Karnataka High Court
The Oriental Insurance Co. Ltd vs Irawwa W/O. Shankrappa Rathod on 6 January, 2025
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2025:KHC-D:11
MFA No. 22983 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.22983 OF 2012 (MV-D)
BETWEEN:
THE ORIENTAL INSURANCE COMPANY LIMITED,
R/BY ITS DIVISIONAL MANAGER,
MADIWAL BUILDING, CLUB ROAD, BELAGAVI,
R/BY ITS ASST. MANAGER, REGIONAL OFFICE,
SUMANGALA COMPLEX, LAMINGTON ROAD, HUBLI-29.
...APPELLANT
(BY SRI G.N. RAICHUR, ADVOCATE FOR APPELLANT (V/C))
AND:
1. SMT. IRAWWA W/O. SHANKRAPPA RATHOD,
AGE: 44 YEARS, OCC: HOUSEHOLD WORK,
R/O. CHANAPUR LAMANI TANDA,
TQ: RAMDURG, DIST: BELAGAVI.
2. SMT. GEETA SHIVASHING RAJPUT,
AGE: MAJOR, OCC: BUSINESS,
R/O. PLOT NO.26, H.NO.2, FORT,
BELAGAVI, DIST: BELAGAVI.
(OWNER OF TRACTOR AND TRAILER
NO.KA-22/6219 AND 6220)
Digitally signed by
MALLIKARJUN
RUDRAYYA 3. SRI SHANKAR @ SHANKRAPPA
KALMATH
Location: HIGH S/O. SONAPPA RATHOD,
COURT OF AGE: MAJOR, OCC: DRIVER,
KARNATAKA
R/O. CHANAPUR DODDA LAMANI TANDA,
TQ: RAMDURG, DIST: BELAGAVI.
...RESPONDENTS
(BY SRI SHIVARAJ S.BALLOLLI, ADVOCATE FOR R1;
SRI HARISH S.MAIGUR, ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE M.V.ACT, SET ASIDE THE JUDGMENT AND
AWARD DATED 09.04.2012, PASSED IN MVC NO.1983/2010 PASSED
BY THE FAST TRACT COURT-III AND ADDL. MACT, BELAGAVI BY
ALLOWING THIS APPEAL WITH COST IN THE ENDS OF JUSTICE AND
EQUITY.
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NC: 2025:KHC-D:11
MFA No. 22983 of 2012
THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR
HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This appeal is filed under Section-173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'MV Act' for brevity) by the appellant - Insurance Company, challenging the judgment and award dated 09.04.2012, passed in MVC No.1983/2010, on the file of Fast Track Court-III and Additional M.A.C.T, Belgaum (hereinafter referred to as 'the Tribunal' for brevity), questioning the liability fastened on it to pay compensation to the claimants.
2. It is the case of claimant that on 11.02.2007 the deceased Kumar was waiting for his father i.e., respondent No.3 herein near Shivabasav Nagar Kalyan Mantap Cross, Belgaum and the respondent No.3, who was driver on the tractor and trailer No.KA-22/6219 and 6220, was coming towards circle to go to Gangwadi. When respondent No.3, the driver on the said tractor and trailer was about to stop the vehicle near Kalyan Mantap, the vehicle moved further from -3- NC: 2025:KHC-D:11 MFA No. 22983 of 2012 Kalyan Mantap, meanwhile the deceased Kumar was about to get into the said tractor and at that time, deceased Kumar came in contact with left wheel of the said tractor and jumped into ground. Consequently, wheel of tractor ran over on the deceased Kumar, due to which, the deceased Kumar died on the spot. Therefore, the claim petition is filed under Section 163-A of the M.V Act for seeking compensation. The Tribunal has allowed the petition in part and granted compensation of Rs.2,50,000/- along with interest at the rate of 8% per annum from the date of petition till its realization by fastening liability on the Insurance Company.
3. The Insurance Company has preferred the appeal on the ground that the deceased Kumar was traveling in the tractor and trailer as a gratuitous passenger by sitting on the mudguard of the tractor engine. Therefore, in view of the full bench decision of this Court in the case of GADHILINGAPPA @ GADHILINGA And Another VS K. GULEPPA S/O K LINGAPPA AND OTHERS1, the Insurance Company is not liable to indemnify the owner of the vehicle and therefore prays to exonerate the Insurance Company. 1 ILR 2021 KAR 3377 -4- NC: 2025:KHC-D:11 MFA No. 22983 of 2012
4. Heard arguments from both the sides and perused records.
5. Though the claimant has taken a different stand in the claim petition as stated above, but registers a complaint with FIR and charge sheet (Ex.R5) being laid, it is proved that the deceased Kumar, a minor, aged 13 years old was travelling on the tractor engine by sitting on the mudguard. It is the complaint given at earliest point of time that the deceased Kumar was travelling by sitting on the mudguard of the tractor engine, who is son of respondent No.3, who was driving the tractor. Therefore, it is proved that the deceased was gratuitous passenger, being a minor, son of the respondent No.3, has travelled by sitting on the mudguard of the tractor. The issue is purely covered by the full bench decision of this Court in the case of GADHILINGAPPA @ GADHILINGA referred supra. Therefore, the Insurance Company is not liable to indemnify the owner of the vehicle and thus is liable to be exonerated from paying the compensation.
