Karnataka High Court
Smt. Maheshwari W/O Mallikarjun ... vs Sri. Mallikarjun G And Anr on 4 September, 2023
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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NC: 2023:KHC-K:7008-DB
MFA No. 200617 of 2020
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF SEPTEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
MISC. FIRST APPEAL NO. 200617 OF 2020 (MV-I)
BETWEEN:
SMT. MAHESHWARI
W/O MALLIKRJUN HIREMATH @ GADAD,
AGED ABOUT: 39 YEARS,
OCC: ASSISTANT PROFESSOR,
GOVT. FIRST GRADE COLLEGE,
R/O. B9/10, 2ND CROSS,
BEHIND VDA OFFICE, VIVEK NAGAR WEST,
VIJAYPUR-586 109.
...APPELLANT
(BY SRI. S.S.MAMADAPUR, ADVOCATE)
Digitally signed by
AND:
SOMANATH
PENTAPPA MITTE
Location: HIGH 1. SRI. MALLIKRJUN G.,
COURT OF
KARNATAKA AGED ABOUT 40 YERS, OCC: GOVT. SERVICE,
R/O. B9/10, 2ND CROSS,
BEHIND VDA OFFICE, VIVEK NAGAR WEST,
VIJAYPUR-586109.
2. ICICI GENERAL INSURANCE CO. LTD.,
BRANCH OFFICE, ICICI LOMBARD HOUSE,
#414, VEER SAVARKAR MARG,
NEAR SIDDHI VINAYAK TEMPLE,
PRABHADEVI, MUMBAI-400 025.
...RESPONDENTS
(BY SRI. SUDARSHAN M, ADVOCATE FOR R2;
NOTICE TO R1 IS SERVED)
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NC: 2023:KHC-K:7008-DB
MFA No. 200617 of 2020
THIS MFA IS FILED UNDER U/SEC 173(1) OF MV ACT
1988, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD
DATED 12.02.2020 PASSED BY THE LEARNED I ADDL. SENIOR
CIVIL JUDGE AND MEMBER, MACT-XII, VIJAYPUR, IN MVC
NO.90/2017 AND CONSEQUENTLY ALLOW THE SAME IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FINAL DISPOSAL, THIS
DAY, RAJESH RAI K. J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the claimant/appellant under Section 173(1) of M.V.Act, challenging the judgment and award dated 12.02.2020 passed in MVC No.90/2017 by the I Addl. Senior Civil Judge & MACT-XII at Vijayapur (for short 'the Tribunal').
2. Brief facts of the case are as under:
That, on 28.09.2016, the appellant/claimant had gone to Kolhapur in Maruti Swift Car bearing Reg.No. KA-28/P-1318 owned by the respondent No.1 i.e. the husband of appellant. While returning from Kolhapur to Vijayapur on 29.09.2016 at about 1.30 a.m, when the -3- NC: 2023:KHC-K:7008-DB MFA No. 200617 of 2020 vehicle was proceeding on Athani to Vijayapur PWD road, 2 Kms from Tikota towards Vijayapur, in the early morning, due to the rash and negligent driving of respondent No.1, vehicle dashed to the tree situated on the side of the road. Due to the said impact, the appellant sustained grievous injuries, later she was shifted to Bhagyavanti Hospital, Vijayapur, subsequently to Dr.G.S.Kulkarni's Hospital, Miraj. A case has been registered by Tikota police in Crime No.154/2016 U/s 279, 337 and 338 of IPC against the first respondent. A claim petition was filed by the appellant for claiming compensation before the Tribunal U/s 166 of M.V.Act, for the injuries sustained by her in the said accident. The said claim petition was opposed by the respondent No.2-
insurance company by filing statement of objection.
3. Based on the fact and circumstances of the case, the Tribunal framed the following: -4-
NC: 2023:KHC-K:7008-DB MFA No. 200617 of 2020 ISSUES
1. Whether the petitioner proves that, on 29.09.2016 at 01.30 a.m, on Athani to Vijaypur PWD road, 2 Kms from Tikota towards Vijaypur met with road traffic accident due to actionable negligence on the part of the driver of Maruti Swift Car bearing its Reg.No.KA-28/P-1318?
2. Whether the respondent No.2 proves tht violation of terms and conditions of the insurance policy?
3. Whether the petitioner is entitled for compensation? If so to what quantum?
4. What order or award?
4. In order to prove the claim before the Tribunal, the appellant examined herself as PW1 and got marked Ex.P1 to Ex.P17. The respondents have not led any evidence, however got marked Ex.R1.
5. After assessment of the oral and documentary evidence, the Tribunal dismissed the claim petition for the reason that, the accident took place due to the negligent driving of respondent No.1, who is none other than the husband of claimant and a charge sheet is filed against -5- NC: 2023:KHC-K:7008-DB MFA No. 200617 of 2020 him. Hence, the Tribunal opined that the claimant cannot maintain the claim petition against her husband so also the insurer-respondent No.2.
6. We have heard the learned counsel for the appellant and learned counsel for the respondent No.2.
7. As could be seen from the records in this case, the accident in question is not disputed. The Tribunal dismissed the claim petition only for the reason that, police have filed charge sheet against respondent No.1 who is none other than the husband of the claimant/appellant.
8. On careful perusal of Ex.R1 i.e. the certificate of insurance produced by the respondent-insurance company, depicts that the policy type is a package policy (Private Vehicle) and the liability Section (B) reveals, personal accident cover for five persons. The said policy type and liability is not disputed by the learned counsel for the respondent No.2. In such circumstances, we are of -6- NC: 2023:KHC-K:7008-DB MFA No. 200617 of 2020 the considered view that though respondent No.1 is husband of the claimant and charge sheet is filed against him, nevertheless, it is not in dispute that the appellant/claimant, was traveling in the said car at the time of accident and due to the accident, she sustained injuries. As stated supra, since the policy cover personal accident for five persons and it is a package policy, in such circumstances, the inmates of the vehicle are entitled to claim compensation in the event of any accident caused. Hence, the judgment passed by the Tribunal is not sustainable under law. Accordingly, the matter requires consideration afresh by the Tribunal. Hence, it is just and proper to remit the matter back to the Tribunal, by giving an opportunity to both the parties to lead further evidence if they so desire. Accordingly, we proceed to pass the following:
ORDER The judgment and award dated 12.02.2020 passed in MVC No.90/2017 by the I Addl. Senior Civil Judge & MACT-XII at Vijayapur is set aside.
-7- NC: 2023:KHC-K:7008-DB MFA No. 200617 of 2020 The matter is remanded back to the Tribunal for fresh disposal by giving an
opportunity to both the parties to lead further evidence if they so desire.
The evidence already led by the parties shall be kept intact.
The parties are directed to appear before the Tribunal on 25.09.2023 without any further notice.
The Tribunal shall dispose of the matter within a period of four months from the date of first appearance of the parties i.e. 25.09.2023, in accordance with law.
Sd/-
JUDGE Sd/-
JUDGE SMP List No.: 1 Sl No.: 35