Karnataka High Court
The General Manager Bajaj Allianz ... vs Sumitrabai W/O Sharanappa ... on 16 March, 2022
Bench: Ashok S. Kinagi
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 16TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
MFA No.32720/2013 (MV)
Between:
The General Manager,
Bajaj Allianz General Insurance Co. Ltd.,
4th Floor, V.A.Kalburgi Mansion,
Opp: Municipal Corporation,
Lamington Road,
Hubli-580 020.
Presently represented by its
The Assistant Manager,
Bajaj Allianz General Insurance Co. Ltd.,
VA Kalburgi Mansion,
Opp: Municipal Corporation,
Lamington Road,
Hubli-580 020.
... Appellant
(By Sri.Sudarshan M, Advocate)
And:
1. Sumitrabai W/o Sharanappa Natikar,
Aged about 38 Years
Occ: Coolie & Agricultural Labour,
R/at C/o Hanmanthrao S.Benal
Vidya Nagar,
Gulbarga-585 102.
2
2. Rajakumar S/o Megunaik Rathod
Age: Major, Occ: Owner
R/o Harangera, Shahapur Taluk
District Gulbarga-585 230
3. Guranna S/o Shivappa Naikodi,
Aged about 43 years
Occ: Driver of Tractor
No.KA-33/T-4015
R/o S.K.Khanapur
Shahapur Taluk
District Yadgir-585 229
4. Bheemreddy S/o Shivreddy Hosalli
Age: Major, Occ: Owner of Tractor
No.KA-33/T-4015
R/o S.K.Khanapur
Shahapur Taluk
District Yadgir-585 228.
... Respondents
(By Sri Shivanand Patil, Advocate for R3 & R4;
Notice to R1 held sufficient v/o dated 18.11.2020;
Notice to R2 served)
This Miscellaneous First Appeal is filed under Section
173 (1) of the MV Act praying to set aside the judgment
and award dated 03.06.2013 passed in MVC No.194/2010
by the III Additional Senior Civil Judge & MACT No.VIII at
Gulbarga.
This appeal coming on for final hearing this day, the
Court delivered the following:-
3
JUDGMENT
This appeal is filed under Section 173(1) of the
Motor Vehicles Act, 1988 (hereinafter referred to as
'the Act', for short) by the Insurance Company
aggrieved by the judgment dated 03.06.2013 passed
in MVC No.194/2010 by the III Additional Senior Civil
Judge, Motor Accident Claims Tribunal-VIII,
Kalaburagi.
2. For the sake of convenience, parties are
referred to as per their ranking before the Claims
Tribunal. Appellant is respondent No.2; respondent
No.1 is the petitioner; respondent No.2 to 4 are the
respondent No.1, 3 and 4 before the Tribunal.
3. Brief facts giving rise to the filing of this
appeal are that on 02.04.2008 at about 7.30 p.m., the
petitioner was travelling as an agriculture labour in a
Tractor bearing registration No.KA-33/T-4015 along
with another person by name Mahadevappa, at that
time, near Darshanapur Cross, one Trax Cruiser
bearing registration No.KA-04/A-8617 came from
opposite side in a rash and negligent manner and
dashed to the Tractor and thereby the petitioner and
other person fell down on the road and she sustained
grievous injuries to right forearm, elbow and fracture
of right upper 1/3 ulna (right) and other parts of the
body. She has spent huge amount for her treatment.
3.1. The petitioner filed a petition under Section
166 of the Act seeking compensation for the injuries
sustained in the road traffic accident.
3.2. Respondent No.2 filed written statement in
which the averments made in the petition were
denied. It was further contended that admittedly, the
vehicle is a commercial vehicle and the said vehicle
was not having permit as on the date of accident. It is
further contended that there is violation of terms of
the policy. Hence, the Insurance Company is not liable
to pay compensation. Hence, prayed to dismiss the
claim petition.
4. On the basis of the pleadings of the parties,
the Claims Tribunal framed the issues and thereafter
recorded evidence. The petitioner in order to prove
her case, examined herself as P.W.1 and in order to
prove the disability, examined the doctor as P.W.3
and got exhibited documents namely Ex.P1 to Ex.P16.
Official of respondent No.2 was examined as RW.1
and got marked documents Ex.R.1 to R.7. The
Tribunal, after considering the material available on
record, by the impugned judgment, held that the
petitioner has sustained injuries in the road traffic
accident occurred on 02.04.2008 and the accident was
occurred due to rash and negligent driving of the
driver of the tractor/cruiser bearing registration
No.KA-04/A-8617 and further held that the petitioner
is entitled for compensation and consequently allowed
the claim petition in part and awarded compensation
of Rs.84,235/- with interest at the rate of 6% per
annum from the date of petition till its realization and
directed the respondent No.1 and 2 jointly to pay 50%
and respondent No.4 to pay 50% of the compensation
amount to the petitioner. Respondent No.2 aggrieved
by the judgment and award passed by the Tribunal,
has filed the present appeal on the ground of liability.
5. Though notice issued to the petitioner,
none appear for the petitioner. Heard the learned
counsel for the respondent No.2 and 3 and 4.
6. The learned counsel for the respondent
No.2 submits that the vehicle involved in the accident
is a commercial vehicle. The said vehicle was not
having permit as on the date of accident. He further
submits that the respondent No.1 has used vehicle in
a public place without permit. Hence, he submits that
the Tribunal has committed an error in saddling
liability on respondent No.2. He further submits that
there is violation of terms of the policy. In order to
buttress his arguments, he placed reliance on the
decision of the Hon'ble Apex Court in the case of
Amrit Paul Singh and Another vs Tata AIG
General Insurance Co.,Ltd., reported in (2018) 7
SCC 558. Hence, on these grounds, he prays to allow
the appeal.
