Bajaj Allianzs General Insurance Co Ltd Vs. Shri Sahadev S/o Lakkappa Awati - Court Judgment

Excerpt:

.....limited, having its office at: club road, belagavi.4. sri. tulsidas channappa soudagar, age major, occ: busines, r/o. paragaon galli, athani, dist:belagavi. …respondents (by sri. harish maigur, adv. for r2; sri. r. r. mane, adv. for r3; notice to r1 & r4 served) this mfa is filed u/sec.173(1) of motor vehicles act, praying to set aside the judgment and award dated3103.2016 passed in mvc no.748/2011 by the court of prl. senior civil judge and addl. m.a.c.t, athani by allowing this appeal with cost in the ends of justice and equity. in mfa no.101910 of2016between: the divisional manager, the new india assurance company limited, divisional office, club road, belagavi, r/by. its duly constituted attorney, the new india assurance company limited, t. p. hub shrinath complex, n. c. market, hubballi. …appellant (by sri. g. n. raichur, advocate) - 4 - nc:2024. khc-d:11979-db mfa no.101563 of 2017 c/w mfa no.101909 of 2016 mfa no.101910 of 2016 & 12 others and:1. sri. venkatesh ramappa chalwadi, age39years, occ: daily wages labour & agriculture, r/o. siddarth nagar, tq: athani, dist: belgaum.2. sri. adveppa saidu bandagar, age major, occ: business, r/o. siddhanatth, tq: jath,.....

Judgment:

- 1 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE22D DAY OF AUGUST, 2024 PRESENT THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT AND THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL MISCELLANEOUS FIRST APPEAL NO.101563 OF2017(MV-D) C/W. MFA NOS.101909/2016, 101910/2016, 101911/2016, 101912/2016, 101913/2016, 101914/2016, 104164/2016, 104165/2016, 104166/2016, 104167/2016, 104168/2016, 104169/2016 (MV-I) 100409/2017 (MV-D) & MFA NO.103790/2022 IN MFA NO.101563 OF2017BETWEEN: BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., BY ITS DIVISIONAL MANAGER, CLUB ROAD, BELAGAVI, BY AUTHORIZED SIGNATORY. …APPELLANT (BY SRI. R. R. MANE, ADVOCATE) AND:

1. SMT. HARIPRIYA W/O. SHRIKANT JOSHI, AGE ABOUT36YEARS, OCC. HOUSEHOLD, R/O. NO.47, VIKRAMPUR, AHTANI, DIST. BELAGAVI-591304.

2. KUMARI. HARSHITA D/O. SHRIKANT JOSHI, AGE14YEARS, OCC. STUDENT, R/O. NO.47, VIKRAMPUR, ATHANI, DIST. BELAGAVI-591304.

3. KUMARI. SUKRUTA D/O. SHRIKANT JOSHI, AGE ABOUT9YEARS, OCC. STUDENT, R/O. NO.47, VIKRAMPUR, ATHANI, DIST. BELAGAVI-591304.-. 2 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS4 SMT. RADHIKA W/O. KRISHNARAO JOSHI, SINCE DECEASED, REPRESENTED BY THE RESPONDENTS NOS. 1 TO3AS LEGAL REPRESENTATIVES.

5. SRI. TULSIDAS S/O. CHANNAPPA SOUDAGAR, AGE MAJOR, OCC. BUSINESS, R/O. PARAGAON GALLI, ATHANI, DIST. BELAGAVI-591304.

6. THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE COMPANY LTD., CLUB ROAD, BELAGAVI-591002.

7. SRI. ADIVEPPA S/O. SAIDU BANDAGER, AGE MAJOR, OCC. BUSINESS, R/O. SIDDANATH, TAL. JATH, DIST. SANGLI-415400. …RESPONDENTS (BY SRI. CHETAN MUNNOLI, ADV. FOR R1 TO R3; SRI. HARISH MAIGUR, ADV. FOR R5; SRI. G. N. RAICHUR, ADV. FOR R6; NOTICE TO R7 SERVED) THIS MFA IS FILED U/SEC.173(1) OF MOTOR VEHICLES ACT, PRAYING TO CALL FOR RECORDS ALLOW THIS APPEAL AND SET ASIDE THE

JUDGMENT

AND AWARD DATED299/2016 PASSED BY THE COURT OF PRINCIPAL SENIOR CIVIL JUDGE AND ADDL. M.A.C.T ATHANI, IN MVC NO.2343/2011 AND ETC. IN MFA No.101909 OF2016BETWEEN: THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE CO.LTD., DIVISIONAL OFFICE CLUB ROAD, BELAGAVI, REPTD., BY ITS DULY CONSTITUTED ATTORNEY, THE NEW INDIA ASSURANCE COMPANY LIMITED, T. P. HUB SRINATH COMPLEX, N. C. MARKET, HUBBALLI. …APPELLANT (BY SRI. G. N. RAICHUR, ADVOCATE) - 3 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS AND:

1. SRI. VADIRAJ ANANTRAO WALVEKAR, AGE42YEARS, OCC: DAILY WAGES LABOUR & AGRICULTURE, R/O. HALIYAL, TQ: AGRANI HOSSATI, ATHANI, NOW AT R.B.VIJAYPURE, VIDYANAGAR ATHANI.

2. SRI. ADVEPPA SAIDU BANDAGAR, AGE MAJOR, OCC: BUSINESS, R/O. SIDDHANATTH, TQ: JATH, DIST: SANGALI.

3. THE MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED, HAVING ITS OFFICE AT: CLUB ROAD, BELAGAVI.

4. SRI. TULSIDAS CHANNAPPA SOUDAGAR, AGE MAJOR, OCC: BUSINES, R/O. PARAGAON GALLI, ATHANI, DIST:BELAGAVI. …RESPONDENTS (BY SRI. HARISH MAIGUR, ADV. FOR R2; SRI. R. R. MANE, ADV. FOR R3; NOTICE TO R1 & R4 SERVED) THIS MFA IS FILED U/SEC.173(1) OF MOTOR VEHICLES ACT, PRAYING TO SET ASIDE THE

JUDGMENT

AND AWARD DATED3103.2016 PASSED IN MVC NO.748/2011 BY THE COURT OF PRL. SENIOR CIVIL JUDGE AND ADDL. M.A.C.T, ATHANI BY ALLOWING THIS APPEAL WITH COST IN THE ENDS OF JUSTICE AND EQUITY. IN MFA No.101910 OF2016BETWEEN: THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, CLUB ROAD, BELAGAVI, R/BY. ITS DULY CONSTITUTED ATTORNEY, THE NEW INDIA ASSURANCE COMPANY LIMITED, T. P. HUB SHRINATH COMPLEX, N. C. MARKET, HUBBALLI. …APPELLANT (BY SRI. G. N. RAICHUR, ADVOCATE) - 4 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS AND:

1. SRI. VENKATESH RAMAPPA CHALWADI, AGE39YEARS, OCC: DAILY WAGES LABOUR & AGRICULTURE, R/O. SIDDARTH NAGAR, TQ: ATHANI, DIST: BELGAUM.

