Karnataka High Court
The Hdfc Ergo Gen Ins. Co. Ltd vs Rukhsana Begum And Ors on 22 May, 2023
1 MFA.No.201560/2018
IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH
DATED THIS THE 22ND DAY OF MAY, 2023
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
MFA No.201560 OF 2018 (MV-D)
BETWEEN:
THE HDFC ERGO GEN. INS. CO. LTD.,
UNIT 108 TO 111 T56 II FLOOR,
HOM GENEVE HOUSE NO.14,
CUNNINGHAM ROAD,
BENGALURU - 560 032
(NOW REPRESENTED BY
AUTHORIZED SIGNATORY, BENGALURU)
...APPELLANT
(BY SMT. PREETI PATIL. MELKUNDI, ADVOCATE)
AND:
1. RUKHSANA BEGUM
W/O LATE ARIF HUSSAIN,
AGE 33 YEARS, OCC: HOUSEHOLD
2. ATIYA BEGUM
D/O LATE ARIF HUSSAIN,
AGE 6 YEARS, OCC: MINOR
3. MAHIYA ANJUM
D/O LATE ARIF HUSSAIN,
AGE 5 YEARS, OCC: MINOR
4. BISMILLAH BEGUM
W/O IBRAHIM SAB,
AGE 58 YEARS, OCC: HOUSEHOLD
2 MFA.No.201560/2018
RESPONDENT NOS.2 AND 3 ARE MINORS
U/G OF THEIR MOTHER RESPONDENT NO.1
ALL R/O YADULLAH COLONY,
RING ROAD, KALABURAGI - 585 101
5. MD. KHAJA NAZIMUDDIN
S/O MD.KHAJA MOINUDDIN,
AGE: 42 YEARS, OCC: OWNER OF VEHICLE
REG. No.KA-16/M-3664,
R/O H.NO.5-983/3082,
MECCA COLONY, RING ROAD,
KALABURAGI - 585 101
(R.C.OWNER)
6. WASEEM KHAN
S/O FEROZ KHAN
AGE: 41 YEARS, OCC: BUSINESS
R/O: AKBAR BAGH COLONY,
NEAR TIPU SULTAN CHOWK,
RING ROAD, KALABURAGI - 585 101
(POLICY HOLDER)
... RESPONDENTS
(BY SRI. MASHAK PATEL, ADVOCATE FOR R1 & R4;
R5 & R6 ARE SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF M.V.
ACT, PRAYING TO ALLOW THE ABOVE APPEAL BY SETTING
ASIDE THE IMPUGNED JUDGMENT AND AWARD DATED
04.06.2018 IN MVC NO.313/2016 PASSED BY THE II
ADDL. SENIOR CIVIL JUDGE AND MACT AT KALABURAGI,
IN THE INTEREST OF JUSTICE AND EQUITY.
3 MFA.No.201560/2018
THIS MFA HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 14.02.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
JUDGMENT
In this appeal filed under Section 173(1) of Motor Vehicles Act, 1988 ('M.V.Act' for short), respondent No.3/Insurance Company has challenged the impugned judgment and award whereby the Tribunal has partly allowed the claim petition granting compensation in a sum of Rs.10,09,000/- with interest at 6% p.a. and directing respondent No.3 to pay the same, in which one Arif Hussain died while traveling in car bearing registration No.KA-16/M-3664 (for short 'offending vehicle').
2. For the sake of convenience the parties are referred to by their rank before the Tribunal. 4 MFA.No.201560/2018
3. FACTS: It is the case of the petitioners that they are the wife, children and mother of deceased Arif Hussain. On 04.10.2013, at about 2.30 a.m, he was traveling in offending vehicle from Nizamabad to Gulbarga, as he was the fast friend (best friend) of the car driver/owner. Deceased Arif Hussain was a driver by profession and earning Rs.10,000/- p.m. He was hale and healthy. On the date of incident, at around 2.30 a.m, near Shanimahatma Cross, Kasirabad land area, Bidar, the driver of the offending vehicle drove the same in a high speed, in a rash or negligent manner and dashed against the Nilgiri tree by the side of the road. In the said accident, Arif Hussain as well as the driver of the offending vehicle sustained grievous injuries and Arif Hussain died due to the said injuries. As the wife, children and mother, petitioners were dependent on him. Respondent No.1 is the owner, respondent No.2 is the policy holder and 5 MFA.No.201560/2018 respondent No.3 is the insurer of the offending vehicle. All of the them are jointly and severally liable to pay the compensation.
