Karnataka High Court
Ravi S/O Lachappa Kodabagi vs The Branch Manager And Anr on 30 March, 2022
Bench: Ashok S. Kinagi
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
MFA No.202284/2019 (MV)
C/W
MFA NO.201216/2019
In MFA No.202284/2019
Between:
Ravi S/o Lachappa Kodabagi,
Age: Major, Occ: Business owner of
Motorcycle bearing No.KA-28-U-3236,
R/o At PO Jambagi (H), Tq. Bijapur.
Now at Basavana Bagewadi.
... Appellant
(By Sri. Sanganagouda V.Biradar, Advocate)
And:
1. The Branch Manager,
National Insurance Co. Ltd.
Hanamashetti Building Gurukul Road,
Vijayapura-586 101.
2. Anand S/o Arjun Chalawadi,
Age: 33 years, Occ: Coolie,
R/o Jambagi (H),
Tq. & Dist. Vijayapura-586 101.
Now R/at B.bagewadi.
... Respondents
(By Sri. Deepak V.Barad, Advocate for R1;
By Sri. Koujalagi C.L, Advocate for R2)
2
This Miscellaneous First Appeal is filed under Section
173(1) of the M.V. Act, praying to allow the appeal by setting
aside the judgment and award passed by the Addl. Senior
Civil Judge and Member MACT-IX at Basavana Bagewadi in
MVC No.77/2010 dated 28.09.2018 and consequently dismiss
the claim petition or alternatively hold the respondent No.1
insurance company is liable to pay the compensation.
In MFA No.201216/2019
Between:
Anand S/o Arjun Chalawadi,
Age: 33 years, Occ: Coolie,
R/o Jambagi (H), Tq. & Dist. Bijapur,
Now R/at Basavana Bagewadi-586 2023
... Appellant
(By Sri. Koujalagi C.L,, Advocate)
And:
1. Ravi S/o Lachappa Kodabagi,
Age: Major, Occ: Business and owner
of Motorcycle bearing No. KA-28/U-3236,
R/o At: PO: Jambagi (H),
Tq: Bijapur-586 101.
2. The Branch Manager,
The National Insurance Company Ltd.,
Hanamashetti Building Gurukul Road,
Vijayapura-586 101.
... Respondents
(By Sri. Sanganagouda V.Biradar, Advocate for R1;
By Sri. Deepak V.Barad, Advocate for R2)
This Miscellaneous First Appeal is filed under Section
173(1) of the M.V. Act, praying to modify the judgment and
award dated 28.09.2018 passed in MVC No.77/2010 on the
file of the Court of the Additional Senior Civil Judge and
Member of Motor Accident Claims Tribunal No.IX, Basavana
Bagewadi, and allow this appeal to grant the compensation
and etc.,
3
These appeals coming on for admission, this day, the
Court delivered the following:-
JUDGMENT
Since these two appeals arise out of the
judgment and award, they are heard together and
disposed of by this common judgment.
2. These appeals are filed under Section
173(1) of the Motor Vehicles Act (for short 'the Act')
challenging the judgment and award dated
28.09.2018 passed in MVC No.77 of 2010 by the
Motor Accident Claims Tribunal, Bidar, (for short
hereinafter referred to as 'the Tribunal').
3. Parties are referred to as per their ranking
before the Tribunal. MFA No.202284/2019 is filed by
the respondent No.1-Owner and MFA No.201216/2019
is filed by the owner of the petitioner. Appellant in
MFA No.202284/2019 is respondent No.1, respondent
No.1 is respondent No.2 and respondent No.2 is
petitioner before the tribunal.
4. Facts giving rise to filing of these appeals
are as under:
4.1. That on 02.03.2010, the petitioner was
proceeding towards Jambagi on the motorcycle
bearing registration No.KA-29/L-4667. When he
reached near Nandi Factory on Jambagi road, at
Babaleshwar P.S. limits, one motor cycle bearing
registration No.KA-28/U-3236 came from Jambagi
ridden by its rider in a rash and negligent manner
endangering human life, dashed to the motorcycle of
petitioner, due to which, the petitioner sustained
injuries and spent huge amount for the treatment.
Hence, the petitioner filed the petition under Section
166 of the M.V.Act seeking compensation.
4.2. In spite of service of notice, the respondent
No.1 appeared but did not filed written statement. The
respondent No.2 filed written statement in which the
averments made in the petition were denied. Further
denied the date, time and place of accident and also
vehicle involved in the accident. It is also denied the
age, occupation, income of the petitioner and also
injuries sustained by the petitioner. It is further
contended that rider of the motorcycle was not
holding driving licence to drive the motorcycle in
question as on the date of the accident. Hence, sought
for dismissal of the petition.
4.3. On the basis of the pleadings of the parties,
the Tribunal framed the issues and thereafter
recorded the evidence. In order to prove the case,
the petitioner examined himself as PW-1 and got
exhibited documents namely Ex.P1 to Ex.P8. The
authorized officer of Insurance Company is examined
as RW-1 and got examined the rider of the motorcycle
as RW.2 and got marked documents Exs.R1 to R5.
