Karnataka High Court
New India Assurance Co. Ltd., vs Sri. Gurunath S/O Bhimarao More, on 3 January, 2018
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3rd DAY OF JANUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
MISCELLANEOUS FIRST APPEAL NO.21012 of 2011 (MV)
BETWEEN
NEW INDIA ASSURANCE CO. LTD.,
BRANCH OFFICE AT WARD TRADE CENTRE,
STATION ROAD, KOLHAPUR.
REP. THROUGH ITS DO OFFICE,
CLUB ROAD, BELGAUM. REGIONAL OFFICE,
THE GENERAL MANAGER, NEW INDIA ASSURANCE
CO. LTD., SRINATH COMPLEX, 2ND FLOOR,
NEW COTTON MARKET, HUBLI,
REPRESENTED BY ITS ASSISTANT MANAGER.
... APPELLANT
(By Sri. NAGANGOUDA R KUPPELUR, ADV. )
AND
1. SRI. GURUNATH S/O BHIMARAO MORE,
AGE: 34 YEARS, OCC: AGRICULTURE &
CONTRACTOR, R/O GADAHINGLAJ,
TQ. GADAHINGLAJ, DIST. KOLHAPUR
2. SRI. RAHUL S/O VIJAY SING GUJAR
AGE: MAJOR, OCC: BUSINESS,
R/O HOUSE NO. 2990/B, MANGALWAR PETH
KOLHAPUR. (OWNER OF TEMPO BEARING
NO. 9/S-9709)
... RESPONDENTS
(By Sri. H M DHARIGOND, ADV. FOR R1
SRI SANTHOSH B. RAWOOT, ADV. FOR R2.)
THIS MFA IS FILED U/SEC.173(1) OF MV ACT 1988,
AGAINST THE JUDGMENT AND AWARD DTD:30-11-2010
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PASSED IN MVC NO.1591/2008 ON THE FILE OF THE II-ADDL.
SENIOR CIVIL JUDGE AND MEMBER, ADDL. MACT, BELGAUM,
AWARDING THE COMPENSATION OF RS.74,600/-WITH
INTEREST AT THE RATE OF 6% P.A., FROM THE DATE OF
PETITION TILL ITS DEPOSIT.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE
COURT, DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal has been preferred by the insurer challenging the judgment and award dated 30.11.2010 passed by the II Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal, Belgaum, in MVC No.1591/2008.
2. Heard. The appeal is admitted and with the consent of the learned counsel appearing for the parties, the same is taken up for final disposal.
3. The parties would be referred to as per their ranking before the Tribunal.
Brief facts of the case are that on 25.07.2004, the petitioner-Gurunath Bhimrao More was proceeding in a tempo traveler bearing registration No.MH-9/S-9709 from Gadahinglaj along with his friends. The said tempo was 3 driven by its driver rashly and negligently and when they came near Lakdi Nala Bridge on Poona-Bangalore road, the driver of the tempo lost control over the vehicle and it turtled and fell to a road side ditch. As a result of the same, the petitioner sustained grievous injuries. Immediately, he was shifted to Mahatma Gandhi Hospital, Nipani and was treated. For having suffered injuries and having incurred expense, a claim petition was filed under Section 166 of the Motor Vehicles Act, 1988.
In pursuance of notice, respondent No.2 appeared and filed objections. By denying the contents of the petition, he further contended that the said vehicle is a private vehicle at the time of the accident and it is used for hire or reward and there is violation of the policy conditions. Hence, respondent No.2 is not liable to pay any compensation. On these grounds, he prayed for dismissal of the petition.
Respondent No.1 did not appear and contested the case. Hence, he was placed exparte.
On the basis of the above pleadings, the Tribunal framed the following issues:
1. Whether petitioner proves that the alleged accident occurred due to the rash and negligent driving of the tempo bearing No.MH-9/S-9709 by its driver 4 and in the said accident the petitioner has sustained grievous injuries?
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3. What order or award?
In order to prove the case of the petitioner, the petitioner examined himself as PW-1 and got marked Exs.P- 1 to P-12. On behalf of the respondent No.2, Officer of respondent No.2 was examined as RW-1 and got marked Exs.R-1 and R2.
After hearing the parties to the lis, the impugned judgment and award was passed whereunder the Tribunal has directed respondent No.2/appellant to deposit the compensation amount and thereafter to recover the said amount from the insured. Assailing the said judgment and award, the insurer is before this Court.
4. It is the specific contention of the insurer that the vehicle involved in the accident is insured as a private vehicle and the evidence which has been led clearly indicates that the petitioners were fare paid passengers and as such the owner of the vehicle has violated the terms and conditions of the policy. This contention of the insurer has 5 been accepted by the Tribunal at para no.16 and has come to the conclusion that the evidence clearly shows that the petitioner was traveling as a fare paid passenger and as such the owner has violated the terms and conditions of the policy and therefore, respondent No.2 is not liable to indemnify respondent No.1. However, while passing the impugned judgment and award, the Tribunal has ordered for pay and recovery.
5. Learned counsel for respondent No.2-owner brought to my notice the decision of this Court whereunder pay and recovery has been ordered. As could be seen from the said decision, it has been specifically observed that the insurance company can avoid liability only by establishing willful violation of the terms of the policy by the assured. Then, under such circumstances, pay and recovery cannot be passed. As could be seen from the records, admittedly, the petitioner himself has clearly admitted the fact that he was a fare paid passenger and when there is breach of terms and conditions of the policy, that is considered to be a fundamental breach. The evidence which has been lead by 6 the insurer establish the fact that there is willful violation of the terms of the policy by the assured. In that light, under Section 149 of the Act, insurer can escape from its liability. In that light, the observation made by the Tribunal to the effect that the insurance company is liable to pay the compensation awarded and get the same reimbursed from respondent No.1 is not justifiable and the same requires to be set aside. Accordingly, the said finding is set aside.
6. Though the learned counsel for the owner contended that the judgment and award requires to be confirmed, as could be seen from the judgment and award passed by the Tribunal and other records, though notice has been issued by the Tribunal, respondent N0.1 did not appear and was placed exparte and even he has not challenged the judgment and award passed by the Tribunal. Under such circumstances, the said violation appears to be a fundamental breach and it will be a willful violation of the terms and conditions of the policy. In that light, respondent no.1/owner is liable to pay the compensation. 7
Accordingly, the appeal is allowed. The judgment and award dated 30.11.2010 passed by the II Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal, Belgaum, in MVC No. 1591/2008 is modified to the extent as observed above.
Registry is directed to refund the amount in deposit to the appellant-insurer on proper identification and acknowledgment. Respondent NO.1 is directed to pay the compensation awarded by the Tribunal with up to date interest with a period of six weeks from the date of the receipt of certified copy of this judgment.
Registry to draw the award accordingly.
Sd/-
JUDGE Kmv