Karnataka High Court
Sri.C.Onkaramurthy vs Sri.Devendrachar M.V on 6 December, 2023
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MFA No. 7409 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO. 7409/2014 (MV-I)
BETWEEN:
1. SRI. C. ONKARAMURTHY,
AGED ABOUT 46 YEARS,
S/O. SRI. CHENNABASAPPA
RESIDING AT
KURUBARAHALLI VILLAGE,
MATHIGHATTA POST,
KADUR TALUK,
CHICKMAGALUR DISTRICT - 577 548.
2. SRI. BASAVARAJAPPA,
S/O. NANJUNDAPPA,
AGED ABOUT 44 YEARS,
RESIDING AT
KURUBARAHALLI VILLAGE,
MATHIGHATTA POST,
Digitally signed by KADUR TALUK,
MALA K N CHICKMAGALUR DISTRICT - 577 548.
Location: HIGH COURT
OF KARNATAKA ...APPELLANTS
(BY SRI. GURUDEV PRASAD K. T, ADVOCATE)
AND:
1. SRI.DEVENDRACHAR M.V,
S/O. SRI. VIRUPAKSHACHAR,
AGED ABOUT 49 YEARS,
R/O MATHIGHATTA,
KADUR TALUK,
CHICKMAGALUR DISTRICT - 577 548.
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MFA No. 7409 of 2014
2. THE BRANCH MANAGER,
NATIONAL INSURANCE COMPANY LTD,
CHICKMAGALUR - 577 548,
BY ITS BRANCH MANAGER.
...RESPONDENTS
(BY SRI P. B. RAJU, ADVOCATE FOR R2)
***
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 20.02.2014 PASSED IN MVC
NO.41/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT,
KADUR, CHIKMAGALUR DISTRICT, AWARDING COMPENSATION
OF Rs. 65,158/- WITH INTEREST @ 6% P.A. FROM THE DATE
OF PETITION TILL DEPOSIT.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Respondent Nos.1 & 2 have challenged the judgment and
award dated 20.02.2014 passed in MVC No.41/2014 by the
Senior Civil Judge and MACT at Kadur, Chikmagalur District
('the Tribunal' in short).
2. For the sake of convenience, the rank of the parties
shall be referred to as per their status before the Tribunal.
3. The brief facts of the case is are, on 07.06.2009 at
about 08.30am, while the petitioner was riding TVS Moped
bearing Registration No.KA-18 / 1723 along with his wife and
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minor child from Ballekere Village towards Mathighatta near
land of Lokappa on Chellanahally, Bellekere Road, a Hero
Honda Motor Cycle bearing Registration No. KA-18 R-6706
dashed against them injuring the petitioner with crush injuries
to right foot and fracture of right fibula. After taking treatment
at Government Hospital, Kadur and Holy Cross Hospital,
Chikmagalur, the petitioner has approached Tribunal for grant
of compensation. The respondents have opposed the claim. The
Tribunal after taking evidence, awarded compensation in a sum
of Rs.65,158/- with interest @ 6% per annum and fastened the
liability on respondent Nos.1 & 2 and directed them to pay the
compensation and dismissed the claim petition as against
respondent No.3 - Insurance company. Aggrieved by the same
respondent Nos.1 & 2 have filed this appeal on various
grounds.
4. Heard the arguments of learned counsel Sri
Gurudev Prasad appearing for petitioners and learned counsel
Sri P.B.Raju, appearing for Insurance company.
5. It is the contention of the learned counsel for
petitioners that the rider and owner of the vehicle are
respondent Nos.1 & 2. The respondent No.1 had valid driving
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licence and insurance policy is in force on the date of accident.
But, only on the guise that there were two pillion riders,
Insurance company is exonerated. The two pillion riders in the
moped are none other than the wife and minor child of the
rider. There is no evidence brought on record to show that
because of the petitioner carrying one extra pillion rider, the
accident occurred. He relied on the judgment of this Court in
the case of KARNATAKA STATE ROAD TRANSPORT
CORPORATION vs BELLAPPA reported in ILR 2017 KAR 1292, to
the effect that excess passengers carried in a vehicle by itself
would not be construed as breach on the part of the owner /
insured of the vehicle. He sought for fastening of the liability
against the Insurance company as it has duty to indemnify the
insured.
6. Per contra, learned counsel for Insurance company
has contended that it is a clear case of violation of terms and
conditions of the Policy. The Tribunal has rightly observed that
there were two pillion riders at the time of accident and
Insurance company cannot be held liable to indemnify the
insured and order of dismissal is proper. He supports the
impugned judgment and award passed by the Tribunal.
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7. I have given my anxious consideration to the
arguments addressed by the learned counsel for both the
parties and perused the material on record.
8. There is no dispute as to the cause of accident,
injury sustained by the petitioner and determination of the
compensation. Petitioner having not filed any appeal, there is
no question of considering the quantum of compensation as
assessed by the Tribunal. The only issue is liability of the
Insurance company to indemnify the insured.
9. The material on record point out that while the
petitioner was riding his TVS moped along with his wife and
minor child, the road traffic accident occurred. At the time of
accident, rider of the TVS Moped had valid insurance policy and
rider possess valid driving license. There is no material on
record to show that for the reason of carrying one minor child,
the accident occurred. That apart, minor carried as an extra
pillion, is not a fundamental breach of terms and conditions of
the policy and such defence is not available to the Insurance
company under Section 149(2) of the MV Act. When the rider
holding valid driving licence and owner had valid insurance
policy, then it is the duty of the Insurance company to
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indemnify the insured. There is no rationality in the reasons
assigned by the Tribunal and it calls for interference. Appeal
merits consideration, Accordingly, in the result, the following
order:
ORDER
(1) The appeal is allowed in part.;
(2) The impugned judgment and award is modified.;
(3) All the respondents are jointly and severally liable to
pay the compensation.;
(4) Insurance company shall indemnify the insured and
is directed to deposit the compensation within a
period of eight weeks from the date of receipt of the
copy of this order and further it is at liberty to
recover the same from the owner in the same
proceedings.;
(5) Amount in deposit shall be transmitted to the
Tribunal.
Sd/-
JUDGE
VK
