Karnataka High Court
Smt.Sushila @ Rayawwa S/O. Bhimappa @ ... vs Shri. Hanamant S/O. Tammanna Mali on 4 November, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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MFA No. 104435 of 2019
C/W MFA No. 101704 of 2020
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 4TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO. 104435 OF 2019 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 101704 OF 2020 (MV-D)
IN MFA NO. 104435 OF 2019
BETWEEN:
THE DIVISIONAL MANAGER,
NATIONAL INSURANCE COMPANY LTD.,
HAVING DIVISIONAL OFFICE, BELAGAVI,
BY ITS AUTHORIZED SIGNATORY.
...APPELLANT
(BY SRI. S. C. BHUTI, ADVOCATE)
Digitally signed
by JAGADISH T
R AND:
Location: High
Court of
Karnataka, 1. SMT. SUSHILA @ RAYAWWA
Dharwad Bench
W/O. BHIMAPPA @ BHIMU SAVADI,
AGE: 57 YEARS, OCC: HOUSEHOLD
R/O. AIGALI-591248, TAL: ATHANI,
DIST: BELAGAVI
2. SHRI. BHIMU @ BHIMAPPA DAREPPA
SAVADI, AGE: 71 YEARS, OCC: NIL,
R/O. AIGALI -591248, TAL: ATHANI,
DIST: BELAGAVI.
3. SMT. KALAVATI
W/O. MAHADEV NYAMAGOUDA,
AGE: 31 YEARS, OCC: HOUSE HOLD WORK,
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MFA No. 104435 of 2019
C/W MFA No. 101704 of 2020
R/O. SAVALAGI TAL: JAMKHANDI,
DIST: BAGALKOT-587330.
4. SMT. SHRIDEVI W/O. SURESH HITTANAL,
MAIDAN NAME SHRIDEVI BHIMU SAVADI
AGE: 29 YEARS, OCC: HOUSE HOLD WORK,
R/O. TAKAL, TAL: MIRAJ, DIST: SANGLI-415313.
5. HANAMANT TAMANNA MALI,
AGE: MAJOR, OCC: BUSINESS,
R/O. AIGALI -591248, TAL: ATHANI,
DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. SANJAY S. KATAGERI, ADV. FOR R2;
R1 TO R3 ARE LRS OF DECEASED R4;
NOTICE TO R1, R3 & R5 SERVED)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT AND
AWARD DATED 14.10.2019 PASSED IN MVC NO.73/2018 BY THE
COURT OF ADDL. SENIOR CIVIL JUDGE & ADDL. MACT, ATHANI, BY
ALLOWING THE INSTANT APPEAL, WITH COSTS, IN THE INTEREST
OF JUSTICE AND EQUITY.
IN MFA NO. 101704 OF 2020
BETWEEN:
1. SMT. SUSHILA @ RAYAWWA
W/O. BHIMAPPA @ BHIMU SAVADI,
AGE .59 YEARS, OCC .HOUSE HOLD WORK,
R/O. AIGALI, TQ. ATHANI,
DIST. BELAGAVI, PIN CODE-591248.
2. SHRI. BHIMU @ BHIMAPPA S/O. DAREPPA SAVADI,
AGE. 74 YEARS, OCC. NIL,
R/O. AIGALI, TQ. ATHANI,
DIST. BELAGAVI. PIN CODE-591248.
3. SMT. KALAVATI W/O. MAHADEV NYAMAGOUDA,
AGE. 34 YEARS, OCC. HOUSEHOLD WORK,
R/O. SAVALAGI, TQ. JAMAKHANDI,
DIST. BAGALKOT, PIN CODE-587330.
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MFA No. 104435 of 2019
C/W MFA No. 101704 of 2020
4. SMT. SHRIDEVI W/O. SURESH HITTANAL,
(MAIDEN NAME SHRIDEVI BHIMU SAVADI),
AGE. 32 YEARS, OCC. HOUSEHOLD WORK,
R/O. TAKALI, TAL. MIRAJ,
DIST. SANGLI, PIN CODE-416410.
...APPELLANTS
(BY SRI. SANJAY S. KATAGERI, ADVOCATE)
AND:
1. SHRI. HANAMANT S/O. TAMMANNA MALI,
AGE. MAJOR, OCC. BUSINESS,
R/O. AIGALI, TQ. ATHANI,
DIST. BELAGAVI. PIN CODE-591248.
2. THE DIVISIONAL MANAGER,
NATIONAL INSURANCE CO.LTD.,
HAVING ITS OFFICE AT RAMDEV GALLI,
BELAGAVI, PIN CODE: 590002.
