IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JANUARY, 2019 BEFORE THE HON' BLE MR. JUSTICE N.K.SUDHINDRARAO M.F.A.No.6616/2009 (MV) BETWEEN:
THE NEW INDIA ASSURANCE CO. LTD., No.339, 1ST FLOOR NEAR 11TH CROSS, SAMPIGE ROAD, MALLESWARAM BANGALORE, HAVING ITS BRANCH OFFICE AT SAVALAGI COMPLEX, P B ROAD DAVANGERE.
REP. BY THE DEPUTY MANAGER NEW INDIA ASSURANCE CO. LTD., REGIONAL OFFICE, NO.2-B MISSION ROAD, UNITY BUILDING ANNEXE, BANGALORE.
(BY SRI M NARAYANAPPA, ADVOCATE) ..APPELLANT AND:
1. SRI HANUMANTHAPPA S/O VENKATAPPA @ YENKAPPA SINCE DEAD REP. BY HIS L.RS:
(A) SMT.RENUKAMMA W/O HANUMANTHAPPA AGED ABOUT 41 YEARS.
(B) SRI VEERABHADRAPPA S/O HANUMANTHAPPA AGED ABOUT 23 YEARS.
(C) SRI HALESH H S/O HANUMANTHAPPA AGED ABOUT 22 YEARS.
2. SRI ERAPPA S/O LATE VENKATAPPA @ YENKAPPA AGED ABOUT 36 YEARS LRS. OF RESPONDENT NO.1 AND RESPONDENT NO.2 BOTH ARE R/O DOOR NO.604 SJM NAGAR, 2ND MAIN 4TH CROSS, KONDAJJI ROAD DAVANGERE.
3. SRI JABEEULLA S/O GOUSEPEER AGED ABOUT 17 YEARS SINCE MINOR REP. BY HIS NATURAL GUARDIAN AND FATHER SRI GOUSEPEER, MAJOR R/O OPP. GOUSE PEER GUJARI SHOP, R/O BEHIND MOTHI THEATRE, DAVANGERE.
4. SRI D NAGARAJ, S/O DUGGAPPA AGED ABOUT 36 YEARS R/O PLOT NO.2, INDUSTRIAL AREA, DAVANGERE.
5. SRI C E SHIVAKUMAR S/O C ESHWARAPPA AGED ABOUT 44 YEARS R/O PLOT NO.2, KIADB INDUSTRIAL AREA, SIDDARTHA METAL COATING LTD., DAVANGERE.
..RESPONDENTS (BY SRI N M SHIVANNA GOUDAR, ADVOCATE FOR R1 (A-C) & R2, R3, R4 AND R5 ARE SERVED) *** THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DT 16.4.2009 PASSED IN MVC NO.143/2006 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE, PRESIDING OFFICER, FAST TRACK COURT-II AND ADDITIONAL MACT, DAVANAGERE AWARDING A COMPENSATION OF RS.1,00,000/-.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT The learned counsel for the appellant present and learned counsel for respondents absent. The matter is of the year 2009 in terms of the appeal and of the year 2006 in terms of the claim petition so also of the year 2005 in terms of the accident. The matter is listed under final hearing and that was notified well in advance. There are no just and proper reasons to adjourn the case for the absence of the learned counsel for respondents.
2. This appeal by the appellant – Insurance Company is directed against the impugned judgment and award dated 16.04.2009 passed in MVC No.143/2006 on the file of the Addl. District Judge, Fast Track Court-II and Addl. MACT, Davanagere, (hereinafter referred to as ‘Tribunal’ for short) questioning the award of compensation and saddling the liability on the Insurance Company.
3. The Tribunal by its judgment and award has awarded a global compensation of a sum of Rs.1,00,000/- with cost and interest, as against the claim of the claimant on account of death of Smt.Thimmaji, in the road traffic accident.
4. In brief, the facts of the case are:
The claimants are the children of the deceased Thimmaji and they have filed a claim petition under Section 166 of MVC Act before the Tribunal claiming compensation of Rs.10 lakhs on account of untimely death of the deceased in the road traffic accident, which occurred on 21.02.2005 at about 06.15 a.m., when the deceased was proceeding in front of Powjana Built House Shop on Gujari Line Road, Davanagere, a Maruthi Esteem Car bearing registration No.KA-14 M-9541 driven in a rash and negligent manner by one Jabeeulla, who is a minor aged about 14 years, dashed against Thimmaji. Due to the impact, deceased sustained fatal multiple injuries and succumbed to the injuries on the way to the hospital.
