Karnataka High Court
M/S Oriental Insurance Co Ltd vs Kenchamma on 28 February, 2011
Author: D.V.Shylendra Kumar
Bench: D.V.Shylendra Kumar
ee (By. Sr) Chandrashekar P. Patil, Adv} Ne a" IN THE HIGH COURT OF RARNATARKA CIRCUIT BENCH > AT DHARWAD ts DATED THIS THE 281! Day OF FEBRUARY 20; 1° BEFORE THE HON BLE MR.JUSTICE py. SHY LENDRA KUMAR . M.F.A. NO. 135C6/2007 (Mv) C/W M.F.A.13507/ 2007 (NEV): BETWEEN: M/S ORIENTAL INSURANCE COMLTB BY ITS DIVISIONAL MANAGER. © BELLARY, REPRESENTED BY REGIONAL MANAGER, LEO COMPLEX. © W4/45, RESIDENCY-ROAD, Me BANGALORE 25. 0 . Moe Appellant (BY Sri. Shashank S. Hegde. Advocate for Sri Shrikanth J Bhat, Advocate) AND I KENCHAMMA w (GKANAKAPPA AGED FS- YEARS, HOUSEHOLD & COOLIE "RYA KU RKRANOOR VILLAGE. TO: YELBURGA KROPPAL DISTRICT. SRI MALLANGASAB. S/O IMAM SAB. YELBURGA ~ OWNER GP BAJAJ TEMPO BEARING NO KA-37 (3685 ~ R/O MANGALORE T OYELBURGA _ KROPPAL DIST. Roe Respondents
THIS APPEAL IS FILED U/S. 173{i} OF MV ACY a [988 AGAINST THE Ju DOMENT AND AWARD DATED 20, G72. 2OO7 PASSED IN MVE NO.S20/2006 ON THE PILE on OF bake MEMBER, ADDL. MACT AND PRESIDING OFFL¢ SERS FAST. TRACK COURT. I. KOPPAL, AWARDING COMPE} NSATIO x OF. £23, 000/- ALONG WITH INTEREST OF AT THE RATE OR 68 PLA.) FROM THE DATE OF PETITION FP. ITS DEPG Su MLPA. NO. 13507/ 2007 (MV) BETWEEN:
M/S ORIENTAL INSURANCE CO LTD, BY rs DIVISIONAL MANAG; :
BELLARY REPRESENTED By REGIONAL MANAGER, LEC COMPLEX :
44/45, RESIDENCY ROAD, , BANGALORE.25. , fn 3 Appellant (By Sri. Shashank S. Hegde on 'Advocate. for Sri Shrikar th J Bhat, Advocate AND
1. HOLIYAMMA.
W/O DEW APD A MOORARANI AGED 20 YEARS 'ocy LTE, R/O. HIREBIDNAL VILL AGE, TO; YELBURGA, . KOPPAL DISTRICT,
2. SRI. MALAI GASAB, "So LhLAM > SAB YELBURGA Ow NER OFF. BASSAI TEMPO BEARING NOE KA-37 /3685, R/O MANGA \LORE TQ: YELBURGA.
~ KOPPAL DIST.
ma - Respondents By Sei &l chandrashekur P. Patil for RI. Adv} . THIS APPEAL IS FILED USS. 173¢1) OF my ACT [988 AGAINST THE JUDGMENT AND aw ARD DATED oO 07: 2007 BAasED | IN MVC NO.S31/2006 ON THE FILE OF THE MEMBER, ADDL. MACT AND PRESIDING OFFICER fast +
i) PRACK COURT-IL. KOPPAL, AWARDING COMPENSATION OF £20,000/- ALONG WITH INTEREST OF AT THE RATE CGF 4%, PA. PROM THE DATE OF PETITION TILL ITS DEPOSIT. = > THESE APPEALS COMING FOR ORDERS ON THis | DAY, COURT DELIVERED THE POLLOWING: 0 08 :
JUDGMENT | The present appeals reveal the careless and - negligent manner of functioning of the appeliant M/s Oriental Insurance. Company. Limited, Bellary Branch, who has . preferred : "these appeals fegality of the order and award questioning the passed by the Member, Addl. M.A.C.T. & P.O, Fast Track Court, Koppal iy MVC. No. 520/2006 and M.V.C. No. 521/2006 dated 20.07.2007 awarding a compensation in 9 sum of t23,000/- and 20,000/- fespectively in favour of first respondent In both the © appeals, ontending that the Insurance Company ever when had no lability to pay any amouat, Particularly as the first respondent in M FA. "No, £3506 /2007 Was an unauthorized we, passenger In a goods vehicle, the insurance de Company though has covered the risk of the ow rer of the goods vehicle the terms of the policy doés net:
cover such risk nor the statutory provisions create» y a lability on the insurance com pany and the [ne award be set aside.
