Karnataka High Court
The Regional Manager vs Sandhya on 31 October, 2022
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
MFA NO.1804/2019(MV-D)
BETWEEN:
THE REGIONAL MANAGER
HDFC ERGO GIC. LTD.
LEELA BUSINESS PARK
6TH FLOOR, ANDERI, KURLA ROAD
MUMBAI-400 059
AT NOW REP. BY LEGAL MANAGER
HDFC ERGO GIC. LTD.
2ND FLOOR, NO.25/1
BUILDING NO.2
SHANKARNARAYANA BUILDING
MG ROAD, BANGALORE-560 001
... APPELLANT
(BY SRI. PRADEEP .B, ADVOCATE)
AND:
1. SANDHYA W/O LATE B.L. NAGANNA
AGED ABOUT 31 YEARS
2. CHETHANA S/O LATE B.L. NAGANNA
AGED ABOUT 10 YEARS
3. ANKITHA D/O LATE B.L. NAGANNA
AGED ABOUT 9 YEARS
SINCE RESPONDENT NO.2 AND 3
ARE MINORS THEY WILL BE
REPRESENTED BY THEIR N/G MOTHER
SMT. SANDHYA
ALL ARE R/AT H. BASAVANA HALLI
2
VILLAGE, HOSAKERE MAJARA
MEDIGESHI HOBLI
MADHUGIRI TALUK-572 085
4. RANGASWAMAY G.B.
S/O BASAVEGOWDA
AGED ABOUT 53 YEARS
R/AT 22, ANNAPOORNESHWARI
BADAVANE, THIPPENAHALLI
NAGASANDRA POST
BANGALORE-560 073
... RESPONDENTS
(BY SRI. V. SRINIVAS, ADVOCATE FOR R1 TO R3,
R2 AND R3 MINOR REPRESENTED BY R1,
R4-SERVED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:05.12.2018
PASSED IN MVC NO.378/2016 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE, MACT, MADHUGIRI, AWARDING
COMPENSATION OF RS.10,99,000/- WITH INTEREST AT 6% P.A.
FROM THE DATE OF PETITION TILL REALIZATION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 27.09.2022, COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988 ('MV Act' for short) by the respondent No.2-Insurer to set aside the judgment in MVC No.378/2016 on the file of the Prl. Senior Civil Judge and MACT, Madhugiri dated 05.12.2018.
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2. For the sake of convenience, the parties herein are referred as per the ranks occupied by them before the Tribunal.
3. The brief factual matrix leading to the case are that:
On 18.09.2015 at about 7.30 p.m., the deceased Naganna and Ramesha were going for coolie work in a tempo bearing registration No.KA-52-2904 at H.Basavanahalli village. It is also alleged that at that time the driver of the said tempo drove the tempo in a rash and negligent manner in a reverse direction and dashed against the deceased who was standing behind the vehicle. Due to the impact, said Naganna fell down in to the drainage and sustained injuries. He was shifted to Hosakere Clinic and later on shifted to Raghavendra Nursing Home, Madhugiri, wherein he took treatment and returned to his house. On 20.09.2015 the deceased Naganna died in the house of the petitioners at 9.30 a.m. and later on post mortem was conducted and his death was due to accidental injuries. The 4 claimants assert that deceased was aged about 33 years and was earning Rs.20,000/- p.m. and due to his untimely death the claimants have lost their bread earner. The petitioner No.1 being the widow and petitioner Nos.2 and 3 are minor children are dependents and hence, they have filed claim petition under Section 166 of the MV Act claiming compensation of Rs.50,00,000/- with interest.
4. The respondent No.1 did not appear before the Court. Respondent No.2 filed objection statement denying the allegations and assertions made there under. It is contended that the deceased was a gratuitous passenger and was standing towards the edge of the tempo which has resulted in accident and there is clear breach of policy conditions and hence, they are disputing the liability.
5. The Tribunal after assessing the oral and documentary evidence has awarded a total compensation of Rs.10,99,000/- with interest at the rate of 6% p.a. from the date of petition. Being aggrieved by this award, the respondent-insurer is before this Court.
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6. Heard the arguments advanced by the learned counsel for the appellant-insurer and learned counsel for respondents-claimants. Perused the records.
