, OCC: AGRICULTURE,
2. YENKAMMA W/O BHEEMARAYA KOTHIGUDDA,
AGED ABOUT 62 YEARS, OCC: NIL,
3. MAREMMA D/O DURGAYYA,
AGED ABOUT 14 YEARS, OCC: NIL,
2
4. BHEEMARAYA S/O DURGAYYA,
AGED ABOUT 12 YEARS, OCC: STUDENT,
5. MALLAMMA D/O DURGAYYA,
AGED ABOUT 10 YEARS, OCC: STUDENT,
(RESPONDENT 3 TO 5 ARE MINORS UNDER
GUARDIAN OF THEIR FATHER RESP NO.1)
ALL ARE R/O VILLAGE MARKAL,
TALUK: SHAHAPUR,
DIST: YADGIR-585 210.
6. SRINIVAS S/O TIPPANNA,
AGED ABOUT 37 YEARS, OCC: BUSINESS,
R/O VILLAGE MARKAL,
TALUK: SHAHAPUR,
DIST: YADGIR-585 210.
OWNER OF OFFENDING VEHICLE
NO.KA-33/6913.
...RESPONDENTS
(BY SRI.BABU H.METAGUDDA, ADVOCATE FOR R1 AND R2;
R3 TO R5 ARE MINORS U/G OF R1;
NOTICE TO R6 HELD SUFFICIENT V/O DATED 15.06.2021)
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO
CALL FOR RECORDS IN MVC NO.92/2010 ON THE FILE OF THE
SENIOR CIVIL JUDGE & ADDL. MACT-III AT SHORAPUR,
SITTING AT SHAHAPUR, SET ASIDE THE JUDGMENT AND
AWARD DATED 07.08.2013 PASSED IN MVC NO.92/2010 BY
THE SENIOR CIVIL JUDGE & ADDL. MACT-III, AT SHORAPUR,
SITTING AT SHAHAPUR, AND ETC.
THIS MFA COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
3
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 Insurance Company
being aggrieved by the judgment dated 07.08.2013
passed in MVC No.92/2010 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.2; respondents No.1 to 5
are the petitioners and respondent No.6 is respondent
No.1 before the claims Tribunal.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 22.06.2010, at 9.30 a.m. on
Deodurga-Shahapur road near Kollur Bridge, deceased
Hanmanthi was traveling in an auto bearing
Reg.No.KA-33/6913, at that time, the driver of the
auto drove the same in a high speed and in rash and
negligent manner and having lost control, made the
auto to turtle down by the right side of the road. As a
result of the aforesaid accident, the inmates of the
auto sustained grievous injuries and Hanmanthi died
due to said injuries.
3. The petitioners filed a petition under Section 166
of the Act seeking for compensation.
4. Though respondent No.1 appeared through his
counsel, has failed to file any written statement.
Respondent No.2 filed written statement in
which the averments made in the petition were
denied. Further the age and occupation of the
deceased are denied. It is further contended that
petitioners were not depending upon the income of
the deceased. It is contended that the driver of the
offending vehicle did not had valid driving licence as
on the date of the accident and thus there is violation
of policy conditions by its owner and hence
respondent No.2 is not liable to pay compensation.
Hence, sought for dismissal of the petition.
5. 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
22.06.2010 at 8.20 a.m. the deceased
Hanmanthi with other family members are
proceeding in the auto bearing
No.KA.33/6913 for attending the pooja
ceremony at Kadmalli Village, Tq.
Deodurga, when they near the Kollur
Bridge the driver of the said auto drove
the same in rash and negligent manner
with high speed, and turtled the auto,
thereby the deceased Hanmanthi
sustained grievous injuries and shifted to
Govt.General Hospital Deodurga and
succumbed during the treatment?
2) What was the age, occupation and income
of the deceased at the time of accident?
3) Whether the respondent No.2 proves that,
the offending vehicle Auto bearing No.
KA.33/6913 was not insured with the
respondent No.2 and the driver of the
offending vehicle had not having valid and
effective driving licence to drive the same
on the date of alleged accident?
4) Whether the respondent No.2 further
proves that, the respondent No.1 has
violated the policy conditions?
5) What order or award?