...RESPONDENTS
(BY SRI. S. C. BHUTI, ADV. FOR R2;
NOTICE TO R1 SERVED)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, PRAYING TO THE JUDGMENT AND AWARD DATED 14.10.2019
PASSED IN MVC NO.73/2018 BY THE LEARNED ADDL. SENIOR CIVIL
JUDGE AND ADDL. MACT, ATHANI, WHEREIN THE CLAIM PETITION
FILED BY THE APPELLANTS IS PARTLY ALLOWED, BY AWARDING
COMPENSATION OF RS.13,66,000/- WITH 6% INTEREST PER ANNUM
BE KINDLY MODIFYING THE THEREBY ENHANCING THE CLAIM
COMPENSATION TO RS.50,00,000/- WITH INTEREST @ 9% PER
ANNUM FROM THE DATE OF PETITION, TILL THE DATE OF PAYMENT,
BY HOLDING RESPONDENTS NO.1 & 2 HEREIN JOINTLY AND
SEVERALLY LIABLE TO PAY THE SAID COMPENSATION TO THE
APPELLANTS HEREIN, BY ALLOWING THIS APPEAL, WITH COSTS, IN
THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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MFA No. 104435 of 2019
C/W MFA No. 101704 of 2020
CORAM: THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T)
These two appeals are filed by the Insurance Company as
well as the claimants challenging the judgment & award dated
14.10.2019 passed in MVC No.73/2018 by the learned
Additional Senior Civil Judge and Addl. Motor Accident Claims
Tribunal, Athani1.
2. MFA No.104435/2019 is filed by the Insurance
Company of offending vehicle i.e., Auto Rickshaw bearing
registration No.KA23/A-1426 to set aside the judgment and
award passed by the Tribunal, whereas, MFA No.101704/2020
is filed by the claimants seeking enhancement of compensation.
3. For the sake of convenience, the parties are
referred to as per their rankings before the Tribunal.
4. Brief facts of the claimants' case before the Tribunal
are as under:
'Tribunal' for short
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On 03.01.2018, at about 09.30 p.m., the deceased Anand
S/o. Bhimu @ Bhimappa Savadi was travelling as passenger in
Auto-Rickshaw bearing registration No.KA-23/A-1426 towards
Aigali. The driver of rickshaw drove the same in high speed,
rash and negligent manner without following traffic rules so as
to endanger human life and lost control over the vehicle, turn
turtled. Due to the said impact, Anand Savadi sustained severe
injuries and died on the spot. Hence, a complaint came to be
lodged, which led to the registration of FIR and investigation. In
this regard, the claimants filed petition under Section 166 of
Motor Vehicles Act, 1988 before the Tribunal for grant of
compensation.
5. After service of notice before the Tribunal,
respondent No.2 appeared through its counsel. However,
respondent No.1/owner of the vehicle placed ex-parte.
Respondent No.2 filed statement of objections denying the
entire averments of the claim petition.
6. The claimants in support of their claim got
examined claimant No.3 and 1 as PW1 and PW2 respectively
and got marked the documents as Ex.P1 to P13. Respondent
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No.2 got examined its officer as RW1 and got marked 6
documents as Ex.R1 to R6.
7. On appreciation of entire oral and documentary
evidence on record, the Tribunal allowed the claim petition in
part, awarding a sum of Rs.13,66,000/- with interest at 6% per
annum from the date of petition till realization, with a direction
to respondent No.2/Insurer of offending vehicle to pay entire
compensation to the claimant.
8. Being aggrieved by the same, the insurer/appellant
has preferred this appeal to set aside the award passed by the
Tribunal, whereas, the claimants have also filed an appeal
seeking enhancement of compensation.
9. Heard the learned counsel Sri. S.C. Bhuti for the
appellant/Insurance Company, learned counsel Sri. Sanjay S.
Katageri for respondents/claimants. Perused the appeal papers
along with original records.
10. Sri. S.C. Bhuti, learned counsel appearing for the
appellant/Insurance Company would contend that the vehicle in
question had permit to ply the same within 16 kms., in the
radius of Athani town and on the date of accident, the rickshaw
vehicle was out of the permit area and met with the accident,
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which is clear violation of policy conditions and Motor Vehicles
Rules and thus, appellant/Insurance Company would not be
liable to indemnify the owner. It is further submitted that, the
accident had taken place at Aigali village, whereas the permit in
respect of offending rickshaw, which is placed on record as
Ex.R.4 would indicate that, rickshaw had permitted to ply
within 16 kms., from Athani and within Athani taluk.
11. Further, learned counsel Sri. S.C. Bhuti would
contend that compensation awarded on conventional head is on
the higher side. Thus, prays for allowing the appeal and to
remand the matter to the Tribunal for fresh consideration.
