Karnataka High Court
Sambhaji S/O Subarao Patil vs Suresh S/O Dundappa Aihole And Ors on 19 June, 2023
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NC: 2023:KHC-K:1246
MFA No. 200539 of 2015
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
MISCL. FIRST APPEAL NO. 200539 OF 2015 (MV-I)
BETWEEN:
SAMBHAJI S/O SUBARAO PATIL
AGED: 43 YEARS, OCC:BUSINESS,
R/O AP:NANDUR TQ:NORTH SOLAPUR
DISTRICT NOTH SOLAPUR, -413007
MAHARASHTRA STATE
...APPELLANT
(BY SRI. D.P. AMBEKAR, ADVOCATE)
AND:
1. SURESH S/O DUNDAPPA AIHOLE
AGE: 25 YEARS, OCC:COOLIE,
R/O HAVINAL, TQ:INDI,
DIST:BIJAPUR-586101.
2. THE BRANCH MANAGER
HDFC ERGO GENERAL INSURANCE CO LTD
Digitally signed NO.110, HM GENEVA HOUSE,
by LUCYGRACE
Location: HIGH 1ST FLOOR CUNNINGHAM ROAD,
COURT OF BANGALORE-560052.
KARNATAKA
3. BASHIR S/O SHAIKHLAL PINJAR
AGE: 38 YEARS, OCC:BUSINESS
R/O HAVINAL, TQ:INDI,
DIST:BIJAPUR-586101.
4. RANGAPPA S/O GURUDEVAPPA BANSODE
AGE: 48 YEARS, OCC:DRIVER
R/O HAVINAL, TQ:INDI,
DIST:BIJAPUR-586101.
5. BASAVARAJ S/O MAHADEVAPPA MALAPUR
AGE: 25 YEARS, OCC:COOLIE
R/O HAVINAL, TQ:INDI,
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NC: 2023:KHC-K:1246
MFA No. 200539 of 2015
DIST:BIJAPUR-586101.
...RESPONDENTS
(BY SRI. SANGANABASAVA B. PATIL ADVOCATE FOR 1;
SMT. PREETI PATIL MELKUNDI FOR R2;
SRI. BHEEMARAYA M V. FOR R3 & R4;
SRI. BABU H. METAGUDDA FOR R5, ADVOCATES)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR
VEHICLES ACT, 1988 PRAYING TO MODIFY THE JUDGMENT AND
AWARD DATED 08.01.2015, PASSED BY MEMBER, MACT AND
PRESIDING OFFICER, FAST TRACK COURT, VIJAYPUR IN MVC
NO.344/2012 AND FURTHER DISMISS THE SAID CLAIM PETITION AS
AGAINST THIS APPELLANT.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The erstwhile owner of a tractor has filed this appeal challenging the liability fastened on him to pay the compensation awarded by the Fast Track Court, Vijayapur (for short 'Tribunal') in MVC No.344/2012, vide judgment and award dated 08.01.2015.
2. The appellant herein was the owner of a tractor bearing registration No.MH-13/J-6518 which was purportedly sold to respondent No.5. It is stated that on 19.11.2011, when the tractor was transporting sugarcane to Indian Sugar Factory, Havinal, it read-ended a tum-tum vehicle bearing registration -3- NC: 2023:KHC-K:1246 MFA No. 200539 of 2015 No.KA-28/5783 at 2.00 p.m. As a result, the claimant suffered injuries and he filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation from the appellant herein, the owner of the tum-tum vehicle, the driver of the tum-tum vehicle and present owner of the tractor.
3. The claim petition was contested by the insurer which denied that the tractor was insured by it. It contended that the driver of the tum-tum vehicle was negligent and was responsible for the accident. It also contended that the owner of the tractor had entrusted the same to a person who did not possess a valid licence and therefore, it was not liable to indemnify the owner.
