Karnataka High Court
M/S Oriental Insurance Co Ltd vs Rudrappa S/O. Hanumappa Dannur on 18 July, 2013
Author: H.S.Kempanna
Bench: H.S.Kempanna
:1:
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 18TH DAY OF JULY 2013
BEFORE
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
MISCELLANEOUS FIRST APPEAL NO.15392/2007 (MV)
C/W.
MISCELLANEOUS FIRST APPEAL NO.15393/2007 (MV)
IN M.F.A. NO.15392/2007 (MV)
BETWEEN:
M/S. ORIENTAL INSURANCE CO. LTD.
BY ITS DIVISIONAL MANAGER
BELLARY
REPRESENTED BY REGIONAL MANAGER
LEO COMPLEX, 44/45 RESIDENCY ROAD
BAWNGALORE - 25.
. ...APPELLANT
(BY SRI.SHRIKANT J. BHAT, ADV.,)
AND:
1. RUDRAPPA
S/O. HANUMAPPA DANNUR
AGED 30 YEARS
OCC: AGRICULTURE
R/O. KYADIGUMPI VILLAGE
TQ. KUSHTAGI, KOPPAL DISTRICT.
2. MALLAPPA
S/O. GANAPATI KALAVE
R/O. SAMBAJI NAGAR
:2:
ZODAPATTI
KHOLLAPUR, MAHARASHTRA
... RESPONDENTS
(R.1 SERVED
R.2 NOTICE HELD SUFFICIENT)
THIS APPEAL IS FILED UNDER SECTION 173 (1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
22.9.2007 PASSED IN MVC NO.282/2006 ON THE FILE OF
THE ADDL. MACT & FAST TRACK COURT -I, KOPPAL,
AWARING A COMPENSATION OF RS.28,000/- WITH
INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
DEPOSIT.
IN M.F.A. NO.15393/2007 (MV)
BETWEEN:
M/S. ORIENTAL INSURANCE CO. LTD.
BY ITS DIVISIONAL MANAGER
BELLARY
REPRESENTED BY REGIONAL MANAGER
LEO COMPLEX, 44/45 RESIDENCY ROAD
BAWNGALORE - 25.
. ...APPELLANT
(BY SRI.SHRIKANT J. BHAT, ADV.,)
AND:
1. PADIYAPPA
S/O. HANUMAPPA DANNUR
AGED 30 YEARS
OCC: AGRICULTURE
R/O. KYADIGUMPI VILLAGE
TQ. KUSHTAGI, KOPPAL DISTRICT.
2. MALLAPPA
S/O. GANAPATI KALAVE
:3:
R/O. SAMBAJI NAGAR
ZODAPATTI
KHOLLAPUR, MAHARASHTRA
... RESPONDENTS
(R.1 & R.2 NOTICE HELD SUFFICIENT)
THIS APPEAL IS FILED UNDER SECTION 173 (1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
22.9.2007 PASSED IN MVC NO.283/2006 ON THE FILE OF
THE ADDL. MACT & FAST TRACK COURT -I, KOPPAL,
AWARING A COMPENSATION OF RS.98,272/- WITH
INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
DEPOSIT.
THESE APPEALS COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though these appeals are listed for admission, with consent of the learned counsel for the respective parties it is taken up for final disposal.
2. These two appeals are preferred by the Insurance Company challenging the liability fastened on them.
3. For the sake of convenience, the parties in these appeals would be referred to by their rankings as :4: they are arrayed in the claim petition before the Tribunal.
4. The claimants are the injured in the case. According to them, they were aged about 30 years and 45 years, agriculturists by occupation, earning more than Rs.8,000/- per month. On 06.05.2005 the petitioners were travelling in jeep bearing Reg. No.MH- 09/G-853. When the said jeep was near Narasapur coming within the limits of Taralakatti situated on Kushtagi - Koppal road on account of rash and negligent driving of the jeep by its driver, the tyre of the vehicle burst, due to which it turtled resulting in injuries to them. Immediately, they were shifted to the Hospital where they took treatment by spending huge money. Despite the same, they are not completely cured, due to which, they are unable to carry on their avocation, which has resulted in loss of income to them. Hence they filed their respective claim petitions praying :5: for grant of compensation from the respondents, who are the driver, owners and insurer of the jeep bearing Reg. No.KA-09-G-853.
5. After service of notice, the first respondent/driver remained absence. Hence, he was placed ex-parte. Case against respondent No.2, one of the owner, was dismissed. Third respondent/insurer and fourth respondent, another owner contested the claim of the petitioners.
6. Third respondent denied all the averments made by the petitioners in their petitions. They contended that the driver of the jeep did not possess valid and effective driving licence, as such, the owner has committed breach of conditions of the policy. They also further contended the vehicle was not to be used for carrying passengers on hire basis. At the time of accident, 15 persons were being carried in the vehicle, as the seating capacity is 6+1 including the driver. :6: They also contended that the vehicle is covered under the Act policy and as no extra premium had been paid by the owner covering the risk of the inmates of the vehicle, they are not liable to pay any compensation, accordingly, sought for dismissal of the petition.
