1 in the High Court of Karnataka Circuit Bench At
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1 IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 30 th DAY OF JANUARY, 2013 BEFORE THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA MFA.20185/13 C/w. MFA.CROB.726/13, MFA.20184/13, MFA.CROB.725/13 (MV) MFA.20185/13 BETWEEN: United India Insurance Co. Ltd., Srinivas Talkies, 1 st Floor, Market, P.B. No.54, Dharwad. Reptd. through its Divisional Office, Ankola Arcade, P.B. Road, Dharwad. Reptd. by its Divisional Manager, Dr.P.M. Kulkarni. … Appellant (By Mrs.Preethi Shashank, Adv. ) AND: 1. Hanamantappa, S/o Kashappa Patil, Aged about 52 years. Occ: Nil but physically handicapped, R/o Tejaswi Nagar, Kalaghatagi Road, Lakamanahalli, Dharwad. 2 2. Kumar Shilpa, D/o Hanamantappa Patil, Aged about 23 years, Occ: Student. R/o Tejaswi Nagar, Kalaghatagi Road, Lakamanahalli, Dharwad. 3. Asif Allabaksh Shaikh, Age: Major. Occ: Owner of rickshaw bearing No.KA-25/A-5007 (A/R Cab), R/o Pendar Galli, Dharwad. … Respondents (By Sri S. N. Banakar, Adv. for C/R.1 & 2) This MFA is filed u/s 173(1) of the Motor Vehicles Act, 1988, praying to set aside the award dated 30.08.2012 in MVC.363/2011, on the file of the Court of Fast Track Court-III, Dharwad, as against the appellant. IN MFA.CROB.726/13 BETWEEN: 1. Hanamantappa, S/o Kashappa Patil, Aged about 52 years. Occ: Nil but physically handicapped, R/o Tejaswi Nagar, Kalaghatagi Road, Lakamanahalli, Dharwad. 2. Kumari Shilpa, D/o Hanamantappa Patil, Aged about 23 years, Occ: Student.R/o Tejaswi Nagar, Kalaghatagi Road, Lakamanahalli, Dharwad. .. Cross Objectors (By Sri. S. N. Banakar, Adv.) 3 AND: 1. The United India Insurance Co. Ltd., Srinivas Talkies, 1 st Floor, Market, P.B. No.54, Dharwad. Reptd. through its Divisional Manager, Ankola Arcade, P.B. Road, Dharwad. 2. Asif Allabaksh Shaikh, Age: Major. Occ: Owner of rickshaw bearing No.KA-25/A-5007 (A/R Cab), R/o Pendar Galli, Dharwad. … Respondents (By Mrs Preeti Shashank, Adv.) This MFA.CROB. is filed under Order 41 Rule 22 of CPC read with section 173(1) of the Motor Vehicles Act, 1988, praying to dismiss MFA.20185/13 and enhance the compensation by modifying the Judgment and Award dated 30.08.2012 in MVC.363/2011, on the file of the Court of Fast Track Court-III, Dharwad. IN MFA.20184/13: BETWEEN: United India Insurance Co. Ltd., Srinivas Talkies, 1 st Floor, Market, P.B. No.54, Dharwad. Reptd. through its Divisional Office, Ankola Arcade, P.B. Road, Dharwad. Reptd. by its Divisional Manager, Dr.P.M. Kulkarni. … Appellant (By Mrs.Preethi Shashank, Adv. ) 4 AND: 1. Hanamantappa, S/o Kashappa Patil, Aged about 52 years. Occ: Nil but physically handicapped, R/o Tejaswi Nagar, Kalaghatagi Road, Lakamanahalli, Dharwad. 2. Kumar Shilpa, D/o Hanamantappa Patil, Aged about 23 years, Occ: Student. R/o Tejaswi Nagar, Kalaghatagi Road, Lakamanahalli, Dharwad. 3. Asif Allabaksh Shaikh, Age: Major. Occ: Owner of rickshaw bearing No.KA-25/A-5007 (A/R Cab), R/o Pendar Galli, Dharwad. … Respondents (By Sri S. N. Banakar, Adv.) This MFA is filed u/s 173(1) of the Motor Vehicles Act, 1988, praying to set aside the award dated 30.08.2012 in MVC.362/2011, on the file of the Court of Fast Track Court-III, Dharwad, as against the appellant. IN MFA.CROB.725/13 BETWEEN: 1. Hanamantappa, S/o Kashappa Patil, Aged about 52 years. Occ: Nil but physically handicapped, R/o Tejaswi Nagar, 5 Kalaghatagi Road, Lakamanahalli, Dharwad. 2. Kumari Shilpa, D/o Hanamantappa Patil, Aged about 23 years, Occ: Student.R/o Tejaswi Nagar, Kalaghatagi Road, Lakamanahalli, Dharwad. .. Cross Objectors (By Sri. S. N. Banakar, Adv.) AND: 1. The United India Insurance Co. Ltd., Srinivas Talkies, 1 st Floor, Market, P.B. No.54, Dharwad. Reptd. through its Divisional Manager, Ankola Arcade, P.B. Road, Dharwad. 2. Asif Allabaksh Shaikh, Age: Major. Occ: Owner of rickshaw bearing No.KA-25/A-5007 (A/R Cab), R/o Pendar Galli, Dharwad. … Respondents (By Mrs Preeti Shashank, Adv.) This MFA.CROB. is filed under Order 41 Rule 22 of CPC read with section 173(1) of the Motor Vehicles Act, 1988, praying to dismiss MFA.20184/13 and enhance the compensation by modifying the Judgment and Award dated 30.08.2012 in MVC.362/2011, on the file of the Court of Fast Track Court-III, Dharwad. These MFAs and Cross Objections coming on for Admission, this day, the Court delivered the following: 6 JUDGMENT Though these appeals and Cross Objections are listed for admission, with the consent of learned Counsel on both sides they are heard finally. 