4. Respondent No.5 claimed that the appellant herein was the erstwhile owner of the tractor and he entrusted the same to a person named Sanjaykumar Bharele and handed over the possession to him who got it transferred to his name. Thereafter, he sold the tractor to respondent No.5 herein on 28.09.2011. He claimed that he obtained no objection certificate from RTO Solapur to facilitate respondent No.5 to get registration of the said vehicle at RTO Vijayapur and thereafter -4- NC: 2023:KHC-K:1246 MFA No. 200539 of 2015 got his name registered. He contended that the appellant was not the owner of the tractor as on the date of accident and since the vehicle was insured, he claimed that it was the insurer who was liable to pay the compensation. He contended that he engaged a person named Alisab Ibrahimsab Nadaf to drive the tractor and he possessed a valid licence. He alleged that the tractor had entered the sugarcane factory at 9.00 a.m. and came out from the factory at 4.00 p.m. on 19.11.2011 and therefore, the tractor was not involved in the accident.
5. Based on these rival contentions, the claim petition was set down for trial. The claimant was examined as PW.1 and he marked Exs.P1 to P15. A doctor was examined as PW.2. Respondent No.5 herein was examined as RW.1, who admitted that as on 19.11.2011, the tractor stood in his name and that he was in possession of the tractor. He marked Ex.R1 which was the field slip issued by the Indian Sugar Factory, Havinal. RW.2 was an employee of Indian Sugar Factory, Havinal, who deposed that on 19.11.2011 at about 4.45 a.m. the tractor bearing registration No.MH-13-J-6518 loaded with sugarcane had entered the factory and exited the factory at 7.49 a.m. on 20.11.2011. RW.3 was the driver of the tractor -5- NC: 2023:KHC-K:1246 MFA No. 200539 of 2015 who claimed that he was in the sugarcane factory on 19.11.2011 at 4.30 a.m. RW.4 was an official of the insurer who denied the involvement of the tractor in the accident. Contrarily he claimed that the owner of the tractor did not give any intimation regarding the accident. It also claimed that the owner had entrusted the tractor to a person named Ravi S/o Suresh Koli of Chadchan village, who did not possess a valid licence to drive it and thus violated the terms and conditions of the policy of insurance. It claimed that it had filed an interim application calling upon the owner to produce the driving licence of Ravi S/o Suresh Koli. However, the owner of the tractor failed to produce the same. It therefore, claimed that an adverse influence deserved to be drawn that the driver of the tractor did not possess a valid licence.
6. Based on the oral and documentary evidence, the Tribunal held that the claimant had proved the accident in question and that the driver of the tractor was negligent and was responsible for the accident. It quantified the compensation payable to the claimant at a sum of Rs.3,70,000/-. The Tribunal found that though respondent No.5 claimed to be a purchaser of the tractor, but yet the -6- NC: 2023:KHC-K:1246 MFA No. 200539 of 2015 registration certificate indicated that as on the date of the accident, the appellant herein was the owner of the tractor. It also held that police records indicated that a person named, Ravi Koli was driving the tractor at the time of the accident and that said Ravi Koli did not produce the particulars of the driving licence though a notice was issued to him by the insurer. It therefore held that the policy conditions were violated and hence it held that the appellant was liable to pay the compensation. Being aggrieved by the liability fastened on him to pay the compensation, this appeal is filed by the owner of the tractor.
7. The learned counsel for the appellant/owner submitted that respondent No.5 had admitted categorically in his statement of objections as well as in his evidence that the tractor was purchased by him and that he was in possession of the tractor as on the date of the accident. Respondent No.5 claimed that as on the date of the accident, a person named Alisab Ibrahimsab Nadaf was the one who was driving the tractor. Ex.R3 is a slip dated 20.11.2011 issued by Indian Sugar Manufacturing Company Limited, Havinal, which disclosed that the tractor was driven by a person named Alisab -7- NC: 2023:KHC-K:1246 MFA No. 200539 of 2015 Ibrahimsab Nadaf. He therefore, submitted that since the driver of the tractor possessed a valid licence and as the vehicle was duly insured, he was not liable to pay any compensation and the liability if any ought to have been cast upon the respondent No.5.
