Karnataka High Court
The Branch Manager vs Smt. Mariyamma on 4 July, 2024
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NC: 2024:KHC:25342-DB
MFA No. 7754 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MS JUSTICE J.M.KHAZI
M.F.A NO.7754 OF 2023 (MV-D)
BETWEEN:
THE BRANCH MANAGER
M/S ROYAL SUNDARAM
GENERAL INSURANCE CO. LTD.,
BRANCH OFFICE, DOOR NO.2609/17,
GROUND FLOOR, MCC 'A' BLOCK,
MUDDALLI THOTA, CHURCH ROAD,
S B DAVANAGERE,
REPRESENTED BY REGIONAL OFFICE,
NO.30, 3RD FLOOR, JNR CITY CENTRE,
RAJARAM MOHAN ROY ROAD,
SAMPANGIRAMA NAGAR,
BENGALURU - 560 027,
Digitally BY ITS STATE HEAD LEGAL
signed by ...APPELLANT
REKHA R (BY SRI. RAVI SHANKAR S SAMPRATHI, ADVOCATE)
Location:
High Court AND:
of Karnataka
1. SMT. MARIYAMMA
W/O LATE K MANJUNATH,
AGED ABOUT 59 YEARS,
RESIDENT OF GUDDADA
RANGAVVANAHALLI VILLAGE,
CHITRADURGA TALUK AND DISTRICT.
2. SRI B SHIVAKUMAR
S/O LATE BASAPPA,
MAJOR IN AGE,
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NC: 2024:KHC:25342-DB
MFA No. 7754 of 2023
RESIDENT OF HIREKANDAWADI VILLAGE,
HOLALKARE TALUK,
CHITRADURGA DISTRICT.
3. SMT D REKHA
W/O LATE UMESH BABU,
AGED ABOUT 29 YEARS,
RESIDENT OF GUDDADA
RANGAVVANAHALLI VILLAGE,
CHITRADURGA TALUK AND DISTRICT.
...RESPONDENTS
(BY SRI. H.L.NACHIKETH, ADVOCATE FOR R1;
SRI. N.R.RANGEGOWDA, ADVOCATE FOR R2;
SRI. R.SHASHIDHARA, ADVOCATE FOR R3)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD PASSED
BY THE COURT OF THE I ADDITIONAL SENIOR CIVIL JUDGE
AND ADDITIONAL MACT NO.IV, CHITRADURGA, PRESIDED
OVER BY SMT. CHITRA A.M, B.SC., LL.B, I ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC, CHITRADURGA DATED
10.08.2023 PASSED IN MVC NO.718/2021 AND DISMISS THE
SAID CLAIM PETITION AS AGAINST THE APPELLANT, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
SREENIVAS HARISH KUMAR J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is preferred by the insurance company challenging the judgment and award dated 10.08.2023 in MVC.No.718/2021 on the file of I Addl. Senior Civil Judge and JMFC, Chitradurga.
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NC: 2024:KHC:25342-DB MFA No. 7754 of 2023
2. The son of the claimant Umesh Babu was killed in the accident that took place on 13.12.2020.
3. The claimant's case is that her son was working as hamali under respondent No.1, who owned the tractor- trailer bearing registration No.KA-16-TC-1501-1502. The allegation is that on 13.12.2020, the accident occurred on account of rash or negligent driving by the driver of tractor-trailer and as it toppled, Umesh Babu died and two others got injured.
4. Smt.D.Rekha, the wife of the deceased was arraigned as respondent No.3 in the claim petition.
5. The insurance company took specific contentions that deceased was a gratuitous passenger in the tractor-trailer, and even if he was working as a hamali, there was no insurance coverage for hamali as no extra premium had been paid by respondent No.1.
6. The claimant being the mother of the deceased adduced evidence as PW-1, RW-1 is the owner of the -4- NC: 2024:KHC:25342-DB MFA No. 7754 of 2023 tractor-trailer and RW-2 is the insurance officer. The Tribunal awarded the compensation in a sum of Rs.26,30,000/- with interest at the rate of 6% p.a.
7. We have heard Sri.Ravishankar S.Samprathi, learned counsel for appellant and Sri.R.Shashidhara, learned counsel for respondent No.3 - Smt.D.Rekha.
8. The specific contention of Sri.Ravishankar S.Samprathi, learned counsel for appellant is that there was no insurance coverage for the hamali. Moreover, RW- 1 had purchased the insurance policy for agricultural purpose and it did not cover any risk when it was used for commercial purpose. The tractor was said to be used for transporting areca nut from the garden of respondent No.1, but respondent No.1 did not produce any document in proof of the fact that he owned areca nut garden. His evidence is that deceased was working as hamali under him and at the time when the accident took place, the trailer was loaded with areca nut belonging to him. In the absence of proof with regard to any agricultural land owned by respondent No.1, the Tribunal should not have -5- NC: 2024:KHC:25342-DB MFA No. 7754 of 2023 fastened liability on the insurance company. He further argued that although insurance company examined its Officer as RW-2, the Tribunal has not discussed the evidence adduced by RW-2. In this view the Tribunal has erred in passing the judgment and award against the insurance company although its liability is not there. Therefore, he argued for setting aside the impugned judgment and award and for remand of the case to the Tribunal for consideration of the entire case once again.
9. Sri.Shashidhara, learned counsel for respondent No.3 argued that deceased was working as hamali under respondent No.1 and the insurance policy marked as per Ex.R1 clearly shows extra amount being collected. This extra amount was collected to cover the risk of a person other than the driver. Since Indian Motor Tariff (IMT) automatically covers the risk of the driver, the extra amount collected was to cover the risk of any person other than the driver and hence, Tribunal is justified in granting compensation against insurance company. -6-
NC: 2024:KHC:25342-DB MFA No. 7754 of 2023
10. We have considered the arguments and perused the records and evidence. Though several contentions have been taken by the insurance company and RW-2 the Officer of insurance company adduced evidence specifically that the risk of the deceased was not covered under the policy, if we peruse the judgment and award of the Tribunal, we find that there is no discussion on the evidence adduced by RW-2. The entire defence taken by the insurance company is not at all considered. When the insurance company specifically contends that the risk is not covered because the deceased was a hamali and that the vehicle was used for the purpose other than agriculture, the defence version ought to have been discussed by the Tribunal before giving findings. In this view, we are of the considered opinion that the judgment and award passed by the Tribunal suffers from infirmity. Without expressing anything regarding the findings of the Tribunal on the compensation awarded, we find that the case has to be remanded and in that view, the following: -7-
NC: 2024:KHC:25342-DB MFA No. 7754 of 2023 ORDER
(i) Appeal is allowed.
(ii) The impugned judgment and award dated 10.08.2023 in MVC.No.718/2021 on the file of I Addl.Senior Civil Judge and JMFC, Chitradurga is set aside.
(iii) The matter stands remitted to the Tribunal for reconsideration of entire case afresh and passing fresh award by discussing the evidence of both the parties. If necessary the parties may lead further evidence to enable the Tribunal to arrive at proper conclusions.
(iv) The statutory deposit made by the appellant in this Court be transferred to the Tribunal. The amount already deposited by the insurance company before the Tribunal and the amount transferred from this Court shall be kept in -8- NC: 2024:KHC:25342-DB MFA No. 7754 of 2023 deposit in a Nationalised bank for a period of six months.
(v) The parties are directed to appear before
the Tribunal on 05.08.2024 and the
Tribunal shall dispose of the case within three months from the date of appearance of the parties.
Sd/-
JUDGE Sd/-
JUDGE RR List No.: 1 Sl No.: 25