Karnataka High Court
The Proprietor Shree Venkateshwar ... vs Smt Kasturevva W/O Basappa Bedasur on 26 June, 2024
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MFA No. 103260 of 2022
C/W MFA No. 103402 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
M.F.A. NO.103260 OF 2022 (MV-D)
C/W M.F.A. NO.103402 OF 2023
IN MFA NO.103260/2022:
BETWEEN:
THE MANAGER,
THE ORIENTAL INSURANCE COMPANY LIMITED,
DIVISION OFFICE, N.K.COMPLEX, KESHWAPUR
HUBLI, REPRESENTED BY ITS AUTHORIZED SIGNATORY.
...APPELLANT
(BY SRI. G N RAICHUR, ADVOCATE)
AND:
1. KASTUREVVA W/O. BASAPPA BEDASUR,
ABOUT 48 YEARS, OCC. HOUSEHOLD WORK,
R/O. HAROBELWADI, TQ. DHARWAD-580010.
2. BASAPPA S/O. SHIVAPPA BEDASUR,
AGE. 54 YEARS, OCC. AGRICULTURE,
R/O. HAROBELWADI, TQ. DHARWAD-580010.
Digitally
signed by 3. THE PROPERITER,
MANJANNA E
Location: SHREE. VENKTESHWAR TRANSPORT,
HIGH COURT AT. KURKOTI BUILDING, REDDY COLONY,
OF
KARNATAKA DHARWAD-580004.
...RESPONDENTS
(BY SRI. B. M. PATIL, ADV. FOR R1 AND R2;
SRI. ANOOP G. DESHPANDE, ADV. FOR R3)
THIS MFA IS FILED UNDER SECTION 173 (1) OF MOTOR
VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS AND HEAR
THE PARTIES AND MODIFY THE JUDGMENT AND AWARD DATED
28.02.2022 PASSED BY IN THE COURT OF THE II ADDITIONAL
SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL,
DHARWAD, MVC NO.557/2014 BY EXONERATING THE APPELLANT
INSURANCE COMPANY AND REDUCING THE COMPENSATION BY
ALLOWING THIS APPEAL WITH COST IN THE ENDS OF JUSTICE AND
EQUITY.
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IN MFA NO.103402 OF 2023:
BETWEEN:
THE PROPRIETOR, SHREE VENKATESHWAR TRANSPORT,
HAVING OFFICE AT KURTKOTI BUILDING,
REDDY COLONY DHARWAD-580008,
REPRESENTED BY ITS PROPRIETOR,
BHIMRADDY S/O. KRISHNARADDI KURTHKOTI,
AGE. 62 YEARS, OCC. BUSINESS,
R/O. KYRTHKOTI BUILDING, REDDY COLONY,
DHARWAD-580008.
...APPELLANT
(BY SRI. ANOOP G. DESHPANDE, ADVOCATE)
AND:
1. SMT. KASTUREVVA W/O. BASAPPA BEDASUR,
AGE. 44 YEARS, OCC. HOUSEHOLD WORK,
R/O. HAROBELVADI VILLAGE,
TQ. AND DIST. DHARWAD 581201.
2. SHRI BASAPPA S/O. SHIVAPPA BEDASUR
AGE. 50 YEARS, OCC. AGRICULTURE,
R/O. HAROBELVADI VILLAGE,
TQ. AND DIST. DHARWAD 581201.
3. THE MANAGER, ORIENTAL INSURANCE CO.LTD,
DIVISION OFFICE, N. K. COMPLEX, KESHWAPUR,
HUBBALLI, TQ. AND DIST. DHARWAD 580023.
...RESPONDENTS
(BY SRI. B. M. PATIL, ADV. FOR R1 & R2;
SRI. G. N. RAICHUR, ADV. FOR R3)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, PRAYING TO CALL FOR RECORDS IN M.V.C NO.557/2014 ON
THE FILES OF II ADDL. SENIOR CIVIL JUDGE AND JMFC, DHARWAD
AND ALLOW THE APPEAL AND MODIFY THE JUDGMENT AND AWARD
DATED 28.02.2022 IN M.V.C NO.557/2014 PASSED BY THE II ADDL.