2. SRI. ADVEPPA SAIDU BANDAGAR, AGE MAJOR, OCC: BUSINESS, R/O. SIDDHANATTH, TQ: JATH, DIST: SANGALI.

3. THE MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., HAVING ITS OFFICE AT CLUB ROAD, BELAGAVI.

4. TULSIDAS CHANNAPPA SOUDAGAR, AGE MAJOR, OCC: BUSINESS, R/O. PARAGAON GALLI, ATHANI, DIST: BELAGAVI. …RESPONDENTS (BY SRI. SANJAY S. KATAGERI, ADV. FOR R1; SRI. HARISH MAIGUR, ADV. FOR R2; SRI. R. R. MANE, ADV. FOR R3) THIS MFA IS FILED U/SEC.173(1) OF MOTOR VEHICLES ACT, PRAYING SET ASIDE

JUDGMENT

& AWARD DATED3103.2016 PASSED IN MVC NO.749/2011 BY THE COURT OF PRL. SENIOR CIVIL JUDGE AND ADDL. M.A.C.T, ATHANI AT ATHANI BY ALLOWING THIS APPEAL WITH COST IN THE ENDS OF JUSTICE AND EQUITY. IN MFA No.101911 OF2016BETWEEN: THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE, CLUB ROAD, BELAGAVI, R/BY ITS DULY CONSTITUTED ATTORNEY, THE NEW INDIA ASSURANCE CO.LTD, T.P.HUB SHRINATH COMPLEX, N.C.MARKET. HUBBALLI. …APPELLANT (BY SRI. G. N. RAICHUR, ADVOCATE) - 5 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS AND:

1. SRI. MUTTURAJ MADIWALAPPA GHARSHINGE, AGE37YEARS, OCC: DAILY WAGES LABOUR & AGRICULTURE, R/O. NANDI NAGAR BILGI, TQ: BILGI, DIST: BAGALKOT-587132, NOW AT ATHANI, DIST: BELAGAVI-590001.

2. SRI. ADVEPPA SAIDU BANDAGAR, AGE MAJOR, OCC: BUSINESS, R/O: SIDDHANATTH, TQ: JATH, DIST: SANGALI-416404.

3. THE MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., HAVING ITS OFFICE AT CLUB ROAD, BELAGAVI-590001.

4. TULASIDAS CHANNAPPA SOUDAGAR, AGE MAJOR, OCC: BUSINESS, R/O. PARAGAON GALLI, ATHANI, DIST: BELAGAVI-590001. …RESPONDENTS (BY SRI. R. R. MANE, ADV. FOR R3; SRI. HARISH MAIGUR, ADV. FOR R4; NOTICE TO R1 & R2 SERVED) THIS MFA IS FILED U/SEC.173(1) OF MOTOR VEHICLES ACT, PRAYING TO SET ASIDE THE

JUDGMENT

AND AWARD DATED3103.2016 PASSED IN MVC NO.750/2011 BY THE COURT OF PRL. SENIOR CIVIL JUDGE AND ADDL. M.A.C.T, ATHANI BY ALLOWING THIS APPEAL WITH COST IN THE ENDS OF JUSTICE AND EQUITY. IN MFA No.101912 OF2016BETWEEN: THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, CLUB ROAD, BELAGAVI, R/BY ITS DULY CONSTITUTED ATTORNEY, THE NEW INDIA ASSURANCE CO. LTD, T.P.HUB SHRINATH COMPLEX, N.C.MARKET, HUBBALLI.-580020.-. 6 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS …APPELLANT (BY SRI. G. N. RAICHUR, ADVOCATE) AND:

1. SRI. APPASAB S/O. MALAPPA ATHANIKAR, AGE42YEARS, OCC: DAILY WAGES LABOUR & AGRICULTURE, R/O. AGRANI HOSSATI, TQ: ATHANI, NOW AT PATAYAT GALLI, ATHANI, DIST: BELAGAVI-590001.

2. SRI. ADVEPPA SAIDU BANDAGAR, AGE MAJOR, OCC: BUSINESS, R/O. SIDDHANATTH, TQ: JATH, DIST: SANGALI.

3. THE MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., HAVING ITS OFFICE AT CLUB ROAD BELAGAVI-590001.

4. TULSIDAS CHANNAPPA SOUDAGAR, AGE MAJOR, OCC: BUSINESS R/O: PARAGAON GALLI, ATHANI, DIST: BELAGAVI-590001. …RESPONDENTS (BY SRI. R. R. MANE, ADV. FOR R3; SRI. HARISH MAIGUR, ADV. FOR R4; NOTICE TO R1 & R2 SERVED) THIS MFA IS FILED U/SEC.173(1) OF MOTOR VEHICLES ACT, PRAYING TO SET-ASIDE THE

JUDGMENT

AND AWARD DATED3103.2016 PASSED IN MVC NO.751/2011 BY THE COURT OF THE PRL. SENIOR CIVIL JUDGE AND ADDL. M.A.C.T, ATHANI BY ALLOWING THIS APPEAL WITH COST IN THE ENDS OF JUSTICE AND EQUITY. IN MFA No.101913 OF2016BETWEEN: THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE CO. LTD., - 7 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS DIVISIONAL OFFICE, CLUB ROAD, BELAGAVI, R/BY ITS DULY CONSTITUTED ATTORNEY THE NEW INDIA ASSURANCE CO.LTD, T.P.HUB SHRINATH COMPLEX, N.C.MARKET, HUBBALLI-580020. …APPELLANT (BY SRI. G. N. RAICHUR, ADVOCATE) AND:

1. SRI. HUSSAIN SAB S/O. MALIK MULLA, AGE47YEARS, OCC: DAILY WAGES LABOUR & AGRICULTURE, R/O: HALYAL, TQ: ATHANI, DIST: BELAGAVI-590001.

2. SRI. ADVEPPA SAIDU BANDAGAR, AGE MAJOR, OCC: BUSINESS, R/O. SIDDHANATTH, TQ: JATH, DIST: SANGALI-416404.

3. THE MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., HAVING ITS OFFICE AT CLUB ROAD, BELAGAVI-590001.

4. TULASIDAS CHANNAPPA SOUDAGAR, AGE MAJOR, OCC: BUSINESS, R/O: PARAGAON GALLI, ATHANI, DIST: BELAGAVI-590001. …RESPONDENTS (BY SRI. R. R. MANE, ADV. FOR R3; SRI. HARISH MAIGUR, ADV. FOR R4; NOTICE TO R1 & R2 SERVED) THIS MFA IS FILED U/SEC.173(1) OF MOTOR VEHICLES ACT, PRAYING TO SET ASIDE THE

JUDGMENT

AND AWARD DATED3103.2016 PASSED IN MVC NO.755/2011 BY THE COURT OF PRL. SENIOR CIVIL JUDGE AND ADDL. M.A.C.T, ATHANI BY ALLOWING THIS APPEAL WITH COST IN THE ENDS OF JUSTICE AND EQUITY.-. 8 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS IN MFA No.101914 OF2016BETWEEN: THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE, CLUB ROAD BELAGAVI, R/BY ITS DULY CONSTITUTED ATTORNEY THE NEW INDIA ASSURANCE CO.LTD T.P.HUB SHRINATH COMPLEX, N.C.MARKET, HUBBALLI-580020, …APPELLANT (BY SRI. G. N. RAICHUR, ADVOCATE) AND:

1. SRI. MALLAPPA BHIMAPPA GASTI, AGE42YEARS, OCC: DAILY WAGES LABOUR & AGRICULTURE, R/O. GOUSIDDAN MADDI, ATHANI, TQ: ATHANI, DIST: BELAGAVI-590001.

