Karnataka High Court
The Oriental Insurance Co Ltd vs Mahadevappa on 7 July, 2023
MFA.4151 OF 2013
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA
MFA NO.4151 OF 2013 (MV)
BETWEEN:
THE ORIENTAL INSURANCE CO. LTD.
44/45 RESIDENCY ROAD, LEO SHOPPING
COMPLEX, BANGALORE - 560 025
BY ITS REGIONAL MANAGER
THE MANAGER, THE ORIENTAL INSURANCE
CO. LTD. D.O.1, THEJAS COMPLEX, C.S.I.,
SAYYAJI RAO ROAD, MYSORE ... APPELLANT
(BY SMT. HARINI SHIVANAND, ADV.)
AND:
1. MAHADEVAPPA
S/O LATE MALLAPPA
AG3ED ABOUT 47 YEARS
2. PARASHIVAPPA
S/O LATE MALLAPPA
AGED ABOUT 43 YEARS
3. SADASHIVAPPA
S/O LATE MALLAPPA
AGED ABOUT 40 YEARS
ALL ARE R/AT HARAVA VILLAGE
AND HOBLI, CHAMARAJANAGAR
TALUK AND DISTRICT
4. H.S.NAGAPRASADMURTHY
S/O A.B.SHIVANNA, MAJOR
R/AT HARAVA VILLAGE AND HOBLI
CHAMARAJANAGAR TALUK AND DIST.
... RESPONDENTS
MFA.4151 OF 2013
2
(BY SRI.M.CHIDANANDA KUMAR, ADV. FOR R4;
R1, R2 AND R3-SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 20.02.2013
PASSED IN MVC NO.87/2011 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT, MACT, KOLLEGAL, SITTING AT
CHAMARAJANAGAR, AWARDING A COMPENSATION OF
RS.2,16,000/- WITH INTEREST @ 6% P.A., FROM THE DATE
OF PETITION TILL THE DATE OF DEPOSIT.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 23.06.2023 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the Insurance Company against the judgment and award dated 20.02.2013 passed in M.V.C.No.87/2011 on the file of the Fast Track Court and Motor Accident Claims Tribunal, Kollegal sitting at Chamarajanagar ('the Tribunal' in short).
2. Appellant is the respondent No.2; respondents 1 to 3 are the petitioners and respondent No.4 is respondent No.1 before the Tribunal. For the sake of convenience, the rank of the parties will be referred to as per their status before the Tribunal.
MFA.4151 OF 2013 3
3. Brief facts leading to filing of this appeal are, petitioners are the elder brothers of one Prakash, the deceased. On 19.09.2010 at about 10.00 p.m., the deceased was the pillion rider in a motor cycle bearing No.KA-10/E-2679 raided by respondent No.1 met with an accident on Chamarajanagar-Gundlupet Main Road and sustained injuries and they were shifted to JSS Hospital, Mysore. On 20.09.2010 the deceased died in the hospital. Claiming that the deceased was earning Rs.25,000/- by doing agricultural work and also owning a tailoring shop, the petitioners have approached the Tribunal. Claim is opposed by the respondents stating that, at the time of accident, the rider did not possess valid driving licence and there is violation of terms and conditions of the policy.
4. Before the Tribunal, on behalf of the petitioners, petitioner No.1 and one witness are examined as PWs-1 and 2 and Exs.P1 to P9 are marked. On behalf of the respondents, two witnesses are examined as RWs-1 and 2 and Exs.R1 to R5 came to be marked. The Tribunal after considering the material assessed the compensation MFA.4151 OF 2013 4 at Rs.2,16,000/- and fastened the liability against both respondent Nos.1 and 2/owner and insurer of the motor cycle.
5. Aggrieved by the same, the Insurance Company has filed this appeal on the ground that the insurance policy issued to the motor cycle does not cover the risk of the pillion rider, the pillion rider cannot be treated as a third party for want of payment of extra premium. Hence, the finding recorded by the Tribunal fastening the liability against the Insurance Company is questioned in this appeal.
6. I have heard the arguments of Smt.Harini Shivanand, learned counsel for the appellant/insurer and Sri.M.Chidananda Kumar, learned counsel for respondent No.4/owner of the motor cycle.
7. It is the contention of the learned counsel for the Insurance Company that under Ex.R1, policy of Insurance premium paid was basic third party liability at Rs.300/- and PA cover to owner-cum-rider of motor cycle at Rs.50/-, in all Rs.350/-. There is no insurance MFA.4151 OF 2013 5 coverage to the pillion rider and there is no insurance, hence owner has to pay the compensation.
