Karnataka High Court
New India Assurance Co Ltd vs Sri G Nagaraju on 9 June, 2010
Equivalent citations: 2010 (3) AIR KAR R 957
Author: H.G.Ramesh
Bench: H.G.Ramesh
MFA NO.26~¢13 OF 2010
& 1Vi1SC.CVL.NO.7006/2010
4*
IN THE men comm' OF KARNATAKA AT BANGALQRE
DATED THIS THE 9TH DAY OF JUNE 2010' f -1 ._
BEFORE C V.
THE HON'BLE MR. JUSTIQEVH 'G .
MISCELLANEOUS FIRST APPEAL:'No;'2643 .
MISc.cVL.No_.;z_oo6/3010 *
BETWEEN: A A
NEW INDEAASSURANCE co, img). 5 . V'
REPRESENTED BY DMSIONAL [MAE-EAGE;-R ' A
No.47, GOPAL COMPLEX, II FLOOR f 1
BAZAAR STRE1ET,YESHWAI§I'i'PUR." _ _ 1 S
BANGALoRE--56o«n2_2;-. ...APPELLANT
{BY SR} R. '
AND:
1 SRJGNAGARAJU
S/O GANGAPPA,
NO. 15, BANDE .c OLON? '
GUDQADAHALL1, SANJAYNAGAR
11 STAGE ~
= _ BA§\?:GA3;aORE _ 56o'o9z; "
'* ,2' ; 'D.A;'"2,SHA.N
3 MASTER
AGED ABOUT 4 YEARS
..srNcE'sL.No.2 AND 3 ARE MINORS
REPRESENTED BY GRAND MOTHER
" S1'./AIT;HANUMAI{KA
"R/AT NE). 137, W MAIN
Sm CROSS, GANGAMMA--LAYoUT
" GUDDADAHALL1, R T NAGAR POST
BANGALORE -_ 560 032 ...REsPoNDEN'rS
THIS MFA IS FILED UNDER SECTEON 173(1) OF 1\/IV ACT
AGAINST THE JUDGMENT AND AWARD DATED 1912-2009 PASSED
MFA NO2643 OF 2010
82 MISC.CVL.NO.7/006/2010
,2"
IN MVC NO.8264/2008 ON THE FILE OF THE MEMBER, MACT, VIII
ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BANGALORE,
AWARDING A COMPENSATION OF RS.5,06,500/-- VVITH 1"N.'1'EREISi«'V @
6% P.A. FROM THE DATE OF THE PETITION TILL THE IDATFL3 oz?
DEPOSIT.
MISC.CIVIL.7006/2010 Is FILED UNDER oEsER..,41~.:RI_ILE ..
R/W SECTION 151 OF CPC PRAYING TOSTAY OPERATION OF
THE JUDGMENT AND AWARD DATED 19--1;'2--2009__ VI.I'$_ MVC
No.S264/2008 PASSED BY THE MEMBER. ii»'-.rfII'I~ ADDITI-SNAI;
JUDGE, COURT OF SMALL CAUSES, BANGALORE. A ' =
THIS MFA AND MIsc.cm"I,.§'eo6/2oIo 'eoM.II\ie{""oN'V FORT
ADMISSION THIS DAY, THE COURT DELIVEIQED 'I'H'EFOLLvQV'/INC:
This appeal_by the,._New Co. Ltd., is
directed against dated 19.12.2009
passed by Claims Tribunal-V,
2008. The appeilant is
the Insnfey 4' of 03.1"':-'AXE/:_4$4j,-.qiiiiotoreycle bearing registration
No.KA,--o4;E1\I¥7Ss0;
" .the;'i1n'pugned judgment, the Tribunal has awarded
a of Rs.5,06,500/-- along with Interest
Ithereoxl. pa. for the death of one Shobha in a motor
'S..jreIf1ie1e'ae'c1dent that occurred on 22.08.2008 while she was
"'O«."truaye11'ing as a pillion rider along with her husband as rider
""e.flovf"the aforesaid TVS motorcycle. The husband, who is
respondent; No.1 herein, is the owner/insured of the
I g, .
