Karnataka High Court
M/S National Insurance Company Ltd vs Sri T R Sunil on 23 November, 2022
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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MFA No. 1107 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 1107 OF 2019 (MV-I)
BETWEEN:
M/S NATIONAL INSURANCE COMPANY LTD
NATIONAL INSURANCE CO. LTD,
UNITY BUILDING ANNEXE,
3RD FLOOR, NO.72, MISSION ROAD
TO RESIDENCY ROAD FLYOVER
S.R.NAGAR, BANGALORE 560027
REGIONAL OFFICE,
NATIONAL INSURANCE CO. LTD.,
NO.144, 2ND FLOOR
SHUBARAM COMPLEX,M.G. ROD,
BANGALORE 560 001
REPRESENTED BY ITS
AUTHORISED SIGNATORY
(MR. SAI PRAKASH)
...APPELLANT
Digitally signed (BY SRI. M ARUN PONAPPA.,ADVOCATE)
by
DHANALAKSHMI
MURTHY AND:
Location: High
Court of 1. SRI T R SUNIL
Karnataka
AGED 26 YEARS
S/O REVANNA D.M
NO.813, D.NO.14, 2ND FLOR
RAMASWAMY REDDY BUILDING
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MFA No. 1107 of 2019
R.K. TOWNSHIP
ANEKAL TALUK
BANGALORE 562 106.
ALSO AT:
WARD NO.14, VENKATARAYANA BEEDI,
TARIKERE TALUK,
CHIKKAMAGALUR DISTRICT.
2. THE MANAGING DIRECTOR
NWKRTC
NORTH KARNATAKA DIVISION
SIRSI TALUK
UTTARA KANNADA DISTRICT 581402.
3. SRI. LAKSHMISHA JATAPPA NAIKA
MAJOR
DRIVER, NWKRTC,
NORTH KARNATAKA DIVISION
SIRSI TALUK, UTTARA KANNADA DISTRICT 581402
ALSO AT:
BADGE NO.81, KUMUTA DEPOT
R/AT "ANUGHANASHINI"
KUMATA TALUK
NORTH KARNATAKA DIVISION
SIRSI TALUK
UTTARA KANNADA DISTRICT 581402.
...RESPONDENTS
(BY SRI. T.S. VENKATESH., ADVOCATE FOR R1:
SRI. NIRMALA, ADVOCATE FOR R2:
NOTICE TO R3 IS SERVED BUT UNREPRESENTED)
MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED12.10.2018 PASSED IN
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MFA No. 1107 of 2019
MVC NO.7206/2016 ON THE FILE OF THE 7TH
ADDITIONAL SMALL CAUSE JUDGE & XXXII ACMM,
MEMBER, MACT-3, BENGALURU, AWARDING
COMPENSATION OF RS.2,00,000/- WITH INTEREST AT 8%
P.A. FROM THE DATE OF PETITION TILL THE DATE OF
DEPOSIT.
THIS APPEAL, COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') has been filed by the Insurance Company being aggrieved by the judgment dated 12.10.2018 passed by MACT, Bangalore in MVC 7206/2016.
2. Facts giving rise to the filing of the appeal briefly stated are that on 21.11.2015 when the claimant along with his friends was proceeding in his Maruthi Ritz car bearing registration No.KA-51-C-7136 to Tarikere to attend house warming ceremony at Tarikere, near Jayanthi Grama, at that time, one lorry which was parked on the left side of the road, all of a sudden moved and -4- MFA No. 1107 of 2019 came to the middle of the road and said driver of the car with no other option was forced to pull the vehicle to the right side of the road, at that time, the KSRTC bus bearing No.KA-31-F-1262 came at a high speed and in a rash and negligent manner, dashed to the vehicle of the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.
3. The claimant filed a petition under Section 166 of the Act seeking compensation. It was pleaded that he spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.
4. On service of notice, the respondent Nos.1 and 2 appeared through counsel and filed written statement in which the averments made in the petition were denied. -5- MFA No. 1107 of 2019
The respondent No.3 did not appear before the Tribunal inspite of service of notice and was placed ex- parte.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1 and Dr.Shekar.M. was examined as PW-2 and got exhibited documents namely Ex.P1 to Ex.P15. On behalf of the respondents, two witnesses witness were examined as RWs-1 and 2 and got exhibited documents namely Ex.R1 to Ex.R5. The Claims Tribunal, by the impugned judgment, inter alia, held that the claimant has failed to prove that the accident took place on account of rash and negligent driving of the offending bus, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.200,000/- along with interest at the rate of 8% p.a. and directed the Insurance Company to deposit the -6- MFA No. 1107 of 2019 compensation amount along with interest. Being aggrieved, the present appeal has been filed.
