Karnataka High Court

Sri M G Revanasiddappa vs Ningappa on 8 August, 2024

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                                                                NC: 2024:KHC:31812
                                                           MFA No. 8576 of 2013




                            IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 8TH DAY OF AUGUST, 2024

                                                BEFORE
                       THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
                       MISCELLANEOUS FIRST APPEAL NO.8576 OF 2013(MV-I)
                       BETWEEN:

                             SRI. M.G. REVANASIDDAPPA
                             AGED ABOUT 52 YEARS,
                             S/O M.G. NINGAPPA,
                             R/AT MITTALAKATTE VILLAGE,
                             MUDAHADADI POST, HARIHARA TALUK,
                             DAVANAGERE DISTRICT 577 601
                                                                      ...APPELLANT
                       (BY SRI. S. NAGABHUSHANA, ADVOCATE)

                       AND:

                       1.    NINGAPPA
                             AGED ABOUT 30 YEARS,
                             S/O MADIVALARA RANGAPPA,
                             R/O KUMBALUR VILLAGE, HARIHAR TALUK,
Digitally signed by
PRAJWAL A                    DAVANAGERE DISTRICT 577 601
Location: HIGH COURT
OF KARNATAKA
                       2.    THE ORIENTAL ASSURANCE CO. LTD.,
                             NO. 523/7, THIRUVALLI COMPLEX,
                             1ST FLOOR, P.B. ROAD,
                             NEAR ARUNA THEATER,
                             DAVANAGERE 577 601
                             REPRESENTED BY THE MANAGER

                       3.    BASAPPA AVARAGOLLA
                             S/O HANUMANTHAPPA,
                             AGED ABOUT 40 YEARS,
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                                            NC: 2024:KHC:31812
                                          MFA No. 8576 of 2013




     EARLIER OWNER OF PIAGGIO AUTO
     RIKSHAW REG NO.KA 17 A 982,
     HARAPANAHALLI TALUK,
     DAVANAGERE DISTRICT 577 601.
                                                 ...RESPONDENTS
(BY SRI. RAJASHEKARA K, ADVOCATE FOR R1;
    SRI. K. SURESH, ADVOCATE FOR R2;
    R3 - NOTICE D/W)

      THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 6.7.2013                PASSED IN MVC
NO.144/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE,
MEMBER,     ADDITIONAL      MACT,     HARIHAR,    AWARDING   A
COMPENSATION OF RS.3,91,050/- WITH INTEREST @ 6% P.A
FROM THE DATE OF PETITION TILL DEPOSIT.

      THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:     HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA


                       ORAL JUDGMENT

In this appeal, the owner of the autorickshaw has

challenged the Judgment dated 06.07.2013 passed in MVC

No.144/2010 by Senior Civil Judge and Member, Addl. M.A.C.T,

Harihar (in short 'the Tribunal').

2. The appellant was the owner of the autorickshaw,

Respondent No.1 was petitioner, Respondent No.2 was the

insurer of the autorickshaw and Respondent No.3 was the

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previous owner of the autorickshaw. Hence, for the sake of

conveniene, the rank of the parties shall be referred to as per

their status before the Tribunal.

3. The brief facts of the case are, on 10.08.2009 at about

12.30 p.m., while the petitioner was traveling in the

autorickshaw bearing No.KA-17/A-982, it met with an accident

near Wind Power Mill near between Duggavathi - Haluvaguru

road involving another autorickshaw bearing No.KA-17/V-7974,

due to which, the petitioner sustained injuries. After taking

treatment, he has approached the Tribunal for grant of

compensation. Claim is opposed by the insurer and the

previous owner of the autorickshaw. After taking evidence and

hearing both the sides, the Tribunal allowed the claim petition

granting compensation of Rs.3,91,050/- directing the present

owner, i.e., the respondent No.1/appellant to pay the

compensation. Aggrieved by the same, he has filed this appeal

on various grounds.

4. Heard arguments of Sri.S.Nagabhushana, learned counsel

for the owner of the autorickshaw, Sri.Rajashekara.K, learned

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counsel for the petitioner-claimant and Sri.K.Suresh, learned

counsel for the Insurance Company.

