IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO MISCELLANEOUS FIRST APPEAL NO.4304/2013 (MV - I) C/W MISCELLANEOUS FIRST APPEAL NO.4306/2013 AND MISCELLANEOUS FIRST APPEAL NO.4307/2013 IN M.F.A. NO.4304/2013 BETWEEN:
THE NEW INDIA ASSURANCE CO. LTD., ADHOHI BRANCH, ANDRAPRADESH STATE.
THROUGH ITS REGIONAL OFFICE, MAHALAKSHMI CHAMBERS, M.G.ROAD, BANGALORE – 560 001. REPRESENTED BY ITS MANAGER SRI.V.RAMACHANDRA. ... APPELLANT (BY SRI LAKSHMINARASAPPA, ADVOCATE FOR SRI B.C.SEETHARAMA RAO, ADVOCATE) AND:
1. SRI.S.NAGARAJ, AGED ABOUT 51 YEARS, S/O SRI. SUBBARAYAPPA, RESIDENT OF MANDIKAL VILLAGE, CHIKKABALLAPUR TALUK – 562 101.
2. SRI. B.KHADER MOHIDDIN, MAJOR, S/O B. MABUSAB, RESIDING AT NO.34/1, AKTHAR STREET, KOWTHALAM MANDAL, KARNOOL DISTRICT, ANDHRAPRADESH STATE. (EX-OWNER OF AUTO NO.
AP-21/X-0719) ... RESPONDENTS (BY SRI. K.NAGABHUSHAN REDDY, ADVOCATE FOR R1; SERVICE OF NOTICE TO R2 IS HELD SUFFICIENT VIDE ORDER DATED 20.03.2017) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 15.01.2013 PASSED IN MVC NO.81/2009 ON THE FILE OF THE DISTRICT JUDGE, MACT-I, CHICKBALLAPUR, AWARDING A COMPENSATION OF RS.4,87,680/- WITH INTEREST @ 9% P.A. FROM 24.11.2012 TILL DATE OF DEPOSIT.
IN M.F.A. NO.4306/2013 BETWEEN:
THE NEW INDIA ASSURANCE CO. LTD., ADHOHI BRANCH, ANDRAPRADESH STATE.
THROUGH ITS REGIONAL OFFICE, MAHALAKSHMI CHAMBERS, M.G.ROAD, BANGALORE – 560 001. REPRESENTED BY ITS MANAGER SRI.V.RAMACHANDRA. ... APPELLANT (BY SRI LAKSHMINARASAPPA, ADVOCATE FOR SRI B.C.SEETHARAMA RAO, ADVOCATE) AND:
1. MISS.M.N.THEJASWINI, AGED ABOUT 15 YEARS, D/O SRI.S.NAGARAJ, SINCE MINOR REPRESENTED BY HER FATHER SRI.S.NAGARAJ RESIDENT OF MANDIKAL VILLAGE, CHIKKABALLAPUR TALUK.
2. SRI. B.KHADER MOHIDDIN, MAJOR, S/O B. MABUSAB, RESIDING AT NO.34/1, AKTHAR STREET, KOWTHALAM MANDAL, KARNOOL DISTRICT, ANDHRAPRADESH STATE. (EX-OWNER OF AUTO NO.
AP-21/X-0719) ... RESPONDENTS (BY SRI. K.NAGABHUSHAN REDDY, ADVOCATE FOR R1; SERVICE OF NOTICE TO R2 IS HELD SUFFICIENT VIDE ORDER DATED 20.03.2017) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 15.01.2013 PASSED IN MVC NO.83/2009 ON THE FILE OF THE DISTRICT JUDGE, MACT, CHICKBALLAPUR, AWARDING A COMPENSATION OF RS.4,000/- WITH INTEREST @ 9% FROM 24.11.2012 TILL DEPOSIT.
IN M.F.A. NO.4307/2013 BETWEEN:
THE NEW INDIA ASSURANCE CO. LTD., ADHOHI BRANCH, ANDRAPRADESH STATE.
THROUGH ITS REGIONAL OFFICE, MAHALAKSHMI CHAMBERS, M.G.ROAD, BANGALORE – 560 001. REPRESENTED BY ITS MANAGER SRI.V.RAMACHANDRA. ... APPELLANT (BY SRI LAKSHMINARASAPPA, ADVOCATE FOR SRI B.C.SEETHARAMA RAO, ADVOCATE) AND:
1. SMT. K.SUSHEELAMMA, AGED ABOUT 46 YEARS, W/O SRI.K.GANGADHARAPPA, RESIDING AT C-KODIGANAHALLI, ANANTHAPURAM DISTRICT (AP) -500 102.
NOW AT MANDIKAL VILLAGE, CHIKKABALLAPUR TALUK AND DISTRICT – 576 102.
