Karnataka High Court
Sri O Nagendraiah vs Sri Guruswamy on 14 October, 2022
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.NO.7021 OF 2015 (MV-D)
BETWEEN:
SRI. O. NAGENDRAIAH
S/O OBALAPPA
AGED ABOUT 52 YEARS
R/AT VINAYAKA EXTENSION
HOSADURGA TOWN-577 527
CHITRADURGA DISTRICT.
...APPELLANT
(BY SRI. V.B. SIDDARAMAIAH, ADVOCATE- THROUGH VC)
AND:
1. SRI. GURUSWAMY
S/O RANGASWAMY
AGED ABOUT 36 YEARS
2. SMT. SHILPA
W/O GURUSWAMY
AGED ABOUT 27 YEARS
RESPONDENT NO.1 & 2 ARE
R/AT GORLATHU VILLAGE
CHALLAKERE TALUK-577 522
CHITRADURGA DISTRICT
NOW R/AT K.B. EXTENSION
CHITRADURGA-577 501
3. THE ORIENTAL INSURANCE CO. LTD.,
BRANCH OFFICE, SRI. SHARADA COMPLEX
OPP. TO KSRTC BUS STAND
CHITRADURGA-577 501
REP. BY ITS BRANCH MANAGER
... RESPONDENTS
2
(BY SRI. R. SHASHIDHARA, ADVOCATE FOR R1 & R2;
SRI. S.V. HEGDE MULKHAND, ADVOCATE FOR R3-THROUGH VC)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 6.2.2015 PASSED IN
MVC NO.711/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE, CJM, MACT-3, CHITRADURGA, AWARDING A COMPENSATION
OF RS.3,50,000/- WITH INTEREST @ 9% P.A FROM THE DATE OF
PETITION TILL THE DATE OF DEPOSIT.
THIS M.F.A. COMING ON FOR ORDERS THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed challenging the judgment and
award dated 06.02.2015 passed in M.V.C.No.711/2013 on the
file of the Principal Senior Civil Judge, CJM & MACT-III,
Chitradurga ('the Tribunal' for short).
2. The parties are referred to as per their original
rankings before the Tribunal to avoid confusion and for the
convenience of the Court.
3. The factual matrix of the case of the claimants is
that on 02.09.2013 at about 5.10 p.m., when their son Rakesh,
aged about 2 years, was playing on the left side of the road in
front of the house of Rangaswamy, near Gorlathu bus stand, the
driver of the bus drove the vehicle in a rash and negligent
manner and dashed against the said Rakesh. As a result of
which, Rakesh sustained grievous injuries and subsequently,
succumbed to the injuries. Hence, a claim petition was filed by
the claimants before the Tribunal.
4. The learned counsel appearing for the Insurance
Company appeared and filed its written statement contending
that there was no valid permit to ply the vehicle in the place of
the accident and hence, the Tribunal while considering the Issue
No.2, answered the said Issue in partly affirmative and came to
the conclusion that the bus was having permit to ply on the road
but as per the evidence of RW-1 and Ex.R1 to Ex.R3, it was not
having route permit in that road where the accident was
occurred. Nothing has been brought out in the cross
examination to establish that the bus was having valid permit to
ply the bus at the place of occurrence of the accident and hence,
exonerated the liability of the Insurance Company and fastened
the liability on the owner of the bus. Hence, the present appeal
is filed by the owner of the vehicle before this Court.
5. The main contention of the learned counsel for the
appellant is that the Tribunal has committed an error and failed
to take note of the fact that the place of alleged accident at
Gorlathu of Challakere Taluk is in between Yalaghatta -
Narayanapura - Konigarahally. The Gorlathu is attached to
village of Narayanapura situated at the distance of 2 kms., and
on the date of the accident, there was a valid permit to the bus
to reach Narayanapura. And the said fact has not been
considered by the Tribunal. Apart there from, counsel for the
appellant has relied upon the decision of the Division Bench of
this Court at Kalaburagi in MFA No.202022/2016 dated
08.07.2022 wherein this Court distinguishes the judgment of the
Hon'ble Apex Court in the case of Amrit Paul Singh and another
vs. Tata AIG General Insurance Company Limited and others
wherein there was no permit at all and here is the case of only
deviation, wherein, the document-Ex.R1 indicates that permit
was valid with effect from 30.03.2016 and also relied upon the
decision of the Co-ordinate Bench passed in MFA
No.101633/2014 and shifted the liability on the Insurance
Company. He has also referred to the judgments of United India
Insurance Company Limited vs. Yasmin Begum and others and
also M.S.Middle High School vs. HDFC Ergo General Insurance
Company Limited.
6. Per contra, the learned counsel appearing for the
respondent No.3-Insurance Company would vehemently contend
that the decision of Amrit Paul Singh aptly applicable to the case
on hand. Even at the most, it can be ordered for recovery of the
amounts from the owner.
7. The counsel appearing for respondents No.1 and
2/claimants No.1 and 2 submits that there was a permit and
vehicle was also plied based on the permit only. Counsel for
respondent No.1 and 2 also submits that the place of the
accident comes within the purview of Yalaghatta and
Narayanapura.
8. Having heard the arguments of the learned counsel
for the appellant and respondents, the point that arise for the
consideration of this Court is:
(i) Whether the Tribunal has committed an error
in fastening the liability on the Insurance
Company?
9. On perusal of the documents, there is no dispute
with regard to the fact that there was a permit but the
contention the Insurance Company is that the place in which the
accident was taken place not covers the permit and in order to
substantiate the same, the Office of the Superintendent of RTO
was examined as RW-1 and also the documents, Ex-R1 to Ex.R4
were marked. He has deposed that in the said place, there was
no permit. In the cross-examination, a suggestion was made
that Gorlathu Village is located in between Narayanapura and
Konigarahally and witness denied the same and also stated that
he is not aware of the same. It is the contention of the
claimants that the said village is located within Yalaghatta and
Narayanapura and there is no any positive evidence before the
Court. The only say of RW-1 is that Ex.R3-permit not covers the
area in which the accident was occurred. However, it is
important to note that it is not the case of the Insurance
Company that there was no permit. The only contention is that,
in that particular area, there was no permit and it is only a
deviation. Even the contention of the respondent is accepted,
the same will not take away the liability of the Insurance
Company and the Tribunal committed an error in exonerating
the liability of the Insurance Company only on the ground that
there was a deviation and there was no contention that no
permit at all. When such being the case, the very contention of
the Insurance Company that Amrut Paul Singh's case applicable
to the case on hand cannot be accepted and this Court also
distinguishes the said fact in in MFA No.202022/2016 referred to
above and also in other judgments and deviation is not a
fundamental breach to exonerate the liability of the Insurance
Company and hence requires to be modified.
10. In view of the discussions made above, I pass the
following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and award of the
Tribunal dated 06.02.2015 passed in
M.V.C.No.711/2013 on the file of Principal
Senior Civil Judge, CJM and MACT-III,
Chitradurga is modified by setting aside the
exonerating the liability of the Insurance
Company and the liability is fastened on the
Insurance Company.
(iii) Insurance Company is directed to pay the
compensation amount with interest within a
period of six weeks from today.
(iv) It is learnt that the amount in deposit has
already been withdrawn by the claimants and
hence, the insured is permitted to recover the
same from the Insurance Company.
Sd/-
JUDGE
Prs*
