Dismissed

The Manager, v. Gangadhar S/O Guddappa Shettar

Karnataka HC1 Aug 2023MFA/21039/2011

Case brief

AI extract

What is this about?

The High Court dismissed two appeals: a First Appeal by an insurance company challenging an award that held the owner liable due to lack of a driving license, and a Cross Objection by the vehicle owner. The Court upheld the Tribunal's finding that the owner was liable and confirmed the order for pay and recovery.

What did the court decide?

The judgment and award of the Motor Accident Claims Tribunal dated 29.10.2010 is confirmed; the appeals are dismissed.

The Manager, Vs Gangadhar S/O Guddappa Shettar — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC-D:8059 MFA.CROB No. 100023 of 2018 C/W MFA No. 21039 of 2011

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 1^ST DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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MFA CROSS OBJ NO.100023/2018(MV-I) C/W MISCELLANEOUS FIRST APPEAL NO.21039/2011

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IN MFA.CROB.NO.100023/2018:

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BETWEEN:

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SRI DEVARADDY BASAPPA DAMBAL, AGE: 60 YEARS, OCC: NIL, R/O: SREE RAMAKRISHINA COLONY, SHIRUR PARK, VIDYANAGAR, HUBBALLI, DIST: DHARWAD-580021.

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…CROSS OBJECTOR

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(BY SRI HANUMANTHAREDDY SAHUKAR, ADVOCATE)

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AND:

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Digitally signed by BHARATHI H M

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SRI GANGADHAR S/O. GUDDAPPA SHETTAR, AGE: 76 YEARS, OCC: RETIRED TEACHER, R/O: MADIHAL DHARWAD-580004.

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SRI MALLAPPA BASAPPA DAMBAL, AGE: MAJOR, OCC: BUSINESS, R/O: NEELAKANTHA APARTMENT, VISHWESHWARA NAGAR, HUBBALLI, DIST: DHARWAD-580021.

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SRI.Y.M. SARVAD, AGE: MAJOR, OCC: BUSINESS, R/O: MOTTAGUMMAZ, NEAR CIVIL HOSPITAL, VIJAYAPURA-577101.

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NC: 2023:KHC-D:8059 MFA.CROB No. 100023 of 2018 C/W MFA No. 21039 of 2011

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THE MANAGER

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ORIENTAL INSURANCE COMPANY LTD., BIDARI COMPLEX,1ST FLOOR, S.S. FRONT ROAD, VIJAYAPURA-577101.

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…RESPONDENTS

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(BY SRI S. K. KAYAKAMATH, ADVOCATE FOR R4; R2 AND R3 ARE DISPENSED WITH)

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THIS MFA CROB IS FILED UNDER ORDER 41 RULE 22 OF C.P. CODE, 1908 PRAYING TO THE JUDGMENT AND AWARD DATED 29.10.2010 IN MVC NO.578/2006 PASSED BY THE LEARNED 3^RD ADDITIONAL SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLIAM TRIBUNAL DHARWAD, MAY KINDLY BE MODIFY IN RESPECT OF RECOVERY OF AMOUNT BY THE RESPONDENT NO.4 INSURANCE COMPANY FROM THE APPELLANT, BY ALLOWING THE ABOVE CROSS APPEAL AS PRAYED FOR WITH COST, IN THE INTEREST OF JUSTICE AND EQUITY.

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IN MFA.NO.21039/2011:

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BETWEEN:

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THE MANAGER, THE ORIENTAL INSURANCE COMPANY LTD. BIDARI COMPLEX, 1^ST FLOOR, S.S.FRONT ROAD, VIJAPUR-586101, THROUGH REGIONAL MANAGER, ORIENTAL INSURANCE COMPANY LTD., REGIONAL OFFICE, SUMANGALA COMPLEX, LAMINGTON ROAD, HUBLI.

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…APPELLANT

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(BY SRI HANUMANTHAREDDY SAHUKAR, ADVOCATE)

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AND:

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GANGADHAR S/O. GUDDAPPA SHETTAR, AGE: 69 YEARS, OCC: RETIRED TEACHER, R/O: MADIHAL DHARWAD.

