Karnataka High Court
The Regional Manager vs Sri. N R Somashekara on 28 August, 2018
Author: Krishna S Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
M.F.A. NO. 7279 OF 2011 (MV)
C/W
M.F.A. CROB. 188 OF 2011(MV)
IN M.F.A. NO. 7279 OF 2011:
BETWEEN:
THE REGIONAL MANAGER
UNITED INDIA INSURANCE CO.LTD.,
SHANKARANARAYANA BUIDLING,
M.G.ROAD, BENGALURU - 560 001
BY REGIONAL MANAGER UNITED INDIA
INSURANCE CO.LTD., 5TH FLOOR,
KRISHI BHAVAN, NURPATHUNGA ROAD,
HUDSON CIRCLE,
BENGALURU - 560 001.
... APPELLANT
(BY SRI.O MAHESH, ADVOCATE)
AND:
1. SRI. N R SOMASHEKARA
AGED ABOUT 43 YEARS
S/O RAMEGOWDA
R/AT NAGATHIHALLI
BINDIGANAVILE HOBLI
NAGAMANGALA TALUK - 571 422,
MANDYA DISTRICT.
2. SRI G K YOGESH, MAJOR
S/O KRISHNAPPA
GONIBEEDU, BADRAVATHI TALUK
SHIMOGA DISTRICT 577 201 (DISMISSED)
2
3. MR SHAGI FIRDOS, MAJOR
S/O ABDUL HAQ
VALLABHABAI ROAD,
HASSAN 573 201
... RESPONDENTS
(BY SRI. N SURENDRA KUMAR, ADVOCATE FOR R1;
VIDE ORDER DATED 16/09/2011,
NOTICE TO R2 DISPENSED WITH, R3 IS SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 14.02.2011 PASSED IN
MVC NO.6868/2006 ON THE FILE OF THE CHIEF JUDGE,
PRINCIPAL MACT, BANGALORE, AWARDING A
COMPENSATION OF Rs.3,70,188/- WITH INTEREST @ 6%
P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN M.F.A. CROB. 188 OF 2011:
BETWEEN:
SRI N R SOMASHEKAR
S/O RAMEGOWDA,
AGED ABOUT 42 YEARS
R/A NAGATHIHALLI
BINDIGNAVILE HOBLI
NAGAMANGALA TALUK
MANDYA DISTRICT - 571418.
... CROSS OBJECTOR
(BY SRI.N SURENDRA KUMAR, ADVOCATE)
AND:
1. THE UNITED INDIA INSURANCE CO LTD
SHANKARNARAYANANA BUILDING
M G ROAD
BANGALORE
BY ITS MANAGER
2. SRI G K YOGESH
S/O KRISHNAPPA, MAJOR
GONIBEEDU
BHADRAVATHI TALUK
SHIMOGA DISTRICT(DISMISSED)
3
3. MR.SHAGI FIRDOS
S/O ABDUL HAQ
VALLABHABAI ROAD
HASSAN
... RESPONDENTS
THIS MFA.CROB IN MFA NO.7279/2011 FILED U/O
41, RULE 22 OF CPC, AGAINST THE JUDGMENT AND
AWARD DATED 14.2.2011 PASSED IN MVC
NO.6868/2006 ON THE FILE OF PRINCIPAL MACT, CHIEF
JUDGE, COURT OF SMALL CAUSES, BANGALORE,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL CONNECTED WITH MFA CROB
COMING ON FOR ORDERS THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal by the insured challenges the judgment and award dated 14.02.2011 made by Principal M.A.C.T. Bengaluru allowing M.V.C.No.6868/2006, whereby a compensation of Rs.3,70,188/- with interest at the rate of 6% per annum with default clause of 9% interest, has been awarded.
2. The brief facts state are that:
a) On 08.02.2006 at around 11.00 p.m. the Maruti Omni Van bearing Registration No.KA-02-B-0133 in which the claimant was traveling as a gratuitous passenger met with an accident resulting into grievous injuries to the 4 claimant. In his claim petition in M.V.C.No.6868/2006, the appellant insurer had filed the Written Statement resisting the claim on various grounds.
b) To prove the claim, the claimant was examined as PW-1 and Dr.Hamsa.H.N. who had treated the injuries of the claimant, was examined as PW-2; from the claimant's side 15 documents came to be marked as per Ex.P-1 to P-15, which included the Police Papers and Medical Records. From the side of the insurer or the owner of the vehicle, none was examined nor any document was got marked.
c) The M.A.C.T. after looking to the pleadings of the parties and after appreciating the evidentiary material on record has passed the impugned judgment and award.
