The New India Assurance Co.Ltd. Vs Mr Sadiq Khan

THROUGH ITS REGIONAL OFFICE THE NEW INDIA ASSURANCE CO., LTD., MAHALAKSHMI CHAMBERS, M.G ROAD, BENGALURU-560 001 REP. BY ITS MANAGER MR A.R. LAKSHMINARAYAN.

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…APPELLANT

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Digitally signed by ANNAPURNA G Location: HIGH COURT OF KARNATAKA

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(BY SRI. ANUP SEETHARAMA RAO, ADVOCATE FOR SRI. B.C. SEETHARAMA RAO, ADVOCATE)

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AND:

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MR SADIQ KHAN AGED ABOUT 24 YEARS S/O MR BABULAL KHAN 2^ND CROSS, NEHRU COLONY SHIKARIPURA TOWN-577 201

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SRI MURUGESH AGED ABOUT 29 YEARS S/O SRI VASAPPA RESIDENT OF TUMARI HOSUR, SHIKARIPURA TALUK-577 201.

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HC-KAR

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(RIDER OF MOTOR CYCLE NO.KA.15/H-5969)

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NOW AT:KRUPA MOTORS SHIRALIKOPPA.

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SRI S HEMLA NAIKA, MAJOR, S/O SRI GEMLA NAIKA, FORESTER, SHIRALIKOPPA RANGE FOREST OFFICE RESIDENT OF MAHADEVAYYA BADAVANE SHIRALIKOPPA, SHIKARIPURA TALUK-577 201 (OWNER OF HERO HONDA BIKE NO.KA-15/H-5969)

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…RESPONDENTS

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(BY SRI. D.C. PARAMESHWARAIAH, ADVOCATE FOR R1, R2-SERVED, BUT UNREPRESENTED, SRI. ANANDEESWAR D.R, ADVOCATE FOR R3)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 30.11.2016 PASSED IN MVC NO.50/2007 ON THE FILE OF THE CIVIL JUDGE(SR.DN), ADDITIONAL MACT, ITINERARY, SHIKARIPURA, AWARDING COMPENSATION OF Rs.48,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL PAYMENT.

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

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CORAM: HON'BLE MR JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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This appeal is filed by the insurer - respondent No.3

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challenging the judgment and award dated 30.01.2009 passed by the Senior Civil Judge and Additional MACT,

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HC-KAR

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Itinerary, at Shikaripura, in MVC.No.50/2007. (for short 'the Tribunal')

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The parties are referred to as per their ranking

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before the Tribunal.

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Brief facts of the case are that the claimant was returning home on his cycle at the left side of the Sorab road at Shiralkoppa town and at that time, the rider of Herohonda bike bearing No.KA-15-H-5969 came in a rash and negligent manner and hit the bicycle of the claimant, that resulted in causing injuries to the claimants. He took treatment. With these reasons, he prayed to award the compensation.

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Notice was duly served on respondents. Respondent No.1 was rider, respondent No.2 was the owner and respondent No.3 was the insurer of offending motor cycle. Order sheet dated 12.08.2005 reveals that the petition was dismissed against respondent No.2 for not taking steps. Thereafter, petition was disposed of by the impugned judgment and award dated 04.02.2009. Till that time, the

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NC: 2025:KHC:19042 MFA No. 8350 of 2016

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HC-KAR

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claimant did not take steps to restore the case against the owner of the vehicle respondent No.2.

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Respondent No.3 filed objection to the claim petition denying the contents of the claim petition and also denied its liability to pay the compensation and prayed to dismiss claim petition.

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From the rival contentions of the parties, the Tribunal framed necessary issues.

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The claimant to prove his case examined her guardian as PW-1 and another witness as PW-2. He got marked 44 documents as per Ex.P1 to Ex.P44. The respondents have not led any evidence. The Tribunal after hearing the parties and appreciating the materials on record, held that accident occurred due to rash and negligent riding of the motor bike and awarded total compensation of Rs.48,000/- and directed respondent No.3 - Insurance Company to pay the said amount.

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NC: 2025:KHC:19042 MFA No. 8350 of 2016

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HC-KAR

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I have heard the arguments of learned counsel

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appearing for appellant and respondent Nos.1 and 3.

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The main contention of learned counsel for the appellant is that policy of insurance was not in force as on the date of accident. Therefore, respondent No.3 is not liable to pay the compensation.

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Learned counsel for the appellant refers Ex.P44 and the policy of insurance produced by the claimant, which shows that policy of insurance was issued and was in force from 03.08.2001 to 02.08.2002. But undisputedly, the accident occurred on 31.08.2002. Therefore, policy of insurance was not in force as on the date of accident. In view of the said reasons, he submits that respondent No.3 is not liable to pay the compensation.

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Learned counsel for respondent No.2 submits that the case against him was dismissed before the Tribunal, therefore, he is unaware of the proceedings conducted before the Tribunal and prayed to dismiss the appeal against him.

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HC-KAR

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Learned counsel for the claimant/respondent No.1

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submits that he was unaware about the order of the dismissal of the petition against the owner of the vehicle. As already stated above, the case against respondent No.2 was dismissed at initial period on 12.08.2005. It was not restored by the claimant by filing necessary application before the Tribunal. In the absence of owner of the vehicle, proceedings were conducted and it was disposed of.

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Ex.P44 shows that on the date of accident dated

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31.08.2002, policy of insurance was not in force. In such circumstances, the impugned judgment directing respondent No.3 to indemnify the owner of the vehicle and to pay compensation is not justifiable. It appears that the appellant had preferred a revision petition before the Tribunal in RP.No.1/2009, the same was dismissed vide order dated 12.08.2016. The Tribunal ought to have considered that before passing an order as to whether the petition is maintainable in the absence of necessary parties i.e. owner of the vehicle. The matter was pending before the Tribunal

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HC-KAR

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nearly about nine years. But no steps were taken by the claimant for restoration of the petition against respondent No.2, which was dismissed for non-taking steps. In view of these reasons, question of directing respondent No.2 to pay the compensation does not arise. Moreover, negligence for causing the accident is of the respondent No.1, who is respondent No.2 in the present appeal. He borrowed the vehicle from respondent and caused the accident. Hence, he is liable to pay the compensation on behalf of owner of the said vehicle, as he had stepped into the shoes of the owner.

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He has not disputed the said contention. Accordingly, I proceed to pass the following:

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ORDER

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i. The appeal is allowed .

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ii. The judgment and award dated 30.01.2009 in MVC.No.50/2007 passed by the Civil Judge (Sr.Dvn), Additional MACT, Itinerary, Shikaripura is modified.

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