7. Perused the records and considered the
submissions of the learned counsel for the parties.
8. It is not in dispute that the petitioner met
with an accident on 02.04.2008 and the petitioner has
sustained injuries in the road traffic accident.
9. The points that arise for consideration are
with regard to liability and quantum of compensation.
10. In order to prove the negligence on the
part of the driver of the offending vehicle, the
petitioner has produced copy of FIR and charge sheet
which are marked as Ex.P1 to P3. Ex.P3 discloses that
the accident occurred due to rash and negligent
driving of the driver of the tractor bearing registration
No.KA-04/A-8617. The Tribunal was justified in
recording a finding that the accident had occurred due
to rash and negligent driving of the driver of the
offending vehicle.
11. Insofar as quantum of compensation is
concerned, the respondent No.2 has taken a specific
defence in the written statement that the offending
vehicle is a transport vehicle and the said vehicle was
used in public place without permit. In order to
consider the contention of the learned counsel for
respondent No.2, it is necessary to consider Section
66 of the Motor Vehicles Act.
Section 66 of the Act reads as under:
"66 Necessity for permits.-- (1) No owner
of a motor vehicle shall use or permit the use of
the vehicle as a transport vehicle in any public
place whether or not such vehicle is actually
carrying any passengers or goods save in
accordance with the conditions of a permit
granted or countersigned by a Regional or State
Transport Authority or any prescribed authority
authorising him the use of the vehicle in that
place in the manner in which the vehicle is being
used:
Provided that a stage carriage permit
shall, subject to any conditions that may be
specified in the permit, authorise the use of the
vehicle as a contract carriage:
Provided further that a stage carriage
permit may, subject to any conditions that may
be specified in the permit, authorise the use of
the vehicle as a goods carriage either when
carrying passengers or not:
Provided also that a goods carriage permit
shall, subject to any conditions that may be
specified in the permit, authorise the holder to
use the vehicle for the carriage of goods for or in
connection with a trade or business carried on by
him.
(2) The holder of a goods carriage permit
may use the vehicle, for the drawing of any
trailer or semi-trailer not owned by him, subject
to such conditions as may be prescribed:
1[Provided that the holder of a permit of any
articulated vehicle may use the prime-mover of
that articulated vehicle for any other semi-
trailer.]
12. Section 66 of the Act provides that no
owner of a motor vehicle shall use or permit the use
of the vehicle as a transport vehicle in any public
place whether or not such vehicle is actually carrying
any passengers or goods save in accordance with the
conditions of a permit granted or countersigned by a
Regional or State Transport Authority or any
prescribed authority authorising him the use of the
vehicle in that place in the manner in which the
vehicle is being used. It is necessary to consider
Section 2(28) and 2(31) of the Act which defines
motor vehicle or vehicle and permit.
13. Section 2(28) of the Act defines Motor
vehicle or vehicle as "motor vehicle" or "vehicle"
means any mechanically propelled vehicle adapted for
use upon roads whether the power of propulsion is
transmitted thereto from an external or internal
source and includes a chassis to which a body has not
been attached and a trailer; but does not include a
vehicle running upon fixed rails or a vehicle of a
special type adapted for use only in a factory or in any
other enclosed premises or a vehicle having less than
four wheels fitted with engine capacity of not
exceeding twenty-five cubic centimetres".
14. Section 2(31) of the Act defines permit as
"permit" means a permit issued by a State or Regional
Transport Authority or an authority prescribed in this
behalf under this Act authorising the use of a motor
vehicle as a transport vehicle.
15. On perusal of both the definitions, it is
clear that a permit has to be issued by the competent
authority under the Act and that use of the vehicle is a
transport vehicle, the emphasis is on the words "use"
as well as "transport vehicle".
16. Section 2(47) of the Act states that
"transport vehicle" means a public service vehicle, a
goods carriage, an educational institution bus or a
private service vehicle.
17. Subsection 2 of Section 66 of the Act states
that the holder of a goods carriage permit may use
the vehicle, for the drawing of any trailer or semi-
trailer not owned by him, subject to such conditions as
may be prescribed. It is necessary to mention here
that proviso added by Act 54 of 1994 with effect from
14.11.1994 along with holder of a permit of any
articulated vehicle may use the prime-mover of that
articulated vehicle for any other semi-trailer.
18. Section 2(d) defines articulated vehicle as
"Articulated Vehicle means motor vehicle to which a
semi-trailer is attached.
19. In the case on hand, the offending vehicle
was not having a permit as on the date of accident
i.e., on 02.04.2008. Subsequently, after the accident,
the owner of the tractor has obtained permit with
effect from 27.12.2008 to 26.12.2013. Thus, there is
violation of permit of policy. In view of the law
declared by the Hon'ble Apex Court in the case of
Amrit Paul referred supra, wherein the Hon'ble Apex
Court held that in case insurer is liable to pay
compensation amount to the claimants with interest,
the insurer may be entitled to recover the same from
the owner and driver of the vehicle in the absence of
permit. The Tribunal has committed an error in
saddling the liability on the second respondent. The
offending vehicle was insured with respondent No.2
and as on the date of accident, the insurance policy
was in force.
20. In view of the above discussion, I proceed
to pass the following:
ORDER
1. The appeal is allowed.
2. The impugned judgment and award
passed by the Tribunal is set aside
only against respondent No.2.
3. The claim petition against respondent
No.2 is dismissed.
4. Respondent No.2 is directed to deposit
the compensation amount as awarded
by the Tribunal first and recover the
same from the first respondent.
5. The amount in deposit may be
transmitted to the Tribunal.
Sd/-
JUDGE
VNR