2. SRI. B.KHADER MOHIDDIN, MAJOR, S/O B. MABUSAB, RESIDING AT NO.34/1, AKTHAR STREET, KOWTHALAM MANDAL, KARNOOL DISTRICT, ANDHRAPRADESH STATE – 500 101. (EX-OWNER OF AUTO NO.
AP-21/X-0719) ... RESPONDENTS (BY SRI. K.NAGABHUSHAN REDDY, ADVOCATE FOR R1; SERVICE OF NOTICE TO R2 IS HELD SUFFICIENT VIDE ORDER DATED 20.03.2017) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 15.01.2013 PASSED IN MVC NO.84/2009 ON THE FILE OF THE DISTRICT JUDGE, MACT - 1, CHICKBALLAPUR, AWARDING A COMPENSATION OF RS.20,000/- WITH INTEREST @ 9% FROM 24.11.2012 TILL THE DATE OF DEPOSIT.
THESE APPEALS COMING ON FOR ADMISSION ON THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though the matters are listed for Admission, with the consent of learned counsel for both the parties, they are taken up for final disposal.
2. MFA Nos.4304/2013, 4306/2013 and 4307/2013 are filed by the New India Assurance Company Limited, the insurer of the auto rickshaw bearing registration No.AP.21.X.0719, challenging the common judgment and award dated 15.01.2013, passed in MVC Nos. 81, 83 & 84/2009 by the District Judge and MACT-I, Chickaballapur, on the ground of liability.
3. As all these appeals have arisen out of a common road traffic accident, they are heard together and disposed of by this common judgment.
4. The parties are addressed in accordance with their rankings before the Tribunal.
5. The brief facts of the case are:-
The claimants in all these cases were traveling on a pilgrimage to Manthralaya in Andhra Pradesh. In order to return to Hindupura, they wanted to reach the railway station and they boarded an auto rickshaw bearing registration No.AP.21.X.0719. The driver of the auto rickshaw was rash and negligent in its driving because of which, the auto rickshaw got turtled on the way to station on 26.01.2009 at about 6.40 p.m. Therefore, the claimants who sustained injuries in the said accident have filed claim petitions seeking compensation.
6. The appellant – Insurance Company entered appearance and denied the claim of the claimants and contended that there was violation of conditions of policy. Further, it is also contended that the driver of the auto rickshaw never had authority and effective driving licence, thus, the Insurance Company is absolved from its liability. It is also further contended that the respondent No.2 – B.Khader Mohiddin, owner of the vehicle himself has stated that there were nine passengers instead of permit limit of three and there is violation of terms and conditions of permit.
7. In order to prove their case, the claimants have examined three witnesses as PWs-1 to 3 and got marked documents as Exs-P1 to P15, Ex.P1 – wound certificate of Nagalakshmi and Tejaswini. The respondents have examined one witness as RW-1 and got marked documents as Exs-R1 to R3.
8. Learned Member after hearing the parties and after considering the oral and documentary evidence, allowed the claim petitions in part, awarded the compensation of Rs.4,87,680/-, Rs.4,000/- and Rs.20,000/- respectively, with interest at 9% p.a. from 24.11.2012 till date of deposit and directed the Insurance Company to deposit the same. The same is challenged by the Insurance Company in these appeals.
9. Sri Lakshminarasappa, learned counsel appearing on behalf of Sri B.C. Seetharama Rao, learned counsel for the appellant-Insurance Company would submit that the license possessed by the auto driver is not valid and as agreed by respondent No.2 – B.Khader Mohiddin, owner of the vehicle there were nine passengers instead of permit limit of three which is in violation of terms and conditions of permit. Thus, there is no positive and reliable evidence to the effect that there was violation of permit condition as there were nine passengers inside the auto. Insofar as the lack of proper and effective license is concerned, the law relating to driving licence of a transport and non-transport vehicle is well settled by the Apex Court in the case of MUKUND DEWANGAN v. ORIENTAL INSURANCE CO. LTD., (-AIR 2017 SC 3668).
Therefore, the Insurance Company is liable to indemnify the award amount.
10. Hence, these appeals deserve to be dismissed and accordingly, they are dismissed.
However, the learned Member erred in awarding interest at 9% p.a. from 24.11.2012 till its deposit. The same is rectified in these appeals by reducing interest from 9% p.a. to 6% p.a. in all these appeals and to that effect common judgment and award dated 15.01.2013, passed in MVC Nos. 81, 83 & 84/2009 by the District Judge and MACT-I, Chickaballapur is modified.
Amount deposited by the Insurance Company in these appeals shall be transmitted to the concerned Tribunal forthwith.
Sd/- JUDGE VMB