Karnataka High Court
United India Insurance Co. Ltd. By Its ... vs S.R. Prasanna S/O Siddaveerappa, K. ... on 4 February, 2008
Equivalent citations: ILR2008KAR1323, AIR 2008 (NOC) 1435 (KAR.), 2008 (5) ABR (NOC) 921 (KAR.) = 2008 (3) AIR KAR R 82, 2008 (3) AIR KAR R 82, 2008 AIHC (N0C) 691 (KAR.) = 2008 (3) AIR KAR R 82
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
JUDGMENT Ram Mohan Reddy, J.
1. The insurer of a public service vehicle, aggrieved by the judgment and award dated 27-05-2005 in M.V.C. No. 1067/2000 on the file of the Motor Accident Claims Tribunal, Bangalore (SCCH-2) (for short 'MACT), has preferred this appeal.
2. Cross objection is preferred by the claimant in M.V.C. No. 1067/2000 arraigned as Respondent No. 1 in M.F.A. 9318/2005, calling in question the finding of the MACT attributing contributory negligence of 20% on the part of the deceased and 80% to the driver of the offending motor vehicle, as also for enhancement of compensation.
3. Having heard the learned Counsel for the parties, in the first place, the cross-objection is not maintainable since it is not in dispute that in the appeal preferred by the Insurance Company, the only ground which is urged is about its non-liability. Having regard to the law laid down by the Division Bench of this Court in United India Insurance Co. v. Balasubramanyam holding that the combined effect of Section 110D and Order 41 Rule 22 CPC is that in an appeal presented by an insurer in which the only ground of challenge is with reference to the extent of liability, the cross objector in such an appeal cannot be permitted to contest the quantum of compensation or the findings recorded on any other issue, this cross-objection deserves to be rejected.
4. Learned Counsel for the appellant contends that the passenger bus being hired by the BTS Division of KSRTC, the MACT was not justified in fastening the liability on the appellant to pay the compensation in view of the contract of insurance which provided for an indemnity in favour of the insured against the risk of injuries/death of passengers and third parties arising out of the accident involving the motor vehicle in question. According to the learned Counsel, the BTS Division of KSRTC, the 3rd respondent herein having admittedly hired the vehicle, fell within the definition of the term 'owner' under Sub-section (30) of Section 2 of the Motor Vehicles Act, 1988 (For short 'Act), exonerating the appellant from being fastened with the liability to pay compensation to the 1st respondent-claimant
5. Per contra, learned Counsel for the claimant and the General Manager, BTS, jointly contend that the appellant, arraigned as respondent before the MACT, did neither plead nor prove that the terms of the policy of insurance did provide for exoneration of the appellant from paying the compensation awarded in favour of the 1st respondent
6. Admittedly, the appellant did not lead evidence either oral or documentary nor place on record the policy of insurance in the proceeding before the MACT. In the absence of relevant material constituting substantial legal evidence of a fact in issue, more appropriately the contention of the appellant to be exonerated of the liability to pay the compensation, it is too tar-fetched for the appellant, for the first time in this appeal, to contend so. In my opinion, merely because the 3rd respondent in its Statement of objections did mention that it had taken on hire the motor vehicle in question, that by itself and nothing more cannot absolve the appellant of the liability to pay the compensation when the appellant had admittedly issued a policy of insurance covering the risk of passengers/3rd parties, on the date of accident. The plea of the appellant being one of fact, over the terms and conditions of the policy of insurance, having not been pleaded and proved in evidence, before the MACT, deserves to be rejected.
7. In the circumstances, this appeal is without merit and is accordingly, dismissed. Cross objections are also dismissed. The amount in deposit is directed to be transmitted to the MACT, forthwith.