Karnataka High Court
The Divisional Manager vs Jayashree D/O Prabhulingayya And Ors on 23 June, 2022
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23 RD DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
MFA No.200672/2014 (MV)
C/W
MFA No.200673/2014, MFA No.201484/2014,
MFA No.201485/2014 & MFA No.201486/2014 (MV)
IN MFA NO.200672/2014
BETWEEN:
THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO. LTD.,
BILGUNDI COMPLEX,
STATION MAIN ROAD, GULBARGA.
(NOW, REPRESENTED BY
AUTHORISED SIGNATORY)
... APPELLANT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
AND:
1. JAYASHREE D/O PRABHULINGAYYA,
AGE: 21 YEARS, OCC: HOUSEHOLD,
RESIDENT OF BASAVESHWAR COLONY,
GULBARGA-585104.
2. LAVAKUSH S/O KASHAPPA,
AGE: 46 YEARS, OCC: OWNER OF
CRUISER BEARING REGISTRATION NO.
KA-28/M-4998, R/O: HOUSE NO.2-52,
TQ: HUMNABAD, DIST: BDIAR-585401.
... RESPONDENTS
(BY SRI. B. ALI MOHAMMED, ADVOCATE FOR R1;
NOTICE TO R2 SERVED)
2
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE M.V.ACT, PRAYING TO CALL FOR THE
RECORDS AND ALLOW THE APPEAL BY SETTING ASIDE THE
IMPUGNED JUDGMENT AND AWARD DATED 31.12.2013 IN MVC
NO.859/2012 PASSED BY THE PRL. SENIOR CIVIL JUDGE &
MACT, GULBARGA, WITH EXEMPLARY COSTS.
********
IN MFA NO.200673/2014
BETWEEN:
THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO. LTD.,
BILGUNDI COMPLEX,
STATION MAIN ROAD, GULBARGA.
(NOW, REPRESENTED BY
AUTHORISED SIGNATORY)
... APPELLANT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
AND:
1. LAXMIBAI W/O KASHAPPA,
AGE: 61 YEARS, OCC: HOUSEHOLD,
RESIDENT OF BASAVESHWAR COLONY,
GULBARGA-585104.
2. LAVAKUSH S/O KASHAPPA,
AGE: 46 YEARS, OCC: OWNER OF
CRUISER BEARING REGISTRATION NO.
KA-28/M-4998, R/O: HOUSE NO.2-52,
TQ: HUMNABAD, DIST: BDIAR-585401.
... RESPONDENTS
(BY SRI. B. ALI MOHAMMED, ADVOCATE FOR R1;
NOTICE TO R2 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE M.V.ACT, PRAYING TO CALL FOR THE
RECORDS AND ALLOW THE ABOVE APPEAL BY SETTING ASIDE
THE IMPUGNED JUDGMENT AND AWARD DATED 31.12.2013 IN
3
MVC NO.860/2012 PASSED BY THE PRL. SENIOR CIVIL JUDGE
& MACT, GULBARGA, WITH EXEMPLARY COSTS.
********
IN MFA NO.201484/2014
BETWEEN:
THE DIVISIONAL MANAGER,
NATIONAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
OPP: MINI VIDHANA SOUDHA,
GULBARGA.
(NOW, REPRESENTED BY
AUTHORISED SIGNATORY)
... APPELLANT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
AND:
1. HANMANTH
S/O SHARANAPPA KODAMBAL,
AGE: 52 YEARS, OCC: NIL,
2. PARVATI
W/O HANMANTH KODAMBAL,
AGE: 44 YEARS, OCC: HOUSEHOLD,
3. BHAGYASHREE
D/O HANMANTH KODAMBAL,
AGE: 19 YEARS,
OCC: STUDENT OF PUC 1ST YEAR,
4. SHIVANI
D/O HANMANTH KODAMBAL,
AGE: 16 YEARS,
OCC: STUDENT OF 6TH STANDARD,
(PETITIONER NO.3 WAS MINOR AT THE
TIME OF FILING OF CLAIM PETITION,
NOW MAJOR)
4
PETITIONER NO.4 MINOR U/G OF
PETITIONER NO.1 HANMANTH
KODAMBAL.
5. RAJASHREE
D/O HANMANTH KODAMBAL,
AGE: 22 YEARS, OCC: HOUSEHOLD,
ALL R/O DHANNURA-R, TQ. B.KALYAN,
NOW C/O RAMESH VANTE,
NEAR MOUNESHWAR TEMPLE,
KUSNOOR, GULBARGA.
