Allowed

Smt.Yallawwa W/O Kariyappa Kondikoppa, v. Imtiyaz Ahmed

Karnataka HC28 Jan 2019MFA/100635/2016

Case brief

AI extract

What is this about?

This appeal challenges the dismissal of a motor accident compensation petition due to alleged failure to serve the vehicle owner. The High Court set aside the dismissal, noting the insurer had participated, and remanded the case to determine compensation quantum in the owner's absence.

What did the court decide?

Impugned judgment set aside to the extent of dismissal on ground of non-service; matter remanded to Tribunal to determine compensation payable by insurer in absence of vehicle owner.

Smt.Yallawwa W/O Kariyappa Kondikoppa, Vs Imtiyaz… — Motor Accident Claims | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 28^th DAY OF JANUARY, 2019

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PRESENT

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THE HON’BLE MRS. JUSTICE B.V. NAGARATHNA

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AND

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THE HON’BLE MR. JUSTICE BELLUNKE A.S.

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M.F.A. No.100635 OF 2016

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BETWEEN:

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SMT.YALLAWWA W/O KARIYAPPA KONDIKOPPA, AGE: 30 YEARS, OCC: HOUSEHOLD, R/O: KURABGERI, HULKOTI, TQ & DIST: GADAG.

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KUMARI NAGAVENI, D/O KARIYAPPA KONDIKOPPA, AGE: 17 YEARS, OCC: STUDENT, R/O: KURABGERI, HULKOTI, TQ & DIST: GADAG

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MANIKANTHA S/O KARIYAPPA KONDIKOPPA, AGE: 14 YEARS, OCC: STUDENT, R/O: KURABGERI, HULKOTI, TQ & DIST: GADAG,

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SOUNDARYA D/O KARIYAPPA KONDIKOPPA, AGE: 11 YEARS, OCC: STUDENT, R/O: KURABGERI, HULKOTI, TQ & DIST: GADAG,

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5. MALLAVVA W/O PANDAPPA KONDIKOPPA,

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AGE: 61 YEARS, OCC: HOUSEHOLD WORK, R/O: KURABGERI, HULKOTI, TQ & DIST: GADAG.

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THE APPELLANT NOS.2 TO 4 BEING MINOR, REP. BY THEIR NATURAL GUARDIAN MOTHER, SMT.YALLAWWA W/O KARIYAPPA KONDIKOPPA, AGE: 30 YEARS, OCC: HOUSEHOLD, R/O: KURABGERI, HULKOTI, TQ & DIST: GADAG. ... APPELLANTS (BY SRI. S M KALWAD, ADVOCATE)

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AND:

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IMTIYAZ AHMED S/O NAZEER AHMED KHAZI, AGE: MAJOR, OCC: BUSINESS, R/O: DASARGALLI, GADAG, TQ & DIST: GADAG.

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SHRIRAM GENERAL INSURANCE COMPANY LTD., E-8 EPIP- RIICO SITAPUR, JAIPUR, RAJASTHAN-302022, INDIA.

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REGIONAL OFFICE, SRIRAM GENERAL INSURANCE COMPANY LTD., NO.302, III FLOOR, S & S CORNER BLDG, PLOT NO. 48, HOSPITAL ROAD, OPP. BOWRING & LADY CURZON HOSPITAL, SHIVAJINAGAR, BENGALURU.

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... RESPONDENTS

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(BY SRI.S K KAYAKAMATH, ADVOCATE FOR R2-R3)

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MFA FILED U/S.173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 27.11.2015 PASSED IN MVC NO.118/2013 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER, MOTOR

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ACCIDENT CLAIMS TRIBUNAL, GADAG, DISMISSING THE CLAIM PETITION FILED U/S.166 OF MV ACT.

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THIS MFA COMING ON FOR ORDERS THIS DAY, NAGARATHNA J., MADE THE FOLLOWING:

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O R D E R

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Though this appeal is listed to take steps to serve respondent No.1 for the third time, with the

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consent of learned counsel for the parties, the appeal is heard finally.

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The appellants herein were the claimants in MVC No.118/2013. Being aggrieved by the dismissal of the claim petition for non-taking of steps to serve respondent No.1-owner of the offending vehicle, this appeal has been filed by the claimants assailing the judgment and award dated 27.11.2015 by the Additional District and Sessions Judge and Motor Accident Claims Tribunal, Gadag (hereinafter referred to as the ‘Tribunal’ for the sake of brevity).

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Briefly stated, the facts are that the appellants/claimants filed a petition seeking compensation on account of death of Kariyappa, son of Pandappa Kondikoppa, in a road traffic accident that occurred on 28.02.2013. The said claim petition was filed under Section 166 of the Motor Vehicles Act, 1988. After service of notice, respondent No.2insurance company appeared and filed its written statement through its advocate. Respondent No.3 was placed ex parte . According to the Tribunal, the claimants did not take effective steps to serve respondent No.1- the owner of the offending vehicle. Therefore, the claim petition against the respondent was dismissed.