8. The learned counsel for the insurer of the tractor contended that the document produced by the claimant indicated that as on the date of the accident, the person who was driving the tractor was Ravi, S/o Suresh Koli. He submitted that the said Ravi, S/o Suresh Koli did not possess valid licence and in order to avoid the liability, the respondent Nos.1 and 5 have now conspired to claim that the driver of the tractor was a person named, Alisab Ibrahimsab Nadaf. The learned counsel contended that Ravi, S/o Suresh Koli had appeared before the criminal Court and had pleaded guilty to a charge under Sections 279, 304A of IPC and Section 187 of Motor Vehicles Act, which indicated that he did not possess a valid licence. He therefore, contended that the tractor was driven by an unauthorized person and therefore, the insurer was not liable to indemnify the owner. He submitted that Ex.R3 was a slip issued by Indian Sugar Manufacturing Company Limited, Havinal, on -8- NC: 2023:KHC-K:1246 MFA No. 200539 of 2015 20.11.2011 and had no bearing on the facts of this case as the accident occurred on 19.11.2011. He submitted that Ex.R4 was an extract of the Cane Crushing report from 01.11.2011 to 28.10.2014, which did not indicate the name of the owner whose sugarcane was transported to the factory by the tractor in question. He therefore, submitted that even Ex.R3 is a concocted document, which cannot be relied upon.
9. Per contra, learned counsel for respondent No.5 contended that Ex.R4 clearly indicated that on 20.11.2011 the sugarcane belonging to Mr. Birajadar Balasaheb Mahadev was transported to Indian Sugar Factory in the tractor bearing registration No.MH-13-J-6518 and the driver of the tractor was entered in Ex.R3 as Alisab Ibrahimsab Nadaf. He contended that from the day he purchased the tractor, Mr. Alisab Ibrahimsab Nadaf was a driver and since he possessed a valid licence and as the tractor was duly insured, the liability to pay the compensation is only upon the insurer.
10. I have considered the submissions made by the learned counsel for the appellant/owner and the learned counsel for the insurer as well as the learned counsel for the -9- NC: 2023:KHC-K:1246 MFA No. 200539 of 2015 respondent No.5. I have also perused the records of the Tribunal as well as its judgment and award.
11. Respondent No.5 who was examined as RW.1 did admit that he was the owner of the tractor as on the date of the accident. Though it is claimed in the complaint at Ex.P1 that a tractor was driven by a person named Ravi, the charge- sheet was yet to be proved. There is no material placed on record to establish that the said Ravi had admitted his guilt and/or that he was convicted for the offences under Section 279, 337, 338 of IPC and Sections 187, 188 of the Motor Vehicles Act. RW.1 in his evidence categorically stated that he was in possession of the tractor from 28.09.2011 when he received the possession of the tractor and the registration certificate of the tractor was transferred to the name of the respondent No.5. He deposed that a person named Alisab Ibrahimsab Nadaf was employed as a driver in the tractor as on the date of the accident. He also marked Ex.R3 which indicated that the said Alisab Ibrahimsab Nadaf was the driver of the tractor as on 20.11.2011. Therefore, it is probable that the driver who was driving the tractor on the date of the accident was Alisab Ibrahimsab Nadaf and not Ravi. Since the said
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NC: 2023:KHC-K:1246 MFA No. 200539 of 2015 Alisab Ibrahimsab Nadaf possessed a valid licence and the tractor was duly insured, the appellant being a erstwhile owner of the tractor was in no way responsible to pay the compensation determined by the Tribunal.
12. In that view of the matter, this appeal deserves to be allowed and is accordingly allowed. The liability fastened on the appellant herein to pay the compensation awarded by the Tribunal in MVC No.344/2012 is modified and insurer of the tractor bearing registration No.MH-13-J-6518/respondent No.2 herein is directed to pay the compensation and interest awarded by the Tribunal to the claimant.
Any amount in deposit is ordered to be refunded to the appellant herein.
Sd/-
JUDGE SRT/PMR