6. LAVAKUSH S/O KASHAPPA,
AGE: MAJOR, OCC: BUSINESS,
OWNER OF CRUISER BEARING
JEEP NO.KA-28/M-4998,
R/O: H.NO.2-52, KALLUR THANDA,
TQ: HUMNABAD, DIST: BIDAR-585401.
7. JALENDRANATH
S/O SUBANNA HUDGIKAR,
AGE: MAJOR, OCC: BUSINESS,
OWNER OF LORRY NO.KA-39/5880,
R./O: H.NO.11/3, HANKUNI,
TQ. HUMNABAD, DIST. BIDAR-585401.
8. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE, DR. JAWALI COMPLEX,
SUPER MARKET, GULBARGA.
... RESPONDENTS
(BY SRI. M.S.ASTAGI, ADVOCATE FOR R1 TO R5;
BY SRI. SHIVANAND PATIL, ADVOCATE FOR R5;
V/O DATED 23.04.2015 NOTICE TO R6 & R7 ARE DEEMED
TO BE SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE M.V.ACT, PRAYING TO CALL FOR THE
RECORDS AND ALLOW THE ABOVE APPEAL BY SETTING ASIDE
THE IMPUGNED JUDGMENT AND AWARD DATED 17.06.2014 IN
5
MVC NO.839/2012 PASSED BY THE PRL SENIOR CIVIL JUDGE &
MACT, GULBARGA, WITH EXEMPLARY COSTS.
**********
IN MFA NO.201485/2014
BETWEEN:
THE DIVISIONAL MANAGER,
NATIONAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
OPP: MINI VIDHANA SOUDHA,
GULBARGA.
(NOW, REPRESENTED BY
AUTHORISED SIGNATORY)
... APPELLANT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
AND:
1. SHIVANI
D/O HANMANTH KODAMBAL,
AGE: 16 YEARS,
OCC: STUDENT OF 6TH STANDARD,
MINOR U/G OF HER REAL FATHER
SRI. HANMANTH S/O SHARNAPPA
KODAMBAL, AGE: 52 YEARS,
OCC: NIL, R/O DHANNURA-R,
TQ. B. KALYAN, NOW RESIDING AT
C/O RAMESH VANTE,
NEAR MOUNESHWAR TEMPLE,
KUSNOOR, GULBARGA.
2. LAVAKUSH S/O KASHAPPA,
AGE: MAJOR, OCC: BUSINESS,
OWNER OF CRUISER BEARING JEEP
NO. KA-28/M-4998,
R/O H.NO.2-52, KALLUR THANDA,
TQ: HUMNABAD, DIST: BIDAR-585401.
3. JALENDRANATH
S/O SUBANNA HUDGIKAR,
6
AGE: MAJOR, OCC: BUSINESS,
OWNER OF LORRY NO.KA-39/5880,
R/O: H.NO.11/3, HANKUNI,
TQ: HUMNABAD, DIST. BIDAR-585401.
4. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
DR. JAWALI COMPLEX,
SUPER MARKET,
GULBARGA.
... RESPONDENTS
(BY SRI. SHIVANAND PATIL, ADVOCATE FOR R4;
V/O DATED 23.04.2015 NOTICE TO R1 TO R3 ARE
DEEMED TO BE SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE M.V.ACT, PRAYING TO CALL FOR THE
RECORDS AND ALLOW THE ABOVE APPEAL BY SETTING ASIDE
THE IMPUGNED JUDGMENT AND AWARD DATED 17.06.2014 IN
MVC NO.840/2012 PASSED BY THE PRL. SENIOR CIVIL JUDGE
& MACT, GULBARGA, WITH EXEMPLARY COSTS.
************
IN MFA NO.201486/2014
BETWEEN:
THE DIVISIONAL MANAGER,
NATIONAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
OPP: MINI VIDHANA SOUDHA,
GULBARGA.
(NOW, REPRESENTED BY
AUTHORISED SIGNATORY)
... APPELLANT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
7
AND:
1. SHIVANAND
S/O MADARSHA GAYAKWAD,
AGE: 42 YERS, OCC: MAISON (GOUNDI)
NOW NIL, R/O: DHANNUA-R,
TQ. B. B.KALYAN, NOW RESIDING AT
C/O RAMESH VANTE,
NEAR MOUNESHWAR TEMPLE,
KUSNOOR, GULBARGA.
