Karnataka High Court
The Senior Divisional Manager, vs Mangal W/O Sanjeev Balaganavi, on 9 October, 2020
Author: V.Srishananda
Bench: V. Srishananda
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 9TH DAY OF OCTOBER 2020
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
M.F.A. NO.22303/2013 (MV)
BETWEEN
THE SENIOR DIVISIONAL MANAGER,
ICICI LOMBARD GENERAL
INSURANCE CO., LTD.,
ZENITH HOUSE, KESHAVRAO
KHADYE MARG, OPP. RACE
COURSE, MAHALAXMI, MUMBAI.
NOW REPTD., BY ITS MANAGER
LEGAL, II FLOOR, BELLAD & CO.
BUILDING, GOKUL ROAD, HUBLI.
... APPELLANT
(BY SRI.NAGARAJ C KOLLOORI, ADV.)
AND
1. SMT.MANGAL W/O SANJEEV BALAGANAVI,
AGE: 30 YEARS, OCC: HOUSEWIFE,
2. SMT.SHALABAI W/O. BASSAPPA BALAGANAVI,
AGE: 54 YEARS, OCC: HOUSEWIFE,
3. INDUMATI D/O SANJEEV BALAGANAVI,
AGE: 26 YEARS, OCC: STUDENT,
4. MEENAXI D/O SANJEEV BALAGANAVI,
AGE: 24YEARS, OCC: COOLIE,
ALL ARE R/O: NANDESHWAR, TQ: ATHANI,
DIST: BELGAUM.
5. SRI.HARISH SHANKARLAL BHANUSHALI,
AGE: MAJOR, OCC: BUSINESS,
R/O: CHHADHA MOTRS, N.H.NO.8,
VASAI PHATA, VASAI THANA
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6. GORGEON TRANSPORT COMPANY,
RANUBAG NO.3, BHIWANDI,
THANA - 421302.
... RESPONDENTS
(BY SMT.ARCHANA A MAGADUM, ADV. FOR R2,
R1, R3 TO R5 ARE SERVED,
NOTICE TO R6 IS HELD SUFFICIENT)
THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED:18-03-2013 PASSED IN MVC
NO.440/2012 ON THE FILE OF PRESIDING OFFICER, FAST TRACK
COURT-IV, BELGAUM, AWARDING THE COMPENSATION OF
Rs.6,06,000/- WITH INTEREST AT THE RATE OF 9% P.A., FROM
THE DATE OF PETITION TILL THE DATE OF ACTUAL DEPOSIT.
THIS MFA COMING ON FOR ORDERS, THIS DAY, COURT
DELIVERED THE FOLLOWING:
JUDGMENT
Though this matter is listed for orders today, with the consent of parties, matter is taken up for final disposal.
2. Insurance Company is in appeal challenging the judgment and award passed in MVC No.440/2012 dated 18.03.2013 on the file of the Presiding Officer, Fast Track court-IV, Belagavi (hereinafter referred to as "the Tribunal" for short).
3. Brief facts, which are necessary for disposal of the appeal are as under:
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3.1 A claim petition came to be filed under Section 166 of Motor Vehicles Act claiming compensation to tune of Rs.50,00,000/- from the respondents on account of death of Sanjeev (hereinafter referred to as deceased) contending that on 18.11.2011 at about 5.00 p.m. when the deceased was proceeding towards Nandeshwar on his scooter and reached near Kudri Farm House on Satti road, a lorry bearing No.MH-04/BU-6136 came in a rash and negligent manner and dashed against the scooter and caused the accident. As a result, the deceased fell down from the scooter and sustained fatal injuries and died on the spot. Thereafter, the body was shifted to hospital and postmortem was conducted.
3.2 It is further contended that the deceased was only the bread earner of the family and he had agricultural income of Rs.5,00,000/- p.a. and therefore, sought for awarding suitable compensation.
4. In response to the notice issued by the Tribunal, respondents No.1 and 2 who are the owner and -4- driver of the lorry remained exparte and the Insurance Company appeared and filed written statement denying the petition averments in toto inter alia disputing the effective driving licence held by the deceased at the time of the accident.
5. Based on the rival contentions of the parties, the following issues were raised by the Tribunal.
1. Whether the petitioners proves that on 18.11.2011 at about 1700 hours on Satti road near Kudri farm house the accident had taken place due to the rash and negligent driving of lorry bearing no.MH-04/BU-6136 by its driver and thus deceased Sanjeev Basappa Balaganvi sustained fatal injuries and died on the spot?
