Karnataka High Court
Smt Gangamma vs Sri Thimmarayappa on 16 July, 2018
Author: Krishna S Dixit
Bench: Krishna S. Dixit
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 16TH DAY OF JULY, 2018
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S. DIXIT
M.F.A. NO. 3462 OF 2010 (MV)
BETWEEN:
1. SMT. GANGAMMA
W/O.LATE SAMPANGI REDDY
AGED ABOUT 33 YEARS
2. KUMARI NETHRA
D/O LATE SAMPANGI REDDY
AGED ABOUT 19 YEARS
3. KUMARI MEENA
D/O LATE SAMPANGI REDDY
AGED ABOUT 16 YEARS
4. KUMARI ARUNA
D/O LATE SAMPANGI REDDY
AGED ABOUT 10 YEARS
5. SRI. THIPPA REDDY
S/O LATE RAMAREDDY
AGED ABOUT 68 YEARS
3RD AND 4TH MINOR APPELLANTS
ARE REPRESENTED BY
NEXT FRIEND/ THEIR MOTHER,
1ST APPELLANT HEREIN.
ALL ARE RESIDING AT
KURUBURU VILLAGE,
KYSAMBAHALLI HOBLI
BANGARPET TALUK,
KOLAR DISTRICT
... APPELLANTS
(BY SRI.N GOPALKRISHNA, ADVOCATE)
2
AND:
1. SRI THIMMARAYAPPA
S/O.MUNIYAPPA
RESIDING AT
THIRUMALAHATTI VILLAGE
SANTHEHALLI POST,
MALUR TALUK, KOLAR DISTRICT
2. BAJAJ ALLIANZ GENERAL
INSURANCE CO LTD
OLD ADDRESS NO-105A-107A
CEARS PLAZA, NO.136
RESIDENCY ROAD,
BENGALURU - 560 025.
NOW HAVING OFFICE AT
NO.31, TBR TOWERS,
ADJ TO BANGALORE STOCK EXCHANGE
NEW MISSION ROAD,
BENGALURU-560002
REP BY ITS MANAGER
... RESPONDENTS
(BY SRI. H R RENUKA FOR R2
SERVICE OF NOTICE TO R1 HELD SUFFICIENT
VIDE ORDER DATED 23.07.2015)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 31.10.2009 PASSED IN
MVC NO.8086/2007 ON THE FILE OF CHIEF JUDGE,
COURT OF SMALL CAUSES, MEMBER, MACT,
BENGALURU, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
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JUDGMENT
This appeal by the claimants challenges the judgment and award dated made by the MACT, Bengaluru, partly allowing the MVC No. 8086/2007, whereby a compensation of Rs. 6,93,000/- has been awarded with interest at 6% p.a. thereon till actual payment. There is a stipulation as to the disbursal and making of bank deposit of compensation awarded.
2. Brief facts of the case are:
a) In a vehicular accident that happened on 14.10.2007 at bout 4.20 PM whilst one Mr. Sampangi Reddy was walking on the footpath of Maluru-Masthi Road, near Maluru Railway Station, a motorcycle bearing Registration No. KA 08-08-K-59 came with high speed and dashed to him resulting into fatal injuries, to which he succumbed. His legal representatives, wife and children filed the claim petition MVC No. 8086/2007 seeking compensation.4
b) The claim petition of the legal representatives of the deceased are opposed by the respondents after filing the Written Statement. To prove their case, the widow of deceased, Smt. Gangamma was examined as PW1, an eyewitness, namely, Kodanda Reddy was examined as PW2. In their evidence, 8 documents came to be marked as Exs. P1 to P8 which include the police papers and the P.M. Report and also the ration card. From the side of the respondents, one Mr. Krishna Sheeranali was examined as RW1 and in his evidence, three documents came to be marked as per Exs. R1 to R3 which include the Insurance Policy.
c) Looking to the pleadings of the parties and the evidentiary material on record, the Tribunal has made the judgment and award for a compensation of Rs.6,93.000/- with annual interest at 6% thereon, subject to the conditions of apportionment and bank deposit. The same 5 are in challenge to the extent the insurer has been absolved.
3. Learned counsel for the claimants relying upon the judgment of the Apex Court in Pappu Yadav's case reported in AIR 2018 SC 592 contends that although the insurer had taken up the contention as to the absence of a valid and effective driving license, still they did not avail the benefit of limited defence clause enacted under Section 149(2) the Indian Motar Vehicles MV Act, 1988 as interpreted by the Apex Court in catena of decisions, the MACT ought to have held the insurer liable.
4. Per contra, learned counsel Smt. H.R.Renuka, appearing for the respondent No.2 vehemently contends that he owner himself being a party having been placed ex- parte the plea of "pay and recover" which the learned counsel for the claimants wants to press into service does not avail even within the matrix of the ratio laid down by the Apex Court in Pappu's case.
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5. I have heard the learned counsel of the claimants as well as the learned counsel appearing for the second respondent- insurance company. I have also perused the original LCR along with appeal papers.
6. Learned counsel for the appellant is justified in saying that the fact matrix of the appeal admits invocation of the principle of 'pay and recover' in the light of the ratio laid down in Pappu's case in as much as the Limited Defence Clause enacted under Section 149(2) of the Act has not been properly invoked by the insurer by examining some proper and competent RTO official as to the alleged driving license being valid and effective. Merely because, in the charge sheet the police have stated in a stray sentence that the driver did not have a valid and effective driving license is insufficient. Further the respondent owner being placed ex-parte by the MACT does not per se rob off the precedential value of the judgment in Pappu's case. The learned counsel for the contesting respondent is not in a position to lay some jurisprudential literature as to how such fact would weaken the invocability of a ratio. 7
7. Expect the above, no other ground has been urged in this appeal.
8. Accordingly, the appeal stands allowed; the impugned judgment and award are modified by holding that the respondents including the insurer are jointly and severally liable.
However, it is open to the second respondent-insurer to take appropriate proceedings for recovery under the "principle of pay and recover".
Sd/-
JUDGE Bsv