Karnataka High Court
The Divisional Manager vs Smt. Kempavva W/O. Ramappa Ganiger on 5 April, 2024
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NC: 2024:KHC-D:6188
MFA No. 103877 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 103877 OF 2018 (MV-D)
BETWEEN:
THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD,
DIVISIONAL OFFICE, MARUTI GALLI,
BELAGAVI-590001. REPRESENTED THROUGH
ITS AUTHORISED SIGNATORY,
DIVISIONAL MANAGER.
...APPELLANT
(BY SRI. S. S. KOLIWAD, ADVOCATE)
AND:
1. SMT. KEMPAVVA W/O. RAMAPPA GANIGER,
AGE: 24 YEARS, OCC: HOUSEHOLD WORK,
Digitally signed by R/O. KUDACHI, TQ: RAIBAG,
JAGADISH T R
Location: HIGH DIST: BELAGAVI-591317.
COURT OF
KARNATAKA
2. SMT. SHOBHA W/O. RAKSHAPPA KAMASHETTI,
AGE: 26 YEARS, OCC: HOUSEHOLD WORK,
R/O. HIDAKAL, TQ: RAIBAG,
DIST: BELAGAVI-591317.
3. SHRI. TAMMANI RAJU IMMADI,
AGE: 28 YEARS, OCC: AGRICULTURE WORK,
R/O. HIDAKAL, TQ: RAIBAG,
DIST: BELAGAVI-591317.
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MFA No. 103877 of 2018
4. SHRI. HANAMANT RAJU IMMADI,
AGE: 30 YEARS, OCC: AGRICULTURE WORK,
R/O. HIDAKAL, TQ: RAIBAG,
DIST: BELAGAVI-591317.
5. SMT. YALLAVVA W/O. RAJU IMMADI,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O. HIDAKAL, TQ: RAIBAG,
DIST: BELAGAVI-591317.
6. SHRI. YALLAPPA S/O. BHIMAPPA PADADALI,
AGE: 46 YEARS, OCC: AGRICULTURE BUSINESS,
R/O. NAGANUR, TQ: GOKAK,
DIST: BELAGAVI, PIN-591307.
...RESPONDENTS
(BY SRI. V. S. KALASURMATH, ADV. FOR
SRI. M. V. HIREMATH, ADV. FOR R1 TO R5;
NOTICE TO R6 SERVED)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, PRAYING TO CALL FOR THE RECORDS CONNECTED WITH MVC
NO.2482/2016 PASSED BY IN THE COURT OF THE SENIOR CIVIL
JUDGE AND JMFC RAIBAG, EXAMINE THE SAME AND SET ASIDE THE
AWARD DATED 30.07.2018 AS AGAINST THE APPELLANT IN THE
INTEREST OF JUSTICE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:6188
MFA No. 103877 of 2018
JUDGMENT
Though this appeal is listed for admission, with the
consent of learned counsel for the parties, it is taken up for
final disposal.
2. This appeal is filed by the insurance company
challenging the judgment and award dated 30.07.2018
passed in MVC.No.2482/2016 by the Senior Civil Judge &
MACT., Raibag (for short, 'Tribunal').
3. Heard Sri.Sharanappa S.Koliwad, learned counsel
for the appellant-insurance company and
Sri.V.S.Kalasurmath, learned counsel representing
Sri.M.V.Hiremath, learned counsel for the respondent Nos.1
to 5-claimants.
