Karnataka High Court
The Divisional Manager vs Puttaraj S/O Rajayya And Ors on 2 June, 2022
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 02ND DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
MFA No.32886/2013 (MV)
C/w
MFA No.32871/2013
In MFA No.32886/2013
BETWEEN:
Divisional Manager,
United India Insurance Co. Ltd.,
PB No.47, Dr. Jawali Complex,
Super Market,
Gulbarga-585 101.
.....Appellant
(By Sri. Manvendra Reddy, Advocate)
AND:
1. Puttaraj S/o Rajayya,
Aged about 51 years,
Occ: Private Service,
2. Vimla W/o Puttaraj,
Aged about 42 years,
Occ: Household,
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Both R/o CIB Colony,
Gulbarga-585 101.
3. Ranoji D. Dhoddamani,
Age: Major, Occ: Private Service,
R/o Sharan Sirasagi,
Tq: Gulbarga-585 101.
.....Respondents
(By Sri. S.S.Hiremath, Advocate for
Sri.Amareshwar S.Rawoor & Sri.Ganesh Naik Advs. for R1 & R2;
Notice in respect of R3 is accepted)
This MFA is filed under Section 173(1) of the Motor
Vehicles Act, praying to call for the records and set aside the
judgment and award dated 24.07.2013 passed by the Prl.
Senior Civil Judge & MACT, Gulbarga, in MVC No.440/2011 by
allowing the appeal.
In MFA No.32871/2013
BETWEEN:
The Divisional Manager,
United India Insurance Co. Ltd.,
PB No.47, Dr. Jawali Complex,
Super Market,
Gulbarga-585 101.
Represented by its Asst. Manager
Sri. Sushilendra Rao.
.....Appellant
(By Sri. Manvendra Reddy, Advocate)
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AND:
1. Basavaraj
S/o Bassappa Malshetty,
Aged about 57 years,
Occ: Agriculture,
2. Ratnamma
W/o Baswaraj Malshetty,
Aged about 47 years,
Occ: Household,
Both R/o Plot No.CIB Colony,
Gulbarga-585 103.
3. Ranoji D.dhoddamani,
Age: Major, Occ: Private Service,
R/o Sharan Sirasagi,
Tq. Gulbarga-585 103.
.....Respondents
(By Sri. S.S.Hiremath, Advocate for
Sri.Amareshwar S.Rawoor & Sri.Ganesh Naik Advs. for R1 & R2;
Notice in respect of R3 is accepted)
This MFA is filed under Section 173(1) of the Motor
Vehicles Act, praying to call for the records and set aside the
judgment and award dated 24.07.2013 passed by the Prl.
Senior Civil Judge and MACT, Gulbarga, in MVC No.439/2011 by
allowing the appeal as prayed for.
These appeals having been heard and Reserved for
judgment on 27.05.2022, coming on for pronouncement of
judgment this day, the court delivered the following:
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JUDGMENT
These two appeals are filed by the Insurance Company challenging the judgment and award dated 24.07.2013 passed in MVC No.439/2011 and MVC No.440/2011 by the Prl. Senior Civil Judge & MACT- Gulbarga, whereby the tribunal has awarded compensation to the petitioners in both these appeals.
2. Though these appeals are arising out of two different motor vehicle cases, however it is evident that they are pertaining to the same accident and as such they are heard together and common order is being passed.
3. For the sake of convenience, parties are referred with the ranks occupied by them before the Tribunal.
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4. The brief facts leading to the case are that the petitioners are the parents of deceased Pawan and Shambhuling respectively. That on 19.10.2008, the deceased were proceeding on motorcycle bearing registration No.KA-32/Q-3180 and deceased Pawan i.e. son of petitioners in MFA No.32886/2013 was riding the motorcycle while the other deceased Shambhuling was pillion rider. That the said motorcycle driven by Pawan collided with motorcycle bearing registration No.KA-32/K-7328, which was coming from Chincholi driven by deceased Vijayakumar resulting in the accident. Due to the said accident, the pawan, pillion rider Shambhuling and rider of the motorcycle bearing registration No.KA- 32/K-7328 i.e. Vijayakumar has suffered fatal injuries and died. The accident is because of actionable negligence on the part of deceased Pawan. Hence, the 6 claim petitions are filed by the parents of both the deceased in MVC Nos.439 and 440 of 2011.
5. The respondent No.1 is the owner of the offending motorcycle on which both the deceased were traveling and respondent No.2 is the insurer. The respondent No.1 did not contest the matter while respondent No.2 filed objections denying the age, occupation and income of the deceased. It is contended that the accident has occurred due to actionable negligence on the part of the rider i.e. deceased Pawan and therefore he is not being a third party, question of claiming compensation does not arise at all. It is further asserted that it is an 'Act' policy and as such the petitioners in MVC No.440 of 2012 are also not entitled for the compensation from insurer as the deceased Shambhuling was the pillion rider and he does not become a third party. Hence, 7 the Insurance Company disputed the claim and sought for dismissal of the claim petitions.
6. After recording the evidence and appreciating the oral and documentary evidence, the tribunal has allowed the petitions and awarded compensation of Rs.3,46,000/- to the petitioners/parents of deceased Shambhuling in MVC No.440/2011 by fastening the liability on respondent No.2/appellant herein insurer and a sum of Rs.1,90,000/- was awarded to the petitioners in MVC No.439/2011 by fastening liability on respondent No.2/appellant herein.