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On the basis of the rival pleadings, the trial Court framed the following issues for its consideration:

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Whether, the claimants prove that on 28.02.2013 at 12.30 am the accident took place due to rash and negligent driving of the

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driver of the lorry No.KA-25/B-9525 on GadagKoppal road after 3 kms. of Halligudi village as a result the deceased Kariyappa died on the spot?

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Whether, the claimants further prove the age occupation and income of the deceased?

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Whether, the respondent No.2 proves that, there was no fitness certificate for the above said lorry on the date of incident to play the vehicle on the road?

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Whether, the Respondent No.2 proves that, the respondent No.1 violated the terms and conditions of permit?

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Whether, the claimants are entitled for the compensation? If so, to what extent, from whom?

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What order and Award?

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In order to prove their case, claimant No.1 examined herself as PW1. She produced six documents, which were marked at Ex.P1 to Ex.P6 and respondent examined two witnesses as RW1 and RW2.

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They produced four documents which were marked as Ex.R1 to Ex.R4. On the basis of the evidence on record, the Tribunal answered issue No.1 in the

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affirmative, issue No.2 partly in the affirmative, issue Nos.3 to 5 in the negative and dismissed the claim petition on the ground that the claimants have not taken steps to serve respondent No.1-owner of the vehicle and hence the petition was dismissed against respondent No.1-owner. Consequently, the claim petition was dismissed in its entirety. Being aggrieved, the claimants have preferred this appeal.

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We have heard the learned counsel for the appellants and learned counsel for respondent Nos.2 and 3-insurance companies and perused the material on record.

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Learned counsel for appellants submits that

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despite taking effective steps, the owner of the vehicle could not be served. Even though the claim petition is adjudicated on merits, nevertheless, it has been dismissed on account of non service of notice on respondent No.1-owner of the vehicle. He submits

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that if the matter is remanded and an opportunity is given to the claimants, they would take effective steps for service of notice to the respondent-owner. In the circumstances, he submits that impugned dismissal of claim petition may be set aside and matter may be remanded to the Tribunal for reconsideration.

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Learned counsel for respondent Nos.2 and 3–insurance companies however supported the impugned judgment and submitted that there is no merit in this appeal.

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Having heard the learned counsel for respective parties, the only point that arises for our consideration is, whether, the Tribunal was justified in dismissing the claim petition on the premise that there were no effective steps taken by the claimants to serve the first respondent-owner of the offending vehicle.

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The detailed narration of facts and contentions do not call for reiteration except highlighting the fact that despite there being nonservice of notice to respondent No.1, the fact remains that the insurer of the offending vehicle has appeared and filed its statement of objections. They have cross examined the claimants and let in independent evidence. Having regard to the question as to whether the insurance company was liable to satisfy the award and the same having been gone into by the Tribunal, despite there being non-service of notice on respondent No.1-owner of the vehicle, the answer has been in the affirmative. In such a case, the non service of notice on the owner of the vehicle would become inconsequential. On the other hand, while answering the issues raised, the Tribunal has answered issue Nos. 3, 4 and 5 in the negative and against the insurer, which means it was in favour of

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the claimants. Therefore, there is no violation of terms and conditions of policy. The insurer has admitted the issuance of the policy in respect of the offending vehicle. Therefore, the Tribunal ought to have determined the compensation payable to the claimants instead, the Tribunal dismissed the claim petition on the premise that no effective steps were taken to serve the owner of the vehicle.

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We find that the approach of the Tribunal is not right since there is no determination of compensation on various heads. The matter would have to be remanded for that purpose only. We also clarify that as issue Nos.3 to 5 are answered by the Tribunal in the negative therefore, the insurer is liable to satisfy the award. The insurer has also admitted issuance of policy in respect of the offending vehicle. In the circumstances, the impugned judgment is set aside only to the extent of dismissing the claim

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petition on account of non-service of notice to the owner of the vehicle. The matter is remanded to the Tribunal to determine the compensation payable to the claimants even in the absence of the owner of the vehicle.

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It is further clarified that since there is no appeal filed against the finding of the Tribunal given on issue Nos.1 to 4, the said aspect would not call for reconsideration. Therefore, the matter is remanded for the limited purpose of determining the quantum of compensation that is payable to the claimants by the insurance company, even in the absence of the owner of the offending vehicle. For that purpose, the claimants are entitled to let in additional evidence, if so advised. If any additional evidence is let in, the respondent insurance company is at liberty to cross examine the claimants on the same.

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Since claimants and respondent-insurer are

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represented by the respective counsels, they are directed to appear before the concerned Tribunal on 25.02.2019 without expecting any separate notice from the said tribunal.

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The Tribunal is directed to dispose of the

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appeal in terms of the directions hereinabove and in accordance with law.

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Appeal is allowed and disposed off in the aforesaid terms.

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Parties to bear the respective costs.

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Sd/JUDGE

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Sd/JUDGE

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KGK

Smt.Yallawwa W/O Kariyappa Kondikoppa, v. Imtiyaz Ahmed

Case brief

What is this about?

What did the court decide?

Smt.Yallawwa W/O Kariyappa Kondikoppa, v. Imtiyaz Ahmed

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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