Partly allowed

The Manager National Insurance Co. Ltd., v. Prakash Channabasappa Angadi

Karnataka HC16 Aug 2023MFA/20844/2012

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the insurance company's appeal, setting aside the claim petition filed by a rider for lack of maintainability under Section 163-A. In a related appeal, the court modified the lower award, directing the insurer to pay compensation immediately subject to recovery from the owner-driver who failed to produce a license.

What did the court decide?

MFA No. 25266/2012 allowed; MFA No. 20844/2012 allowed in part with order to pay and recover; MFA No. 24041/2012 dismissed.

The Manager National Insurance Co. Ltd., Vs Prakash… — Insurance | Karnataka HC (2023)

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NC: 2023:KHC-D:8972 MFA No. 25266 of 2012 C/W MFA No. 20844 of 2012, MFA No. 24041 of 2012

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 16^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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MISCELLANEOUS FIRST APPEAL NO.25266/2012(MV-I) C/W MISCELLANEOUS FIRST APPEAL NO.20844/2012 MISCELLANEOUS FIRST APPEAL NO.24041/2012

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IN MFA.NO.25266/2012:

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BETWEEN:

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THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LTD., RAMDEV GALLI, BELGAUM, REPTD.BY REGIONAL OFFICE.

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…APPELLANT

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(BY SRI S. S. JOSHI, ADVOCATE)

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AND:

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Digitally signed by SUJATA SUBHASH PAMMAR

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PRAKASH S/O. CHANNABASAPPA ANGADI, AGE: MAJOR, OCC: DRIVER, R/O: SANGUR, TQ: DIST: HAVERI.

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VEERESH @ VEERANNA S/O. PRAKASH ANGADI, AGE: 26, OCC: PRIVATE WORK R/O:ALADAKATTI, TQ: DIST: HAVERI.

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…RESPONDENTS

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(BY SRI M.H. PATIL, ADVOCATE FOR R2; R1 IS SERVED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLE ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 22.05.2012 PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE, AND AMACT HAVERI IN MVC 261/2011

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NC: 2023:KHC-D:8972 MFA No. 25266 of 2012 C/W MFA No. 20844 of 2012, MFA No. 24041 of 2012

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AND CALL FOR THE TRIBUNAL RECORDS AND HEAR THE PARTIES IN THE INTEREST OF JUSTICE AND EQUITY.

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IN MFA.NO.20844/2012:

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BETWEEN:

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THE MANAGER, NATIONAL INSURANCE CO. LTD., P.B. ROAD HAVERI, REPT BY ADM OFFICER, REGIONAL OFFICE, 1^ST FLOOR, SUJATA COMPLEX, HUBLI.

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…APPELLANT

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(BY SRI S. S. JOSHI, ADVOCATE)

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AND:

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SHRI PRAKASH S/O. CHANNABASAPPA ANGADI, AGE: MAJOR, OCC:OWNER OF THE VEHICLE BEARING NO.KA-47/E-1419,, R/O: SANGOOR, TQ AND DIST: HAVERI.

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SMT. SHABANABANU W/O. MEHABOOB ALI PEERKHANANAVAR, AGE: 26 YEARS, OCC: HOUSEHOLD WORK, R/O: HOSALLI, TQ AND DIST: HAVERI.

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DAVALMALLIK S/O. MEHABOOB ALI PEERKHANANAVAR, AGE:4 YEARS, MINOR REPTD BY M/G MOTHER, RESPONDENT NO.2, R/O: HOSALLI, TQ AND DIST: HAVERI.

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SHAHAJABI W/O. BUDDUSAB PEERKHANANAVAR, AGE: 46 YEARS, OCC: HOUSEHOLD WORK, R/O: HOSALLI, TQ AND DIST: HAVERI.

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…RESPONDENTS

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(BY SRI M.H. PATIL, ADVOCATE FOR R1; SRI S.A.HUDDAR, ADVOCATE FOR R2 TO R4)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLE ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT

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NC: 2023:KHC-D:8972 MFA No. 25266 of 2012 C/W MFA No. 20844 of 2012, MFA No. 24041 of 2012

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AND AWARD DATED 24.09.2011 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT AND MACT, HAVERI IN MVC 18/2011 (OLD MVC 150/2010) AND TO CALL FOR THE TRIBUNAL RECORDS AND HEAR THE PARTIES IN THE INTEREST OF JUSTICE AND EQUITY.

