Karnataka High Court
National Insurance Co Ltd vs Mr Mohammed Munthazer on 4 March, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
AT BANGALORE
DATED THIS THE 4TH DAY OF MARCH, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
M.F.A.NO.3444/2009
C/W
M.F.A.NO.3445/2009 (MV)
M.F.A.NO.3444/2009:
BETWEEN:
National Insurance Co., Ltd.,
Chickmagalur Branch,
Through its Regional Office
# 144, Subharam Complex,
M.G.Road,
Bangalore - 560 001.
Represented by its
Administrative Officer
Smt.D.Karthika ..Appellant
(By Sri.Rajashekar, for Sri.B.C.Seetharama Rao, Advocate)
AND:
1. Mr.Mohammed Munthazer
Aged about 23 years,
S/o Abdul Wahab,
C/o Mohammed
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`Rakshanda Manzil',
Mata Road,
Kadlemakki Village,
Balehonnur,
N.R.Pura Taluk,
Chickmagalur District.
2. Mr.Saleem
Major
S/o Mohammed
Resident of B.Kanabur
Balehonnur
N.R.Pura Taluk,
Chickmagalur District.
3. Sri.B.Krishna
Major,
C/o C.Usman
S/o Soophi Beary
Mutt Road,
Masjidkere,
Balehonnur - 577 112
B.Kanabur Village,
N.R.Pura Taluk,
Chickmagalur District. ..Respondents
(Notice to R-1 to 3 held sufficient vide order dated
11.12.2012)
This MFA is filed under section 173(1) of MV Act against
the Judgment and Award dated 13.02.2009 passed in MVC
No.253/2004 on the file of Principal District Judge, Member,
MACT, Chikmagalur, awarding a compensation of `59,000/-
with interest @ 6% p.a. from the date of petition till
realisation.
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M.F.A.NO.3445/2009:
BETWEEN:
National Insurance Co., Ltd.,
Chickmagalur Branch,
Through its Regional Office
# 144, Subharam Complex,
M.G.Road,
Bangalore - 560 001.
Represented by its
Administrative Officer
Smt.D.Karthika ..Appellant
(By Sri.Rajashekar, for Sri.B.C.Seetharama Rao, Advocate)
AND:
1. Sri.Ganesh
Aged about 25 years,
S/o Lakshmana Poojari
Raghavendra Garage,
Balehonnur,
R/o: Nepa Estate,
Basarikatte,
Koppal Taluk,
Chickmagalur District.
2. Mr.Saleem
Major
S/o Mohammed
Resident of B.Kanabur
Balehonnur
N.R.Pura Taluk,
Chickmagalur District.
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3. Sri.B.Krishna
Major,
C/o C.Usman
S/o Soophi Beary
Mutt Road,
Masjidkere,
Balehonnur - 577 112
B.Kanabur Village,
N.R.Pura Taluk,
Chickmagalur District. ..Respondents
(By Sri.N.R.Ravishankar, Advocate for R-1, notice to R-2 and
R-3 held sufficient vide order dated 25.02.2013)
This MFA is filed under section 173(1) of MV Act against
the Judgment and Award dated 13.02.2009 passed in MVC
No.311/2004 on the file of Principal District Judge, Member,
MACT, Chickmagalur, awarding a compensation of `19,800/-
with interest @ 6% p.a. from the date of petition till
realisation.
These MFAs coming on for admission this day, the
Court delivered the following:
JUDGMENT
These two appeals are preferred by insurance company questioning the correctness and legality of Judgment and award passed by the Principal District Judge and MACT 5 Chikamagalur in MVC 253/2004 and MVC 311/2004 dated 13.02.2009 whereunder claim petitions have been allowed in part and liability has been fastened on the insurance company to indemnify the claimants.
2. Heard Sri.Rajashekar, learned counsel appearing on behalf of Sri.B.C.Seetharama Rao, for appellant in both appeals and Sri.N.R.Ravishankar, learned counsel appearing for R-1 and notice to R-2 & R-3 is duly held sufficient vide order dated 25.02.2013 in MFA 3445/2009. Notice to R-1 to R-3 has been held sufficient in MFA No.3444/2009 vide order dated 11.12.2012.
3. By consent of learned advocates appearing for the parties these appeals are taken up for final disposal and also taking into consideration judgment and award is of the year 2004.
