IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B. SREENIVASE GOWDA M.F.A.NO.10563/2010(MVC) BETWEEN THE BRANCH OFFICER THE NEW INDIA ASSURANCE CO LTD 1ST FLOOR, MALAPPA COMPLEX, BH ROAD, SHIMOGA BY REGIONAL OFFICE M/S NEW INDIA ASSURANCE CO LTD NO.2B, UNITY BUILDING ANNEXE, P. KALINGA RAO ROAD (MISSION ROAD) BANGALORE -560027 REPRESENTED BY ITS DEPUTY MANAGER ... APPELLANT (BY SRI P S JAGADISH, ADVOCATE, FOR SRI P B RAJU, ADVOCATE) AND 1. SMT MADAMMA @ MAHADEVAMMA AGED 48 YEARS W/O LATE S.R CHANDRAPPA, R/O VINOBANAGARA, JATPAT NAGARA, 6TH CROSS, SHIMOGA 2. SHRI N. BASAVARAJ AGED ABOUT 38 YEARS, S/O NAGENDRAPPA, R/O. HOSAMANE EXTENSION, 6TH CROSS, SHIMOGA, (OWNER OF MARUTHI OMNI VAN BEARING REGN. NO.KA-14/N-2347) ... RESPONDENTS (By SRI G LAKSHMEESH RAO, ADVOCATE FOR R2; NOTICE TO R-1 IS HELD SUFFICIENT) MFA FILED U/S 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED: 31.7.2010 PASSED IN MVC NO.527/2005 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE & ADDITIONAL MACT- 7, SHIMOGA, AND REDUCE THE COMPENSATION AND EXONERATE THE APPELLANT-INSURANCE COMPANY FROM THE LIABILITY.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T This appeal is by the insurer of the offending vehicle challenging the judgment and award passed by the Tribunal on the ground of liability.
2. With the consent of learned counsel appearing for parties, the appeal is heard, admitted and disposed of finally. Judgment and Award passed by the Tribunal is also perused.
3. For the sake of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal.
4. As there is no dispute regarding certain injuries sustained by the claimant in a road traffic accident occurred on 15.10.2005 due to rash and negligent driving of a Maruti Van bearing registration No.KA-14-N-2347 by its driver and liability of the insurer of the offending vehicle, the only point that arises for consideration in the appeal is:
“Whether finding of the Tribunal on liability in directing the insurer of offending vehicle to pay compensation to the claimant is sustainable in law ?”
5. Learned counsel for the insurer of the offending vehicle submits that two persons viz. Smt.Madamma @ Mahadevamma, the claimant in the above appeal and one Devaraj had sustained injuries in the very same accident and they filed two separate claim petitions before different Accident Claims Tribunal and both the petitions were allowed and claimants were awarded different sum of compensation by directing the owner and the insurer of the offending vehicle to pay compensation awarded by it to the claimants jointly and severally.
6. The appellant - insurance company aggrieved by the judgment and award of the Tribunal in MVC No.512/2005 challenged the same by preferring an appeal in MFA No.2649/2009 before this court on liability. This court allowed the said appeal and modified the judgment and award passed by the Tribunal on liability and exonerated the insurance company from liability. Therefore, learned counsel for the appellant prays for allowing the appeal by exonerating the insurer from liability.
7. Sri G.Lakshmeesh Rao, learned counsel appearing for the owner of the vehicle does not the dispute the submission made by the learned counsel for the insurer. Hence, the following:
ORDER The appeal is allowed. The impugned Judgment and Award passed by the Tribunal in MVC No.527/2005 stands modified in so far as it relates to the liability is concerned. The appellant - Insurance company is exonerated from its liability and liability is fastened on the owner of the vehicle.
The claimant is entitled to recover the compensation awarded by the Tribunal from the owner of the offending vehicle.
Amount, if any, deposited in the above appeal is ordered to be refunded in favour of the appellant – insurer.
No order as to costs.
SD/- JUDGE DKB