=>A;§_Hf,// J' MFA NO2643 OF 2010 & MISC.CVL.NO.7006/2010 -3- motorcycle. The claimants are the children of the deceased 82 the insured, Vrrho are arrayed as respondent 3 herein. The claim petition was filed under Section of the Motor Vehicles Act, 1988 {'the Tribunal, having found that the Zaccidenjt use of the motorcycle, has ai5vai*(tled compensation.
3. The sole contentioin_ learned Counsel appearing for the is that the Tribunal hadfl: the Insurance this submission is that the deceasedvvas she being the wife of the insured, ,,andCtheVclaiInants being their children, no liability fivcouvld .be"Ci'a,stened onwthe appellant--1nsurance Company. In contention, he relied on the following 'C _ iudgmellgts. - A , (1) '-ALINGAMMA v. UNITED INDIA INSURANCE co. LTD. [AIR 2009 SC 3056] {2} NEW INDIA ASSURANCE COMPANY LTD. U. SADANAND M UKHI [AIR 2009 SC 1788} (3) ORIENTAL INSURANCE COLTD. v. RAJNI DEVI {(2008} 5 SCC 7'36} (4) M. AKKAVVA 1). NEW INDIA ASSURANCE C0,, POONA {AIR 1988 KAR 238} 3 Xkby"
5'"
MFA NO2643 OF 2010 81 MISC.CVL.NC).7006/2010 Mags In my opinion, none of the aforesaid judgments are applicable to the facts of this case; in Ningamma & Sadanand Mukhfs case, the deceased himself was the motorcycle, in Rcyni Devfs case, the deceased. owner of the Vehicle and in Akkavvws 'case,_Hthe'4deceiase~d 9 was travelling as the representative the vehicle. In this case, the deceased was neither: thevowner of"
the motorcycle nor wasriding.r'the"_motorcyc1e";"shed was only a piilion rider.
4. It.~1s'"reiVevant*fto s't--ate'tha'ti'eX'cept the insurer and the insured,'r_a1'i third parties. However, merely becauysev the claimsgrelates to the death of, or bodiiy thiAr(i'v»;1m""ty and that the Vehicle had Valid ir;suranc.e'*c'o\(er. as on the date of accident, an insurer cannot be liable for the award. Before making an 'xinsurer iiabie for the award, the question that requires to be 'uexarnined is as to Whether the risk in question is compulsorily required to be covered under the Act or is factually covered under the insurance policy. If the risk is covered either under the Act or under the policy, the next 5 MFA N026-43 OF 2010 & MISC.CVL.NO.7006/2610 -5- question to be examined is the limit of the insurers liability under the Act and under the insurance policy; the i1'i:surer's liability shall be the higher of the two limits.
5. Coming to the facts of thisfcase,' «there; that the motorcycle involved in V4the".V_accicie_nt"
insurance cover as on the da"'te"of accident, It'is not the case of the Insurance Compar1lyl'ti1at th'e_po1icy"did not cover the risk of pillion rider ori.lthaft':its ,1-i.abi_1;ity_',.is limited. The Insurance Conipany on any of the statutory the Act to avoid the liability', ._ neither the "owner of the motorcycletnor vO'asl"ridin'g the motorcycle; she was only a pil1i,o_h fitter. Ciimthe facts of the case, the deceased, though was the wifeaiof the owner/ insured, cannot be treated as the i11su:red"'or"_~.his"representative; hence she would become a V --V third Accordingly, I find no legal infirmity in the l"g.vs,¢:ifi1p11gI1Vcl(Zi judgment in making the insurance Company
-- for the award. No ground to admit the appeal. Both " tithe appeal and 1\/Iisc.CVl.No.7006/2010 filed for interim stay MFA NQ2643 OF 2010 <3: MISC.CVL.NO.7006/2010 -5- are dismissed. The amount lying in deposit with this Court shall be transferred to the Tribunai forthwith. Appeal dismissed. /""
ksp / --Ata