Karnataka High Court
The Branch Manager, United vs Dayanand And Anr on 26 June, 2024
-1-
NC: 2024:KHC-K:4273
MFA No. 201116 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR. JUSTICE UMESH M ADIGA
MISCL. FIRST APPEAL NO. 201116 OF 2018 (MV-I)
BETWEEN:
THE BRANCH MANAGER,
UNITED INDIA INSURANCE CO. LTD,
S.S. FRONT ROAD, VIJAYAPUR-586101.
...APPELLANT
(BY SRI MANVENDRA REDDY, ADVOCATE)
AND:
1. DAYANAND
S/O YALLAPPA CHORGASTI @ BYAKOD,
AGE: 27 YEARS, OCC: DRIVER LMV DL,
Digitally signed NO.KA282012000445,
by KHAJAAMEEN R/O. RAMPUR, TQ. SINDAGI,
L MALAGHAN
Location: HIGH
NOW AT KANAKADAS BADAWANE VIJAYAPUR-
COURT OF 586101.
KARNATAKA
2. SMT. KASTURI W/O SHANKREPPA
AGED: 49 YEARS, OCC: VEHICLE OWNER AUTO
RICKSHAW, BEARING REG.NO.KA-28/9537, TQ.
RAMPUR, PA.NO.586128, TQ. SINDAGI,
DIST. VIJAYAPUR-586101
...RESPONDENTS
R1 IS SERVED;
NOTICE TO R2 IS D/W VIDE ORDER DATED 03.06.2024)
-2-
NC: 2024:KHC-K:4273
MFA No. 201116 of 2018
THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO
CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT AND
AWARD DATED-07.03.2018 PASSED BY THE II ADDITIONAL
SENIOR CIVIL JUDGE AND MACT VII, VIJAYAPUR, IN MVC
NO.180/2014 BY ALLOWING THE APPEAL AS PRAYED FOR.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is insurer's appeal challenging fastening of the
liability on the Insurance Company by the II-Addl. Senior
Civil Judge & MACT-VII, Vijayapura (hereinafter referred to
as 'the Tribunal' for short) in MVC No.180/2014 dated
07.03.2018 to pay compensation.
Though this appeal is stated for admission, with the
consent of learned counsel for appellant, it has taken up
for final disposal.
2. For the sake of convenience, the parties are
referred to as per their ranks before the Tribunal.
3. Brief facts of the case are that on 05.06.2013
around 7:00 a.m. the petitioner was driving his auto
rickshaw towards Sindagi from Rampur; When the said
NC: 2024:KHC-K:4273
vehicle came near Green Park hotel, the driver of another
auto rickshaw bearing Reg.No.KA-28/9537 driven by its
driver in a rash and negligent, dashed against auto of the
claimant. As a result of which the claimant had sustained
grievous injuries. He had taken treatment at hospital of
Dr.Prashant Kadakol from 05.06.2013 to 08.06.2013. He
had spent huge amount towards medical expenses.
4. It is further case of the petitioner that he was
aged about 23 years and working as auto driver and
earning more than Rs.12,000/- per month. He has been
suffering from permanent disability due to injuries
sustained in the accidents and he is unable to do his work.
With these reasons, the claimant prayed to award
compensation of Rs.12,00,000/-.
5. The appellant/insurer denied contents of the
claim petition and prayed for dismissal of the claim
petition. It has further contended that the driver of the
offending auto rickshaw had no valid and effective driving
licence to drive the said class of the vehicle. The owner
NC: 2024:KHC-K:4273
and insurer of the auto driven by the petitioner were not
made as parties and petition fails due to non-joinder of
necessary party. With these reasons prayed to dismiss the
claim petition.
6. From the rival contentions of both the parties,
the Tribunal had framed the necessary issues for its
determination.
7. The claimant to prove his case examined PWs.1
to 3 and got marked Exs.P1 to 17 and closed his evidence.
Respondent No.2 led evidence of RW.1 and got marked
Exs.R1 and 2.
8. After hearing both the parties and appreciating
the evidence available on record, the Tribunal by its
impugned judgment, awarded compensation of
Rs.2,52,100/-. The Tribunal directed the respondent No.2
to pay the compensation to an extent of 50% of the said
amount. The petitioner had contributed to an extent of
50% for the accidents and hence not entitled for the same
from respondents.
NC: 2024:KHC-K:4273
9. Though notice was served on respondent
No.1/claimant, he did not appear and prosecute the
appeal.
10. I have heard the arguments of learned counsel
for the appellant/Insurance Company.
11. The learned counsel for the appellant
vehemently contends that the driver of both auto rickshaw
have no valid and effective driving licence. Criminal case in
C.C.No.142/2016 was registered on the file of Senior Civil
Judge & JMFC, Sindagi. Both the drivers of auto rickshaw
were charge sheeted for the offence punishable under
sections 279, 337 and 338 of IPC as well as Section 3 r/w
181 of M.V.Act. Both the drives pleaded guilty and paid
fine vide order dated 08.06.2016.
12. The learned counsel for the appellant placed
zerox copy of the above said order on record. It clearly
indicates that even the auto belonging to
insured/respondent No.1 was driven by an unauthorized
person i.e. a person who was not holding valid and
NC: 2024:KHC-K:4273
effective driving licence at the time of accident and the
said driver admitted his guilt before the JMFC Court at
Sindagi and paid fine in C.C.No.142/2016.
13. The insurer challenged the impugned judgment
only on that basis. It is not in dispute that the said
offending vehicle was insured with appellant was belonging
to respondent No.1 and its policy of insurance was in
force. Therefore, as held in the case of Pappu and Ors.
vs. Vinod Kumar Lamba and Anr1. the insurer shall pay
the compensation to the third party and it is at liberty to
recover the same from the owner of the vehicle bearing
Reg.No.KA-28/9537. Accordingly the impugned judgment
needs modification.
14. For the aforesaid discussion, I pass the
following:
ORDER
(i) The appeal is allowed in part.
(2018) 3 SCC 208
NC: 2024:KHC-K:4273
(ii) The impugned judgment and award passed
by the II-Addl. Senior Civil Judge & MACT-
VII, Vijayapura, in MVC No.180/2014 dated
07.03.2018 is modified;
a) The appellant and respondent No.2 herein
shall pay compensation of Rs.1,26,050/- with
interest at the rate pf 6% pa from the date
of petition till it's realization to respondent
No.1/claimant and appellant-insurer is at
liberty to recover the said amount from
respondent No.2./owner of the offending
Auto rickshaw in an appropriate proceedings,
in accordance with law.
(iii) The finding of the Tribunal regarding deposit,
release, etc., are not disturbed.
(iv) The amount of compensation, if any,
deposited by appellant shall be transmitted
to the Tribunal for release to claimant, if it
was already not paid.
Sd/-
JUDGE
SDU
LIST NO.: 1 SL NO.: 19; CT:PK
