Karnataka High Court
Oriental Insurance Co. Ltd vs Mahesh S/O. Rachappa Andani on 16 January, 2024
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2024:KHC-D:1056
MFA No. 21370 of 2013
C/W MFA No. 21371 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS FIRST APPEAL NO.21370 OF 2013 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO.21371 OF 2013
IN M.F.A. NO.21370 OF 2013
BETWEEN:
ORIENTAL INSURANCE COMPANY LTD.,
REPRESENTED BY ITS SENIOR DIVISIONAL MANAGER,
BELAGAVI D.O. AT MADIWALE ARCADE,
CLUB ROAD, BELAGAVI,
REPRESENTED BY ITS ASST.MANAGER
REGIONAL OFFICE, 2ND FLOOR,
SUMANGALA COMPLEX, HUBLI.
...APPELLANT
(BY SRI. S.K. KAYAKAMATH, ADVOCATE)
AND:
1. SRI. MAHESH S/O. RACHAPPA ANDANI,
AGE: 47 YEARS, OCC: BUSINESS,
Digitally signed
by SAMREEN R/O. 1249, BANAGAR GALLI,
AYUB
DESHNUR GOKAK, DIST: BELAGAVI.
Date: 2024.02.01
15:37:08 +0530
2. SMT. TRIVENI W/O. MAHESH ANDANI,
AGE: 41 YEARS, OCC: BUSINESS
and HOUSEHOLD WORK,
R/O. 1249, BANAGAR GALLI,
GOKAK, DIST: BELAGAVI.
3. MR. VISHWANATH R.GUL ,
AGE: MAJOR, OCC: BUSINESS,
R/O. 1249, BANAGAR GALLI,
GOKAK, DIST: BELAGAVI.
(OWNER OF MOTORCYCLE BEARING NO.KA-49/E4056)
4. SRI. NARAYAN MANIKRAO KALE,
R/O. VANI SANGAMA, TQ: SONPET,
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MFA No. 21370 of 2013
C/W MFA No. 21371 of 2013
DIST: PRABANI, STATE: MAHARASHTRA
(OWNER OF MOTORCYCLE BEARING NO.KA-49/E4056)
5. SRI. EKANATH S/O. DYANOBA KESKAR,
R/O. SHANTNAGAR, MAJGAON,
DIST: BEED, STATE: MAHARASHTRA.
(OWNER OF MOTORCYCLE BEARING NO.KA-49/E4056)
6. SADASHIV BHAGAWAN RAO CHAVAN
R/O.BHRAMAPURI, TQ and DIST: PRABHANI,
STATE: MAHARASHTRA,
(OWNER OF TRAIL NO.MH-22/H-8866)
...RESPONDENTS
(BY SRI. S.S. YALIGAR, ADVOCATE FOR
SRI. MRUTYUNJAY TATA BANGI, ADVOCATE FOR R1 AND R2;
R3 SERVED;
SMT. KAVITA JADHAV, ADVOCATE FOR R4 AND R5;
R6 - DISMISSED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT 1988, AGAINST THE JUDGMENT AND
AWARD DATED: 01.02.2013 PASSED IN MVC NO.653/2012 ON THE
FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-I AND
MEMBER ADDITIONAL M.A.C.T., BELAGAVI, AWARDING THE
COMPENSATION OF RS.5,47,000/- WITH INTEREST AT THE RATE OF
8% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.
IN M.F.A. NO.21371 OF 2013
BETWEEN:
ORIENTAL INSURANCE COMPANY LTD.,
REPRESENTED BY ITS SENIOR DIVISIONAL MANAGER,
BELAGAVI D.O. AT MADIWALE ARCADE,
CLUB ROAD, BELAGAVI,
REPRESENTED BY ITS ASST.MANAGER
REGIONAL OFFICE, 2ND FLOOR,
SUMANGALA COMPLEX, HUBLI.
...APPELLANT
(BY SRI. S.K. KAYAKAMATH, ADVOCATE)
AND:
1. SRI. MAHESH S/O. RACHAPPA GULL,
AGE: 52 YEARS, OCC: BUSINESS,
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MFA No. 21370 of 2013
C/W MFA No. 21371 of 2013
R/O. 1249, BANAGAR GALLI,
GOKAK, DIST: BELAGAVI.
2. SMT. VIDYA W/O. MAHESH GULLA,
AGE: 43 YEARS, OCC: BUSINESS
AND HOUSEHOLD WORK,
R/O. 1249, BANAGAR GALLI,
GOKAK, DIST: BELAGAVI.
3. MR. VISHWANATH R.GUL ,
AGE: MAJOR, OCC: BUSINESS,
R/O. BANAGAR GALLI,
GOKAK, DIST: BELAGAVI.