2. SRI. ADVEPPA SAIDU BANDAGAR, AGE MAJOR, OCC: BUSINESS, R/O. SIDDHANATTH, TQ: JATH, DIST: SANGALI.

3. THE MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., HAVING ITS OFFICE AT CLUB ROAD, BELAGAVI-590001.

4. SRI. TULASIDAS CHANNAPPA SOUDAGAR, AGE MAJOR, OCC: BUSINESS, R/O: PARAGAON GALLI, ATHANI, DIST: BELAGAVI-590001. …RESPONDENTS (BY SRI. R. R. MANE, ADV. FOR R3; SRI. HARISH MAIGUR, ADV. FOR R4; NOTICE TO R1 & R2 SERVED) THIS MFA IS FILED U/SEC.173(1) OF MOTOR VEHICLES ACT, PRAYING TO CALL FOR RECORDS HEAR THE PARTIES AND SET ASIDE THE

JUDGMENT

AND AWARD DATED3103.2016 PASSED IN MVC NO.753/2011 BY THE COURT OF THE COURT OF PRL. SENIOR - 9 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS CIVIL JUDGE AND ADDL. M.A.C.T, ATHANI AT ATHANI BY ALLOWING THIS APPEAL WITH COST IN THE ENDS OF JUSTICE AND EQUITY. IN MFA No.104164 OF2016BETWEEN: BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD., BY ITS MANAGER, HAVING ITS OFFICE AT CLUB ROAD, BELAGAVI, BY AUTHORIZED SIGNATORY. …APPELLANT (BY SRI. R. R. MANE, ADVOCATE) AND:

1. SRI. APPASAB S/O. MALAPPA ATHANIKAR, AGE ABOUT45YEARS, OCC. DAILY WAGE LABOUR AND AGRICULTURE, R/O. AGARANI, HOSSATTI, TAL. ATHANI, NOW AT PATAYAT GALLI, ATHANI, DIST. BELAGAVI-591304.

2. SRI. ADIVEPPA SAIDU BANDAGAR, AGE MAJOR, OCC. BUSINESS, R/O. SIDDHANATTH, TAL. JATH, DIST. SANGLI-416410.

3. SRI. TULASIDAS CHANNAPPA SOUDAGAR, AGE MAJOR, OC.C BUSINESS, R/O. PARAGAON GALLI, ATHANI, DIST. BELAGAVI-591304.

4. THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE CO.LTD., DIVISIONAL OFFICE AT CLUB ROAD, BELAGAVI-590001. RESPONDENTS (BY SRI. SANJAY KATAGERI, ADV. FOR R1; SRI. HARISH S. MAIGUR, ADV. FOR R3; SRI. G. N. RAICHUR, ADV. FOR R4; NOTICE TO R2 SERVED) - 10 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS THIS MFA IS FILED U/SEC.173(1) OF MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS, ALLOW THIS APPEAL AND SET ASIDE THE

JUDGMENT

AND AWARD DATED3103.2016 PASSED BY THE COURT OF PRINCIPAL SENIOR CIVIL JUDGE AND ADDL. M.A.C.T, ATHANI, IN MVC NO.751/2011 AND ETC. IN MFA No.104165 OF2016BETWEEN: BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD., BY ITS MANAGER, HAVING ITS OFFICE AT CLUB ROAD, BELAGAVI, BY ITS AUTHORIZED SIGNATORY. …APPELLANT (BY SRI. R. R. MANE, ADVOCATE) AND:

1. SRI. VADIRAJ ANANTRAO WALVEKAR, AGE ABOUT42YEARS, OCC. DAILY WAGE LABOUR AND AGRICULTURE, R/O. HALYAL, TAL. AHTANI, NOW AT R.B. VIJAPURE, VIDYANAGAR, ATHANI-591304.

2. SRI. ADIVEPPA SAIDU BANDAGAR, AGE MAJOR, OCC. BUSINESS, R/O. SIDDHANATTH, TAL. JATH, DIST. SANGLI-416410.

3. SRI. TULASIDAS CHANNAPPA SOUDAGAR, AGE MAJOR, OCC. BUSINESS, R/O. PARAGAON GALLI, ATHANI, DIST. BELAGAVI-591304.

4. THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE CO.LTD., DIVISIONAL OFFICE AT CLUB ROAD BELAGAVI-590001. …RESPONDENTS (BY SRI. SANJAY KATAGERI, ADV. FOR R1; SRI. HARISH MAIGUR, ADV. FOR R3; SRI. G. N. RAICHUR, ADV. FOR R4; NOTICE TO R2 SERVED) - 11 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS THIS MFA IS FILED U/SEC.173(1) OF MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS, ALLOW THIS APPEAL AND SET ASIDE THE

JUDGMENT

AND AWARD DATED3103.2016 PASSED BY THE COURT OF PRINCIPAL SENIOR CIVIL JUDGE AND ADDL. M.A.C.T, ATHANI, IN MVC NO.748/2011 AND ETC. IN MFA No.104166 OF2016BETWEEN: BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD., BY ITS MANAGER, HAVING ITS OFFICE AT CLUB ROAD, BELAGAVI, BY AUTHORIZED SIGNATORY. …APPELLANT (BY SRI. R. R. MANE, ADVOCATE) AND:

1. SRI. VENKATESH RAMAPPA CHALAWADI, AGE ABOUT40YEARS, OCC. LABOUR AND AGRICULTURE, R/O SIDDARTH NAGAR, ATHANI, DIST. BELAGAVI-591304.