4. Learned counsel for the appellant-insurance
company submits that the Tribunal has committed grave
error in saddling the liability on the insurance company
without appreciating the fact that the very occurrence of the
accident is doubtful as the alleged accident has taken place
on 29.08.2016 at 05.30p.m. and the deceased Raju
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Masheppa Immadi sustained injuries and as per the post
mortem report he has died at 12:00 a.m. on 30.08.2016 and
in the post mortem it is written as road traffic accident for
the cause of death. However, for the best reasons known to
them, the police complaint is filed on 09.09.2016, there is
delay of 12 days in filing the complaint. Hence, there is
suspicion with regard to accident and involvement of
offending vehicle. He further submits that even assuming for
the purpose of argument that the offending vehicle i.e.,
Tractor, is involved in the accident, but the Tractor was used
for commercial purpose on hire and reward. At the time of
accident, the vehicle was used for carrying bricks, which is in
clear violation of the terms & conditions of the policy. He
submits that the Tribunal has committed further error in
considering the major sons and married daughter as
dependents of the deceased and deducting 1/5th under the
head of living & personal expenses of the deceased, hence,
he seeks to re-assess the same at 1/3rd by excluding the
major sons and married daughter from dependent. He seeks
to allow the appeal.
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5. Per contra, learned counsel for the respondent
Nos.1 to 5-claimants supports the impugned judgment and
award of the Tribunal and submits that the judgment &
award of Tribunal does not call for any interference. Hence,
he seeks to dismiss the appeal.
6. I have heard the learned counsel for the
appellant-insurance company and the learned counsel for the
claimants and perused the material available on record.
7. On 29.08.2016, one Raju Masheppa Immadi while
walking on the left side of the road holding bicycle in his
hand, at that time the driver of the offending vehicle bearing
Reg.No.KA-23-T-1919, KA-23-T-7712 & KA-23-T-7713 drove
the tractor & trailer in rash & negligent manner and dashed
to Raju Masheppa Immadi, as a result he sustained fatal
injuries, hence shifted to hospital and later declared dead.
The post mortem was conducted and copy of the same is
placed on record before the Tribunal and marked as Ex.P-3,
which clearly indicates that the death is caused due to road
traffic accident. No doubt, there is delay in filing the
complaint with regard to the road traffic accident. The
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material available on record clearly indicates that the
deceased initially taken to Naragond Hospital at Harugeri and
provided first aid treatment, then he was shifted to
Vasantdada Patil Government Hospital, Sangali, which is
situated in Maharashtra. Admittedly, the said deceased died
on 30.08.2016 and thereafter the appellants-claimants have
registered the information to the police. The jurisdictional
police, after completion of investigation filed the charge
sheet against the driver of the offending vehicle for the
negligence. There is nothing on record to disbelieve the
charge sheet material as well as the oral testimony of the
claimant. The insurance company has not adduced any
evidence with regard to non-involvement of the offending
vehicle or suspicion with regard to the accident. Hence, this
Court do not find any reason to disbelieve the finding
recorded by the Tribunal with regard to the accident and
saddling of liability on the owner of the vehicle.
8. Insofar as the contention of the learned counsel
for the insurance company that the offending vehicle was
used for commercial purpose is taken note of for the purpose
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of rejection only. There is no iota of evidence available on
record to indicate that the vehicle was used for commercial
purpose. The insurance company ought to have adduced the
evidence of a witness and ought to have placed on record
some material to substantiate their claim that the offending
vehicle involved, was used for commercial purpose. In the
absence of any evidence on record, this Court do not find
any reason to disbelieve the finding recorded by the Tribunal
on liability is concerned.
9. Admittedly, the respondent Nos.1 to 5 are the
legal representative and dependents of the deceased, this
Court keeping in mind the law laid down by the Hon'ble
Supreme Court in the case of National Insurance
Company Limited vs. Birender and others1 Hold that
even the major sons and married daughter of the deceased
can maintain the claim petition and are also entitled for
compensation under the head of loss of dependency. Hence,
the said contention of the learned counsel for the appellant-
insurance company is accordingly rejected.
(2020) 11 SCC 356
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10. For the aforementioned reasons, this Court does
not find any perversity or error in the finding recorded by the
Tribunal calling for interference in the present appeal. There
is no merit in the appeal, accordingly the same is hereby
dismissed.
The amount in deposit shall be transmitted to the
Tribunal forthwith along with TCR.
Sd/-
JUDGE
BSR
Ct-an
