Karnataka High Court
The Iffco- Tokio General Insurance ... vs Vithal And Anr on 2 July, 2024
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MFA No. 201148 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF JULY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
MISCL. FIRST APPEAL NO. 201148 OF 2019 (MV-I)
BETWEEN:
THE IFFCO- TOKIO GENERAL INSURANCE COMPANY
LIMITED,
THROUGH ITS BRANCH G-1, G-12, G-13,
ASIAN ARCADE, NEAR ANAND HOTEL,
S.B.TEMPLE ROAD, KALABURAGI.
...APPELLANT
(BY SRI. SUBHASH MALLAPUR, ADVOCATE)
AND:
Digitally signed by 1. VITHAL
BASALINGAPPA
SHIVARAJ S/O MANIK SAYGONDE,
DHUTTARGAON
Location: HIGH
AGE: 23 YEARS, OCC: NOW, NIL AFTER
COURT OF R/O AT POST: HOL, TQ: KAIJ, DIST: BEED
KARNATAKA
NOW RESIDING AT GATTARGA, TQ: AFZALPUR,
DISTRICT: KALABURAGI-585 202.
2. GURUNATH
S/O LAXMAN GHATTARGI
AGE: MAJOR, OCC: OWNER OF AUTO NO. KA-32/C-
0713, R/O DEVAL GHANAGAPUR,
TQ: AFZALPUR, DISTRICT: KALABURAGI-585 213.
...RESPONDENTS
(R1 IS HELD SUFFICIENT,
NOTICE TO R2 SERVED)
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MFA No. 201148 of 2019
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO
ALLOW THE ABOVE APPEAL BY SETTING ASIDE THE JUDGMENT
AND AWARD DATED 19.03.2019 IN MVC NO.910/2018 PASSED
BY THE SENIOR CIVIL JUDGE AND JMFC AND MACT, AFZALPUR
IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY RAJESH RAI K J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment and
award dated 19.03.2019 passed in MVC No.910/2018 on
the file of the Senior Civil Judge and JMFC & MACT at
Afzalpur, (henceforth referred as 'Tribunal'), wherein the
Tribunal allowed the claim petition filed by the petitioners
under Section 166 of M.V.Act by awarding compensation
of Rs.28,00,663/- along with interest @ 6% p.a. and
directed the respondent Nos.1 and 2 to pay compensation.
02. Parties to the appeal shall be referred to as per
their status before the tribunal.
03. The facts giving rise to the filing of the appeal
briefly stated are that:
On 03.12.2017 at around 11.00 p.m., the petitioner
along with other inmates were traveling in an auto bearing
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registration No.KA-32/C-1240 from Chowdapur on
Chowdapur-Kalaburagi road and when they were near
stone crushing unit, at that time, another auto bearing
registration No.KA-32/C-0713 came from opposite
direction in a rash and negligent manner and dashed to
the auto in which the petitioner was traveling. Due to
which the petitioner sustained grievous injuries and
admitted to Government Hospital, Kalaburagi and
thereafter shifted to Super Speciality Hospital, Kalaburagi
for higher treatment. Therefore, the petitioner filed claim
petition under Section 166 of the Motor Vehicles Act,
claiming compensation.
04. After service of notice, respondent No.1 did not
appear and he placed ex-parte. Respondent No.2-
Insurance Company appeared and filed written statement
denying the contents of claim made by the petitioners and
sought for dismissal of the claim petition.
05. On the basis of pleadings, the Tribunal framed
relevant issues for consideration.
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06. In order to substantiate the contention of claim
petition, the petitioner examined himself as PW.1 and also
examined one doctor as PW.2 and got marked 17
documents as Exs.P.1 to P17. The respondent-Insurance
Company examined its official as RW.1 and got marked 5
documents as Exs.R1 to R5.
07. The Tribunal, after recording the evidence and
considering the material on record, allowed the claim
petition by awarding compensation of Rs.28,00,663/-
along with interest @ 6% p.a. The Insurance Company has
challenged the said judgment and award in this appeal.
08. We have heard Sri.Subhash Mallapur, learned
counsel appearing for the appellant-Insurance Company.
Though notice was issued, none appears for the
respondents/petitioners.
09. It is the primary contention of the learned
counsel for the appellant-Insurance Company that the
tribunal has overlooked the fact while awarding
compensation that the driver of the offending vehicle was
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not having valid and effective driving license as on the
date of the accident and police have filed the charge sheet
under Section 3(2) of IMV Act. Moreover, the Insurance
Company has also issued notice to the owner of the
vehicle, hence the tribunal ought to have drawn an
inference against the petitioner, however fastened the
liability on the respondent-Insurance Company. He would
further submits that, at the most, the tribunal would have
ordered for pay and recovery as per the law laid down by
the Hon'ble Apex Court in the case of Pappu and others
Vs. Vinod Kumar Lamba and another reported in
(2018)3 SCC 208. Hence, he prays to allow the appeal.
10. Perused the records. Having heard the learned
counsel for the appellant, the only point that would arise
for our consideration is:
"Whether the tribunal is justified in
fastening the liability on the respondent
No.2 in the absence of driving license of
the driver of the offending vehicle?"
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11. As could be seen from the records, it is clear
that the petitioner has sustained injuries in the said
accident. Further the coverage of Insurance Policy to the
offending vehicle is not in dispute. It is the contention of
the learned counsel for the appellant that the driver of the
offending vehicle was not having valid and effective driving
license as on the date of the accident. The Insurance
Company had not led any evidence to prove the said
aspect. The burden of proving the same is on the
respondent-Insurance Company and Insurance Company
has not led any evidence in order to disprove the contents
of the claim petition. On perusal of the evidence of PW.1
and PW.2, they categorically stated that the driver was
having valid and effective driving license as on date of the
accident. The investigation papers also reveals that the
accident was occurred due to the negligent act on the part
of the driver of the offending vehicle. In the absence of
any such documents, to substantiate the contents of the
Insurance Company, we are of the view that the tribunal
has rightly fastened the liability on the Insurance
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Company. Hence, we answer the point above raised in the
affirmative.
12. In view of the above discussion, we proceed to
pass the following:
ORDER
The appeal is dismissed.
The amount in deposit shall be transmitted along
with trial Court records to the concerned tribunal
forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
MSR
CT:BN