2. SRI. ADIVEPPA SAIDU BANDAGAR, AGE MAJOR, OCC. BUSINESS, R/O. SIDDHANATTH, TAL. JATH-416410. DIST. SANGLI-416410.

3. SRI. TULASIDAS CHANNAPPA SOUDAGAR, AGE MAJOR, OCC. BUSINESS, R/O. PARAGAON GALLI, ATHANI-591304. DIST. BELAGAVI.

4. THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE CO.LTD., DIVISIONAL OFFICE AT CLUB ROAD BELAGAVI-590001. …RESPONDENTS (BY SRI. SANJAY KATAGERI, ADV. FOR R1; SRI. HARISH MAIGUR, ADV. FOR R3; SRI. G. N. RAICHUR, ADV. FOR R4; NOTICE TO R2 SERVED) - 12 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS THIS MFA IS FILED U/SEC.173(1) OF MOTOR VEHICLES ACT, PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE

JUDGMENT

AND AWARD DATED3103.2016 PASSED BY PRINCIPAL SENIOR CIVIL JUDGE AND ADDL. M.A.C.T, ATHANI, IN MVC NO.749/2011 AND ETC. IN MFA No.104167 OF2016BETWEEN: BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD., BY ITS MANAGER, HAVING ITS OFFICE AT CLUB ROAD, BELAGAVI, HEREIN REPRESENTED BY ITS AUTHORIZED SIGNATORY. …APPELLANT (BY SRI. R. R. MANE, ADVOCATE) AND:

1. SRI. MUTTURAJ MADIWALAPPA GHARSHINGE, AGE ABOUT37YEARS, OCC. DAILY WAGE LABOUR AND AGRICULTURE, R/O. NANDI NAGAR, BILAGUI, TAL. BILAGI, DIST. BAGALKOT, NOW AT ATHANI, DIST. BELAGAVI-591304.

2. SRI. ADIVEPPA SAIDU BANDAGAR, AGE MAJOR, OCC. BUSINESS, R/O. SIDDHANATTH, TAL. JATH-416410, DIST. SANGLI.

3. SRI. TULASIDAS CHANNAPPA SOUDAGAR, AGE MAJOR, OCC. BUSINESS, R/O. PARAGAON GALLI, ATHANI-591304, DIST. BELAGAVI.

4. THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE CO.LTD., DIVISIONAL OFFICE AT CLUB ROAD, BELAGAVI-590001. …RESPONDENTS (BY SRI. SANJAY KATAGERI, ADV. FOR R1; - 13 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS SRI. HARISH MAIGUR, ADV. FOR R3; SRI. G. N. RAICHUR, ADV. FOR R4; NOTICE TO R2 SERVED) THIS MFA IS FILED U/SEC.173(1) OF MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS, ALLOW THIS APPEAL AND SET ASIDE THE

JUDGMENT

AND AWARD DATED3103.2016 PASSED BY THE COURT OF PRINCIPAL SENIOR CIVIL JUDGE AND ADDL. M.A.C.T, ATHANI, IN MVC NO.750/2011 AND ETC. IN MFA No.No.104168 OF2016BETWEEN: BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD., BY ITS MANAGER, HAVING ITS OFFICE AT CLUB ROAD, BELAGAVI, BY ITS AUTHORIZED SIGNATORY. …APPELLANT (BY SRI. R. R. MANE, ADVOCATE) AND:

1. SRI. HUSSAINSAB S/O. MALIKSAB MULLA, AGE ABOUT47YEARS, OCC. LABOUR AND AGRICULTURE COOLI, R/O. HALYAL, TAL. ATHANI, DIST. BELAGAVI-591304.

2. SRI. ADIVEPPA SAIDU BANDAGAR, AGE MAJOR, OCC. BUSINESS, R/O. SIDDHANATTH, TAL. JATH, DIST. SANGLI-416410.

3. SRI. TULASIDAS CHANNAPPA SOUDAGAR, AGE MAJOR, OCC. BUSINESS, R/O. PARAGAON GALLI, ATHANI, DIST. BELAGAVI-591304.

4. THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE CO.LTD., DIVISIONAL OFFICE AT CLUB ROAD, BELAGAVI-590001.-. 14 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS …RESPONDENTS (BY SRI. SANJAY KATAGERI, ADV. FOR R1; SRI. HARISH MAIGUR, ADV. FOR R3; SRI. G. N. RAICHUR, ADV. FOR R4; NOTICE TO R2 SERVED) THIS MFA IS FILED U/SEC.173(1) OF MOTOR VEHICLES ACT, PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE

JUDGMENT

AND AWARD DATED3103.2016 PASSED BY THE COURT OF PRINCIPAL SENIOR CIVIL JUDGE AND ADDL. M.A.C.T, ATHANI, IN MVC NO.752/2011 AND ETC. IN MFA No.104169 OF2016BETWEEN: BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD., BY ITS MANAGER, HAVING ITS OFFICE AT CLUB ROAD, BELAGAVI, BY ITS AUTHORIZED SIGNATORY, …APPELLANT (BY SRI. R. R. MANE, ADVOCATE) AND:

1. SRI. MALLAPPA BHIMAPPA GASTI, AGE ABOUT42YEARS, OCC. DAILY WAGE LABOUR AND AGRICULTURE, R/O. GOUSIDDAN, MADDI, ATHANI, TAL. ATHANI, DIST. BELAGAVI-591304.

2. SRI. ADIVEPPA SAIDU BANDAGAR, AGE MAJOR, OCC. BUSINESS, R/O. SIDDHANATTH, TAL. JATH, DIST. SANGLI-416410.

3. SRI. TULASIDAS CHANNAPPA SOUDAGAR, AGE MAJOR, OCC. BUSINESS, R/O. PARAGAON GALLI, ATHANI, DIST. BELAGAVI-591304.

4. THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE CO.LTD., - 15 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS DIVISIONAL OFFICE AT CLUB ROAD, BELAGAVI-590001. …RESPONDENTS (BY SRI. SANJAY KATAGERI, ADV. FOR R1; SRI. HARISH MAIGUR, ADV. FOR R3; SRI. G. N. RAICHUR, ADV. FOR R4; NOTICE TO R2 SERVED) THIS MFA IS FILED U/SEC.173(1) OF MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS, ALLOW THIS APPEAL AND SET ASIDE THE

JUDGMENT

AND AWARD DATED3103.2016 PASSED BY THE COURT OF PRINCIPAL SENIOR CIVIL JUDGE AND ADDL. M.A.C.T, ATHANI, IN MVC NO.753/2011 AND ETC. IN MFA No.100409 OF2017BETWEEN: THE DIVISONAL MANAGER, THE NEW INDIA ASSURANCE COMPANY LIMITED, MADIVALE COMPLEX, CLUB ROAD, BELAGAVI, REPRESENTED BY ITS DULY CONSTITUTED ATTORNEY, THE NEW INDIA ASSURANCE COMPANY LIMITED, REGIONAL OFFICE, IIND FLOOR, KALBURGI-BHADRAPUR, INFINITY PINTO ROAD, HUBBALLI. …APPELLANT (BY SRI. G. N. RAICHUR, ADVOCATE) AND:

1. SMT. HARIPRIYA W/O. SHRIKANT JOSHI, AGE36YEARS, OCC: HOUSEHOLD WORK, R/O: NO.47, VIKRAMPUR, ATHANI, DIST: BELAGAVI.-590001.

