Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors - Court Judgment

Excerpt:

Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 123]
Code Context
                                    }

                                //highest occurence of word in the judgement

                                echo $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['judgement']))), $query) . "</div>";
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232939',
			'acts' => null,
			'appealno' => 'MFA 200139/2018',
			'appellant' => 'Dilip S/o Vithal Jadhav',
			'authreffered' => null,
			'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Kalaburagi',
			'court_type' => 'HC',
			'decidedon' => '2020-10-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
			'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Nitin Jain And Ors',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'dilip-s-o-vithal-jadhav-vs-nitin-jain',
	'args' => array(
		(int) 0 => '1232939',
		(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
	)
)
$title_for_layout = 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232939',
		'acts' => null,
		'appealno' => 'MFA 200139/2018',
		'appellant' => 'Dilip S/o Vithal Jadhav',
		'authreffered' => null,
		'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Kalaburagi',
		'court_type' => 'HC',
		'decidedon' => '2020-10-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
		'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Nitin Jain And Ors',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
$args = array(
	(int) 0 => '1232939',
	(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
)
$url = 'https://sooperkanoon.com/case/amp/1232939/dilip-s-o-vithal-jadhav-vs-nitin-jain'
$ctype = ' High Court'
include - APP/View/Case/amp.ctp, line 123
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 123]
Code Context
                                    }

                                //highest occurence of word in the judgement

                                echo $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['judgement']))), $query) . "</div>";
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232939',
			'acts' => null,
			'appealno' => 'MFA 200139/2018',
			'appellant' => 'Dilip S/o Vithal Jadhav',
			'authreffered' => null,
			'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Kalaburagi',
			'court_type' => 'HC',
			'decidedon' => '2020-10-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
			'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Nitin Jain And Ors',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'dilip-s-o-vithal-jadhav-vs-nitin-jain',
	'args' => array(
		(int) 0 => '1232939',
		(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
	)
)
$title_for_layout = 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232939',
		'acts' => null,
		'appealno' => 'MFA 200139/2018',
		'appellant' => 'Dilip S/o Vithal Jadhav',
		'authreffered' => null,
		'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Kalaburagi',
		'court_type' => 'HC',
		'decidedon' => '2020-10-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
		'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Nitin Jain And Ors',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
$args = array(
	(int) 0 => '1232939',
	(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
)
$url = 'https://sooperkanoon.com/case/amp/1232939/dilip-s-o-vithal-jadhav-vs-nitin-jain'
$ctype = ' High Court'
include - APP/View/Case/amp.ctp, line 123
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

1 in the high court of karnataka kalaburagi bench r dated this the7h day of october2020present the hon’ble mr. justice s.sunil dutt yadav and the hon’ble mr. justice p. krishna bhat miscellaneous first appeal no.200139/2018 (mv) between: dilip s/o vithal jadhav aged:23. years occ: music band musician & mason (goundi, now nil) r/o h.no.7-102 ishwar nagar, kaikadi galli basavakalyan now residing at vidya nagar colony jewargi, dist: gulbarga (now r/o h.no.5/383, brahmapur gulbarga)-585101 … appellant (by sri sanjeev patil, advocate) and:1. nitin jain s/o bheru lal jain age: major, occ: owner of lorry no.rj/06/ga/3535 r/o biles t.p. nagar, bhilwara rajasthan-311001 2 2. cholamandalam m.s. gen. insurance co. ltd. regional officer, i floor v.a. kalaburagi square desai cross, deshpande.....

Judgment:

