Karnataka High Court
The Divisional Manager vs Smt Channawwa on 9 January, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 9TH DAY OF JANUARY 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
MFA NO.705/2007 (MV)
C/W
MFA NOS.706/2007, 710/2007 & 715/2007
IN MFA NO.705/2007
BETWEEN:
THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURANCE CO.LTD.,
CLUB ROAD, BELGAUM,
(INSURER OF TEMPO MEH-5408)
REP.BY THE DEPUTY MANAGER,
NEW INDIA ASSURANCE CO.LTD.,
REGIONAL OFFICE,
NO.2-B, MISSION ROAD,
UNITY BUILDING ANNEXE, BANALORE
...APPELLANT
(BY SRI.RAVINDRA R.MANE, ADV.)
AND:
1. SMT.CHANNAWWA,
W/O BASAPPA ANGADI,
AGE: 34 YEARS, OCC: COOLIE,
R/O SUTAGATTI, TQ.BAILHONGAL,
DIST: BELGAUM.
2. SRI.A.BALAN S/O ARMUGAM,
AGE: MAJOR, OCC: TRANSPORT,
R/O NO.5A, THERADI STREET,
THIRUCHENGODU-647 001.
TAMILNADU.
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(OWNER OF TRUCK NO.TN-67-3717)
3. THE DIVISIONAL MANAGER,
NEW INDIA ASSURANCE CO.LTD.,
CLUB ROAD, BELGAUM.
(INSURER OF TRUCK NO.TN-67-3717)
4. SRI.PRAKASH MALLAPPA SOMANNAVAR,
AGE: MAJOR, OCC: TRANSPORT,
BUSINESS, R/O NESARGI,
TAL: BAILHONGAL.
(OWNER OF TEMPO NO.MEH-5408)
...RESPONDENTS
(BY. SRI.KUSHAL BOLMAL, ADV. FOR
SRI.V.M.SHEELVANT, ADV. FOR R1,
SRI.VISHWANATH S.SHETTAR, ADV. FOR R3,
R4 SERVED AND UNREPRESENTED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
12.10.2006 PASSED IN MVC NO.2222/03 ON THE FILE OF
THE CIVIL JUDGE (SR.DN.), MEMBER ADDL. MACT,
BAILHONGAL, AWARDING A COMPENSATION OF
RS.60,320/- WITH INTEREST AT 8% P.A. FROM THE DATE
OF PETITION TILL THE DATE OF REALISATION.
IN MFA NO.706/2007
BETWEEN:
THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURANCE CO.LTD.,
CLUB ROAD, BELGAUM,
(INSURER OF TEMPO MEH-5408)
REP.BY THE DEPUTY MANAGER,
NEW INDIA ASSURANCE CO.LTD.,
REGIONAL OFFICE,
NO.2-B, MISSION ROAD,
UNITY BUILDING ANNEXE, BANALORE
...APPELLANT
(BY SRI.RAVINDRA R.MANE, ADV.)
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AND:
1. KUMAR ADIVEPPA BASAVENNAPPA
@ BASAPPA ANGADI,
AGE: 14 YEARS, MINOR REP.BY
HIS NATURAL MOTHER-SMT.CHANNAWWA,
W/O BASAPPA ANGADI,
R/O SUTAGATTI, TQ.BAILHONGAL,
DIST: BELGAUM.
2. SRI.A.BALAN S/O ARMUGAM,
AGE: MAJOR, OCC: TRANSPORT,
R/O NO.5A, THERADI STREET,
THIRUCHENGODU-647 001.
TAMILNADU.
(OWNER OF TRUCK NO.TN-67-3717)
3. THE DIVISIONAL MANAGER,
NEW INDIA ASSURANCE CO.LTD.,
CLUB ROAD, BELGAUM.
(INSURER OF TRUCK NO.TN-67-3717)
4. SRI.PRAKASH MALLAPPA SOMANNAVAR,
AGE: MAJOR, OCC: TRANSPORT,
BUSINESS, R/O NESARGI,
TAL: BAILHONGAL.
(OWNER OF TEMPO NO.MEH-5408)
...RESPONDENTS
(BY. SRI.KUSHAL BOLMAL, ADV. FOR
SRI.V.M.SHEELVANT, ADV. FOR R1,
R4 SERVED AND UNREPRESENTED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
12.10.2006 PASSED IN MVC NO.2223/03 ON THE FILE OF
THE CIVIL JUDGE (SR.DN.), MEMBER ADDL. MACT,
BAILHONGAL, AWARDING A COMPENSATION OF
RS.1,29,390/- WITH INTEREST AT 8% P.A. FROM THE
DATE OF PETITION TILL THE DATE OF REALISATION.
