Karnataka High Court
The Divisional Manager, National ... vs Irfan And Ors on 3 July, 2024
-1-
NC: 2024:KHC-K:4557
MFA No. 202101 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 3 RD DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE UMESH M ADIGA
MISC. FIRST APPEAL NO.202101 OF 2017 (MV-D)
BETWEEN:
THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO. LTD.,
BILAGUNDI COMPLEX,
OPP. MINI VIDHAN SOUDHA,
KALABURAGI
...APPELLANT
(BY SRI DEEPAK V. BARAD, ADVOCATE)
AND:
1. IRFAN S/O HAJI KAREEM,
AGE: ABOUT 27 YEARS, OCC: PVT. SERVICE,
Digitally signed
by KHAJAAMEEN
L MALAGHAN 2. IMRAN S/O HAJI KAREEM
Location: HIGH AGE: ABOUT 23 YEARS, OCC: PVT. SERVICE,
COURT OF
KARNATAKA
BOTH R/O. RAMA MOHALLA, SHAHABAD,
TQ. CHITTAPUR, DIST. KALABURAGI-585103.
3. MOHD. RAFEEQ S/O MOHD. IMAMSAB DODMANI
AGE: ABOUT 45 YEARS, OCC:BUSINESS &,
OWNER OF MOTORCYCLE BEARING NO.KA-32/L-
5054),
R/O. H.NO.9-169, SUBHASH CHOWK, SHAHABAD,
TQ. CHITTAPUR, DIST. KALABURAGI.
...RESPONDENTS
(R1 TO R3 ARE SERVED)
-2-
NC: 2024:KHC-K:4557
MFA No. 202101 of 2017
THIS MFA IS FILED UNDER SECTION 173 (1) OF M.V.
ACT, PRAYING TO ALLOW THE ABOVE MISC.FIRST APPEAL AND
CONSEQUENTLY BE PLEASED TO MODIFY THE JUDGMENT AND
AWARD DATED : 31.07.2017 PASSED BY THE COURT OF THE
SENIOR CIVIL JUDGE AND MACT AT CHITTAPUR IN
MVC.NO.84/2015 AND CONSEQUENTLY BE PLEASED TO
DISCHARGE THE APPELLANT FROM ITS LIABILITY TO PAY THE
COMPENSATION AND ALSO BE PLEASED TO REDUCE THE
COMPENSATION SUITABLY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 20.06.2024, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant - insurance company challenging the judgment and award passed by the Senior Civil Judge and MACT- Chittapur (for short 'Tribunal') in MVC.No.84/2015 dated 31.07.2017, fastening the liability on it to pay the compensation, though the policy of insurance was issued on the offended vehicle, was an act policy.
-3-
NC: 2024:KHC-K:4557 MFA No. 202101 of 2017
02. The parties will be referred to as per their ranks before the Tribunal for sake of convenience.
03. It is the case of claimants - respondents that on 19.07.2012 the deceased - Smt. Rajiya Bugum and one Haji kareem were proceeding on their motorcycle bearing Reg.No.KA-13-L-5054. The said Haji kareem was riding the said motorcycle in a rash and negligent manner on Tengli to Arejambega village. As a result of the same, the said vehicle met with an accident. Smt. Rajiya Bugum fell down from the vehicle and sustained fatal injuries and succumbed to the injuries at the spot.
04. It is further case of claimants that the deceased was a coolie and earning Rs.9,000/- per month. She was aged about 50 years at the time of accident. The claimants were depending upon the earnings of the deceased. With these reasons they prayed to award compensation of Rs.30,45,000/-.
-4-
NC: 2024:KHC-K:4557 MFA No. 202101 of 2017
05. The respondent No.2 - insurer has denied the contention of the claim petition and prayed for its dismissal.
06. From the rival contentions of both the parties, the Tribunal had framed the necessary issues.
07. The claimants to prove their case examined PW.1 and got marked Ex.P.1 to Ex.P.5 and closed their evidence. The respondent No.2 examined RW.1 and got marked Ex.R.1.
08. The Tribunal after hearing both the parties and appreciating the evidence available on record, awarded the following amount of compensation:-
Sl. Heads of Compensation Amount
No. (in Rs.)
01. Loss of dependency and 7,20,000/-
expectancy
02. Love and affection 25,000/-
03. Transportation of dead body 5,000/-
04. Funeral expenses 10,000/-
Total 7,60,000/-
-5-
NC: 2024:KHC-K:4557
MFA No. 202101 of 2017
09. I have heard the learned counsels for the insurer.
10. Though, notice was served on the claimants, they did not appear or there is no representation on their behalf.
11. The only question arises for determination that:-
"Whether the insurer is liable to pay the compensation as awarded by the Tribunal.?"
12. The insurer has not disputed other things in the present appeal. Therefore, there is no need to consider regarding amount of compensation awarded by the Tribunal. The insurer has not called in question the fact of the accident and death of Smt. Rajiya Begum in this appeal. Therefore, there is no need to consider the said facts in the present appeal.
-6-
NC: 2024:KHC-K:4557 MFA No. 202101 of 2017
13. In the written statement the insurer has not taken the defense that Ex.R.1 is an act policy, therefore, it was not liable to pay the compensation. It was very silent in this regard. During the evidence of RW.1, it had contended that the policy issued against the offended vehicle was an act policy and pillion rider of the offended vehicle is not third party. Therefore, the claimants are not entitled for compensation from the insurer and it is the owner who is liable to pay the compensation.
