Karnataka High Court
Sri Bhaskar Devadiga vs Sri Chandra Devadiga on 18 August, 2022
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
1 MFA NO.7099/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.NO.7099/2018 (MV-I)
BETWEEN:
SRI BHASKAR DEVADIGA,
S/O LATE. KORAGU DEVADIGA,
AGED ABOUT 37 YEARS,
R/O. SHIRANI HOSAMANE,
SHIRIYARA VILLAGE,
SAIBRAKATTE POST,
UDUPI TALUK-576101.
... APPELLANT
(BY SRI.NAGARAJA HEDGE, ADVOCATE)
AND:
1. SRI. CHANDRA DEVADIGA,
S/O LATE. KORAGU DEVADIGA,
AGED ABOUT 40 YEARS,
R/O SHIRANI HOSAMANE,
SHIRIYARA VILLAGE,
SAIBRAKATTE POST,
UDUPI TALUK-576101.
2. THE ORIENTAL INSURANCE CO. LTD,
BRANCH OFFICE: KUNDAPURA,
NEAR MASTHIKATTE ROAD,
KUNDAPURA-576201.
REP. BY ITS BRANCH MANAGER.
... RESPONDENTS
(BY SRI.R.GUNASHEKAR, ADVOCATE FOR R2
THROUGH V/C, R1-SERVED)
2 MFA NO.7099/2018
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
05/06/2018, PASSED IN MVC NO.280/2016, ON THE FILE
OF THE ADDDITIONAL DISTRICT JUDGE AND ADDITIONAL
MACT, UDUPI (SITTING AT KUNDAPURA), PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMNT OF COMPENSATION AND
ETC.,
THIS M.F.A. COMING ON FOR FURTHER ARGUMENTS
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed under Section-173(1), of the Motor Vehicles Act, 1988 (hereinafter referred to as 'MV Act' for brevity) by the appellant - owner, challenging the judgment and award dated 05.06.2018, passed in MVC No.280/2016, on the file of the Motor Accident Claims Tribunal, Udupi (Sitting at Kundapura), Kundapura (hereinafter referred to as 'the Tribunal' for brevity), questioning the liability to pay the compensation on the owner of the motor cycle 3 MFA NO.7099/2018 No.KA.20.H.7609, is not correct, and therefore prays to make award that both the respondents who are owner and insurer of the motor cycle are jointly and severally liable to pay the compensation. Therefore, for seeking modification of this finding on order the above appeal is preferred.
2. On the other hand, the learned counsel for the Insurance Company - respondent No.2, Sri.R.Gunashekar, submitted that in the present case the policy issued as per Exhibit-R2 and R4 are the same. The Insurance policy pertaining to Motor Cycle No.KA-20-H-7609 and the claimant is pillion rider and since the insurance policy is issued as Act Policy only therefore the risk of the pillion rider is not covered as pillion rider is not coming within the category of third party. Therefore, it is submitted that the risk of the pillion rider is not covered and also owner of the motor cycle has not paid extra premium to cover the risk of the pillion rider. Hence, the Tribunal has 4 MFA NO.7099/2018 rightly exonerated the second respondent - insurance company to pay the compensation by fastening the liability of the compensation on the owner of the motor cycle in question. Therefore, submitted that the judgment and award passed by the Tribunal is correct and proper and legal one, which needs no interference by this court.
3. The undisputed facts are that the claimant was traveling as a pillion rider in the motor cycle bearing No.KA-.20-H.7609 from Girikematta towards Saibrakatee side, on the road Kota-Saibrakatte. The learned counsel for the insurance company submitted that in the present case, the insurance policy issued as per Exhibit-R2 to R4 is an Act policy, as the pillion rider is not coming within the category of third party. Therefore, on considering this the tribunal has correctly passed the judgment and award. Exhibits-R2 and R4 are the insurance policy, which are one and the same pertaining to the motor cycle 5 MFA NO.7099/2018 No.KA.20.H.7609. This insurance policy is the Act Policy, as the owner had purchased the policy which is Act policy, but there is no proof by the owner that he has paid extra premium/ additional premium so as to cover the risk of the pillion rider of the motor cycle.
4. The pillion rider of the motor cycle and the occupant in the car / jeep are not termed as third party. The Act Policy is issued only to cover the risk of the third party. If any extra premium / additional premium is paid so as to cover the risk of the pillion riders or occupant of the car and jeep then only even though the act policy is issued then the risk is covered, but, in the present case, there is no evidence either by the claimant or by the owner to show that the owner had pad extra premium / additional premium to cover the risk of the pillion rider.