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IN MFA NO.710/2007
BETWEEN:
THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURANCE CO.LTD.,
CLUB ROAD, BELGAUM,
(INSURER OF TEMPO MEH-5408)
REP.BY THE DEPUTY MANAGER,
NEW INDIA ASSURANCE CO.LTD.,
REGIONAL OFFICE,
NO.2-B, MISSION ROAD,
UNITY BUILDING ANNEXE, BANALORE
...APPELLANT
(BY SRI.RAVINDRA R.MANE, ADV.)
AND:
1. KUMAR CHETAN SHIVAPPA BELIGATTI,
AGE: 7 YEARS, MINORS REP.BY
HIS NATURAL FATHER
SRI.SHIVAPPA S.BALIGATTI,
AGE: MAJOR, OCC: PRIMARY SCHOOL
TEACHER, R/O SUTAGATTI,
TQ.BAILHONGAL, DIST; BELGAUM.
2. SRI.A.BALAN S/O ARMUGAM,
AGE: MAJOR, OCC: TRANSPORT,
R/O NO.5A, THERADI STREET,
THIRUCHENGODU-647 001.
TAMILNADU.
(OWNER OF TRUCK NO.TN-67-3717)
3. THE DIVISIONAL MANAGER,
NEW INDIA ASSURANCE CO.LTD.,
CLUB ROAD, BELGAUM.
(INSURER OF TRUCK NO.TN-67-3717)
4. SRI.PRAKASH MALLAPPA SOMANNAVAR,
AGE: MAJOR, OCC: TRANSPORT,
BUSINESS, R/O NESARGI,
TAL: BAILHONGAL.
(OWNER OF TEMPO NO.MEH-5408)
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...RESPONDENTS
(BY. SRI.KUSHAL BOLMAL, ADV. FOR
SRI.V.M.SHEELVANT, ADV. FOR R1,
SRI.VISHWANATH S.SHETTAR, ADV. FOR R3,
R4 SERVED AND UNREPRESENTED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
12.10.2006 PASSED IN MVC NO.2224/03 ON THE FILE OF
THE CIVIL JUDGE (SR.DN.), MEMBER ADDL. MACT,
BAILHONGAL, AWARDING A COMPENSATION OF
RS.17,070/- WITH INTEREST AT 8% P.A. FROM THE DATE
OF PETITION TILL THE DATE OF REALISATION.
IN MFA NO.715/2007
BETWEEN:
THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURANCE CO.LTD.,
CLUB ROAD, BELGAUM,
(INSURER OF TEMPO MEH-5408)
REP.BY THE DEPUTY MANAGER,
NEW INDIA ASSURANCE CO.LTD.,
REGIONAL OFFICE,
NO.2-B, MISSION ROAD,
UNITY BUILDING ANNEXE, BANALORE
...APPELLANT
(BY SRI.RAVINDRA R.MANE, ADV.)
AND:
1. KUMAR SHIVAPPA BELIGATTI,
AGE: 9 YEARS, MINORS REP.BY
HIS NATURAL FATHER
SRI.SHIVAPPA S.BALIGATTI,
AGE: MAJOR, OCC: PRIMARY SCHOOL
TEACHER, R/O SUTAGATTI,
TQ.BAILHONGAL, DIST; BELGAUM.
2. SRI.A.BALAN S/O ARMUGAM,
AGE: MAJOR, OCC: TRANSPORT,
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R/O NO.5A, THERADI STREET,
THIRUCHENGODU-647 001.
TAMILNADU.
(OWNER OF TRUCK NO.TN-67-3717)
3. THE DIVISIONAL MANAGER,
NEW INDIA ASSURANCE CO.LTD.,
CLUB ROAD, BELGAUM.
(INSURER OF TRUCK NO.TN-67-3717)
4. SRI.PRAKASH MALLAPPA SOMANNAVAR,
AGE: MAJOR, OCC: TRANSPORT,
BUSINESS, R/O NESARGI,
TAL: BAILHONGAL.
