IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL MISCELLANEOUS FIRST APPEAL NO.7865/2011 BETWEEN:
JAYALAKSHMAMMA W/O NAGARAJ AGED ABOUT 27 YEARS R/AT C/O 58/1, 2ND MAIN 6TH CROSS, ARALIMARA ROAD CHENNIGAPPA LAYOUT KAMAKSHIPALYA BANGALORE- 560 079 … APPELLANT (BY SRI SHRIPAD V. SHASTRI, ADVOCATE) AND:
1. RAVI KUMAR S/O THIMMAIAH GIDODADASANPURA YALAVADI POST, KUNIGAL TALUK TUMKUR DISTRICT – 572 103 2. BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD., KNV COMPLEX 4TH CROSS, VIDYANAGAR B.H.ROAD, TUMKUR – 572 103 BY ITS MANAGER … RESPONDENTS (BY SRI P.B.RAJU, ADVOCATE FOR R2; R1 SERVED UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 10.02.2011 PASSED BY MACT, XVIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES MEMBER, MACT (SCCH-4) BANGALORE IN MVC NO.5462/2008 AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Challenge of the claimant in this appeal to the award passed by MACT, Court of Small Causes, Bangalore (SCCH-4) in MVC No.5462/2008 is limited to the question of liability of the insurer .
2. Appellant was claimant in MVC No.5462/2008.
Respondent No.1 is owner of offending vehicle and respondent No.2 is insurer of the offending vehicle.
3. On 07.06.2008, at about 4.00 p.m. when claimant was traveling in an auto rickshaw cab piaggio (APC) bearing No.KA-06-B-5928 at Huliyurdurga-Agalakote road near Mattadapalya within limits of Magadi police station, the said auto rickshaw met with an accident due to rash and negligent driving of the driver of the said vehicle. Claimant suffered injuries.
4. Claimant filed claim petition claiming compensation. Respondent No.1 is owner and respondent No.2 is insurer.
5. The Tribunal after recording evidence and after hearing the parties came to the conclusion that the claimant is entitled for compensation of Rs.34,000/- for the injuries suffered by her.
6. However, the Tribunal held that permit issued to the offending vehicle was limited to the jurisdiction of Kunigal Municipal Town limit, but the vehicle met with accident when it was operating beyond that limits, thereby there is violation of permit condition. Having regard to such conclusion, the Tribunal fastened the liability only on respondent No.1 and absolved insurer/respondent No.2 of its liability.
7. Learned Counsel appearing for appellant-claimant relies upon the judgment of Supreme Court in Rani v. National Insurance Co.Ltd. [(2018) 8 SCC 492].
8. The Hon’ble Supreme Court in Rani’s case referred to supra has held that even accepting that there is violation of permit condition, compensation determined must be first paid by the insurer and thereafter insurer shall recover that from the owner of the offending vehicle.
9. In view of the ratio laid down in the said judgment, the impugned judgment and award exonerating insurer from its liability needs to be modified. Therefore, the appeal is party allowed.
10. The impugned award of the Tribunal is modified.
The claimant is entitled for compensation of Rs.34,000/- with interest thereon at 6% p.a. from the date of petition till its realization payable by respondent No.2. within 8 weeks from the date of receipt of copy of this order.
11. Respondent No.2 shall pay and recover the said amount from respondent No.1. Rest of the award is maintained.
KSR Sd/- JUDGE