6. However, in similar facts and circumstances of the case where the deceased was travelling in the tractor by -5- NC: 2025:KHC-D:11 MFA No. 22983 of 2012 sitting on mudguard of the tractor as a gratuitous passenger, then the Hon'ble Supreme Court in the cases of V. RENGANATHAN AND ANOTHER VS. BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED AND ANOTHER2 (V. RENGANATHAN CASE) and ORIENTAL INSURANCE COMPANY LIMITED VS. DULARI DEVI AND OTHERS3 (DULARI DEVI CASE), the Hon'ble Supreme Court was pleased to pass an order of pay and recovery.
7. In the case of V. RENGANATHAN referred supra, the Hon'ble Apex Court has observed as under:
"5. We find no fault with the finding of the High Court that the insurance company could not be held liable for the payment of compensation in view of the judgment of 3-Judge Bench of this court in the case of New India Assurance Co.Ltd. v. Asha Rani, 2003 ACJ 1 (SC). However, at the same time, we find that in view of the settled position, the High Court ought to have partly allowed the appeal. We may gainfully refer to the observations of this court in similar facts at para 10 of the judgment of this court in Shivaraj v. Rajendra, 2018 ACJ 2755 (SC).2
2023 ACJ 623 3 2023 ACJ 1243 -6- NC: 2025:KHC-D:11 MFA No. 22983 of 2012
6. As already observed, the facts in the present case are similar to the facts in the case of Shivaraj v. Rajendra (supra).
7. In the present case also, the High Court ought to have partly allowed the appeal preferred by the insurance company and ought to have directed it to pay the amount of compensation to the appellants and granted liberty to recover the same from the tractor owner.
8. We are, therefore, inclined to allow the appeal. We uphold the finding of the High Court that the respondent No.1-insurance company cannot be held liable for payment of compensation. At the same time, we direct the respondent No.1-insurance company to pay the compensation to the appellants-claimants as determined by the learned Tribunal with interest as specified in the order within three months from today with liberty to recover the said amount from the owner of the vehicle."
8. Further, in the case of DULARI DEVI CASE referred supra, it is observed at paragraph Nos.6 and 7 as follows:
"6. It has been held by Hon'ble Supreme Court in National Insurance Co. Ltd. V. Baljit Kaur, 2004 ACJ 428 (SC), that the insurance company cannot be made liable to pay the compensation for gratuitous passengers who were neither contemplated at the time when the contract of insurance was made nor any premium was paid. The sum and substance of the ratio decided in Baljit Kaur's -7- NC: 2025:KHC-D:11 MFA No. 22983 of 2012 case (supra) is that in case of gratuitous passenger the insurance company is not liable to indemnify the owner of the vehicle for paying compensation on ground of breach of terms of insurance policy, but it has a liability to pay compensation to the third party and recover the same from the owner of the vehicle.
7. Here in the present case there is a definite finding of fact recorded by the learned Tribunal that the deceased was traveling on the mudguard of the tractor at the relevant time of the accident. Permitting a person to travel on the tractor when it could accommodate only one person, namely, driver, by the owner of the vehicle is a breach of terms and conditions of the policy and therefore in view of the ratio of the Hon'ble Apex Court in Shivaraj v. Rajendra, 2018 ACJ 2755 (SC), the insurance company was not liable to pay the compensation amount. However, the insurance company shall pay the compensation amount to the claimants with liberty to recover the same from the owner of the tractor."
9. Therefore, in view of the principles of law laid down by the Hon'ble Supreme Court referred supra, in the present case also, since the deceased Kumar has travelled as a gratuitous passenger on the tractor by sitting on the mudguard of the tractor, hence the Insurance Company though is not liable to pay compensation, but an order of pay and recovery directing the appellant-Insurance Company to pay -8- NC: 2025:KHC-D:11 MFA No. 22983 of 2012 compensation at the first instance and then recover it from the owner of the tractor and trailer No.KA-22/6219 and 6220 can be made.
10. The Hon'ble Supreme Court in the case of ORIENTAL INSURANCE COMPANY LIMITED VS. NANJAPPAN AND OTHERS4 has held as follows:
"8. Therefore, while setting aside the judgment of the High Court we direct in terms of what has been stated in Baljit Kaur's case (supra) that the insurer shall pay the quantum of compensation fixed by the Tribunal, about which there was no dispute raised, to the respondent claimants within three months from today. For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing court concerned as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the executing court shall take assistance of the Regional Transport Authority concerned. The executing court shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the executing court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the 4 AIR 2004 SC 1630 -9- NC: 2025:KHC-D:11 MFA No. 22983 of 2012 insured. The appeal is disposed of in the aforesaid terms, with no order as to costs. Order accordingly."
11. The Insurance Company is at liberty to file Execution Petition directly before the concerned Jurisdictional Court and may seek attachment of movable or immovable properties or both of the owner of the tractor and trailer and recover the amount as per law as observed in NANJAPPAN case referred supra.
12. Accordingly, I proceed to pass the following:
ORDER
a) The appeal is allowed-in-part.
b) The impugned judgment and award passed by the Tribunal in MVC No.1983/2010 dated 09.04.2012 by the Fast Track Court-III and Additional M.A.C.T, Belgaum is hereby modified holding that the Insurance Company is exonerated from its liability.
However, the Insurance Company shall pay compensation to the claimants at the first instance and then recover it from the owner of the tractor and trailer as observed above.
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c) The amount in deposit made by the appellant shall be transmitted to the Tribunal.
d) Costs made easy.
e) Ordered accordingly.
Sd/-
(HANCHATE SANJEEVKUMAR) JUDGE PMP List No.: 2 Sl No.: 30