2. LAVAKUSH S/O KASHAPPA,
AGE: MAJOR, OCC: BUSINESS,
OWNER OF CRUISER BEARING
JEEP NO.KA-28/M-4998,
R/O: H.NO.2-52, KALLUR THANDA,
TQ: HUMNABAD,
DIST: BIDAR-585401.
3. JALENDRANATH
S/O SUBANNA HUDGIKAR,
AGE: MAJOR, OCC: BSUINESS,
OWNER OF LORRY NO.KA-39/5880,
R/O: H.NO.11/3, HANKUNI,
TQ. HUMNABAD, DIST. BIDAR-585401.
4. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
DR. JAWALI COMPLEX,
SUPER MARKET, GULBARGA-585101.
... RESPONDENTS
(BY SRI. M.S.ASTAGI, ADVOCATE FOR R1;
V/O DATED 23.04.2015 NOTICE TO R2 & R3 ARE DEEMED TO
BE SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE M.V.ACT, PRAYING TO CALL FOR THE
RECORDS AND ALLOW THE ABOVE APPEAL BY SETTING ASIDE
THE IMPUGNED JUDGMENT AND AWARD DATED 17.06.2014 IN
8
MVC NO.841/2012 PASSED BY THE PRL. SENIOR CIVIL JUDGE
& MACT, GULBARGA, WITH EXEMPLARY COSTS.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 10.06.2022, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
JUDGMENT
These appeals are filed by the Insurance Company challenging the common judgment and award dated 31.12.2013 passed by the Principal Senior Civil Judge and MACT, Gulbarga ('Tribunal' for short) in MVC No.859/2012, 860/2012 and also the common judgment and award dated 17.06.2014 in MVC Nos. 839/2012, 840/2012 and 841/2012 respectively,
2. The MFA Nos. 200672/2014 and 200673/2014 are arising out of MVC No.859/2012 and 860/2012, and MFA Nos. 201484/2014, 201485/2014 and 201486/2014 are arising out of MVC Nos. 839/2012, 840/2012 and 841/2012 respectively.
3. All the above said five Motor Vehicle Claim cases are arising out of the same accident that took place on 18.05.2012 involving a Jeep bearing Registration No.KA.28/M.4998 and a Lorry bearing KA.39/5880. 9
4. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the Tribunal.
5. The brief facts leading to the cases are that, on 18.05.2012, all the petitioners being relatives, were proceeding in a vehicle-Cruiser bearing No.KA.28/M.4998 from Gulbarga to their village Sanna Halikhed and at about 5.30 p.m., when the said vehicle-Cruiser came near Navadgi village on Gulbarga-Humnabad Road, the driver of the Cruiser drove it in rash and negligent manner and to avoid the on-coming Lorry bearing Registration No. KA.39/5880, he lost control over the vehicle and as a result, the Cruiser turned turtle. It is contended that, due to this impact, all the petitioners have sustained simple as well as grievous injuries and they were admitted as inpatients in Basaveshwara Hospital at Gulbarga.
6. It is the further case of the petitioners that, they are permanently disabled due to the accident, which took place because of actionable negligence on the part of the driver of the offending vehicle and as such, the Respondent No.1 being the owner and Respondent No.2 being the Insurer, are liable to 10 pay compensation. Hence, the said claim petitions came to be filed by the petitioners/claimants in MVC Nos. 859/2012 and 860/2012 claiming compensation of Rs.12,75,000/- in each of claim petitions and the MVC Nos.839/2212, 840/2012 and 841/2012 are filed claiming compensation of Rs.20.00 Lakhs, Rs.18.00 Lakhs and Rs.15.00 Lakhs respectively.
7. Pertaining to MVC Nos. 859/2012 & 860/2012 (MFA Nos.200672/2014 and 200673/2014), Respondent No.1 did not choose to appear before the Tribunal, while Respondent No.2-Insurer appeared and filed objections denying the allegations and assertions made in the claim petitions.
8. Pertaining to MVC Nos.839/2012, 840/2012 & 841/2012 (MFA Nos.201484/2014, 201485/2014 & 201486/2014), though Respondents No. 1 to 4 appeared through their counsel, Respondent No.1 did not file any written statement. But, Respondents No. 2 to 4 filed their written statements separately, denying the allegations and assertions made in the claim petitions.
