Nagappa S/O Kallappa Vankhande vs Satish S/O Siddaram Ganiger And ...
2022 Latest Caselaw 4962 Kant

         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

      DATED THIS THE 17TH DAY OF MARCH 2022

                        BEFORE

      THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

           M. F. A. NO.202061 OF 2016 (MV)

BETWEEN:

NAGAPPA
S/O KALLAPPA VANKHANDE
AGE: 33 YEARS, OCC:POLICE CONSTABLE
R/O ZALAKI POLICE STATION
NOW RESIDING AT KEERTI NAGAR,
VIJAYAPURA
                                          ...APPELLANT

(BY SRI. SANGANAGOUDA V. BIRADAR, ADV.)

AND

1.    SATISH
      S/O SIDDARAM GANIGER
      AGE:MAJOR, OCC:BUSINESS
      R/O LALSANGI, TAL:INDI
      DIST:VIJAYAPURA-586101

2.    BASARUR MOHIDDIN
      S/O ABDUL RAHEMAN
      AGE:MAJOR, OCC:BUSINESS
      R/O 20A, W.NO.22,
      MAGI HOUSE, S.R.COLONY,
      NEW BUDHA VIHAR
      VIJAYAPURA-586101
                             2



3.   THE BRANCH MANAGER
     RELIANCE GENERAL INSURANCE CO. LTD.
     B.S.PATIL BUILDING (SASANUR)
     NEAR AMEER TALKIES
     VIJAYAPUR-586101
                                       ...RESPONDENTS

(BY SRI. SUBHASH MALLAPUR, ADV. FOR R3
    R1 & R2 - SERVED)

      THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO
ALLOW THIS APPEAL AND ENHANCE THE COMPENSATION AS
CLAIMED IN THE CLAIM PETITION BY MODIFYING THE
JUDGMENT AND AWARD DATED 15.07.2016 PASSED BY THE
COURT OF III ADDL. SENIOR CIVIL JUDGE AND MEMBER, MACT
NO.XII, AT VIJAYAPURA, IN MVC NO.722/2011.

     THIS MFA COMING ON FOR ADMISSION 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 petitioner being

aggrieved by the judgment dated 15.07.2016 passed

in MVC No.722/2011 by the Motor Accident Claims

Tribunal, Vijayapura.

For the sake of convenience, parties are referred

to as per their ranking before the Claims Tribunal.

Appellant is the petitioner and respondents are the

respondents before the Tribunal.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 12.10.2010, the petitioner

was proceeding on his motorcycle bearing registration

No.KA-28/V-2095, near Siddeshwar Bank at Indi, one

car bearing registration No.KA-28/A-5388 being

driven by its driver at a high speed and in a rash and

negligent manner, dashed to the vehicle of the

petitioner. As a result of the aforesaid accident, the

petitioner sustained grievous injuries and was

hospitalized.

3. The petitioner filed a petition under Section

166 of the Act seeking compensation. It was pleaded

that he spent huge amount towards medical

expenses, conveyance, etc. It is further pleaded that

the accident occurred purely on account of the rash

and negligent driving of the offending vehicle by its

driver.

4. The respondent No.1 appeared through his

counsel but he did not choose to file written statement

and respondent No.2 did not appear before the

Tribunal inspite of service of notice and was placed

exparte. Respondent No.3 - Insurance Company

appeared and filed written statement denying the

averments made in the claim petition and contended

that respondents No.1 and 2 have committed the

breach of the terms and conditions of the policy and

therefore, the Insurance Company is not liable to

indemnify the insured R.C owner. It is also contended

that the driver of the offending vehicle had no valid

license to drive the particular type of vehicle. Hence,

sought for dismissal of the petition.

