Karnataka High Court
The Divisional Manager, ... vs Tulasawwa W/O. Satish Chandalavar on 10 April, 2018
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BEN CH
ON THE 10 T H DAY OF A PRIL 2018
BEFORE
THE HON'BLE MR. JUSTICE K .N . PHA NEENDRA
MFA No.23290/2012 (MV)
C/W
MFA Nos.23291 AN D 23292 OF 2012
IN MFA No.23290/ 2012
BETWEEN :
THE BRANCH MAN AGER,
CHOLAMANDALAM , MS GNERA L
INSURANCE CO. LTD., BELLARY,
DOOR NO.15/17, NIRMAL BUILDIN G,
REP.BY THE SENI OR MANAGER (CLAI MS)
CHOLAMANDALAM M.S. GENERAL
INSURANCE CO.LT D., NO.135/5,
2 N D F LOOR, 5 T H CROSS, J.P.NAGAR,
3 R D PHAS E, BANGA LORE- 560078.
...APPELLANT
(BY SRI.S .K.KAYA KAMATH, ADV.)
AND:
1. SMT.TULASAWWA W/O SATISH CHAN DALAVAR,
AGE: 29 YEARS , OCC: COOLIE,
R/O GADDANKERI, TQ. AND DIST: BAGALKOT .
2. SANGAYYA S/O HOLABASAYYA KAMBI,
AGE: 41 YEARS , OCC: OWNER OF THE VEHI CLE
BEARING REG.NO.KA-29/A- 709,
:2:
R/O ANGANWADI VILLAGE,
TQ. AND DIST: BA GALKOT .
...RESPONDENTS
(BY SRI.S .C.HIREMATH, ADV . F OR R1,
R2 SERVED)
THIS APPEA L IS FILED UNDER SECTION 173( 1)
OF MV ACT, 1988 A GAINST THE JUDGMENT AND
AWARD DATED 14.05.2012 PASSED IN MV C
NO.53/ 2011 ON T HE FILE OF THE MEMBER, MACT-II,
BAGALKOT , AWA RDING THE COMPENSATION OF
RS.11,450/- WITH INTEREST AT THE RATE OF 6% P.A.
FROM THE DATE OF PETITION TILL REALISATION.
IN MFA No.23291/ 2012
BETWEEN :
THE BRANCH MAN AGER,
CHOLAMANDALAM , MS GNERA L
INSURANCE CO. LTD., BELLARY,
DOOR NO.15/17, NIRMAL BUILDIN G,
REP.BY THE SENI OR MANAGER (CLAI MS)
CHOLAMANDALAM M.S. GENERAL
INSURANCE CO.LT D., NO.135/5,
2 N D F LOOR, 5 T H CROSS, J.P.NAGAR,
3 R D PHAS E, BANGA LORE- 560078.
...APPELLANT
(BY SRI.S .K.KAYA KAMATH, ADV.)
AND:
1. SMT.DEVAKEWWA W/O DHARMANNA KURAHATTI,
AGE: 56 YEARS , OCC: COOLIE,
R/O SIMIKERI VI LLAGE,
TQ. AND DIST: BA GALKOT .
2. SANGAYYA S/O HOLABASAYYA KAMBI,
AGE: 41 YEARS , OCC: OWNER OF THE VEHI CLE
:3:
BEARING REG.NO.KA-29/A- 709,
R/O ANGANWADI VILLAGE,
TQ. AND DIST: BA GALKOT .
...RESPONDENTS
(BY SRI.S .C.HIREMATH, ADV . F OR R1,
R2 SERVED)
THIS APPEA L IS FILED UNDER SECTION 173( 1)
OF MV ACT, 1988 A GAINST THE JUDGMENT AND
AWARD DATED 14.05.2012 PASSED IN MV C
NO.54/ 2011 ON T HE FILE OF THE MEMBER, MACT-II,
BAGALKOT , AWA RDING THE COMPENSATION OF
RS.15,900/- WITH INTEREST AT THE RATE OF 6% P.A.
FROM THE DATE OF PETITION TILL REALISATION.
IN MFA No.23292/ 2012
BETWEEN :
THE BRANCH MAN AGER,
CHOLAMANDALAM , MS GNERA L
INSURANCE CO. LTD., BELLARY,
DOOR NO.15/17, NIRMAL BUILDIN G,
REP.BY THE SENI OR MANAGER (CLAI MS)
CHOLAMANDALAM M.S. GENERAL
INSURANCE CO.LT D., NO.135/5,
2 N D F LOOR, 5 T H CROSS, J.P.NAGAR,
3 R D PHAS E, BANGA LORE- 560078.
...APPELLANT
(BY SRI.S .K.KAYA KAMATH, ADV.)
AND:
1. ADAYYA SANGAYYA SARANGAMATH,
AGE: 66 YEARS , OCC: BUSINESS ,
R/O SIKKERI VILLAGE,
TQ. AND DIST: BA GALKOT .
:4:
2. SANGAYYA S/O HOLABASAYYA KAMBI,
AGE: 41 YEARS , OCC: OWNER OF THE VEHI CLE
BEARING REG.NO.KA-29/A- 709,
R/O ANGANWADI VILLAGE,
TQ. AND DIST: BA GALKOT .