3. The learned counsel for the appellant-insurer challenges the judgment and award on the following grounds:
a) The accident took place at Hirisave in Hassan district but the claim petition was filed in M.A.C.T., Bengaluru which lacked territorial jurisdiction and therefore, the impugned judgment and award are a nullity; 5
b) The claimant is totally a stranger to the owner or driver of the offending vehicle and therefore he should be presumed to have traveled as a paid passenger and consequently under the terms of the Insurance Policy, the liability of the insurer is excluded.
c) The claimant has not approached the M.A.C.T. with clean hands inasmuch as though he claimed to be admitted as inpatient during the period between 09.06.2006 and 28.06.2006, he was present when the spot mahazar at Ex.P-5 was drawn by the police on 12.06.2006.
d) The claimant who was examined as PW-2 had stated to the police on 22.6.2006 that the erstwhile owner of the offending vehicle was personally known to him and that he has taken up the same contention both in the claim petition and in the amendment application and therefore his evidence is unworthy of credential.
4. The learned counsel for the claimant though made very short submission, was very effective in refuting the submission of the insurer's side. He states that the M.A.C.T. has considered all aspects of the matter in the right perspective and the contentions that are urged by the 6 insurer's side apart from being unsubstantiated are not legally tenable. In short, he seeks dismissal of the appeal.
5. I have heard the learned counsel for the insurer and the learned counsel for the claimant. I have read the appeal papers and have perused the relevant original papers of the Lower Court Records.
6. The contention of the appellant is that the accident happened on 08.06.2006 at Hirisave in Hassan District, whereas the Bengaluru M.A.C.T. has entertained the claim petition and therefore the impugned award is contrary to law, if not, non est., is legally incorrect. Ordinarily, the question of territorial jurisdiction has to be taken in the Written Statement at the earliest point of time. However, such a contention is not taken up in the Written Statement filed by the insurer at all. Secondly, the Apex Court has consistently held that the question of territorial jurisdiction does not go to the root of the matter and that in the absence of any material prejudice having been shown, the question will not be ordinarily entertained as a ground for avoiding Award liability. Therefore this contention is rejected.
7
7. The contention that the claimant was a non- gratuitous passenger and therefore going by the terms and conditions of the Insurance Policy, the insurer is not liable, is again liable to be rejected since there is no such term and condition in the contract of insurance at all. The Division Bench of this Court in the case of UNITED INDIA INSURANCE CO., LTD. REP. BY ITS DM vs. KALAWATHI AND OTHERS reported in ILR 2011 KAR 1191 has held at paragraph 4 as under:
"4. That apart we do not find any rationale for the insurer as a 'State' to discriminate between the paid inmate and the gratuitous inmate when the vehicle is covered with comprehensive policy. If the vehicle is a private vehicle plyed on hire, the owner may be liable for the penal and fiscal consequences under the Motor Vehicles Act for payment of penalty and taxes applicable to the commercial vehicles. But from the stand-point of the insurer, it makes no difference whether the inmate is a paid passenger or gratuitous passenger. When the policy issued is a comprehensive policy covering risk of the inmates for a private vehicle, the insurer cannot avoid liability on the ground that the inmate is a paid passenger. In that view, we hold that the terms in the policy, which discriminates the liability of the insurer for the paid inmate and gratuitous inmate is discriminatory and illegal".
Thus, the question now raised by the insurer in this appeal is already answered by the Division Bench against the 8 insurer and therefore this contention too, meets the same fate.
8. The Counsel next contends that the claimant has not approached the M.A.C.T. with clean hands, inasmuch as he was present on 12.06.2006 at the accident spot for drawing the spot mahazar at Ex.P-5, when the records show that he was an inpatient in the hospital from 09.06.2006 to 28.06.2006; the claimant had stated to the police on 22.06.2006 that the second respondent-erstwhile owner of the vehicle was known to him and that he continues to assert the same in the claim petition, in the amendment application and also in the amended claim petition. I decline to entertain this contention since the same has not been urged before the M.A.C.T. Even if it is taken to be true, still nothing emerges therefrom. Even otherwise also, the said contention does not stand substantiated going by the evidentiary material on record, which shows that, the witness to the Spot Mahazar was only the Claimant's namesake and not the Claimant himself.
9. In the above circumstances, no other ground having been urged, the appeal being worthy of merits, stands dismissed.
9
The amount in deposit shall be transmitted along with L.C.R. to the jurisdictional M.A.C.T. for being disbursed as compensation to the claimant forthwith. M.F.A. CROB NO.188/2011
This M.F.A. Crob. Challenges the judgment and award dated 14.02.2011 made by Principal M.A.C.T. Bengaluru allowing M.V.C.No.6868/2006. The Claimant has given up his prayer for enhancement of the compensation, by filing a Memo. However, he challenges the stipulation as to bank deposit.
The only grievance of the Cross Objector is that regard being had to the facts of the case, the M.A.C.T could not have stipulated a condition in the impugned judgment and award as to requirement of bank deposit of a certain portion of the award amount, for a certain period. There is force in this submission. Therefore the stipulation as to bank deposit stands relaxed. The M.A.C.T. is directed to release the entire award amount to the claimant, forthwith.
Costs made easy.
Sd/-
JUDGE Snb/