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232939',
			'acts' => null,
			'appealno' => 'MFA 200139/2018',
			'appellant' => 'Dilip S/o Vithal Jadhav',
			'authreffered' => null,
			'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Kalaburagi',
			'court_type' => 'HC',
			'decidedon' => '2020-10-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
			'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Nitin Jain And Ors',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'dilip-s-o-vithal-jadhav-vs-nitin-jain',
	'args' => array(
		(int) 0 => '1232939',
		(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
	)
)
$title_for_layout = 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232939',
		'acts' => null,
		'appealno' => 'MFA 200139/2018',
		'appellant' => 'Dilip S/o Vithal Jadhav',
		'authreffered' => null,
		'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Kalaburagi',
		'court_type' => 'HC',
		'decidedon' => '2020-10-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
		'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Nitin Jain And Ors',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
$args = array(
	(int) 0 => '1232939',
	(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
)
$url = 'https://sooperkanoon.com/case/amp/1232939/dilip-s-o-vithal-jadhav-vs-nitin-jain'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:',
	(int) 1 => '<p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:',
	(int) 2 => '<p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:',
	(int) 3 => '<p>3. ',
	(int) 4 => 'JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.',
	(int) 5 => '<p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.',
	(int) 6 => '<p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.',
	(int) 7 => '<p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.',
	(int) 8 => '<p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.',
	(int) 9 => '<p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.',
	(int) 10 => '<p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:',
	(int) 11 => '<p>10. ',
	(int) 12 => 'ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk',
	(int) 13 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 14
$i = (int) 0
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232939',
			'acts' => null,
			'appealno' => 'MFA 200139/2018',
			'appellant' => 'Dilip S/o Vithal Jadhav',
			'authreffered' => null,
			'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Kalaburagi',
			'court_type' => 'HC',
			'decidedon' => '2020-10-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
			'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Nitin Jain And Ors',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'dilip-s-o-vithal-jadhav-vs-nitin-jain',
	'args' => array(
		(int) 0 => '1232939',
		(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
	)
)
$title_for_layout = 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232939',
		'acts' => null,
		'appealno' => 'MFA 200139/2018',
		'appellant' => 'Dilip S/o Vithal Jadhav',
		'authreffered' => null,
		'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Kalaburagi',
		'court_type' => 'HC',
		'decidedon' => '2020-10-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
		'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Nitin Jain And Ors',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
$args = array(
	(int) 0 => '1232939',
	(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
)
$url = 'https://sooperkanoon.com/case/amp/1232939/dilip-s-o-vithal-jadhav-vs-nitin-jain'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:',
	(int) 1 => '<p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:',
	(int) 2 => '<p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:',
	(int) 3 => '<p>3. ',
	(int) 4 => 'JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.',
	(int) 5 => '<p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.',
	(int) 6 => '<p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.',
	(int) 7 => '<p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.',
	(int) 8 => '<p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.',
	(int) 9 => '<p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.',
	(int) 10 => '<p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:',
	(int) 11 => '<p>10. ',
	(int) 12 => 'ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk',
	(int) 13 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 14
$i = (int) 1
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232939',
			'acts' => null,
			'appealno' => 'MFA 200139/2018',
			'appellant' => 'Dilip S/o Vithal Jadhav',
			'authreffered' => null,
			'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Kalaburagi',
			'court_type' => 'HC',
			'decidedon' => '2020-10-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
			'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Nitin Jain And Ors',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'dilip-s-o-vithal-jadhav-vs-nitin-jain',
	'args' => array(
		(int) 0 => '1232939',
		(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
	)
)
$title_for_layout = 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232939',
		'acts' => null,
		'appealno' => 'MFA 200139/2018',
		'appellant' => 'Dilip S/o Vithal Jadhav',
		'authreffered' => null,
		'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Kalaburagi',
		'court_type' => 'HC',
		'decidedon' => '2020-10-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
		'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Nitin Jain And Ors',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
$args = array(
	(int) 0 => '1232939',
	(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
)
$url = 'https://sooperkanoon.com/case/amp/1232939/dilip-s-o-vithal-jadhav-vs-nitin-jain'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:',
	(int) 1 => '<p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:',
	(int) 2 => '<p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:',
	(int) 3 => '<p>3. ',
	(int) 4 => 'JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.',
	(int) 5 => '<p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.',
	(int) 6 => '<p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.',
	(int) 7 => '<p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.',
	(int) 8 => '<p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.',
	(int) 9 => '<p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.',
	(int) 10 => '<p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:',
	(int) 11 => '<p>10. ',
	(int) 12 => 'ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk',
	(int) 13 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 14
$i = (int) 2
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232939',
			'acts' => null,
			'appealno' => 'MFA 200139/2018',
			'appellant' => 'Dilip S/o Vithal Jadhav',
			'authreffered' => null,
			'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Kalaburagi',
			'court_type' => 'HC',
			'decidedon' => '2020-10-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
			'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Nitin Jain And Ors',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'dilip-s-o-vithal-jadhav-vs-nitin-jain',
	'args' => array(
		(int) 0 => '1232939',
		(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
	)
)
$title_for_layout = 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232939',
		'acts' => null,
		'appealno' => 'MFA 200139/2018',
		'appellant' => 'Dilip S/o Vithal Jadhav',
		'authreffered' => null,
		'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Kalaburagi',
		'court_type' => 'HC',
		'decidedon' => '2020-10-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
		'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Nitin Jain And Ors',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
$args = array(
	(int) 0 => '1232939',
	(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
)
$url = 'https://sooperkanoon.com/case/amp/1232939/dilip-s-o-vithal-jadhav-vs-nitin-jain'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:',
	(int) 1 => '<p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:',
	(int) 2 => '<p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:',
	(int) 3 => '<p>3. ',
	(int) 4 => 'JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.',
	(int) 5 => '<p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.',
	(int) 6 => '<p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.',
	(int) 7 => '<p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.',
	(int) 8 => '<p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.',
	(int) 9 => '<p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.',
	(int) 10 => '<p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:',
	(int) 11 => '<p>10. ',
	(int) 12 => 'ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk',
	(int) 13 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 14
$i = (int) 3
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

