Karnataka High Court
Krishna S/O Laxman Rathod vs Tukaram S/O Narayan Devakate on 3 January, 2024
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2024:KHC-D:148
MFA No. 102110 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS FIRST APPEAL NO.102110 OF 2014 (MV-D)
BETWEEN:
1. KRISHNA S/O. LAXMAN RATHOD,
SINCE DECEASED BY HIS LR'S
1A. SMT. SHANTABAI W/O. TUKARAM DEVAKATE,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O. DEVAKATEWADI, POST:GHERADI,
TQ: SANGOLA, DIST: SOLAPUR-593107.
MAHARASHTRA STATE.
1B. SHRI. SHUBASH W/O. TUKARAM DEVAKATE,
AGE: MAJOR, OCC: AGRICULTURE,
R/O. DEVAKATEWADI, POST:GHERADI,
TQ: SANGOLA, DIST: SOLAPUR-593107.
MAHARASHTRA STATE.
Digitally
signed by
BHARATHI
BHARATHI H M 1C. SHRI. ANAND S/O. TUKARAM DEVAKATE,
HM Date:
2024.01.23 AGE: MAJOR, OCC: AGRICULTURE,
16:49:35
+0530 R/O. DEVAKATEWADI, POST:GHERADI,
TQ: SANGOLA, DIST: SOLAPUR-593107.
MAHARASHTRA STATE.
2. SOU. VIJAYAMALA W/O. KRISHNA RATHOD,
AGE: 24 YEARS, OCC: AGRICULTURE,
R/O: LIMBA, TQ: PATARI,
DIST: PARABHANI,
PIN-431401.
(ORI CHAIMANTS)
...APPELLANTS
(BY SRI. SANTOSH S. HATTIKATAGI, ADVOCATE)
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MFA No. 102110 of 2014
AND:
1. TUKARAM S/O. NARAYAN DEVAKATE,
AGE: MAJOR, OCC: BUSINESS,
R/O: GHERADI, TQ: SANGOLA,
DIST: SOLAPUR.
2. THE MANAGER,
SHRIRAM GENERAL INSURANCE COMPANY LTD.,
BELAGAVI.
(INSURER OF 407 BEARING NO. MH-10/A-4866
POLICY NO. 10003/31/11/033/082
VALID FROM 28/5/2010 TO 27/5/11)
...RESPONDENTS
(BY SRI. MALLIKARJUN MADANATTI, ADVOCATE FOR
SRI. NAGARAJ C. KOLLOORI, ADVOCATE FOR R2,
NOTICE TO R1(A) TO R1(C) DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, AGAINST JUDGMENT AND AWARD
DATED 27.12.2012, PASSED IN MVC.NO.1152/2011 ON THE
FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-I,
CHIKODI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR
ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 102110 of 2014
JUDGMENT
Though the matter is listed for orders, by consent of
the parties, the matter is taken up for final disposal.
2. The present appeal is filed by the claimants
seeking enhancement of compensation and also for
fastening the liability on the Insurance Company as there
was a violation of permit condition whereby the liability of
the Insurance Company was absolved.
3. In the case on hand, the accident is not in
dispute so also the quantum. The Trial Court has granted
compensation to the claimants in a sum of Rs.3,00,000/-
as there is a death of a minor who is eight months old
baby.
4. The only ground on which, the present appeal
that would now survive for consideration is regarding who
has to pay the compensation.
5. Taking note of the fact that the permit was
issued for the State of Maharashtra and the incident has
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taken place within the limits of Karnataka inasmuch as the
offending vehicle Tata-407 which has been used for the
purpose of transport of Sugarcane which is grown in the
claimants' agriculture land, while taking the reverse of the
said vehicle, without noticing the deceased baby, driver
ran over the baby resulting in death of the baby. Since
there is a violation of the permit condition, the Tribunal
fastened the liability only on the owner.
6. Being aggrieved by the same, dependants have
filed the present appeal.
7. Reiterating the grounds urged in the appeal
memorandum, Sri. Santosh S. Hattikatagi, learned counsel
contended that in such circumstances the Tribunal was
bound to pass an order of paying the compensation at the
first instance by the Insurance Company and later on
recover the same from the owner and claimants cannot be
directed to proceed only against the owner.
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8. In support of the said arguments, Sri. Santosh
S. Hattikatagi, learned counsel, placed reliance on the
Division Bench Judgment of this Court in MFA
No.103619/2015 dated 08.07.2020 in the case of
Hanumantappa vs Ashok and another.
9. Per contra, Sri. Mallikarjun Madanalli
representing Sri. Nagaraj C. Kollori, learned counsel
opposes the arguments put forth on behalf of the
claimants and sought for dismissal of the appeal.
10. In view of the rival contentions of the parties,
this court has perused the material on record meticulously.
11. On such perusal of the material on record, it is
crystal clear that the liability cannot be fastened on to the
insurance company. In the case on hand, it is established
that minor died accidental death involving TATA 407 good
vehicle bearing No.MH_10/A4866. As such, the tribunal
has rightly assessed compensation in a sum of
Rs.3,00,000/-.
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12. However, the point to be decided in the appeal
is whether insurance company is totally absolved from
paying the compensation or there should be directions for
the insurance company to pay the compensation and
recover the same from the owner of the vehicle is the
question that needs to be decided in the present appeal.
13. Following the principles of law enunciated by
Division Bench of this Court in MFA No.103649/2015, the
insurance company is required to pay compensation at the
first instance to the claimant and is entitled to recover the
same from the owner of the offending vehicle.
14. Accordingly, to that extent, the impugned
judgment and award needs to be modified.
15. Hence, the following:
ORDER
i) Appeal is allowed in part.
ii) Amount of compensation as awarded by the
tribunal needs to be paid by the insurance company at the
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first instance and later insurance company is at liberty to
recover the same from the owner of the offending vehicle
in the very same proceedings.
iii) No order as to costs.
Sd/-
JUDGE
PMP- up to para 8.
HMB- para 9 to end.