11
9. It is admitted that, the offending vehicle was insured with Respondent No.2-National Insurance Co. Ltd. However, it is contended that the policy was issued for private use, but the vehicle was used as a Taxi to carry passengers and there is a breach of policy condition, and hence disputed the liability of the Insurance Company. It is also contended that, driver of the offending vehicle (Cruiser) was not holding the valid and effective driving licence and hence, sought for dismissal of the claim petitions.
10. The Tribunal after assessing the oral as well as documentary evidence, has allowed the above said claim petitions partly and awarded compensation of Rs.4,80,000/- in respect of the claimants in MVC No.850/2012 and awarded Rs.15,000/- in respect of the claimants in MVC No.860/2012 with interest at 6% per annum from the date of petition till the date of realisation by holding Respondents No.1 & 2 jointly and severally responsible. Further, in MVC No.839/2012, MVC No. 840/2012 and MVC No. 841/2012 the Tribunal has awarded compensation of Rs.5,45,000/- and Rs.25,000/- and Rs.1,80,100/- respectively with interest at 6% per annum 12 from the date of petition till realisation and directed Respondent No.2-Insurer of the offending vehicle (Cruiser) to pay the compensation within one month from the date of its order with liberty to recover the same by due process of law from owner.
11. Being aggrieved by the impugned judgment and award passed by the Tribunal, Respondent No.2-Insurance Company has filed these appeals.
12. Heard Smt.Preeti Patil Melkundi, learned counsel for the appellant-Insurance Company and Sri Ali Mohammed, learned counsel for the respondent No.1. Perused the records.
13. Learned counsel for the appellant-Insurance Company would contend that the offending vehicle was insured with package policy for personal use only and there was prohibition for using the vehicle for hire and reward. It is also contended that under Section 66 of the MV Act, there is a bar for using the vehicle for transport, without any authority and in spite of that, the vehicle is being used for commercial purpose. Hence, it is contended that there is clear breach of policy conditions. She further asserts that the owner used the vehicle 13 as a Stage Carrier, as such, the claimants are to be treated as gratuitous passengers and hence, the Insurance Company is not liable to pay any compensation. She would also contend that, in spite of issuance of notice, the driving licence of the driver of the offending vehicle is not produced. Though the quantum was initially disputed, the learned counsel for appellant-Insurer would fairly submit that, now the quantum is not disputed and the appellant-Insurance Company has restricted the issue as regards liability only.
14. Per contra, the learned counsel for Respondents/claimants would contend that the owner has not contested the matter. Admittedly the claimants are occupants of the offending vehicle. It is argued that, the cross- examination of RW.1-Shamba Murthy discloses that he is not an eye-witness to the accident in question and he states that does not know anything. He would further contend that, there is no evidence to discard the evidence led by the claimants. Hence, he would seek for dismissal of these appeals by confirming the judgment and award passed by the Tribunal. 14
15. Having heard the arguments advanced by the learned counsels appearing on both sides and perusing the records, it is an undisputed fact that, on 18.05.2012 at 9.30 p.m., when petitioners were proceeding in a Cruiser Vehicle bearing No.KA.28/M.4998, it met with an accident and the petitioners have sustained injuries.
16. As stated above, as regards quantum of compensation, now no issue has been raised by the appellant- Insurance Company. The main contention of the appellant/Insurance Company is that the offending vehicle is being used as a Stage Career. In this context, learned counsel for the appellant/Insurer has invited the attention of the Court to Ex.P1(a), which is the complaint. The recitals of the complaint are that, the claimants had gone for Darshan of Goddess Chinchanasoorada Mahappora Tayi and while returning back, when they reached Sirgapura village at 5.00 p.m., the offending vehicle came, which was already loaded with passengers and they have boarded the vehicle, which remained unchallenged and argued that the claimants are gratuitous 15 passengers, as the offending vehicle was used for Hire and Reward against the policy conditions.
17. The claimants were examined in the matters. They claimed that the Cruiser-Jeep was belonging to a friend of the family and therefore, they boarded the vehicle. But, this assertion was not found in the complaint. Apart from that, the complaint allegations clearly disclose that, the Jeep was already loaded with many number of passengers, which clearly establish that it is being used as a Stage Carrier and hence, there is breach of policy conditions under Section 66 of the MV Act.
