Karnataka High Court
United India Insurance Co.Ltd., vs Kamala Bai And Ors on 31 January, 2009
Author: D.V.Shylendra Kumar
Bench: D.V.Shylendra Kumar
iN THE HIGH COURT OF KA RNATAKA CIRCUIT BENCH AT GULBARGA | DATED THIS THE 31957 pay oF JANUARY, 2009 | PRESENT : THE HON BLE MR JUST IE D Vv SHYLE NDRA KU Mi AND THE HON'BLE MR JUSTIC K N KESHAVANARAYANA M.F.A. No. 5682 of 207 [M - MEAL Ne, 1347 of 2008 (MV) MPA No. See2/2 2007, BETWEEN; 3 United ii dia ins SUT arice Co. Litd., Divisional Office, PUB. No. ay, Jawai. Complex, 1st Floor, Super Market, a Galbar ga, * Fen. BV.its Divisional Manager, Sri. H. Vishwanath, Brane h Office at Bidar. cee Appellant By | eri. Manavendra Reddy and Aruna M. Reddy, Advs.} f OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COU! | TINS CRATE AUR WF BARINATAKA HIGH COURT OF KARNATAKA HIGH AND: i. Smt. Kamala Bai, W/o. Late Vithal, Aged 3° vears, 4. Sri. Sharanappa, S/o. Late Vithal, Aged 22 vear 3. Sri. Baswaraj, S/o. Late Vithal, Aged 21 years, 4. Sri. Mailikarjun, S/o. Late Vithal .. Aged 19 vea ~ Oo. STL. Manjunath S / G. late Vithal,. Aged 15 years Since Minor, : "ep. by their mother, "IPE ric 1st 'respondent her 'enn. a Respondent Nos. 1 to 5 are residing . Ratoni mbuy, | Humnabad Taluk, Bidar r dist f act. 6. 'Sri Annvecrayya, Major, S/o. Shamavya Madpathi, "Owner of Jeep No. KA- 18/9293) Occ: Business, R/o. Bilanattalli, Sedam Taluk, Guibarega District. Respondents (Sri. Chandrashekar P. Patil, Advocate # epresentcd by Sri. Basavaraj R.M att b Adee Sri. 5.M. Chandrashekar, Adv. for RE, RO ~ "Minor rep. By Rip oo This MLPA. filed under -Séction 1730) of MV. Act against the judgmient.and award dated 20.03. 200 passed in MVC No. 145. of 2004 .0n the file of the Presiding Officer, Fast Track Court-ll, Motor Accidents Claims Tribunal, Bidar, awardi ng a cOmpensation of NS.3,49 000 f- with BoA initerest, from the date of petition till realisation, me M.F.A. No. 1247 OF 2008 BEIWEEN: © . SPL. Atiniveerayya, Major, S/o. Sharn ava Mad ipathi, - Aged about 40-v CAPs. | Occ: Business, -- ; R/O. Bijanatialll, Sedam Taluk, ".. Gulbarga District." .. Appellant ca of Sri. Ss. M. Chnandrashekar, Advocate} 4. © United India Insurance Co. Ltd. : Divisional Office, PB. No.47, Jawali Complex, Is Floor, Super Market, slulbarga, Kep. By its Divisional Manager, FEET STEN NNN, ME RARINARA PHGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH Cou Zs smi. Kamala Bai, W/o. Late Vithal, Aged 39 years, 3. Sri. Sharanappa, S/o. Late Vithal, Aged 22 vears, 4, Sri. Baswaraj, S/o. oe Vithal, Aged 21 years, © S Sri. Mall dik aAryUn, | s/f Late Vitha al Aged ad years, 6G. SPL Manjunath, ™ S/o. late. Vithal, : "Aged 15 years Since Minor _-- ep. by their mother, _ the and respondent herein. _Respo: ident Nos. 2 to 6 are é residing ° R fat Nimbut, Hunmabad Taluk, Didar Lis strict. ces Respondents (By Sri. Manavendra eddy and Aruna M. Reddy, Advs.; This M.F.A. filed under Section 173(1) of MV Act praying to set aside the judgement and award dated 20.03.2007 passed in MVC No. 145 of 2004 on the file of the Presiding Officer, Fast Track Court-fl, Motor Accidents Claims Tribunal, Bidar. OP OS HHGH COURT OF 'hese ee MPAs coming on for Hearing Sad Orders respectively this dav, D, VSHYLENDRA i CUMAR nae delivered the follow ihe: supoment This appeal under ec clon. 173 (Lis by the misurer, who had issued a policy ic cover the. risk of the owner of miotor vehicle, a 9793 2). that took death of ay Phe Kith-and kin -of the deceased filed claim petition in MYC Ne. 14 _ Feep) ) had 'olace- on © . "Motor. £ Acide mts Claim Fide BS remamed lrisiwrance Company contes JaSSenger, who was | Jeep be arg Registration No. isA-18-M- SHE Said Jeep was involved in a road acciderit O9L03- 2004, which resulfecl in the s6ing carried in the JEED. 5 of 2604 before the Fast ' Prack Court-Hl and S Tribunal, Bidar. " While the owner-jst Re spondent (Owner of the €x-parte, the 294 respondent- ed the case, ood Banc 6 Bhd EN we TT Tor Tt sTeareranes TONES AUREL RARTIARIARA HIGH COURT OF KARNATAKA HIGH COURTOF KARNATAKA HIGH COURT OF KARNATAKA "HIGH COUR 6 A} The insurance Company had conterkled to dispute the liability. While it mav not De" HECESSATY "To go into further factual details for the purpose of this appeal, t it is sulfice to notice that the. learned J udge. of the Tribunal had framed the following issues: . i Whether. the pet itioner proves tha f, on 09.03.2004, Vithal and. Shankerayva Madpathi. were. t tr avellirig "in the Jeep bearing © Reg: : Mo. RAIS / M.O295 trom Huhinabad. to ' Nun boor vulage aller "attending t the 'coolie work in the Saw- Mul "of. Chhoti: Mivan on humnabad, and at about 8.00 D: in. when the said Je 2p) Came near