4. Despite due service of notice, respondent No.2 has remained ex-parte.
5. Respondent No.1 has filed written statement contending that deceased was a driver working under him on monthly payment of Rs.9,000/- . On the date of incident, deceased was also the driver on duty to go to Nizamabad for recovery of amount towards supply of stationaries as the journey was long. It is denied that accident occurred due to the rash or negligent driving of the driver of the offending vehicle. The accident occurred due to heavy rain.
6. Respondent No.3 has filed written statement disputing the age, occupation and nature of 6 MFA.No.201560/2018 the accident and that deceased died in the said accident. The driver of the offending vehicle was not holding a valid driving license and as such the owner has violated the terms and conditions of the policy. The compensation claimed is highly exorbitant, fanciful and without any basis and prays to dismiss the petition against it.
7. Based on these pleadings, Tribunal has framed necessary issues.
8. In support of petitioners, petitioner No.1 is examined as PW-1 and Ex.P1 to 9 are marked.
9. On behalf of respondent No.3, RW-1 is examined and Ex.R1 is marked.
10. Vide the impugned judgment and award the Tribunal has partly allowed the claim petition granting compensation in a sum of Rs.10,09,000/- 7 MFA.No.201560/2018 with interest at 6% p.a. and directed respondent No.3 to pay the same. The details of compensation granted are as under:
Heads Amount
In Rs.
Love and affection 75,000
Loss of consortium 40,000
Funeral expenses and 15,000
transportation charges
Loss of dependency 8,64,000
Loss of estate 15,000
TOTAL 10,09,000
11. Petitioners have not challenged the
impugned judgment and award.
12. Respondent No.3 has challenged the
impugned judgment and award contending that the same is illegal, incorrect, perverse, capricious, arbitrary and without application of judicial mind. It is contrary to the provisions of M.V.Act. The Tribunal is not justified in saddling the liability on the appellant/respondent No.3 - insurer. The Tribunal has 8 MFA.No.201560/2018 erred in over looking the evidence of RW-1 that the offending vehicle was insured under Private Car Act only policy and it is settled principle of law that inmates are not covered under the Act only policy and only the risk of third parties are covered and the premium was collected for driver of the vehicle. The Tribunal has failed to understand the settled principle of law on this aspect laid down by the Hon'ble Apex Court in Sudhakaran's case.
12.1 Though respondent No.1 has pleaded that deceased was second driver, no oral or documentary evidence was produced. The Tribunal has erred in not considering the fact that offending vehicle is insured for private purpose i.e., own use of the owner, but it was used to carry passengers, as per the charge sheet which is in contravention of the terms and conditions of the policy. Therefore, respondent No.3 is not liable to indemnify the owner. The evidence of PW-1 9 MFA.No.201560/2018 establish that it was hired by the deceased which is in violation of the terms and conditions of the policy. The compensation granted under the conventional head is on the higher side and prays to dismiss the petition against respondent No.3.
13. In support of his argument learned counsel for respondent No.3 has relied upon the following decisions:
(i) Divisional Manager, United India Insurance Co.
Vs. Saraswathi & Ors(Saraswathi's case)1.
(ii) Branch Manager, Oriental Insurance Co.Ltd. Vs. Tahaseen Taj & Ors (Tahaseen Taj's case)2
14. On the other hand learned counsel representing petitioners supported the impugned judgment and award and prays to dismiss the appeal filed by the Insurance company. He has relied upon the following decision:
1 MFA.No.2054/2013 & connected matters
dated 25.06.2021 2 MFA.No.23205/2011 c/w.MFA.No.23206/2011 dated 26.08.2022 10 MFA.No.201560/2018
(i) United India Insurance Co. Vs. Smt.Shantavva m and Ors (Shantavva's case)3.
15. Heard arguments and perused the records.
16. Thus, respondent No.3 has challenged the impugned judgment and award mainly on the ground that it was insured under Act only policy and no additional premium was collected for covering the risk of passengers traveling inside the offending vehicle and as such the Tribunal has erred in directing the respondent No.3 to pay the compensation. At the outset it is relevant to note that in the petition, the petitioners have not at all pleaded that deceased Arif Hussain was traveling in the offending vehicle as the driver of the said vehicle i.e., second driver of the said vehicle. In fact it is pleaded that he was a close friend of the driver of the offending vehicle and as such 3 ILR 2006 KAR 1109 11 MFA.No.201560/2018 along with the said driver, he was traveling in the said vehicle.
