Karnataka High Court
Oriental Insurance Company Limited, vs S Shivamurthy on 4 December, 2018
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4th DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
MFA.No.7779/2009 (MV)
BETWEEN:
ORIENTAL INSURANCE COMPANY LIMITED,
VINAYAKA COMPLEX, P B NO.107,
GARDEN AREA, SHIVAMOGGA
NOW REP. BY ITS REGIONAL MANAGER
ORIENTAL INSURANCE CO. LTD.
REGIONAL OFFICE, # 44/45, LEO
SHOPPING COMPLEX,
RESIDENCY ROAD,
BANGALORE-560 025. ... APPELLANT
(BY SRI A N KRISHNA SWAMY, ADV.)
AND:
1. S SHIVAMURTHY
AGED ABOUT 42 YEARS
S/O HANUMANTHAPPA
OCC: AGRICULTURE,
R/O NAGASAMUDRA,
S.K: MAGGI POST,
BHADRAVATHI
2. SYED ABDUL GAFAR
S/O SYED MIR ISMAIL
DRIVER OF CAR, AGE: MAJOR,
R/O K.R PURAM,
SHIVAMOGGA
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3. SYED FAZRULLA REHAMAN
S/O SYED MIR ISMAIL
DRIVER OF CAR, AGE: MAJOR,
R/O K.R PURAM,
SHIVAMOGGA
4. N S JAGADEESH
AGED ABOUT 42 YEARS,
S/O MOUNESHAPPA
R/O NAGASAMUDRA S.K. MAGGI
POST, BHADRAVATHI
5. THE MANAGER
NEW INDIA ASSURANCE CO. LTD.
MALLAPPA COMPLEX,
SHIMOGA.
6. NATIONAL INSURANCE CO. LTD.
BRANCH OFFICE NO.179
SHANTHI BHAVANA
M.G. ROAD
CHICKMAGALUR. ... RESPONDENTS
(BY SRI S V PRAKASH, ADV. FOR R1
SMT BHARATI PATIL, ADV. FOR
M/S KAMAL AND BHANU FOR R2 AND R3
SRI K SURYANARAYANA RAO, ADV. FOR R5
SRI A M VENKATESH, ADV. FOR R6
R4 IS SERVED.)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:08.05.2009 PASSED
IN MVC NO.281/1997 ON THE FILE OF CIVIL JUDGE
(SR.DN.) & ADDITIONAL MACT, BHADRAVATHI, AWARDING
A COMPENSATION OF RS.2,87,000/- WITH INTEREST @ 6%
P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
THIS MFA COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This miscellaneous first appeal is filed by the appellant-Insurance Company challenging the judgment and award dated 08.05.2009 passed in MVC No.281/1997 on the file of the Civil Judge (Sr.Dn.) and JMFC and Addl. MACT, Bhadravathi.
2. It is the contention of the Insurance Company that the claimant has filed the claim petition before the Tribunal contending that on 15.10.1997 he was moving as a pillion rider on a Hero Honda motor cycle driven by one Jagadeesha and when they were near Pillangeri Village at about 2.30 p.m., a car bearing Reg.No.KA-18- 1715 driven by 2nd respondent came from opposite direction in a rash and negligent manner and dashed against the motorcycle of the petitioner. Due to which, 1st respondent suffered injuries. Hence, the claim petition was filed before the Tribunal and the Tribunal after considering both oral and documentary evidence 4 awarded compensation of Rs.2,87,000/- along with interest at 6% p.a and fastened the liability on the Insurance Company. Being aggrieved by the same, the appellant-Insurance Company has filed this appeal.
3. The learned counsel for the appellant - Insurance Company has contended that Tribunal has failed to notice that the Insurance Company had issued a policy of insurance covering the risk from 16.10.1997 to 15.10.1998 and the policy of insurance was also issued to the said effect. There was no protest on behalf of the owner of car with regard to mentioning of the date of commencement of risk. It is further contended that the Tribunal ought to have noticed the date and time mentioned in the policy of insurance as per the decisions rendered by the Apex Court. Regarding quantum of compensation is concerned, the Tribunal is unrealistic and the same deserves to the scaled down. 5 Hence, prays to set aside the judgment and award passed by the Tribunal.
4. The counsel for the appellant-Insurance Company in his argument has reiterated the grounds urged in the appeal memorandum by contending that the parties are bound by the timings mentioned in the policy. In respect of the said contention, he relied upon the decision of this Court in the case of Branch Manager, National Insurance Co., Ltd., Vs. Hamza & Another reported in ILR 2004 KAR 651, wherein at paragraph No.7 it is held that what is required to be considered by this Court is whether the commissioner has powers to vary the terms of the Contract. It is not in dispute that the appellant as well as second respondent owner of the vehicle is bound by the terms and conditions of the policy. As per terms and conditions of the policy it would come into force from 5.8.1997; even though the same was obtained on 4.8.1997. When the 6 policy is issued by mutual consent, whether the terms of policy can be varied by the Commissioner, when second respondent has paid the premium and obtained the policy on 4.8.1997, there was no difficulty for him to insist the appellant-Insurance Company covering liability from the time and the date on which Ex.P.4 has been issued. Unfortunately, second respondent has not foreseen that his vehicle would met with an accident in between the time of issuance of policy and the date of enforcement of policy. When second respondent has obtained the policy knowing fully well that the policy would come into force with effect from 5.8.1997, when the parties have not let any evidence to show the intention of the parties in regard to the terms and conditions of the policy, no court can vary the terms and conditions of a concluded contract. Therefore, in the circumstances, this court has to hold even though the premium was paid and policy was issued on 4.8.1997 much prior to the time of the accident as the 7 policy will come into force from 5.8.1997; as per the terms of contract the appellant is not liable to indemnify the owner in between the time and date on which the policy is issued and the time of enforcement of the policy.
