Karnataka High Court

Sri. Budeppa vs The Divisional And Anr on 22 March, 2022

Bench: Ashok S. Kinagi

                              1




          IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

     DATED THIS THE 22ND DAY OF MARCH, 2022

                          BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


               MFA No.200367/2018 (MV)

Between:

Sri. Budeppa S/o Mojiram,
Age: 58 years, Occ: Agriculture,
R/o Gonavatla Thanda,
Tq: Lingasugur, Dist: Raichur-585 401.
                                            ... Appellant
(By Sri.Ganesh Naik, Advocate)

And:

1.     The Divisional Manager,
       National Insurance Company Ltd.,
       Divisional Office,
       Opp. Mini Vidhan Soudha,
       Station Road, Kalaburagi-01.

2.     Eranagouda @ Veerangouda
       S/o Amaregouda,
       Age: 34 years, Occ: Agriculture,
       R/o Yalagaladinni, Tq: Lingasugur,
       Dist: Raichur-585 401.
                                      ... Respondents
(By Ms. Bhadrashetty Sangeeta, Advocate for R1;
 Sri.Basavaraj R. Math, Advocate for R2)
                               2




      This Miscellaneous First Appeal is filed under Section
173(1) of the M.V. Act praying to allow the above Misc.
First appeal and consequently be pleased to set aside the
judgment and award dated 26.03.2015 passed by the
Court of the Motor Accident Claims Tribunal at Lingasugur
in MVC No.24/2008 and consequently be pleased to
discharge the appellant from its liability to pay the
compensation and also be pleased to reduce compensation
suitably and liability fixed on respondent No.1.


      This appeal 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) is filed by the owner aggrieved by the

judgment and award dated 26.03.2015 passed in MVC

No.24/2008 by the Motor Accident Claims Tribunal at

Lingasugur.

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 insurer and respondent No.2 is the petitioner

before the Tribunal.

3. Facts giving rise to the filing of the appeal

briefly stated are that on 10.10.2007 at about 10.30

a.m., Earanagouda and his wife Parvathi and others

were sitting on the bullock cart and were proceeding

towards land of Parvathemma. Petitioner was riding the

bullock cart in a very slow manner on the left side of the

road. When they were on Lingasugur-Kalaburagi road,

near Yalagaladinni Nala bridge, the driver of tractor

bearing registration No.KA-36/TA-538 and Trailer

No.KA-36/TA-539 came from back side of the bullock

cart in a very speed, zig zag manner rashly and

negligently, on wrong side and dashed against the

bullock cart. Due to the same, accident occurred. As a

result, petitioner sustained injuries for treatment of

which petitioner has spent huge amount. Hence, the

petitioner filed petition under Section 166 of the Act

seeking compensation for the injuries sustained in the

road traffic accident.

3.1. Respondent No.1 filed statement of

objections denying the averments made in the claim

petition and denied the rash and negligent driving of the

driver of the tractor-trailer. Respondent No.1 also denied

injuries, death, medical expenses, loss of income and

physical disability. It is contended that the driver of the

tractor-trailer is necessary party to the case and it is

alleged that the accident occurred due to negligence in

riding the bullock cart by the petitioner and there is no

negligence on the part of the driver of the tractor-trailer.

The driver of the tractor-trailer has not violated the

terms and conditions of the policy and the said tractor

was insured with respondent No.2 and prayed to dismiss

the claim petition.

3.2. Respondent No.2 filed written statement

contending that the petition is not maintainable either in

law or on facts. It denied the accident, rash and

negligent driving of the driver of the tractor-trailer,

injuries, medical expenses, physical disability etc. It also

denied the rash and negligent driving of the driver of the

offending tractor and denied that the offending tractor

was insured with respondent No.2 and it was in force at

the time of accident and 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 the evidence. The petitioner, in order to prove

his case, examined himself as PW-1 and got marked the

documents as Ex.P1 to Ex.P11. On behalf of the

respondents, respondent No.1 was examined as RW.2

and respondent No.2 examined two witnesses as RWs.1

and 3 and got marked the documents as Exs.R1 to R7.

