Karnataka High Court
Divisional Manager National Ins Co Ltd vs Laxmawwa on 1 August, 2008
Bench: S.R.Bannurmath, A.N.Venugopala Gowda
, _ " " V? '¢'J*/.9 Channabasappa Koppad, " _"NowA.'aged about 48 years, Rum. Geeta, D/ 0 Chinnappa Lamani, Now aged about 12 years, Kumar Anrsappa, S / o Chinnappa Lamam, Now aged about 9 years, Rcspondcnts No.2 and 3 Represented by their naumaj The 1*" respondant hwein. A11 are r/0 Gundur _ Tq.: Hangal, ; ' " Now at Mahadev Nagar, Altiubfii. 4. Ij)hanjaya,.. = __ . S/o Narajran sa».MéhaIfw?ade',V..V' 0Wner<>fvehiCie.bcr=I1ng ' No.KA?-25/ 6348, ?i~.;i12a<;e By his L.TR.,VS'mt;.,.. ' ' W/o Dha13jayaVI§rIr;i*1am_rac1e; Age: Majolf, Rfd' Em}; Che1n1apef;h,V_ Nivas, Respondents in
MFA No.6277'/2007 (By Kuncaa-m, Adm, tbr C11? 1, mi. Mahesh Wodeyar, Adv., for R4) Smt. Occé Household work, 113/o Kalkeztt, New at Nagawar, Hubfi.
Dhanjaya, S / o Narayansa Meharwade, Owner ofvehicle bearing Nt).KA-25/6348, since deceased By his L.R., Smt. Roopa, W / 0 Dhanjaya Meharwade, Age: Major, R/0 Panji Oni, Chcxmapeth, Annapurna Nivas, Hubli. I (By Sri. Dinesh M. Kuucami, Ad{I1.";-ibrutl/}:{1,._VV: % g '2.
Sri. Mahesh Wodeyar,.V.Adv;V,"'fGr.: _ _ fl W/o Manappa ..
Now aged:a{ica;1t1ff43- ye.g3fs,.Vz ' Occ: Housghqld Work A :
D / 0 ' New Kuzja ' Di Marzappa zszow agg.-.~d a.pout 15 years, ago MaI1é;p_}'zi Karikyatanahalli, Ndw aged. about 15 years, Rcspdixéents No.3 and 4 herein since minor V' .Ré;p_rcsented by their natural guardian/mother ' '.'I"jnef 18* respondent herein, * T r/0 Kiaicri, now at Mahadev Nagar, % % gnumi.
5. Dhanjaya, S /0 Narayansa Meharwade, V «. V' __MFA~.N<2-628f9'fi2Q<)? 4
Owner ofvehicle bearing NCLKA-25/6348, since deceased By his L.R., Smt. Roopa, W / 0 Dhanjaya Meharwade, Age: Major, R/0 Panji Oni, Chennapeth, Annapurna Nivas, Hubli. 4 _._,...Respc_ndent$»ifl' MFA '1x3o";§29=4;2eQ 7" _ (By Sri. Dinesh M. K11lkam= :i,.Adv., fm:"C/R '
1. . Dh:-:£ij1jaya,AVVV"""»."-. Sri. Mahesh Wodcyar, Adyfgfor R5; A V A e Smt. Nagawwa' - _ W/0 Durgappa Bad __ 'i:1a.var,_ V Now aged about 51 years," f Oce: Household werk,V_V" V R/0 Anand "
Old Hubli, ?__E-I1,1:';f21'i.V . S / 0 Narayazxsa' , Owner 'ofvel1i(:}.e No..KA-2516348.; since deceased By; his L.R. , 'Smt. Roopa, W/"0 ifihanjaya Meharwade, »A 1 'Age: .vh4iaj'€;;';~~ /o Panji Gni, ' £_}henizapet-'3V,_iAnnapurna Nivas, Respondents in MFA 190.6298/2007 , uf(By;eSuri.VvIs)ir1esh M. Kulkarni, Adv, Ibr C/R1, Mahesh Wodeyar, Adm, fer R2} Smt. Renuka, W/o Shivamurtheppa Koti, Now aged about 27 years, Occ: Household work, g%§m3%éya_ %
2. Kulllari Nimtaala.
D/o Shivamurtheppa Kati, Now aged about 11 years,
3. Kumar Mifljkarjun, _ S / o Shivamurtheppa Kati, ' "
New aged about 8 years, ., Respondents No.2 and 3 mi.noi"--.5 _ _ . ' Represented by their nattuairguardian/. _ ' ._ Mother the 18*» respondent hén:in.. "
All are r/0 'l'awarkoppa', Now at Vidyanagar, Hubli.' " L j .. "