5. The counsel also relied upon the judgment of the Hon'ble Supreme Court in the case of New India Assurance Co., Ltd., Vs. Sita Bai (Smt) and Others reported in (1999) 7 SCC 575, wherein it is held that commencement of the policy at 2100 hours on 16.4.1987 was after the accident which had occurred at 1000 hours on 16.4.1987, the Tribunal as well as the High Court were wrong in burdening the appellant- insurance Company, with any liability- under Section 92-A of the Motor Vehicles Act by applying the law laid down in New India Assurance Co., Ltd., Vs. Ram Dayal reported in (1990) 2 SCC 680, which, on facts, had no application to this case. This case is squarely 8 covered by the judgment in the case of National Insurance Co., Ltd., Vs. Jikhubhai Nathuji Dabhi reported in (1997) 1 SCC 66, wherein it is held that on October 25, 1993 at 4.00 p.m., the contract of renewal had come into force and it would be operative upto October 24, 1984. The Tribunal also recorded, as a fact,that the accident had occurred on October 25, 1983 at 11.14 a.m., that is, before the renewal of the contract.
6. Per contra, learned counsel for the respondent Nos.2 and 3 has contended that the witnesses have been examined before the Tribunal as R.Ws.1 and 2. R.W.2 has deposed that his brother had been to the insurance company in the morning at about 10.00 am., and contacted the office of the insurance company for renewal of insurance and secured the cover note of the renewal of the insurance and the accident has occurred at 2.30 pm., and the payment of premium was paid 9 before the accident. Relying upon Ex.R2, it is contended that the accident has occurred after the payment of premium amount. Hence, the liability has to be fixed on the Insurance Company.
7. The counsel appearing for the claimants contends that the impleaded respondent No.6 is liable to pay the compensation, since the policy was in force, which is already marked as Ex.R4 and hence, the liability has to be fastened on respondent No.6.
8. On the other hand, the counsel appearing for respondent No.6 contends that the Tribunal verified the records and on perusal of policy only deleted respondent No.6 and order of deletion is not challenged and the same attained its finality. Hence, the question of payment does not arise to respondent No.6. The document-Ex.R4 is not issued by respondent No.6 and the document-Ex.R4 is Xerox copy and the same cannot be relied upon.
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9. The counsel appearing for respondent No.5 contends that the Tribunal rightly dismissed the claim against respondent No.5, since no policy was in force as on the date of the accident.
10. Heard the learned counsel for the appellant- Insurance Company and the learned counsel for the respondent and perused the material on record.
11. The question arises for consideration before this Court is as under:
"Whether the policy covers as on the date of the accident?"
12. On perusal of the policy, which is marked as Ex.R3, the risk commenced from 16.10.1997 and the accident has occurred on 15.10.1997 at about 2.30 pm. Ex.R2 does not disclose the timings for having paid the premium amount.
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13. Now, the question before the Court is with regard to liability is concerned. The judgments referred supra relied upon by the appellant's counsel is squarely applicable to the case on hand wherein the Apex Court as well as this Court has held that the parties are bound by the contract entered into between the Insurance Company and the parties. The very contention of learned counsel for the respondents cannot be accepted as there is no timings mentioned in Ex.R2. The learned counsel for the claimants and the learned counsel for the insured vehemently contend that the premium is paid before the accident and relied upon Ex.R2. On perusal of Ex.R2, time is not mentioned, but made the payment on 15.10.1997 and the parties have entered into contract with the Insurance Company and the date of risk commence from 16.10.1997 as per Ex.R3 and there is an explicit contract between the parties covering the risk from 12 16.10.1997 and when the specific period is mentioned in the policy, the parties are bound by the same.
14. The other contention is that the policy was in force as per Ex.R4 issued by National Insurance Company also cannot be accepted for two reasons. The Tribunal considering the documents comes to the definite conclusion that the policy was not in force and deleted the National Insurance Company and the said order already attained its finality. The second reason is that the contention of validity of the period of policy is also cannot be accepted, since the policy was not in force. On perusal of attested copy filed by the Insurance Company which covers the date from 06.10.1996 to 07.10.1997 and the accident has occurred on 15.10.1997. The copy of the policy was produced before the Tribunal, which is an attested copy shows that the policy was not in force as on the date of the accident and hence, the liability cannot be fastened on the 13 National Insurance Company also. Though, it is contended that Ex.R4 covers the date of accident, the same has not been proved and the same is a Xerox copy.
15. In view of the above discussion, the appeal is allowed. The judgment and award passed by the Tribunal is set aside insofar as liability fastening on the Insurance Company is concerned. The claimant is having liberty to recover the same from the owner.
The appellant - Insurance Company has deposited the amount and the same has to be refunded to Company.
Sd/-
JUDGE PB