Arvit 'College, at that time, the driver of the said Jeep drove the same in a rash "and negligent manner and at the same time another velucle was also coming - from opposite side, but the said JED driver tried to reduce the speed and took sharp turn and in the process the middle portion of the Lorry hit to the Jeep and the Jeep dashed to the lorry and as a A ii} nature. a7 sett favour of the Wihether.kespo petition? result of it Vithal sustained grievous injuries and died on the spot? Whether the petitioners are caititled Jor the compensation as pray od for? - \Woat order? ADDIT: ONAL | SSUE Ps) Whether. Respondent Novi proves that, 'thé accident t Ww as caused.due to the aniver OF. "the: lorry wi 10 'was over-taking the Jeep Hepes a Fag! Par a.No.6 of the objections? ndent No.l proves that, the owner, and fusurer of the said LOrT'y are also necessary parties in this claim BAe 'In fact it was not even an issue as to daimants and against the respon he ens, and extent of the lability of the msurer under the polcy and the issuc regarding negligence having been heid (7 To com Torwan conus Ween MIF RAWAL HUH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH the Tribunal proceeded fo pass ju Forays dgrment in favour oft Claimants though not to the full extent of ti ne ck ain, Dut i part awarding a total compensation of Ks. 3,49. 00 /- with. interest, etc. 6) Ho is the insurance appeal before us," against : ins Insurance Company has: Bled the it has no liablity to inden ify the xr Bok oe Corapeny, which is in Jjudgn ent and award. appeal contending that Kk of the owner of the vehicle ha respect of a Claiin of the present nature; that the clabnh is altribulable to injury or death of an occupant, who is, Hot a persons, Whose risk is covered under the pohey, w hich had been marked as lx.P8; that the policy did riot specifically cover the saic e Appeliant nsur 'ance Compal. "ry i) Appearng on behalf Manavendra Reddy, learned COUNSEL, risk and therefore, the EYUD UAL: 18, i error in passing the award against the oF the appellant, Sri. if Mote § very vehemently 4- ara! Fos Soom it, Saag under such package policy, even then the poliev did not cover the risk of the nature of compensating ihe 3 4 ajured Person or the dependents of a. person, wi 1. was a gratuitous passenger, as no se "per ate preiiu n fad | been celiected by the insurance vompany | to cover such risk ot the owner and th "helore the learned Judge of the tribunal Was itl error in pas S81 the impugned Judgment and Award fastening jour nt ability anh respect of com pensation payable to the: vlaine anit orn. the Owner as well as the insurance Company. ~ Oj Ree et tae é Of the submission of Sr. Manas . € "adi a Ree idv, learned counsel for the appelarr 7 4g that | N Appel ant is not liable to reimburse the owner we in pepaat of the claim as it had arisen due to injury /death ofa gratuitous passenger travelling in a privately owned ; vehicle Which risk the insurance company had not "undertaken to cover under the policy, ae es "fap wre INDIA ASSU il 10) Mr. Manaverxira Keddy, learned ce rise! for the appellant has i support of the legal positics 7 it this regard has placed reliance on a; plethora ofa uthorities pot ; omy Judements of this court Be single Bench and division Bench but also the d ndgiients of the Supreme Court which are as under. fe} CE CO., LTD., us. TILAK SINGH AND OTHERS' reporte A nl 2006 ACS 1441 fb] 'UNITED' INDIA. 'ssGdRance CO., LTD., us. C | GOVARDHAN AND ANOTHER reported in [2008] 2 | MAC 289 A <a URANCE €0O., LTD., -- vs. AND OTHERS' reported in -_ 2008/3] CCC 83 [SC] NANCE €CO., LTD, vs. C S MAR AND OTHERS® reported in 2008 [4} " ECOR 2399 us. SUBRAHMANYA SINCE DECEASED BY Lks AND ANOTHER reported in 2009 Kant.MA oT TIT, na Tw: TH COURT OF U] 'GENERAL MANAGER, UNITED INDEA CO., LTD., vs. MLAS Fi 2009 ACU 104, to submit that an act policy , ith, the sense, a policy issued by the insurance com pany a ider taking tn cover the risk oF an insured person which is att tibutable | to 'the ability in terms of section 147 of th € M. in "Abt toes mot entitie the insured to. ina reimbursement in respect oF anv other risk other | nan oe risk niontioned and covered in terms of' section | i "of: re ne MV. Act. ; 'Theretore, the submission is that int the ores cent ease, ihe reimbursement which the company was requis 'ed to do tmider the policy if at all was oo Ofby oh respect 'of Uuird party claims and a gratuitous " passenger in a private vehicle admittedly being not a third par ty. éveri otherwi iSe in terns of the law as emerges from ~ the decisions referred to above, the imsurance company is a riot Hable fo reimburse the amount. SORE BR BRR te oe on ee "7 =o