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MALLAPPA BASAPPA DAMBAL, AGE: MAJOR, OCC:NOT SHOWN,

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NC: 2023:KHC-D:8059 MFA.CROB No. 100023 of 2018 C/W MFA No. 21039 of 2011

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R/O: NEELAKANTHA APARTMENT, VISHWESHWARA NAGAR, HUBLI.

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DEVARADDI BASAPPA DAMBAL, AGE:MAJOR, OCC: NOT SHOWN, R/O: SREE RAMAKRISHINA COLONY, SHIRUR PARK, VIDYANAGAR, HUBLI, (PRESENT OWNER OF VEHICLE NO.KA 28/M-3045).

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Y.M. SARVAD, AGE: MAJOR, OCC:NOT SHOWN, R/O: NEAR CIVIL HOSPITAL, VIJAYAPURA. (PRIOR OWNER OF VEHICLE NO.KA 28/M-3045)

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…RESPONDENTS

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(BY SRI S. K. KAYAKAMATH, ADVOCATE FOR R4; R2 AND R3 ARE DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) MOTOR

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VEHICLE ACT, 1988, PRAYING TO CALL THE RECORDS, HEAR THE PARTIES AND ALLOW THE APPEAL AS PRAYED FOR BY SETTING ASIDE THE JUDGMENT AND AWARD DATED 29.10.2010 PASSED BY THE THIRD ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIM TRIBUNAL, DHARWAD IN MVC NO.578/2006 WITH COST IN THE INTEREST OF JUSTICE AND EQUITY.

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THESE MFA CROB AND MFA, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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NC: 2023:KHC-D:8059 MFA.CROB No. 100023 of 2018 C/W MFA No. 21039 of 2011

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JUDGMENT

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MFA No.21039/2011 is filed by the Insurance

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Company under Section 173(1) of the Motor Vehicles Act, 1988 (for short hereinafter referred to as ‘M.V. Act’) challenging the judgment and award dated 29.10.2010 in M.V.C. No.578/2006 passed by the learned III Additional Senior Civil Judge and Motor Accident Claims Tribunal, Dharwad, (for short, hereinafter referred to as ‘the Tribunal”) questioning the order of pay and recovery made by the Tribunal whereas MFA CROB No.100023/2018 is filed by the owner of the vehicle bearing registration No.KA-28/M-3045 under Order XLI Rule 22 of the Code of Civil Procedure, 1908 challenging the very same judgment and award so far as liability fastened on him and also the quantum of compensation.

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The brief facts of the case are that on 18.06.2005 the claimant was proceeding as a pedestrian near Shivaji Statue at Dharwad-Saudatti road at 8.00 p.m.

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Tata Indica Car bearing registration No.KA-28/M-3045 driven by respondent No.1 in rash and negligent manner

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NC: 2023:KHC-D:8059 MFA.CROB No. 100023 of 2018 C/W MFA No. 21039 of 2011

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and dashed to the claimant, as a result the claimant sustained grievous injuries and filed claim petition.

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After receiving the evidence on record and appreciating the same, the Tribunal has granted compensation of Rs.76,700/- directing the owner of the offending vehicle to pay the compensation by exonerating the Insurance Company.

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Heard the arguments advanced by the learned counsel for the parties on both sides and perused the records.

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In the present case, the Tribunal has granted compensation of Rs.76,700/- directing the owner of the offending vehicle to pay the compensation by exonerating the Insurance Company on the ground that the driver of the offending vehicle was not having driving license to drive the Tata Indica Car bearing registration No.KA-28/M3045. Therefore, the Tribunal is of the opinion that since the driver of the car was not holding driving license, therefore there is a fundamental breach of policy. Hence,

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6 - NC: 2023:KHC-D:8059 MFA.CROB No. 100023 of 2018 C/W MFA No. 21039 of 2011

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exonerated Insurance Company and fastened liability on appellant-owner to pay the compensation.

