Karnataka High Court
Diviaional Manager United India ... vs Davalsab S/O Rabbansab Halageri on 14 March, 2012
Author: L.Narayana Swamy
Bench: L.Narayana Swamy
mfa 10860.07
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 14TH DAY OF MARCH, 2012
BEFORE
Y
THE HON'BLE MR. JUSTICE L NARAYANA SWAM
M.F.A NO.10860/2007 (MV)
BETWEEN:
Divisional Manager
United India Insurance Company Ltd.
LEA Complex, Dharwad
Now represented by its
Divisional Manager
United India Insurance Co. LTd.,
Divisional Office, #2 Enkay Complex
Keshwapur, Hubli 580 023
APPELLANT
(By Sri. B. C. Seetharama Rao Associates &
Sri. A. M. Venkatesh, Advs.)
AND:
1. Davalsab
S/o.Rabbansab Halageri
Now aged about 32 years
0cc: Business, R/o. Byadgi
2. Husensab
S/o. Noorsab Ukkund
Age: Major, R/o. Byadgi
RESPONDENTS
(By Sri. M. H. Patil & G. S. Hulmani, Adv. for Ri)
c
mfa 10860.07
MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 01.02.2007 PASSED IN MVC
NO.194/2001 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) &
ADDL. MACT, RANEBENNUR, AWARDING A COMPENSATION
OF RS.40,450/- WITH INTEREST 6% P.A. FROM THE DATE
OF PETITION TILL REALISATION.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
THE COURT DELiVERED THE FOLLOWING:
JUDGMENT
For the reasons stated in the affidavit, I.A.1/2007 is allowed. Delay of 70 days in filing the appeal is condoned.
Appeal is by the Insurance Company challenging the judgment and award dated 0 1.02.2007 passed by the Civil Judge (Sr.Dn.) & Addi. MACT, Ranebennur in MVC No.194/2001, on the ground of fastening the liability on the Insurance Company.
•2. Heard the learned Counsel for both the parties.
3. It is the case of the appellant that the claimants were travelling in a motor cycle, where there were two pillion riders. As per Section 128 of the Motor Vehicles Act, riding of the mfa 10860.07 2 vehicle with two pillion riders is illegal and in contravention of the said provision and also the policy of the Insurance Company. It is submitted that, when the action of the claimants itself is in contravention of the provisions of the policy, the Tribunal should have fastened the negligence on the claimants, which is not done by the Tribunal, though it has examined the said provisions.
4. On the other hand, the learned Counsel for the claimants submitted that the negligence, as it is alleged by the appellant/Insurance Company has not been established by examining any witnesses. Hence, it is submitted to dismiss the appeal.
5. Having thus heard both sides, it is not disputed that the claimants were travelling in a motorcycle with two pillion riders. The said action on the part of the claimants itself is in violation of Section 128 of the Motor Vehicles Act, which prescribes that no driver of a two wheeler motor cycle shall carry more than one person in addition to himself on the motor mfa 10860.07 4 cycle. The insurance policy also prescribes that the risk is covered only in respect of one pillion rider, but not the second pillion rider. Further, when the negligence is alleged, which is the disputed fact, it should have been proved before the Tribunal. But the appellant has not proved the same before the Tribunal, Notwithstanding the same, since the claimants have not disputed the fact of triple riding, to that extent, they should be held liable.
6. Under the circumstances, the liability of negligence is also fastened on the claimants to the extent of 50%. Out of the total compensation awarded, 50% is to be satisfied by the appellant! Insurance Company.
With these observations, the appeal stands disposed of. The amount in deposit to be transmitted to the Tribunal and excess, if any to be refunded to the appellant.
Sd/ JUDGE gab / -