Partly allowed

B Maruthi S/O B. Kotrappa v. Shekaraja S/O Chowdappa

Karnataka HC16 Oct 2019MFA/25775/2011

Case brief

AI extract

What is this about?

Appeals were filed by an insurance company challenging liability and by a claimant seeking enhanced compensation. The court held that unauthorized passengers in a goods vehicle have no claim against the insurer, fastening liability on the vehicle owner instead, and dismissed the claim for enhancement.

What did the court decide?

Appeals by Insurance Company allowed in part; liability fastened on vehicle owner; compensation repayment directed from owner through insurer; claimant's appeal for enhancement dismissed.

B Maruthi S/O B. Kotrappa Vs Shekaraja… — Contract and Commercial Disputes | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 16^TH DAY OF OCTOBER, 2019

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BEFORE

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THE HON’BLE MR. JUSTICE H.T.NARENDRA PRASAD

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MFA No.25775/2011 (MV) C/w. MFA No.20066/2012 & MFA No.20067/2012

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In MFA No.25775/2011:

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Between:

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B.Maruthi S/o.B.Kotrappa, Age 27 years, Carpenter, R/o.: Shivapura Village, Kudligi Taluk, Bellary District.

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… Appellant

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(By Shri Y.Lakshmikant Reddy, Advocate)

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And:

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Shekaraja S/o.Chowdappa,

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Age major, Owner of the vehicle Bearing Reg. No.TP No.KA-34/TR-2994, R/o.: Kaivalyapura Village,

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Kudligi Taluk, Dist.: Bellary.

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The Manager, Reliance General Insurance Co. Ltd., Anil Dhirubai Ambani Group,

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Bellary Branch, Bellary.

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… Respondents

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(By Shri Nagaraj Kolloori, Advocate for R2; Respondent No.1 – served)

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This MFA is filed under Section 173(1) of M.V. Act against the judgment and award dated 28.09.2011 passed in MVC No.174/2009 on the file of the Senior Civil Judge cum Member MACT-VI, Kudligi, partly allowing the claim petition for compensation and seeking enhancement of compensation.

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In MFA No.20066/2012:

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Between:

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Reliance Gen. Ins. Co. Ltd., Bellary, Rep. by its Deputy Manger, Legal Claims, CTS 472-474, V A Kalaburgi Square, Desai Circle, Deshpande nagar, Hubli.

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… Appellant

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(By Shri Nagaraj C.Kolloori, Advocate)

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And:

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B.Maruthi W/o. B.Kotrappa Age 27 years, Occ: Carpenter, R/o.: Shivapura Village, Tq.: Kudligi, Dist.: Bellary.

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Shri Anand S/o.Mallappa Age 26 years, Occ: Driver of tractor, R/o.: Shivapur Village, Tq.: Kudligi, Dist.: Bellary.

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Shri Shekaraja S/o.Choudappa, Age major, Occ: Owner of vehicle, R/o.: Kaivalyapura Village, Tq.: Kudligi, Dist.: Bellary.

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… Respondents

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(respondent Nos.1 to 3 are served)

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This MFA is filed under Section 173(1) of M.V. Act, against the judgment and award dated 28.09.2011, passed in MVC No.174/2009 on the file of the Senior Civil Judge cum Member MACT No.VI, at Kudligi, awarding the

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compensation of Rs.31,000/- with interest at the rate of 8% p.a. from the date of petition till deposit in the tribunal.

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In MFA No.20067/2012:

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Between:

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Reliance Gen. Ins. Co. Ltd., Bellary, Rep. by its Deputy Manger, Legal Claims, CTS 472-474, V A Kalaburgi Square, Desai Circle, Deshpande nagar, Hubli.

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… Appellant

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(By Shri Nagaraj C.Kolloori, Advocate)

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And:

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Smt.Rduramma W/o.B. Kotrappa, Age 47 years, Occ: Agriculture, R/o.: Shivapura Village, Tq.: Kudligi, Dist.: Bellary.

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Shri Anand S/o.Mallappa Age 25 years, Occ: Driver, R/o.: Shivapur Village, Tq.: Kudligi, Dist.: Bellary.

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Shri Shekaraja S/o.Choudappa, Age major, Occ: Owner of vehicle, R/o.: Kaivalyapura Village, Tq.: Kudligi, Dist.: Bellary.

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… Respondents

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(Respondent Nos.1 to 3 are served)

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This MFA is filed under Section 173(1) of M.V. Act, against the judgment and award dated 28.09.2011, passed in MVC No.173/2009 on the file of the Senior Civil Judge cum Member MACT No.VI, at Kudligi, awarding the compensation of Rs.4,000/- with interest at the rate of 8% p.a. from the date of petition till deposit in the tribunal.

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These appeals coming on for admission, this day, the Court delivered the following:

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JUDGMENT

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These appeals are filed by the claimant in MVC

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No.174/2009 and the Insurance Company challenging the judgment and award dated 28.09.2011, passed by the Senior Civil Judge cum member VI-MACT at Kudligi (for short “the tribunal”) in MVC Nos. 173/2009 and 174/2009, whereby the tribunal has awarded the compensation of Rs.4,000/- and Rs.31,000/- respectively with interest at the rate of 8% p.a. from the date of petition till deposit and fastened the liability on the Insurance Company.