17. Respondent No.1 who is the owner of the said offending vehicle, in his written statement has pleaded that deceased was also a driver on duty and he was going to Nizamabad for recovery of amount due towards the supply of stationaries as the journey was long. It appears realizing that the offending vehicle is covered only under Act only policy, which does not cover the risk of persons traveling inside the car other than the driver and in order to escape from the liability of paying the compensation, respondent No.1 appears to have made such a pleading that deceased was a driver on duty traveling along with the regular driver. In fact during the course of her evidence also, petitioner No.1 who is examined as PW- 1 has not deposed that deceased was traveling in the offending vehicle as a second driver. In her affidavit 12 MFA.No.201560/2018 evidence, she has reiterated that as a best friend of the driver of the car, who is also the owner i.e., respondent No.1, deceased was traveling in the offending vehicle.
18. However, during her cross-examination by respondent No.1, she has deposed that her husband was working as a driver with respondent No.1 and at the time of accident, he was sitting in the back seat, while the offending vehicle was driven by driver Sheikh Naziruddin. She has admitted the suggestion that since it was a long distance travel, there were two drivers. She has also admitted that her husband and the driver of the car were traveling to Andhra Pradesh to recover the money due. There are no pleadings in the petition with regard to these admissions. In fact though respondent No.1 has pleaded that deceased was working as a driver under him, no evidence is produced to establish the same. 13 MFA.No.201560/2018 In the absence of pleadings on behalf of petitioners, as well as the evidence to support the same, these admissions would not carry any evidentiary value.
19. During her cross-examination by respondent No.3, PW-1 has deposed that the offending vehicle belongs to respondent No.1 who has an acquaintance of her husband. She has admitted that at the time of accident, the said vehicle was hired by her husband. This piece of evidence of PW-1 that the vehicle was hired by deceased falsifies the defence of respondent No.1 that he was working as a driver with respondent No.1 and that at the time of accident, he was traveling in the offending vehicle as a second driver. Moreover, in case of private vehicle, only the risk of the driver would be covered. The pleadings and evidence placed on record is contrary to the defence taken by respondent No.1 that deceased was traveling in the offending vehicle as second driver. 14 MFA.No.201560/2018
20. Admittedly, the policy issued in respect of offending vehicle is Act only policy. No additional premium is collected to cover the risk of the inmates of the vehicle. In fact in Sarawathi and Tahseen Taj case referred to supra and relied upon by respondent No.3, the co-ordinate Bench of this Court has explained the scope of act only policy and held that in case of act only policy, where no additional premium is collected covering the risk of the inmates of the offending vehicle, the Insurance Company is not liable to pay the compensation.
21. In fact in Shantavva's case refered to supra and relied upon by the petitioners, the co- ordinate Bench of this Court held that the word "engaged in driving the vehicle" should not be interpreted to mean only the driver on the steering wheel excluding the spare driver. The spare driver is 15 MFA.No.201560/2018 also very much a person engaged in driving the vehicle, may be on the shift basis and the insurer is very much liable to pay the compensation to a spare driver under Section 147 of the M.V. Act, if there is only one claim under the act policy. However, if there are two separate claims in respect of driver and spare drive unless additional premium is paid, the insurer may not liable to pay for both drivers. However, this proposition of law would be applicable only when the petitioners prove that at the time of accident, deceased was traveling in the offending vehicle as a spare driver. As discussed earlier, in the absence of any pleadings and proof, the Tribunal has erred in allowing the claim of the petitioners by holding that the deceased was traveling in the offending vehicle as a spare driver.
22. Having regard to the fact that the policy covering the offending vehicle is act only policy and no 16 MFA.No.201560/2018 additional premium was collected for covering the risk of the inmates of the vehicle, this Court is of the considered opinion that the Tribunal has erred in fastening the liability on respondent No.3/Insurance Company. However, as the owner of the offending vehicle, respondent No.1 is liable to pay the compensation. To this extent the impugned judgment and award is liable to be set aside as against respondent No.3 and modified fastening the liability on respondent No.1 and accordingly, I proceed to pass the following:
ORDER
(a) Appeal is allowed.
(b) The impugned judgment and award
so far as fixing the liability on
respondent No.3 is set aside.
Consequently, Respondent No.1 is
directed to pay the entire
compensation together with accrued 17 MFA.No.201560/2018 interest within a period of six weeks from the date of this order.
(c) Respondent No.3/Insurance Company is permitted to withdraw the amount in deposit (if any).
(d) The Registry is directed to send back the trial Court records along with copy of this judgment to the Tribunal forthwith.
Sd/-
JUDGE RR