M/S Shriram General Insurance Co. Ltd., vs Mailappa S/O Mahantappa Hadpad on 31 May, 2016

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Karnataka High Court

M/S Shriram General Insurance Co. Ltd., vs Mailappa S/O Mahantappa Hadpad on 31 May, 2016

Bench: L.Narayana Swamy

                               1




          IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

        DATED THIS THE 31ST DAY OF MAY 2016

                          BEFORE

     THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY

                 MFA NO. 32500/2012 (MV)
BETWEEN:

M/s. Shriram General Insurance Co. Ltd.,
through its General Manager
10003-E-8, RIICO, Industrial area,
Sitapur, Jaipur (Rajasthan)
Now through its authorized
Representative Mr. Gourav Kohali
R/o Jaipur - 302 022
                                                 ... Appellant

(By Smt. Bhadrashetty Sangeeta C., Advocate)

AND:

1.     Mailappa
       S/o Mahantappa Hadpad,
       Age: 36 years, Occ: Agriculture,
       R/o Village Doranhalli,
       Tq: Shahapur, Dt: Yadgir

2.     Munir Basha Shaik
       S/o Amanulla Age: 43 years,
       Occ: Owner of lorry
       Bearing Reg. No. AP-27/T-7898,
       R/o D.No. 3-54, Cinema Hall Road,
       Inkollu (Ongal) Prakasam, Dist: A.P.
                                              ... Respondents
(By Sri Ganesh Naik, Advocate for R1)
                              2




      This miscellaneous first appeal is filed under Section
173(1) of MV Act, against the judgment and award dated
29.08.2012 passed in MVC No. 115/2011 on the file of the
Sr. Civil Judge & Addl. M.A.C.T. at Shorapur sitting at
Shahapur, partly allowing the claim petition and awarding
compensation of Rs.2,50,000/- with interest at 9% P.A.

       This appeal coming on for orders this day, the Court
delivered the following:

                         JUDGMENT

This appeal is filed by the Insurance Company against the judgment passed by the Motor Accident Claims Tribunal, Shorapur sitting at Shahapur in MVC No.115/2011.

2. In the accident dated 04.03.2011, at about 8.30 p.m., the claimant was proceeding in the Autorickshaw bearing registration No.KA-33/5079 on Shahapur-Yadgiri road and at that time, the lorry bearing registration No.AP-27/T-7898 came from the opposite direction, in a high speed and dashed to the Autorickshaw in which the claimant was travelling. As a result, the claimant has sustained grievous injuries. Hence, the claimant has preferred a claim petition 3 before the Tribunal and the Tribunal after considering the case has awarded the compensation of Rs.2,50,000/-. Against the said judgment, the present appeal has been filed by the appellant - Insurance Company.

3. The learned counsel for the appellant - Insurance Company submits that the negligence is on the part of the driver of the lorry and there is specific defence was taken before the Tribunal that the driver of the lorry was not holding effective driving licence to drive the vehicle as on the date of the accident. Similar ground has been taken in this appeal also in respect of the negligence on the part of the driver of the lorry. The learned counsel submits that though the appellant - Insurance Company has taken specific defence and in the evidence of RW.1, there is specific deposition about not possessing valid driving licence and also negligence on the part of the driver of the lorry and the Tribunal 4 has failed to consider the same. Hence, the learned counsel submits that the appeal is to be allowed and liability has to be fastened on the owner of the offending vehicle.

4. In order to consider the case, I have examined the ground taken by the appellant - Insurance Company. The Tribunal at paragraph No.19 of the judgment has specifically held about the negligence and possessing of valid driving licence. The Tribunal also held that though RW.1 has been examined, he had not deposed about this aspect. It is further observed that respondent - Insurance Company has failed to prove that the owner of the lorry has violated the policy conditions. Though RW.1 has been examined, his evidence is of no assistance. He is not an eyewitness to the incident and he cannot speak anything about the negligence. If notice issued to respondent No.2 - owner has been returned, it is 5 necessary to make suitable application to secure his presence for the purpose of adducing evidence on his behalf. The Tribunal has relied upon the decisions of this Court in the case of National Insurance Company vs. Gadigewwa reported in ILR 2004 KAR 1424 and in the case of Reliance General Insurance Company Ltd., vs. Narayanappa and Others reported in 2011(1) AIR KAR R 834 where it is held that the respondent - Insurance Company has failed to prove that the owner of the lorry has violated the policy conditions. Under these circumstances, it is not a fit case to issue notice to respondent No.2.

Accordingly, the appeal is dismissed.

Sd/-

JUDGE Srt

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