The tribunal erred in imposing liability on the Insurance Company without establishing privity of contract or proof of insurance.

ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

This Appeal is filed under Section 173 (1) of the Motor Vehicles Act , 1988 (hereinafter referred to as ‘M.V.Act,’ for short) by the Insurance Company, challenging the judgment and award dated 21.12.2012 passed in MVC No.566/2009 by the learned Additional Senior Civil Judge & Additional MACT, Ranebennur.

2. Brief facts leading rise to the filing of this appeal, are as follows:

3. On 28.12.1994, at about 7.30 p.m., the deceased Maheshappa, and his friend were talking to each other on P.B.Road near Makanur Cross. At that time, the car bearing Reg.No.MH-02/T-182 came from Ranebennur side in a rash and negligent manner, and dashed to the deceased Maheshappa. Due to the said impact, the deceased Maheshappa sustained grievous injuries, and succumbed to the injuries during the treatment. Hence, the legal representative of the deceased filed a claim petition under Section 166 of the M.V.Act claiming a compensation for the death of the deceased Maheshappa in a road traffic accident. Accordingly, prays to allow the claim petition.

4. A Notice was issued to the owner of the offending vehicle. Despite the service of a notice, he remained absent, and was placed ex-parte.

5. The Insurance Company filed a statement of objections denying the averments made in the claim petition. It is contended that as of the date of the accident, the offending vehicle was not insured with the Insurance Company, and the Insurance Company has not issued the policy regarding the offending vehicle. The driver did not possess a valid and effective driving licence as of the date of the accident. It is contended that there is no privity of contract between the Insurance Company and the owner of the offending vehicle. Hence, prays to dismiss the claim petition against the Insurance Company.

6. The Tribunal, based on the pleadings of the parties, framed the relevant issues.

7. The petitioner, to substantiate her case, examined herself as P.W.1, examined one witness as P.W.2, and marked 5 documents as Exs.P1 to P5. Conversely, on the other hand, an official of the Insurance Company was examined as R.W.1, and marked 10 documents as Exs.R1 to R10.

8. The Tribunal, after assessing the verbal and documentary evidence, allowed the claim petition in part vide judgment dated 21.12.2012 and awarded a compensation of Rs.4,10,000/- with interest at the rate of 6% p.a. from the date of the petition till its realization, held that the owner and the Insurance Company are jointly and severally liable to pay the compensation amount, and directed the Insurance Company to deposit the compensation amount.

9. The Insurance Company, aggrieved by the judgment and award passed in MVC No.556/2009, filed this Miscellaneous First Appeal.

10. Heard the arguments of the learned counsel for the Insurance Company, and the learned counsel for the petitioner.

11. Learned counsel for the Insurance Company submits that there is no privity of contract between the Insurance Company and the owner of the offending vehicle. He submits that the Insurance Company has not issued any policy regarding the offending vehicle. The Tribunal without considering the said aspect has committed an error in fastening the liability on the Insurance Company. He also submits that the burden is on the petitioner to prove that the offending vehicle is insured with the Insurance Company. To buttress his arguments, he placed reliance on the judgment of this court in the case of ORIENTAL INSURANCE COMPANY LTD., VS CHIKKEGOWDA AND OTHERS reported in ILR 1997 KAR 1980. Hence, on these grounds, she prays to allow the appeal.

12. Per contra, the learned counsel for the petitioner supports t