Karnataka High Court
Shivappa Bhirappa Plujari, vs Lagamappa S/O Jakkappa Guravi, on 17 April, 2018
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BEN CH
ON THE 17 T H DAY OF A PRIL 2018
BEFORE
THE HON'BLE MR. JUSTICE K .N . PHA NEENDRA
M.F.A .NO.25552/2010 (MV)
C/W
M.F.A .NO.24501/2010 (MV)
IN M.F.A.NO.25552/2010 (MV)
BETWEEN :
SHRI SHIVA PPA BI RAPPA PUJARI ,
AGE : 39 YEARS, OCC: COOLI E &
SHEPHERD, R/O Y ADAGUD,
TAL: HUKKERI , DI ST: BELGAUM.
...APPELLANT
(BY SRI VIJAYKUM AR B HORATTI, AD VOCATE)
AND:
1. SHRI LA GAMAPPA S/O JAKKAPPA GURAVI,
AGE : 45 YEARS, OCC: BUSINESS ,
R/O HOSPETH, POST : HIDKAL DAM,
TAL: HUKKERI , DI ST: BELGAUM.
2. THE NEW INDIA A SSURANCE CO.LTD.,
BY ITS DIVISIONA L OFFI CE AT CLUB ROAD ,
BELGA UM.
...RESPONDENTS
(BY SRI SACHIN S MUGADUM , ADV OCATE F OR R.1)
(BY SRI R.R.MANE, ADV OCATE FOR R.2)
:2:
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTI ON 173(1) OF MOTOR VEHICLES ACT,
1988 PRAYING TO ENHANCE THE COMPENSATION AS
CLAIMED BY THE APPELLANT BY MODIFYING THE
JUDGMENT AND AWARD PASSED BY THE COURT OF
THE FAST TRACK AND MACT, HUKKERI IN MVC
NO.286/ 2006 DAT ED 16.08.2010, IN THE INTEREST OF
JUSTICE.
IN MF A.NO.24501/2010 (MV)
BETWEEN :
THE NEW INDIA A SSURANCE CO.LTD.,
BY ITS DIVISIONA L OFFI CE
AT CLUB ROAD, BELGAUM.
HEREIN REPRESEN TED BY NEW INDI A
ASSURANCE CO.LTD., REGIONAL OFF ICE,
MOTOR THIRD PARTY HUB OFFICE,
SRINATH COM PLEX, 2 N D FLOOR,
NOW COTTON MARKET,
HUBLI- 580 029, REPRES ENTED BY ITS
AUTHORIZED SIGN ATORY.
...APPELLANT
(BY SRI R.R.MANE, ADV OCATE)
AND:
1. SHRI SHIVA PPA BI RAPPA PUJARI ,
AGE : 39 YEARS, OCC: COOLI E &
SHEPHERD, R/O Y ADAGUD,
TAL: HUKKERI , DI ST: BELGAUM.
2. SHRI LA GAMAPPA S/O JAKKAPPA GURAVI,
AGE : 45 YEARS, OCC: BUSINESS ,
:3:
R/O HOSPETH, POST : HIDKAL DAM,
TAL: HUKKERI , DI ST: BELGAUM.
...RESPONDENTS
(BY SRI VIJAYKUM AR B HORATTI, AD VOCATE FOR R1.)
(BY SRI SACHIN S MUGADUM , ADV OCATE F OR R.2.)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTI ON 173(1) OF MOTOR VEHICLES ACT,
1988 PRAYING TO SET ASIDE THE AWARD DATED
16.08.2010 PASS ED BY THE COURT OF THE FAST
TRACK AND M.A.C.T., HUKKERI, IN MVC.NO.286/2006
AND TO PASS SUCH OTHER ORD ER OR ORDERS AS
THIS HON'BLE COURT DEEMS FIT UNDER THE FACTS
AND CIRCUMSTAN CES OF THE CASE, INCLUDING THE
COSTS, IN THE IN TEREST OF JUSTICE AND EQUITY.
THESE MISCELLAN EOUS FIRST APPEALS COMING
ON FOR ADMISSIONS THIS DAY, THE COURT
DELIVERED THE F OLLOWING:
JUDGMENT
Heard the learned counsel for the appellant, the learned counsel for the respondents and perused the records.
:4:
2. Though these appeals are posted for admission, this court has taken up for final disposal with consent of both the counsel.
3. M.F.A.No.25552/2010 is filed by the claimant in MVC No.286/2006 seeking enhancement of the compensation and M.F.A.No.24501/2010 is filed by respondent No.2 before the Tribunal i.e., New India Assurance Company Limited, challenging the award passed by the Tribunal fastening the liability on the insurance company directing the insurance company to pay the compensation and recover the same from respondent No.1, the owner.