(OWNER OF TEMPO NO.MEH-5408)
...RESPONDENTS
(BY. SRI.KUSHAL BOLMAL, ADV. FOR
SRI.V.M.SHEELVANT, ADV. FOR R1,
SRI.VISHWANATH S.SHETTAR, ADV. FOR R3,
R4 SERVED AND UNREPRESENTED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
12.10.2006 PASSED IN MVC NO.2225/03 ON THE FILE OF
THE CIVIL JUDGE (SR.DN.), MEMBER ADDL. MACT,
BAILHONGAL, AWARDING A COMPENSATION OF
RS.21,520/- WITH INTEREST AT 8% P.A. FROM THE DATE
OF PETITION TILL THE DATE OF REALISATION.
THESE APPEALS COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING: -
JUDGMENT
These appeals are by the Insurance Company questioning the judgment and awards passed by MACT, Bailhongal in MVC Nos.2222/2003, 2223/2003, 2224/2003 and 2225/2003 where under, Tribunal has :7: allowed the claim petitions in part and awarded compensation to the claimants and apportioned the liability to an extent of 60% on the owner of the truck bearing Reg.No.TN-67-3717 and directed the Insurance Company to indemnify the claim to said extent of 60% and has further held that, owner of the Tempo bearing Reg.No.MEH-5408 had permitted his driver to carry passengers unauthorizedly and thereby it amounted to breach of policy and permit conditions and as such held, owner of the Tempo has to indemnify the claimants vicariously for the illegal acts of his driver to an extent of 40% and it was further ordered directing respondent No.4-Insurance Company namely, (appellant) herein to pay the same to the claimants and recover the amounts from the owner of the Tempo. To the extent of fastening respondent No.4-Insurance Company namely the insurer of Tempo bearing Reg.No.MEH-5408 to pay the amount and recover it from the owner of the Tempo, the said respondent No.4- Insurance Company has filed these appeals contending :8: inter alia that, when Tribunal has held that claimants were travelling as gratuitous passengers in the goods vehicle and the risk of such passengers not being covered under the policy issued to said vehicle, there was no liability on the part of the Insurance Company and as such, Insurance Company could not have been directed to indemnify the claim of the owner of the vehicle, when there was admittedly breach of policy and permit conditions of the vehicle, it could not have directed the Insurance Company to pay the amount to the claimants and then recover the same from the owner of the Tempo.
2. I have heard the arguments of Sri.R.R.Mane, learned counsel appearing for the appellants and Sri.Kushal Bolmal, learned counsel appearing on behalf of Sri.V.M.Sheelvant for respondent No.1. Notice to respondent No.2 has been dispensed with and none appears on behalf of respondent No.3, though served and represented. Respondent No.4 in these appeals :9: being owner of the Tempo is duly served and unrepresented.
3. A perusal of the award would clearly indicate that Tribunal on appreciation of evidence and scrutiny thereof has held as under:
"On this ground these claimants have to recover the 60% from the respondent No.1 & 2 and 40% of the compensation amount from respondent No.3 which is going to be awarded by this Tribunal on the ground he allowed his driver to carry the passengers unauthorisedly in goods tempo."
"Respondent No.3 permitted his driver with knowledge to carry the passengers unauthorisedly and that amounts to breach of policy and permit conditions of the vehicle. It is therefore on this ground he has to indemnify the claimants vicariously for the illegal acts of his driver to the extent of 40%" (owner of the Tempo No.MEH-5408 was arrayed as R3 before Tribunal)
4. The issue regarding as to whether the Insurance Company can be directed to pay the amount awarded by the Tribunal and recover the same from the : 10 : owner of the vehicle, even in case of there being a breach of policy conditions was an issue before the Division Bench in the matter of The Oriental Insurance Co. Ltd., Vs. Sri.K.C.Subramanyam and Another, which appeal came to be disposed of on 12.07.2012. The Division Bench had formulated following points for its consideration:
"When the insurance company establishes its case under Section 149(2) by proving one of the grounds mentioned in sub- section (i)(a)(b) of Section 149(2) and is entitled to avoid its liability to the insured,
a) is it entitled to avoid its liability to the third party also? Or
b) whether the insurance company has to pay the amount awarded to the third party and recover it from the insured?"
