Karnataka High Court
United India Insurance Company ... vs Doddapapaiah And Another on 14 September, 1999
Equivalent citations: I(2000)ACC373, 2001ACJ1418, ILR2000KAR612
ORDER
1. This appeal is by the Insurance Company.
2. Respondent 1 had filed a petition claiming compensation in respect of the injuries suffered by him in the accident occurred on 11-4-1992. Before the Tribunal the appellant Insurance Company had taken the defence that respondent 1 is not entitled to any compensation because on the date of accident he was travelling on the top of the bus which is contrary to Section 123(2) of the Motor Vehicles Act, 1988 (for short 'the Act'). Before the Tribunal, the Insurance Company has not adduced any evidence to prove that the petitioner was travelling on the top of the bus. Therefore, the Tribunal on the assessment of evidence has held that the 1st respondent is entitled for compensation of Rs. 22,000/- with interest and has also held that the Insurance Company has not adduced any evidence to show that the 1st respondent was travelling on the top of the bus.
3. Section 123(2) of the Act, reads as follows.-
"123(2) No person shall travel on the running board or on the top or on the bonnet of a motor vehicle".
This section prohibits persons travelling on the top of the bus. But this section does not disentitle a person who suffered the injuries from claiming compensation. The word 'passenger' is not defined under the Act. The ordinary meaning of the word 'passenger' as understood by an ordinary man is; any person who performs the journey in the bus is a passenger. Section 149(2) of the Act reads as follows.-
"149(2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given, the insurer had notice through the Court, or as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely.-
(i) a condition excluding the use of the vehicle.- (a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or (b) for organised racing and speed testing, or (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or (d) without side-car being attached where the vehicle is a motor-cycle; or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or
(b) that the policy is void on ground that it was obtained by the non disclosure of a material fact or by a representation of fact which was false in some material particular".
From a reading of the above section, it is clear that the Insurance Company may contest the claim only on the grounds specified therein. Travelling in a bus sitting on the top is not one of the grounds specified in Section 149(2) of the Act. Hence it is not open to the Insurance Company to avoid its liability as it falls outside the scope of Section 149(2) of the Act. Further, the Insurance Company also cannot maintain an appeal since its right of appeal is restricted to the grounds contained in Section 149(2) of the Act.
4. Even otherwise, this appeal is liable to be dismissed since the appellant has not adduced any evidence before the Tribunal to show that the 1st respondent was travelling on the top/roof of the bus.
5. Accordingly, the appeal is dismissed.