3.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232939',
			'acts' => null,
			'appealno' => 'MFA 200139/2018',
			'appellant' => 'Dilip S/o Vithal Jadhav',
			'authreffered' => null,
			'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Kalaburagi',
			'court_type' => 'HC',
			'decidedon' => '2020-10-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
			'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Nitin Jain And Ors',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'dilip-s-o-vithal-jadhav-vs-nitin-jain',
	'args' => array(
		(int) 0 => '1232939',
		(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
	)
)
$title_for_layout = 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232939',
		'acts' => null,
		'appealno' => 'MFA 200139/2018',
		'appellant' => 'Dilip S/o Vithal Jadhav',
		'authreffered' => null,
		'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Kalaburagi',
		'court_type' => 'HC',
		'decidedon' => '2020-10-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
		'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Nitin Jain And Ors',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
$args = array(
	(int) 0 => '1232939',
	(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
)
$url = 'https://sooperkanoon.com/case/amp/1232939/dilip-s-o-vithal-jadhav-vs-nitin-jain'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:',
	(int) 1 => '<p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:',
	(int) 2 => '<p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:',
	(int) 3 => '<p>3. ',
	(int) 4 => 'JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.',
	(int) 5 => '<p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.',
	(int) 6 => '<p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.',
	(int) 7 => '<p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.',
	(int) 8 => '<p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.',
	(int) 9 => '<p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.',
	(int) 10 => '<p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:',
	(int) 11 => '<p>10. ',
	(int) 12 => 'ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk',
	(int) 13 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 14
$i = (int) 4
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