7. Learned counsel for the appellant-insurer would contend that the records disclose that deceased was a gratuitous passenger travelling in the tempo. He further contended that he was not an employee in the tempo and the tempo was there to pick up him to attend some other coolie work. Hence, his status is nothing more than a gratuitous passenger. They were not working in tempo and hence, he would contend that the Tribunal has erred in fastening the liability on insurance company. He would also assert that even there is no order regarding pay and recovery and the complainant was not examined in the instant case and Pw.2 was examined whose name was not referred in the complaint. It is also asserted that his cross examination reveals that deceased was travelling in the tempo and hence, he would dispute the liability and prayed for allowing the appeal. 6
8. Per contra, the learned counsel for the respondents-claimants would support the judgment and award passed by the Tribunal. He would contend that deceased was a third party as the tempo hit him while he was standing behind the tempo, while it was driven in a reverse direction and hence, the insurance company is liable. He would also placed reliance on the decision of the full Bench of this Court in the case of New India Assurance Co. Ltd. Vs. Yallavva reported in LAWS (KAR)-2020-5-131. Hence, he would seek for dismissing the appeal.
9. Having heard the arguments and perusing the records, it is not under serious dispute that the deceased Naganna died in the road traffic accident involving the offending tempo. It is also not under serious dispute that the tempo was insured with respondent-Insurance Company. Admittedly it is a goods carriage vehicle and the main contention of the appellant is that deceased was a gratuitous passenger.
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10. Though all along it is asserted by the claimants that deceased was standing behind the tempo and tempo hit him while taking reverse, the prosecution records clearly establish that the deceased was travelling in the tempo by standing on the edge of body of the tempo. This fact is again consolidated by the cross examination of Pw.2. Hence, undisputedly the deceased was travelling in the tempo. It is also an undisputed fact that he was not employed by the owner of the tempo and tempo came there to pick up him in order to engage him in coolie work by some other person. Hence, it is also evident that he was not employed in tempo. On these points it is all along argued that he was a gratuitous passenger. However, this issue has been covered by the full Court Bench of this Court in New India Assurance Co. ltd. vs. Yallava, wherein the full bench of this Court has clearly held that when the deceased was a gratuitous passenger, the Court is at liberty to pass the order fastening the liability on insurance company with an option to pay and recover. The full Bench of this Court in the above said case has considered the decisions of the Hon'ble Apex Court in National Insurance 8 Co. Ltd. vs. Baljit Kaur and Others reported in 2004 2 SCC 1, Oriental Insurance Co. Ltd. vs. Brij Mohan and Others reported in 2007 7 SCC 56, National Insurance Company Limited vs. Kaushalaya Devi and Others reported in 2008 8 SCC 246, Balbir Kaur and Others vs. New India Assurance Company and Others reported in 2009 13 SCC 370 and number of other decisions.
11. The full bench of this Court has elaborately discussed this issue of gratuitous passenger and also considered the Provisions of Section 147(1)(b) and basing on the decision of the Hon'ble Apex Court has held that though there is breach of policy conditions the insurance company is liable to indemnify the claimants and is at liberty to recover the same from the owner. Even the Hon'ble Apex Court has all along held that though there is breach of policy conditions pay and recover order is required to be passed.
12. The full bench has also considered various other decisions of the Hon'ble Apex Court and held that power under Articles 141 and 142 of the Constitution of India can 9 also be exercised by this Court for passing an order of pay and recovery. Hence, considering these facts and circumstances and consistence reporting of the Hon'ble Apex Court as well as full Court decision of this Court, it is evident that though it is a case of gratuitous passenger, the insurance company is liable to pay compensation to the claimants and recover the same from the owner. In the instant case, the Tribunal though rightly fastened the liability on the insurance company but no order is passed regarding pay and recovery and admittedly there is clear breach of policy conditions.
13. Further the records disclose that there is no serious dispute regarding the quantum of compensation awarded to the tune of Rs.10,99,000/- with interest at the rate of 6% p.a. Looking to these facts and circumstances, the liability fastened by the Tribunal cannot be interfered with and the appeal can be allowed only to the extent of pay and recovery. Hence, looking to these facts and circumstances, the appeal needs to be allowed in part and accordingly, I proceed to pass the following:
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ORDER i. The appeal is allowed-in-part.
ii. The judgment and award in MVC No.378/2016 on the file of the Prl. Senior Civil Judge and MACT, Madhugiri dated 05.12.2018 is confirmed holding the appellant-Insurance Company is liable to pay the compensation.
iii. However, the insurance company is at liberty to recover the same from the owner for breach of policy conditions in these proceedings only. iv. The statutory deposit shall be transmitted to the concerned Tribunal.
Sd/-
JUDGE NS CT:NR