SENIOR CIVIL JUDGE AND M.A.C.T, AT DHARWAD REGARDING
QUANTUM AND FIXING LIABILITY ON THE OWNER OF THE VEHICLE
AND BE PLEASED TO FIX THE LIABILITY ON THE RESPONDENT
NO.3/RESPONDENT NO.2 (INSURANCE COMPANY) IN THE INTEREST
OF JUSTICE AND EQUITY.
THESE APPEALS, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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MFA No. 103260 of 2022
C/W MFA No. 103402 of 2023
COMMON JUDGMENT
These appeals are arising out of common judgment and
award dated 28.02.2022 passed in M.V.C. No.557/2014 on the
file of the II Addl. Senior Civil Judge and M.A.C.T., Dharwad,
("Tribunal" for short) whereby the Tribunal awarded a sum of
Rs.12,66,000/- with interest at the rate of 6% per annum.
2. For the sake of convenience, the parties are
referred to as they are referred to in the claim petition before
the Tribunal.
3. M.F.A. No.103260/2022 is filed by the Insurance
Company seeking reduction of compensation awarded by the
Tribunal and also challenging the liability fastened on the
Insurance Company. Whereas, M.F.A. No.103402/2023 is filed
by the owner - insured challenging the liability fastened on
him.
4. Brief facts of the claimants' case are as under:
On 09.04.2014, the deceased Shivappa Basappa Bedasur
was working as a cleaner in lorry bearing registration No.KA-
25/C-5885. The lorry was proceeding towards Kalaburagi from
Belur Industrial Area, Dharwad. While the lorry was proceeding
on Kolhapur - Muttagi road, near Muttagi cross bridge, the
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C/W MFA No. 103402 of 2023
driver of the lorry drove the same in a high speed, rash and
negligent manner, lost control over the same and hence, the
lorry fell down on the bridge. Due the said impact, the cleaner
Shivappa Basappa Bedasur sustained severe injuries and
hence, he was shifted to District Hospital, Vijayapura for
treatment, where he was admitted for two days as in-patient
and ultimately he was succumbed to the accidental injuries.
5. Considering the oral and documentary evidence on
record, the Tribunal granted compensation of Rs.12,66,000/-.
Aggrieved by the judgment and award of the Tribunal, the
insurer preferred M.F.A. No.103260/2022 seeking reduction of
quantum of compensation and also challenging the liability. So
also the owner of the lorry filed M.F.A. No.103402/2023.
6. Learned counsel Sri.G.N.Raichur, learned counsel
for the Insurance Company contended that the Tribunal
committed an error in passing the impugned order of pay and
recovery. In fact, the driver of lorry having only LMV, but he
drove heavy goods vehicle, which was carrying gas cylinders
i.e., at the time of accident, the vehicle was carrying gas
cylinders. Therefore, for getting an endorsement pertaining to
heavy goods, the person has to undergo training and after
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completion of training, he has to apply to RTO for endorsement,
as required under Rule 9 of Central Motor Vehicles Rules, 1989.
Further as per Section 14(2)(a) prescribes, the driving licence
for carrying hazardous goods to be issued for one year only and
thus, it can be construed that the person having LMV, no
endorsement will be given for driving the vehicle with heavy
goods and thus, one cannot construe that a person possessing
a valid and effective driving licence for LMV can drive heavy
goods vehicle. It is contended that the owner has violated the
conditions of the policy. It amounts to fundamental violation, in
view of the ratio laid down in the case of Beli Ram vs.
Rajinder Kumar1 and the Hon'ble Apex Court has specifically
dealt with the issue of violation of condition of policy at
paragraphs 18 to 20 and 22. Further, the Tribunal has not
properly appreciated oral and documentary evidence on record,
but only saddled liability on the Insurance Company. Hence,
the counsel prayed to allow the appeal and also prayed to
saddle the liability on the owner of the vehicle.
