(Prayer: This MFA is filed under Section 173(1) of the Motor Vehicles Act 1988, against the judgment and award dated 30.11.2012 passed in MVC No.193/2009 on the file of III-Addl. Senior Civil Judge and MACT, Dharwad, dismissing the petition filed under Sec.166 of Motor Vehicles Act & etc.)

CAV Judgment

1. Challenging judgment and award dated 30.11.2012 passed by III Additional Senior Civil Judge and M.A.C.T., Dharwad (for short, 'Tribunal') in MVC no.193/2009, this appeal is filed.

2. As per claimants at 10.45 a.m. on 15.07.2007, when Mohammed Rafiq was travelling in Maxi Cab no.KA-25/B-118 from Taggihalli to Savanuru, driver drove it in rash and negligent manner and dashed against road side tree causing accident, resulting in death of Mohammed Rafiq. Alleging loss of dependency on account of his untimely death, his parents filed claim petition under Section 166 of Motor Vehicles Act, 1988 (for short 'MV Act') against owner and insurer of vehicle.

3. Despite service of notice, owner did not appear and was placed ex-parte. Only insurer opposed claim on all counts. Based on pleadings, Tribunal framed issues and recorded evidence. Claimant no.1 and another deposed as PWs.1 and 2 and got marked Exs.P1 to P17. Respondent - insurer examined its official as RW.1 and got marked Exs.R1 and R2.

4. On consideration, Tribunal dismissed claim petition, leading to this appeal.

5. It was submitted, in same accident, there were others, who had sustained injuries and filed separate claim petitions. Copies of judgment and award in said petitions were obtained and got marked herein. In said petitions, insurer had contested plea of claimants that accident occurred due to rash and negligent driving by driver of insured vehicle. On consideration, Tribunal had rejected contention and held insurer liable to pay compensation. Said finding had also attained finality. Having acquiesced in said finding, insurer would be estopped from contending to contrary in present claim petition. It was submitted awards in connected matters were produced as Exs.P9 to P14. In view of above, finding of Tribunal dismissing claim petition would be justified and prayed for allowing appeal.

6. On other hand, Sri Nagaraj C. Kalloori, learned counsel for respondent no.2 - insurer opposed appeal. It was submitted that there is no dispute about accident in question having been caused due to rash and negligent driving of Maxi Cab by deceased Mohammed Rafiq without having driving license. It was submitted, police after investigation had filed abated charge sheet against deceased herein. Even in connected cases, Tribunal having held driving of insured vehicle by its driver was rash and negligent manner and noting fact that injured were third parties, held insurer liable to pay same to claimants and thereafter recover it from insured. But in instant case, claim petition is by very same driver. Therefore, claimants cannot escape said finding. On said grounds sought for dismissal of appeal.

7. Heard learned counsel, perused impugned judgment, award and record.

8. From above, points that arise for consideration are,

          (i) Whether Tribunal erred in dismissing claim petition against insurer?

          (ii) If not, what is compensation claimants would be entitled for?

Point no.(i):

9. From above, it is seen that this appeal is by claimants challenging dismissal of claim petition. As noted above, sole reason for dismissal of claim petition was that police after investigation had filed charge sheet against deceased Mohammed Rafiq.

10. Sole contention urged by learned counsel for claimants was about insurer taking identical contentions in other claim petitions arising out of same accident in which insurer herein was held liable to pay compensation, which was accepted by it and estopping it from contending to contrary in this case.

11. Though, Exs.P9 to 14 would implicate insurer to pay compensation to claimants in other claim petitions arising out of same accident, claimants therein were third parties and as per decision of Hon'ble Supreme Court, in case of accident caused involving insured vehicle, insurer cannot avoid liability insofar as third parties. Unlike in instant case, claim petition is filed by parents of deceased Mohammed Rafiq. Since claim petition herein is filed under Section 166 of MV Act, same would be tenable only in case of actionable negligence of a person other than claimant or victim, present claim petition would not sustain in law, and rightly dismissed. Consequently, point no.(i) is answered negative. In view of same, point no.(ii) would not survive for consideration. Hence following:

ORDER

          Appeal is dismissed.