In the High Court of Karnataka Dharwad Bench on the 16 Day of March, 2017 Before the Hon'ble Mr.Justice K.Somashekar Mfa No.24
Total Page：16
File Type：pdf, Size：1020Kb
: 1 : IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH ON THE 16 TH DAY OF MARCH, 2017 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO.24597/2011 (MV) BETWEEN The Divisional Manager, New India Assurance Co. Ltd., Club Road Belgaum. Now represented by its Asst. Manager New India Assurance Company Ltd., MTP Hub Shrinath Complex NCM, Hubli. ... Appellant (BY Sri Laxman.B.Mannoddar, Advocate) AND 1. Smt. Anita W/o: Ramesh Amminabhavi Age: 28 Years, Occ: Nil, R/o: Nandikurli, Now at Kabbur Tq: Chikkodi, Dist: Belgaum. 2. Mr. Annasaheb Arjun Rajbholi Age: Major, Occ: Business, R/o: Khot Galli Haripur, Tq: Miraj, Dist: Sangali. ... Respondents (BY Sri Santosh S.Hattikatagi, Advocate for R1, Sri Santhosh.B.Rawoot, Advocate for R2) : 2 : THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 30.05.2011 PASSED IN MVC NO.427/2010 ON THE FILE OF THE MEMBER, MACT AND DISTRICT JUDGE, PRESIDING OFFICER, FAST TRACK COURT-I, CHIKODI, AWARDING THE COMPENSATION OF RS.50,000/- WITH INTEREST AT THE RATE OF 9% P.A. FROM THE DATE OF PETITION TILL REALIZATION. THIS MFA COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT Heard the learned counsel for the appellant and the learned counsel for the respondents No.1 & 2, perused the records. 2. The insurance company has preferred this appeal against the impugned judgment and award passed by the MACT and District Judge (Ad-hoc), Fast Track Court-I, Chikodi passed in MVC No.427/2010 dated 30.05.2011 by awarding compensation in a sum of Rs.50,000/- with 9% interest. Hence, this appeal urged on various grounds herein. : 3 : 3. For the sake of convenience, the parties are referred to as per their ranking before Tribunal; 4. The facts of the case are that, the claimant/petitioner herein, Anita is an agriculturist cum collie aged about 27 years having monthly income of Rs.6,000/-. A car bearing registration No.MH-04/AH-7400 of respondent No.1,Annasaheb being insured with respondent No.2/New India Assurance Company Ltd., the appellant herein from 21.07.2009 to 20.07.2010. That on 30.12.2009 at 17.00 near Hinnameri tota on Raibag-Kempatti Road, while the petitioner was walking towards bazaar of Nandikurli on left side of the road, car of respondent No.1 bearing registration No.MH-04/AH- 7400 came in a high speed, rash and negligent manner from the side of Raibag and dashed against the claimant/petitioner as a result of which the claimant petitioner sustained injuries. 5. In pursuance of the filing of the complaint, a crime came to be registered in Crime No.3/2010 of Raibag police station against the driver of the car. The petitioner sustained : 4 : head injuries and she was treated in Government Hospital Chikodi and thereafter Civil Hospital Belgaum and KLE Hospital Belgaum as in patient for 10 days and spent Rs.35,000/-. However, she suffered permanent disability and facing difficulty in day today activities and work. Hence, the claim petition filed under Section 166 of Motor Vehicles Act before the Tribunal for seeking compensation as sought for. 6. After registration of the petition, notices have been served upon the respondents have put appearance through advocate and filed their written statements and denied the contents of the petition as false. The respondent No.1 contended that the claim is exorbitant one and the driver of the car was holding valid driving license and car is insured with respondent No.2/Insurance Company. Further contended that the claim is exorbitant one and petitioner be put strict proof of contents of petition. The accident has not been taken place by the fault of car driver, but it took place by contributory negligence of the petitioner. Thus, seeks for dismissal of the petition. : 5 : 7. Upon the pleadings, the Tribunal has framed issues for its consideration; (1) Whether the petitioner proves that on 30.12.2009 at 17.00 hours near the Hinnameri tota limits of Nandikurali on Raibag Kempatti Road, while petitioner was walking towards Bazar of her left side of the road, Car bearing No.MH-04/AH-7400 of respondent No.1 came in high speed, rash and negligent manner and dashed to the petitioner and she sustained injuries and fractures in the accident? (2) Whether she further proves that she is entitled for the compensation as sought? (3) What order/award? 8. In order to establish the case, the claimant/petitioner examined herself as PW.1 and marked the documents at Ex.P1 to P13. Respondents did not adduce any evidence but the documents got marked as Ex.R1 to R4 with consent. 