4. Gadigcpm.
R / 0 Tawarkfi-_pp'a,-- ' W/o:'Gadigep«:aV_I{ot;i; . _' Now about 58 Occ: Househoid W-wk," 4' V R / o_ '_I'awa7:=koppe;, 'I 'q.i ' ~Ha.ngal. . 'S./0 Narayaxnsa Meharwade, 'ow ;)i7iie_I1i;:1e bearing ~.Na..KA~&9I5/£3348, since deceased By his. L.R,.;Smt. Roopa, W/0 Bhahjaya Meharwade, » Agef Major, R/0 Panji Oni, .. .. A' Ch}:-.m1apct11, Annapurna Nivas, " "H1_j..bli.
" Respondents in MFA No.6302/2007 (By Sri. Dinesh M. Kulkarni, Adv, for C/R1, Sri. Mahesh Wodcyar, Adv., for R6}
2. {By Sri. mnesh M'§';=m:1L:%kam' ij,'Mv.,
1. . Shivappa, S _/ 0 Bhimappa Poojar, Now aged about 63 years, Occ: agriculture, Smt. Anusayya, W/0 Shivappa Poojar, Now aged about 63 years, H Both are r/0 Kusunur, '1'q.: Hangaj, ' New 1*] at Gancsh Path, Hubli. I ' ~ Dhanjaya, S/0 Narayansa Mehaxwadc, Owner ofvehiclc bearing ' _ '- No.KA-25/6348, v V' 'w _ By his L.R., Smt. , .
W/o Dhanjaya Mehanvada, ' Age: Major, R/oAPanji 0:31, ' . Chcnnapcth, ' ' Hubli.
' « Respondems in MFA N0.6287'/200?
V _ ibr C/R1 and 2, Sri. Mahtish Wgdeyarg,'-«fidvi, for R3) Smt.; ~ W/{>':'«G1E1_raQpa Navy?' aged about 63 years, occ: .Ho:1:~;:¢h6ic1 work, %R/9 Kus:;m,.fTq;: Hangl, No\}?'%r/ at.' Peth, Hubli. .. VS/0 Narayansa Mcharwadc, Ow1_1c1* or vehicle bearing "'--"_NQ.K;A»25/6348, since deceased . 33y"'nis L.R., Smt. Roopa, /0 Dhanjaya Meharwade, "Age: Major, R/o PanjiOn1,' Chennapeth, Annapurna. Nivras, Hubli.
Respondents in MFA N0.6288/ 2007 7 (By Sri. Dinesh M. Kulkarni, Adm, For C/RI, Sri. Mahesh Wodeyar, Adv, for R2}
1. Siddappa, .
S/0 Gangappa. Badiger, New aged about 63 years, Occ: agriculture,
2. Salt. Parimala, W /0 Siddappa Badimr, New aged about 58 years, Occ: Household WOI'k, v Both are 1'/at Navanaggar, Hubli.:'~,__
3. Dhanjaya, .' S/oNarayan$e1\g£enarWade, Owner o1"vc':h1c_ie " ' N0.KA-25/ 6343,1'}SinCe By his L;R.,- Si-at. "
W/ca D;§janjav.ya';i*.§eharw*aL£ia, -- ' Age: Major,._R}'o Par,1ji"Qri:'.,4 "
Chem1apefh,~ Nivas, Hubfi' " * V V ~~ Q 1' " Respondents in MFA N0.629 1/ 2007 A' "(By Sad; M. Kulkarni, Adv., for C/R1, ':3riL'Ma}}eSheW_';3deyar, Adv., for R3) 1§IFAs are filed under Sectian 173(1) of MV A-ct against' the common judgment and asward dated eee«?:;e'3,1~ passed in MVC Nos.821, 827/2004, f 824/2094, 825/2004, 826/2004, 822/2004, 823/2004 "and..'=.._No.828/2004 respectively on the tile of First * Addifitanal Civil Judge (S:r.Dn.,) and Additional MACT, T Hllbii.
These appeals are coming on for admission this day, A.N. VENUGGPAIA GOWBA. J2, delivered the following:
"._.__I:«'_-_--_I The National Insurance Company Limited ':i1'e;§'»e?:'i3;ed these appeals impugling the common separate awards passed in MVC }~£6s;* ,' ' j the learned Member, Additi;>nal "1t4__1§€3f1z", ,,1i1o'ué'h:gT'::; part, the clam' petitions $01' Motor Vehicies Act, Assess qsbr' the Ade) the appellant and anothef,-T.' on the appellant to observing that, it is entitled: to £he;.excessv.§amount than the permit 1iabili'ey_oi';1'.2 vgwner of the vehicle.