2. KUMARI HARSHITA D/O. SHRIKANT JOSHI, AGE14YEARS, OCC: STUDENT, R/O: NO.47, VIKRAMPUR, ATHANI, DIST: BELAGAVI-590001.

3. KUMARI SUKRUTA D/O. SHRIKANT JOSHI, AGE9YEARS, OCC: NIL, R/O. NO.47, VIKRAMPUR, ATHANI, - 16 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS DIST: BELAGAVI. SINCE MINOR, REPRESENTED BY M/G AND NATURAL MOTHER RESPONDENT NO.1, SMT.HARIPRIYA.

4. SMT. RADHIKA W/O. KRISHNARAO JOSHI, SINCE DECEASED, REPRESENTED BY THE RESPONDENTS NOS. 1 TO3AS LEGAL REPRESENTATIVES.

5. SRI.TULSIDAS CHANNAPPA SOUDAGAR, AGE MAJOR, OCC: BUSINESS, R/O: PARAGAON GALLI, ATHANI, DIST: BELAGAVI-590001.

6. SRI ADIVEPPA S/O. SAIDU BANDAGER, AGE MAJOR, OCC: BUSINESS, R/O: SIDDANATH, TAL: JATH, DIST: SANGALI-416416.

7. THE DIVISIONAL MANAGER, BAJAJ ALLIANZ INSURANCE COMPANY LTD., R/O: MADIWALE COMPLEX, CLUB ROAD, BELAGAVI,-590001. …RESPONDENTS (BY SRI. CHETAN MUNNOLI, ADV. FOR R1 TO R3; SRI. R. R. MANE, ADV. FOR R7; NOTICE TO R5 AND R6 SERVED) THIS MFA IS FILED U/SEC.173(1) OF MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS, HEAR THE PARTIES AND SET ASIDE THE

JUDGMENT

AND AWARD DATED2909.2016 PASSED IN MVC NO.2343/2011 BY THE COURT OF THE PRL. SENIOR CIVIL JUDGE AND ADDL. M.A.C.T, ATHANI AT ATHANI BY ALLOWING THIS APPEAL WITH COST IN THE ENDS OF JUSTICE AND EQUITY. IN MFA No.103790/2022 BETWEEN: BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD., G. E. PLAZA, AIRPORT ROAD, - 17 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS YERWADE, PUNE-411006, BY ITS AUTHORIZED SIGNATORY. …APPELLANT (BY SRI. R. R. MANE, ADVOCATE) AND:

1. SRI.SAHADEV S/O. LAKKAPPA AWATI, AGE ABOUT46YEARS, OCC. PRIVATE SERVICE AND AGRICULTURE, R/O. SUTTATTI, TAL: ATHANI, DIST: BELAGAVI.

2. SRI. TULASIDAS S/O. CHANNAPPA SOUDAGAR, AGE MAJOR, OCC. BUSINESS, R/O. PARAGAON GALLI, ATHANI, DIST. BELAGAVI.

3. THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE CO.LTD., 87, MAHATMA GANDHI ROAD, FORT, MUMBAI-400001.

4. SRI. ADIVEPPA S/O. SAIDU BANDAGAR, AGED ABOUT76YEARS, OCC.AGRICULTURE, R/O. SIDDHANATTH, TAL. JATH-416410, DIST. SANGLI, MAHARASTRA STATE. …RESPONDENTS (BY SRI. G. N. RAICHUR, ADV. FOR R3; SRI. HARISH S. MAIGUR, ADV. FOR R2; NOTICE TO R1 & R4 SERVED) THIS MFA IS FILED U/SEC.173(1) OF MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS, ALLOW THIS APPEAL AND SET ASIDE THE

JUDGMENT

AND AWARD DATED0106.2022 PASSED BY THE COURT OF ADDITIONAL SENIOR CIVIL JUDGE AND JMFC & ADDITIONAL M.A.C.T, ATHANI, IN MVC NO.2696/2011 AND ETC. THESE APPEALS, COMING ON FOR

ORDER

S, THIS DAY,

JUDGMENT

WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT AND THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL - 18 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS ORAL

JUDGMENT

(PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL) The following appeals have been filed by New India Assurance Company Limited and Bajaj Allianz General Insurance Company Limited: Sl. MVC No.MFA filed by MFA filed by No.New India Bajaj Allianz Assurance Co. General Ltd. Insurance Co. Ltd.

1. 2343/2011 100409/2017 101563/2017 2. 748/2011 101909/2016 104165/2016 3. 749/2011 101910/2016 104166/2016 4. 750/2011 101911/2016 104167/2016 5. 751/2011 101912/2016 104164/2016 6. 752/2011 101913/2016 104168/2016 7. 753/2011 101914/2016 104169/2016 8. 2696/2011 103790/2022 These appeals are arising out of the judgments and awards dated 29.09.2016, 31.03.2016 and 01.06.2022 passed in the subject MVCs by the learned Principal Senior Civil Judge and Addl. MACT at Athani1.

2. Facts leading to the filing of these appeals are briefly stated: the legal heirs of the deceased and claimants- 1 ‘Tribunal’, for short - 19 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS injured have filed the aforesaid claim petitions under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the accidental death of one Sri. Shrikant Joshi, and others who were injured in a road accident dated 10.01.2011 on Athani road within the limits of Muragundi Village of Athani Taluk. It is averred that Trax Toofan vehicle i.e., Jeep bearing Reg.No.KA- 23-M-8277 with the inmates whilst coming from Gokarna to Athani, near Agrani of Muragundi Village on Athani - Kagawad road, the driver of Tractor bearing Reg.No.MH-10-S-5993 drove the same in a rash and negligent manner, so as to endanger human life, came from the opposite direction and dashed to the jeep. It is further averred that due to the impact of the accident, one of the inmates of the jeep died and others sustained grievous injuries to their vital parts of the body and they were treated in the Wanless Hospital, Miraj and due to the injuries suffered in the accident, some of the inmates suffered disability. They sought compensation.

3. Respondent-Owner of jeep bearing Reg. No.KA-23- M-8277 filed objections denying the contents of the claim petitions. It is averred that the driver of Trax Toofan was driving the vehicle in a moderate speed and it is the driver of - 20 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS the tractor, who was rash & negligent who caused the accident in question. It is further averred that the vehicle owned by him was duly insured with respondent-New India Insurance Company Ltd., and the policy was in force as on the date of accident and the driver of the jeep was holding valid and effective driving license. Hence, he had sought for the dismissal of the claim petitions.

4. The respondent-New India Assurance Company Ltd., (insurer of the jeep) filed written statement denying the contents of the claim petitions. It is averred that the accident was caused due to the negligence of driver of the tractor. It is further averred that the jeep insured with them was a private vehicle, but as on the date of accident, it was used for hire & reward by the deceased and other inmates of the vehicle to go to Sringeri. Hence, the insurer is not liable to pay any compensation. They sought for dismissal of the claim petition.