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2. For the purpose of convenience, the parties

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would be referred to as per their ranking before the tribunal.

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Brief facts of the case are that on 25.06.2008,

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the petitioner and her son B.Maruthi has taken the vehicle of respondent No.2 by loading the fertilizer to go to Shivapur from Kudligi. The petitioner went to

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Shivapura at about 5:30 p.m. at Hanasi cross in N.H.13 road, the respondent No.1 drove his vehicle in a rash and negligent manner and caused to fell down the vehicle in a ditch. Due to which, the petitioner and her son sustained grievous injuries. The petitioners were taken first aid treatment at Kudligi Government Hospital and thereafter they were shifted to Davanager Chigateri Hospital for taking further treatment. After recovering from the injuries, they have filed claim petitions in MVC Nos.173/2009 and 174/2009 before the tribunal.

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In order to establish their case they have examined three witnesses and marked 12 documents. On the other hand, the Insurance Company examined one witness and also marked two documents. On appreciation of the oral and documentary evidence, the tribunal has granted compensation of Rs.4,000/- and 31,000/- to the petitioners in MVC Nos.173/2009 and 174/2009 respectively and fastened the liability on the Insurance Company. Being aggrieved by the same, the Insurance

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Company has filed appeals in MFA Nos.20066/2012 and 20067/2012 and also the claimant in MVC No.174/2009 has filed an appeal in MFA No.25775/2011 seeking enhancement of compensation.

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Learned counsel for the appellant-insurance Company contended that the Insurance Company has taken specific contention that the claimants were traveling in goods vehicle as unauthorized passengers. Their plea has been supported by RW2, who clearly admits that the claimants were unauthorized passengers and also not having any goods in the vehicle. It is further contended that the driver of the offending vehicle is only having LMV licence, but as on the date of accident he was driving transport vehicle, hence, he has violated the policy conditions. The tribunal without considering this aspect of the matter has wrongly fastened the liability on the Insurance Company. Hence, he sought for allowing the appeals filed by the Insurance Company.

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Per contra, the learned counsel for the claimant in MFA No.25775/2011 relating to MVC No.174/2009 contended that even though as on the date of accident, the driver of the offending vehicle was not having driving licence to drive the transport vehicle as per the judgment of the Hon’ble Supreme Court in the case of Mukund Dewangan Vs. Oriental Insurance Company Limited reported in AIR 2017 SC 3668, the driver having LMV licence can also drive transport vehicle. Further it is the specific case of the claimants that they are traveling in the offending vehicle with the goods and they are not unauthorized passengers and due to the accident, the claimants have suffered severe injuries, for which they have admitted to the hospital for 15 days, but the tribunal has awarded only compensation of Rs.31,000/- to the claimant in MVC No.174/2009, which is on the lower side. Hence, he sought for dismissal of the appeals filed by the appellant-Insurance Company and also sought for enhancement of compensation in the appeal filed by the claimant.

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Heard the learned counsel for the parties and perused the records.

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It is not in dispute that the claimants were traveling in the goods vehicle bearing registration No.KA-4/TR-994 on 25.06.2008, due to the accident they

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have suffered injuries. As on the date of accident, the driver of the offending vehicle was having valid and effective driving licence to drive the non-transport vehicle. The Hon’ble Supreme Court in the case of Mukund Dewangan (Supra) it is specifically held that the driver holding LMV lincence can drive all vehicles of class including transport vehicles and no separate endorsement is required to drive such transport vehicles. In view of the above, the contention of the learned counsel for the appellant-Insurance Company is unsustainable. Further, the contention taken by the learned counsel for the Insurance Company that the petitioners are unauthorized passengers and was not having any goods, their contention has been supported

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by the evidence of RW2, who clearly admits that the petitioners were unauthorized passengers and was not having any goods. Further, the claimants have not produced any documents to prove that they are owners of the goods. Therefore, the tribunal is not justified in fastening the liability on the Insurance Company. The materials available on record show that the petitioners are unauthorized passengers and was not having goods in the offending vehicle.

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In view of the above, the appeals filed by the Insurance Company in MFA Nos.20066/2012 and 20067/2012 are hereby allowed in part and the liability is fastened on the owner of the vehicle with a direction to the appellant-Insurance Company to pay the compensation awarded by the Tribunal to the claimants with liberty to recover the same from the owner of the vehicle.

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In respect of the contention taken by the learned counsel for the claimant seeking enhancement of

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10 -

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compensation is concerned, due to the accident the claimants have suffered injuries, which are minor in nature. The tribunal after considering the wound certificate at Ex.P5 and copy of the disability certificates at Exs.P10 to P12 has rightly awarded compensation to the claimants. There is no error in the compensation awarded by the tribunal to the claimants. Hence, the appeal filed by the claimant in MFA No.25775/2011 is hereby dismissed.

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The Insurance Company is directed to deposit the entire compensation amount with interest before the tribunal within a period of four weeks from the date of receipt of a copy of this order.

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The amount in deposit, if any, before this Court be transmitted to the tribunal for disbursement to claimant

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forthwith.

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SD/JUDGE

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Vnp*

B Maruthi S/O B. Kotrappa v. Shekaraja S/O Chowdappa

Case brief

What is this about?

What did the court decide?

B Maruthi S/O B. Kotrappa v. Shekaraja S/O Chowdappa

Case brief

What is this about?

What did the court decide?

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