Karnataka High Court

The Divisional Manager vs Smt.Jyothi W/O Late Shankar ... on 28 March, 2022

Bench: Ashok S. Kinagi

                          1




         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 28TH DAY OF MARCH, 2022

                       BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

             MFA No.200733/2014 (MV)

BETWEEN:

THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO., LTD.,
JAWALI COMPLEX, SUPER MARKET,
GULBARGA-585 101.
                                        ... APPELLANT

(BY SRI. SANJAY M.JOSHI, ADVOCATE)


AND:


1.     SMT. JYOTI
       W/O LATE SHANKAR JAGADALE,
       AGE: 29 YEARS, OCC: HOUSEHOLD,


2.     SRI. NRUTHIK
       S/O LATE SHANKAR JAGADALE,
       AGE: 3 YEARS,


3.     SMT. SAROJABAI
       W/O LATE VENKATRAO JAGADALE,
       AGE: 63 YEARS, OCC: HOUSEHOLD,
                          2




     ALL ARE R/O H.NO.11-366/159/A,
     NEW RAGHAVENDRA COLONY,
     GULBARGA-585 103.

4.   SRI.RAVINDRA
     S/O SHIVALINGAPPA KATKI,
     AGE: 33 YEARS, OCC: OWNER OF VEHICLE,
     R/O H.NO.587/7/9B, SANTOSH COLONY,
     GULBARGA-585 103.

5.   SRI. RAM
     S/O SHANKAR BASE,
     AGE: 33 YEARS, OCC: OWNER OF VEHICLE,
     R/O H.NO.21/185, GANDHI CHOWK,
     BASAVAKALYAN,
     DIST. BIDAR-585 327.
                                 ... RESPONDENTS

(BY SRI.K.S.SAKRY, ADVOCATE FOR C/R1 TO 3;
    V/O DATED 23.03.2021 SERVICE OF NOTICE
   TO R4 & R5 IS HELD SUFFICIENT)

     THIS MISCELLANEOUS FIRST       APPEAL   IS   FILED
UNDER SECTION 173(1) OF THE M.V.ACT AGAINST THE
JUDGMENT AND AWARD DATED 08.01.2014 PASSED IN
MVC NO.1082/2010 ON THE FILE OF THE I ADDL. CIVIL
JUDGE & MEMBER MOTOR ACCIDENTS CLAIMS TRIBUNAL,
GULBARGA, PARTLY ALLOWING THE CLAIM PETITION AND
AWARDING   COMPENSATION      OF   RS.8,40,000/-   WITH
INTEREST AT 6% P.A.


     THIS APPEAL COMING ON FOR HEARING, 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 08.01.2014

passed in MVC No.1082/2010 by the I Additional

Senior Civil Judge and Motor Accident Claims Tribunal,

Gulbarga.

2. For the sake of convenience, parties are

referred to as per their ranking before the Claims

Tribunal. Appellant is respondent No.3 and the

respondents are the petitioners before the claims

Tribunal.

3. Facts giving rise to the filing of the appeal

briefly stated are that the deceased - Shankar and

respondent No.1 were returning to Gulbarga from

Basavakalyan on Bajaj Pulsar bike bearing No.KA-

39/H-6598, when they were near Kudaremukh Hill on

Gulbarga-Humnabad State Highway the rider i.e.,

respondent No.1 drove it in a high speed and

negligent manner and lost control over the vehicle and

the vehicle turned turtle, due to which, the accident

was caused and the deceased sustained grievous

injuries and succumbed to the injuries. The petitioners

being the legal representatives of the deceased filed a

claim petition under Section 166 of the Act claiming

the compensation on account of the death of Sri

Shankar in the road traffic accident. Respondent

Nos.1 and 2 remained absent and they were placed

ex-parte.

4. Respondent No.3 filed the written

statement denying the age, occupation and income of

the deceased and also nature of the accident. It is

contended that the deceased was travelling as a pillion

rider on the alleged motorcycle. The risk of the pillion

rider is not covered under the policy and no extra

premium is collected by him to cover the risk of pillion

rider and the pillion rider is a gratuitous passenger,

who is not covered under the policy issued by

respondent No.3, as such, respondent No.3 is not

liable to pay the compensation as claimed by the

petitioners. Hence, on these grounds, it prayed for

dismissal of the appeal.

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

the Claims Tribunal framed the following issues:

Issues

1) Whether the petitioners prove that on 01.05.2009 at about 6.30 p.m., the deceased Shankar and respondent No.1 returning to Gulbarga from Basavakalyan on Bajaj Pulsar bike bearing Reg.No.KA-

39/H-6598, when they were near Kudaremukh Hill on Gulbarga-Humnabad State Highway the rider i.e., respondent No.1 drove it in high speed and in rash

and negligent manner resulting he lost control over the vehicle and turned turtile due to which accident was caused and the petitioner sustained grievous injuries to head, during treatment at Solapur the deceased succumbed to the injuries?

