Karnataka High Court
Shriram General Insurance Co.Ltd vs Dasarath S/O Shanker Rao Ankalkar And ... on 15 November, 2021
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
MFA No.200023/2016 (MV)
BETWEEN:
SHRIRAM GENERAL INSURANCE CO. LTD.,
THROUGH DIVISIONAL MANAGER
DR. BUILDING, OPP: FOREST OFFICE
COURT ROAD, KALABURAGI.
... APPELLANT
(BY SRI. SUBHASH MALLAPUR, ADVOCATE)
AND:
01. DASARATH S/O SHANKER RAO ANKALKAR
AGE: 43 YEARS OCC: COOLIE
02. AMBUBAI W/O DASARATH ANKALKAR
AGE: 38 YEARS OCC: COOLIE
BOTH R/O: SEDAM,
NOW AT H.NO.11/32,
UPPARGALLI, STATION ROAD,
KALABURAGI-585 102.
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03. SURYAKANTH S/O SRIPATH RAO KALWAD
R/O: H.K. TRANSPORT
MARKET ROAD, YADGIR-585 202.
... RESPONDENTS
(BY SRI. NAGRAJ PATIL, ADVOCATE FOR
SRI.PRASHANTH S. KUMMAN, ADVOCATE FOR R1&R2
R3 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173 (1) OF THE MOTOR VEHICLES ACT,
PRAYING TO ALLOW THE ABOVE APPEAL AND
CONSEQUENTLY BE PLEASED TO SET ASIDE THE
JUDGMENT AND AWARD DATED 20.07.2015 PASSED BY III
ADDITIONAL SENIOR CIVIL JUDGE AND MACT,
KALABURAGI IN MVC.NO.636/2013 INSOFAR IT RELATES
TO FASTENING OF LIABILITY ON THE APPELLANT.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
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JUDGMENT
This Miscellaneous First Appeal is filed by the Insurance Company against the judgment and award dated 20.07.2015 passed in MVC.No.636/2013 on the file of III Additional Senior Civil Judge and MACT, Kalaburagi (henceforth referred as 'Tribunal').
02. Brief facts leading upto filing of the present appeal are that on 05.02.2013 the deceased - Rahul and his cousin sister were going towards Sedam Town for attending coaching classes on Kenetic Honda motor cycle, when they came in front of JMFC Court, Sedam road, they were going slowly and cautiously, at that time a Lorry bearing Reg.No.KA-31-4332 (henceforth referred as 'offending vehicle') came from backside in a rash and negligent manner and dashed against the scooter of the deceased - Rahul. The deceased - Rahul fell down from the scooter and wheel of the offending vehicle ran-over his head, thereby he died on the spot. In this regard a case in Cr.No.31/2013 was registered before the Sedam Police Station.
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03. Thereupon, the parents of the deceased - Rahul had filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.10,25,000/- on the premise that the deceased - Rahul was 12 years boy and studying in VI standard being a brilliant boy, died in the accident on account of rash and negligent driving of the offending vehicle by its driver. That the accident in question had occurred on account of negligence on the part of the driver of the offending vehicle which was insured with respondent No.1. Hence, the respondent No.1 - insurance company of the offending vehicle and respondent No.2 - owner of the offending vehicle are jointly and severally liable to pay the compensation.
04. Despite service of notice, the respondent No.2 remained absent and placed ex-parte. The respondent No.1 - insurance company appeared through its advocate and filed statement of objections contending that the deceased being minor had not reached the age for 5 qualifying himself to obtain a license to ride the scooter on the public road. Therefore, the riding of the said scooter ridden by the deceased - Rahul itself amounts to an act of rash and negligent riding. The accident was due to collision between the rider of a scooter and driver of a offending lorry. The claimants deliberately evaded to make insurer of the scooter as a party. That owner and insurer of the scooter are necessary party and therefore claim petition was bad for none-joinder of necessary party. That the very fact that a minor riding a scooter has resulted in violation of provisions of M.V. Act and Rules framed thereunder. No liability can be fastened on the insurance company. Hence, sought for dismissal of the claim petition.
05. The Tribunal based on the pleadings of the parties, framed issues and recorded evidence. The claimant No.1 being father of the deceased has been examined himself as PW.1 and marked six documents as Exs.P.1 to Ex.P.6. On behalf of the insurance company one Sri. Chandrakant Naik has been examined himself as RW.1 and marked six documents as Ex.R1 to Ex.R6. 6
06. The Tribunal based on the pleadings and evidence on record held that the accident in question occurred due to rash and negligent driving of the offending vehicle by its driver resulting in death of the deceased - Rahul. Consequently, held that the claimants being the parents of the deceased entitled to compensation of Rs.5,10,000/- along with interest at the rate of 6% p.a. from the date of petition till realization of entire compensation amount, directing the insurance company to pay the compensation amount within a period of 30 days from the date of order.