2. MFA.20185/13 and MFA.20184/13 are filed by the Insurance Company assailing the liability of the Insurance Company, while MFA.Crob.726/13 and MFA.Crob.725/13 are filed in the respective appeals by claimants seeking enhancement of compensation. 3. According to the respondent-claimants, Renuka wife of Hanumanthappa and her son Amar were traveling in an autorickshaw bearing registration No.KA.25/A.5007 from Dharwad to Tegur, 17.10.2010 at about 22.45 hrs when it was driven in a rash and negligent manner and dashed against a Jeep bearing registration No.KA.22/F.1830, as a result both Renuka and Amar sustained grievous injuries as the vehicle in which they were traveling turned turtle. They were shifted to KIMS 7 hospital, Hubli, where despite treatment they died on 18.10.2010. The driver of the autorickshaw also died on 20.10.2010. The police had filed a chargesheet against the driver of the autorickshaw . 4. Contending that wife of 1 st claimant and mother of 2 nd claimant, the son of 1 st claimant and brother of the 2 nd claimant, had died in the accident two claim petitions were filed. The said claim petitions were contested by respondent-Insurance Company as well as by the owner of the autorickshaw . In support of their case, the claimants let-in evidence of two witnesses and produced eight documents whch were marked as Ex.P.1 to P.8, while the respondents let-in evidence of three witnesses and produced eleven documents as Ex.R.1 to R.11. 5. On the basis of the said evidence, the Tribunal awarded compensation of Rs.5,44,000/- with interest at the rate of 6% p.a. from the date of petition till realization in MVC.362/11 and Rs.3,59,000/- with interest at the rate 8 of 6% p.a. from the date of petition till realization in MVC.363/11. The Tribunal fastened the liability jointly and severally on the owner and insurer of the autorickshaw. 6. Being aggrieved by the judgment and award on the question of liability, the Insurance Company has preferred the appeals, while respondents-claimants have filed cross objections seeking enhancement of compensation. 7. I have heard the learned Counsel for the parties. 8. It is contended on behalf of the Insurance Company that the Tribunal was not right in fastening the liability on the Insurer. In the instant case the autorickshaw had the permit to ply from the limits of HDMC within a distance of 10 Kms. But in the instant case the autorickshaw was proceeding towards Tegur which is 22 Kms away from Dharwad Jubilee Circle. Therefore, there was violation of terms of the policy and hence the 9 defence under section 149 of the Act was available to the Insurance Company. The Tribunal ought to have exonerated the Insurance Company in view of there being a clear violation of the terms and conditions of the policy. In support of this submission learned Counsel for appellant has drawn my attention to the certified copies of the documents which have been produced by the Insurance Company before the Tribunal, particularly, Ex.R.10 which is a Notification dated 12.10.1995 issued by the Government of Karnataka delimiting the limits of HDMC, and Ex.R.11, which is a Distance Certificate issued by the Engineer of the Highway Authority. She therefore would contend that since the autorickshaw was plying beyond 10 Kms of radius from HDMC limits, there was violation of the permit and under Section 149 of the Motor Vehicles Act, the Insurance Company is exonerated. 9. Per contra, learned Counsel for respondents- claimants has referred to these documents to contend that Ex.R.3 which is a permit issued in respect of the 10 vehicle in question states that the area of the permit “had limits beyond 10 Kms.” and that the evidence on record particularly Ex.R.11 states that Tegur is 22 Kms from Dharwad Jubilee Circle whereas permit to drive the autorickshaw is within 10 Kms radius from the limits of HDMC. No material is placed before the Tribunal as to what was the limit of the Corporation and under the circumstances, document produced by the Insurance Company is of no assistance to the Insurer to be exonerated of its liability. On the other hand, he submitted that the Tribunal has rightly fixed the liability on the Insurance Company as well as on the owner of the vehicle and that these are fit cases for enhancement of compensation. 10. On that aspect, learned Counsel for the respondent has submitted in so far as MVC.363/2011 is concerned, it pertains to the death of Amar who was 18 years of age earning Rs.5000/- per month. But the Tribunal has assessed the notional income at Rs.3,000/- 11 per month which is on the lower side and therefore, the compensation awarded on the head of Loss of Dependency is meager.