The Tribunal, by the impugned judgment, inter alia,
held that the petitioner has proved that has sustained
injuries due to rash and negligent driving of the driver
of offending vehicle and further held that the
petitioner is entitled for compensation and accordingly
partly allowed the claim petition by awarding
compensation of Rs.25,000/- with interest at the rate
of 9% p.a. and dismissed the claim petition against
respondent No.2 and directed the respondent No.1 to
pay the compensation amount along with interest.
Being dissatisfied with the compensation awarded by
the Tribunal, the respondent No.1-owner filed MFA
No.202284/2019 challenging the liability and
petitioner has filed MFA No.201216/2019 seeking for
enhancement of compensation amount.
5. Heard the learned counsel for petitioner
and learned counsel for respondent No.1-owner of the
motorcycle and learned counsel for respondent No.2-
Insurance Company.
6. The learned counsel for the petitioner
submits that petitioner has suffered permanent
disability and he has produced wound certificate which
is marked as Ex.P3. The tribunal has committed an
error in awarding global compensation of Rs.25,000/-.
Hence, he prays to allow the appeal filed by the
petitioner and prays to dismiss the appeal filed by the
respondent No.1.
7. Per contra, learned counsel for respondent
No.1 submits that rider of the motorcycle was
possessing valid and effective driving licence as on the
date of the accident. He further submits that the
tribunal has committed an error in fastening the
liability on respondent No.1. Hence, on these grounds
prays to allow the appeal filed by the respondent
No.1-owner and prays to dismiss the appeal filed by
the petitioner.
8. Perused the records and considered the
submissions made by the learned counsel for the
parties.
9. The point that arise for consideration are
with regard to liability and quantum of compensation.
10. It is not in dispute that the petitioner met
with an accident and sustained injuries in the road
traffic accident. In order to prove that the accident
was occurred due to rash and negligent driving of the
driver of the offending vehicle, the petitioner has
produced copy of charge sheet which is marked as
Ex.P5. Ex.P5 discloses that the accident was occurred
due to rash and negligent driving of the driver of the
offending vehicle.
11. Further, it is the case of the petitioner that
he was doing coolie work and aged about 24 years
and earning Rs.6,000/- per month and due to the
injuries he is unable to do work as earlier. In order to
prove the disability, he has examined one doctor who
has issued wound certificate. From perusal of the
wound certificate at Ex.P3, discloses that the injuries
sustained fracture of nasal bone and said injury is
grievous in nature. Considering the evidence of PW.1
and wound certificate, the compensation awarded by
the tribunal is on the lower side which needs to be
enhanced to Rs.50,000/-. Hence, the petitioner is
entitled for global compensation of Rs.75,000/- with
interest at 6% p.a. from the date of petition till
realization as against Rs.25,000/- awarded by the
tribunal.
12. Insofar as liability is concerned, it is the
case of respondent No.2 that rider of the motorcycle
was not holding valid and effective driving licence as
on the date of the accident. In order to prove that
respondent-Insurance Company has examined RW.1.
RW.1 contended that rider of the vehicle was not
having valid and effective driving licence as on the
date of the accident. Further they have produced
records to show that name of rider of the vehicle is
Vasant S/o: Hanumanth Halaki in the school records.
However, in the charge sheet his name is mentioned
as Vasant @ Vasu S/o: Hanumanth Halaki @
Panchagavi. The rider of the offending vehicle is
examined as RW.2. He has stated in the course of
cross-examination that he does not have any
documents to show that he is called as Vasu @ Vasant
and his surname as Halaki @ Panchagavi. From
perusal of the evidence of RW.2, it is clear that rider
of the offending vehicle was having valid and effective
driving licence as on the date of the accident.
Admittedly, the vehicle was insured with respondent
No.2. The respondent No.1 has permitted the vehicle
to use to an un-authorized person to drive the vehicle
and thereby violated the policy conditions. Hence,
respondent No.2 is liable to pay compensation and
recover the same from respondent No.1, in view of
law laid down by the Hon'ble Apex Court in the case of
New India Assurance Co., Ltd., vs Yallavva &
Anr., passed in MFA No.30131/2010, disposed on
12.05.2020,
13. In view of the above discussion, I proceed
to pass the following:
ORDER
The appeal in MFA No.202284/2019
filed by the respondent No.1-owner is
dismissed.
The appeal in MFA No.201216/2019
filed by the petitioner is allowed in part.
The judgment and award passed by
the Tribunal in MVC No.77/2010 dated
28.09.2018, is modified. The petitioner is
entitled to an enhanced global
compensation of Rs.50,000/- along with
interest at the rate of 6% p.a. from the
date of filing of the claim petition till the
date of realization.
Respondent No.2, Insurance
Company is directed to deposit the entire
compensation amount along with interest,
within a period of eight weeks from the
date of receipt of copy of this order and
recover the same from respondent No.1.
Liberty is reserved to respondent No.2 to
recover the compensation amount from
respondent No.1, in accordance with law.
The amount in deposit shall be
refund to the Insurance Company.
Sd/-
JUDGE
msr