6. The learned counsel for the Insurance Company has raised the following contentions:
Firstly, he contended that the accident in question occurred due to rash and negligent driving of the Maruthi Ritz car bearing registration No.KA-51-C-7136. Since the claimant/respondent No.1 herein was the insured, he cannot maintain the claim petition as against his own Insurance Company. As per Section 147 of the Act, it is not required for the Insurance Company to assume risk for death or bodily injury to the owner of the vehicle.
Secondly, he contended that the claimant-
respondent No.1 has not made the insured/owner of the Ritz car as party to the proceedings, since he himself was the owner/insured. A contract of the insurance is a contract of indemnity between the insured and the insurer and that the insurer becomes liable to pay compensation -7- MFA No. 1107 of 2019 only if the tort is proved against the insured and the liability of the insured is upheld.
In the case on hand, the insured/petitioner has filed the claim petition before the Tribunal against his own policy issued by the insurer and the insurer is neither party respondent to the proceedings. Therefore, the claim petition is not maintainable. As per the insurance policy, the risk of the owner of the car is not covered either under the statute or policy of the insurance. In support of his contention, he has relied upon the decision of the Apex Court in the case of Oriental Insurance Company Ltd. -
v- Sunitha Rathi and others (AIR 1998 SC 257).
Thirdly, he has contended that the additional premium is collected for personal accident coverage for the owner/driver. In that he has to directly approach the Insurance Company and without approaching the Insurance Company, he has filed this claim petition.-8- MFA No. 1107 of 2019
Hence, the Insurance Company is not liable to pay any interest.
7. On the other hand, the learned counsel for the claimant has raised the following counter contentions:
Firstly, he contended that there is express contract between the insured and the Insurance Company and the Insurance Company has collected the additional premium towards personal accident coverage in respect of owner/driver. Such being the case, the Insurance Company cannot contend that there was no liability.
Hence, the claim petition filed under Section 166 of MV Act is maintainable. In support of his contention, he has relied upon the decision of the Apex Court in the case of National Insurance Co. Ltd. -v- Ashalata Bhowmik and Ors. (2018 ACJ 2825) and the decision of this Court in the case of Oriental Insurance Co. Ltd -v- Rajendra Kumar (2020 Supreme (Kar) 1319).-9- MFA No. 1107 of 2019
Secondly, he contended that even after notice issued by the Tribunal has been served to the Insurance Company, they have not come forward to settle the personal accident claim. Hence, the Tribunal has rightly directed the Insurance Company to pay interest. In support of his contention, he has relied upon the decision of this Court and in the case of Gulshera -v- Iffco Tokio General Insurance Co. Ltd. (2020 Supreme (Kar) 1232).
8. Heard the learned counsel for the parties and perused the judgment and award of the Tribunal.
9. It is not in dispute that the claimant has sustained injuries in the road traffic accident occurred on 21.11.2015 due to rash and negligent driving of the Maruthi Ritz car bearing registration No.KA-51-C-7136 by its driver.
It is also not in dispute that the claimant had paid an additional premium for personal accident coverage.
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MFA No. 1107 of 2019
10. In respect of the contention of the Insurance Company that the claim petition filed by the insured under Section 166 of the MV Act is not maintainable and as per Section 147 of the Act, it is not required for the Insurance Company to assume risk for death or bodily injury to the owner of the vehicle. A similar issue has been considered by this Court in the case of Rajendra Kumar (supra). Paragraph 7 of the said decision is relevant and same is extracted herein below:
7. Having perused the materials on record, the Insurance Company did not choose to lead any evidence before the Tribunal. The main contention is that the claimant being the owner-cum-driver of the offending vehicle is not entitled to claim any compensation from the appellant-Insurance Company as the said risk is not covered either under the Statute or under the policy of insurance. The learned counsel appearing for the appellant would submit that the policy issued in respect of two
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wheeler is a motorcycle policy B comprehensive and in support of his contention, he has also produced IRDA
definition with regard to what is covered under the two wheeler insurance policy; and the package policy covers accidental loss or damages to the vehicle, and liability to third parties, personal accident covers to owner driver. Though the policy was not placed before the Tribunal, the learned counsel for the Insurance Company has placed a copy of the policy before this Court vide memo dated 16.08.2018. Having taken note of the policy, it is a B comprehensive policy and as per the definition, it also includes personal accident cover to the owner-driver. The contention of the insurance company that the decision of the Hon'ble Supreme Court in the case of National Insurance Company co. Ltd., v. Ashalata Bhowmik,(2018) AIR SC 4133 is aptly applicable to the present case, cannot be accepted for the reason that the contract between the insured and the insurer while issuing B-Comprehensive that the Insurance Company is not liable to pay
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compensation cannot be accepted. The Insurance Company did not adduce any evidence before the Tribunal in order to substantiate the contention raised before this Court and also not examined any of the witnesses and the policy was not marked before the Tribunal and now the learned counsel for the Insurance Company made an effort to produce the copy of the policy before this Court along with a memo.
