Karnataka High Court
National Insurance Co Ltd vs Sri Papul S/O Jamalsab Patil on 20 June, 2014
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF JUNE 2014
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP D. WAINGANKAR
M. F. A. NO.13601/2007 (MV)
BETWEEN
NATIONAL INSURANCE CO. LTD.,
NEAR GLASS HOUSE, HUBLI
APPELLANT IS REP. HEREIN BY ITS:
THE ADMN. OFFICER,
NATIONAL INSURANCE CO. LTD.,
BANGALORE REGIONAL OFFICE,
SUBHARAM COMPELX, 144,
MAHATMA GANDHI ROAD,
BANGALORE-560 001
..... APPELLANT
(BY M/S. LEXPLEXUS)
AND
1. SRI PAPUL S/O JAMALSAB PATIL,
AGE: 26 YEARS,
R/O SUBASA CIRCLE,
HAVERI
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2. MEHABUBSAB J NEGALUR,
FATHER'S NAME NOT KNOWN,
AGE: NOT KNOWN,
R/O HUMANABADI ONI,
HAVERI
3. HONNAPPA S/O DODDAHONNAPPA
MARIYAMMANAVAR,
AGE NOT KNOWN,
R/O MULLANAKERI,
NEAR MAGAVI TALKIES,
HAVERI
4. THE NEW INDIA ASSURANCE CO. LTD.,
DAVANAGERE,
REP. BY ITS DIVISIONAL MANAGER
..... RESPONDENTS
(BY SRI M.K. SOUDAGAR, ADV. FOR R-4
R-2 & R-3 SERVED AND UNREPRESENTED
R1-"NOTICE DISPENSED WITH")
MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 13.7.2007 PASSED
IN MVC NO. 157/2006 ON THE FILE OF THE DIST.
JUDGE AND MACT, PRESIDING OFFICER, FAST
TRACK COURT, HAVERI, AWARDING A
COMPENSATION OF RS. 2,25,000/- WITH INTEREST @
6% P.A FROM THE DATE OF PETITION TILL
REALISATION.
THIS APPEAL COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal by the National Insurance Company Ltd., under Section 173(1) of the Motor Vehicle Act is against the judgment and award dated 13.07.2007, in M.V.C. No.157/2006, on the file of Fast Track Court and Addl. M.A.C.T., Haveri to the extent directing the appellant to satisfy 50% of the compensation amount awarded to the claimant.
2. On 10.06.2003, at about 12-00 O'clock in the midnight, claimant along with his friend Rafiq was proceeding from Sirsi to Haveri on a motorcycle bearing registration No.KA-27/J-6816 as pillion rider. When he reached near Aladkatti village, because of the rash and negligent riding of the motorcycle it dashed against the auto rickshaw bearing registration No.KA-27/-4484, which was coming from the opposite direction. As a result of head on collision between two vehicles, the claimant was thrown out from the motorcycle and :4: thereby he sustained grievous injuries for which he was treated for a prolong period of time. He spent substantial amount for treatment. He lost his income during the period of treatment and in spite of best treatment, he is left with certain amount of disability. As such claiming compensation of Rs.5,20,000/-, he filed a claim petition under Section 166 of the M.V. Act against the owner and insurer of both motorcycle and auto rickshaw involved in the accident.
3. The claim petition was opposed by both the respondent-insurance companies by filing separate statement of objections wherein both the insurance companies have denied all the material averments made out in the claim petition as to the manner of accident, the nature of injuries sustained by the claimant, the period of treatment, expenditure incurred, the disability said to have been suffered by him etc., etc., apart from :5: denying the negligence attributed to the rider of the motorcycle as well as the driver of the auto rickshaw.
4. The claim petition came for consideration before the Tribunal. The Tribunal in turn framed the relevant issues regarding negligence as well as quantum of compensation to be awarded.
5. To substantiate the claim, the claimant got examined himself as PW-1 apart from examining Dr. Kantesh Bheemakkanavar as PW-2. As many as 30 documents came to be marked as Exs.P-1 to P-30. On behalf of the respondent No.2 National Insurance Co., one Ashok Laxman Pai was examined as RW-1.
6. The Tribunal upon hearing the submissions made by the learned counsel appearing for the parties and upon going through the evidence placed on record both oral and documentary, recorded a finding that the injuries sustained by the claimant is on account of rash :6: and negligent driving of the drivers of both the vehicles in equal proportion. The Tribunal by impugned judgment and award, awarded a total compensation of Rs.2,25,000/- and directed the insurer of the motorcycle to deposit 50% of award amount and 50% by the insurer of the auto rickshaw. Aggrieved by the same, this appeal is filed by the appellant-National Insurance Co. Ltd., insurer of the motorcycle.
7. I have heard the submissions made by the learned counsel appearing for the parties. Perused the records.
8. Learned counsel appearing for the appellant- National Insurance Co. would submit that as on the date of accident, the rider of the motorcycle insured by them did not possess valid and effective driving licence and thereby the owner of the motorcycle has committed breach of policy conditions. As such, the award passed by the Tribunal directing the appellant-National :7: Insurance Company to satisfy 50% of the compensation awarded is liable to be set aside.
9. The respondent-claimant though served with the notice, did not appear.
10. Having heard the submissions made by the learned counsel appearing for the appellant-National Insurance Company and the learned counsel appearing for the respondent-New India Insurance Co. Ltd., the point that arises for my determination is as under:
"Whether the Tribunal is right in directing the appellant-National Insurance Co. Ltd., to satisfy 50% of the award amount?"
11. During the course of arguments, the learned counsel appearing for the appellant-National Insurance Co. Ltd. has produced certified copy of the order sheet dated 14.07.2003, in C.C.No.352/2003 on the file of Civil Judge and J.M.F.C., Hospet in a case arising out of the accident in question wherein the accused-rider of :8: motorcycle appeared before the jurisdictional Magistrate and pleaded guilty for the charges punishable under Sections 279, 337 & 338 of IPC and under Section 3 read with Section 181 of the M.V. Act. Since the rider of the motorcycle himself pleaded guilty for the offences punishable under Section 3 read with Section 181 of the M.V. Act, it goes without saying that he did not possess valid and effective driving license as on the date of accident and thereby the owner of the motorcycle has committed breach of policy conditions by permitting such a person to ride the motorcycle. Since, it is certified copy of an order sheet in a criminal case, it can be taken note of. Having regard to the fact that the rider of the motorcycle himself pleaded guilty, the owner committed breach of policy conditions and in that case, it was not proper to direct the insurance company to indemnify the owner and to satisfy 50% of the award amount. It is for the owner of the motorcycle- respondent No.2-Mehabubsab Neglur to pay-deposit :9: 50% of the award amount. Accordingly, I proceed to pass the following:
ORDER
(i) The appeal filed by the appellant-
National Insurance Company Ltd. is hereby allowed as against respondent No.2- Mehaboobsab Neglur.
(ii) The judgment and award dated 13.07.2007, in M.V.C.No.157/2006, on the file of Addl. M.A.C.T., Haveri directing the appellant-National Insurance Co. Ltd., to pay 50% of the award amount to the claimant is set aside.
(iii) Respondent No.2 is hereby directed to deposit 50% of the total compensation awarded together with 6% interest thereon from the date of petition till the date of realisation within 30 days from the date of receipt of copy of the award. : 10 :
(iv) Appeal filed against respondent Nos.3 and 4, who are the owner and insurer of auto rickshaw is hereby dismissed. The statutory amount in deposit shall be refunded to the appellant-National Insurance Co. Ltd.
Sd/-
JUDGE Naa