JUDGMENT

Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232939',
			'acts' => null,
			'appealno' => 'MFA 200139/2018',
			'appellant' => 'Dilip S/o Vithal Jadhav',
			'authreffered' => null,
			'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Kalaburagi',
			'court_type' => 'HC',
			'decidedon' => '2020-10-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
			'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Nitin Jain And Ors',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'dilip-s-o-vithal-jadhav-vs-nitin-jain',
	'args' => array(
		(int) 0 => '1232939',
		(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
	)
)
$title_for_layout = 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232939',
		'acts' => null,
		'appealno' => 'MFA 200139/2018',
		'appellant' => 'Dilip S/o Vithal Jadhav',
		'authreffered' => null,
		'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Kalaburagi',
		'court_type' => 'HC',
		'decidedon' => '2020-10-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
		'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Nitin Jain And Ors',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
$args = array(
	(int) 0 => '1232939',
	(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
)
$url = 'https://sooperkanoon.com/case/amp/1232939/dilip-s-o-vithal-jadhav-vs-nitin-jain'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:',
	(int) 1 => '<p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:',
	(int) 2 => '<p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:',
	(int) 3 => '<p>3. ',
	(int) 4 => 'JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.',
	(int) 5 => '<p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.',
	(int) 6 => '<p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.',
	(int) 7 => '<p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.',
	(int) 8 => '<p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.',
	(int) 9 => '<p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.',
	(int) 10 => '<p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:',
	(int) 11 => '<p>10. ',
	(int) 12 => 'ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk',
	(int) 13 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 14
$i = (int) 5
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232939',
			'acts' => null,
			'appealno' => 'MFA 200139/2018',
			'appellant' => 'Dilip S/o Vithal Jadhav',
			'authreffered' => null,
			'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Kalaburagi',
			'court_type' => 'HC',
			'decidedon' => '2020-10-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
			'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Nitin Jain And Ors',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'dilip-s-o-vithal-jadhav-vs-nitin-jain',
	'args' => array(
		(int) 0 => '1232939',
		(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
	)
)
$title_for_layout = 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232939',
		'acts' => null,
		'appealno' => 'MFA 200139/2018',
		'appellant' => 'Dilip S/o Vithal Jadhav',
		'authreffered' => null,
		'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Kalaburagi',
		'court_type' => 'HC',
		'decidedon' => '2020-10-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
		'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Nitin Jain And Ors',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
$args = array(
	(int) 0 => '1232939',
	(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
)
$url = 'https://sooperkanoon.com/case/amp/1232939/dilip-s-o-vithal-jadhav-vs-nitin-jain'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:',
	(int) 1 => '<p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:',
	(int) 2 => '<p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:',
	(int) 3 => '<p>3. ',
	(int) 4 => 'JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.',
	(int) 5 => '<p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.',
	(int) 6 => '<p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.',
	(int) 7 => '<p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.',
	(int) 8 => '<p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.',
	(int) 9 => '<p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.',
	(int) 10 => '<p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:',
	(int) 11 => '<p>10. ',
	(int) 12 => 'ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk',
	(int) 13 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 14
$i = (int) 6
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232939',
			'acts' => null,
			'appealno' => 'MFA 200139/2018',
			'appellant' => 'Dilip S/o Vithal Jadhav',
			'authreffered' => null,
			'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Kalaburagi',
			'court_type' => 'HC',
			'decidedon' => '2020-10-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
			'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Nitin Jain And Ors',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'dilip-s-o-vithal-jadhav-vs-nitin-jain',
	'args' => array(
		(int) 0 => '1232939',
		(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
	)
)
$title_for_layout = 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232939',
		'acts' => null,
		'appealno' => 'MFA 200139/2018',
		'appellant' => 'Dilip S/o Vithal Jadhav',
		'authreffered' => null,
		'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Kalaburagi',
		'court_type' => 'HC',
		'decidedon' => '2020-10-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
		'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Nitin Jain And Ors',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
$args = array(
	(int) 0 => '1232939',
	(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
)
$url = 'https://sooperkanoon.com/case/amp/1232939/dilip-s-o-vithal-jadhav-vs-nitin-jain'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:',
	(int) 1 => '<p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:',
	(int) 2 => '<p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:',
	(int) 3 => '<p>3. ',
	(int) 4 => 'JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.',
	(int) 5 => '<p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.',
	(int) 6 => '<p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.',
	(int) 7 => '<p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.',
	(int) 8 => '<p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.',
	(int) 9 => '<p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.',
	(int) 10 => '<p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:',
	(int) 11 => '<p>10. ',
	(int) 12 => 'ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk',
	(int) 13 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 14
$i = (int) 7
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232939',
			'acts' => null,
			'appealno' => 'MFA 200139/2018',
			'appellant' => 'Dilip S/o Vithal Jadhav',
			'authreffered' => null,
			'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Kalaburagi',
			'court_type' => 'HC',
			'decidedon' => '2020-10-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
			'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Nitin Jain And Ors',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'dilip-s-o-vithal-jadhav-vs-nitin-jain',
	'args' => array(
		(int) 0 => '1232939',
		(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
	)
)
$title_for_layout = 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232939',
		'acts' => null,
		'appealno' => 'MFA 200139/2018',
		'appellant' => 'Dilip S/o Vithal Jadhav',
		'authreffered' => null,
		'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Kalaburagi',
		'court_type' => 'HC',
		'decidedon' => '2020-10-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
		'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Nitin Jain And Ors',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