7. Fourth respondent/owner contended that the accident was an inevitable incident, which occurred due to bursting of the tyre. He also denied the averments made by the petitioners in their petitions. He further contended that driver of the jeep did possess valid and effective driving licence and as his vehicle had been insured with the third respondent, they are liable to pay compensation. Accordingly, sought for dismissal of the petitions as against him.
8. On the basis of the above pleadings the tribunal framed the following issues:
1. Whether the petitioners prove that, they received grievous injuries in an accident which occurred on 06.05.2005 at about 2.30 :7: p.m. within the limits of Narasapur village on Kushtagi - Koppal road duet o rash and negligent driving of Mahindar Jeep bearing No.MH-09/G-853 by its driver/respondent No.1
2. Whether the petitioners are entitled for compensation? If so, how much and from whom?
3. What order?
9. The claimants in support of their case got themselves examined as PWs.1 and 2 and the doctor, who treated them as PW.3. They produced in all 13 documents, which came to be marked as Exs.P.1 to P.13. On behalf of the respondents, they did not choose to lead any oral evidence, on the other hand, they produced two documents namely, insurance policy and driving licence, which came to be marked as Exs.R.1 and R.2.
10. The tribunal on considering the oral and documentary evidence on record held that the accident in question has taken place on account of rash and :8: negligent driving of the jeep by its driver, as such, the claimants have established actionable negligence. Further looking to the evidence of the claimants and documents placed on record awarded in all a sum of Rs.28,000/- and Rs.98,272/-to the claimants namely, Rudrappa in M.V.C.No.282/2006 and Padiyappa in M.V.C.No.283/2006 with interest at 6% p.a. from the date of petition till realisation. It further saddled the liability of payment of compensation on the respondents jointly and severally.
11. The appellant/Insurance Company being aggrieved by the judgment and order fastening the liability on them are in appeal before this Court.
12. Learned counsel for the appellant/Insurance Company contended that the policy that had been issued as per Ex.R.1 in respect of the jeep bearing Reg.No.MH-09/G-853 is only an Act policy. No extra premium had been collected from the owner covering :9: the risk of the inmates of the vehicle. He further contended that it being an Act policy, the risk of only third party is covered and not the risk of the persons travelling in the vehicle. In support of his submission he relied upon the judgment in the case of Branch Manager, The New India Assurance Co. Ltd. V. Mahadev Pandurang Patil, reported in LAWS (KAR) - 2010 -10-
57. Therefore, a case for interference is made out.
13. The claimants and the owner, who have been served, remained absent.
14. In view of the aforementioned facts, contentions urged and the material now placed before me, the point that arises for my consideration is:-
"Whether the impugned judgment and order of the Tribunal fastening the liability on the appellant/Insurance Company is sustainable?
15. Facts are not in dispute. The accident having taken place on account of actionable negligence : 10 : of the driver of the jeep resulting in injuries to the claimants is also not disputed. It is the case of the appellant/Insurance Company that the policy - Ex.R.1 that has been issued is an Act policy covering risk of only the third parties. They have not collected any extra premium covering the risk of inmates of the jeep. The Tribunal without appreciating this material has come to an erroneous conclusion in holding that the policy Ex.R.1 covers the risk of the inmates of the jeep and has erroneously fastened the liability on them, which is contrary to the material on record.
16. Ex.R.1 - policy, which is placed on record, discloses that it is an Act policy. It covers only the risk of the third parties. There is nothing indicated in the policy-Ex.R.1 to show that they have collected extra premium covering the risk of the inmates of the vehicle. This Court in the case of Branch Manager, The New India Assurance Co. Ltd. V. Mahadev Pandurang Patil, : 11 : has held; in case of an Act policy the risk of inmates of the vehicle is not covered. In order to cover their risk the owner has to pay extra premium. In this case, admittedly Ex.R.1 -policy does not disclose that the owner has paid any extra premium covering the risk of inmates of the jeep. Admittedly, the claimants were inmates in the jeep at the time of the accident. Since Ex.R.1 only an Act policy, the risk of inmates of the jeep is not covered. The Tribunal without looking into these aspects in its right perspective has come to an erroneous conclusion that the risk of the claimants is covered under Ex.R.1 - policy issued by the appellant/insurance company which is contrary to the material on record. Therefore, it cannot be sustained. Accordingly, I proceed to pass the following:
ORDER
(i) Both the appeals are allowed.: 12 :
(ii) The impugned judgment and order fastening the liability on the appellant/Insurance is set aside.
(iii) The liability to pay compensation as ordered by the Tribunal is fastened on the owner/fourth respondent before the Tribunal.
Registry is directed to refund the statutory amount deposited in these two appeals to the appellant/Insurance company.
SD/-
JUDGE SA