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2021 Supreme(Kar) 368
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
V. SRISHANANDA, J.
RENUKA D/O MALLAPPA DODDABUDIHAL - Appellant
Vs.
RAJESAB S/O HUSSAINSAB BAGILMANI - Respondent
M.F.A. CROB. NO.880/2012 C/W. M.F.A. NOS.21125/2012 & 21126/2012 (MV)
Decided On : 30-07-2021
For The Appellant :SRI.PATIL M H, ADVOCATE
For The Respondent:SRI.KIRAN V MUDDEMMANAVAR, ADVOCATE (ABSENT), SRI.G N RAICHUR, ADVOCATE
Point of Law: There is violation of permit conditions as the autorickshaw has traveled beyond the territorial jurisdiction of the permit conditions. Since the said aspect of the matter is no longer res Integra.
Headnote:
Civil Procedure Code, 1908 - Order 41 Rule 22 - Motor Vehicles Act - Section 166, 173(1) - Appeal - Every Appeal Shall be preferred in the Form Of Memorandum - Motor Vehicles claimants were traveling in a vehicle from village to go to temple as authorized passengers with their relatives and driver of said vehicle drove same on and when they reached near cross, he lost control over autorickshaw and toppled down resulting in claimants sustaining injuries and thus sought for awarding suitable compensation - Whether quantum of compensation adjudged by Tribunal is on lower side? - Whether fastening of liability on Insurance Company by Tribunal is incorrect and needs modification? - Tribunal assessed quantum of compensation in a sum While doing so, Tribunal taken into consideration relevant aspects, namely, notational income, earning capacity, etc
Finding Of the Court:
Tribunal assessed the quantum of compensation in a sum of While doing so, Tribunal taken into consideration relevant aspects, notational income, earning capacity, etc. - In appeals of Insurance Company, first contention of is that there is violation of permit conditions as autorickshaw has traveled beyond territorial jurisdiction of permit conditions - Since said aspect of matter is no longer res Integra and is now covered by judgment of Hon'ble Apex Court in case of and Others reported in said contention cannot be countenanced in law.
Result – Appeal allowed
JUDGMENT :
Though these matters are listed for orders today, with the consent of both the parties, they are taken up for final disposal.
2. Cross objection No.880/2012 in MFA No.21126/2012 is filed by the claimant challenging the validity of the judgment and award dated 26.12.2011 passed in MVC No.193/2008 on the file of the Fast Track Court and MACT, Ranebennur (hereinafter referred to as ‘the Tribunal’ for short). Appeals in MFA Nos.21125/2012 and 21126/2012 are filed by the Insurance Company questioning the liability.
3. The brief facts, which are necessary for disposal of these cross objection and appeals are as under:
Claim petitions came to be filed under Section 166 of Motor Vehicles contending that on 08.12.2007 at about 8.00 p.m. the claimants were traveling in a vehicle bearing No.KA27/9926 from Asundi village to Ranebennur to go to Itagi Bheemakka temple as authorized passengers with their relatives and the driver of the said vehicle drove the same on P.B.Road and when they reached near Kurubageri cross, Ranebennur, he lost control over the autorickshaw and toppled down resulting in claimants sustaining injuries and thus sought for awarding suitable compensation.
4. In pursuance of the notice, Insurance Company appeared before the Tribunal and filed objections denying the claim petition averments in toto. In order to prove the issues, the claimants got examined themselves as PWs.1 and 2 and the doctor has been examined as PW.2. The claimants relied on documentary evidence which were exhibited and marked as Exs.P.1 to P.15. On behalf of the respondents, one Fakkirappa was examined as RW.1 and copies of Insurance policy and driving licence were got marked as Exs.R.1 and R.2.
5. On cumulative consideration of the oral and documentary evidence on record, the Tribunal allowed the claim petitions in part and awarded a sum of Rs.1,41,700/in MVC No.193/2008 and Rs.66,800/in MVC No.194/2008 in respect of two injured persons respectively. It is that common judgment which is under challenge.
6. Learned counsel, Sri.G.N.Raichur, representing the Insurance Company vehemently contended that admittedly at the time of accident, five persons were traveling in the auto rickshaw which is beyond the permit and therefore there is violation of policy condition and the Tribunal has lost sight of the said aspect of the matter. He also contended that the Tribunal fastened liability on the Insurance Company which is incorrect and thus sought for allowing the appeals.
7. Sri.G.N.Raichur also contended that there is violation of permit conditions in view of the fact that auto rickshaw had traveled beyond the permit area and therefore the insurance policy is violated.
8. On the question of quantum of compensation also, he vehemently contended that the quantum of compensation adjudged by the Tribunal having regard to the nature of injuries sustained by the claimants, is exorbitant and thus sought for reduction in the compensation.
9. Per contra, Sri.Patil M.H. appearing for the claimant contended that the quantum of compensation awarded by the Tribunal is on the lower side and therefore sought for enhancing the same by allowing the cross-objection. He also contended that even assuming that there is violation of the policy condition, the Insurance Company should be directed to pay the compensation at the first instance and can recover the same from the owner.
10. The owner of the auto rickshaw though represented in the cross objection, did not chose to appear before the Court and in the connected appeals filed by Insurance Company though served, he remained absent.
11. In view of the rival contentions of the parties, the following points would arise for consideration:
(i) Whether the quantum of compensation adjudged by the Tribunal is on the lower side?
(ii) Whether fastening of liability on the Insurance Company by the Tribunal is incorrect and needs modification?
12. In the case on hand, the accident involving autorickshaw bearing No.KA27/9926 is not in dis