7. Sri.Anoop Deshpande, learned counsel for owner of
the offending vehicle has taken contention that the Tribunal has
1
AIR 2020 SC 4453
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MFA No. 103260 of 2022
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not properly appreciated the evidence on record and travelled
beyond the scope of evidence and arrived to an erroneous
conclusion and passed the impugned order fastening the
liability on the owner of the vehicle. Further, the Tribunal has
over looked the evidence of eye witness, who categorically
deposed that it was one Manjunath Nugganatti, who was
driving the vehicle at the time of the accident and erroneously
fastened the liability on the owner of the vehicle. Further, the
Tribunal had overlooked the fact that the driver of the vehicle
at the time of the accident was Manjunath Nugganatti and he
had valid licence to drive the vehicle. Further, as per the charge
sheet, one Manjunath Nugganatti was driver at the time of the
accident. Now Manjunath Nugganatti has challenged the charge
sheet in a Private Complaint No.32/2019 before the Senior Civil
Judge and JMFC Court, Basavan Bagewadi, wherein Manjunath
Nugganatti has contended that he was not driving vehicle at
the time of the accident and it was Mahadev Nugganatti, who
was the driver. The Jurisdictional Court took cognizance and
directed the Police to file FIR against Mahadev Nugganatti.
Hence, case has been registered in Crime No.37/2023 against
Mahadev Nugganatti. It is contended that the vehicle was
insured at the time of the accident. Therefore, the Insurance
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Company cannot escape from its liability on flimsy ground. On
all these grounds, the counsel prayed to allow the appeal filed
by the owner and prayed to dismiss the appeal filed by the
Insurance Company.
8. Learned counsel Sri.B.M.Patil submitted that the
Tribunal has rightly saddled liability on the Insurance Company.
Hence, he justified the judgment and award of the Tribunal. In
view of the submission made by counsel for the parties, the
points that would arise for Court's consideration are:
"i. Whether the Insurance Company proved that
respondent No.1, the owner of the offending
vehicle violated the policy condition, as
contended by the Insurance Company?
ii. Whether the owner of the offending vehicle
proved that one Mahadev Nugganatti was the
driver of the offending vehicle, who was
holding valid driving licence and one
Manjunath Nugganatti was not the driver of
the offending vehicle?"
9. The Insurance Company has taken a contention
that the owner of the offending vehicle has violated the policy
condition. As per the contents of the FIR, charge sheet, spot
mahazar, on 09.04.2014 one Shivappa Basappa Bedasur was
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working as a cleaner in lorry bearing No.KA-25/C-5885 under
respondent No.1 - owner. But during the course and out of the
employment, the cleaner Shivappa Basappa Bedasur died. The
very contention of the Insurance Company is that the driver
Manjunath Nugganatti was not possessing valid driving licence
to drive heavy goods vehicle, which was carrying gas cylinders.
In order to substantiate its contention, the Insurance Company
has examined K.Shamsunder, the Authorized Officer of the
Company as R.W.1. The Insurance Company also got examined
Sri.Ravindra Pirangi, the RTO as R.W.2. From the perusal of the
oral evidence of RWs.1 and 2, it appears that as on the date of
the accident, the policy was in force and the driver of the lorry
bearing registration No.KA-25/C-5885 was Manjunath
Nugganatti, who was carrying heavy goods vehicle, viz., gas
cylinders. The Insurance Company also relied upon Ex.R1
authorization letter, Ex.R2 - insurance policy, Ex.R3 - wound
certificate of Manjunath, Ex.R4 - letter issued to respondent
No.1 to produce DL, Ex.R5 - postal acknowledgment, Ex.R6 -
letter of denial of compensation to the alleged vehicle and
Ex.R7 - acknowledgment.