14. This question is not res-integra. If the policy of insurance is an act policy, then liability of the insurer is only against the third party risk and not against the owner or persons traveling in the said vehicle, which was insured under the act policy. Ex.R.1 shows that the liability is only against the third party. No extra premium was collected by the insurer towards inmates of the vehicle or the passengers who were traveling in the insured vehicle. In addition to the basic premium, the owner of the said vehicle had also paid an additional sum of Rs.50/- to cover -7- NC: 2024:KHC-K:4557 MFA No. 202101 of 2017 the risk of owner - cum - driver of the vehicle. Under these circumstances, the owner of the vehicle had not paid the additional premium to cover the risk of passengers or inmates of the vehicles, who were traveling in the said vehicle. Therefore, as rightly submitted by the learned counsel for the insurer, the insurance company is not liable to indemnify the owner of the vehicle and liability is on the owner of the vehicle to pay the compensation.
15. In the case of United India Insurance Company Limited, Shimla vs. Tilak Singh and Others1, the following the law laid in the case of New India Assurance Company Limited vs. Asharani (reported in (2003) 2 SCC 223), it was held as under:-
"16. In our view, although the observations made in Asha Rani's case (supra) were in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appellant-insurance 1 (2006) 4 SCC 404 -8- NC: 2024:KHC-K:4557 MFA No. 202101 of 2017 company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion rider, as the insurance policy was a statutory policy, and hence it did not cover the risk of death of or bodily injury to gratuitous passenger."
16. In the case of Oriental Insurance Company Limited vs. Sudhakaran K.V. and others 2, wherein it is held as under:-
"19. The law which emerges from the said decisions, is : (i) the liability of the insurance company in a case of this nature is not extended to a pillion rider of the motor vehicle unless the requisite amount of premium is paid for covering his/her risk (ii) the legal obligation arising under Section 147 of the Act cannot be extended to an injury or death of the owner of vehicle or the pillion rider. (iii) the pillion rider in a two wheeler was not to be treated as a third party when the accident has taken place owing to rash and negligent riding of the scooter and not on the part of the driver of another vehicle."2
(2008) 7 SCC 428 -9- NC: 2024:KHC-K:4557 MFA No. 202101 of 2017
17. In the case of New India Assurance Company Limited vs. Mahadev Pandurang Patil and connected cases3, the Division Bench of this Court, held as under:-
"ACCIDENT CLAIM - Award of compensation Tribunal fastening the liability on the Insurance Company in respect of the death of the occupants of a private car-Appealed against-Whether the occupants / passengers / inmates of private vehicle do fall within the definition of the word 'Third party' - HELD, The statutory insurance is confined to the death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place. - Therefore, the passenger of a vehicle which is not meant for public service is not covered under Section 147. The said passenger in the case of a two wheeler is the pillion rider and in the case of three wheeler and four wheeler the occupants of such vehicle who are not carried in the said vehicle for hire or reward. Therefore, the insurance policy taken in respect of a vehicle, in which they are 3 ILR (2011) KAR 850
- 10 -
NC: 2024:KHC-K:4557 MFA No. 202101 of 2017 traveling as such passengers are not treated as third parties and such an insurance do not cover the risk of such persons. The reason is Section 147 does not require a policy to cover the risk to passengers who are not carried for hire or reward. The statutory insurance does not cover injuries suffered by occupants of the vehicle who are not carried for hire or reward and the insurer cannot be held liable under the Ac. The occupants / passengers / inmates of a private vehicle do not fall within the definition of the word third party. Therefore, the legal obligation arising under Section 147 of the Act cannot be extended to an injury or death of the owner of the vehicle, passengers in such private vehicle or a pillion rider in the case of a two wheeler. Gratuitous passengers who are not carried for hire or reward in a vehicle other than a public service vehicle, cannot be construed as third parties.-FURTHER HELD, If the risk of an occupant of a car, inmate of a vehicle or passenger in a private car, is to be covered, additional premium has to be paid. If no additional premium is paid, their risk is not covered."
- 11 -
NC: 2024:KHC-K:4557 MFA No. 202101 of 2017
18. The law on this point is very clear that the time and again the Hon'ble Supreme Court held that if the policy of insurance is an act policy and if additional premium was not paid towards covering the risk of inmates of the vehicle or passengers traveling in the said vehicle, then insurer is not liable to pay the compensation or indemnify the owner of the vehicle and owner has to pay compensation. The said principle of law is aptly applicable to the facts of the present case. The Tribunal did not consider this point though it was urged during the course of arguments. The Tribunal had committed an error in directing insurer to pay compensation. The pillion rider cannot be considered as third party and the risk of the passengers is not covered under the act policy. Therefore, findings of the Tribunal needs interference. Accordingly, the above said question is answered in favour of the insurer. Accordingly, I proceed to pass the following;
- 12 -
NC: 2024:KHC-K:4557 MFA No. 202101 of 2017 ORDER I. The appeal is allowed in part.
II. The impugned judgment and award passed by the Tribunal in MVC.No.84/2015 dated 31.07.2017 is modified.
a) The direction issued to the insurer fastening the liability on the insurer to pay the compensation to the claimants, is set-aside.
b) The owner shall pay the said amount of compensation with interest as ordered by the Tribunal.
c) The remaining part of the award passed by the Tribunal is not disturbed.
d) Whatever amount deposited by the insurer before this Court is ordered to be paid to the insurer on due acknowledgement.
The registry is directed to send back the Trial Court records along with copy of this judgment.
Sd/-
JUDGE KJJ List No.: 1 Sl No.: 41 CT:PK