Thereafter the Tribunal recorded the evidence. On
behalf of petitioners, petitioner No.1 was examined as
P.W.1 and got exhibited documents namely Ex.P1 to
Ex.P8. Respondents have not adduced any oral or
documentary evidence. The Claims Tribunal, after
considering the materials available on record,
recorded a finding that the petitioners have proved
that deceased Hanmanthi with other family members
were proceeding in the offending vehicle on the
alleged date of accident 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
deceased Hanmanthi succumbed to the injuries and
petitioners are entitled for compensation and further
recorded a finding that the respondent No.2 has failed
to prove that respondent No.1 has violated the policy
conditions and accordingly held that petitioners 1 and
3 to 5 are entitled for compensation and consequently
allowed the claim petition in part and awarded
compensation of Rs.5,04,000/- along with interest at
the rate of 6% p.a., and dismissed the claim petition
filed by petitioner No.2 and further held respondents
No.1 and 2 jointly and severally liable to pay the
compensation.
Respondent No.2 being aggrieved by the
judgment and award passed by the Tribunal, has filed
this appeal.
6. Heard learned counsel for the respondent
No.2 and learned counsel for petitioners.
7. The learned counsel for respondent No.2
submits that the driver of the offending vehicle was
not possessing a valid driving licence as on the date of
accident. She further submits that the FIR and
charge-sheet are filed against the driver of the
offending vehicle for the offences punishable under
Sections 3 and 181 of MV Act. She further submits
that the Tribunal has not considered the contents of
the charge-sheet and has committed an error in
saddling the liability on respondent No.2. In support
of her contention, she places reliance on the Full
Bench judgment of this Court in the case of NEW
INDIA ASSURANCE CO., LTD., VS YALLAVVA & ANR.,
passed in MFA No.30131/2010, disposed on
12.05.2020. Hence, on these grounds, she prays to
allow the appeal.
8. Per contra, learned counsel for the
petitioners supports the impugned judgment and
award passed by the Tribunal and prays to dismiss the
appeal.
9. Perused the records and considered the
submissions made by learned counsel for the parties.
10. The point that arise for consideration is with
regard to liability.
11. It is not in dispute that Hanmanthi was
traveling in the offending vehicle on the alleged date
of accident and succumbed to the injuries sustained in
the said accident. In order to establish that the said
accident occurred due to rash and negligent driving of
the driver of the offending vehicle, the petitioners
have produced copy of FIR and charge-sheet marked
as Ex.P1 and Ex.P2. Ex.P2 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.
12. Insofar as liability is concerned, respondent
No.2 has taken a specific contention in the written
statement that the driver of the offending vehicle was
not having a valid driving licence as on the date of
accident. However, respondents have not lead any
oral or documentary evidence. Learned counsel for
the respondent No.2 relies upon Ex.P2. Ex.P2
discloses that a criminal case is registered against the
driver of the offending vehicle under Section 3 and
181 of MV Act which discloses that the driver of the
offending vehicle was not possessing a valid and
effective driving licence as on the date of the accident.
Thus respondent No.1 has given the vehicle to an
unauthorized person to drive who did not possess a
valid driving licence. Thus there is violation of policy
condition. Respondent No.2 being the insurer of
respondent No.1, is liable to indemnify respondent
No.1. Respondent No.2 is liable to pay compensation
first to the petitioners and recover the same from
respondent No.1. Full Bench of this Court in the case
of YALLAVVA (SUPRA), has held that if there is violation
of policy condition, the Insurance Company must pay
the compensation first and recover the same from the
owner of the vehicle. In the present case, the
Tribunal has committed an error in saddling the
liability jointly and severally on respondents No.1 and
2. The finding recorded by the Tribunal on the point
of liability requires to be interfered. This Court holds
that respondent No.1 alone is liable to pay
compensation to the petitioners.
13. In view of the above discussion, I proceed
to pass the following:
ORDER
The appeal is allowed.
The judgment and award passed by
the Tribunal is modified.
Claim petition against respondent
No.2 is dismissed.
Respondent No.1 is liable to pay
compensation to the petitioners 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.
Liberty is reserved to respondent No.2 to
recover the same from respondent No.1, in
accordance with law.
The amount in deposit be transmitted
to the Tribunal.
SD/-
JUDGE
RD
