Soudagar Mohan Londe vs Smt. Anita @/O Kalyan Ghagare And ...
2023 Latest Caselaw 322 Kant

                          1           MFA No.201077/2015




         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

      DATED THIS THE 5TH DAY OF JANUARY, 2023

                      BEFORE

         THE HON'BLE MS. JUSTICE J.M.KHAZI

              MFA NO.201077/2015 (MV)

BETWEEN

SOUDAGAR MOHAN LONDE
MAJOR, OCC:BUSINESS
(OWNER OF MAHINDRA MAX JEEP
NO.MH-13/R-8263)
R/O PAPARI, TQ:MOHOL
DIST.SOLAPUR-413213
(MAHARASHTRA STATE)
                                          ...APPELLANT

(BY SRI. KOUJALAGI C. L., ADVOCATE)



AND

1.    SMT. ANITA W/O KALYAN GHAGARE
      AGE: 41 YEARS, OCC:H.H.WORK

2.    VAIBHAV S/O KALYAN GHAGARE
      AGE: 20 YEARS, OCC:STUDENT

3.    TUKARAM S/O NIVRUTTI GHAGARE
      AGE: 81 YEARS, OCC:NIL

4.    NEELABAI W/O TUKARAM GHAGARE
      AGE: 76 YEARS, OCC:NIL
                           2          MFA No.201077/2015




     ALL ARE R/O PAPARI, TQ: MOHAL
     DIST.SOLAPUR, NOW RESIDING AT
     MURANKERI, BIJAPUR - 586101.


5.   THE MANAGER
     THE CHOLAMANDALAM
     M.S.GENERAL INSURANCE CO.LTD.,
     MALINI BUILDING, BLOCK NO.4,
     FIRST FLOOR, OPPOSITE ESI HOSPITAL
     VIKAS NAGAR, HOTAGI ROAD,
     SOLAPUR-413001

                                      ...RESPONDENTS


(BY SRI. S. S. MAMADAPUR, ADVOCATE FOR R1 TO R4
SRI.C.S.KALBURGI, ADVOCATE FOR R5)

     THIS MFA FILED U/S 173(1) OF MV ACT, PRAYING TO

SET ASIDE THE JUDGMENT AND AWARD DATED 20.03.2015

PASSED IN MVC NO.1082/2014 ON THE FILE OF THE JUDGE

FAST TRACK COURT VIJAYPUR AT VIJAYPUR AND ALLOW THIS

APPEAL FILED BY THE APPELLANT BEFORE THIS HON'BLE

COURT FIX THE LIABILITY TO THE RESPONDENT NO.5 I.E.,

INSURANCE COMPANY, AND ETC.


     THIS APPEAL HAVING BEEN HEARD AND RESERVED ON

03.01.2023, COMING ON FOR PRONOUNCEMENT OF JUDGMENT

THIS DAY, THE COURT DELIVERED THE FOLLOWING:
                                   3             MFA No.201077/2015




                            JUDGMENT

Being aggrieved by the impugned judgment and

award, whereby the respondent No.2/insurance

company is absolved from the liability of paying

compensation on the ground that as on the date of

accident, the offending vehicle was not covered by a

valid policy and directing him to pay the

compensation, respondent No.1-owner is before this

Court in appeal under Section 173(1) of Motor

Vehicles Act (hereinafter referred to as 'the Act' for

short).

2. For the sake of convenience, the parties

are referred to by their rank before the Tribunal.

3. Petitioners who are the wife, son and

parents of deceased-Kalyan Ghagare filed petition

under Section 166 of the Act, seeking compensation in

a sum of Rs.12,16,000/- on account of his death in a

motor vehicle accident involving Mahindra Max Jeep

bearing Reg.No.MH-13/R-8263 (hereinafter referred to

as 'offending vehicle').

     3.1               Petitioners        contended              that    on

19.12.2013        at    about   6:00           p.m.      deceased       was

proceeding on motorcycle bearing Reg.No.MH-13/P-

6397. When he was near the residence of one

Abhimanyu Ghagare on Papari - Bannchwada road,

the offending vehicle came from back side and dashed

against his motorcycle. As a result, deceased

sustained grievous injuries and died on the way to the

hospital.

3.2 Deceased was a coolie earning

Rs.9,000/- per month. As wife, son and parents

petitioners were dependent on him. As owner and

insurer of the offending vehicle respondents are liable

to pay the compensation.

4. Respondent No.1 filed written statement

admitting his ownership. However, he denied that

accident occurred due to rash or negligent driving by

the driver of offending vehicle. It was insured with

respondent No.2 and in the event of allowing the

petition, respondent No.2 may be directed to pay the

compensation.

5. Respondent No.2 has filed written

statement disputing the age, occupation, income of

the deceased and also that the offending vehicle was

insured with it as on the date of accident. On the

other hand, respondent No.2 has specifically

contended that respondent No.1 has secured

insurance on 21.12.2013 whereas the accident is

dated 19.12.2013 and as such, it is not liable to

indemnify him.

6. Based on these pleadings, the Trial Court

framed the necessary issues.