$args = array(
	(int) 0 => '1232939',
	(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
)
$url = 'https://sooperkanoon.com/case/amp/1232939/dilip-s-o-vithal-jadhav-vs-nitin-jain'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:',
	(int) 1 => '<p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:',
	(int) 2 => '<p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:',
	(int) 3 => '<p>3. ',
	(int) 4 => 'JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.',
	(int) 5 => '<p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.',
	(int) 6 => '<p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.',
	(int) 7 => '<p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.',
	(int) 8 => '<p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.',
	(int) 9 => '<p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.',
	(int) 10 => '<p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:',
	(int) 11 => '<p>10. ',
	(int) 12 => 'ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk',
	(int) 13 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 14
$i = (int) 8
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232939',
			'acts' => null,
			'appealno' => 'MFA 200139/2018',
			'appellant' => 'Dilip S/o Vithal Jadhav',
			'authreffered' => null,
			'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Kalaburagi',
			'court_type' => 'HC',
			'decidedon' => '2020-10-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
			'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Nitin Jain And Ors',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'dilip-s-o-vithal-jadhav-vs-nitin-jain',
	'args' => array(
		(int) 0 => '1232939',
		(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
	)
)
$title_for_layout = 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232939',
		'acts' => null,
		'appealno' => 'MFA 200139/2018',
		'appellant' => 'Dilip S/o Vithal Jadhav',
		'authreffered' => null,
		'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Kalaburagi',
		'court_type' => 'HC',
		'decidedon' => '2020-10-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
		'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Nitin Jain And Ors',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
$args = array(
	(int) 0 => '1232939',
	(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
)
$url = 'https://sooperkanoon.com/case/amp/1232939/dilip-s-o-vithal-jadhav-vs-nitin-jain'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:',
	(int) 1 => '<p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:',
	(int) 2 => '<p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:',
	(int) 3 => '<p>3. ',
	(int) 4 => 'JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.',
	(int) 5 => '<p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.',
	(int) 6 => '<p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.',
	(int) 7 => '<p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.',
	(int) 8 => '<p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.',
	(int) 9 => '<p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.',
	(int) 10 => '<p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:',
	(int) 11 => '<p>10. ',
	(int) 12 => 'ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk',
	(int) 13 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 14
$i = (int) 9
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232939',
			'acts' => null,
			'appealno' => 'MFA 200139/2018',
			'appellant' => 'Dilip S/o Vithal Jadhav',
			'authreffered' => null,
			'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Kalaburagi',
			'court_type' => 'HC',
			'decidedon' => '2020-10-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
			'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Nitin Jain And Ors',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'dilip-s-o-vithal-jadhav-vs-nitin-jain',
	'args' => array(
		(int) 0 => '1232939',
		(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
	)
)
$title_for_layout = 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232939',
		'acts' => null,
		'appealno' => 'MFA 200139/2018',
		'appellant' => 'Dilip S/o Vithal Jadhav',
		'authreffered' => null,
		'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Kalaburagi',
		'court_type' => 'HC',
		'decidedon' => '2020-10-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
		'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Nitin Jain And Ors',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
$args = array(
	(int) 0 => '1232939',
	(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
)
$url = 'https://sooperkanoon.com/case/amp/1232939/dilip-s-o-vithal-jadhav-vs-nitin-jain'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:',
	(int) 1 => '<p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:',
	(int) 2 => '<p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:',
	(int) 3 => '<p>3. ',
	(int) 4 => 'JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.',
	(int) 5 => '<p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.',
	(int) 6 => '<p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.',
	(int) 7 => '<p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.',
	(int) 8 => '<p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.',
	(int) 9 => '<p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.',
	(int) 10 => '<p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:',
	(int) 11 => '<p>10. ',
	(int) 12 => 'ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk',
	(int) 13 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 14
$i = (int) 10
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232939',
			'acts' => null,
			'appealno' => 'MFA 200139/2018',
			'appellant' => 'Dilip S/o Vithal Jadhav',
			'authreffered' => null,
			'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Kalaburagi',
			'court_type' => 'HC',
			'decidedon' => '2020-10-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
			'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Nitin Jain And Ors',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'dilip-s-o-vithal-jadhav-vs-nitin-jain',
	'args' => array(
		(int) 0 => '1232939',
		(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
	)
)
$title_for_layout = 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232939',
		'acts' => null,
		'appealno' => 'MFA 200139/2018',
		'appellant' => 'Dilip S/o Vithal Jadhav',
		'authreffered' => null,
		'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Kalaburagi',
		'court_type' => 'HC',
		'decidedon' => '2020-10-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
		'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Nitin Jain And Ors',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
$args = array(
	(int) 0 => '1232939',
	(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
)
$url = 'https://sooperkanoon.com/case/amp/1232939/dilip-s-o-vithal-jadhav-vs-nitin-jain'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:',
	(int) 1 => '<p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:',
	(int) 2 => '<p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:',
	(int) 3 => '<p>3. ',
	(int) 4 => 'JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.',
	(int) 5 => '<p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.',
	(int) 6 => '<p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.',
	(int) 7 => '<p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.',
	(int) 8 => '<p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.',
	(int) 9 => '<p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.',
	(int) 10 => '<p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:',
	(int) 11 => '<p>10. ',
	(int) 12 => 'ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk',
	(int) 13 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 14
$i = (int) 11
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

