Karnataka High Court
Smt Sarojamma K vs The Divisional Manager on 20 August, 2018
Author: Krishna S Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
M.F.A. NO. 11018 OF 2011 (MV)
BETWEEN:
SMT SAROJAMMA K
W/O K SIDDAPPA
AGED ABOUT 55 YEARS
R/AT GUMANAGATTA VILLAGE
RAYADURGA TALUK
ANANTHAPURA DISTRICT
ANDHRA PRADESH STATE
... APPELLANT
(BY SRI. SAM GEORGE, ADVOCATE)
AND:
1. THE DIVISIONAL MANAGER
M/S ROYAL SUNDARAM GENERAL
INSURANCE CO. LTD., DIVISIONAL OFFICE,
SUNDARAM TOWERS, CORPORATE CLAIMS
NO.45 AND 46, WHITE ROADS
CHENNAI
2. SMT. SHARANAMMA
W/O LATE UMAPATHI
AGED ABOUT 39 YEARS
3. SHILPA
D/O LATE UMAPATHI
AGED ABOUT 18 YEARS
2
4. SHIVARAJ KUMAR
D/O LATE UMAPATHI
AGED ABOUT 17 YEARS
REPRESENTED BY THE NATURAL
GUARDIAN MOTHER RESPONDENT NO.2 ABOVE
RESPONDENT NO. 2 TO 4 ARE
R/AT DOOR NO. 990, BACKSIDE OF KSRTC
BUS STAND, BHAGATH SINGH NAGAR
DAVANAGERE
5. SRI K RAJANNA
S/O SIDDAPPA
R/AT GOONABAVI , DHARI PAKKE
GUMANAGATTA VILLAGE
RAYADURGA TALUK
ANANTHAPURA DISTRICT
ANDHRA PRADESH STATE
... RESPONDENTS
(BY SRI. K SURYA NARAYANA RAO, ADVOCATE FOR R1;
SRI. M. R. HIREMATHAD, ADVOCATE FOR R2;
SMT. LAKSHMISHREE, ADVOCATE FOR R5;
VIDE ORDER DATED 14.09.2015, NOTICE TO R3 &4
HELD SUFFICIENT)
THIS MISCELLANOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 02.09.2011 PASSED IN
MVC NO.303/2010 ON THE FILE OF THE I ADDITIONAL
SENIOR CIVIL JUDGE, MACT V, DAVANAGERE,
AWARDING A COMPENSATION OF Rs.4,22,000/- WITH
INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
REALIZATION.
THIS APPEAL COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal by the owner of the offending vehicle challenges the judgment and award dated 02.09.2011 made by the M.A.C.T.-V, Davanagere allowing M.V.C.No. 3 303/2010, whereby an award of Rs.4,22,000-00 with interest at the rate of 6% per annum has been awarded subject to usual conditions of bank deposit. The challenge is on the ground that the M.A.C.T. ought to have fastened liability on the respondent-insurer.
2. The brief facts of the case stated are :
a) On 23.07.2009 at around 10.30 a.m. one Mr. Umapathy, the husband of the first claimant was riding a motorbike bearing Registration No.KA-16-K-561 from Bukkambudi to Challakere on N.H.19; at that time the offending Tractor bearing temporary Registration No.AP-04/LTR-0044 driven rashly and negligently had dashed to the motorbike resulting into fatal injuries to the rider who succumbed thereto later. The widow and children of the deceased presented the claim petition in M.V.C.NO.303/2010 which was stoutly resisted by the insurer by filing the Written Statement.
b) To prove the claim, the widow of the deceased was examined as PW-1 and in her evidence 17 documents came to be marked as per Ex.P-1 to P-17, which interalia comprise of Police Papers, IMV Report, Residential Certificate, Voters ID and Ration Card. From 4 the side of the respondent-insurer one Mr.K.Rajanna and another Mr.S.Shivakumar came to be examined as RW-1 and RW-2 respectively. In their evidence, 4 documents came to be marked as per Ex.R-1 to R-4, which comprise of Insurance Policy, Driving License, etc.
c) The M.A.C.T. after perusing the pleadings of the parties and after assessing the evidentiary material on record has made the impugned judgment and award against the appellant-owner of the offending vehicle.
However, the claim against the insurer was dismissed on the ground that the vehicle in question had plied beyond the permit area.
3. The learned counsel for the appellant-owner of the offending vehicle vehemently contends that the Tractor weighing less than 3000 kgs. does not require any permit at all, admittedly the Tractor was lawfully plying within the State of Andhra Pradesh, wherein it has been granted temporary registration number and therefore at the most it can be a case of permit violation which does not go to the root of the matter and does not amount to violation of terms and conditions of contract of insurance. Per contra, the counsel for the respondent-insurer submits 5 that violation of permit amounts to violation of terms and conditions of the insurance policy and therefore the M.A.C.T. is justified in dismissing the claim petition qua the insurer.
4. This Court in a catena of decisions has taken a consistent view that the violation of permit condition per se does not constitute a legal ground to absolve the insurer from the award liability. Therefore the contention of the learned counsel for the owner of the vehicle is found favoured with. Even otherwise also to show the violation of terms of contract of insurance, the insurer should have made reasonable efforts to lead evidence as held by the Apex Court in the case of FAHIM AHMAD & OTHERS vs. UNITED INDIA INSURANCE COMPANY LTD., & OTHERS reported in 2014 SAR (CIVIL) 612, wherein paragraph 6 of the judgment reads as under:
"6. Although the plea of breach of the conditions of policy was raised before the Tribunal, yet neither any issue was framed nor any evidence led to prove the same. In our opinion, it was mandatory for respondent No.1- Insurance Company not only to plead the said breach, but also substantiate the same by adducing positive evidence in respect of the same. In the absence of any such evidence, it cannot be presumed that there was 6 breach of the conditions of policy.
Thus, there was no reason to fasten the said liability of payment of the amount of compensation awarded by the Tribunal on the appellants herein."
5. In the above facts and circumstances, the appeal is favoured; the impugned judgment and award are modified fastening the liability on the respondent-insurer also.
The amount deposited in the Registry be transferred to the M.A.C.T. along with L.C.R. for being disbursed as compensation to the claimant.
However, the appellant is entitled to reimbursement of any amount paid by way of compensation under the award in question from the respondent-insurer.
Sd/-
JUDGE Snb/