Karnataka High Court
The Manager vs Sri Shivanandaswamy on 13 February, 2024
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NC: 2024:KHC:6043
MFA No. 6099 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO. 6099 OF 2013(MV-I)
BETWEEN:
THE MANAGER,
M/S ORIENTAL INSURANCE COMPANY. LTD.,
JAYADEVA HOSTEL BUILDING,
B.H. ROAD, TIPTUR,
REP BY ITS
MS/ ORIENTAL INSURANCE COMPANY LTD.,
REGIONAL OFFICE,
SUMANGALA COMPLEX,
LAMINGTON ROAD,
HUBLI-580 020,
BY ITS ASSISTANT MANAGER.
...APPELLANT
(BY SRI. SRINIVASA K N., ADVOCATE)
AND:
1. SRI SHIVANANDASWAMY,
Digitally S/O SHIVAIAH,
signed by
BHARATHI S AGED ABOUT 35 YEARS
Location: R/O MADIHALLI VILLAGE,
HIGH SHETTIKERE HOBLI
COURT OF
KARNATAKA C.N. HALLI TALUK
TUMKUR DISTRICT-572 214.
2. SRI. SAYED MULLA SAB,
S/O LATE MOTHER SAB,
AGED ABOUT 45 YEARS
R/O NO.713/A, MARUTHINAGAR,
HULIYAR, C.N. HALLI TALUK
TUMKUR DISTRICT-572 218.
...RESPONDENTS
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MFA No. 6099 of 2013
(BY SRI. K. A CHANDRASHEKARA, ADVOCATE FOR R1;
SRI. K. SHENTA RAJ, ADVOCATE FOR R2)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED04.04.2013 PASSED IN MVC
NO.1529/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE, &
XIX MACT, ITINERATE COURT, CHIKKANAYAKANAHALLI,
AWARDING COMPENSATION OF Rs.44,900/- WITH INTEREST 2
6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The above appeal is filed by the claimant challenging
the judgment and award dated 04.04.2013 passed in
MVC.No.1529/2008 by the Senior Civil Judge and XIX
MACT Itinerate Court, C. N. Halli1, challenging the finding
on liability as well as seeking for enhancement of
compensation.
2. For the sake of convenience, the parties herein
are referred to as per their ranking before the Tribunal.
3. The relevant facts necessary for consideration of
present appeal are that the claimant filed a claim petition
seeking compensation for the injuries sustained in a road
Hereinafter referred to as the 'Tribunal'
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traffic accident, which occurred on 28.03.2008. The case
of the claimant is that when he was traveling in the lorry
along with onion bags, the driver of the lorry drove the
same in a rash and negligent manner causing the accident
in question, as a result of which the claimant has
sustained grevious injuries. Claiming compensation for
which the claim petition was filed. The owner and insurer
of the lorry were arrayed as respondent Nos.1 and 2
before the Tribunal. The owner and insurer entered
appearance and filed their settlement of objection.
4. The claimant examined himself as PW.1 and the
doctors were examined as PW.2 and PW.3. Ex.P1 to Ex.P8
were marked as evidence. The representative of the
insurer has been examined as RW.1. Ex.R1 and Ex.R2 has
been marked in evidence. The Tribunal by its judgment
and award dated 04.04.2013 awarded a compensation of
`44,900/- together with interest at 6%p.a. and held that
respondent Nos.1 and 2 are jointly and severally liable
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liability to pay the compensation award. Being aggrieved
the insurer has preferred the present appeal.
5. The sole contention urged by the learned counsel
for the insurer is that the claimant was traveling as a
gratuitous passenger in the goods vehicle and the insurer
is not liable to pay the compensation award. It is further
contended that a specific defence, which has been taken
by the insurer in the statement of objections which has not
been adequately re-appreciated by the Tribunal. It is
further vehemently contended that the claimant has not
produced any material to demonstrate he hired the
insured vehicle, in the absence of which the liability ought
not have been fastening on the insurer. It is further
contended that the Tribunal solely on the ground that the
insurer has not produced any evidence, fastened the
liability to pay the compensation awarded on the insurer,
which is erroneous and liable to be interfered with. Hence,
he seeks for allowing of the above appeal and granting of
the relief sought for.
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6. Per contra, learned counsel for respondent
No.1/claminant justifies the judgment and award passed
by the Tribunal.
7. The submissions of the learned counsel for the
parties have been considered and material on record
including the records of Tribunal have been perused. The
question that arises for consideration is "whether the
finding of Tribunal fastening the liability on the insurer is
just and proper".
8. The claimant, in the claim petition has specifically
averred that on the date of the accident he had gone to
purchase onions from Tiptur market and after purchasing
the same he loaded the said onion bags to the insured
vehicle to transport the same. The owner of the vehicle
had entered appearance and in his statement of objection
has admitted that the claimant after purchasing the onion
engaged the insured vehicle on hire basis, in order to
transport the onions purchased by him and that the
claimant is owner of the onion bags. The insurer has
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disputed the case putforth by the claimants in the claim
petition.
9. The claimant has also examined himself as PW.1
and in his affidavit by way of examination-in-chief, he has
reiterated the case putforth in the claim petition. Although
PW.1 has been cross-examined, there is no specific
admission with regard to the purpose of which he had
hired the insured vehicle.
10. The insurer examined its representative as
RW.1, wherein, it is stated that the claimant was traveling
along with other co-passengers in the goods vehicle and
hence, the claimant being a passenger in the goods
vehicle, the liability on the insurer does not arise.
11. The Tribunal considering the same has recorded
a finding that the insurer apart from examining its
representative as RW.1, has not produced any
independent evidence to prove its contention.
12. It is forthcoming from the material on record
that the claimant having categorically putforth his case,
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that he had hired the insured vehicle for the purpose of
transporting the goods purchased by him and the said
aspect of the matter has been specifically admitted by
respondent No.1/owner of the vehicle.
13. The insurer having disputed the same has, apart
from cross-examining PW.1, merely adduced the evidence
of its representative as RW.1. The insurer has not
produced any other, oral or documentary evidence to
prove its case that the claimant was a gratuitous
passenger in the goods vehicle.
14. The contention of the learned counsel for the
insurer that the claimant ought to have produced some
documents for having hired the insured vehicle, is not
liable to be accepted having regard to the fact that, the
claimant having putforth his case he had hired the insured
vehicle, the said aspect has been admitted by the owner of
the vehicle/respondent No.1 in the statement of
objections. Hence, the onus of demonstrating that the
claimant was a gratuitous passenger traveling in the goods
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vehicle is on the insurer, however the insurer has failed to
discharge its onus. The appellant has failed in
demonstrating that the finding of the Tribunal is erroneous
and contrary to any other material available on record.
15. In view of the aforementioned the question
framed for consideration is answered in the "affirmative".
Hence, the following:
ORDER
(i) The above appeal is dismissed.
(ii) The judgment and award dated
04.04.2013 passed in MVC.No.1529/2008 by the
Senior Civil Judge and XIX MACT Itinerate Court,
C. N. Halli, is affirmed.
(iii) The amount deposited by the appellant
in the above appeal be transmitted to the
Tribunal for disbursement in the terms of the
award of the Tribunal.
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(iv) The appellant shall deposit the balance
amount awarded by the Tribunal together with
interest within eight weeks from the date of
receipt of a copy of this judgment.
(v) The Registry to draw the modified award
accordingly.
SD/-
JUDGE
PHM
