Karnataka High Court
The Oriental Insurance Co Ltd vs K Shivarao S/O K Kutumbarao on 2 March, 2010
Author: N.K.Patil
Bench: N.K.Patil
IN THE HIGH COURT OF KARNATAKA, CIRCUIT BENCH AT
DHARWAD.
DATED THIS THE 2ND DAY OF MARCH 2opI'eV:'V':T.
PRESENT Ru la
THE HON'BLE MR.JUsTICE~--N,I§.I§liTI'LE1v
THE HON'BLE MR.
Miscellaneous First Aplpelal'p'vNo';~..£§40 of 2v00.1:§
Between: X -- .. v
The Oriental Insurance_.Co.;L"td'.* V. -
Regional Office, Rep. its Asst. Ielvlanager' =
No.44~45, Leo Corn-Iplelgsg,_-Revsidency Road .
Bangalore---25=i
p .. Appellant
(By Sri LaxgnanE;II1aIifIpdd:aIe_,';Advsgatejl
And: I A I ._ .V ..
1. K.Sh1varao I{.ll{llutu1r1l:)arao
Major by age, Oecr ' Contractor
_ R / o Patilnagar; Koppal
Balappa /«o 'Jodappa Bavikatti
'A._gedr.ai3oVut.V_3O lyieairs, Labour
R/0 Hosur; Tq. Koppai .. Respondents
(Bty Sri Reddy, Advocate for R2, R1 service held «. ~ eufficient) " A' ''10-' Tl'1is;miscellaneous first appeal is filed u / s 173(1) of MV Act again'; the judgment and award dt. 29.11.2000 passed in MVC No.339/1996 on the file of the Civil Judge (Sr.Dn.) and MACT, Koppal partly allowing the claim petition and etc. This appeal coming on for final hearinglijthisfliday, Pachchapure J ., delivered the following: T ' 1- "
JUDGMENT} * This appeal by the insurer has billed»'cltial1engi.rig.iVitl1ex liability to pay compensation for tl1_e'l"injuriie's .sustaine'd]by~ the 2nd respondent--claimant before the Tribuna'l;_
2. The facts relevant appeal are as under: 9 9 9 9 V 9 it it We will per the rank before the Tribunal for the 99 poifrficonvenience. The 2nd respondent herein filed a lbefiore under Section 166 of the Motor Vehicles Act compensation for the injuries sustained in_the«motorllirehicle accident which occurred on 29.04.1996 at about 'lLebageri cross on Kushtagi--Koppal road. On datefiof the -iaccident the claimant was travelling in the lorry gregiistration No.KA 35/ 3699 a heavy goods vehicle and the 9'-p_""dri';e1-idrove it in a rash and negligent manner and ultimately lost lliconvtroli over the vehicle and the vehicle met with an accident. in bi;
the circumstances, the claimant sustained injuries and was treated in different hospitals.
3. The claimant was a labour earning abot_1t'*i3ls';:f'z.'.,:()"G:C),'----; , and he was disabled to do any work and in-..thi*3 uC~irouirnstanc_es.,;;v.he claimed compensation of Rs.8,50*,QQO/~« Tor" .S1.1l';VI'+f:lCI'l'I'1g:,VVe.
mental agony, medical expenses, loss' fu_tureiin(;_ornie etc.
4. In pursuance of 'the._ii*espondent No.1, the owner and the ««A;7p(§spoi1deint."i.e§; herein insurer appeared before objeotion statement denying the rash and" also the quantum of compensation. arbitrary and unreasonable. Respondent No.ii2¥ins'urer the contention that the claimant §zr'as.Va passeinigerand there was no liability covered under theapwhich has been executed in favour of the ii"»..___owner."ofl'the On these grounds, the respondents sought _l>..for'dismissa1 the petition.
\>/\
5. On the basis of the pleadings, Tribunal framed issues and thereafter the claimant was examined as PW1 and as PW2 and in their evidence documents Ex.P1 to P2 Respondents did not lead any evidence. the b Tribunal on appreciation of the material.'availablie': on awarded a sum of Rs.7,45,000/-- with inte'17est at the respondents»1 and 2 to pay holding them jointly and severally liable to:_rnake?_iA Aaarieved by the judgment and award, the this Court in appeal.