12. Per contra, learned counsel Sri. Sanjay S. Katageri,
for respondents/claimants would contend that no ground is
made out to interfere with the well reasoned judgment and
award of the Tribunal. The compensation awarded by the
Tribunal is just and reasonable, thus, no interference is called
for in that regard. Therefore, sought for dismissal of the appeal.
13. In view of the submissions made by both the
parties, the following points that would arise for our
consideration in this appeal are:
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a) Whether the Tribunal has rightly justified in
saddling entire liability on the insurer?
b) Whether the claimants are entitled for enhanced
compensation?
c) Whether the appellant/Insurance Company made
out sufficient grounds for remand?
14. So far as negligence is concerned, the Investigating
Officer filed charge sheet against driver of the offending auto
rickshaw, wherein at Column No.17 of the charge sheet, it is
alleged that the accident occurred due to rash and negligent
driving of the driver of the rickshaw. The Tribunal considering
the oral evidence of PW1 and PW2, Ex.P1 to P7 and came to
the conclusion that the accident was occurred due to rash and
negligent driving of the driver of the rickshaw.
15. Insofar as, next contention that the offending
rickshaw had only permit to ply within 16 kms., of Athani and
within Athani taluk and it had no permit to ply beyond Athani
taluk, hence, the liability would not have been saddled on
insurer, needs consideration. Ex.R4 is document issued by
Regional Transport Authority, Chikkodi, with regard to rickshaw
bearing registration No.KA-23/A-1426, which indicates that the
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rickshaw had permit for the period from 14.05.2009 to
13.05.2014 to ply within the area of Athani town and around 16
kms., and in the limits of Athani taluk only. The accident had
taken place at Aigali village which is beyond 16 kms. The
Hon'ble Apex Court in the case of Amrit Paul Singh and
another Vs. TATA AIG General Insurance Company
Limited and others2 has observed that, use of a vehicle in a
public place without a permit is a fundamental statutory
infraction and has further observed that, the direction to the
Insurance Company to pay the compensation amount to the
claimants with interest at the first instance with liberty to
recover the same from the owner. But, in the instant case, it is
the case of Insurance Company that offending rickshaw had
plied beyond the permit limit. There is no dispute about the
auto rickshaw having insurance coverage as on the date of
accident. According to the Insurance Company, the accident
occurred at a place beyond the area permitted for plying and
therefore, its liability to indemnify the owner gets exonerated.
From the perusal of Ex.R.4, it appears that rickshaw had a valid
permit, but it was taken beyond the permitted limit as per the
(2018) 7 SCC 558
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contention of Insurance Company. There is some difference
between two destinations, thus, it requires some sort of
evidence. Before the Tribunal, this aspect is not discussed
thoroughly, however, RW1 has clearly contended that the place
of accident is not come within the Athani taluk limit. Further,
the counsel for claimants suggested RW1 that the Insurance
Company has not objected any other aspect, except permit
violation. It shows that, the Tribunal has not dealt with permit
violation in detail. Therefore, it is just and necessary to remand
the matter for fresh consideration to the Tribunal.
16. From the perusal of the impugned judgment and
award, the Tribunal has awarded fair compensation except on
conventional heads. Hence, we are of the considered view that
instead of answering the question regarding quantum of
compensation, which is under challenge by the
appellant/Insurance Company, it would be just and appropriate
to remand the matter to the Tribunal afresh, reserving liberty
to the both parties to adduce their further/additional evidence,
if any, regarding liability and quantum of compensation before
the Tribunal.
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17. Hence, we proceed to pass the following:
ORDER
a) Both the appeals are allowed in part.
b) The impugned judgment and award of the
Tribunal insofar as negligence is
concerned, is confirmed. So far as the
quantum of compensation and liability to
pay the same, the finding of the Tribunal is
hereby set-aside.
c) The matter is remitted back to the Tribunal
for fresh consideration after giving
reasonable opportunity to both the parties
to adduce their respective
additional/further evidence in support of
their claims, as to liability and quantum of
compensation.
d) The parties shall appear before the
Tribunal on or before 02.12.2024 without
awaiting further notice from the Tribunal.
e) The parties shall co-operate in speedy
disposal of the case.
f) The Tribunal shall consider the case of the
parties and dispose off the matter at the
earliest, considering the age of the claim
petition.
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g) The amount in deposit before this Court be
transmitted to the Tribunal along with TCR
forthwith.
h) All the contentions of the parties are kept
open.
Sd/-
(H.T.NARENDRA PRASAD)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
SMM/ct-an
