1 in the High Court of Karnataka Dharwad Bench

1 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 23 rd DAY OF AUGUST 2019 BEFORE THE HON’BLE MR.JUSTICE K. NATARAJAN MISCELLANEOUS FIRST APPEAL NO.103181 of 2015 c/w MISCELLANEOUS FIRST APPEAL NOS.103194 OF 2015 AND 103182 OF 2015 (MV) IN MFA NO.103181 OF 2015: BETWEEN: 1. JUDY PETER RODRIGUES AGE: 55 YEARS, OCC: HOUSEHOLD, R/O: H.NO.1811, ZED GALLI, SHAHAPUR, BELAGAVI 2. IVAN PETER RODRIGUES AGE: 31 YEARS, OCC: NIL, R/O: H.NO.1811, ZED GALLI, SHAHAPUR, BELAGAVI 3. RUTH PETER RODRIGUES AGE: 33 YEARS, OCC: NIL, R/O: H.NO.1811, ZED GALLI, SHAHAPUR, BELAGAVI 4. GRACY W/O PETER RODRIGUES AGE: 30 YEARS, OCC: NIL, R/O: H.NO.1811, ZED GALLI, SHAHAPUR, BELAGAVI ... APPELLANTS (By Sri. B.M. PATIL, ADVOCATE) 2 AND: 1. MITHUN GANAPAT BIRJE AGE: MAJOR, OCC: BUSINESS, R/O: H.NO.978, GADE MARG, SHAHAPUR, BELAGAVI, (OWNER OF VEHICLE BEARING NO.KA-22-P-6013) 2. THE DIVISIONAL MANAGER NATIONAL INSURANCE CO. LTD., HAVING ITS DIVISIONAL OFFICE AT RAMDEV GALLI, BELAGAVI, (INSUER OF VEHICLE BEARING NO.KA-22P-6013 POLICY NO.253310311161 20070831 VALID FROM 19-01-2012 TO 18-01-2013) ... RESPONDENTS (By Sri. GIRIJA HIREMATH, ADVOCATE FOR R1. Smt. PREETI SHASHNAK, ADV. FOR R2) THIS MFA IS FILED UNDER SECTION.173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT & AWARD DATED:11.08.2015 PASSED IN MVC.NO.390/2013 ON THE FILE OF THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. IN MFA NO.103194 OF 2015 BETWEEN: MRS. JUDY PETER RODRIGUES AGE:55 YEARS, OCC:HOUSEHOLD R/O:NO.1811, ZED GALLI SHAHAPUR, BELAGAVI. ... APPELLANT (By Sri. B.M. PATIL, ADVOCATE) 3 AND: 1. SHRI.MITHUN GANAPAT BIRJE AGE:MAJOR, OCC:BUSINESS R/O:H.NO:978, GADE MARD, SHAHAPUR, BELAGAVI (OWNER OF VEHICLE BEARING NO.KA-22-P-6013) 2. THE DIVISIONAL MANAGER NATIONAL INSURANCE COMPANY LIMITED HAVING ITS DIVISIONAL OFFICE AT RAMDEV GALLI, BELAGAVI (INSURER OF VECHILE BEARING NO.KA-22-P-6013) POLICY NO.25331031116120070831 VALID FROM 19.01.2012 TO 78.01.2013 ... RESPONDENTS (By Sri. GIRIJA HIREMATH, ADVOCATE FOR R1. Smt. PREETI SHASHNAK, ADV. FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT & AWARD DATED:11.08.2015, PASSED IN MVC.NO.623/2013 ON THE FILE OF THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. IN MFA NO.103182 OF 2015 BETWEEN: GRACY ALISTER NORONHA AGE: 28 YEARS, OCC: TUITION, NOW NIL, R/O: NO.1811, ZED GALLI, SHAHAPUR, BELAGAVI. ... APPELLANT (By Sri. B.M. PATIL, ADV.) 4 AND: 1. MITHUN GANAPAT BIRJE AGE: MAJOR, OCC: BUSINESS, R/O: H.NO.978, GADE MARG, SHAHAPUR, BELAGAVI, (OWNER OF VEHICLE BEARING NO.KA-22-P-6013) 2. THE DIVISIONAL MANAGER NATIONAL INSURANCE CO. LTD., HAVING ITS DIVISIONAL OFFICE AT RAMADEV GALLI, BELAGAVI, (INSUER OF VEHICLE BEARING NO.KA-22P-6013 POLICY NO.253310311161 20070831 VALID FROM 19-01-2012 TO 18-01-2013) ... RESPONDENTS (By SMT. GIRIJA HIREMATH, ADVOCATE FOR R1. Smt. PREETI SHASHNAK, ADV. FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT & AWARD DATED: 11.08.2015 PASSED IN MVC.NO.622/2013 ON THE FILE OF THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR HEARING FOR FURTHER ARGUMENTS THIS DAY, THE COURT DELIVERED THE FOLLOWING: 5 JUDGMENT Miscellaneous First Appeal Nos.103181 of 2015, 103182 of 2015 and 103194 of 2015 are filed by the claimants assailing the common judgment and award dated 11.08.2015 passed by the VI Additional District and Sessions Judge and Additional MACT, Belagavi (hereinafter referred to as the ‘Tribunal’, for short) in MVC Nos.390 of 2013, 622 of 2013 and 623 of 2013. 2. Heard the arguments of the learned counsel for the appellants-claimants and respondent- insurer in all these cases. 3. The rank of the parties before the Tribunal is retained for the sake of convenience. 4. The claimant in MVC No.319 of 2013 being the legal representative of Rodrigues and the claimants in MVC Nos.622 of 2013 and 623 of 2013, who are injured claimants, have filed claim 6 petitions under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the ‘Act’, for short) claiming compensation of Rs.15,00,000/-, 18,00,000/- and 13,00,000/- respectively interalia contending that on 10.01.2013 AT 23:30 hours, Peter Rodrigues, and his wife were returning from Goa to Belgaum in a car bearing registration No.KA-22/P-6013, the respondent No.1 being the owner and driver of the car driving the vehicle in a rash and negligent manner so as to endanger human life, when the said car came near Kalmani cross on Jamboti-Kanakumbi road, at that time, the driver of the said car suddenly lost control over his vehicle and dashed to the road side tree and caused the accident. Due to the accident, the said Peter Rodrigues sustained grievous injuries and died on the spot, whereas the other two claimants i.e. wife and daughter of the said deceased Peter Rodrigues were sustained injuries 7 and they have taken to the hospital and treated as in-patient. Due to the injuries, they have suffered disability and they have also spent huge amount towards medical expenses. Hence, prayed for granting compensation on various heads. 