5. After considering various dicta laid down by the Apex Court on this issue has held as under:
"99. In discharging its interpretative function, the Court can correct obvious drafting errors and so in suitable cases the Court will add words, or omit words or substitute words. But : 11 : before interpreting a statute in this way the Court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question, (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. Before any words are read to repair as omission in the Act, it should be possible to state with certainty that these or similar words would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. But it is equally well settled as held by the Apex Court in the case of Regional Director ESI Corporation Vs. V.Ramanuja Match Industries that, we do not doubt that the beneficial legislations should have liberal construction with a view to implementing the legislative intent, but where such beneficial has a scheme of its own there is no warrant for the court to travel beyond the scheme and extend the scope of statute on the pretext of extending the statutory benefit to those who are not covered by the scheme. Courts cannot introduce words into the statute nor they could rewrite the statute.: 12 :
100. In the background of this well settled legal principles we have to approach this human problem, a victim of an accident, who had no control over the vehicle which is involved in the accident and who is not a party to the insurance is looking at the society, State, Government and Courts for relief for survival in a country governed by rule of law, which has accepted Democracy as the way of life. Chapter XI of the Act was introduced for the benefit of the third party. The Parliament has passed this beneficial legislation providing for compulsory insurance to all vehicles before they are brought on roads. They also introduced the concept of 'liability without fault' as contained in Section 140 of the Act. They also provided for 'no fault liability' and payment of compensation on structured formula basis u/s.163-A of the Act. Further they have introduced the principle of 'pay and recover' in Sub Section (4) and (5) of Section 149 of the Act. It provides for payment of the amount awarded as compensation notwithstanding the restrictive clause in the policy of insurance. But the benefit extended under that Chapter is taken away by introduction of Section 149 (2) read with sub-: 13 :
section (7) of Section 149, without expressly providing the principle of pay and recover as was done in the case falling under sub-sections (4) and (5) of Section 149 of the Act. When the Parliament expresses its intention by express words, in particular sub-Section (4), (5) and (7) of Section 149 of the Act, the Court has to presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. The legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature is to be avoided.
The legislative intention is to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. The Courts cannot reframe the legislation to make up deficiencies, as it has no power to legislate. Therefore, when the Parliament has expressly provided for the principle of pay and recover in cases falling under sub-Section (4) and (5) and has omitted to extend the said benefit to cases falling under sub-Section (7) or sub-Section (2) of Section 149 of the Act, the Court cannot read the said principle into the said provisions and : 14 : extend the benefit. It amounts to the Court supplying ""casus omissus'', which is not permissible. It amounts to the Court reframing the section, and legislating, for which it has no power. That is why the Supreme Court in order to do complete justice between the parties, even after holding that there is no liability on the part of the insurance company to indemnify or pay in terms of the decree or the award passed by the Tribunal, has been issuing directions to the insurance company to pay the claim and recover the said amount from the insured, by virtue of its power under Article 142 of the Constitution and extending the said benefit while making it clear that it would not be a precedent. Thus it has demonstrated the judicial restraint and respected the concept of separation of power as enunciated in the Constitution."
6. In the instant case, Tribunal on appreciation of evidence found that claimants were unauthorisedly travelling as passengers in a goods vehicle whose risk is not covered under the policy and as such there was a breach of policy conditions whereby sub Section (2) of : 15 : Section 149 and in particular Clause (c) of Sub-Clause (1) gets attracted. In view of the fact that, law has been laid down by the Division Bench of this Court holding in such circumstances, Insurance Company cannot be called upon to pay or satisfy the award and then recover the amount from owner. The same is binding on this Court and it requires to be applied to the facts on hand and when so applied, it has to be held in the instant case that, appellant-Insurance Company would not be required to pay the amounts awarded by Tribunal in favour of the claimants and recover from the owner of the offending vehicle, which in the instant case is a Tempo bearing Reg.No.MEH-5408 on whom the liability is apportioned to an extent of 40% and as such, the awards to the said extent requires to be set aside.
7. For the reasons aforesaid, following order is passed:
ORDER
i) Appeals are hereby allowed.
ii) Judgment and award passed by MACT, Bailhongal in MVC Nos.2222/2003, : 16 : 2223/2003, 2224/2003 and 2225/2003 directing appellant-Insurance Company to pay the amounts awarded and recover the same from the owner of the vehicle (Tempo bearing Reg.No.MEH-5408) is hereby set aside. However, insofar as fastening liability on the owner of the Tempo would stands affirmed.
iii) Amount in deposit in these appeals are ordered to be refunded to the appellant-
Insurance Company on proper identification by the registry.
Sd/-
JUDGE MBS/-