7. Being aggrieved by these awards, these appeals have been filed by the Insurance Company challenging the liability.
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8. Heard the arguments advanced by the learned counsel appearing for the appellant-Insurance Company and the counsel for respondents/petitioners. Perused the records.
9. Learned counsel for the appellant/Insurance Company has taken a specific contention that since it is an Act policy, the deceased do not fall under the category of third party and as such the Insurance Company is not liable to pay compensation. Hence, it is prayed for exonerating the insurance company from paying any compensation.
10. Per contra, learned counsel appearing for the respondents/petitioners would support the judgment of the tribunal.
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11. Regarding quantum there is no dispute between the parties and only dispute is regarding liability.
12. Having heard the arguments and after perusing the records, it is evident that Ex.R1 in both the cases is the copy of insurance policy. It is evident from Ex.R1, that it is an 'Act' policy. There is no serious dispute of the fact that the offending vehicle was insured with respondent-appellant Insurance Company. It is also undisputed that Pawan and Shambhuling who were traveling on the said motorcycle suffered fatal injuries and succumbed to the injuries.
13. The records further clearly disclose that the deceased Pawan was riding the motorcycle while deceased Shambhuling was pillion rider. When, pawan 10 was rider of the motorcycle, he steps into the shoes of owner i.e. respondent No.1. At that same time, Shambhuling, who was the pillion rider does not fall under the category of third party so as to cover the risk of the third party, when it is an act policy and when the deceased were rider and pillion rider, they does not fall under the category of third party.
14. In this context, the learned counsel for the appellant-Insurance Company has placed reliance a decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd., Vs. Tilak Singh and Others, reported in 2006 ACJ 1441, wherein the Hon'ble Apex Court has held that when the policy is an 'Act' policy under Section 147(1) of M.V.Act, the pillion rider being a gratuitous passenger does not fall within the definition of third party and Insurance Company is not liable to pay compensation. A similar 11 view is taken by the Hon'ble Apex Court in a decision in the case of Oreintal Insurance Co. Ltd., Vs. Sudhakaran K.V. & Others, reported in 2008 (3) CCC 83 (SC). Further the Hon'ble Apex Court in a decision in the case of Oriental Insurance Co. Ltd., Vs. Vida Devi and Others, reported in 2009 AC 1434, has reiterated the said principles. This view is again reiterated by the Division Bench of this Court in the case of Manager, National Insurance Co. Ltd., Vs. Sheela and another, reported in 2009 ACJ 1433. Hence, it is evident that when it is an 'Act' policy, the pillion rider does not fall under the category of third party. This is again reiterated by the Division Bench of this Court in the case of The Branch Manager, The New India Assurance Co. Ltd., Vs. Mahadev Pandurang Patil and Another, reported in ILR 2012 KAR 1841, wherein the Division Bench of this Court while discussing the 12 provisions of Section 145(2), 146 and 147 of M.V.Act, has held that the occupant of a private vehicle is not a third party. The said proposition is again relied by this Court in an un-reported judgment in MFA No.32234/2010 decided on 10.03.2020.
15. It is now settled law that when it is an 'Act' policy, the pillion rider is not covered. Under such circumstances, the petitioners in MFA No.32871/2013 (MVC No.439/2011) though entitled for compensation but their remedy is to enforce the award as against respondent No.3, herein in this appeal who was the owner of the vehicle. The Insurance Company is exonerated from indemnifying the award in this regard.
16. As regards MFA No.32886/2013 since the deceased Pawan was riding the motorcycle, he had 13 stepped into the shoes of the owner. The policy disclose that it has covered the personal accident cover for owner/driver for a sum of Rs.1,00,000/-.
17. The learned counsel for the appellant- Insurance Company submits that the Insurance Company is prepared to pay the statutory compensation as per the policy conditions to the tune of Rs.1,00,000/-, but he contends that the entire claim cannot be fastened on the insurer. There is some force in the arguments advance by the learned counsel appearing for the appellant-Insurance Company. Looking to these facts and circumstances, both the appeals needs to be allowed.
18. Under these circumstances, both the appeals succeed. Accordingly, I proceed to pass the following;
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ORDER
(a) MFA No.32871/2013 is allowed. The impugned judgment and award passed in MVC No.439/2011 is set aside as against the appellant-Insurance Company. However, it is open for respondent Nos.1 and 2/petitioners to enforce the award as against the owner of the offending vehicle i.e. respondent No.3 herein who was respondent No.1 before the tribunal.
(b) MFA No.32886/2013 is allowed in part.
(c) The appellant-Insurer is held liable to pay compensation to the petitioners in MVC No.440/2011 to the extent of Rs.1,00,000/- under the policy with interest @ 6% p.a. and the petitioners/respondent Nos.1 and 2 are required to recover the balance award amount as against the owner of the offending vehicle i.e. respondent No.3/respondent No.1 before the tribunal.
(d) The amount in deposit in MFA
No.32871/2013, shall be refunded
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immediately to the appellant-Insurance
Company.
(e) The amount in deposit in MFA
No.32886/2013 shall be transmitted to the tribunal.
(f) The appellant/respondent No.2 in MFA No.32886/2013 is directed to deposit the balance amount, if any with accrued interest within four weeks.
(g) In view of disposal of appeals, pending applications, if any, do not survive for consideration.
(h) No order as to costs.
Sd/-
JUDGE msr