2) Whether respondent No.3 proves that the rider of the offending motor cycle was not holding valid and effective DL at the time of accident and also violated the terms and conditions of the police?

3) Whether the petitioner is entitled for the compensation? If so, to what amount and from whom?

4) What award or order?

6. The petitioners in support of their case,

petitioner No.1 examined herself as PW-1 and got

exhibited the documents namely Ex.P1 to Ex.P10. The

official of respondent No.3 examined as RW.1 and got

exhibited the documents namely Exs.R1 and R2.

7. The Tribunal after considering the materials

available on record, recorded a finding that the

petitioners have proved that the accident has occurred

on 01.05.2009 and respondent No.1 driven it in a high

speed and in a rash and negligent manner and lost

control over the vehicle and the vehicle turned turtle ,

due to which, the accident was caused and the

deceased - Shankar sustained grievous injuries and

succumbed to the injuries. It further held that

respondent No.3 has failed to prove that the rider of

the offending motor cycle was not having a valid and

effective driving license at the time of the accident

and violated the terms and conditions of the policy

and further held that the petitioners are entitled for

compensation and allowed the claim petition in part

and awarded a compensation of Rs.8,40,000/- by

deducting the interim compensation paid, if any, with

interest at the rate of 6% p.a. and further recorded a

finding that respondents Nos.1 and 2 are jointly and

severally liable to pay the compensation and directed

respondent No.3 to deposit the compensation amount.

Respondent No.3 aggrieved by the judgment and

award passed by the Tribunal, has filed this appeal.

8. Heard learned counsel for respondent No.3

and the learned counsel for the petitioners.

9. The learned counsel for respondent No.3

submits that respondent No.3 has taken a specific

defence in the written statement stating that the

policy does not cover the risk of the pillion rider. In

order to substantiate the defence, respondent No.3

examined its officer as RW.1 and produced documents

i.e., certified copies of the insurance policy and

marked as Exs.R1 and R2. He further submits that the

Tribunal has recorded a finding that the respondents

have not produced any materials in support of their

defence. Hence, he submits that the finding recorded

by the Tribunal is contrary to records. He, further

submits that the Tribunal has committed an error in

fastening the liability on respondent No.3. Hence, on

these grounds, he prayed to allow the appeal.

10. Per contra, learned counsel for the

petitioners submits that the Tribunal was justified in

allowing the claim petition. He further submits that

respondent No.3 being the insurer is liable to

indemnify the liability fastened on respondent No.2.

He submits that the Tribunal after considering the

materials on record was justified in passing the

impugned judgment and award. Hence, on these

grounds, he prayed to dismiss the appeal.

11. Heard and perused the records and

considered the submissions made by learned counsel

for the parties.

12. The point that arises for consideration is

with regard to liability.

13. It is not in dispute that the deceased -

Shankar and respondent No.1 were travelling on Bajaj

Pulsar bike bearing registration No.KA-39/H-6598 and

it is also not in dispute that the deceased - Shankar

was a pillion rider. In order to prove that the accident

was occurred due to rash and negligent riding of the

rider of the motor cycle, the petitioners have produced

the copy of charge sheet marked as Ex.P2. Ex.P2

discloses that the accident was occurred due to rash

and negligent riding of the rider of the offending

vehicle.

14. Insofar as liability is concerned, respondent

No.3 has taken a specific defence in the written

statement that the risk of the pillion rider is not

covered under the policy and no extra premium is

collected from respondent No.2 to cover the risk of

pillion rider. The deceased - Shankar is a gratuitous

passenger, who is not covered under the policy issued

by respondent No.3. In order to substantiate the

defence of respondent No.3, official of respondent

No.3 examined as RW.1 and produced the copy of

insurance policy marked as Exs.R1 and R2. From the

perusal of Exs.R1 and R2, it is an Act policy and the

risk of the pillion rider is not covered under the policy.

Further, respondent No.2 has not paid extra premium

to cover the risk of the pillion rider. Respondent No.3

has produced the sufficient materials to show that the

risk of the pillion rider is not covered under the policy.

The Tribunal without examining and considering the

records produced by respondent No.3, has recorded a

finding that respondent No.3 has not produced any

records is contrary to records. Thus, the Tribunal has

committed an error in fastening the liability on

respondent No.3.

15. In view of the above discussion, I proceed

to pass the following:

ORDER

i. The appeal is allowed.

   ii.          The      judgment      and   award    dated
                08.01.2014          passed      in        MVC
                No.1082/2010 by the I Additional