7. In support of petitioners' case petitioner

No.1 is examined as PW.1, one witness as PW.2 and

Exs.P1 to 9 were marked. On the other hand,

respondent No.1 examined himself as RW.2 and got

marked Exs.R2 to 4. On behalf of respondent No.2,

RW.1 and 3 are examined and Exs.R1 and 5 were

marked.

8. Vide the impugned judgment and award,

the Tribunal partly allowed the claim petition awarding

compensation in a sum of Rs.6,05,000/- with interest

at 6% per annum and directed respondent No.1-

owner to pay the same on the ground that as on the

date of accident the vehicle was not covered by a valid

policy and as such, respondent No.2 is not liable to

pay the same. The details of the compensation

granted by the Tribunal are as under:

   Sl.No.      Compensation head              Amount
                                              awarded

     1.     Loss of dependency              Rs.5,20,000/-
     2.     Funeral expenses & other          Rs.15,000/-
            obsequies
     3.     Loss of love and affection        Rs.25,000/-
     4.     Loss of consortium                Rs.20,000/-
     5.     Loss of estate                    Rs.25,000/-
                                    Total Rs.6,05,000/-


     9.     Petitioners      have   not   challenged    the

impugned judgment and award.

10. Aggrieved by the impugned judgment and

award, respondent No.1 is before this Court.

11. During the course of arguments, learned

counsel for respondent No.1-owner submitted that the

compensation granted is on the higher side and

Tribunal has committed error in fixing the liability on

him. As evident from the proposal of insurance policy

at Ex.R2, respondent No.1 applied for issue of policy

and paid the premium on 19.12.2013 itself and

therefore respondent No.2 is liable to indemnify him

and prays to allow the appeal.

12. On the other hand, learned counsel for

respondent No.2 submitted that even though in the

proposal form at Ex.R2 the period of insurance is

noted as 19.12.2013 to 18.12.2014, respondent No.1

has paid the premium on 21.12.2013 which is evident

from Ex.R1 and therefore the policy is valid from 16

hours of 21.12.2013 till the midnight on 20.12.2014

and therefore rightly the Tribunal has absolved

respondent No.2 from the liability of paying the

compensation and prays to dismiss the appeal.

13. Heard arguments and perused the records.

14. Admittedly the accident took place on

19.12.2013 at about 6:00 p.m. It is pertinent to note

that respondent No.1 is none other than the brother-

in-law of petitioner No.1. Even though the incident

took place on 19.12.2013, complaint came to be

lodged 22.12.2013. It appears the offending vehicle

was not covered by a valid policy for the earlier

period. According to respondent No.1 on the date of

incident i.e. on 19.12.2013 he paid premium and

submitted the proposal form at Ex.R2 covering the

period of insurance from 19.12.2013 to 18.12.2014,

but respondent No.2 has issued the policy at Ex.R1

wrongly covering the period from 21.12.2013 to

20.12.2014.

14.1 In this regard, learned counsel for

respondent No.1-owner pointed out the overwriting in

Ex.R5 which is the second copy of proposal given to

respondent No.2/insurance company, wherein at the

column proposed period of insurance the date is

corrected as '21' in the place of '20' and '20' in the

place of '19'. Similarly there is correction with regard

to the date of payment as '21'. The date after

signature of the proposer is also corrected as '21' in

the place of '20'. In this regard, learned counsel for

respondent No.2 submitted that though in the

proposal form the date of proposal was initially noted

as '19.12.2013', since the payment of premium was

made on '21.12.2013', corresponding corrections are

made in the proposal form at Ex.R5 and from the date

of payment of the policy has come into force. He drew

the attention of the Court to the insurance policy at

Ex.R1, wherein the period of insurance is noted as

'21.12.2013 to 20.12.2014' and the date of payment

and receipt date is noted as '21.12.2013'.

14.2 On being enquired as to when the

premium was paid and the date of receipt, learned

counsel representing respondent No.1-owner time and

again submitted that it was on '19.12.2013'.

Admittedly respondent No.1-owner has not produced

the receipt. To show that premium was paid on

19.12.2013 itself and therefore the risk is covered

from the said date, the least respondent No.1-owner

would have done was to produce the receipt for

having paid the premium on 19.12.2013 itself.

14.3. Despite the fact that respondent No.2

is disputing the payment of premium on 19.12.2013

and in Ex.R1 the date of payment is noted as

21.12.2013, respondent No.1-owner has not chosen

to produce the receipt. Therefore, adverse inference is

to be drawn that if produced it is going against his

interest.

15. Having regard to the facts and

circumstances of the case and in the light of Ex.R1

and 5, I hold that the Tribunal has come to a correct

conclusion that as on the date of accident the

offending vehicle was not covered by a valid policy

issued by respondent No.2 and as such, it is not liable

to pay the compensation and the said finding does not

call for interference.

16. Though in the appeal memo respondent

No.1-owner has also challenge the quantum, the said

grounds are not pressed by the learned counsel

representing him. In the result, the appeal fails and

accordingly, I proceed to pass the following:

ORDER

i) Appeal filed by respondent No.1-

owner is dismissed.

ii) The impugned judgment and award is confirmed.

iii) Send back the Trial Court records along with copy of this order.

Sd/-

JUDGE sdu