2. The main ground of attack.én the award of the Tribunal, proceed on the premise _the claimant when IS an unauthorized passe iger. travelling in the goods vehiclé causing the aeciden t, the Tribunal by Overlooking and in -eéontrav ention of the passed any award in legal posit io nh. cé ul ad x favour o f suc h "a nou Tha uth Srize d passenger, that the inisuira ne é Co mpa hn y Wiad no liability to cover the risk: ° ia a "8 Ww ne a : o respect of such a nm unauthorized t "passenger and-therefore the award i8 to be set aside.
8.0. These appeals are listed today before the ~f€oeurt for orders due to the reason of tt insurance Company not Having taken necessary steps to ensure that the second respondeire- owner.
in both the appeals was served with the-ietice of. the present appeals.
been +. These two appeals though ~had net admitted, notice had been diected to bé-issued to the respondents. While the owne? is either not served or the insurance 'company has rot made sufficient efforts "ta, ensure. "that the owner is served, who is no Yther than the customer of the appellant- insurance: company. Respective claimant is the first respondent in both the appeals and is represented by Sri Chandrashekar P-. Patil.
5. As-the appellant is not very serious in effecting _ service ef Court notice on the second respondent- the-owner of the vehicle, | have heard Sri Shashank "Hegde, learned counsel for appellant-Insurance . Company and Sri Chandrashekar P, Patil, learned ' Poa sepa RES SESS é counsel for the respective first respondent in beth the appeals, with the second respondent: in both © the appeals being not present before the Court.
6. Sri Shashank Heede, learned counsel "for - appellant has made SUDMissions onthe very lines of the legal ground urged as-in the memorandum of appeal and has also submitted: that the insurance company had sought the permission of the Tribunal to defend the ciaims, as the owner had not filed any statement; that Statements had been filed on behalf of the insurance company anid it had been contended thiat in "respect OF unauthorized passengers the Insurance company has na ability:
that, ail the clatite ants are unauthorized passengers cand therefore : they are not entitled for any "eompensation from the nmsurance company.
f& tm. this regard Mr. Hegde has drawn omy
-cattémtion to the statement of objections that Had an oo & ~ . , ee oe ] ac been filed by the Insurance Com pany before "the Tripbunal and also te ExX.PLI-F LER, incident taking place and as from the readin x0 f the PR. lodged by one Kari iveer Gr 7 ap a 80 a . of Mariveerappa Talwar, who claim st on ave . t ne Ss ed the incident being caused due to ; the ras sh and negligent driving on ihe part ofthe driver of the goods vehicle bearing . reg, No, A237 / 3685 and because of th a t venicle p i ough n e 1 n to a procession which was cat. th e ostoze" of | disbursal after observance ont ne "occasion of Moharram being observed ab K uidr emo thi . The observations are norm ally with a ; large p articipation of devotees and ag a Fesu li. many were injured including some of whom, were inside the goods venicle. Specific attention. is drawn to the name figuring at Si. No. 14 al list of persons injured, which contains "thename of Kenchamma, first respondent in MF A, J NG. 13506/ 2007 as a passenger in the goods reer sie vehicle and therefore the award on Favour > of Kenchamma is concerned, is Hable to be set-aside. .
