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MFA No. 23821 of 2010
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 08TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE P.KRISHNA BHAT
MISCELLANEOUS FIRST APPEAL NO. 23821/2010 (MV-I)
BETWEEN:
ASHOK RUDRAPPA TORANAGATTI
AGE: 35 YEARS, OCC: DRIVERR/O BUDANUR
(SALAHALLI)TAL: RAMADURG, DIST:
BELGAUM(OWNER OF THE MINIDOR AUTO
RIKSHAWBEARING REG.NO.KA-24/3092)
…APPELLANT
(BY SRI. K B NAIK, G L HULLER & SRI. V.K. NAIK, ADVOCATES)
AND:
1.
THE BRANCH MANAGER,
NATIONAL INSURANCE COMPANY LTDAPMC YARD,
SAUDATTI, DIST: BELGAUM(INSURER OF MINIDOR
AUTO RIKSHAWBEARING REG.NO.KA-24/3092)
2.
MAHESH SHIVAPPA PATIL
SINCE DECEASED BY HIS LRS
R2(A) SAVITRI MAHESH PATIL,
AGE: 34 YEARS, OCC: HOUSEHOLD
R2(B) NANDESH MAHESH PATIL,
AGE: 14 YEARS, OCC: STUDENT
R2(C) NAMARATHA MAHESH PATIL,
AGE: 12 YEARS, OCC: STUDENT
R2(D) NEELAVVA SHIVAPPA PATIL,
AGE: 60 YEARS, OCC: HOUSEHOLDALL ARE R/O :
SAINAGAR, MUNOLLITQ: SAUNDATTI, DIST:
JAGADISH
T R
Digitally signed
by JAGADISH T R
Location: HIGH
COURT OF
KARNATAKA,
DHARWAD
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MFA No. 23821 of 2010
BELAGAVI-591126
…RESPONDENTS
(BY SRI. S K KAYAKAMATH, ADVOCATE FOR R1)
(SRI. HANUMANTHREDDY SAHUKAR, ADVOCATE FOR R2(A-D)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE MV
ACT, PRAYING TO CALL FOR THE RECORDS AND MODIFY THE
AND
AWARD
DATED
19.08.2010
IN
MVC
NO.1618/2008 PASSED BY THE SENIOR CIVIL JUDGE, ASST.
SESSIONS JUDGE, & ADDL. MACT, BAILHONGAL. BY SHIFTING
THE LIABILITY ON RESPONDENT NO.1 AND BY REDUCING THE
COMPENSATION BY ALLOWING THIS APPEAL IN THE INTEREST
OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is at the instance of the owner of the
offending vehicle viz. Goods Auto bearing registration
No.KA-24/3092 calling in question the correctness of the
judgment and award dated 19.08.2010 passed in MVC
No.1618/2008 by the learned Senior Civil Judge, Asst.
Sessions Judge and Addl. MACT, Bailhongal (for short,
‘MACT’) fastening the liability to pay compensation on the
appellant/owner and exonerating the Insurer from the
liability to pay compensation.
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2.
Brief facts are that, on 21.01.2008 at about
4.30 p.m., while the claimant-Mahesh Shivappa Patil was
traveling in the offending Goods Auto bearing registration
No.KA-24/3092 by hiring the same for purchase of
Drumset for one Mahalaxmi Temple and on account of
rash and negligent driving of the offending Goods Auto, it
capsized resulting in grievous injuries to the claimant.
3.
A detailed reference to the entire facts and
circumstances of the evidence is not necessary for disposal
of this appeal in view of the nature of contentions raised
and the grounds urged except stating that the claim
petition came to be allowed in part by awarding
compensation of Rs.8,42,800/- with interest thereon at
6% per annum with the liability fastened to pay
compensation on the owner of the offending vehicle in
question.
4.
Learned
counsel
for
the
appellant/owner
advanced twofold contentions. Firstly, it was contended
that the learned MACT was in error in recording a finding
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that the driver of the offending Goods Auto was not having
a valid and effective driving license to drive the same
inasmuch as he was having only LMV driving license and
the offending vehicle was a Goods Auto. It was his
contention that in view of decision of the Hon’ble Apex
Court in the case of Mukund Dewangan Vs. Oriental
Insurance Company Limited, (2017) 14 SCC 663, it is
required to be held that the driver of the offending vehicle
was having valid and effective driving license to drive the
class of the vehicle namely LMV (Transport). Therefore,
the said finding is liable to be set-aside.
5.
The 2nd contention advanced by the learned
counsel for the appellant is that the pleadings and the
evidence clearly showed that the claimant had hired the
vehicle in question for the purpose of transporting
Drumset which he was proceeding to purchase and carry
the same to Mahalaxmi Temple and in view of the same,
the case is fully covered by the decision of the learned
Division Bench of this Court dated 4.9.2007 in MFA
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No.7555/2002
(National
Insurance
Co.
Ltd.
Vs.
Sarojamma & Others). He therefore submits that the
finding of the learned MACT that the claimant was a
gratuitous passenger is wholly unsustainable and the same
is liable to be set-aside by fastening the liability to pay
compensation on the insurance company.
6.
Learned counsel appearing for the Insurance
Company, per contra, contended that the decision of the
Hon’ble Apex Court in the case of Mukund Dewangan1
(supra) is referred to a larger Bench and therefore, the
said decision cannot be relied upon by this Court. He
further submitted that there is no evidence placed by the
claimant to show that the temple authorities wanted to
purchase the drumset and he was authorized to transport
the same to the Temple and therefore, finding of the
learned MACT that the claimant was only a gratuitous
passenger is fully in accordance with law and hence, the
1 (2017) 14 SCC 663
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same is not liable to be interfered with and appeal requires
to be dismissed as devoid of merits.
7.
I have given my careful consideration to the
submissions made on both sides and I have perused the
original records.
8.
There
