IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MARCH, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR M.F.A. NO.8477 OF 2016 C/W M.F.A. NO.8476 OF 2016 (CPC) IN M.F.A NO.8477 OF 2016 BETWEEN:
Mr. Ahamed. P.M. S/o P.M.Ismail Aged about 35 years Pallikal Villa, Kudlu Post Chowki, Kasargoud-671 124 …Appellant (By Sri. K. Rajan Kumar, Advocate) AND:
1. Mr. Surendra Gatti S/o Late Krishna Gatti Aged about 60 years 2. Smt. Jayathi Gatti W/o Surendra Gatti Aged about 49 years 3. Kum. Mahalakshmi D/o Surendra Gatti All are residing at Saraswati Colony Kolya Someshwara, Post Kotekar Mangalore Taluk-575 023 4. The New India Assurance Co Ltd Branch Office, M.G. Road Kasargodu, Kerala-671 121 Represented by its Manager ...Respondents (By Sri. R. Rajagopalan, Advocate for R4; Notice served-R1 to R3) This Miscellaneous First Appeal is filed under order 43 rule 1(d) of CPC, against the order dated 31.08.2016 passed in Misc.No.8/2016 on the file of the I Additional District & Sessions Judge, Mangalore, dismissing the petition filed under order 9 Rule 13 of CPC.
IN M.F.A NO.8476 OF 2016 BETWEEN:
Mr. Ahamed. P.M. S/o P.M.Ismail Aged about 35 years Pallikal Villa, Kudlu Post Chowki, Kasargoud-671 124 …Appellant (By Sri. K. Rajan Kumar, Advocate) AND:
1. Mr. Ranjith @ Rajesh S/o Narayan Belchada Aged about 26 years Saraswati Colony Someshwara Mangalore Taluk-575 023 2. The New India Assurance Co Ltd Branch Office, M.G. Road Kasargodu, Kerala-671 121 Represented by its Manager ...Respondents (By Sri. R. Rajagopalan, Advocate for R2) This Miscellaneous First Appeal is filed under order 43 rule 1(d) of CPC, against the order dated 31.08.2016 passed in Misc.No.7/2016 on the file of the I Additional District & Sessions Judge, D.K., Mangalore, dismissing the Misc. petition filed under order 9 Rule 13 of CPC.
These appeals coming on for orders, the Court delivered the following:
JUDGMENT These appeals are filed for setting aside the impugned order dated 31.08.2016 in Misc. Case Nos.7/2016 and 8/2016 passed by the I Additional District and Sessions Judge, D.K., Mangaluru.
2. The facts briefly stated are that the appellant being the owner of the vehicle bearing No.KA 07 Temp- G.8550 – 06 D which was later permanently registered as KL 14/F 8225 had filed a petition under for restoration of MVC Nos.1198/2006 and 668/2006 respectively which were disposed of by the common judgment on 28.5.2010. In the said MVC cases the respondent No.4 Insurance Company was directed to pay the compensation and then recover from the owner. Being aggrieved by the said order the petitioner has preferred these appeals. The said appeals were dismissed and the order passed in MVC cases was confirmed.
3. The main grievance of the appellant in these cases is that since the vehicle belonging to him was insured with the respondent No.4 Insurance Company, the liability should have been fixed on the Insurance Company instead of directing the Insurance Company to pay and recover. When the District Consumer Forum had fixed the liability on the Insurance Company to pay the compensation in respect of the vehicle damage, the same yardstick should have been followed by the MACT.
The Insurance Company having admitted its liability before the District Consumer Forum, was estopped from taking up the said defence before the MACT.
4. The learned counsel for the respondent No.4 would strenuously contend that they have not admitted before the District Consumer Forum regarding their liability to pay the compensation. Thus the question of estoppel does not arise. Since the MFAs preferred by the respondent No.4 Insurance Company challenging the order of pay and recovery are dismissed, the respondent No.4 Insurance Company has made the payment and has filed the Execution Petition to recover the compensation amount from the owner of the vehicle. The owner of the vehicle had appeared in those MFA Nos.8388/2010 & 8389/2010 and has defended his case. Considering the defence putforth by the Appellant owner of the vehicle both the MFAs were dismissed and the order passed by the MACT was confirmed. Under these circumstances, the similar contentions which are taken up before the miscellaneous case does not hold good.
5. In the facts and circumstances of the case, there are no valid grounds to admit the appeals. Accordingly, both the appeals are dismissed.
Sd/- JUDGE ykl