10.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232939',
			'acts' => null,
			'appealno' => 'MFA 200139/2018',
			'appellant' => 'Dilip S/o Vithal Jadhav',
			'authreffered' => null,
			'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Kalaburagi',
			'court_type' => 'HC',
			'decidedon' => '2020-10-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
			'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Nitin Jain And Ors',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'dilip-s-o-vithal-jadhav-vs-nitin-jain',
	'args' => array(
		(int) 0 => '1232939',
		(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
	)
)
$title_for_layout = 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232939',
		'acts' => null,
		'appealno' => 'MFA 200139/2018',
		'appellant' => 'Dilip S/o Vithal Jadhav',
		'authreffered' => null,
		'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Kalaburagi',
		'court_type' => 'HC',
		'decidedon' => '2020-10-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
		'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Nitin Jain And Ors',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
$args = array(
	(int) 0 => '1232939',
	(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
)
$url = 'https://sooperkanoon.com/case/amp/1232939/dilip-s-o-vithal-jadhav-vs-nitin-jain'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:',
	(int) 1 => '<p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:',
	(int) 2 => '<p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:',
	(int) 3 => '<p>3. ',
	(int) 4 => 'JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.',
	(int) 5 => '<p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.',
	(int) 6 => '<p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.',
	(int) 7 => '<p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.',
	(int) 8 => '<p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.',
	(int) 9 => '<p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.',
	(int) 10 => '<p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:',
	(int) 11 => '<p>10. ',
	(int) 12 => 'ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk',
	(int) 13 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 14
$i = (int) 12
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

