In the High Court of Karnataka, Dharwad Bench

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 9 TH DAY OF JUNE 2017 BEFORE THE HON’BLE MR. JUSTICE S.N. SATYANARAYANA MFA. No.103790/2015 (MV) BETWEEN: UNITED INDIA INSURANCE CO.LTD., BRANCH CHIKKODI, TQ.CHIKKODI, DISTRICT BELAGAVI, REP.BY ITS SR.DIVISIONAL MANAGER, CLUB ROAD, BELAGAVI, REP.BY ITS ASSISTANT MANAGER. .. APPELLANT (BY SMT.PREETI SHASHANK, ADV.) AND: 1. SRI.BHIMAPPA @ BHIMASHI SIDDAPPA YARNAL, AGED ABOUT 42 YEARS, OCC: NOW NIL, R/O KONNUR, TQ.GOKAK, DIST: BELAGAVI. 2. TASLEEM ARIF S/O KUTUBUDDIN RON, AGED ABOUT 39 YEARS, OCC: SERVANT, R/O MALLAPUR P.G. GHATAPRABHA, TQ.GOKAK AND ALSO KUDACHI, TQ.RAIBAG, DIST: BELAGAVI, (OWNER OF TVS MOTORCYCLE BEARING NO.KA-49/E-7548). 3. NATIONAL INSURANCE COMPANY LTD., MAHAVEER CHAMBERS, ASHOK NAGAR, NIPPANI, REP. BY ITS SR.DIVISIONAL MANAGER, 1732, I FLOOR, RAMDEV GALLI, BELAGAVI. 4. VASUDEV GOVINDRAO GOTANE, AGED ABOUT 64 YEARS, OCC: RICKSHAW DRIVER, R/O HAVALDAR GALLI, RAIBAG. (OWNER OF PASSENGER AUTO RICKSHAW BEARING NO.KA-23/5421) 2 5. MUJIBURAHIMAN S/O KUTUBUDDIN RON, AGED ABOUT 37 YEARS, OCC: BUSINESS, R/O MALLAPUR P.G. GHATAPRABHA, TQ.GOKAK AND ALSO KUDACHI, TQ.RAIBAG, DIST: BELAGAVI. …RESPONDENTS (BY SRI.S.V.YAJI, ADV. FOR R3, NOTICE TO R1, R2, R4 AND R5 SERVED) THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 25.07.2015 PASSED IN MVC NO.2757/2011 ON THE FILE OF THE XII ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI SITTING AT GOKAK AWARDING THE COMPENSATION OF RS.1,58,000/- WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL REALISATION. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT Respondent No.4-insurer in MVC No.2757/2011 on the file of XII Additional District and Sessions Judge and Additional MACT, Belagavi has come up in this appeal impugning the judgment dated 25.07.2015. 2. Admittedly, the appellant herein is insurer of auto rickshaw bearing reg.No.KA-23/5421 belonging to Vasude G.Gotane, who is respondent No.3 in this appeal. The claim petition in MVC No.2757/2011 is filed by respondent No.1 herein, namely, Bhimappa @ Bhimashi 3 Siddappa Yarnal seeking compensation for the injuries suffered in a road traffic accident dated 24.09.2009. The said accident is caused involving TVS motorcycle bearing reg.No.KA-49/7548 and auto rickshaw bearing reg.No.KA- 23/5421. The accident is not in dispute so also the injuries suffered by the claimant in the said accident. In the Court below on the basis of police and medical evidence available on record, the Court below accepted the accident and held that both the vehicles are equally responsible in causing the accident resulting in injuries to the claimant and accordingly, while allowing the claim petition awarded compensation in a sum of Rs.1,58,000/- payable with interest at 6% p.a. and liability to pay compensation was saddled on the owner and insurer of the TVS motorcycle to an extent of 50% and remaining 50% was saddled on the owner and insurer of auto rickshaw, who is appellant herein. Being aggrieved by the same, the insurer of auto rickshaw has come up in this appeal contending that though the appellant herein in principle has no objection regarding quantum of compensation and other aspects 4 would tried to bring to the notice of this Court that the offending vehicle was not insured with the appellant at the relevant time of accident. 3. According to the counsel for the appellant, the policy issued by the appellant to the offending vehicle vide Ex.R1, is valid from 22.07.2010 and continuing up to the midnight of 21.07.2011. By producing the copy of the said policy vide Ex.R1, evidence was adduced to demonstrate earlier to that day, i.e., on 24.09.2009, the offending auto rickshaw was not insured with the appellant herein. In spite of the same being produced, in the absence of any document coming forth from the owner of the vehicle to demonstrate that as on the date of accident, his liability was covered by the policy issued by the insurance company, the Court below ought to have saddled the liability to pay compensation on the owner and not by the insurer. 4. According to appellant, the Court below by taking an erroneous view allowed the claim petition and 5 awarded compensation saddling the liability on the appellant herein as insurer of auto rickshaw, which caused the accident. Therefore, in the fact situation, this Court hold that the judgment impugned is required to be interfered so far as it pertains to saddling liability to pay compensation on the insurer inasmuch there being no policy issued as on the date of accident. However, in this proceeding there is no attempt either on the part of the claimant or owner to demonstrate that the policy issued by the appellant-insurer was in force as on the date of accident on 24.09.2009. 5. Hence, this Court believing the version of the appellant allowed this appeal. While doing so, it is clarified that, even at the stage of execution, if respondent No.4 in this appeal namely, Vasudev G.Gotane, who is owner of the auto rickshaw is able to establish issuance of policy, as on the date of accident, then he is at liberty to approach this Court for shifting the liability being saddled on the insurer to pay compensation. 6 With such observation, this appeal is allowed. In view of the appeal being allowed, the amount in deposit is ordered to be released in favour of the appellant-insurer. Sd/- JUDGE MBS/-.

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