5. The Tribunal after recording the evidence

and considering the material on record, held that the

petitioner has sustained injuries in the road traffic

accident which occurred on 10.10.2007 due to rash and

negligent driving of the tractor-trailer by its driver and

further held that the petitioner is entitled for

compensation and consequently, allowed the claim

petition in part and awarded compensation of

Rs.4,82,000/- with interest at the rate of 6% per annum

from the date of petition till the date of realization and

held that respondent No.1 is liable to pay the

compensation and directed respondent No.1 to deposit

the compensation.

6. Respondent No.1 aggrieved by the judgment

and award passed by the Tribunal has filed this appeal

challenging the liability.

7. Heard the learned counsel for respondent

No.1, learned counsel for the petitioner and learned

counsel for respondent No.2-Insurance Company.

8. The learned counsel for respondent No.1

submits that though the driver of the tractor-trailer was

not possessing valid and effect driving licence as on the

date of the accident, the vehicle was insured with

respondent No.2. He further submits that though there

is violation of the terms of the policy, it is for respondent

No.2 to pay and recover the same from respondent

No.1. On these grounds, he prays to allow the appeal.

9. Per contra, learned counsel for respondent

No.2/Insurance Company submits that the driver of the

offending tractor-trailer was not possessing valid and

effective driving licence as on the date of the accident.

She further submits that respondent No.1 has allowed

unauthorized person to drive the vehicle without licence

therefore, there is violation of the policy condition.

Hence, on these grounds, she submits that the Tribunal

was justified in fastening the liability on respondent No.1

and prays to dismiss the appeal.

10. Per contra, learned counsel for the petitioner

supports the impugned judgment and award passed by

the Tribunal.

11. Perused the records and considered the

submissions made by the learned counsel for the

parties. The point that arises for consideration is with

regard to liability.

12. It is not in dispute that the petitioner

sustained injuries in the accident which occurred due to

rash and negligent driving of the driver of the offending

tractor-trailer. In order to prove that the accident

occurred due to rash and negligent driving of the driver

of the tractor-trailer, the petitioner has produced copy of

FIR which is marked as Ex.P7. Ex.P7 discloses that the

accident occurred due to rash and negligent driving of

the driver of the offending vehicle.

13. Insofar as liability is concerned, respondent

No.2 has taken specific defence in the written statement

that the driver of the offending vehicle was not

possessing valid and effective driving licence as on the

date of the accident. Though respondent No.1 was

examined as RW.2, he has not produced any documents

to show that the driver of the tractor-trailer was

possessing valid and effective driving licence at the time

of accident. Thus, respondent No.1 permitted

unauthorized person to drive the vehicle. Thus, there is

violation of the terms of the policy. Admittedly, vehicle

was insured with respondent No.2 at the time of

accident and the policy was in force as on the date of

the accident. The Hon'ble Apex Court in the case of

Pappu and others Vs. Vinod Kumar Lamba and

another reported in AIR 2018 SC 592 held that if the

person driving the offending vehicle drove the vehicle

without licence, the Insurance company should pay

compensation to the claimants first and inturn, should

recover the same from the owner of the offending

vehicle. In view of the law laid down by the Hon'ble

Apex Court in the above case, respondent No.2 being

the insurer is liable to indemnify the owner of the

offending vehicle.

14. In view of the above discussion, I proceed to

pass the following:

ORDER

i. The appeal is allowed in part.

    ii.          The impugned judgment and award
                 passed by the Tribunal is modified.


   iii.          Respondent No.2 is directed to deposit
                 the compensation amount.         Liberty is

reserved to respondent No.2 to recover the same from respondent No.1/owner in accordance with law.

iv. Respondent No.1 has deposited the amount of Rs.2,41,000/- including statutory amount. However, insofar as balance compensation is concerned, respondent No.2 is directed to deposit remaining compensation amount before the Tribunal within a period of eight weeks from the date of receipt of certified copy of this judgment.