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10. From the perusal of the oral testimony of R.Ws.1
and 2 and contents of Exs.R1 to R7, it appears that respondent
No.1 - Shree Venkateshwar Transport was owner of the vehicle
bearing registration No.KA-25/C-5885 and deceased Shivappa
Basappa Bedasur was working as a cleaner and one Manjunath
Nugganatti was the driver of the said lorry. In the accident, the
driver of the lorry Manjunath Nugganatti also sustained injuries
vide Ex.R3 - wound certificate. From the perusal of Ex.P1 -
FIR, Ex.P2 - complaint and Ex.P7 - charge sheet and Ex.P9 -
spot panchanama, they clearly establish that Manjunath
Nugganatti was driver of the lorry.
11. The owner - insured has taken specific contention
that Manjunath Nugganatti was not the driver, but one
Mahadev Nugganatti was driver of the lorry. In this regard, the
owner / insured got examined Sri.Bhimaraddi Kurtakoti,
Sri.Mahadev Yallappa Nugganatti and Sri.Danappa Gurappa as
R.Ws.3 to 5 and the insured relied upon Ex.R8 copy of Form
No.38, Ex.R9 - certified copy of DL, Ex.R10 - extract of DL and
Ex.R11 - B register extract. From oral evidence of RWs.3 to 5
and Exs.R8 to R11, it appears that subsequently Sri.Mahadev
Nugganatti impleaded as driver of the offending vehicle, as he
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was possessing valid and effective driving licence, as on the
date of the accident, as if he drove vehicle in question. From
the perusal of the material available on record and the
contentions raised by the counsel for owner, it appears that
after 9 years of the accident, Manjunath Nugganatti - the
driver filed private complaint in P.C. No.32/2019, same was
registered in the Crime No.37/2023, contending that as on the
date of the accident, he was not driver of the lorry, but one
Mahadev Nugganatti was the driver. Admittedly, neither the
owner of the offending lorry, nor Manjunath Nugganatti
challenged column No.17 of charge sheet before competent
Court of law. Now, at this juncture, the contentions raised by
the owner cannot be taken into consideration. Hence, the
Tribunal considering the fact that one Manjunath Nugganatti
was driver of the offending vehicle saddled liability both on
insurer and insured.
12. In the case of Mukund Dewangan vs. Oriental
Insurance Company Limited and others2, the Hon'ble Apex
Court held that, the insurer is liable to pay compensation on
account of the negligence caused by the driver of the offending
vehicle, in view of pay and recovery principle. The similar ratio
2
(2016) 4 SCC 298
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also held by the Hon'ble Apex Court in the case of National
Insurance Company Limited vs. Swarn Singh and others3
and also in the case of Rani and others Vs. National
Insurance Company Limited and others4.
13. In view of the ratio laid down in the case of
Pappuu and others vs. Vinod Kumar Lamba and another5
and in view of the facts and circumstances of the case, the
Insurance Company to first pay compensation amount to the
claimant with liberty to recover the same from the owner of the
offending vehicle.
14. Therefore, the Tribunal considering all aspects of
the matter and the decisions cited supra, has rightly saddled
the responsibility on owner as well as insurer by applying the
principle of pay and recovery, considering the force of
insurance policy as on the date of the accident. Hence, there is
no merit in the appeals filed by the Insurance Company and
insured owner of the offending vehicle. Hence, I proceed to
pass the following:
3
(2004) 3 SCC 297
4
(2018) 8 SCC 492
5
(2018) 3 SCC 208
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C/W MFA No. 103402 of 2023
ORDER
The appeals filed by Insurance Company and insured -
owner are hereby dismissed. The judgment and award dated
28.02.2022 passed in M.V.C. No.557/2014 on the file of the II
Addl. Senior Civil Judge and M.A.C.T., Dharwad, is hereby
confirmed.
The amount in deposit in both the appeals, if any, be
transmitted to the concerned Tribunal with a direction to
disburse the compensation amount to the claimants on proper
identification.
Sd/-
JUDGE
RSH/ct-an