5. In pursuance to the notice in all the cases, the respondent No.1 appeared through his counsel and filed statement of objections by denying the rash and negligent driving of the vehicle and also nature of injuries and contended that respondent No.1 he is having valid driving license to drive the vehicle and vehicle was duly insured with respondent No.2, if any liability, the same shall be fastened on the respondent No.2 and also contended that the vehicle was not used for carrying any passenger for hire and reward and the deceased and respondent No.1 are friends and hence, prayed for dismissing the claim petitions. 8 6. The respondent No.2 insurer also appeared and filed statement of objections in all the three cases by denying the averments made in the petitions as false and contended that the vehicle was a private vehicle which was used for carrying the passengers for hire and reward and they are un-authorized passengers in the car. They admitted the issuance of insurance policy but it has contended that in view of the violation of terms and conditions of the policy in respect of using the vehicle for hire and reward and not having driving license therefore respondent No.2 is not liable to pay any compensation. Hence, prayed for dismissing the claim petitions. 7. Based upon the rival pleadings, the tribunal framed the following issues and Addl. Issues in all the three cases; 9 MVC No.390/2013 (1) Whether the petitioner proves that on 10.1.2013 at about 11.30 p.m, near Kalmani cross on Jamboti- Kanakumbi road, while they were returning from Goa to Belgaum in the car bearing No.KA-22/P-6013, the driver of the said car drove the same in a very high speed and rash and negligent manner so as to endanger human life and lost control over the same and dashed to the road side tree and caused the accident in which the deceased Peter Anthony Rodrigues died on the spot as alleged in the petition? (2) Whether the respondent No.2 proves that the driver of the Car bearing No.KA-22/P-6013 was not holding valid and effective DL to drive the same as on the date of alleged accident and hence the 1 s t respondent/owner has violated the terms and conditions of the policy? (3) Whether the respondent No.2 further proves that the decease was an unauthorized passenger in the said vehicle and hence his risk is not covered under the policy issued to the said Car? (4) Whether the petitioners are entitled for compensation as claimed? If so, from whom and for how much compensation they are entitled to? 10 (5) What order or award? Addl. Issue Whether the respondent No.1 proves that at the time of accident the vehicle was duly insured with the respondent No.2 and if at all this court comes to the conclusion that petitioner is entitled for compensation then the same may be saddled on respondent No.2? MVC No.622/2013 (1) Whether the petitioner proves that on 10.1.2013 at about 11.30 p.m, near Kalmani cross on Jamboti- Kanakumbi road, while she was returning from Goa to Belgaum in the car bearing No.KA-22/P-6013, the driver of the said car drove the same in a very high speed and rash and negligent manner so as to endanger human life and lost control over the same and dashed to the road side tree and caused the accident in which she sustained the grievous injuries as alleged in the petition? (2) Whether the respondent No.2 proves that the driver of the Car bearing No.KA-22/P-6013 was not holding valid and effective DL to drive the same as on the date of alleged accident and hence the 1 s t 11 respondent/owner has violated the terms and conditions of the policy? (3) Whether the respondent No.2 further proves that the decease was an unauthorised passenger in the said vehicle and hence her risk is not covered under the policy issued to the said Car? (4) Whether the petitioner is entitled for compensation as claimed? If so, from whom and for how much compensation she is entitled to? (5) What order or award? Addl.

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