IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 17TH DAY OF JULY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN M.F.A. No.5436/2013 (MV-D) BETWEEN:
MOHAMMED SHANAWAZ PASHA S/O. MOHAMMED SHAFIULLA, AGED ABOUT 29 YEARS, RESIDING AT J.C. PURA VILLAGE, ARASIKERE TALUK, HASSAN DISTRICT. ... APPELLANT (BY SRI M.S. NAGARAJA, ADVOCATE) AND:
1. G. PUTTASWAMY S/O. LATE P. GURUMALLAPPA, AGED ABOUT 50 YEARS, 2. P. DHARSHITHA D/O. G. PUTTASWAMY, AGED ABOUT 21 YEARS, 3. P. DHARSHAN S/O. G. PUTTASWAMY, AGED ABOUT 19 YEARS, ALL ARE RESIDING AT NO.5096, “SRI DHARSHAN NILAYA”
HOUSING BOARD, CAUVERY EXENSION, NANJANGUD TOWN, MYSORE DISTRICT 570 001.
4. NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE, RAMASWAMY CIRCLE, CHAMARAJAPURAM, MYSORE – 24.
5. SMT. FATHIMABI W/O. WAZEER AHMED, AGED ABOUT 35 YEARS, NO.786, MASJID MOHALLA, HULLAHALLI VILLAGE AND POST, NANJANGUDU TALUK, MYSORE DISTRICT – 570 001. (OWNER AND INSURED OF TEMPO NO.KA-27/6688) ... RESPONDENTS (BY SRI B.M. KENCHEGOWDA, ADVOCATE FOR SRI V.N. MADHAV REDDY, ADVOCATE FOR R-1 TO R-3; SRI O. MAHESH, ADVOCATE FOR R-4) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.03.2013 PASSED IN MVC NO.1195/2009 ON THE FILE OF THE PRESIDING OFFICER, C/c FAST TRACK COURT-5, MEMBER ADDITIONAL MACT, MYSORE, AWARDING A COMPENSATION OF RS.17,09,000/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
J U D G M E N T Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. The owner of the offending vehicle which was involved in the accident that occurred on 29/07/2009 at about 7.30 p.m., near Appaswamy Car Garage, M.G.Road, Nanjangud Town, has filed this appeal being aggrieved by the fastening of liability on the appellant/owner of the vehicle and exonerating the insurer.
3. Briefly stated the facts are that, on 29/07/2009, at about 7.30 p.m., Prabhavathi, the wife of claimant/petitioner No.1 and mother of claimant/petitioner Nos.2 and 3, was proceeding on a motorcycle bearing registration No.KA-09/EN-5405 as a pillion rider, which was driven by her husband on M.G.Road in Nanjangud Town. When they reached Appaswamy Car Garage, a passenger tempo bearing registration No.KA-27/6688 came from behind in a rash and negligent manner and dashed against the motorcycle. As a result, deceased Prabhavathi, who was a pillion rider and her husband, who was riding the motorcycle fell down. She sustained grievous injuries and was shifted to Government Hospital at Nanjungud for first aid treatment and later for further treatment she was shifted to Mysuru, but on the way she died due to the injuries sustained in the accident. The dead body was taken to Government Hospital, Nanjangud for post-mortem examination and later her funeral rites were performed. Contending that they had lost an earning member of the family who was aged only 49 years and was working as a Manager-Accounts in Cauvery Kalpatharu Bank and was earning a sum of Rs.27,485/- per month and that on account of a sudden death of the family member, the claimants suffered loss in all respects, the petitioners/claimants filed the claim petition seeking compensation of Rs.35,40,000/- with interest at the rate of 12% p.a. from the date of claim petition till realisation.
4. In response to the notices issued by the Tribunal, the owner of the vehicle as well as the insurer appeared and filed their written statements denying the material allegations in the claim petition and sought for dismissal of the claim petition. The insurance company contended that the liability to satisfy the award was subject to the terms and conditions of the appeal including as to whether the driver of the offending vehicle was having a valid and effective driving licence on the date of the accident.
5. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration:
(i) Whether the petitioners prove that one Smt.H.S.Prabhavathi, W/o.G.Puttaswamy met with a road traffic accident on 29/07/2009 at about 7.30 p.m. on M.G.Road, near Appaswamy Car Garage, Nanjangud and died on the same day, due to the rash and negligent driving of the Passenger Tempo bearing regn. No.KA27/6688 by its driver?
(ii) Whether the petitioners prove that they are entitled for compensation? If so, to what amount and from whom?
(iii) To what decree or order?
6. In order to prove their case, claimant/petitioner No.1 examined himself as PW.1 and one more witness as PW.2 and he produced twelve documents, which were marked as Exs.P-1 to P-12. The respondents examined three witnesses as RWs.1 to 3 and produced seven documents, which were marked as Exs.R-
1 to R-7. On the basis of the evidence on record, the Tribunal answered issue No.1 in the affirmative and awarded compensation of Rs.17,09,00/- and directed the owner of the vehicle/ appellant herein to satisfy the award while the insurance company was exonerated of its liability. Being aggrieved by the fastening of the liability exclusively on the owner of the vehicle, he has preferred this appeal.
7. We have heard learned counsel for the appellant and learned counsel for the insurance company and learned counsel for the claimants and perused the material on record.
8. During the course of submission, learned counsel for the respective parties submitted in unison that this appeal could be disposed of in terms of the judgment passed by this Court on 13/02/2019, in MFA.No.5380/2013. They submitted that the aforesaid appeal was filed by the claimants therein challenging the exoneration of the insurance company. That a Co-ordinate Bench of this Court has reversed the said finding and has fastened the liability jointly on the owner as well as on the insurer of the offending vehicle.
9. Learned counsel for the claimants submits that it is the duty of the insurer to indemnify the appellant/owner since there was a valid and effective driving licence on the date of the accident as the driver of the offending vehicle was duly licenced and that in view of the recent judgment of the Hon’ble Supreme Court in the case of Mukund Dewangan vs. Oriental Insurance Co.
Ltd. [(2016)4 SCC 298] (Mukund Dewangan), the insurer is liable to satisfy the award in the instant case also.
10. Learned counsel for the insurance company fairly submits that in view of the judgment passed by the Co-ordinate Bench of this Court in the aforesaid appeal, the liability to satisfy the award would have to be fastened on the insurer.
11. Learned counsel for the respondent/claimants also supported the said submission.
12. In the circumstances, following the judgment of the Co-ordinate Bench of this Court in MFA.No.5380/2013 disposed of on 13/02/2019, this appeal is allowed.
13. It is clarified that the liability to satisfy the award passed by the Tribunal is on the owner as well as on the insurer jointly and severally. In view of the decision of the Hon’ble Supreme Court in the case of Mukund Dewangan, the respondent/insurance company shall indemnify the appellant/owner of the vehicle. The insurance company shall deposit the compensation amount awarded by the Tribunal i.e., Rs.17,09,000/- with interest at the rate of 6% p.a. from the date of claim petition till realisation within a period of four weeks from the date of receipt of certified copy of this order.
14. The amount in deposit be refunded to the appellant/owner by the registry after due identification.
15. Appeal is allowed and disposed of in the aforesaid terms.
Parties to bear their respective costs.
16. In view of disposal of the appeal, I.A.No.1/13 also stands disposed.
Sd/- JUDGE Sd/- JUDGE S*