Karnataka High Court
Rukmini W/O Rakesh Madgal vs Siddappa S/O Raghunath Ranga And Anr on 12 July, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
-1-
NC: 2023:KHC-K:5296
RP No. 200054 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REVIEW PETITION NO.200054 OF 2021
BETWEEN:
RUKMINI
W/O RAKESH MADGAL,
AGE. 46 YEARS,
OCC. HOUSEHOLD,
R/O. H.NO.19-6-285,
SHIVA NAGAR BIDAR,
NOW AT PLOT NO.141,
KARUNESHWAR NAGAR,
KALABURAGI-585 102.
...PETITIONER
(BY SRI. JIDAGE KAILASH. C,ADVOCATE)
Digitally
signed by
SACHIN AND:
Location:
HIGH
COURT OF 1. SIDDAPPA
KARNATAKA
S/O RAGHUNATH RANGA,
AGE. YEARS,
OCC. JEEP OWNER,
R/O. ADARSH COLONY,
LATUR (M.S.),
NOW AT VENKATESH FURNITURE HALWAYL
COMPLEX, AMBEDKAR CIRCLE,
BIDAR - 585 401.
2. THE MANAGER
UNITED INDIA INSURANCE CO. LTD PUNE,
-2-
NC: 2023:KHC-K:5296
RP No. 200054 of 2021
THROUGH ITS DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
JEWALI COMPLEX,
SUPER MARKET,
KALABURAGI - 585 101.
...RESPONDENTS
THIS RP FILED U/S. 114 R/W U/O 47 RULE 1 OF THE
CPC, PRAYING TO RECALLING ORDER DATED 22.12.2020 AND
MODIFY THE JUDGMENT AND AWARD PASSED IN
MFA No.30659/2013 DATED 22.12.2020 AND DIRECT THE
INSURANCE COMPANY TO DEPOSIT THE AWARD AMOUNT AND
RECOVER THE SAME FROM THE OWNER OF THE VEHICLE I.E.,
PAY AND RECOVER IN THE INTEREST OF JUSTICE.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This review petition is filed seeking to review the order dated 22.12.2020 passed in MFA.No.30659/2013 and modify the judgment and award passed in the appeal and direct the Insurance Company to deposit the award amount and recover the same from the owner of the vehicle and that it is the prayer of the review petitioner to make an order of pay and recovery.
-3-
NC: 2023:KHC-K:5296 RP No. 200054 of 2021
2. This Court has passed the order on 22.12.2020 and disposed of the appeals, thereby the judgment and award passed by the Tribunal was modified to the extent that the Insurance Companies are exonerated from payment of compensation by fixing the liability on the owner of the vehicle, where the insurance policy is Liability only policy/Act policy, an extra or additional premium is not paid covering risk of pillion rider on the motorcycle and occupants in the private car. The other appeals filed by the claimants were dismissed.
3. The point for consideration involved in the appeal is as follows:
"Whether the claimants who are occupants in the private car/jeep and pillion rider on the motorcycle met with an accident and have sustained injuries/death occurred in the road traffic accident and where the insurance policy is 'Act Policy/Liability Only Policy', in the absence of payment of extra or additional premium of covering the risk of pillion rider on the motorcycle and -4- NC: 2023:KHC-K:5296 RP No. 200054 of 2021 occupants in the private car/jeep, are entitled for compensation from the Insurance Company?"
4. It was held that where the insurance policy is Liability Only Policy/Act Policy/Statutory Policy, the pillion rider on the motorcycle and occupants in the private car/jeep are not third parties and if extra or additional premium is not paid covering the risk of pillion rider on the motorcycle and occupants in the private car/jeep as above stated under the Act Policy/Liability Only Policy/Statutory Policy, then the Insurance Company is not liable to indemnify the owner and accordingly, liability is fixed on the owner of the vehicle.
5. It was also made clear that, even though, insurance policy is the Act Policy/Statutory Policy/Liability Only Policy and if extra or additional premium is paid covering the risk of pillion rider on the motorcycle and occupants in the private car/jeep, then the Insurance Company is liable to indemnify the owner and pay -5- NC: 2023:KHC-K:5296 RP No. 200054 of 2021 compensation. This is the law laid down in the judgment following the principle of law laid down by the Hon'ble Supreme Court in catena of decisions discussed therein. It is the contention of the review petitioner/claimant that the order of pay and recovery can be made. Therefore, the review petition is filed for modification of the judgment to pass the order of pay and recovery.
6. Under the provisions of Motor Vehicle Act, the statutory protection is made to protect the interest of third parties only. Even though, there is violation of conditions of policy as per Sub-section (2) of Section 149 of Motor Vehicle Act and if it is established the defence successfully, then the Insurance Company is liable to be exonerated, but by virtue of Sub-sections (1), (5), (7) of Section 149 of Motor Vehicle Act, an order of pay and recovery can be made as per the interpretation made and principle of law laid down by the Hon'ble Supreme Court in the cases of PAPPU AND OTHERS -Vs- VINOD KUMAR LAMBA AND -6- NC: 2023:KHC-K:5296 RP No. 200054 of 2021 ANOTHER1; NATIONAL INSURANCE COMPANY LIMITED VS. SWARAN SINGH AND OTHERS 2 and also as per the full bench decision of this Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED VS. YELLAVVA AND ANOTHER3 and in many other judgments, an order of pay and recovery can be made, only under the circumstances enumerated under Section (2) of Section 149 of Motor Vehicle Act. Therefore, fundamentally, the legislature has made provision under the Motor Vehicle Act for protection of right and interest of third party, wherein the Insurance Company is to be exonerated from payment of compensation. Therefore, it is made clear that in the case of successful establishment of violation of conditions of policy under the circumstances enumerated under Sub-section (2) of Section 149 of Motor Vehicle Act, it is the statutory right given to third parties, even though, the Insurance Company is exonerated, but 1 (2018) 3 SCC 208 2 (2004) 3 SCC 297 3 2020 ACJ 2560 -7- NC: 2023:KHC-K:5296 RP No. 200054 of 2021 shall satisfy claim towards third parties, then recover from owner of offending motor vehicle.
7. But where the claimants are not third parties, they are not entitled for the benefit of order of pay and recovery. Therefore, two conditions are applicable for entitling the benefit of pay and recovery namely (i) the claimant must be third party and (ii) violation of conditions under the insurance policy as enumerated under Sub-section (2) of Section 149 of Motor Vehicle Act. But in the present case, admittedly, the claimant is not third party as he is the pillion rider on the motorcycle and occupant in the private car/jeep. As per the principle of law laid down by the Hon'ble Supreme Court in the above stated judgments, therefore, an order of pay and recovery cannot be made in the present case, therefore, the review petition is misconceived. Hence, it is liable to be dismissed.
-8-
NC: 2023:KHC-K:5296 RP No. 200054 of 2021
8. There are three conditions enumerated for reviewing the order/judgment as enumerated under Section 114 and under Order XLVII Rule 1 of Code of Civil Procedure. Fundamentally, there should be an error apparent on the face of the record in the judgment for reviewing the order/judgment, but the review petitioner/claimant has not made out as to what is the error apparent on the face of the record and simply their prayer is to make an order of pay and recovery and nothing else. Therefore, on this ground also, the review petition is liable to be dismissed. Hence, I proceed to pass the following ORDER i. The review petition is dismissed.
ii. In view of dismissal of review petition, all the pending I.As., shall stand dismissed.
Sd/-
JUDGE PB List No.: 19 Sl No.: 4