Karnataka High Court
Sri Sai Motors vs Sri. Nayna Murthy @ Gnanamurty on 24 September, 2018
Author: Krishna S Dixit
Bench: Krishna S Dixit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S DIXIT
MFA No.4609 OF 2017 (MV)
BETWEEN:
Sri Sai Motors,
Rep. by its Manager,
Tekal Cross,
Jayanagar,
N.H-4, Bypass Road,
Kolar City-563 101. ...
Appellant
(By Sri S.Visweswaraiah, Advocate)
AND:
1. Sri Nayna Murthy @ Gnanamurty,
@ Nanamurthy @ Jnanamurthy,
S/o.late. Nanjappa,
Aged about 50 years.
2. Smt Nyanamma,
W/o. Naynamurthy,
Aged about 50 years.
No.1 & 2 are residing at
No.50, Urata Agrahara Village,
S.K. Halli Post, Vengal Hobli,
Kolar Taluk & District-563 101.
3. National Insurance Company Ltd.,
Rep. by its Branch Manager,
Doom Light Circle,
-2-
Near Canara Bank,
Kolar-563 101.
4. Sri. Manjunath.S,
S/o. Sriramappa,
Aged Major,
R/at. Pathakote, Peddur,
Dugavakote Village,
Chitamani Taluk,
Chickballapur District-563135.
5. Adithya Motors,
Rep. by its Manager,
Madanapalli Road,
Srinivaspur,
Kolar District-563135. ...
Respondents
(By Sri S.S.Haveri, Advocate for R1 & R2
Sri. K.Sridhara, Advocate for R3
R4 and R5 Served)
This MFA is filed u/S 173(1) of MV Act against the
judgment and award dated: 03.01.2017 passed in MVC
No.74/2013 on the file of the MACT and I Additional
Senior Civil Judge and ACJM, Kolar awarding
compensation of Rs.10,94,869/- with interest at 6%
p.a. from the date of petition till realization and etc.,
This MFA coming on for Orders, this day, the
Court delivered the following:-
JUDGMENT
This appeal lays a challenge to the judgment and award dated 03.01.2017 made by the MACT, Kolar allowing MVC.No.74/2013 whereby a compensation of Rs.10,94,869/- with interest at the rate of 6% p.a., -3- subject to a usual condition of bank deposit, has been awarded.
2. The Brief facts stated are: the appellant is authorized dealer of the kind of offending vehicle. Respondent No.5 happens to be the authorized agent of the appellant. The accident involving the vehicle in question happened on 30.10.2012 at around 5.30 p.m. because of rash and negligent driving of respondent No.4. One Mr.Shivakumar who had sustained fatal injuries in the said accident, succumbed to the same; the legal representatives of the deceased filed a claim petition in MVC.No.74/2013, which was resisted by appellant and other opposing parties by filing written statement.
3. To prove the claim, the respondents- claimants had examined Nyana Murthy - the father of the deceased PW.1. In his evidence twelve documents came to be marked which comprised of the police papers, IMV report, Post Mortem report, Voter ID card, Ration Card, etc. From the side of the owner of the -4- offending vehicle, the appellant is examined as RW.1 and from the side of the insurer Mr. M. Sampath was examined as RW.2. In their evidence four documents have been marked as per Exhibits R1 to R4 which inter- alia comprised of insurance policy and delivery challan.
4. The MACT after adverting to the pleadings of the parties and after appreciating the evidentiary material on record has entered the impugned judgment and award.
5. Learned counsel for the appellant- authorized dealer of the vehicle in question, finds fault with the impugned judgment and award because as on the date of accident the appellant had already delivered the vehicle to the agent; in turn they delivered the same vehicle to respondent No.4 herein and therefore, the MACT ought not to have levied liability on the appellant at all. The learned counsel appearing on the other side opposed the said submission justifying the award.
6. I have heard learned counsel for the appellant and learned counsel appearing for the other side. I have perused the appeal papers. -5-
7. The contention of the appellant that the MACT could not have fastened the award liability on the appellant is liable to be rejected for the following reasons:
(a) the accident happened on 31.10.2012 at about 5.30 p.m., whereas the sale of the vehicle in question although took place on the said date, was subsequent to the accident inasmuch as the invoice itself mentions time 8.28 p.m.
(b) It is a settled position of law of agency that the immediate possession of agent is the mediate possession of principal. Secondly, the agent delivering the vehicle not in the course of sale does not make the appellant, the less owner of the said vehicle since the records disclose the sale transaction having been done almost three hours after the accident.
8. The second contention of the appellant that the liability ought to have been fastened on the respondent-insurer is liable to be rejected in view of the cogent evidentiary material that shows buying of the -6- policy subsequent to accident, although same day. Ordinarily, the contract of insurance is perspective unless the law otherwise provides. No law or ruling is brought to my notice to hold otherwise. Therefore, the liability cannot be fastened on the respondent-insurer as rightly submitted by the panel counsel.
9. The last contention of the appellant that the operative portion of the judgment and award requires to be recast to enable the appellant to seek contribution from the joint tortfeasor has force of law. The standard text books on law of torts such as by Salmond and Winfield state that the liability of joint tortfeasors is always joint and several. One or few of the joint tort feasors discharging the tort liability are entitled to seek contribution from the other.
10. In the above circumstances, though this appeal being devoid of merits, is dismissed, liberty is reserved to the appellant herein to take appropriate proceedings to seek contribution from the respondent No.4-joint tortfeasor, in accordance with law. -7-
11. The amount in deposit shall be transmitted along with LCR to the jurisdictional MACT for being disbursed as compensation to the claimant forthwith.
No costs.
Interim orders if any, stand dissolved.
Sd/-
JUDGE NR/rv