4. There is no much dispute with regard to the other issues involved in the case with regard to the accident being taken place on 30.11.2005 at about 10.30 am near Holemmadevi Temple near Badkundri bridge on Belagavi-Hukkeri road and :5: due to the impact of the said accident, the claimant (appellant in MFA No.25552/2010) sustained grievous injuries and that the said accident was taken place due to rash and negligent driving of the vehicle i.e., the Trax bearing registration No.KA.22/M.6555 by its driver.
5. The insurance company in the said case has taken the contention that, the driver of the offending vehicle had no valid and effective driving licence at the time of accident. The Tribunal has held that the accident was due to the rash and negligent driving of the driver of the said offending vehicle and also affirmative in holding that, the driver had the valid driving licence to drive the offending vehicle i.e., the Tempo Trax which is involved in the case. The Insurance company had taken a specific stand that the claimant was a paid passenger therefore, the :6: liability shall be fastened on the owner and insurance company has no liability as per terms and conditions of the policy which has been violated by the owner of the vehicle. The Tribunal has came to the conclusion after detailed discussion accepting the case of the insurance company that, the owner of the said vehicle is liable to pay the compensation, but the Court ordered that, respondent No.2 shall pay the said compensation and recover the same from respondent No.1.
6. The said order is being challenged by the insurance company holding that the order passed by the Tribunal i.e., pay and recover is illegal and liable to be set aside.
7. Though the learned counsel for the appellant contended before the Court that, the Tribunal has not properly awarded the :7: compensation, but after thorough examination of the calculation made by the Tribunal, the Tribunal has considered the injuries sustained by the claimant and also taken the notional income of the claimant and calculated the compensation and totally granted an amount of Rs.1,15,200/- which in my opinion does not call for any interference by this Court and the said compensation is just and reasonable.
8. Now the question arises for consideration by this Court is that, whether the Tribunal is right in passing the order of pay and recover against the insurance company. In this regard, the learned counsel for the respondent insurance company Sri R.R.Mane relies upon a decision of this court reported in ILR 2012 KARNATAKA 5241 between the Oriental Insurance Co., Ltd., Vs. Sri Subramanyam and another, the Division Bench of this Court has categorically held :8: that, the Apex Court has got exclusive jurisdiction to issue a direction under Article 142 of the Constitution of India that, the insurance company can make the payment and recover the same. It is also categorically held that, the High Court has no jurisdiction to pass such an order, because it has no jurisdiction to pass order under Article 142 of the Constitution of India. It is the exclusive jurisdiction of the Supreme Court to pass such order as is necessary for doing complete justice in any cause or matter pending before it.
9. In view of the above said law already been laid down by this court, in my opinion the order of the Tribunal fastening the liability on the insurance company to pay and recover, is not proper and correct. Though the learned counsel for the appellant in MFA No.25552/2010 has relied upon a decision of the Apex Court reported in 2017 ACJ 1362 between the Lal Singh Marabi Vs. :9: National Insurance Company Limited and others, in the said case also the Apex Court in fact has granted a direction to the insurance company to pay compensation to the claimant and recover said amount from the owner and driver of the Tempo Trax.
10. On careful perusal of the above said judgment the point that has been decided by this court in the Division Bench has not been raised and that point has not been decided by the Apex Court, holding that the High Courts have also got any power to pass such an order of pay and recover and in the absence of such law being laid down by the Apex Court, the judgment of this court passed by the Division Bench has to be followed by this court, as a matter of discipline.
11. In view of the above said facts and circumstances, I don't find any strong reasons to : 10 : differ from the judgment of this Court rendered by the Division Bench. In view of the above said circumstances, the following order is passed.
ORDER
1. The Appeal in MFA No.25552/2010 filed by the claimant is hereby dismissed holding that the compensation granted by the Tribunal is just and reasonable.
2. However, the appellant is at liberty to recover the compensation amount of Rs.1,15,200/- with cost and interest at the rate of 6% from respondent No.1.
3. The appeal in MFA No.24501/2010 filed by the Insurance Company is hereby allowed. Consequently the judgment and award passed by the : 11 : Tribunal in MVC.No.286/ 2006 is dismissed so far as respondent No.2 therein (appellant herein) is concerned.
4. The amount if any already deposited by the insurance company before this court is ordered to be refunded to the appellant in MFA No.24501/2010.
SD/-
JUDGE E M/ -