7.1. To buttress her argument, learned counsel has relied upon the judgment of this Court in The Branch Manager, The New India Assurance Co.Ltd. -vs- Mahadev Pandurang Patil and Another1 to the effect that pillion rider is not a third party and this aspect has not been considered by the Tribunal.
8. Per contra, learned counsel for respondent No.4/owner-cum-rider of the motor cycle has contended that the Tribunal has rightly fastened the liability on the Insurance Company as the policy of insurance covers the risk of the pillion rider also and he supported the impugned judgment.
9. I have given my anxious consideration to the arguments advanced on both sides and also perused the materials on record.
1 ILR 2011 KAR 850 MFA.4151 OF 2013 6
10. There is no dispute as to the accident, cause of accident and death occurred on account of the accidental injuries and the petitioners being the elder brothers are entitled to claim compensation. The Tribunal has assessed the compensation by taking the income of the deceased at Rs.9,000/- per month, since he was a bachelor, 50% was deducted towards his personal expenses and thereupon by applying the multiplier of '16', the loss of dependency is assessed and 1/4th of dependency is calculated at Rs.2,16,000/- as loss of estate.
11. The only point that arises for consideration of this court is:
"Whether the policy of insurance covers the risk of the deceased as pillion rider of the motor cycle or whether the Insurance Company can be exonerated from its liability?
12. In this regard, it is relevant to refer to the copy of the insurance policy made available at Ex.R1. On perusal of the same, it is pertinent to note that the said MFA.4151 OF 2013 7 insurance is not a package policy, it is only "Two Wheelers Liability Only Policy - Zone B". The total premium paid under the policy is Rs.350/-. This has been explained in the schedule of premium as Basic TP Cover of Rs.300/-, PA for owner-driver-GR36A at Rs.50/- total Rs.350/-. There is no insurance cover to pillion rider of the motor cycle as no premium was paid on the policy.
13. The Tribunal has relied upon the judgment in National Insurance Co.Ltd. -vs- Pattabhi Ramaiah and Another2 to the effect that the Standard Form of Contract clearly indicates the intention of insurer to cover the risk of a pillion rider under package policy. Here in this case the policy obtained by respondent No.4 is only a liability policy and not a package policy.
14. The Tribunal has also relied upon the judgment in Bajaj Allianz General Insurance Co.Ltd. -vs- B.M.Niranjan and Another 3 to the effect that package policy cannot be said to be limited to claims of owner or 2 (2009) Acci.C.R.(Kant.) 3 2007(6) AIR KAR R 597 MFA.4151 OF 2013 8 rider of motor cycle and the insurer is liable to pay the compensation. In this case also, the matter was dealt with in connection with package policy, whereas, Ex.R1 is only an Act policy, hence, said principles has no bearing on the facts of this case.
15. In Mahadev Pandurang Patil's case (supra), while dealing with third party with reference to passenger of a car, Division Bench of this Court held that the risk of an occupant of a car, inmate of a vehicle or passenger in a private car is to be covered, additional premium has to be paid. If no additional premium is paid, the risk is not covered. In this context, if the insurance policy is read together, the premium has been paid in respect of personal accident cover to the rider- owner and also third party liability. The policy did not point out any risk coverage to the pillion rider or any payment of additional premium. As laid down in Bajaj Allianz General Insurance Co.Ltd.'s case (supra), the pillion rider of a motor cycle cannot be treated as a third party in order to cover the risk of the deceased unless premium is paid to cover the risk of the pillion rider or MFA.4151 OF 2013 9 policy must be a package policy. Ex.R1 is not a package policy, but it is a limited liability policy or it can be called as an Act policy. Hence, the Tribunal has erred in recording its finding that the insurance policy is a package policy. In view of the wrong assumption, liability is fastened against the appellant. When there was no premium paid to cover the risk of the pillion rider, it is not proper to direct the Insurer to indemnify the Insured. Therefore, above point is answered accordingly. Hence, the appeal deserves to be allowed, in the result, the following:
ORDER
(i) Appeal is allowed in part;
(ii) The impugned judgment stands modified.
(iii) The liability fastened on the appellant/Insurance Company to pay compensation is set aside.
(iv) The owner of the motor cycle i.e., respondent No.4 alone is held liable to pay compensation.
(v) The respondent No.4 is directed to deposit the compensation with interest within eight weeks from MFA.4151 OF 2013 10 the date of receipt of certified copy of this judgment.
(vi) Rest of the impugned judgment is kept intact.
(vii) The amount in deposit, if any, shall be returned to the Insurance Company.
Sd/-
JUDGE KNM/-
CT:HS