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On the other hand, the learned counsel for the Insurance Company submitted that the Tribunal is correct in holding that the cross objector is liable to pay compensation, but order of pay and recovery made is not correct. Alternatively, submitted that the cross objector shall furnish security so as to enable Insurance Company to recover the amount from the cross objector.

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In the present case, in the complaint it is stated that the cross objector was driving Tata Indica Car and caused accident. Subsequently, while filing charge sheet, it is shown as respondent No.2 as driver of the Tata Indica Car, since, respondent No.2 was having driving license. In the charge sheet, respondent No.2 is arraigned as accused, but in the complaint, which is filed soon after the accident and at an undisputed and very initial point of time, it is stated that the cross objector was driving the Tata Indica Car. Subsequently, the driver’s name has been changed in the charge sheet, but where the transactions

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are happened and when it is recorded soon after the accident and undisputed point of time and initial point of time would carry more weightage than the narration stated at later stage. The Insurance Company is correct in stating that since the cross objector was not having driving license, in the charge sheet, the name of respondent No.2 has been shown. After appreciating the entire evidence on record and in the background of facts and circumstances of the case on all its preponderance of probabilities of what would happen at the very initial point of time and at an undisputed point of time that carries more weightage than what is narrated at later stage. Therefore, just because, in the charge sheet, the name of appellant is not found as accused, but name of respondent No.2 is found as accused that cannot take away the narration made in the complaint as it is filed soon after the accident. Also, it cannot be expected by the Insurance Company to challenge the charge sheet as it is not the duty of the Insurance Company. Therefore, what the Court gets impression, what would have happened upon

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perusing the evidence on record, it would be said that the case is having that is called as finding of the fact on probabilities. Therefore, the Tribunal is correct in holding that the appellant was driving and since he was not having driving license. Therefore, fastened liability on the appellant which is found to be correct.

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The Tribunal has ordered for pay and recovery since there is violation of conditions of policy and in order to protect the interest of the claimant as he is third party, accordingly, an order of pay and recovery is made, where the Insurance Company is successful in establishing the defence as per Sub-Section (2) of Section 149 of the Motor Vehicle Act, therefore, in order to protect the rights of third party i.e., who is claimant herein as per SubSection (1), (5) (7) of Section 149 of the Motor Vehicle Act, the Insurance Company as if the judgment debtor shall satisfy the claim in respect of third party at the first instance and then recover the same from owner of the offending Tata Indica Car bearing registration No.KA28/M-3045. Accordingly, order of pay and recovery is

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9 - NC: 2023:KHC-D:8059 MFA.CROB No. 100023 of 2018 C/W MFA No. 21039 of 2011

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made as per the principle of law laid down by the Hon’ble

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Supreme Court in the case of Pappu and Others vs.

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Vinod Kumar Lamba and Another¹ ; National Insurance Company Limited vs. Swaran Singh and Others² and also as per the full bench decision of this Court in the case of New India Assurance Company Limited vs. Yellavva and Another³ . Thus, an order of pay and recovery is made. Therefore, the order of pay and recovery passed by the Tribunal is correct.

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Therefore, the judgment and award passed by

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the Tribunal is justifiable and need not be interfered with.

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Hence, I proceed to pass the following:

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ORDER

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i) MFA No.21039/2011 filed by the Insurance

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Company is dismissed .

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ii) MFA.CROB.No.100023/2018 filed by the owner/respondent No.2 is dismissed .

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1 (2018) 3 SCC 208

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2 (2004) 3 SCC 297

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3 2020 ACJ 2560

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iii) The judgment and award passed in M.V.C.No.578/2006 dated 29.10.2010 by the learned III Additional Senior Civil Judge and Motor Vehicle Claims Tribunal, Dharwad, is hereby confirmed.

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iv) The amount in deposit made by the Insurance Company shall be transmitted to the Tribunal along with Trial Court records forthwith.

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v) No order as to costs.

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SD/JUDGE

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SSP List No.: 1 Sl No.: 6

The Manager, v. Gangadhar S/O Guddappa Shettar

Case brief

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The Manager, v. Gangadhar S/O Guddappa Shettar

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