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IN MFA.NO.24041/2012:

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BETWEEN:

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VEERESH AT VEERANNA S/O. PRAKASH ANGADI, AGE: 25 YEARS, OCC: PRIVATE WORK, R/O: ALADAKATTI, TQ AND DIST: HAVERI.

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…APPELLANT

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(BY SRI M.H.PATIL, ADVOCATE)

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AND:

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PRAKASH S/O. CHANNABASAPPA ANGADI, AGE: MAJOR, OCC: DRIVER, R/O: SANGUR, TQ: DIST: HAVERI.

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THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO LTD., P.B.ROAD, HAVERI.

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…RESPONDENTS

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(BY SRI S.S.JOSHI, ADVOCATE FOR R2; SRI V.S.GADDAD, ADVOCATE FOR R1)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLE ACT, 1988, PRAYING TO CALL FOR RECORDS FROM THE ADDITIONAL SENIOR CIVIL JUDGE AND AMACT, HAVERI IN MVC NO.261/2011 DATED 22^ND MAY 2012. MODIFY HE JUDGMENT AND AWARD PASSED BY THE LEARNED JUDGE AND ENHANCE THE COMPENSATION AS PRAYED FOR BY ALLOWING THIS APPEAL.

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THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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NC: 2023:KHC-D:8972 MFA No. 25266 of 2012 C/W MFA No. 20844 of 2012, MFA No. 24041 of 2012

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JUDGMENT

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MFA No.25266/2012 is filed by the insurance company challenging the judgment and award passed in MVC No.261/2011 dated 22.05.2012 passed by Addl. Senior Civil Judge and AMACT., Haveri.

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MFA No.20844/2012 is filed by the insurance company challenging the judgment and award passed in MVC No.18/2011 dated 24.09.2011, by Fast Track Court and MACT., Haveri.

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MFA No.24041/2012 is filed by the claimant challenging the judgment and award passed in MVC No.261/2011 by the Addl. Senior Civil Judge and AMACT, Haveri for enhancement of compensation.

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In both the claim petitions, it is stated that on 30.06.2009 at 8.15 p.m. on Haveri-Hangal road near fire station at Haveri, claimant Veeresh in MVC No.261/2011 along with one Basavaraju was riding the motor cycle bearing No.KA-47/E-1419 and at that time another motorcycle bearing No.KA-30/E-2701 coming from

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5 - NC: 2023:KHC-D:8972 MFA No. 25266 of 2012 C/W MFA No. 20844 of 2012, MFA No. 24041 of 2012

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opposite direction and both the vehicles have been dashed each other resulting into the injuries to the rider Veeresh of motorcycle bearing No.KA-47/E-1419 had sustained injuries and the deceased Mehaboob Ali rider of vehicle bearing No.KA-30/E-2701 died in the accident.

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The rider of the motorcycle bearing No.KA-47/E-1419 Veeresh, has filed claim petition under Section 163-A of the Motor Vehicle Act,1988 for seeking compensation. The legal heirs of Mehaboob Ali have filed claim petition under Section 166 of MV Act contending that Veeresh who is rider of the motorcycle No.KA-47/E-1419 was rash and negligent and caused accident, resulting to the death of Mehaboob Ali.

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The learned counsel for the insurance company submitted that the claim petition filed in MVC No.261/2011 by Veeresh under Section 163-A of MV Act is not maintainable for the reason that the said rider entered into the shoes of the owner of the motorcycle. Therefore, the claim petition filed under Section 163-A is not

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NC: 2023:KHC-D:8972 MFA No. 25266 of 2012 C/W MFA No. 20844 of 2012, MFA No. 24041 of 2012

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maintainable and he places reliance on the Judgment of Hon’ble Supreme Court in the case of Ramkhiladi and

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another Vs. United India Insurance Company and

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another1.

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Further, it is submitted that in the claim petition in MVC No.18/2011, the rider of the offending motorcycle namely Veeresh was not holding driving license and the owner of the motorcycle has not produced the driving license inspite of notice issued to him. Therefore, the insurance company is not liable to indemnify the owner of the motorcycle bearing No.KA-47/E-1419.

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MFA No.24041/2012 and MFA No.25266/2012(MVC No.261/2011).

