Shivaraya and Ors. Vs Gurappa and Anr.

THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PAYING TO ENHANCE MODIFY THE JUDGMENT AND AWARD PASSED BY THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE AND M.A.C.T-V, VIJAYAPUR AT-VIJAYAPUR IN M.V.C. NO.956/2020 DATED 18-03-2023 AND BE PLEASED TO ALLOW THE CLAIM PETITION BY GRANTING THE RELIEF AS PRAYED FAR BY THE APPELLANTS HEREIN IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS MFA, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI

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ORAL JUDGMENT

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Challenging judgment and award dated 18.03.2023

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passed by Principal Senior Civil Judge and MACT-V, Vijayapura (for short, 'tribunal') in MVC no.956/2020, this appeal is filed.

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Sri Sanganabasava B.Patil, learned counsel submitted that appeal was by claimants challenging finding of tribunal absolving liability of insurer to pay compensation and

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3 - NC: 2025:KHC-K:3623 MFA No. 203341 of 2023

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HC-KAR

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holding insured liable to pay compensation. It was submitted, on 25.02.2020, when Sunil was rider of motorcycle reg.no.KA33-R-8595 at Kalebag-Hubballi Ring road, it dashed against road side pole and fell on road. Tipper no.KA-26/6328 plying on road ran over Sunil, leading to his death. Alleging loss of dependency, his parents, wife and child filed claim petition under Section 163 of Motor Vehicles Act. It was submitted, on contest wherein claim petition was opposed on all ground, tribunal framed issues and recorded evidence. Claimant no.3 examined himself as PW.1. Exs.P.1 to P.8 were got marked. On other hand, respondent-insurer examined its Law Officer as RW.1 and RTO as RW.2. Exs.R1 to R.6 were got marked.

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On consideration, tribunal held accident had occurred involving insured vehicle and therefore claimants were entitled for compensation of `5,00,000/- with interest at 6% per annum. However, on ground that driver of tipper was not holding valid and effective driving licence as on date of accident, it absolved insurer from liability and held owner liable to pay same. Aggrieved, claimants were in appeal.

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4 - NC: 2025:KHC-K:3623 MFA No. 203341 of 2023

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HC-KAR

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It was submitted, Hon’ble Supreme Court in case of Shivaji and Another v. Divisional Manager, United India Insurance Co. Ltd. And Others – [(2019) 12 SCC 395] referring to its decision in United India Insurance Co. Ltd. v. Sunil Kumar and Another - (AIR 2017 SC 5710), had held in claim petition under Section 163(A) of MV Act, claimant would be entitled for compensation, even if victim were himself negligent in causing accident. In view of above, impugned award would call for interference.

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Sri SS Mamadapur, learned counsel for respondent no.1 and Sri Subash Mallapur, learned counsel for insurer would oppose appeal. It was submitted since rider of motorcycle himself was negligent in causing accident as per police investigation records, claimants would not be entitled for compensation. It was also submitted, driver of Tipper did not have driving license as on date of accident. Therefore, discharging insurer from liability was justified.

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Heard counsel and perused impugned judgment and

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award.

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5 - NC: 2025:KHC-K:3623 MFA No. 203341 of 2023

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HC-KAR

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From above point that would arise for consideration

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is:

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“Whether dismissal of claim petition against insurer on ground that victim himself was negligent would be justified, when claim petition was under Section 163(A) of MV Act?”

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From above, occurrence of accident involving motorcycle, on which deceased Sunil was riding and tipper lorry is not in dispute. Tipper Lorry being insured with respondent no.2 is also not in dispute. Tribunal absolved liability of insurer on ground that driver of Tipper Lorry was not possessing driving license as on date of accident. In view of three judges Bench in Shivaji’s case (supra), claimant in a claim petition under Section 163(A) of MV Act cannot be denied compensation on ground that victim was rash and negligent and caused said accident.

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There is yet another aspect of matter that is whether driver of Tipper Lorry not having driving license as on date of accident would justify award. Accident occurred due to involvement of two vehicles. Police investigation records would implicate both riders of motorcycle as well as driver of lorry for

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6 - NC: 2025:KHC-K:3623 MFA No. 203341 of 2023

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HC-KAR

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causing accident. It is seen accident occurred when deceased Sunil riding motorcycle dashed against road side electric pole, due to which he fell down on road, on which tipper in question was plying which ran over him, causing his death. In absence of material that driver of Tipper had any time to react, driver holding license or otherwise would be immaterial. Therefore, insurer would be liable to pay compensation. Accordingly, point for consideration is answered in negative. Consequently, following order:

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ORDER

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i) Appeal is allowed. Judgment and award dated 18.03.2023 passed by Prl. Senior Civil Judge and MACT-V, Vijayapur in MVC no.956/2020 is modified. Dismissal of claim petition against insurer is set aside. Insurer is held liable to pay compensation.

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Sd/(RAVI V HOSMANI) JUDGE

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SN/NJ

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List No.: 1 Sl No.: 49

Shivaraya and Ors. v. Gurappa and Anr.

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Shivaraya and Ors. v. Gurappa and Anr.

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