2. _; 'We hhsve Rajashekhar S. Arani, learned apfienant and Sri Dinesh M Kulkarm' and A learned Counsel for the respondents anfi' the record. Learned counsel consemeci for H " of the appeals.
The facts which are not in dispute are that, the appeflant had issued the policy of insurance in respect of a Maxi Cab bearing reg'st:rat:ion No. KA 25/6348, which E 9 had the permit to carry 12 passengers. The policy of insurance was issued to cover the risk of 12 passengers and a driver. The vehicle has met with an 30.4.1999. in all, 9 claim petitions eii the Act were instituted before MAc§'f. pleadings of the parties, the. 2 iségtiesqx e During the course of enquiry PW} to PW9 deposed and were On behalf of the insurer, RW enddisgxe. R1 to 3 were marked. Iiifi evidence, the '1'ril$'a;na1' claim petitions in part.
4. appellam: mainly contended , t11atV..'¢:l;3;evVeI;icle' gverioaded, that the driving licence of not produced and hence the Insurance liability. Alternatively, he contended % _ ewe of the vemele having permitted the vehicle foeverloaded, has committed brmch. of the contract of policy and therefore, the appellant is entitled to mjrepudiate the policy and is not liahie to pay the compensation determined by the '§:ibunal. Learned / .
10 Counsei cited the decision of the I-Ion'ble Sufyreme Court in the ease of National Insurance Company Challa Upendra Rao and others reported . SC 4382.
5. Learned Counsel for the contested the said sumnissions'. 'c£$iitenxi'eti..é:ii1alj,_fit1e > appellant is appmbating and figjneipies of acquiescence is attxacted-,..V:i13_ ii1ai;;:V.ai':titti1:er claim which arose out of the saiiie aecideijt L.Rs of one Imam Sabfidaaaiii wherein the award was pasaxed: on ..which was modified and enhanced' N€;..5'5§V3/2005 on 27.9.2006, was by'. me and hence it is not open to the anything contrary. Learned Counsel conterxgiedx {he appellant admittedly issued a policy of " i:'v"i1;is:Iiirancevvif} respect of the vehicle which had the carrying A of 1:2 + 1 passengers and the poiicy of insurance ':'was..i:u1Tent on the date ofthe accident and hence is liable VA satisfy the award passed by the Tribimal. citccl the decision of the Hon'bie Supreme Court rendered in the 11 case of National Insurance Co., Ltd... Vs. Shyam reported in 2007 AIR saw 523? and n that the contention raised by the learned _A appellant is squarely covered.
that the impugned judgnenfi of fifibilizalg "
accordance with law and no interference iscaiied
6. The "core contentioa Legamsel for the appellant is 'the hm only insured 12 of the Insurance .Lc*/anled counsel contended that to there were more than 35 passeng;er'a..i11 .t31e.jie:I1ievIe: at the time of accident, hence V" fiulatipn of permit conditions, consequently _vt;he Act enables the insurer to raise the V Vv deiencze the claims and the decision rendered in ' oi""(fi1alla Upcndra Rae (supra) is applicable. . In the case of Challa Upendra Rae (supra), the facts the case are that, three pezsons were traveiiing in an ° autorickshaw which met with an acciden and claim 12 petitions were filed under Section 166 of the Act, which were resisted by the insurer on the goamd thatV,j "tI1e insuxed had not obtained permit to ply the "
therefore in terms of the policy, the lied no > liability. The Tribmlal accepted ple_a . ;, High Court held that, the insmzeg' wosfiabie ?;o'~ L. the award. The Insurance in the Hon'b1e Supreme Court High Court has lost sight of the tactostfiajt, vehicle without the requisite condition of the policy had no liabiiity. Hon"b&e Supreme decision, noticing the new' that, since there was no permit, quest1'o11 --voi'~viojIat:ion of any condition thereof does not has the view was clearly fallacious. In these etaoeols, the facts and eirc1.1mstm'1ees are totaliy I gt. The vehicle in question undisputably had the " to carry 12 passengers apart from the driver, in respect of Whom the insurance policy had been issued by the appellant and the number of claims being less than 13 the permitted number of passengers, the said decision has no application. KW 1, Administrative Ofiicer offvthe appellant has admitted in his cross examination,..ti'3at,44e:4ttie insurance company has deposited the awagti' K V' the connected disposed of case not appeal and that the liatiie.V"to compensation for 13 victims. R 3 "is, mm of the insurance policy inflquestion was insured by__ the 26.2.1999 to 25.2.2000, and a driver, since. the tempo was for 12 + 1.