8. Sri Shashank H egde, has- very vehem ently:
contended that though the amcaint is hot & Ven huge or substantial amount™=.but not, a "meager amountin a sum of ¥ 42,0007" Tin sur ance Company AS the iS rlevertheless perusing "tne Matte question of lability. is in it? so far as the insurance ¢ cmp any iS concerne d, when th ere 1s absolut ely" ne : abi | i te W b e th ¢ r contractual or statutory, 4 he. Tri b ts re al © ony 7d not have passed the award against the InsuFance Com pany also and even assunting that owner of the vehicle was liable 7 tO make good the award, the insu ance company 'can net be comade jain tly liable to p ay the "compensation amount quantified by the Tribunal. Go On the other han d, Sri Chandrashekhar Pp a yoy Fed oe ee yeel far Fleet epaenamrimen oO omy tds Pati, learned counsel for first respondent in both NEES U } the appeals points out that the very defence taken in the written Statement is a4 general, Jonni bus" Nature of defence and nat with reference. to the - facts of the Particular case. A common, statement of objections had been filed in respect ar. eight claims filed by persons who had claimed that they got injured in the very accident and irrespective of the nature of the claim put forth by the claimants, the Insurance company -having filed a stereotyped objections and. making" thai. to. be the common defence which Insurance Company nas taken in all eight claims. defence "abt based on the facts or the merits of the particular case, but as a casual] general defence and with the plea being vague and unspecific, canna: be accepted as a proper plea for the defence 'pleaded with reference to each claim of mo consequence at all and when that Was, the specific case of the claimant and supported by. the» material on record, the Tribunal proceéding. to ~ quantify the damages for the Injures. suffered bythe claimant is a Proper and justified. course of action and that the contention urged on behalf cof the Insurance Company is totally untenable,
12. Mr. Pati} Submitted that the. bogie of no liability in respect Of an-tinautherized passenger in a goods vehicle is mechanically raised only to deprive the claimant of her Just compensation which she is Btherwise entitled to In law but the lrigurance _ Company bv mnisteading ard misrepresenting before the Court that the claimant owas an unauthorized Passenger in the goods vehicle and therefore not entitled te any compensation in law 'whereas Int fact the claimant's case itself was that. she was present on the road and therefore the + submission is totally irrelevant. misieading .and deserves to be rejected,
13. T have bestowed my attention. to _the-
Submissions made at the bar, perused: ihe pleadings, the defence by the learned counsel for the parties and also iooked into: the material part Of the evidence on which specie reliarice Is placed by the insurance company.
14. An PAIR, if at all is an information report by any person before a Police officer In charge of a Potice Station to bring to the notice of the Police Officer, an incident. which Can indicate an offence wi chin the scape of Penal Code and to cause further me enquiry and astion ir 80 Warranted. An F.IR. is not in the nature of Sworn statement by any person leave alone any person directly involved and it can = be at the instance of third person also. An FI R,
- enables a Station House Officer or Pofice Officer to 47"
Be ad indicative of cognizable offence. Mere descriptien of a report recorded by the persen in ¢ harge of the"
Police Station is not evidene e per say Of othe cae incident but may be, has some e videntiary value lin the context of the prosecuy tion-case, uftimately if it results in filing of a "charge sheet before the competent Court. In facron re is seen that it is né¢ Jrecessarily indi@ative of b eing lodged by a 'person 'claim ng he was travelli ne cae, inside the. gonds vehicle mor does it indicate that the claimant.Kenchatnina-was tray elling inside the vehicle causing avcident but it only shows that she sf the person who were injured.
"iS. On. the.other hand. the specific plea of the imant in MLPA. No. 13566 /2007 was that she Was "a. roadside person and just because the msurance comp any purs up a pDlanket irrelevant take cognizance on the basis of PUL. if dtis RS SSS EES ES EEN EO SS Ga l4 defence such as that the claimants: are Unauthorized passengers, it does not Mean trey >.
have made good their case,
16. In fact if the insurance company is putting up. such a speciai defence, the "burden was on the insurance company 40 have proved" that the claimant was not a road side person but was an unauthorized passenger. travelling "in the goods vehicle and therefore, she ~~ not entitled for ariy com pensation. The Insurance "Company has not made any efforts inthis direction but has rested content with the vague general plea, which it has adonted, in-common Im respect of all claimants.