5. The respondent-Bajaj Allianz General Insurance Company Ltd., (insurer of the tractor) filed objections contending that the claim petition is not maintainable and sought for dismissal on the ground that the compensation - 21 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS claimed is exorbitant and without any basis. It is averred that the tractor bearing Reg. No.MH-10-S-5993 was not insured with Bajaj Allianz General Insurance Company Ltd., as on the date of accident. It is further averred that on behalf of the respondent-owner of the tractor, a cheque towards payment of premium was issued and pursuant to the said cheque, cover note/policy was also issued. However, the policy could not be effected, as the cheque issued towards the premium was dishonoured. Hence, they sought for dismissal of the claim petitions against them.

6. The Tribunal recorded the evidence of the parties. In MVC No.2343/2011, claimant No.1 examined herself as PW-1 and examined two other witnesses as PW2 and PW3 and got marked Exs.P1 to P41. The respondents examined RW-1 to RW-4 and got marked Exs.R1 to R29. In MVC.No.751/2011 and other connected MVCs, the claimants examined as PW-1 to PW- 10 and got marked Exs.P1 to P77 and respondents examined RW-1 to RW-4 and got marked Ex.R1 to R31. The Tribunal vide judgment dated 31.03.2016 has awarded different compensation to the claimants in MVC No.751/2011 and other connected MVCs and in MVC.No.2343/2011 awarded - 22 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS compensation of Rs.25,05,000/- (Death case). In MVC.No.2696/2011, the claimant examined two witnesses as PW-1 and PW-2 and got marked Exs.P1 to P127. The respondents examined RW-1 to RW-3 and got marked Exs.R1 to R19. The Tribunal has awarded compensation of Rs.4,13,547/- vide judgment dated 01.06.2022.

7. Sri. Ravindra R. Mane, learned counsel appearing for the Bajaj Allianz General Insurance Company Ltd., with vehemence contends that the Tribunal has committed a grave error in holding that the appellant-insurer is liable to pay the compensation without appreciating the fact that the cheque issued towards the payment of premium was dishonoured and no amount has been received from the owner of the tractor towards the policy issued in his favour. It is further submitted that immediately after the dishonour of the cheque, the appellant/insurer has sent notice to the owner of the tractor as well as the RTO intimating that the policy issued in favour of the owner of the tractor has been cancelled and after cancellation of policy, the accident has taken place. Hence, question of paying any compensation by the appellant/Insurer would not arise and he seeks to modify the impugned - 23 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS judgments and awards of the tribunal by exonerating the appellant-insurer from liability. He seeks to allow the appeals filed by Bajaj Allianz General Insurance Company Ltd.

8. Sri. G.N.Raichur, learned counsel appearing for the appellant-New India Assurance Company Ltd., strenuously contends that one Sri.Vadiraj Anantrao Walvekar, the claimant No.1 in MVC.No.748/2011 has stated before the Independent Surveyor that the vehicle bearing Reg. No.KA-23-M-8277 was used for hire by paying rent. His statement is marked as Ex.R1 before the Tribunal. It is submitted that when the vehicle is used for commercial purpose, the appellant-Insurance Company is not liable to pay any compensation as it is in violation of the condition of the policy. It is submitted that own damage claim submitted by the insurer was repudiated on the ground that the use of the vehicle was for hire & reward and is a violation of policy conditions, which was never challenged by the owner of the vehicle, which clearly demonstrates that the vehicle was used for commercial purpose. It is further submitted that the injured-claimants have continued to work in Athani Municipality even after the accident, hence, question of paying any compensation under the head of ‘loss of future - 24 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS income’ due to disability would not arise. He seeks to allow the appeals filed by New India Assurance Company Ltd., 9. Sri. Harish S Maigur, Sri. Chetan Munnoli, Sri. Sanjay S Katgeri, learned counsel representing the owner of the tractor, Toofan Trax and claimants support the impugned judgment and award of the Tribunal and submit that RW-1 owner of the Toofan Trax has clearly deposed before the Tribunal that the vehicle was given by him to visit Sringeri as the inmates were his friends and he has not received any rent for the same. Hence, there is no hire of vehicle in question. It is submitted that even if the cheque issued for premium is bounced, the Insurer is liable to pay the compensation and the Tribunal has rightly held the same, which needs no interference. Hence, they seek to dismiss the appeals by confirming the judgments and awards of the Tribunal.

10. We have heard the arguments of learned counsel representing the parties and meticulously perused the material available on record including the Tribunal records. The only point that arises for consideration in these appeals is, whether - 25 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS the impugned judgments and awards of the Tribunal call for any interference in the facts and circumstances of the case?.

11. The pleadings and evidence on record indicate that the legal heirs of deceased Srikanth Joshi filed a claim petition in MVC.No.2343/2011 and other claim petitions have been filed by the injured claimants. It is not in dispute that the inmates of vehicle bearing Reg.No.KA-23-M-8277 were proceeding from Gokarna to Athani and when the jeep in question reached near Muragundi Village, the driver of the tractor bearing Reg.No.MH- 10-S-5993 drove the same in a rash and negligent manner and dashed to the jeep from the opposite direction, resultantly the inmates of the jeep sustained grievous injuries to their vital parts and one of the inmates died. The Tribunal on appreciation of evidence has awarded total compensation of Rs.25,05,000/- to the legal heirs of the deceased Srikanth Joshi in MVC.No.2343/2011 vide judgment dated 29.09.2016. In MVC.No.2696/2011 vide judgment dated 01.06.2022, the Tribunal has awarded Rs.4,13,547/- and the Tribunal vide common judgment dated 31.03.2016 has awarded different - 26 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS compensation to the injured persons in MVC.No.751/2011 and other connected MVCs.

12. The Tribunal held that the drivers of both vehicles were rash & negligent and they caused the accident in question. The said finding of the Tribunal is based on the fact that the jurisdictional police after completion of the investigation have filed the charge sheet against both the drivers. The Tribunal further held that both the New India Assurance Company Ltd., and Bajaj Allianz General Insurance Company Ltd., are jointly and severally liable to pay the compensation. The said finding was recorded taking note of the aspect of negligence of the drivers of the vehicles involved in the accident as per the evidence on record. It is not in dispute that the negligence of the drivers of the offending vehicles has been proved by the claimants before the Tribunal. However, the question is, whether the insurer i.e., Bajaj Allianz General Insurance Company Ltd., is liable to pay compensation as ordered by the Tribunal, in view of the specific stance taken by the insurer that as on the date of accident the policy was not in force. In other words, the policy was cancelled by the insurer by sending legal notice to the owner of the tractor as well as - 27 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS the RTO2 soon after the dishonour of the cheque issued on behalf of the owner of the tractor towards payment of premium amount. This issue is no more res-integra. The Hon’ble Supreme Court in the case of United India Insurance Company Ltd. Vs. Laxmamma and Others3 at paragraph-19 held as under: “19. In our view, the legal position is this where the policy of insurance is issued by an authorized insurer on receipt of cheque towards payment of premium and such cheque is returned dishonoured, the liability of authorized insurer to indemnify third parties in respect of the liability which that policy covered subsists and it has to satisfy award of compensation by reason of the provisions of Sections 147 (5) and 149 (1) of the M.V.Act unless the policy of insurance is cancelled by the authorized insurer and intimation of such cancellation has reached the insured before the accident. In other words, where the policy of insurance is issued by an authorized insurer to cover a vehicle on receipt of the cheque paid towards premium and the cheque gets dishonored and before the accident of the vehicle occurs. Such insurance company cancels the policy of insurance and sends intimation thereof to the owner, the insurance company’s liability to indemnify the third parties which that policy covered ceases and the insurance company is not liable to satisfy awards of ” compensation in respect thereof.