Having taken note of the policy that it is B-
comprehensive policy, I am of the considered opinion that the Tribunal has not committed any error in fastening the liability on the Insurance Company.
11. The Apex Court in the case of Ashalata Bhowmik (supra) in paragraphs, 7, 8 and 9 has held as follows:
"We have carefully considered the submissions of the learned counsel made at the Bar and perused the materials placed on record. It is an admitted position that the deceased was
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MFA No. 1107 of 2019the owner-cum-driver of the vehicle in question. The accident had occurred due to the rash and negligent driving of the vehicle by the deceased. No other vehicle was involved in the accident. The deceased himself was responsible for the accident. The deceased being the owner of the offending vehicle was not a third party within the meaning of the Act. The deceased was the victim of his own action of rash and negligent driving. A Claimant, in our view, cannot maintain a claim on the basis of his own fault or negligence and argue that even when he himself may have caused the accident on account of his own rash and negligent driving, he can nevertheless make the insurance company to pay for the same. Therefore, the respondents being the LRs of the deceased could not have maintained the claim petition filed under Section 166 of the Motor Vehicles Act.
8. This Court in Oriental Insurance Co. Ltd. v. Jhuma Saha (Smt) and Ors. (2007) 9 SCC 263, was considering a similar case where the owner himself was driving the vehicle which due to his negligence dashed with a tree on the
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MFA No. 1107 of 2019roadside as a result of which he died. The Court held that the claim petition filed by his LRs was not maintainable. It was held thus:-
"10. The deceased was the owner of the vehicle. For the reasons stated in the claim petition or otherwise, he himself was to be blamed for the accident. The accident did not involve motor vehicle other than the one which he was driving. The question which arises for consideration is that the deceased himself being negligent, the claim petition under Section 166 of the Motor Vehicles Act, 1988 would be maintainable.
11. Liability of the insurer Company is to the extent of indemnification of the insured against the respondent or an injured person, a third person or in respect of damages of property. Thus, if the insured cannot be fastened with any liability under the provisions of the Motor Vehicles Act, the question of the insurer being liable to
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indemnify the insured, therefore, does not arise".
9. Therefore, the High Court was not justified in directing the appellant/insurer to pay the compensation determined by the Tribunal. Since the indemnification extended to personal accident of the deceased is limited to Rs.2,00,000/- under the contract of insurance, the respondents are entitled for the said amount towards compensation. Hence, the appellant is directed to deposit the said sum of Rs.2,00,000/- with interest @ 9 per cent per annum from the date of the Claim Petition till the date of deposit with the Tribunal within a period of four weeks from today."
In view of the above, I am of the opinion that the Tribunal is justified in fastening the liability on the Insurance Company and directing the Insurance Company to pay the personal accident coverage to the insured- claimant.
12. In respect of payment of interest is concerned, this Court in the case of Gulshera (supra), has
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MFA No. 1107 of 2019considered a similar issue. Paragraph-7 is relevant and same is extracted below:
"7. Since, the accident occurred on
13.12.2008, and the notice of the claim petition was served in the year 2009 on the insurer, was the bounden duty of the insurer to ascertain the details of the deceased, particulars of the driving licence etc., and the insurer must have taken proactive steps to pay the compensation to the legal representatives of the deceased. Having not done so, the insurer cannot escape from its liability to pay interest."
13. In the case on hand, the accident occurred on 21.11.2015. Notice of the claim petition has been served on the Insurance Company on 3.1.2017. The insurer has not taken any steps to pay the personal accident claim to the claimant/insured.
Under the circumstances, the Insurance Company cannot escape from its liability to pay interest on the compensation amount.
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MFA No. 1107 of 2019
14. In view of the above, there is no error in the finding of the Tribunal in directing the Insurance Company to pay the personal accident coverage to the insured/claimant.
However, in view of the Division Bench decision of this Court in the case of Ms.Joyeeta Bose and others - v- Venkateshan.V and others (MFA 5896/2018 and connected matters disposed of on 24.8.2020), the rate of interest awarded by the Tribunal at 8% p.a. on the compensation amount is on the higher side and hence the same is reduced to 6%.
15. In the result, the appeal is allowed in part. The judgment of the Claims Tribunal is modified only in respect of payment of interest.
The Insurance Company is directed to deposit the compensation amount as awarded by the Tribunal along with interest @ 6% p.a. from the date of filing of the claim
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MFA No. 1107 of 2019petition till the date of realization, within a period of six weeks from the date of receipt of copy of this judgment.
The amount in deposit is ordered to be transferred to the Tribunal forthwith.
Sd/-
JUDGE DM List No.: 2 Sl No.: 39