17. "On the's ther h and on perusal of the order and "award it is found that the Tribunal has examined eact claimant's case on merits and the very fact that tne Tribunal in the case of the claim petition, ooresulting in an appeal by the very Insurance Company against the award made jn favour. of another claimant by name Hollvamma in MoV, Na."
fa 9321/2006, who had herself stated that she Was a Passenger, has made a clear distinction white Passing the award and while has quantified the compensation which that injured person can claim, has nevertheless directed the Instirance Company only to make payment in: the first in stance but has reserved liberty to the surance company to claim rembursemen b from che owner and this very clearly points that the' Tribunal in faet has made a conscious drstinetion- between those persons who were roadside Persons who got injured due te the 800ds vehicthe running into them and persons who . themselves have. stated that they were travelling "inside the vehicle and therefore the liability was not fastened on the Insurance Company in contravention of law as 18 sought to be made out by . the. insurance Company, but had been examined z s a ~ ye la and answered depending on the merits of .each claim.
IS. It is the Insurance Company: which on the:
other hand has without any application of mind, in . a casual careless manner "that has preferred appeals. In all matters" the appellant has submitted that it has no Hiabilicy and is taking up ail sorts of untenable cantankerous grounds in the appeal and "it "iS most ° unfortunate that the appellant insurance 'company, a Nationalised Institution, which js-meaiit to protect the interest of the insured and the victims, is by taking up such untenable, frivolous 'and cantankerous stand. has been virtually depriving the victims of the motor vehicle accident, the meager compensation Which the persons. 'are otherwise entitled to, under the 7
19. On the other hand the Insurance Company on the pretext of no ability has while depositing oniy » 90"5 of the amount as quantified by the Pribunal,, even that amount is not disbursed to the Claimant.
but the amount is left languishing in the. Court an d is of no benefit to any person, leave alone the Injured-claimants and. this, Virteadly defeats the legislation for providing. speedy ° remedy to the victims of accidents involving use of motor vehicles GN public roads. Such tendency on the part of the insuran ce company requires to be deprecated in the strongest of words and deserves to be discouraged.
29. 1n the appeal by the Insurance in the case of Smt. Holivamma in M.F.A. No. 13507 /2007, the Fribunal, is more than justified in passing the "award and directing the Insurance Company to first pay othe -compensation amount and then seek reimbursement from the owner, later, and there js SER PS 1s nothing improper in this COuUrse of action, even as IS SUggested and indicated by the Sy preme Court in a good number of decided cases and therefore. while there is absolutely no need to mterfere in exercise of the appellate Jurisdiction " this: Court othe appeals are to be dismissed. vth "commensurate Costs,
21. Insu rance Company to. make 200d the amount as awarded by the. Tribunal in favour of the claimants at he re rate af ihterest as awarded by the Tribunal from. the date or accident till the date of payment, Registry is directed transmit the amount deposited "before this Court to the Tribunal} forthwith.
22. Appellant-Insurance Company is required to be ret only mulcted with Compensatory costs but a Suitable relief has to be Provided to the . tespondents who have been made to appéar before IY the Court even for getting a meager conmipensation amounts of €23,000/- and # 20,000/- reSpectively. Therefore the appeals are dismissed. WIth "COSt. of:
¥10,000/- and %5,000/- in M.F.A. No: 13506/2007 and M.F.A. No. 13507/2007 respectively. .
23. Appellant Insurance Company to deposit the balance of the award amount with interest up to the date of deposit, before the Tribunal within four weeks from: today without fail, : 'Cost awarded in favour of the claimants to be deposited before this Court within four weeks: from today failing, which the amount fo be added to the award and can be realized as.part of the award.
Sd/-
JUDGE Co By Ro