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

the Tribunal framed the following issues. The

petitioner examined himself as PW-1 and also

examined a Doctor as PW-2 and got marked the

documents as Ex.P1 to Ex.P27. On behalf of the

respondents, respondent No.3 examined its Officer as

R.W.1 and got marked the documents as Exs.R1 to

Exs.R3. The Tribunal after recording the evidence

filed by the petitioner as held that petitioner has

proved that he has sustained injuries in the road

traffic accident on 12.10.20210 and the accident was

occurred due to rash and negligent driving of the

driver of the offending vehicle. Further, held that

petitioner is entitled for compensation of

Rs.1,37,000/- and further, respondent No.3 -

Insurance Company has proved that due to violation

of policy conditions respondent No.3 is not liable to

pay compensation and consequently allowed the claim

petition in part and awarded compensation for

Rs.1,37,000/- along with interest @ 6% per annum

from the date of claim petition till realization of

compensation amount against the respondents No.1

and 2 jointly and severally and dismissed the claim

petition against respondent No.3 - Insurance

Company. The petitioner aggrieved by the dismissal

of claim petition against the respondent No.3 has filed

the present appeal and also sought for enhancement

of compensation amount.

6. Heard learned counsel for the petitioner

and learned counsel for respondent No.3.

7. The learned counsel for the petitioner

submits that if there is violation of policy conditions

the respondent No.3 - Insurance Company is liable to

pay the compensation amount first to the petitioner

and recover the same from the owner of the vehicle.

In order to buttress his arguments, he placed reliance

on the judgment of the Hon'ble Apex Court in the case

of PAPPU AND OTHERS vs. VINOD KUMAR LAMBA

AND ANOTHER reported in (2018)3 SCC 208.

Hence, on this ground alone, he prays to direct the

respondent No.3 to pay the compensation amount to

the petitioner as awarded by the Tribunal and recover

the same from the owner of the vehicle.

8. Per contra, learned counsel for respondent

No.3 - Insurance Company supports the impugned

judgment and award passed by the Tribunal.

9. Perused the records and considered the

submissions made by learned counsel for the parties.

10. The point that arise for consideration are

with regard to quantum of compensation and liability.

11. It is not in dispute that the petitioner met

with an accident and sustained injuries due to rash

and negligent driving of the offending vehicle by its

driver. Further, in order to prove that the accident

occurred due to rash and negligent driving of the

driver of the offending vehicle, the petitioner has

produced the copy of FIR and charge-sheet marked as

Ex.P1 and Ex.P20. Ex.P20 discloses that the accident

occurred due to rash and negligent driving of the

driver of the offending vehicle. Insofar as liability is

concerned, respondent No.3 has taken a specific

defence in the written statement that driver of the

offending vehicle was not possessing valid and

effective driving license as on the date of accident and

further, taken specific contention that there is

violation of policy conditions. In order to substantiate,

respondent No.3 has produced the copy of notice

issued to the respondent No.1 calling upon to produce

driving license. In spite of service of notice

respondent No.1 has failed to furnish the copy of

driving license. The Tribunal was justified in recording

a finding that the respondent No.3 has proved that

driver of the offending vehicle was not possessing a

valid and effective driving license as on the date of

accident. The owner of the offending vehicle was

permitted to drive the vehicle to unauthorized person,

who did not possessed valid and effective driving

license as on the date of accident. Admittedly, the

vehicle was insured with the respondent No.3 as on

the date of accident the policy was in force. In view

of the law laid down by the Hon'ble Apex Court in the

case of, PAPPU AND OTHERS vs. VINOD KUMAR

LAMBA AND ANOTHER reported in (2018)3 SCC 208,

wherein held that if the owner is permitted to drive

the vehicle to unauthorized person, there is a violation

of policy conditions. If there is a violation ofpolicy

conditions, Insurance Company is directed to pay the

award amount to the petitioner in first instance and in

turn recover the same from the owner of the vehicle.

As observed above, the vehicle was insured with the

respondent No.3, as on the date of accident. The

Insurance Company is liable to pay the award amount

to the petitioner, in first instance and in turn recover

the same from the owner of the vehicle. The

judgment and award passed by the Tribunal does not

suffer any illegality.

12. In view of the above discussion, I proceed

to pass the following:

ORDER

i. The appeal is allowed in part.

ii. The judgment and award passed by the Tribunal in MVC.No.722/2011 dated 15.07.2016, is modified.

iii. Respondent No.3 - Insurance Company is directed to deposit the compensation amount as awarded by the Tribunal, and in turn recover the same from the owner of the vehicle i.e., respondent No.1, in accordance with law.

SD/-

JUDGE

RD/GRD