(OWNER OF HERO HONDA SPLENDOR
MOTORCYCLE BEARING NO.KA-49/E4056)
4. SRI. NARAYAN MANIKRAO KALE,
AGE: MAJOR,
R/O. WANI SANGAMA, TQ: SONPET,
DIST: PRABANI, STATE: MAHARASHTRA
(OWNER OF THE TRACTOR BEARING
NO.MH-22/H-5993)
5. SRI. EKANATH S/O. DYANOBA KESKAR,
R/O. SHANTNAGAR, MAJGAON,
DIST: BEED, STATE: MAHARASHTRA.
(OWNER OF LMV TRAILER BEARING
NO.MH-23/C-4272)
6. SRI. SADASHIV S/O. BHAGAWAN RAO CHAVAN,
AGE: MAJOR,
R/O.BHRAMHAPURI, TQ and DIST: PRABHANI,
(OWNER OF LMV TRAILER BEARING
NO.MH-22/H-8866)
...RESPONDENTS
(BY SRI. S.S. YALIGAR, ADVOCATE FOR
SRI. MRUTYUNJAY TATA BANGI, ADVOCATE FOR R1 AND R2;
R3 SERVED;
SMT. KAVITA JADHAV, ADVOCATE FOR R4 AND R5;
R6 - DISMISSED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT 1988, AGAINST THE JUDGMENT AND
AWARD DATED: 01.02.2013 PASSED IN MVC NO.654/2012 ON THE
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NC: 2024:KHC-D:1056
MFA No. 21370 of 2013
C/W MFA No. 21371 of 2013
FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-I AND
MEMBER ADDITIONAL M.A.C.T., BELAGAVI, AWARDING THE
COMPENSATION OF RS.5,58,000/- WITH INTEREST AT THE RATE OF
8% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.
THESE MISCELLANEOUS FIRST APPEALS, COMING ON FOR
HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Shri. S. K. Kayakamath, learned counsel for the
appellant-Insurance Company, Shri. S. S. Yaligar representing
Shri. Mrutyunjay Tata Bangi, learned counsel for respondent
Nos.1 and 2 and Smt. Kavita Jadhav, learned counsel for
respondent Nos.4 and 5.
2. These two appeals are filed challenging the validity
of judgment and award passed in MVC Nos.653/2012 and
654/2012 dated 01.02.2013 on the file of Fast Track Court-I
and Member Additional MACT, Belagavi.
3. The facts in brief which are utmost necessary for
disposal of the present appeals are as under:
3.1. Two claim petitions came to be filed under Section
163A of the Motor Vehicles Act, 1988 (for short the 'M.V. Act'),
claiming compensation in respect of death of Amit S/o.
Mahesh Andani and Prabhu S/o. Mahesh Gull, who were the
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rider and pillion rider of the motor cycle bearing registration
No.KA-49/E-4056 involving another vehicle i.e., Tractor bearing
registration No.MH-22/H-5993 and Trailers bearing registration
Nos.MH-23/C-4272 and MH-22/H-8866 (for short 'T.T. Unit').
4. Upon receipt of the notice of the claim petitions, the
Insurance Company and the owner of the T.T. Unit appeared
before the Court and filed necessary written statement.
5. They denied the averments made in the claim
petitions except the death of Amit and Prabhu.
6. The Tribunal raised necessary issued and thereafter
considering the oral and documentary evidence placed on
record on behalf of the parties, allowed the claim petitions in
granting a sum of Rs.5,47,000/- in respect of claim in MVC
No.653/2012 and a sum of Rs.5,58,000/- in respect of claim in
MVC No.654/2012 and directed respondent Nos.1 to 5 jointly
and severally liable to pay the compensation.
7. Being aggrieved by the same, the Insurance
Company of the motor cycle bearing registration No.KA-49/E-
4056 has preferred these appeals.
8. Shri. S.K. Kayakamath, learned counsel for the
appellant-Insurance Company of the said motor cycle,
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reiterated the grounds urged in the appeal memorandum
contended that admittedly the driver of the T.T.Unit has been
charge sheeted by the police including offence of not
possessing valid insurance and the same is not challenged by
the driver of the T.T. Unit.
9. He also pointed out that as on the date of accident,
T.T.Unit did not possess a valid insurance and therefore, the
owner of the T.T.Unit cannot escape the liability.
10. He further submits that principal liability if any will
be on the owner of the T.T.Unit and in the absence of any
contract to contrary, the owner of the T.T.Unit who is made
liable to pay the compensation. But the Tribunal has directed
the Insurance Company of the motor cycle bearing registration
No.KA-49/E-4056 to pay the compensation which has resulted
in miscarriage of justice and sought for allowing the appeal.