13. The Hon’ble Supreme Court in the case of LAXMAMMA AND OTHERS supra has held that, the liability of 2 Regional Transport Officer 3 AIR2012SC2817- 28 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS authorized insurer to indemnify third parties in respect of liability which that policy covered subsists and it has to satisfy the award of compensation in view of provisions of Sections 147 (5) and 149 (1) of the M.V. Act, unless the policy of insurance is cancelled by the authorized insurer and intimation of such cancellation has been sent to the insured before the accident. However in the instant case, on behalf of the owner of the tractor, a cheque at Ex.R16 dated 25.05.2010 was issued in favour of the insurer- Bajaj Allianz General Insurance Company Ltd., towards the payment of premium amount. Based on the said cheque, the insurer has issued a policy, however, the said cheque came to be dishonored on 31.05.2010 and immediately, the insurer has sent legal notice to the owner of the tractor as well as RTO, as is evident from Exs.R20 and R22. The legal notices clearly indicate that the cheque issued on behalf of the owner of the tractor towards the premium was dishonoured for ‘want of funds’ and on receipt of the bank memo, the insurer has cancelled the policy issued in favour of the owner of the tractor. The said notice dated 08.06.2010 was served on the owner as well as the RTO. It is a settled law that the insurer even if it had issued a cover note or policy is entitled to cancel the policy - 29 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS if encashment of the cheque for premium fails. The concept of contract in essence envisages a proposal, acceptance and passing of consideration. In the absence of any consideration there can be no contract and that is all what is recognised by Section 64-VB of the Insurance Act, 1938. The insurer was justified in repudiating the contract and it has been done in time and soon after the cheque bounced. In this view of the matter, the question of indemnifying the owner of the tractor by the insurer would not arise, as the cancellation of policy is much prior to the date of accident in question. Our view gains further support from the Hon’ble Supreme Court decisions in NATIONAL INSURANCE CO. LTD. Vs SEEMA MALHOTRA AND OTEHRS4, and NATIONAL INSURANCE CO. LTD. Vs. BALKAR RAM AND OTEHRS5.

14. It would also be useful to refer to the relevant paragraphs of another decision of the Hon’ble Supreme Court in NEW INDIA ASSURANCE CO. LTD VS. RULA & OTHERS6, wherein it has been observed as under:

4. (2001)3 SCC1515 2013 SCC ONLINE SC5926 2000 (3) SCC195- 30 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS “ Thus the question has now to be considered as the same is the crux of the issue involved in this case. As pointed out earlier the insurance is a contract whereby one undertakes to indemnify another against loss, damage or liability arising from an unknown or contingent event and is applicable only to some contingency or act to occur in future. We have to consider how far the legislature has controlled the insurance business. Section 2(9) of the Insurance Act defines insurer, inter alia, as anybody corporate carrying on the business of insurance which is a body corporate incorporated under any law for the time being in force in India. Section 2(d) of the Act says that every insurer shall be subject to all the provisions of this Act in relation to any class of insurance business so long as his liabilities in India in respect of business of that class remain unsatisfied or not otherwise provided for. It is in the aforesaid context that we have to consider the impact of Section 64-VB of the Insurance Act. As sub-sections (1) and (2) of the said section alone are material for the purpose we extract them herein: (1) No insurer shall assume any risk in India in respect of any insurance business on which premium is not ordinarily payable outside India unless and until the premium payable is received by him or is guaranteed to be paid by such person in such manner and within such time as may be prescribed or unless and until deposit of such amount as may be prescribed, is made in advance in the prescribed manner. (2) For the purposes of this section, in the case of risks for which premium can be ascertained in advance, the risk may be assumed not earlier than the date on which the premium has been paid in cash or by cheque to the insurer. Sub-section (1) is not applicable to cases in which premium is ordinarily payable outside India. In other words, the insurer has no liability to the insured unless and until the premium payable is received by the insurer. As the premium can be paid in cash or by - 31 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS cheque, what is the position when the cheque issued to the insurer is dishonoured by the drawee bank?. Section 51,52 and 54 of the Indian Contract Act can profitably be referred to for the purpose of deciding the point. They are subsumed under the sub- title Performance of reciprocal promises in the said Act. Section 51 deals with a contract concerning reciprocal promises to be simultaneously performed and in such a contract the promisee is absolved from performing his promise unless the promisor is ready or willing to perform his part of the promise. Section 52 says that where the order in which reciprocal promises are to be performed has not been expressly provided in the contract such promise shall be performed in that order which the nature of the transaction warrants it. Illustration (b) given to Section 52 highlights the utility of the provision. That illustration is as follows: A and B contract that A shall make over his stock-in-trade to B at a fixed price, and B promise to give security for the payment of the money. As promise need not be performed until the security is given, for the nature of transaction requires that A should have security before he delivers up his stock. Section 54 of the Contract Act is to be read in that background. It is extracted below: When a contract consists of reciprocal promises, such that one of them cannot be performed, or that its performance cannot be claimed till the other has been performed, and the promisor of the promise last mentioned fails to perform it, such promisor cannot claim the performance of the reciprocal promise, and must make compensation to the other party to the contract for any loss which such other party may sustain by the non-performance of the contract. In a contract of insurance when an insurer gives a cheque towards payment of premium or part of the premium, such a contract consists of reciprocal promise. The drawer of the cheque promises the insurer that the cheque, on presentation, would yield the amount in cash. It cannot be forgotten that a - 32 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS cheque is a Bill of Exchange drawn on a specified banker. A Bill of Exchange is an instrument in writing containing an unconditional order directing a certain person to pay a certain sum of money to a certain person. It involves a promise that such money would be paid. Thus, when the insured fails to pay the premium promised, or when the cheque issued by him towards the premium is returned dishonoured by the bank concerned the insurer need not perform his part of the promise. The corollary is that the insured cannot claim performance from the insurer in such a situation. Under Section 25 of the Contract Act an agreement made without consideration is void. Section 65 of the Contract Act says that when a contract becomes void any person who has received any advantage under such contract is bound to restore it to the person from whom he received it. So, even if the insurer has disbursed the amount covered by the policy to the insured before the cheque was returned dishonoured, insurer is entitled to get the money back.

