Partly allowed

The Divisional Manager v. Hanumantappa S/O Veerappa Naregal

Karnataka HC13 Oct 2023MFA/24266/2013

Case brief

AI extract

What is this about?

The High Court allowed the appeal partly, holding that while the driver lacked a license exempting the insurer from direct liability, the insurer must pay first under Section 149 of the Motor Vehicles Act and subsequently recover the amount from the vehicle owner as subrogation.

What did the court decide?

The appeal ALLOWED IN PART. Insurer ordered to pay compensation at first instance and recover from vehicle owner. Liberty granted to file execution petition against the owner.

The Divisional Manager Vs Hanumantappa S/O Veerappa… — Motor Accident Claims | Karnataka HC (2023)

¶1

¶2

NC: 2023:KHC-D:12483 MFA No. 24266 of 2013

¶3

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

¶4

DATED THIS THE 13^TH DAY OF OCTOBER, 2023

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

¶7

MISCELLANEOUS FIRST APPEAL NO.24266/2013(MV)

¶8

BETWEEN:

¶9

THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LTD, SRI KRISHAN AGENCY BUILDING, P. B. ROAD, HAVERI NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, HUBBALLI.

¶10

…APPELLANT

¶11

(BY SRI RAJASHEKHAR S. ARANI, ADVOCATE)

¶12

AND:

¶13

SRI HANUMANTAPPA S/O. VEERAPPA NAREGAL, AGE: 43 YEARS, OCC: AGRICULTURE, R/O: ALIPUR, TQ: SAVANUR, NOW AT HANGAL, DIST: HAVERI.

¶14

Digitally signed by SUJATA SUBHASH PAMMAR

¶15

JAINULLA MOHAMMED HANIF TAPAL, AGE : MAJOR, OCC: OWNER OF THREE WHEELER KATAMA BEARING NO.KA276239, R/O : DARGA, HANGAL DISTRICT, HAVERI.

¶16

…RESPONDENTS

¶17

(NOTICE TO R1 IS HELD SUFFICIENT; R2 IS SERVED)

¶18

THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO CALL FOR THE RECORDS, HEAR THE PARTIES, AND ALLOW THE APPEAL AS PRAYED FOR BY SETTING ASIDE THE JUDGMENT AND AWARD DATED 21.08.2013 PASSED BY BEFORE THE ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, HANGAL IN M.V.C.NO.99/2010 WITH COST IN THE INTEREST OF JUSTICE AND EQUITY.

¶19

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

¶20

¶21

NC: 2023:KHC-D:12483 MFA No. 24266 of 2013

¶22

JUDGMENT

¶23

Present appeal is filed by the insurance company challenging the liability saddled on the insurance company to pay compensation.

¶24

Factum of accident, claimant sustaining injuries are not disputed. The only disputed fact is that whether the insurance company is liable to pay the compensation or not.

¶25

Heard the learned counsel for the parties and perused the material on record.

¶26

In the present case, it is the case of the claimant that the claimant and others have travelled in the goods auto rickshaw from Savanur to Alipura and the driver of the auto rickshaw drove the same in rash and negligent manner and auto rickshaw turned turtle due to which claimant has suffered injuries and filed a claim petition. The tribunal while awarding compensation has saddled the burden on the insurance company to pay compensation.

¶27

¶28

NC: 2023:KHC-D:12483 MFA No. 24266 of 2013

¶29

In the present case, the complainant is brother of the

¶30

claimant who has stated that himself, claimant and other three to four persons have travelled from Savanur to Alipura. After completion of their market at Savanur and while returning, the accident was occurred. Ex.P1 is the complaint and FIR. Ex.P2 is a written statement which is given by the complainant by changing the version that the claimant after purchasing fertilizers at Savanur market and while returning to Alipura with the said fertilizer bags met with accident. The written statement given is found to be a after thought version. In the spot mahazar after lodging

¶31

the complaint there is no mentioning that fertilizer bags have fallen on the land. When it is the case of the claimant that auto rickshaw was turtled/capsized then the commodity in the auto rickshaw must have been fallen on the ground and if fertilizer bags have fallen on the ground, the same should have been noted in the spot panchanama. But in the spot panchnama, fertilizer bags were not found on the ground. But, in the written statement, it is revealed that the claimant was returning

¶32

¶33

NC: 2023:KHC-D:12483 MFA No. 24266 of 2013

¶34

to village after loading fertilizer bags on the auto rickshaw. Upon considering the evidence in this regard on all it’s preponderance of probabilities, the written statement given appeared to be after thought just to put burden on the insurance company so as to show that the claimant had travelled with fertilizer bags. Therefore, after considering all this eventualities on all it’s preponderance of probabilities it is found that there attempt is made to show that claimant had travelled along with goods. Therefore, in this regard, it is proved that by giving written statement there is a deliberate attempt was made. Otherwise, the claimant has travelled as gratuitous passenger in the goods auto rickshaw. Therefore, upon considering all these evidence on records, it is proved that the claimant has travelled in the goods auto rickshaw as unauthorized passenger in the goods auto rickshaw. Therefore, the insurance company is not liable to pay the compensation and indemnify the owner. In this regard, the judgment is liable to be modified.

¶35

5 - NC: 2023:KHC-D:12483 MFA No. 24266 of 2013

¶36

In the present case, the driver of the offending three

¶37

wheeler Katama vehicle bearing No.KA-27/6239 was not having driving license to drive the same. Therefore, the Insurance Company is exonerated from paying compensation to the claimant. However, as per Subsection (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 is made as per the principle of law laid down by the Hon’ble Supreme Court in the cases of Pappu and others vs. Vinod Kumar Lamba and another¹ and also as per the full bench decision of this Court in the case

¶38

1 (2018) 3 SCC 208

¶39

¶40

NC: 2023:KHC-D:12483 MFA No. 24266 of 2013

¶41

of New India Assurance Co. Ltd., Bijapur vs. Yallavva w/o. Yamanappa Dharanakeri.²

¶42

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

¶43

Since, the respondent No.2 is owner of the goods auto rickshaw is liable to pay compensation. However, as discussed above, the insurance company shall pay compensation at first instance and then recover the same from the owner of the auto rickshaw that is respondent No.2. The respondent No.2 owner shall furnish security to the court or to the appellant-insurance company.

¶44

The insurance company is given liberty to file execution petition before the concerned jurisdictional execution court and seek adjudication of property either movable or immovable or both till recovery of the amount.

¶45

2 2020 (2) AKR 484.

¶46

¶47

NC: 2023:KHC-D:12483 MFA No. 24266 of 2013

¶48

Hence, I proceed to pass the following:

¶49

ORDER

¶50

i) Appeal filed by the insurance

¶51

company is allowed in part.

¶52

ii) The common judgment and award dated 21.08.2013 passed in MVC No.99/2010 by

¶53

the AMACT, Hangal, stands modified, holding that the insurance company is exonerated from payment of compensation. However, the appellant-insurance company shall pay compensation at the first instance to the claimant and then recover it from the owner of offending vehicle.

¶54

iii) The insurance company is at liberty to file execution petition before the jurisdictional executing Court as against the owner of offending three wheeler Katama vehicle bearing No.KA-27/6239 and may seek attachment of

¶55

NC: 2023:KHC-D:12483 MFA No. 24266 of 2013

¶56

¶57

movables or immovable properties or both, till

¶58

recovery is made.

¶59

iv) Send back the trial Court records along

¶60

with a copy of this judgment.

¶61