Karnataka High Court
The Divisional Manager vs Budesh Channabasappa Hadimani on 3 January, 2023
Bench: Ravi V.Hosmani
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MFA No. 21759 of 2011
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
MISCELLANEOUS FIRST APPEAL NO. 21759 OF 2011 (MV-I)
BETWEEN:
1. THE DIVISIONAL MANAGER
NEW INDIA ASSURANCE CO. LTD.C.G. HOSPITAL
ROAD, DAVANAGERE,NOW REP: BY ASST.
MANAGERNEW INDIA ASSURANCE CO. LTD.MTP HUB,
DIVISIONAL OFFICE,HUBLI
...APPELLANT
(BY SRI. RAJASHEKHAR S ARANI, ADVOCATE)
AND:
1. BUDESH CHANNABASAPPA HADIMANI
AGE: 33 YEARS, OCC: AGRICULTURE ANDMILK
VENDING, R/O INGALGONDI, TQ: HIREKERUR,
2. SHADAXARAPPA CHANNABASAPPA BANAKAR
AGE: MAJOR, OCC: OWNER OF THE HERO HONDA
ANNAPURNA
CHINNAPPA R/O BANAKAR CHAWL HIREKERUR,
DANDAGAL
Digitally signed by ANNAPURNA
...RESPONDENTS
CHINNAPPA DANDAGAL
Location: High court of
Karnataka, Dharwad Bench, (BY SRI. M H PATIL and G S HULMANI, ADVOCATE FOR R1)
Dharwad
Date: 2023.01.17 10:53:12 -0800
THIS MFA FILED U/SEC.173(1) OF MV ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DTD:21-01-2011
PASSED IN MVC.NO.220/2006 ON THE FILE OF THE PRL.
SENIOR CIVIL JUDGE AND MEMBER, ADDL. MACT AND
ITENERATE COURT AT HIREKERUR, AWARDING THE
COMPENSATION OF RS.40,000/- WITH INTEREST AT THE RATE
OF 6% P.A., FROM THE DATE OF PETITION TILL ITS COMPLETE
REALISATION.
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MFA No. 21759 of 2011
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
JUDGMENT
Challenging impugned judgment and award
dated 24.01.2011 passed by Principal Senior Civil
Judge & AMACT & Intenerate Court, Hirekerur (for
short, 'tribunal') in MVC No.220/2006, this appeal
is filed by insurer.
2. In an accident that occurred on
16.05.2005 when claimant was walking by left side
of road, motorcycle bearing registration
no.KA27/J.6081 driven by its driver in rash and
negligent manner dashed against him causing
injuries. Despite treatment, he sustained physical
disability and consequent loss off earning capacity.
Claiming compensation for same, he filed claim
petition against owner and insurer of motorcycle
claiming compensation.
MFA No. 21759 of 2011
3. Despite service of notice, owner did not
appear. He was placed ex-parte. Insurer filed
objections denying accident due to rash and
negligent riding of motorcyclist and alleging
violation of policy condition by insurer.
4. Based on pleadings, tribunal framed
issues and recorded evidence. Thereafter, tribunal
recorded categorical finding that accident occurred
due to rash and negligent driving of insured
motorcycle.
5. While assessing compensation, from
Ex.P5 - wound certificate, it observed that
claimant sustained fracture of shaft of right tibia
and fibula leading to permanent physical disability
as per Ex.P6-disability certificate issued by
Dr.Umanath R.Ullal. Taking into fact that claimant
had not examined Doctor, it awarded global
compensation of Rs.40,000/- with interest at 6%
p.a. and held respondents no.1 and 2 jointly and
MFA No. 21759 of 2011
severally liable to pay compensation. Challenging
liability, insurer is in appeal.
6. Sri. Rajashekar S.Arani, learned counsel
for appellant-insurer at outset submitted that
occurrence of accident due to rash and negligent
driving of motorcycle and claimant sustained
injures therein are not in dispute. Issuance of
policy and its validity as on date of accident are
also not in dispute. The only dispute is about
liability on ground of violation of policy condition
by insured. It is contended that Ex.R2 - driving
licence reveals that rider of motorcycle had
obtained driving licence in respect of LMV and HTC
in year 1993. But, driving licence in respect of
motorcycle with gear was issued with effect from
25.10.2005, which was about five months after
date of accident. Therefore, as on date of accident,
rider of motorcycle did not have valid and effective
driving licence. Since this was fundamental breach
MFA No. 21759 of 2011
of terms and conditions of policy, liability of
insurer was required to be exonerated. On above
ground, sought for allowing appeal.
7. On other hand, Sri. M.H.Patil, learned
counsel for claimant submitted that in instant
case, claimant was a pedestrian and third party.
Therefore, he cannot be denied compensation.
8. Heard learned counsel, perused impugned
judgment and award and record.
9. In this case, it is not in dispute that
claimant was a pedestrian at time of accident.
Therefore, he would be a third party. Hence, as
per ratio of decision in National Insurance co.
Ltd. Swaran Singh and others reported in
(2004) 3 SCC 297 and full bench decision of this
Court in New India Assurance Co. Ltd. Vs.
Yallavva and another reported in ILR 2020 Kar
2239 insurer cannot escape liability insofar as
MFA No. 21759 of 2011
third party and would be required to first pay
compensation to claimant and thereafter, recover
same from insured. In view of above legal position,
award passed by tribunal would be unsustainable.
10. In result, I pass following:
ORDER
a. Appeal is allowed in part.
b. Appellant-insurer shall first pay
compensation to claimant and
thereafter, recover same from insured.
c. Amount in deposit is ordered to be
transmitted to Tribunal for
disbursement.
Sd/-
JUDGE
VMB
