Karnataka High Court
Padmavati W/O Shankaranand Utlasar And ... vs Imtiyaz Ahmed A.Phaniband And Ors on 1 February, 2024
-1-
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MFA No. 202117 of 2016
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS. JUSTICE LALITHA KANNEGANTI
MISCL. FIRST APPEAL NO.202117 OF 2016 (MV-D)
BETWEEN:
1. PADMAVATI W/O SHANKARANAND UTLASAR AGED:
65 YEARS, OCC: HOUSEHOLD
2. SHRIDEVI D/O SHANKARANAND UTLASAR
AGE: 30 YEARS, OCC:NIL,
BOTH ARE R/O SUBHASH COLONY, VIJAYAPUR.
...APPELLANTS
(BY SRI. SANGANAGOUDA V BIRADAR, ADVOCATE)
AND:
1. IMTIYAZ AHMED A. PHANIBAND
Digitally signed
AGE: MAJOR, OCC: BUSINESS,
by KHAJAAMEEN R/O PADADAYAN HAKKAL, 4TH CROSS,
L MALAGHAN OLD HUBLI - 580024.
Location: High
Court of
Karnataka 2. THE BRANCH MANAGER,
NATIONAL INSURANCE CO. LTD
VIJAYAPUR-586101.
3. THE BRANCH MANAGER,
NATIONAL INSURANCE CO. LTD.
VIJAYAPUR-586101.
...RESPONDENTS
(BY SRI. SUDARSHAN M. FOR R3; R1 AND R2 ARE SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE
-2-
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MFA No. 202117 of 2016
IMPUGNED JUDGMENT AND AWARD DATED-16.04.2016
PASSED BY THE LEARNED PRL. SENIOR CIVIL JUDGE AND
MACT-V VIJAYAPURA, IN MVC NO.1445/2011 AND PASS
REASONABLE AWARD. ALTERNATIVELY THE HON'BLE COURT
MAY KINDLY BE PLEASED TO REMAND THE MATTER TO THE
LEARNED TRIBUNAL FOR A FRESH TRIAL PROVIDING
OPPORTUNITY TO LEAD THE FURTHER EVIDENCE OF
APPELLANT.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the dismissal of MVC No.1445/2011,
dated 16.04.2016, by the Principal Senior Civil Judge and
MACT-V, Vijaypur, the claimant is before this court
2. The claim petition is filed seeking compensation
of an amount of Rs.15,00,000/- for the death of the
deceased in the accident. The case of the claimants is that
when the husband of claimant No.1 was traveling in his
Alto Car he met with the road traffic accident due to the
negligence on part of the driver of the lorry. According to
the claimants the deceased was earning an amount of
Rs.10,000/- p.m. The court below had dismissed the claim
petition observing that the deceased is the owner of the
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car, the charge-sheet is filed against the driver of the car
and no evidence is placed on record to show the
involvement of the vehicle and there is no negligence on
the part of the driver of the offending vehicle and
dismissed the claim petition.
3. Learned counsel appearing for the claimants
submits that the court below without any basis had
dismissed the claim petition. The learned counsel submits
that at best it could be a contributory negligence on the
part of the driver of the vehicle which belongs to the
deceased but there is negligence on the part of the driver
of the lorry which was not at all appreciated by the court
below. Learned counsel further submits that the court
below went wrong in dismissing the claim petition. It is
further submitted that there is a personal accident
coverage as per the insurance policy and they have paid
an amount of Rs.100/- and the deceased would be entitled
for an amount of Rs.2,00,000/-. It is submitted that the
court below went wrong in dismissing the claim petition.
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4. Learned counsel appearing for the insurance
company submits that initially a petition is filed under
Section-163-A of M.V. Act and later without seeking any
liberty the claimants have withdrawn the claim petition
which was dismissed as withdrawn. It is submitted that
now the claim petition is filed on two vehicles i.e., lorry
and car. A charge-sheet is filed against the driver of the
car and no other evidence is adduced to show that there is
negligence on the part of the driver of lorry. It is
submitted that when petition is filed under Section-166 of
M.V. Act, the burden lies on the claimants to prove the
same. As they have failed to prove the court below had
rightly dismissed the claim petition.
5. Having heard the learned counsel on either
side, perused the entire material on record. In this case
the claim petition is filed against the driver and the insurer
of the car, as well as the owner and insurer of the lorry.
First of all the claim petition is not maintainable against
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the insurer of the car for the death of the owner of the
vehicle i.e., the deceased, since the insurance policy is
covering the risk of the third parties, but not the owner
himself.
6. Then coming to the aspect of involvement of
the opposite vehicle, the Police evidence shows that the
driver of the car is at fault. Then if it is the case of the
claimants that because of the negligence of the driver of
the lorry the accident had happened he ought to have
adduced the evidence. Except examining herself as PW-1
no other evidence is adduced by the claimants and the
court below had rightly dismissed the claim petition.
However, the court below cannot loose sight of the fact
that as per the insurance policy, there is a personal
accident coverage and the owner of the vehicle has paid
an amount of Rs.100/- and entitled for an amount of
Rs.2,00,000/- towards personal accident coverage.
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7. Accordingly, the appeal is disposed off
directing the insurance company to pay an amount of
Rs.2,00,000/- towards personal accident coverage, along
with interest at 6% per annum from the date of petition till
the date of realization.
Sri.Sudharshan.M, learned counsel is permitted to
file vakalat on behalf of respondent No.2 within two weeks
from today.
i) Insurance company is liable to pay an amount
of Rs.2 lakhs.
ii) The enhanced amount shall carry interest at
6% p.a. from the date of petition till the date of
realization.
iii) On 06.03.2019 this Court had condoned the
delay of 143 days on the condition that the
claimants will not be entitled for interest for the
period of 143 days. Hence, the claimants will
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not be entitled for the interest for the delayed
period of 143 days.
iv) The respondent - insurance company shall
deposit the amount within a period of eight
weeks from the date of receipt of copy of the
judgment. On such deposit, the claimants are
entitled to withdraw the entire amount without
furnishing any security.
v) The amount shall be apportioned in the
following manor of 75% of the compensation
awarded shall be paid to the first appellant-wife
of the deceased and 25% of the compensation
to the second appellant i.e., daughter of the
deceased.
vi) Registry is directed to return the Trial Court
Records to the Tribunal, along with certified
copy of the order passed by this Court forthwith
without any delay.
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vii) No costs.
Pending miscellaneous petitions, if any, shall stand
closed.
Sd/-
JUDGE
JJ