ORDER

The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232939',
			'acts' => null,
			'appealno' => 'MFA 200139/2018',
			'appellant' => 'Dilip S/o Vithal Jadhav',
			'authreffered' => null,
			'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Kalaburagi',
			'court_type' => 'HC',
			'decidedon' => '2020-10-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
			'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Nitin Jain And Ors',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'dilip-s-o-vithal-jadhav-vs-nitin-jain',
	'args' => array(
		(int) 0 => '1232939',
		(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
	)
)
$title_for_layout = 'Dilip S O Vithal Jadhav Vs Nitin Jain and ors - Citation 1232939 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232939',
		'acts' => null,
		'appealno' => 'MFA 200139/2018',
		'appellant' => 'Dilip S/o Vithal Jadhav',
		'authreffered' => null,
		'casename' => 'Dilip S/o Vithal Jadhav Vs. Nitin Jain And Ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Kalaburagi',
		'court_type' => 'HC',
		'decidedon' => '2020-10-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND P.KRISHNA BHAT',
		'judgement' => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:</p><p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:</p><p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:</p><p>3. </p>JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.</p><p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.</p><p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.</p><p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.</p><p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.</p><p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.</p><p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:</p><p>10. </p>ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Nitin Jain And Ors',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
$args = array(
	(int) 0 => '1232939',
	(int) 1 => 'dilip-s-o-vithal-jadhav-vs-nitin-jain'
)
$url = 'https://sooperkanoon.com/case/amp/1232939/dilip-s-o-vithal-jadhav-vs-nitin-jain'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE7H DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE P. KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO.200139/2018 (MV) Between: Dilip S/o Vithal Jadhav Aged:',
	(int) 1 => '<p>23. years Occ: Music band Musician & Mason (Goundi, now nil) R/o H.No.7-102 Ishwar Nagar, Kaikadi Galli Basavakalyan Now residing at Vidya Nagar Colony Jewargi, Dist: Gulbarga (Now R/o H.No.5/383, Brahmapur Gulbarga)-585101 … Appellant (By Sri Sanjeev Patil, Advocate) And:',
	(int) 2 => '<p>1. Nitin Jain S/o Bheru Lal Jain Age: Major, Occ: Owner of Lorry No.RJ/06/GA/3535 R/o Biles T.P. Nagar, Bhilwara Rajasthan-311001 2 2. Cholamandalam M.S. Gen. Insurance Co. Ltd. Regional Officer, I Floor V.A. Kalaburagi Square Desai Cross, Deshpande Nagar Hubli-580029 Represented by its Regional Manager 3. Deepak S/o Manohar Age: Major, Occ: Owner of Piaggo Auto No.KA394583 R/o H.No.24/56, Eshwar Nagar Basavakalyan, Dist: Bidar-585401 4. United India Insurance Co. Ltd., Divisional Office, Dr. Jawali Complex Super Market, Gulbarga-585101 Represented by its Divisional Manager … Respondents (By Sri Subhash Mallapur, Advocate for R2; Sri Manvendra Reddy, Advocate for R4; Notice to R1 & R3 dispensed with V/o dated 7.10.2020) This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988, praying to modify the Judgment & Award dated 01.09.2017 passed by the I-Additional Senior Civil Judge & MACT at Kalaburagi in MVC No.765/2012 and to allow the appeal and award the compensation as prayed in the claim petition holding the liability against the respondents No.1, 2 and 4. This appeal coming on for orders this day, P.Krishna Bhat J., delivered the following:',
	(int) 3 => '<p>3. ',
	(int) 4 => 'JUDGMENT<p> Sri Sanjeev Patil, learned counsel for the appellant files a memo seeking dispensation of notice to respondent Nos.1 & 3. Memo is allowed and notice to respondent Nos.1 & 3 is dispensed with. Even though this matter is listed for orders, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.',
	(int) 5 => '<p>2. This is a claimant’s appeal calling in question the correctness of the Judgment & Award dated 01.09.2017 in MVC No.765/2012 by the learned I-Additional Senior Civil Judge and MACT, Kalaburagi. In the nature of the dispute raised in the appeal, we feel it unnecessary to refer to the facts of the case in detail.',
	(int) 6 => '<p>3. Claim petition was filed on the allegation that on 10.07.2011 while the claimant was proceeding in auto rickshaw bearing Reg.No.KA-39/4583 from 4 Kurkota to Basavakalyan with musical instruments at about 6.00 p.m., when the vehicle reached near Navadagi village, on account of rash and negligent driving of the auto rickshaw, it dashed to a truck bearing Reg.No.RJ-06/GA-3535 which was parked by the side of the road, resulting in serious injuries to the claimant-appellant, which led to amputation of his left leg below the knee.',
	(int) 7 => '<p>4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the 5 appellant places reliance on the observations of the Hon’ble Supreme Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC558 5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections 122 & 126 of the Motor Vehicles Act, 1988.',
	(int) 8 => '<p>6. A perusal of the judgment and award impugned herein shows that learned Tribunal, on appreciation of the evidence, has come to the conclusion that accident in question had taken place at 6.00 p.m. 6 on 10.07.2011 which obviously would indicate that there was enough daylight at the time of the accident. The injured claimant has examined himself as PW-1 who is an eyewitness. Learned Tribunal has also placed reliance on the charge sheet which is at Ex.P-3. The respondents have not taken any steps to examine either the driver of the offending auto rickshaw or the driver of the truck involved in the accident. In that view of the matter, since the finding of the learned Tribunal being based upon the evidence placed before it, no fault could be found with the view which it has taken that the accident has resulted on account of rash and negligent driving of the offending auto rickshaw by its driver. Therefore, we uphold the said finding and reject the contention of the learned counsel for the respondent No.4 herein in this behalf.',
	(int) 9 => '<p>7. The offending auto rickshaw undoubtedly had a valid permit to ply within the limits of Town 7 Municipality of Humnabad. The accident had taken place outside the said jurisdiction and in the neighbouring district Kalaburagi. The law is fairly well settled to the effect that whenever there is violation of the policy conditions by the insured, not involving playing fraud upon the Insurer, the Insurer cannot avoid its primary obligation of satisfying the award, albeit, with the right to recover the same subsequently from the owner of the offending vehicle. It is necessary to refer to the observations of the Hon’ble Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and 8 proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the 9 principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.',
	(int) 10 => '<p>8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3. Hence, the following:',
	(int) 11 => '<p>10. ',
	(int) 12 => 'ORDER<p> The appeal is allowed. In modification of the direction in the award, respondent No.4 shall in the first instance satisfy the award amount with interest thereon and thereafter shall recover the same from respondent No.3 in accordance with law. Respondent No.4 shall deposit the award amount with interest thereon within a period of eight weeks from the date of receipt of certified copy of the judgment. SD/- JUDGE SD/- JUDGE swk',
	(int) 13 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 14
$i = (int) 13
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109