Hiraman S/O Madhavrao Kamble vs Gynanabai W/O Late Gunwantrao And ...
2022 Latest Caselaw 5420 Kant

                             1




          IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 25th DAY OF MARCH, 2022

                         BEFORE

       THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

               MFA No.200957/2014 (MV)
Between:

Hiraman S/o Madhavrao Kamble,
Age: 49 years, Occ: Nil,
R/o Handergulli, Tq. Udgir,
Dist: Latur-413 517.
                                               ... Appellant
(By Sri. Basavaraj R.Math, Advocate)

And:

1.     Gynanabai W/o Late Gunwantrao,
       Age: 35 years, Occ: Housewife,

2.     Anusayabai D/o Late Gunwanthrao,
       Age: 21 years, Occ: Student,

3.     Mahadev S/o Late Gunwanthrao,
       Age: 19 years, Occ: Student,

4.     Baliram S/o Late Gunwanthrao,
       Age: 15 years (minor), Occ: Student,
       U/g of Claimant No.1.

       All are R/o Village Tumbarpalli,
       Tq. Deglur, dist. Nanded-M.S.-431717.

5.     Namdev S/o Venkatrao Patil,
       Age: Major, Occ: Business,
                               2




      R/o Danvora, Tq. Ausa,
      Dist. Latur- M.S.-413512.

6.    Divisional Manager,
      National Insurance Co. Ltd.,
      Bilgundi Complex, Opposite to
      Mini Vidhana Sabha, Station Road,
      Gulbarga-585 102.
                                          ... Respondents
(Notice to R1 to R4 are served;
Notice to R5 is dispensed with;
By Sri. Sharanabasappa M.Patil, Advocate for R6)


      This Miscellaneous First Appeal is filed under Section
173(1) of the M.V. Act praying to call for records and set
aside the impugned judgment and award dated
23.09.2013 passed by the Addl. Senior Civil Judge & MACT
Bidar and itinerary Court at Aurad in MVC No.25/2009.

      This appeal coming on for hearing, this day, the
Court delivered the following:-


                       JUDGMENT

This appeal is filed under Section 173(1) of the

Motor Vehicles Act, 1988 (hereinafter referred to as

'the Act', for short) aggrieved by the judgment and

award dated 23.09.2013 passed in MVC No.25/2009

by the Addl. Senior Civil Judge & MACT, Bidar,

Itinerary Court at Aurad (hereinafter referred to as

'the Tribunal', for short).

For the sake of convenience, parties are referred

to as per their ranking before the Claims Tribunal.

Appellant is respondent No.3, respondent Nos.1 to 4

are petitioner Nos.1 to 4, respondent No.5 is

respondent No.1, and respondent No.6 is respondent

No.2 before the Tribunal.

2. Facts giving rise to the filing of the appeal

briefly stated are;

2.1. That on 04.05.2007, the deceased

Gunwanthrao and his family members were returning

to their native place Tumberpalli village from

MahaDongoan Village in a Tata Sumo bearing

registration NoMH-12/W-9933 as gratuitous

passengers after completion of marriage of their

relatives. When they were so proceeding near

Ambedkar Circle of Narayanpur village, by that time

the driver of the said Tata Sumno drove it in high

speed with rash and negligent manner and lost his

control. In the result, the Tata Sumo turned turtle by

the side of the road and thereby inmates of the said

Tata sumo were sustained injuries. Hence, filed a

petition under Section 166 of M.V.Act seeking

compensation on the account of injuries sustained in

the road traffic accident.

2.2. The respondent No.1 filed written

statement denying the averments made in the

petition. It is contended that he was not owner of the

offending vehicle as on the date of the accident and

he had sold the same to one Hiraman S/o: Madhavrao

Kamble of Handergalli Village in Udgir Taluk of

Maharashtra on 29.11.2006 and the records have

been transferred in the name of transferor on

30.11.2010 itself. Accordingly, respondent No1 is not

liable to pay compensation and sought for dismissal of

claim petition.

2.3. Respondent No.2 filed written statement

denying the age, occupation and income of the

deceased and the injuries sustained. It is contended

that transfer of the vehicle was not intimated to

respondent No.2 and respondent No.2 is not liable to

indemnify the owner of the vehicle. Hence, prayed to

dismiss the petition against respondent No.2.

2.4. Respondent No.3 filed written statement

admitting the ownership of Tatasumo and his name

was transferred in the insurance policy and risk

covered under the policy. Hence, prayed to dismiss

the petition as against respondent No.3.

2.5. The tribunal clubbed both the claim

petitions and recorded common evidence and

petitioner No.1 in MVC No.25/2009 is examined as

PW-1 and got marked documents namely Ex.P1 to

Ex.P6. The Insurance Company examine its official as

RW.1 and got marked documents Ex.R1.

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

the Tribunal after recording the evidence and

considering the material on record, allowed in part the

claim petition and dismissed the claim petition against

respondent Nos.1 and 2 and directed respondent No.3

to pay compensation with interest. Being dissatisfied

with the compensation awarded by the Tribunal, the

respondent No.3 filed the present appeal.

3. Heard the learned counsel for respondent

No.3 and the learned counsel for petitioners.

4. The learned counsel for the respondent

No.3 submits that the tribunal has committed an error

in saddling the liability jointly on respondent No.3.

Hence, on these grounds he prays to allow the appeal.

5. Per contra, learned counsel for the

petitioners supports the impugned judgment and

award passed by the tribunal. Hence, prays to dismiss

the appeal.

6. Perused the records and considered the

submission made by the learned counsel for the

parties. The point that arise for consideration is with

regard to liability.

7. It is an admitted fact that petitioners met

with an accident and sustained injuries in the road

traffic accident. In order to establish that the accident

was occurred due to rash and negligent driving of the

driver of the offending vehicle, the petitioners have

produced copy of FIR and complaint, marked at

Exs.P1 and P2. Exs.P1 and P2, discloses that the

accident was occurred due to rash and negligent

driving of the driver of the offending vehicle.

8. Insofar as liability is concerned, the

respondent has taken specific defence in the written

statement that the policy is an 'Act policy' and further

respondent No.2 examined its officer as RW.1. In the

course of evidence, respondent No.2 has not disputed

the ownership of the vehicle with respondent No.3. It

is the contention of Insurance Company that the

police issued by its is an 'Act policy' and it covers only

third party and the petitioners being the gratuitous

passengers in a private vehicle are not covered under

the risk. Thus, there is violation of policy conditions.

In the course of examination of RW.1, nothing has

been elicited from the mouth of RW.1 that extra

premium was collected to cover the risk of occupants

of the private Car/Tata Sumo. Respondent No.2 has

produced copy of insurance policy marked as Ex.R1,

which reveals that the same is 'Act Policy' issued to a

private car and the premium was collected only to the

owner-cum-driver and one person to his employee.

Neither the deceased nor the injured was the owner-

cum-driver and also employees, they were travelling

as gratuitous passengers and admittedly they were

inmates of the private car.

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

Uttar Pradesh State Road Transport Corporation

Vs. Kulsum reported in AIR Online 2011 SC 451,

wherein it is held that the insurer is not liable to pay

compensation to the occupants in a private car vehicle

under the Act policy. The tribunal was justified in

recording a finding that the policy is an 'Act Policy' and

the petitioners were inmates and travelling in the

private car. The risk does not cover the inmates of the

private car. The tribunal was justified in rejecting the

claim petition. I do not find any grounds to interfere

with the impugned judgment and award passed by the

tribunal.

Accordingly, the appeal is dismissed.

Sd/-

JUDGE msr