11. Alternatively he contended that in the event of this
Court holding that the Insurance Company of the motor cycle is
liable to pay the compensation, taking note of the fact that
T.T.Unit was not insured, the appellant may be permitted to
recover the adjudged compensation which is paid to the
claimant, from owner of the T.T. Unit.
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12. He also contended that since petitions are under
163A of the M.V. Act, the quantum compensation assessed by
the Tribunal is incorrect and sought for modification of the
quantum of compensation.
13. He further contended that with regard to the
interest which is granted at the rate of 8% per annum is
reduced to at the rate of 6% per annum and sought for
allowing the appeal.
14. Per contra, Shri. S. S. Yaligar representing Shri.
Mrutyunjay Tata Bangi, learned counsel for respondent Nos.1
and 2 supported the impugned judgment and sought for
dismissal of the appeal.
15. Smt. Kavita Jadhav, learned counsel for respondent
Nos.4 and 5, also supports the impugned judgment and
contended that the arguments of the Insurance Company of the
motor cycle cannot be countenanced in law and sought for
dismissal of the appeal.
16. In view of the rival contentions of the parties, this
Court perused the records meticulously.
17. On such perusal of the material on record, it is
crystal clear that the driver of T.T.Unit has been charge sheeted
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by the police not only for the offences under the Indian Penal
Code but also for violation of the provisions of M.V. Act
including the offence of allowing T.T.Unit being driven on the
road without proper insurance.
18. Taking note of the same, the Trial Court has held
that all respondents are jointly and severally liable to pay the
compensation.
19. However, learned counsel for the appellant
contended that since the charge sheet is filed on the driver of
the T.T.Unit who drove the T.T.Unit on road without insurance,
the liability should be fastened on the owner of the T.T.Unit and
not on the Insurance Company of the motor cycle.
20. There is sufficient force in the arguments put forth
by learned counsel for the appellant-Insurance Company of the
motor cycle.
21. This would take us to the question that whether the
appellant alone is liable to pay compensation or appellant be
allowed to pay compensation at the first instance and recover
the same from the owner of the T.T.Unit.
22. As could be seen from the material available on
record, the driver of the T.T.Unit has been charge sheeted and
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it is not challenged by the driver. As such, the only course is
open for the appellant is to pay the adjudged compensation at
the first instance and recover the same from the owner of the
T.T.Unit.
23. Further, as rightly contended by the counsel for the
appellant that the quantum compensation assessed by the
Tribunal is incorrect which needs re-assessment in view of the
Schedule 2 of the M.V. Act as the claim petitions are under
Section 163A of the M.V. Act.
24. Accordingly, the compensation amount in both the
claim petitions is re-assessed as under:
In MVC No.653/2012 (MFA No.21370/2013):
1 Loss of Dependency Rs.4,57,833/-
2 Loss of love and affection of petitioner Rs.20,000/-
3 Loss of Estate Rs.10,000/-
4 Transportation of dead body and Rs.10,000/-
Funeral expenses
Total Rs.4,97,833/-
In MVC No.654/2012 (MFA No.21371/2013):
1 Loss of Dependency Rs.4,31,166/-
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2 Loss of love and affection of petitioner Rs.20,000/-
3 Loss of Estate Rs.10,000/-
4 Transportation of dead body and Rs.10,000/-
Funeral expenses
5 Medical expenses Rs.11,000/-
Total Rs.4,82,166/-
24. Since the claim petitions are filed under Section
163A of the M.V. Act, the interest should be payable at 6% per
annum not as 8% per annum from the date of petition till its
realization. Hence, a case is made out for reduction on
quantum of compensation and also interest at the rate of 8%
per annum to 6% per annum.
25. Hence, the following order is passed:
ORDER
(i) Appeals are allowed in apart.
(ii) As against the sum of Rs.5,47,000/-
awarded by the Tribunal in respect of claim in MVC
No.653/2012, the claimants are entitled for
compensation in a sum of Rs.4,97,833/- with
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interest at the rate of 6% per annum from the date
of petition till its realization.
(iii) As against the sum of Rs.5,58,000/-
awarded by the Tribunal in respect of claim in MVC
No.654/2012, the claimants are entitled for
compensation in a sum of Rs.4,82,166/- with
interest at the rate of 6% per annum from the date
of petition till its realization.
(iv) The modified quantum of compensation
is to be paid by the appellant at the first instance
and then entitled to recover the same from the
owners of the T.T.Unit in the very same
proceedings.
(v) Office is directed to pass modified award
accordingly.
(vi) Amount in deposit is ordered to be
transmitted to the Tribunal for disbursement in
accordance with law.
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(vii) Balance amount if any is to be deposited
within a period of four weeks by the Insurance
Company.
(viii) Ordered accordingly.
Sd/-
JUDGE
SMM