5. It is contended by the learned counsel for the owner of

the autorickshaw that at the time of accident, he was holding

valid driving licence, permit and the policy of insurance is in

force. Hence, the Insurance Company has to cover the risk of

the insurer. The Tribunal on the erroneous assumption,

fastened the liability against him and to support his contention,

has relied upon the Judgment in New India Assurance

Company Limited vs. Krishnappa and others (MFA

No.7960/2013 (MV-D) D.D.23.06.2020) and Judgment in

Shivakumar.P vs. Jayarama and others (MFA

No.4619/2015 (MV-D) D.D.27.11.2023).

6. Per contra, learned counsel for the Insurance Company

has contended that the autorickshaw was though covered on

the date of accident, the driver was not having valid driving

licence to drive the autorickshaw. The policy issued was

subject to certain conditions, whereas the permit restricted the

movement of the autorickshaw within 5 kms., radius of

Harapanahalli. On the date of accident, since there is a

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violation in respect of the driving licence as well as permit, the

Insurance Company can avoid its liability and the Tribunal has

rightly fastened the liability against the owner to pay the

compensation.

7. Learned counsel for the petitioner submitted that the

petitioner is a victim of the accident, compensation is assessed

proportionate to the injuries as the petitioner suffered fracture

of right femur, fracture of middle 1/3rd of both the bones of

right leg. He was under hospitalization for 42 days and has

suffered 30% of whole body disability. Petitioner-claimant

being a Laundry-man earning Rs.6,000/- p.m., irrespective of

the liability on the owner or the Insurance Company, he is

entitled for compensation and both the insurer and insured are

directed to pay the compensation.

8. The accident is not in dispute. The two contentions

raised by the Insurance Company are that, there is a permit

violation and the driver did not possess valid driving licence.

The accident occurred on 10.08.2009. The autorickshaw was

having a valid permit till 09.02.2010. Permit issued between

10.02.2005 to 09.02.2010. The permit indicated the 5 kms.,

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radius of Harapanahalli. The accident took place outside the 5

kms., limit. In this regard, this Court referring to the Judgment

of Division Bench of this Court in United India Insurance

Company Ltd. vs.Sandhya and others (MFA

No.102428/2017 (MV) D.D.07.06.2019 wherein it is held

that where the vehicle has gone outside the permit route and

caused the accident, the grounds on which the insurance

Company can avoid its liability are enumerated under Section

149(2)(a)(i)(c) of the Motor Vehicles Act. Section 66 of the Act

is also a ground on which the insurer can avoid its liability if the

vehicle was plying without any permit. It was held that the

Insurance Company is liable to pay the compensation by

indemnifying the insured.

9. The Respondent No.1-driver of the autorickshaw in

question was having LMV (non-transport) licence for the period

21.09.1998 to 09.06.2009 and it was renewed on 26.08.2009

and was valid till 25.08.2014. On the date of accident, the

driving licence was lapsed and it was not in force. It has been

renewed on a later date. There is no evidence on record that

for the reason of not renewing the driving licence, the accident

has been caused. The Division Bench of this Court in

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Krishnappa's case supra, held that failure to renew the

driving licence is not a ground for the Insurance Company to

avoid its liability to pay the compensation. It is held in the said

Judgment that the Insurance Company cannot be exonerated of

its liability to satisfy the award. The facts and circumstances of

both the cases are aptly applicable to the case on hand.

Therefore, Insurance Company cannot avoid its liability to

indemnify the insured. The finding recorded by the Tribunal in

this regard is not supported with serious reasoning. Hence, it

requires modification.

10. QUANTUM OF COMPENSATION:

This Court has reassessed the compensation wherein the

entitlement of the petitioner comes to Rs.3,81,000/-, whereas

the Tribunal has awarded Rs.3,91,000/-. The difference is only

Rs.10,000/- which is less than 3%. Hence, the order of the

Tribunal cannot be modified in so far as the quantum of

compensation. Hence, the appeal deserves to be allowed. In

the result, the following:

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ORDER

i) The appeal is allowed.

       ii)    The       impugned    Judgment     and       Award    is

       modified.

iii) Respondent Nos.1 and 2 before the Tribunal

are jointly and severally liable to pay the

compensation.

iv) The Insurance Company is directed to

indemnify the owner of the autorickshaw and

directed to deposit the compensation with interest

within eight weeks from the date of receipt of

certified copy of this Judgment.