Partly allowed

Smt Sakamma v. the Branch Manager

Karnataka HC9 Nov 2023MFA/802/2023

Case brief

AI extract

What is this about?

An appeal against a Compensation Tribunal order denying the insurer's liability due to an unlicensed driver. The High Court applied Supreme Court precedent to modify the order, directing the insurer to pay compensation first while retaining the right to subrogation against the vehicle owner.

What did the court decide?

Insurance Company directed to deposit entire compensation amount plus interest within six weeks, with liberty to recover from the owner.

Smt Sakamma Vs the Branch Manager — Insurance | Karnataka HC (2023)

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NC: 2023:KHC:40142 MFA No. 802 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD MISCELLANEOUS FIRST APPEAL NO. 802 OF 2023 (MV)

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BETWEEN:

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SMT SAKAMMA W/O LATE KALEGOWDA AGED ABOUT 42 YEARS.

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RAMYA D/O LATE KALEGOWDA AGED ABOUT 29 YEARS.

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LATHA @ SHAMBHAVI D/O LATE KALEGOWDA AGED ABOUT 27 YEARS ALL ARE R/AT LAKSHMIPURA VILLALGE KIKKERI HOBLI KRISHNARAJAPET TALUK MANDYA DISTRICT 577102 …APPELLANTS

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Digitally signed by DHANALAKSHMI MURTHY Location: High Court of Karnataka

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(BY SRI. GIRISH B BALADARE., ADVOCATE)

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AND:

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THE BRANCH MANAGER SRIRAM GENERAL INSURANCE CO LTD E-8, EPIP, SITAPURA JAIPUR, RAJASTHAN-302022.

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K N CHANDRA S/O NANJEGOWDA AGED ABOUT 44 YEARS R/O KIKKERI VILLAGE

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NC: 2023:KHC:40142 MFA No. 802 of 2023

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KRISHNARAJAPET TALUK MANDYA DISTRICT …RESPONDENTS

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(BY SRI. B C SHIVANNE GOWDA., ADVOCATE FOR R1: SRI. K.P. YOGANNA, ADVOCATE FOR R2)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED:19.12.2022 PASSED IN MVC NO.174/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, KRISHNARAJPET, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) has been filed by the claimants being aggrieved by the judgment dated 19.12.2022 passed by the Senior Civil Judge & JMFC, Krishnarajapet (for short ‘the Tribunal’) in MVC No.174/2015.

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Facts giving rise to the filing of the appeal briefly stated are that on 17.05.2014 at about 6.00 a.m. the deceased Kalegowda was proceeding in Ape autorickshaw bearing registration No.KA-54/3384 from his

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3 - NC: 2023:KHC:40142 MFA No. 802 of 2023

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native place Lakshmipura village of Krishnarajpet Taluk. At that time, the driver of the said vehicle drove the same in a rash and negligent manner, due to which, the vehicle toppled down. As a result of the aforesaid accident, the deceased fell down, sustained grievous injuries and succumbed to the injuries at the hospital.

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The claimants filed a petition under Section 166 of the Act seeking compensation for the death of the deceased along with interest.

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On service of summons, the respondent Nos.1 and 2 appeared through counsel and respondent No.2 filed written statement in which the averments made in the petition were denied. The age, occupation and income of the deceased are denied. It was further pleaded that the driver of the offending vehicle did not possess valid driving licence as on the date of the accident. It was further pleaded that the liability is subject to terms and conditions of the policy. It was further pleaded that the quantum of

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NC: 2023:KHC:40142 MFA No. 802 of 2023

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compensation claimed by the claimants is exorbitant. Hence, he sought for dismissal of the petition.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined claimant No.1 as PW-1 and another witness as PW-2 and got exhibited documents namely Ex.P1 to Ex.P9. On behalf of respondents, two witnesses were examined as RW-1 and RW-2 and got exhibited documents namely Ex.R1 to Ex.R5. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.17,04,000/- along with interest at the rate of 6% p.a. and directed the owner of the offending vehicle to deposit the compensation amount along with interest. Being aggrieved, this appeal has been filed.

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NC: 2023:KHC:40142 MFA No. 802 of 2023

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The learned counsel for the claimants has

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raised the following contentions:

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(i) Firstly, at the time of the accident the offending vehicle was covered with valid insurance policy. Since the driver of the offending vehicle was not having a valid and effective driving licence, the Tribunal fastened the liability on the owner of the offending vehicle. In respect of claimant is concerned, in view of the law laid down by the Apex Court in the case of ‘PAPPU AND OTHERS vs.

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VINOD KUMAR LAMBA AND ANOTHER’ AIR 2018 SC

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592 and a Full Bench judgment of this Court in ‘NEW INDIA ASSURANCE CO. LTD. BIJAPUR vs. YALLAVVA AND ANOTHER’ ILR 2020 Kar.2239, the insurance company has to pay the compensation amount at the first instance with liberty to recover the same from the owner of the offending vehicle, the insured.

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(ii) Secondly, the overall compensation awarded by

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the Tribunal is on the lower side. Hence, he prays for allowing the appeal.

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On the other hand, the learned counsel for the Insurance Company has raised the following contentions:

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(i) Firstly, admittedly, the driver of the offending vehicle was not having a valid and effective driving licence, he has violated the policy condition. Therefore, the Tribunal has rightly exonerated the Insurance Company from payment of compensation.

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(ii) Secondly, considering the age and avocation of the deceased, the overall compensation awarded by the Tribunal is just and reasonable. Hence, he prays for dismissal of the appeal.

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Learned counsel appearing for the owner of the offending vehicle has contended that the offending vehicle has a valid insurance policy. Therefore, Insurance Company is liable to pay the compensation.

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Heard the learned counsel for the parties and perused the judgment and award.

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NC: 2023:KHC:40142 MFA No. 802 of 2023

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It is not in dispute that Kalegowda died in the road traffic accident occurred on 17.05.2014 due to rash and negligent driving of the autorickshaw bearing registration No.KA-54/3384 by its driver.

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Considering the evidence of the parties, age and avocation of the deceased, the overall compensation awarded by the Tribunal is just and reasonable.

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The other contention raised by the claimants is regarding liability. The Tribunal has exonerated the Insurance Company and fixed the liability on the owner of the offending vehicle on the ground that the insured has violated the policy condition. Since the offending vehicle was covered with a valid insurance policy, in view of judgment of the Apex Court in the case of PAPPU (supra) and Full Bench of this Court in the case of YELLAVVA (supra), in respect of claimant is concerned, at the first instance Insurance Company has to pay compensation to the claimants with liberty to recover the

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NC: 2023:KHC:40142 MFA No. 802 of 2023

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same from the owner of the offending vehicle. To that extent the judgment passed by the Tribunal is modified.

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Accordingly, I pass the following order:

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(i) The appeal is allowed in part.

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(ii) The Insurance Company is directed to deposit the entire compensation amount along with interest @ 6% p.a. from the date of petition till the date of realization within a period of six weeks from the date of receipt of a copy of this order, with liberty to recover the same from the owner of the offending vehicle.

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Sd/JUDGE

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CM List No.: 2 Sl No.: 46

Smt Sakamma v. the Branch Manager

Case brief

What is this about?

What did the court decide?

Smt Sakamma v. the Branch Manager

Case brief

What is this about?

What did the court decide?

What the court decided

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