15. The Hon’ble Supreme Court in the aforesaid decisions has held that in the case of bouncing of cheque, liability of the Insurance Company to indemnify the claim is continuous, unless the insurer gives the intimation regarding the dishonour of cheque and the consequent cancellation of policy to the policy-holder before the date of accident in terms of Chapter XI of the Motor Vehicles Act, 1988, the provisions of the Indian Contract Act, 1872 and the Insurance Act, 1938. In view of the law laid down by the Hon’ble Supreme Court in the aforesaid judgments and our reasons referred in preceding - 33 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS paragraphs, the Insurance Company is liable to pay the compensation even in the case of dishonour of cheque and cancellation of policy, if the insurer fails to intimate the cancellation of policy to the owner of the vehicle and the authority under the MV Act i.e., RTO. However, in the instant case, the insurer has sent legal notice to the owner as well as RTO with regard to cancellation of policy in view of dishonour of cheque, much prior to the accident in question. Hence, we hold that the appellant-Bajaj Allianz General Insurance Company Ltd., is not liable to pay any compensation as ordered by the Tribunal.

16. The contention of the appellant-New India Assurance Company Ltd., that the vehicle was used for commercial purpose on hire cannot be accepted for the simple reason that the owner of the vehicle, RW-1 deposed before the Tribunal that the vehicle was given to his friend to visit Gokarna & Sringeri and while coming back, the accident took place and the vehicle was not lent on rent. A mere statement at Ex.R1 before the Valuer by one of the inmates that the vehicle was given on rent cannot be accepted as a gospel truth in the absence of any other corroborative evidence with regard to - 34 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS such statement. The first information given to the police marked as Ex.P1 does not indicate that the vehicle was used for commercial purpose. We have also meticulously perused the entire charge sheet material and oral testimonies of all the claimants and their cross examinations. The evidence on record does not indicate that the vehicle was used for commercial purpose. All the claimants in chorus have deposed before the Tribunal that the vehicle in question is of their friend and was taken to Gokarna and Sringeri, for which they have not paid any rent to the owner of the Jeep. Hence, considering the entire evidence on record, we are of the considered view that there is no merit in the contention urged by the Insurance Company that the vehicle was used for commercial purpose. Accordingly, we reject the said contention.

17. The next contention of the insurer is that the owner of the vehicle has not challenged the repudiation of his own damage claim by the insurer, which amounts to an admission that the vehicle was used for commercial purpose. The rejection of the own damage claim of the owner of the Jeep is not the subject matter of this appeal. Mere filing of an application by the owner of the jeep for own damage claim ipso - 35 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS facto would not amount to an admission of the owner of the jeep/vehicle that the vehicle was used for commercial purpose. To the contrary, the owner of the vehicle in question has deposed before the Tribunal that the vehicle was not given on rent. The Insurance Company has not produced any evidence nor was able to get any admission during the cross examination of the witness before the Tribunal to substantiate their contention with regard to the fact that the vehicle was used for commercial purpose. Hence, such contention has no merit consideration and accordingly, is rejected.

18. Sri G.N Raichur, learned counsel for the insurer further submitted that all the injured claimants have continued to work in Athani Municipality and award of ‘future loss of income due to disability’ would not arise. In view of such submissions, we have meticulously considered the pleadings and evidence on record and taking note of the doctor’s evidence, we are of the considered view that all the claimants have suffered grievous injuries and suffered certain extent of physical disability. The award of compensation by the Tribunal under the heads of pain and suffering, food and nourishment, loss of amenities and other conventional heads are on the lower - 36 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS side. There is a force in the submission of Sri. G.N.Raichur with regard to the entitlement of compensation under the head of loss of future income due to disability and accordingly, the said submission is accepted by holding that the claimants are not entitled to compensation under the head of permanent functional disability or the loss of future income due to disability. However, taking note of award of meager compensation by the Tribunal under the conventional heads and also keeping in mind the disability suffered by the claimants, their agony, pain and suffering, loss of happiness due to the accident in question, we are of the considered view that the interest of justice would be met if the award of compensation under the head of loss of future income awarded by the Tribunal is adjusted on other heads, where meager compensation is awarded. We undertake this exercise with an intention to award just and fair compensation to the injured claimants, which is an object of the MV Act 1988. We are also conscious of the fact that the injured claimants have not preferred any appeal seeking enhancement of the compensation, even though the amount of compensation awarded by the Tribunal is on the lower side on some of the - 37 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS heads. Keeping all these aspects in mind, we are of the considered opinion that the award of compensation by the Tribunal under the head of loss of future income due to disability is a small component of amount. Hence, we do not propose to modify the impugned judgment and award of the compensation under challenge.

19. We have already held that the appellant/Bajaj Allianz General Insurance Company is not liable to pay compensation. However, the Tribunal considering the evidence on record has held that both the tort-feasors, are equally responsible for the accident in question and liable to pay compensation. We are, therefore, of the considered view that the appellant/New India Assurance Company is liable to pay entire compensation in all the claim petitions and recover the same from the concerned tort-feasors. This view of ours gains support from the decision of the Hon’ble Supreme Court in KHENYEI VS. NEW INDIA ASSURANCE COMPANY LIMITED & OTHERS7 . The Hon’ble Supreme Court held that when a composite negligence is proved, both tort-feasors are liable to pay compensation jointly and severally and the entire 7 (2015) 9 SCC273- 38 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS compensation can be awarded against the sole tort-feasors. In view of the said decision of the Hon’ble Supreme Court, we direct the New India Assurance Company to pay compensation and we reserve liberty to recover the same from the concerned tort-feasors.

20. For the aforementioned reasons, we proceed to pass the following:

ORDER

a) MFA Nos.101563/2017, 104165/2016, 104166/2016, 104167/2016, 104164/2016, 104168/2016, 104169/2016 and 103790/2022 filed by Bajaj Allianz General Insurance Company Limited are allowed. b) MFA Nos.100409/2017, 101909/2016, 101910/2016, 101911/2016, 101912/2016, 101913/2016, 101914/2016 filed by the New India Assurance Company limited are dismissed. c) The appellant/New India Assurance Company Limited is directed to pay entire compensation amount to the claimants, within a period of six weeks from the date of receipt of certified copy of this judgment.-. 39 - NC:

2024. KHC-D:11979-DB MFA No.101563 of 2017 C/W MFA No.101909 of 2016 MFA No.101910 of 2016 & 12 OTHERS d) It is made clear that the liberty is reserved in favour of the appellant/New India Assurance Company Limited to recover the amount paid to the claimants from the concerned tort- feasors. e) The amount deposited by New India Assurance Company before this Court shall be transmitted to the Tribunal forthwith along with TCR. f) The amount deposited by the Bajaj Allianz General Insurance Company is ordered to be refunded to it. g) It is made clear that impugned judgments and awards insofar as quantum of compensation is unaltered. h) Draw modified award accordingly. i) No costs. Pending interlocutory applications, if any, are disposed off as not surviving for consideration. Sd/- (KRISHNA S.DIXIT) JUDGE Sd/- (VIJAYKUMAR A.PATIL) JUDGE ABK/JTR List No.:

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