2. Whether the petitioners or respondent no.1 and 2 proves that the said vehicle was insured with respondent No.3?
3. Whether respondent no.3 proves that the driver of the said vehicle was not valid and effective driving licence at the time of accident?-5-
4. Whether respondent No.3 proves that the owner of the said vehicle plying the same in the State of Karnataka for the purpose of carrying goods without valid permit?
5. Whether the respondent No.3 proves that the alleged accident had occurred due to negligent act of the deceased himself?
6. Whether the petitioners are entitled for compensation? If so, what is the quantum and from whom?
7. What order or Award?"
6. In order to prove the issues, the first claimant got examined herself as PW.1 and got marked documentary evidence which were exhibited and marked as Exs.P.1 to P.9. On behalf of respondents, officer of the Insurance Company is examined as RW.1 and policy got marked as Ex.R.1.
7. The Tribunal after hearing the parties and on perusal of the entire material on record, allowed the claim petition in part and awarded compensation in a sum of -6- Rs.6,06,000/-. It is that judgment which is impugned in this appeal.
8. Learned counsel, appearing for the appellant- Insurance Company vehemently contended that that the Tribunal grossly erred in law in not noticing the fact that the offending lorry did not possess the proper permit to ply in Karnataka and the permit was only restricted to Maharashtra State and therefore there is violation of the policy conditions and hence, the award passed by the Tribunal is against law and prayed for allowing the appeal.
9. Alternatively, the learned counsel for the appellant also disputed the quantum of compensation and submits that the compensation awarded by the Tribunal is on the higher side.
10. Respondents No.1, 3 to 6 though served with notice, remained unrepresented.
11. On perusal of the entire material on record, the following points would arise for consideration: -7-
i) Whether the Insurance Company makes out a case in assailing the award passed by the Tribunal?
ii) Whether the Insurance Company makes out a case that the quantum of compensation awarded by the Tribunal is on the higher side?
12. This Court answers the above points in negative for the following:
REASONS
13. In this appeal, the accident occurred on 18.11.2011 is not in dispute. So also, the deceased succumbed to the injuries and involvement of the scooter and lorry bearing No.MH-04/BU-6136 is also not in dispute. The sole contention of the Insurance Company is that the lorry did not possess proper permit to ply in Karnataka and permit conditions were only restricted to Maharashtra State.
14. This aspect of the matter has been dealt in detail in paragraph No.14 of the impugned judgment, -8- wherein the Tribunal held that it is an admitted fact that neither the claimants nor the Insurance Company have produced the copy of permit of the offending lorry to substantiate the contentions of the respondent. Even before this Court in this appeal, permit of the offending lorry is not produced.
15. Further, awarding compensation in case of violation of permit conditions is no longer res integra. In Durgamma Yallamma Vs. S.G.Naresh and Others reported in 2017 (1) AKR 67 this Court has held that violation contemplated under Section 149(2) relates to 'use of vehicle' and not to violation of permit condition. Head note of the said decision reads as under:
"Motor Vehicles Act (59 of 1988), S.149(2)(a)(i)(c)
-violation of terms and conditions of policy - 'use of vehicle for purpose not allowed by permit'- violation contemplated under S.149(2) relates to 'use of vehicle' and not to violation of permit condition-vehicle plied by deviation in route permit-is not breach of policy."-9-
16. Again Durgamma case was referred to by the Division Bench of this Court in the case of United India Insurance Company Limited, by its Divisional Manager Vs. Sandhya in MFA No.102428/2017 decided on 07.06.2019 and the Davison Bench of this Court approved the view taken in Durgamma case. Hence, the argument of the Insurance Company that because of violation of permit conditions, saddling the liability on the Insurance Company is erroneous cannot be countenanced in law.
17. The learned counsel for the appellant- Insurance Company contended that the Tribunal grossly erred in taking into consideration the income of the deceased at the rate of Rs.4,500/- p.m. and as such awarding of compensation is on the higher side. Admittedly, the accident is of the year 2011. This Court and Lok-Adalath for the accidental claim of the year 2011, would normally assess the notional income at Rs.6,000/- p.m. In the instant case also, in the absence of any appeal -10- by the claimants seeking enhancement of compensation, this Court is of the opinion that on the question of quantum of compensation, the Insurance Company has not made out any good case to interfere with the well reasoned order of the Tribunal.
18. Under such circumstances, solely on the basis of the contentions taken by the Insurance Company, this Court cannot interfere with the well reasoned order of the Tribunal and therefore, the following:
ORDER The appeal is merit less and is hereby dismissed.
Amount in deposit, if any, shall be transferred to the Tribunal forthwith.
In view of dismissal of the appeal, pending interlocutory applications, if any, do not survive for consideration and the same are disposed of.
Sd/-
JUDGE Sh