5. This Court vide judgment dated 22.12.2020, passed in MFA No.31781/2010 in the 6 MFA NO.7099/2018 case of DIVISIONAL MANAGER, UNITED INDIA vs. SHAMARAYA S/O BASANNA KATTIMANI AND OTHERS (Hon'ble HSJ) after considering various judgments of the Hon'ble Apex Court and the provisions enumerated in the M.V. Act has held at para - 31 and 32 at follows:
"31. Therefore, the ratio laid down in the Meena Variyal's case (supra) is squarely applicable to the present facts, circumstances involved in these cases. Section 147 of the M.V.Act prescribes, requirements of policy of insurance and limits of liability, while in the proviso appended thereto carves out an exception to the main provision. It prescribes compulsorily coverage of risk to third parties and to those who are stated in the said provision. Therefore, unless the purchase of insurance policy compulsorily at minimal covering the risk of third parties, the owner cannot ply the vehicles on road or on public places and also in private places. Therefore, the provisions of the M.V.Act are benevolent in nature protecting right and interest of victims arising out of accident particularly who are third parties. There is compulsion on the 7 MFA NO.7099/2018 owner for purchasing 'Act Policy/Statutory Policy/liability only policy' but the owner is at option to purchase insurance policy covering more risk apart from third parties. Therefore, for covering risk for occupant in the car/jeep or pillion rider on the motorcycle, then the owner has to pay additional premium. Therefore, proof of additional premium is a pure question of fact. Therefore, where compulsorily purchase of insurance policy covering third parties only the insurance policy is 'Act' Policy/Statutory Policy/liability only policy' but under this 'Act Policy/Statutory Policy/ liability only policy' the risk of occupant of the car/jeep or pillion rider is not covered as they are not be categorized as third parties. Therefore, by this judgment it is held that under the 'Act Policy/Statutory Policy/ liability only policy', the risk of occupant of the jeep/car or pillion rider is not covered hence the Insurance Company is not liable to pay compensation in respect of death or bodily injury occurred to the occupant of the car/jeep or pillion rider. Therefore, under these circumstances the appeal filed by the Insurance Companies in the cases of putting burden on the Insurance 8 MFA NO.7099/2018 Companies to pay compensation, are hereby allowed as putting burden on the Insurance Companies are erroneous, thus putting burden on Insurance Companies is set-aside. Consequently, the appeal filed by the claimants and owners of the vehicle if they are calling in question exonerating the Insurance Companies are hereby dismissed.
32. As stated above, if additional/extra premium is paid covering risk either to owner- driver of the car/jeep or covering risk of pillion rider, then the proof of payment of additional/extra premium is a pure question of fact based on the insurance policies. Therefore, the insurance policies in each case is to be considered to find out whether additional/extra premium is paid or not."
6. Therefore, the proof of payment of additional premium/ extra premium is a pure question of fact that has to be established by way of leading evidence. But in the present case there is no evidence from the claimant or the owner of the motor cycle 9 MFA NO.7099/2018 regarding the payment of additional premium / extra premium so as to cover the risk of the pillion rider.
7. The learned counsel for the appellant further submitted that as per Exhibit-R2 and R4, insurance policy an extra premium of Rs.50, was paid. But on perusal of the insurance policy, Exhibit-R2 and R4, a sum of Rs.50/- is paid towards personal accident for owner / driver, which is extra premium paid only in respect of coverage of personal accident for owner / driver but not to the pillion rider. Therefore, this premium of Rs.50/- is paid as premium in the insurance policy as covering the risk of the owner - driver but not the pillion rider. Therefore, in this regard, I do not find any merit in the submission made by the counsel for the appellant. Admittedly, in the present case, the claimant has stated that, he was a pillion rider on the motor cycle but was not riding the motor cycle. Therefore, there is no merit in the submission made by the counsel for the appellant. 10 MFA NO.7099/2018
8. Admittedly, in the present case the case of the insurance company is that the policy is a Act policy. Therefore, the risk of the pillion rider does not cover. Hence, the Tribunal is justified and correct in exonerating the insurance company from payment of compensation by holding respondent No.1 alone is responsible for payment of the compensation. Therefore, I do no find any illegality or perversity in the judgment rendered by the Tribunal and there is no good ground made out to interfere with the judgment and award passed by the Tribunal. Therefore, the appeal is devoid of merit and liable to be dismissed. Accordingly, I proceed to pass the following:
ORDER i. The appeal is dismissed.
ii. The judgment and award dated 02.05.2011, passed in MVC No.7905/2008, on the file of Motor Accident Claims Tribunal, Udupi 11 MFA NO.7099/2018 (Sitting at Kundapura), Kundapura, is hereby confirmed.
iii. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.
No order as to costs.
Draw award accordingly.
Sd/-
JUDGE JJ