4. Contention of the learned counsel appearing for appellant-insurance company is that Tribunal having 6 examined the defence set up by the insurance company whereunder it was contended that policy issued to the offending vehicle was an `Act Policy' and as such insurance company was not liable to indemnify the claimant it ought not to have fastened the liability on the insurance company and as such award of the Tribunal is erroneous and liable to be set aside. Respondents in MFA 3444/2009 are served and unrepresented. Respondent No.1 in MFA 3445/2009 would support the judgment and award passed by Tribunal.
5. Having heard the learned counsel appearing for appellant and learned counsel for respondent No.1 in MFA 3445/2009 following facts would emerge:
On account of a road traffic accident that occurred on 15.01.2004 at about 6.15 P.M and injuries being sustained claim petitions under section 166 of the Motor Vehicles Act were filed seeking compensation. Tribunal on adjudication of these appeals has allowed the claim petitions in part. A plea was put forward by insurance company that insured has not 7 complied with the terms and conditions of the policy and it was also contended that policy issued to the offending vehicle was an `Act Policy' and there is admission to the effect that claimants were pillion riders in the vehicle and as such it need not indemnify the claims arising thereunder.Tribunal on adjudication of the said defence set up by insurance company has referred to Exhibit P-1 Form No.110 police notice, Exhibit P-2 copy of FIR to arrive at a conclusion that in the said accident two pedestrians namely claimants in MVC 311/2004 and claimants in MVC 369/2004 were injured and claimant in MVC 253/2004 was a pillion rider in the offending vehicle.
Having held so it also held that the insurance company is required to deposit the amount of compensation awarded to the claimants and recovery of the same from the owner of the offending vehicle if it's a case of breach of policy conditions by relying upon the Judgment of this court in the case of National Insurance Company Limited, represented by Administrative Officer Vs M.R.Shanthamma and others reported in ILR 2008 Karnataka 1484.
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6. Policy issued to the offending vehicle Exhibit R-1 is undisputedly `Act Policy' and no extra premium is collected to cover the risk of pillion rider. The Apex Court in the case of United India Insurance Company Ltd., Shimla Vs Tilak Singh and others reported in (2006) ACJ 1441, Oriental Insurance Company Vs Sudhakaran K.V. and others reported in (2008) 07 SCC 428 and Oriental Insurance Company Limited Vs Surendranath Loomba and others reported in 2013(1) T.A.C 15 (SC) has held that insured is not liable to pay compensation in respect of a pillion rider in terms of statutory cover mandated by section 147 when the accident has taken place owing to rash and negligent driving of the motor vehicle carrying pillion rider and such a pillion rider cannot be treated as a third party. Facts on hand are similar to the dicta laid down by the Hon'ble Apex Court in the above noted judgments and Tribunal also held that records would indicate namely Exhibit P-1 and P-2 that petitioner in MVC 253/2004 was a pillion rider and policy issued to the offending vehicle 9 Exhibit R-1 would not indicate that there is any extra premium collected to cover the risk of a pillion rider. In that view of the matter it is required to be clarified in this appeal though Tribunal has concluded that insurance company can deposit the amount and recover the same, the operative portion is otherwise. Hence, Judgment and award passed by the Tribunal fastening the liability on the appellant-insurance company cannot be sustained.
7. Re: MFA 3445/2009 - Same arguments is adopted by learned counsel appearing for insurance company in this appeal. Records would indicate that as per Exhibits P-1 and P-2 claimants in MVC 311/2004 and 369/2004 were pedestrians and as such defence set up by insurance company cannot be accepted. In view of the fact that they being third parties they are covered under the policy in question and statutorily under section 147 of Motor Vehicles Act. In that view of the matter there is no merit in the 10 contentions raised by appellant-insurance company and appeal deserves to be rejected.
For the reasons aforesaid following order is passed:
ORDER
1. MFA 3444/2009 is hereby allowed.
2. Judgment and award passed by MACT, Chikmagalur in MVC 253/2004 insofar as fastening liability on the insurance company is hereby set aside and it is made clear that claimant would be entitled to recover the amount from the owner of the vehicle.
3. MFA 3445/2009 is hereby dismissed. Judgment and award in MVC 311/2004 dated 13.02.2009 is hereby affirmed.
4. Amount in deposit in MFA 3444/2009 is ordered to be refunded to appellant on proper identification. 11
5. Amount in deposit in MFA 3445/2009 is ordered to be transferred to the jurisdictional Tribunal by registry for being disbursed in accordance with the award.
Sd/-
JUDGE SBN