Karnataka High Court
Nagappa And Anr vs Bande Nawaz And Ors on 7 December, 2021
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 07TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
MFA.No.200595/2021 (MV)
Between:
1. NAGAPPA S/O TUGALAYYA,
AGE: 55 YEARS, OCC: AGRICULTURE,
2. SMT. GOVINDAMMA W/O NAGAPPA
AGE: 47 YEARS, OCC: HOUSEHOLD,
BOTH ARE R/O TEGGIHAL VILLAGE,
TQ: DEODURGA
DIST: RAICHUR-584126.
... APPELLANTS
(BY SRI.BASAVARAJ R. MATH ADVOCATE)
And:
1. BANDE NAWAZ S/O HUSSAINSAB DODDAMANI
AGE: 49 YEARS, OCC: DRIVER OF VAN,
R/O MUSTUR VILLAGE TQ. DEODURGA,
DIT. RAICHUR-584139.
2. YALLAPPA M/O YALLAMMA
MAJOR, OCC: AGRIL, AND OWNER OF VAN
R/O H.NO. 326, DIDDAGI VILLAGE,
TQ. SINDHANUR,
DIST. RAICHUR 584128
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3. BRANCH MANAGER
THE SHRIRAM GENERAL INSURANCE CO. LTD,
E-8 EPIP, RIICO INDUSTRIAL AREA SITAPUR,
JAIPUR, RAJASTHAN 302022.
... RESPONDENTS
(BY SRI. SUBHAS MALLAPUR FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT,
PRAYING TO CALL FOR RECORDS AND MODIFY THE
IMPUGNED JUDGMENT AND AWARD DATED 04.01.2017
PASSED BY THE SENIOR CIVIL JUDGE AND JMFC AND
MEMBER MACT, DEODURGA IN MVC NO.16/2016 (NEW)
480/2015 (OLD).
THIS MFA COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
The present appeal is filed under Section 173 (1) of the Motor Vehicles Act, 1988 (for short 'M. V. Act') by the claimants/appellants against the judgment and award dated 04.01.2017 passed in (old) MVC No.16/2016 (new) MVC.No.480/2015 on the file of the Senior Civil Judge and Motor Accidents Claims Tribunal, Deodurga (for short 'Tribunal').
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2. Facts leading up to filing of the present appeal in brief are that on 04/10/2014 at about 7.30 p.m., the deceased Kumari Paddamma and claimant in (old) MVC.16/2016 (new) MVC.No.480/2015 was proceeding along with her brother Ranganath in a motorcycle bearing registration No.KA-36/EB-5163 from their village Teggihal to Nagargunda village. When they reached near lake of Manasgal village on Arakera - Deodurga road, rider though riding the same with slow and cautious manner on left side of the road, a Van bearing Reg.No.KA-29/A-3845 came from opposite direction i.e., from Deodurga and hit the motorcycle. Due to the impact, the rider and deceased Paddamma fell down and sustained grievous injuries and she succumbed to the injuries. The Deodurga Police, on receipt of MLC report recorded the statement of Ranganatha at about 8-30 p.m. and registered a case in Crime No.166/2014 for the offences punishable under Section 279, 338, 304-A IPC and Section 187 of the IMV Act.
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3. Thereupon, claimants filed a claim petition under Section 166 of the M. V. Act seeking compensation of Rs.9,40,000/- on the premise that due to sudden death of deceased, they all put to starvation, mental agony as they lost their only earning member of the family, which was caused on account of rash and negligent driving of respondent No.1. The respondent No.2 being RC owner and respondent No.3 being insurer are jointly and severally liable to pay compensation.
4. On service of notice, respondent No.1 appeared through his counsel and filed statement of objection, denying the petition averments and income of the deceased. It was further contended that the accident in question is not due to negligence on the part of the respondent No.1 and that the driver of the offending vehicle was having valid and effective driving license and the insurance was valid as on the date of the accident. Hence, prayed sought for dismissal of the claim petition. 5
5. The respondent No.3 appeared through its advocate and filed written statement denying the mode and manner of accident. It is contended that the driver of the offending vehicle was not possessing a valid and effective driving license as on the date of accident to drive the offending vehicle. There was a violation of terms and conditions of the insurance policy. Hence, sought for dismissal of the claim petition.
06. The Tribunal took up the case of the claimants in MVC.No.16/2016 (new) 480/2016 (old) along with MVC.No.19/2016 (new) 32/2016 (old).
07. The Tribunal based on the pleadings of the parties, framed issues and recorded evidence. The claimant No.1 examined himself as PW.1 and two other witnesses were examined as PWs.2 and 3. The claimants marked seventeen documents as Exs.P1 to 17. On behalf of the respondents two witnesses were examined as RWs.1 and RW.2 and exhibited ten documents marked Exs.R.1 to Ex.R.10.
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08. The Tribunal based on the pleadings and evidence on record held that the accident in question occurred due to rash and negligent driving of the offending vehicle by its driver causing death of the minor Paddamma. Consequently, the Tribunal held that the claimants are entitled for a total compensation of Rs.5,00,000/- along with interest at the rate of 6% p.a. from the date of petition till payment.
09. The Tribunal while fixing the liability directed the respondent No.2 - owner of the vehicle is directed to pay the compensation on the premise that the driver of the Tata Magic Vehicle was not having permit and fitness certificate as on the date of accident, thereby there was violation of police conditions.
10. Being aggrieved by the aforesaid judgment and award, the claimants are before this Court seeking enhancement of compensation.
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11. The learned counsel for the appellant - claimants reiterating the grounds urged in the appeal memorandum submitted that the Tribunal has fixed the liability of payment of compensation on the owner of the vehicle - respondent No.2 on the ground that there was a violation of policy conditions. The Tribunal ought to have follow the decision laid down by the Hon'ble Supreme Court in the case of Amrit Paul Singh and Another vs. Tata Aig General Insurance Company Limited and Others, reported in (2018) 7 SCC 558. The Hon'ble Supreme Court in the said case has held that the if the vehicle was not having permit and fitness certificate, the insurance company of the offending vehicle shall at the first instance pay the compensation and recover the same in accordance with law against violation of terms and conditions of the insurance policy. This aspect of the matter has not been considered by the Tribunal. This is only question raised in the matter.
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12. The learned counsel for the respondents does not disputed the aforesaid aspect of the matter in legal position.
13. The Hon'ble Supreme Court in the case of Amrit Paul Singh and Another vs. Tata Aig General Insurance Company Limited and Others, reported in (2018) 7 SCC 558, has held at Para No.24 as under:-
"24. In the case at had, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasize, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of 9 exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh and other cases pertaining to pay and recover principle."10
14. In view of the law laid down by the Hon'ble Supreme Court as extracted above the insurance company is liable to pay the compensation to the claimants at the first instance and therefore recover the same from the owner of the offending vehicle, in accordance with law.
15. In the result, the following...
ORDER The MFA.No.200595/2021 is partly allowed. The order of Tribunal fixing the liability on the respondent No.2 - owner of the offending vehicle is modified to the extent that the respondent No.3 - insurance company is liable to pay the compensation to the claimants at the first instance and thereafter recover the same in accordance with law from the respondent No.2
- owner of the offending vehicle.
Sd/-
JUDGE Mkm/KJJ