07. Being aggrieved by the aforesaid judgment and order the insurance company is before this Court.
08. The learned counsel for the appellant - insurance company reiterating the grounds urged in the appeal memorandum submitted that the Tribunal committed grave error in entertaining the claim petition of the claimants, when there was a specific contention by the 7 appellant that the rider of the scooter was solely responsible for the incident. Therefore the claim petition is hit by none-joinder of necessary parties, as claimants had not made insurance company/owner of the scooter as party. The Tribunal had not considered the fact that the deceased being minor was riding a scooter in violation of M.V. Act and Rules and was not qualified person to ply the vehicle on the public road. Hence, fastening the liability on the insurance company was not justified. The Tribunal has therefore not given any findings on these aspects of the matter. The Tribunal ought to have applied its mind with regard to the fact that the driver of the offending vehicle was not having valid and effective driving license. However, the Tribunal declined to consider the said contention on the premise that the police had not filed the charge sheet under Section 3 of the M. V. Act, thus resulted in miscarriage of justice. Hence, sought for allowing the appeal.
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09. On the other hand, the learned counsel for the claimants submitted that the judgment and order passed by the Tribunal is just and proper. A minor riding a scooter resulting in accident and his death would itself is not be a bar and does not disentitle the claimants being parents from seeking compensation. He submitted that at the most that may amounts to violation of provisions of M.V. Act and Rules. That itself cannot be a ground for rejecting the claim of the claimants. He further submits that the charge sheet has been filed and the driver of the offending vehicle has been found guilty of the offence of negligence. There was sufficient material on record to hold that the driver of the offending vehicle being negligent in the accident. The insurance company is therefore rightly made liable to pay compensation. Hence, sought for dismissal of the appeal.
10. Heard the learned counsel for the parties and perused the records.
11. The only point that arise for consideration is:
"Whether the insurance company has made out a case for interference?"9
12. The accident in question involving a scooter and the lorry resulting in death of minor - Rahul is not in dispute. The only point that was canvassed by the learned counsel for the insurance company is that the rider of the scooter deceased - Rahul being 12 years boy who was not qualified to obtain the license, had ridden the scooter on the public road, that itself amounts to negligence without requiring any further evidence in the matter. He further submitted that it is on this point alone the Tribunal ought to have fixed some responsibility in the nature of attributing negligence on the part of the deceased or his parents as the case may be.
13. The learned counsel for the claimants on the other hand submitted that merely a minor was riding a two wheeler vehicle without license which resulted in accident and consequent death would not be a ground to reject or debar the claimants from seeking compensation. At the most that may amounts to violation of the provisions of M. V. Act more particularly Section 3 of the M.V. Act and 10 Rules made thereunder to which the necessary consequences if any would follow in the nature of penalizing wrongful use of the vehicle in violation of the provisions of the Act. That by itself under no stretch of imagination can debar or disentitled the claimants from seeking compensation more particularly when there is no material evidence placed with regard to factum of the negligence on the part of the deceased. The factum of negligence has to be established by leading cogent evidence, it cannot be inferred merely because the victim was a minor and was riding scooter without license.
14. In the instant case, the insurance company except averring that the minor was riding the scooter has not placed any material evidence to show as to how and in what manner the minor contributed for occurrence of accident. The material placed would reveal that a minor along with his sister were proceedings on the road to attend their coaching classes and the offending vehicle hit the scooter from behind and even after they falling down, 11 has ran-over the head of the minor causing his instant death. In fact this undisputed fact itself reveal that the driver of the offending vehicle was in utter negligence. That the driver of the offending vehicle must have been in a clear sight as to scooter being ridden in front of him. He ought to have maintained sufficient distance. A driver/rider who is proceeding in front a offending vehicle is not expect to see behind, he is only expected to see in front of him unless taking any turn. Under the facts and circumstances of the case, it is driver of the offending vehicle who is in clear negligence in driving the offending vehicle and causing accident. As such no error of any nature whatsoever can be found with the reasoning given by the Tribunal in attributing the factum of negligence on the part of the driver of the Lorry.
15. Since, no other grounds are urged with regard to quantum of compensation or any other aspect, the same are not taken into consideration. Accordingly, the point raised is answered in the Negative.
16. In the result, the following;
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ORDER The MFA.No.200023/2016 is dismissed.
The deposit made if any be transmitted to the Tribunal.
Sd/-
JUDGE KJJ