9. Subsequently heard the arguments advanced by the learned counsel for the claimant petitioner and the counsel for the respondents and given finding as aforesaid stated. : 6 : 10. In this appeal the learned counsel for the appellant during the course of argument has contended that the impugned judgment and award passed by the Tribunal based on the facts which, given by the claimant petitioner. The claimant petitioner has produced Ex.P5, the wound certificate which speaks history as fall from motorcycle and also produced Ex.P4 which is summary sheet issued by the KLE Hosptial Belgaum, wherein the history of RTA speaks motorcycle hit by for wheeler. This being the fact the Tribunal failed to re-appreciate the contention of the appellant that there is no accident and the vehicle is not involved in the alleged accident and the petitioner has filed false petition. Considering all these facts the Tribunal has passed the impugned judgment and award as ordered in detail. Therefore, it is required to be re-appreciate the evidence on record insofar as Ex.P5, wound certificate produced by the claimant petitioner which reveals that the injuries said to have been caused due to fall from motorcycle. It is further pointed out that the alleged incident has been taken place on 30.12.2009 at about 17.00 hours, whereas the complaint filed on : 7 : 02.01.2010 against the driver of the offending car. Though the incident has been set up to get the compensation. Hence, there is no indication regarding the involvement of the offending vehicle and the same has not been appreciated by the Tribunal but erroneously come to the conclusion that claimant petitioner has established the case against the respondent. Accordingly, fixed the liability to pay the compensation in a sum of Rs.50,000/- along with 9% interest. Hence, the appeal has been challenged on various grounds. 11. In support of the contention, the learned counsel for the appellant has placed reliance of the Hon’ble Supreme Court in the case of Oriental Insurance Co. Ltd., V. Meena Variyal and Others reported in 2007 ACJ 1284 , in the following paragraph Nos.15, 21 and 22 has observed thus; 15. In New India Assurance Co. Ltd., V,. Asha Rani, 2003 ACJ 1 (SC), this Court had occasion to consider the scope of the expression ‘any person’ occurring in section 147 of the Act. This Court held; : 8 : “that the meaning of the words ‘any person’ must also be attributed having regard to the context in which they have been used, i.e., ‘a third party’. Keeping in view the provisions of 1988 Act, we are of the opinion that as the provisions thereof did not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefore”. In other words, this Court clearly held that the apparently wide words ‘any person’ are qualified by the setting in which they occur and that ‘any person’ is to be understood as a third party. 21. It was argued by learned counsel for the appellant that since on the finding that the deceased was himself driving the vehicle at the time of accident, the accident arose due to negligence of the deceased himself and hence the insurer is not liable for the compensation. Even if the case of the claimant that the car was driven by Mahmood Hasan was true, then also, the claimant had to establish the negligence of the driver before the insurer could be asked to indemnify the insured. The decision in Minu B.Mehta Vs Balkrishna Ramchandra Nayan, 1977 ACJ 118 : 9 : (SC) of a three Judge Bench of this Court was relied on in support. 22. In that decision, this Court considered the question whether in a claim for compensation under the Motor Vehicles Act, 1939 proof of negligence was essential to support a claim for compensation. On the facts in that case, their Lordships found that the appeal was liable to be dismissed subject to certain directions issued therein. But their Lordships, in the light of the fact that the High Court had discussed the law on the question and it was of some importance, felt that it was necessary to state the position in law. Noting that the liability of the owner of the car to compensate the victim in a car accident due to negligent driving of his servant is based on the law of Tort , the Court discussed the scheme of the Act of 1939 and the law on the question. Regarding the view of the High Court that it was not necessary to prove negligence the court held; “The reasoning of the two learned Judges is unacceptable as it is opposed to basic principles of the owner’s liability for negligence of his servant and is based on a : 10 : complete misreading of the provisions of Chapter VIII of the Act.