...RESPONDENTS
(BY SRI.S .C.HIREMATH, ADV . F OR R1,
R2 SERVED)
THIS APPEA L IS FILED UNDER SECTION 173( 1)
OF MV ACT, 1988 A GAINST THE JUDGMENT AND
AWARD DATED 14.05.2012 PASSED IN MV C
NO.55/ 2011 ON T HE FILE OF THE MEMBER, MACT-II,
BAGALKOT , AWA RDING THE COMPENSATION OF
RS.27,200/- WITH INTEREST AT THE RATE OF 6% P.A.
FROM THE DATE OF PETITION TILL REALISATION.
THESE APPEALS COMING ON FOR ADMISSION
THIS DAY, T HE COURT DELIVERED THE F OLLOWING:
JUDGMENT
The appellant-insurance company being aggrieved by the judgment passed by the MACT-II, Bagalkot in MVC Nos.53 to 55 of 2011 dated 14.05.2012 in fastening the liability on the appellant-insurance company, approached this Court seeking setting aside the said judgment, so far it relates to the appellant is concerned. :5:
2. All the above said appeals raised common question of law and facts, therefore, they are taken up together for disposal.
3. The claimants in MVC Nos.53 to 55 of 2011 before the Tribunal are arrayed as respondent No.1 respectively in the above said appeals. They have filed their petitions seeking compensation for the injuries sustained by them in an accident dated 19.05.2010 at 11.15 hours. There is no dispute as such, between the parties to the proceedings with regard to occurring of the accident and also claimants sustaining injuries. The record discloses that, respondent No.1 before the Tribunal is the owner of a vehicle bearing Reg.No.KA-29/A-709 a Tum Tum vehicle. In fact, in spite of issuance of notice to him, he remained absent before the Tribunal and he was set ex- parte. Even before this Court also, notice has been ordered to respondent No.2, who is owner of the :6: said offending vehicle. In spite of due service, he remained absent and unrepresented.
4. The insurance company, the appellant herein has taken up a contention that, on the date of the accident, the driver of the offending vehicle bearing Reg.No.KA-29/A-709 was not holding any valid and effective driving licence, therefore, the terms and conditions of the policy have been violated. Therefore, the insurance company cannot indemnify the owner for payment of any compensation. The Tribunal solely and wrongly on the ground that, the police have not charge sheeted the driver of the said Tum-Tum vehicle, for the offence under the Motor Vehicles Act, but only under IPC, holding that, respondent No.2 therein has failed to place any material on record to substantiate the said defence, fastened the liability on the appellant-insurance company. The learned counsel for the appellant strenuously :7: contend before this Court that, the Tribunal has not looked into the documents produced by the claimants themselves, i.e., charge sheet filed against the driver of the said offending vehicle, which is marked at Ex.P6. The said document would have been seen by the Tribunal, it would not have fastened the liability on the insurance company. The Tribunal has made observations that the charge sheet contains only the provisions under Sections 279, 337 and 338 of IPC, but the learned counsel for the appellant produced certified copy of the charge sheet papers, i.e,. Ex.P6 marked before the Tribunal, which clearly indicates that, the police have not only charge sheeted the accused, i.e., the driver of the offending vehicle for the offence punishable under Sections 279, 337 and 338 of IPC, but also under Sections 3 and 181 Motor Vehicles Act. The charge sheet allegations, if they are seen, there is clear :8: allegation that, the driver of the said offending vehicle was not only negligent in driving the Tum Tum vehicle, he was also rash because he was not having any driving licence as on that particular date. Therefore, the police have invoked Sections 3 and 181 of Motor Vehicle Act.
5. Section 181 of Motor Vehicles Act deals with, driving of the vehicles in contravention of Sections 3 or 4. Whoever drives a motor vehicle in contravention of Section 3 or Section 4 shall be punishable with imprisonment for a term which may extend to three months. Therefore, without a valid licence as per Sections 3 or 4, if a person drives, then virtually, it amounts to violation of the terms and conditions of the policy and the Court cannot fasten the liability on the insurance company. In this particular case, the Tribunal without looking into the documents, i.e., charge sheet papers Ex.P6 meticulously, has still fastened :9: the liability on the insurance company. When some semblance of material is placed before this Court by way of charge sheet produced by the claimants themselves, which clearly discloses that the driver of the Tum Tum vehicle was driving the vehicle without any licence, the onus should have been shifted on to the claimants to show that the driver of the said vehicle was holding valid licence as on that date. Under the above said circumstances, though the insurance company has proved issue No.5, but the Tribunal has wrongly recorded its finding that the insurance company has not proved the same. Therefore, the finding on issue No.5 deserves to be set aside answering that the insurance company has proved issue No.5.
6. Therefore, in my opinion, the Tribunal ought to have fastened the liability on respondent No.1, in view of the above said facts and legal : 10 : aspects involved. Hence, I proceed to pass the following:
ORDER The appeals are allowed. Consequently, the claim petitions in MVC Nos.53 to 55 of 2011 are dismissed so far as respondent No.2-insurance company is concerned and the said award passed by the Tribunal holds good so far as respondent No.1 before the Tribunal, who is respondent No.2 before this Court is concerned.
If any amount is deposited before this Court by the insurance company, the same is ordered to be refunded to the insurance company, i.e., the appellant.
SD/-
JUDGE MBS / -