MOEA PHGH COURT OF & i3 Hi} On the other hand, Sri, Basavarai "R Math, icamed counsel for the respondents ~ Claimants: would Submit that there is ne occasion for this court 6 examine. all these submissions and eontentions be the, simple reason that it was not tbe case of Une instr alice company before the t: ibunal and mor cover oneven i inte exias of the very policy a reference havin ng bec sev] made to Section U1! of the Package Pohey anid in terms of § Section U1] of the "Standart Fora for. Pr Private Car Package Policy", an occupant in B. private 2 cai being covered under such a policy whic ae "Scaltea a A package policy and the policy on the face. OF ib vin clicbeiing that the insurer had collected more pre taivim than micrely covering the third Party risk and the 7 poliey ifievit fal bly being a PACKaSE policy, if is nor open to che insta ss be COnIpany to contend in this appeal that they were not Hable to reimbur sé the owner etc. , iZ) We have examined the submissions at the Bar, grounds of appeal and the legal position. Sh OW yew ee ee Tan coe comres cornet Me MARUTRRIRA THEE COURT OF KARNATAKA. HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COUR 13) We find that irrespective of thee go) position, On a perusal of the record, there is : 10OF, eve Dh a. pk al oF ihe part of the insurance compar. anQut the natur sy 2 of policy. and about the nature of) risk cover ed by them under the policy issued in favour of the. owner int this appeal. i4) In the absence of a. plea 'that the insurance COMPAL was, rot lial He, fora imbuisement, the owner of) the clainis : As. ait forth, Ja. iii. sth € 'claim petition, no amount of evidence the ough: poit yted out to us by Sri. Manavendra Reddy » 16 learned connset for the appellant that the Marager of the ingupance compariy in paragraph-4 of the affidavit Enel uidicat ed the nature of the policy and the nature of "the liability, will be of any avail to the appellant. Any aMOunl OF proor is of mio use to a party who has not " pleaded in this regard, which forms the foundation and which plea can be supported by evidence. Evidence does He -
~ 7 TT Te NN WT MARR HIGH COURT OF | not exist independent of a plea. That is the bask: principie Of Ci] law.
13) In the wake of his fac chiA siti oF 1, it PS iit | necessary for us to further examine the: detence wht ic ae is Sought to be urged before- this cout for tt the £ first time in this appeal. The legal position by itself does not rescue the appebant frond the. present" sitet Mion as law can be applied only: a ogive a finding on the disputed aspect which has become - an issue between the parties and on which a finding is. i ven. : "here en plea, no issue, no finding anid the ere fore nee OCC! sion | i for uS to apply the law which is reed. por from the Judgments referred to above, to os, correct All-erroneous finding in law. 16} : We do not find any scope lor interfering with the didgment and Award by the Tribunal in the mS circumstances of this appeal. 'Therefore, MPA No.5682 of 2007 only deserves to be dismissed, LEELA hte ane 16
7) Sri. Manavencdra Reddy, learned ceunsel for the appellant would submit that the insurance corm pany nad deposited the initial amount of Rs.25,060 f- before. this court.
18) We direct the registry io take Steps ro ensure that the amount . is transinitied to . the AYyibunal and released in favour' of ihe. claiman ~ 'Phe insurance colpany to deposit the. balance ainount apart irom the initial deposit of RS.25,000 j- detove the tribunal within six weeks from thé: date ef rece} pt of copy of this Judgement with interest as indicated. by the tribunal. JUDGMENT IN MFA NO.1347 OF 2008
19). This appeal though would have normaliv gone "before # learned Single Judge of this cour Nas been Hsted before.us as this is connected with MPA No.5682 of 2007 ~ which we have disposed of under the above Judement,
20) This appeal is by the owner which was in fact not warranted and which we tind may be perhaps by way a ee es V7 oF abundant caution. This appeal in tact was. wholly unnecessary and the result of the above apteal-o the uisurance company only makes this position tore clear. ~
41) This appeal is "Uismissed as : hot being warranted. The appeal in fact" had 3 not ever been presented in a proper "manner and the. registry had motined the counsel for u 1€ appellant fo refmiove the defects. Be that as. it may, tie. anpeal is dismissed. The iutial deposit if any 'ade by this appellant is directed to be "efindert | to the appellant as we have held that the insurance company is: 'bound lo reimburse the entire lability of the owner in terms of the Judginent and Award ~ Questioned in this a ppeal.
Sd/-
JUDGE KGR, An/- Sd/-
JUDGE