18. In this context, the learned counsel for the appellant Smt. Preeti Patil Melkundi has placed reliance on a decision of the Hon'ble Apex Court reported in Part-IV 2009 SCC ACC 459 (SC) [National Insurance Company Ltd. Vs. Meena Aggarwa] and argued that, when the vehicle being used for commercial purpose, the insurer is not liable and the owner of the offending vehicle is liable to pay the compensation. In this context, she has further placed reliance on an unreported decision of the Division Bench of this Court in 16 MFA No.101633/2014 (MV) [Kariyamma & others Vs. Kumar and another] Dated 30.03.2021. It is to be noted here that in both these cases, Act Policy was in existence. But, in the instant case, there exists a comprehensive policy.
19. On the other hand, learned counsel for the respondents has placed reliance on a decision reported in 2017 SAR (Civil) 444 (Manuara Khatun & Ors VS. Rajesh Kr. Singh & Ors), wherein the Hon'ble Apex Court has held that, in case of gratuitous passengers, the principle of 'Pay and Recovery' is required to be applied. The similar view is taken by the Hon'ble Apex Court in a decision reported in 2018 ACJ 1768 (Amrit Paul Singh and another Vs. Tata AIG General Ins. Co. Ltd. and others). The said view is again reiterated by the Full Bench of this Court in a decision reported in 2020 ACJ 2560 (New India Assurance Co. Ltd. Vs. Yallavva and another), wherein it is observed as under:-
"Motor Vehicles Act, 1988, Section 149(2)(a) and (b) read with Sections 149(1), 149(4) and 149(7) - Motor Insurance - Act or comprehensive policy - Breach of - Liability of insurance company - Pay and recover order - In a case where insurance 17 company successfully establishes that insured had committed breach of policy as per Section 149 (2)(a) and breach was fundamental contributing to the cause of accident or policy is void as per Section 149(2)(b), whether in view of the mandate under Section 149(1) insurance company would be liable to satisfy the award vis-à-vis third party and entitled to recover the amount from the insured - Held: Yes; however if court comes to a finding that third party has played fraud or was in collusion with the insured for wrongful gain to themselves then Court may exercise its discretion not to fasten liability on insurance company. (2004 ACJ 1 (SC) followed].
20. Further, the learned counsel submits that, similar view is taken by a Division Bench of this Court in the decisions reported in ILR 2011 KAR 1191 [United India Insurance Co. Ltd., represented by its DM Vs. Kalawathi and Others] and in ILR 2006 KAR 889 [The Oriental Insurance Co. Limited Vs. Sri. Purushotham T.M. and Others]. Hence, it is evident that, in case of Comprehensive Policy, the passenger in a private car is also covered under the policy and he is required to be treated as that of a third party and the Insurance Company is liable to pay compensation and 18 recover the same from the owner under the principles of 'Pay and Recovery'.
21. The citations relied by the learned counsel for the appellant-Insurer in this regard do not assist the appellant, as it was pertaining to the Act Policy. But, in the instant case, the policy held by the offending vehicle is a Comprehensive Package Policy. No doubt, the evidence prima facie establish that the owner has used the vehicle as a Stage Carrier. However, it does not have any relevancy for the claimants and hence, the Insurance Company is liable to pay the compensation and recover the same from the owner of the offending vehicle.
22. As already stated above, learned counsel for the appellant-Insurance Company submits that, she would not press the aspect of quantum. Under these circumstances, the judgment and award as regard quantum needs to be confirmed. However, the judgment and award need to be modified regarding the order pertaining to 'Pay and Recovery'. Hence, I proceed to pass the following:-
19
ORDER The appeals in MFA No. 200672/2014 C/W. MFA Nos. 200673/2014, 201484/2014, 201485/2014 and 201486/2014 are allowed-in-part. The judgment and award dated 31.12.2013 passed by the Tribunal viz., Principal Senior Civil Judge and MACT, Gulbarga, in MVC No.859/2012 and MVC No. 860/2012 and also the Judgment and award dated 17.06.2014 in MVC Nos. 839/2012, 840/2012 and 841/2012, stand confirmed.
However, the appellant-Insurance Company in all the appeals is directed to pay the compensation amount awarded by the Tribunal along with accrued interest thereon to the claimants and then it is at liberty to recover the same from the Respondent No.1-Owner.
The statutory amount in deposit in respect of these appeals shall be transmitted to the concerned Tribunal.
Sd/-
JUDGE KGR*