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In the present cases, the claimant was riding the motor cycle bearing No.KA-47/E-1419 dashed the motorcycle bearing No.KA-30/E-2701. The claimant filed petition under Section 163-A of MV Act, 1988. The

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1 AIR 2020 SC 527

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7 - NC: 2023:KHC-D:8972 MFA No. 25266 of 2012 C/W MFA No. 20844 of 2012, MFA No. 24041 of 2012

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respondent No.1-Prakash is the owner of the motorcycle bearing No.KA-47/E-1419. The claimant Veeresh entered into the shoes of the owner of the said motorcycle and filed claim petition. Therefore, the issue involved is no more res-integra in view of the judgment of Hon’ble Supreme Court in the case of Ramkhiladi(supra) . Therefore, the claimant Veeresh cannot maintain claim petition under Section 163-A of Motor Vehicle Act, 1988, as he has entered shoes of the owner of the motorcycle. Therefore, the Tribunal has erred in entertaining the claim petition and awarding the compensation. Therefore, the judgment and award passed by the Tribunal is liable to be set aside. Therefore, the appeal filed by the insurance company is allowed. Consequently, when the judgment and award passed in MVC No.261/2011 filed by riderVeeresh is liable to be set aside, hence, there is no question of enhancement of compensation. Resultantly appeal in MVC No.24041/2012 filed for enhancement of compensation is dismissed.

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8 - NC: 2023:KHC-D:8972 MFA No. 25266 of 2012 C/W MFA No. 20844 of 2012, MFA No. 24041 of 2012

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MFA No.20844/2012 (MV No.18/2011(Old MVC No.150/2015))

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In the present case, it is submitted by the learned counsel for the insurance company that the driver of the motorcycle bearing No.KA-47/E-1419 was not holding driving license to drive the motorcycle. Hence, the insurance company is not liable to indemnify the owner and to pay compensation. Therefore, prays for absolving the liability to pay the compensation.

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In this case, the owner of the motorcycle bearing No.KA-47/E-1419 has entered into appearance but has not produced driving license. The Insurance Company has issued notice to the owner of the said motorcycle for production of driving license and other particulars and records. But, the owner has not produced driving license. Exs.R2 and R3 are the registered notice issued by the insurance company and the acknowledgment which proves that the owner has received the notice issued by the insurance company. But, the owner even after receipt of

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9 - NC: 2023:KHC-D:8972 MFA No. 25266 of 2012 C/W MFA No. 20844 of 2012, MFA No. 24041 of 2012

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the notice has not produced driving license either to the insurance company or to the tribunal. Even, the owner of the motorcycle bearing No.KA-47/E-1419 is having an opportunity to produce driving license before this Court in this appeal, by way of an additional evidence to produce driving license but that is not produced. Therefore, there is evidence that the claimant Veeresh was not having driving license to drive the motorcycle. Hence, there is a breach of conditions of insurance policy. Therefore, the insurance company is liable to be absolved from indemnifying the owner of the motorcycle.

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However, as per Sub-section (2) of Section 149 of Motor Vehicle Act, when the Insurance Company established the fact that driver was not holding driving license, then as per Sub-sections (1), (5), (7) of Section 149 of Motor Vehicle Act, the Insurance Company as if the judgment debtor shall satisfy the claim in respect of third parties and then recover the same from owner of the offending vehicle. Accordingly, order of pay and recovery

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NC: 2023:KHC-D:8972 MFA No. 25266 of 2012 C/W MFA No. 20844 of 2012, MFA No. 24041 of 2012

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is made as per the principle of law laid down by the Hon’ble Supreme Court in the cases of Pappu and others

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vs. Vinod Kumar Lamba and another² and also as per

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the full bench decision of this Court in the case of New

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India Assurance Co. Ltd., Bijapur vs. Yallavva w/o.

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Yamanappa Dharanakeri³

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Thus, an order of pay and recovery is made. To this extent, the judgment and award passed by the Tribunal is modified.

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In the result, I proceed to pass the following:

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ORDER

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i) MFA No.25266/2012 filed by the

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insurance company is allowed.

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2 (2018) 3 SCC 208

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3 2020 (2) AKR 484.

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NC: 2023:KHC-D:8972 MFA No. 25266 of 2012 C/W MFA No. 20844 of 2012, MFA No. 24041 of 2012

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ii) The Judgment and award dated 22.05.2012 passed by the Addl. Senior Civil Judge and AMACT, Haveri in MVC No.261/2011 is set aside.

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iii) Appeal in MFA No.20844/2012 filed by the insurance company is allowed in part.

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iv) The judgment and award dated 24.09.2011 passed by the Fast Track Court and MACT, Haveri in MVC No.18/2011 is hereby modified holding that the insurance company is not liable to indemnify the owner of the motorcycle bearing No.KA-47/E-1419, however, the insurance company shall pay the compensation at first instance and recover the same from the owner of motorcycle bearing No.KA-47/E1419.

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