6. It Ciourtiiiafter hearing the learned counsel for:E'--the«i. . judgment and order dated 12.12.2002 udisrnissed. and thereafter at the request of reviewflpetition was filed in No.1"/7 / 2003 and the said ppetiitioneainelr be allowed vide order dated 20.11.2003. It is ' 2' =..___under these circumstances that we are hearing the learned counsel the appellantvand also the learned counsel for the respondent ':."'Cl"Eli£'ll:'IL51l'1lZr."~i'T116 18* respondent has been served and remained 2 ' -unrepresented. :
7. It is the contention of the learned counsel for the appellant that the claimant was a fare paid passenger an'dathatV.the insurance company has not covered the compensation for such fare paid passenhgersié The for the respondent~clairnant submits claimants, the insurance compa'n3~...~'.wasll'-held therefore, he submits that theM_i:'insurer it to pay compensation to the claiman;tsi'* _A A Z
8. in View lppriva-lo 'raised, the Point that arises for our
(i) The pay the compensation to the clairnant? ' ii 2 2
(ii) What order?' the claim petition reveals that on the date the aepeidenthtljzell claimant was travelling in the lorry bearing
-.l./fr-egis-tration" 35/ 3699 a heavy goods vehicle. There is no mdispute the vehicle in question is a goods vehicle and it is the h plea of the claimant that he was travelling in the said lorry b4 The claimant has been examined as PW1. He states that paid an amount of Rs.8/-- towards the charges for travelling i_nV.Vt_hielorry which is not disputed by both the parties. There.
admission by the claimant that he was amfare was travelling in the lorry on payment oif__an_;».;~;;;31in«,t_i:
insurer contends that there is no coverageithep were ; fare paid passengers in the lorry. produced the copy of the insurance policzyiiat perusal of the policy does not reveal the persons who were travelling in the piaiidii-V.passengers. In such circumstances, condition in the policy accepting the farieimpaid passenger, we do not think that may be held responsible to make the payment. V. A i "counsel for the claimant has relied upon the ivy-i..s.decisionof th_¢'}iipe}< Court in AIR 2008 so 2871 (United India .ji_igi'_--«In's'urance Cou.":Ltd. Vs. Suresh K.K. 8:. Another) wherein the facts that the owner of the goods was travelling in the goods i" =carr'iage Without goods, it was held that travel in the capacity other DC./» than owner of goods, the insurer is not liable. «Further considering para 15 of the decision referred to supra, the Apex Court ..hie.ldVthat keeping in View of the fact that the accident took placeiionii 13.08.1999 and further the claimant was a cooli_e*'he.: not= .
in a position to realise his dues from ownerioif 9 in such circumstances, to do complete justice between. parties a direction was given by the Apex toVtheia'ppell'an.ti}to pay the amount to the claimant and from the owner of the vehicle. But anyhow the decisiiQv%1i_'.-reveals that the person who was was the owner of I goods without aiiii was travelling. The facts are ailitiogeithie'r_V seen from the facts on hand.
11.:._jiii'hg;...cla.irnanit wastravelling in the vehicle as a fare paid pas'senger.' _ Heiaciiniitspgthat fact in his evidence that he had paid an iiit"tA....aVmount giiiof as charges for his travel. In these eif-«circurnstanees; we are of the opinion that the principle laid down Court in the decision referred to above would not be 51,.
-12. Apart from this it is relevant to note that the Ape}; Court has discretion under Article 142 of the Constitution to«jdirect"--the insurer to make the payment and to recover the owner. This Court cannot exercise the__disc_retion"V'est§.di'wVi_th Apex Court under Article 142 of the Constitution. ' A
13. Furthermore, it is releyian-t:_'to_p_v note=«--iithflpatVAVvii?x2\rhen the insurance policy does not cover' a afare paid passenger there cannot be any company to make the paymeniii matter, we are of the opinion that is not liable to pay the compensation the responsibility of the owner to satisfy the claim--...' '-- it it p14';r'--'i'.he"i'matter isipiending since from the year 2001 and the insuraiicei' .c:o--mpa:ny_}~ had deposited the compensation of Ai"~i'Rs.4,16;3'§i9/g~ has been already paid by the insurance _._i.i'.j'evo1_jnpany to the claimant and an amount of Rs.4,00,000/-- has mbeen deposit at Canara Bank, Koppal. So far as the amount that n paid is concerned, the steps will have to be taken by the z>L insurance company for the recovery. But when the owner is responsible to make this payment, we think it would be and proper to direct the insurer of the vehicle to recoverpypptifipg-:amount from the owner of the vehicle instead of recoveriiié claimant who is suffering from parap'legia«.dLie sustained in the accident. So far as the concerned, it is not yet paid» suchh circumstances, the amount in exces's,,amount-that has been paid to the claimant has to claimant from the owner of the vehicle theiarriourltjiinfdyeposithas to be refunded to the insurance. co1n_pan3*. "H:en"c--e_ we proceed to pass the following order:
(i) ;I'i1e 4' in part holding the owner
-- ..responsible7to the payment of compensation that 1'ia,s been the fact that an amount of Rs.4,16,339/_ i paid by the insurer to the claimant already, " said amount is directed to be recovered by the insurance company from the owner of the vehicle i.e., respondent No.1 herein and the amount of 5;, F'mg/ 10 Rs.-41,00,000/~ in deposit at Canara Bank, Koppal is ordered to be refunded to the insurance conipsiiafand the claimant is at liberty to recover _'tE:1e amount of compensation awarded_--"b'y"t'he '"T1fibuna'1"» from the oWr1e1'i.e. respondent N'o...E h'er_eini' it s §"Tf\ JUDGE