5. Since the driver of the offending vehicle is a minor boy, aged 14 years, a case in Cr. No.43/2005 came to be registered on 21.02.2005 by the Davanagere Traffic Police Station. After investigation a charge sheet came to be filed against the minor Juvenile offender in JC No.64/2005 before the Juvenile Justice Board at Shivamoga. After trial on 07.11.2008 the said Juvenile offender was acquitted.
6. It was the case of the claimants that, the deceased was aged about 57 years, at the time of accident, hale and healthy and working as a coolie, getting monthly salary of Rs.6,000/-. The untimely death of the deceased has also affected social, moral and economic condition of the family.
7. The said claim petition had come up for consideration before the Tribunal and the Tribunal after hearing both sides and after appreciating the oral and documentary evidence, has allowed the said claim petition and awarded a sum Rs.1,00,000/- as global compensation with cost and interest fastening the liability on the respondent No.3 – Owner and respondent No.5 – Insurance Company of the offending car, Jointly and severally. Being dissatisfied with fastening the liability on the Insurance Company, the appellant seeks for setting aside of Judgment and Award.
8. The submission of learned counsel appearing for the appellant-Insurance Company Mr. M.Narayanappa, at the outset is that, the Tribunal has erred in holding that the accident is due to negligence on the part of the driver, without considering the fact that the actual driver of the offending car is a minor boy and he is not the authorized driver to drive the car. One Shivakumar, who is the owner of the offending car, is said to have given the said car to Mr. Nagaraj, a regular and authorized licenced driver, who is respondent No.2 before the Tribunal and respondent No.4 in this appeal. Learned counsel for Insurance Company submits that the insurance policy does not cover to a unauthorized minor driver who drove the offending car. It is further contended that the Tribunal has erred in fastening the entire liability on the appellant-Insurance Company without fastening it on the owner of the car. The learned counsel further contended that it is not believable that the contention of the driver of the car that the key of the car fell down from his pocket on the seat, which he did not notice and while he was taking out the chain fully from the dickey, the minor boy took hold of the car and drove it and committed the accident. He submits that there is a breach on the part of the owner of the vehicle and admittedly the owner has entrusted the vehicle to a minor to drive the same and hence fixing liability on the Insurance Company is erroneous. He contends that it is for the owner to entrust the vehicle to a duly licensed person and the said driver has to take all the precautionary measures. But in this case both are totally negligent and hence the vehicle was driven by a minor and caused a fatal accident.
9. In this regard, learned counsel for Insurance Company relied on two judgments in the case of UNITED INDIA INSURANCE CO.LTD vs RAKESH KUMAR ARORA AND OTHERS reported in 2008 ACJ 2855 and in the case of NEW INDIA ASSURANCE CO. LTD. vs P.CHELLADURAI AND OTHERS reported in 2008 ACJ 2394.
10. After considering the submissions made by the learned counsel appearing for appellant – Insurance Company and on perusal of the material available on record, including the impugned judgment and award passed by the Tribunal, I find that the Tribunal was right in awarding a global compensation in a sum of Rs.1 lakh to the claimants after considering the oral and documentary materials placed before it. The Tribunal is also right in fastening the liability on the Insurance Company by directing it to pay the compensation awarded to the claimants. The said direction of the Tribunal needs no interference. In this connection it is relevant to note the decision of the Supreme Court in the case of PAPPU AND OTHERS vs VINOD KUMAR LAMBA AND ANOTHER reported in AIR 2018 SC 592, wherein the Apex Court held that ‘However, Insurance Company directed to pay the award amount to claimants in the first instance, and in turn, recover the same from the owner of the vehicle.’ 11. In the over all circumstances of the case, I find that the Insurance Company be directed to pay the compensation and recover the same from the owner of the vehicle. The prayer for relieving the Insurance Company from saddling liability is not accepted. Accordingly, the appeal deserves to be allowed in part. However, the Insurance Company is ordered to deposit the award amount together with interest @ 6% PA within four weeks from the date of receipt of the copy of this order and thereafter recover the same from the owner without going for the statutory suit but to present the execution petition. To the above extent impugned Judgment and Award of the Tribunal is modified.
The amount in deposit before this Court be transmitted to the Tribunal concerned.
Further, while noting the absence of the learned counsel for respondents, I hereby direct the District Legal Service Authority, Davanagere to assist the claimants in getting the compensation as per the award.
In the result the appeal is allowed in part. Draw the award, accordingly.
Sd/- JUDGE VK