8. As are only 9 claims tiled by ..~ passengers, who succumbed to the injuries accident. Learned counsel for the app'el.Ia" in' t the fact that, no other person hm filed in respect of the ailoresaid accident and that no " petition is pending in any other Tribunal. V' it is clear that, as against permitted 1? passengers, V only the L.Rs of 9 passengers filed the claim petitions and out of theln, the claim made in MVC. £530,345] 1999 which \ / , was insured tor 42 passengers other than um driver and the conductor. The 'bus which was overloaded passengers fell ofi' the road into a nullah on» _ leading to the death of 26 persons "' 'V was driving the bus and 63 pexsofss tiéere i11ji'n*_eel. ' L.Rs of the deceased approached the MACE' claignmgé; adjudging on applications' 166 of the Act. The claim Company, contending was not driven by the time of the accident and that the Irisnianoe ooziipéfiy had no liability. The uvdid not" the objections and passed the insurance Company Iiabie to pay the ammint all the awards exceeding 42 covered. by _ the policy. The insurance Company filed 38 ' chaflengng the awards and contended that tin " Company could be found liable only to the extent of insurance it had provided and it was bound to provide in terms of Section 147 of the Act in terms of /.n the conditions of the permit held by the owner ot'fi1ce'.:l§u§. The contention pressed for consideration was _ Insurance Company having insured" 42 u * V. liability of the Insurance Company is confined oniy to 42 passerigczfs nisurimj. v the said factuai position and fivasfrxcld by the I-Ionfble Supreme 'The Act onlyiiinpofses" cbiigiition to take out insura:nceEtoeover==t1fird~~'paz-tyfziskc and in the case of stage. the to be carried in the vehic1e_:-and 'tZ'1e pfi:jaass<.*I1.geir;s"to be carried in the vehicle, only as passengers autftlozizedicr perxn_itte_ti to be carried in the vehicle. . xxx xxx ,- . We are ottnet View that the insurance company (zen made"~lia,b1c only in respect of the number of t' " cjiasseiagers for whom insurance can be taken under ' "'L.'<1e Act anti for whom insurance has been taken as a
-fact hut in respect of the other passengers " .ii:vo1vedf _:'_.r1?'the accident in a case of overloading Xxxxxxxxx _ . As this court has indicated, the purpose of the 'Act is to bring benefit to the third parties who are % either injured or dead in an accident. It serves a 'T social purpose. Keeping that in mind, We think that the practical and proper course would be to hold that the insurance company, in such a case, would be bound to cover the higher of the various awards and will be compelled to deposit the hlgbir of the 1":
amounts of compensation awarded to the extent of the number of passengers covered by the insurance P0116?-"
From the decision, it is clear that, even if the' % had carried passengers more than " i capacity] permit i.e., overloaded, A' the liability, but is liable inV'i'respeet*-v_oi' of v passengers for whom the .._vpolic3*. isiasvvfiissued. Merely because the vehiei:-3 inisrolireuci' accident was overloaded, it is» not ii :'.t1ie Insurance Company to " Vflbut its liability gets restricted it only in respect of whom, policy was it to satisfy the higher of the aaisiaztis Véiefiosit the higher of the amount of to the extent of number of passengers by the insuxance policy, to ensure that " " 5 x_a'm_ umsmcfit is derived by the insurance taken for the _p_asse1:ge1's.
T W Though an apprehension was expressed by the '4 ieamed counsel for the appellant that, there may be few more claims by others, arising out of the same accident, & 18 we do not find merit; in the contention for the reason that, the accident has taken place on 30.4.1999 and more than 9 years have lapsed and no other claim has admittedly been putforth. When we specifically V. learned counsel for the insurance _A claim arising out of the said aecideoi pending, he candidly submitte_;1 tl41at, *theTC claim petitzion pcndmg corgsifierauors'; the apprehension is wimou-{Any l
11. e:%ir§je.e§fi};m%iséion that, the appellant be permittedflto from the owner, we do not any of the fact that, the appellant is of more than 12 pennitted pa»s se;;ge:9é;;« risk is covered by EXR3 poiicy, issued V VV by «i1jh¢'amount if any deposited by the appeilaznt in this immediateiy transferred to me 'Fribtmal for " action. It is for the 'Fribunai to pass orders on the applications for premature release of the tnount in 19 deposit, if a case is made out to the satisfacfion of the Tribunal, by the applicants] claimants. For the foregoing discussion, the appeals _ of merit and hence are hereby diSII1i§$€ad. No" ~ _ '4 Vb/--«