Karnataka High Court
Shrishail S/O Mallappa Hedage vs Keerthi W/O Shivakumar on 23 November, 2018
Author: B.V. Nagarathna
Bench: B.V. Nagarathna
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF NOVEMBER 2018
PRESENT
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
AND
THE HON'BLE MR. JUSTICE BELLUNKE A.S.
M.F.A.No.102420/2014 c/w
M.F.A.No.101450/2014 & 102179/2014 (MV)
IN M.F.A. NO 102420 OF 2014
BETWEEN
SHRISHAIL S/O MALLAPPA HEDAGE,
AGE: 47 YEARS,
OCC: CONSULTANT ENGINEER (NOW NIL),
R/O: SECTOR NO.9, RANI CHANNAMMA MARG,
ANJANEYA NAGAR, BELGAUM.
..... APPELLANT
(BY SRI VITTHAL S TELI, ADV.)
AND
1. KEERTHI W/O SHIVAKUMAR,
AGE: MAJOR, OCC: SERVICE,
R/O: PARIMALA APARTMENT,
1ST FLOOR, T V TOWER ROAD,
JADHAV NAGAR, BELGAUM.
2. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
D.O. AT MARUTI GALLI, BELGAUM.
3. SHIVAJI M GAIKWAD,
2
AGE: MAJOR, OCC: BUSINESS,
R/O: KOLHAPUR.
4. THE DIVISIONAL MANAGER,
NEW INDIA ASSURANCE CO. LTD.,
D O OFFICE AT CLUB ROAD, BELGAUM.
..... RESPONDENTS
(BY SRI R M KULKARNI, ADV. FOR R1
SRI M.K. SOUDAGAR, ADV. FOR R-2
SRI G.I. GACHCHINAMATH, ADV. FOR R-3
SRI RAVINDRA R. MANE, ADV. FOR R-4)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT, AGAINST JUDGMENT AND AWARD DATED 04.04.2014,
PASSED IN MVC NO.2239/2011 ON THE FILE OF THE
PRESIDING OFFICER FAST TRACK COURT-II AND MEMBER
ADDITIONAL MACT, BELGAUM, DISMISSING THE CLAIM
PETITION FILED UNDER SECTION 166 OF MV ACT.
IN M.F.A. NO.101450 OF 2014
BETWEEN
NEW INDIA ASSURANCE CO.LTD.,
BY ITS DIVISIONAL MANAGER,
D.O.OFFICE AT CLUB ROAD, BELGAUM,
HEREIN R/BY NEW INDIA ASSURANCE CO.LTD.,
REGIONAL OFFICE,
MOTOR THIRD PARTY HUB OFFICE,
SRINATH COMPLEX, 2ND FLOOR,
NEW COTTON MARKET,
HUBLI-580 029
R/BY ITS CHIEF REGIONAL MANAGER
..... APPELLANT
(BY SRI RAVINDRA R MANE, ADV.)
AND
1. SHRISHAIL S/O MALLAPPA HEDAGE,
AGE: 47 YEARS,
OCC: CONSULTANT ENGINEER,
R/O. SECTOR NO.9,
RANI CHANNAMMA MARG,
3
ANJANEYA NAGAR, BELGAUM.
2. KEERTHI W/O SHIVAKUMAR,
AGE: MAJOR, OCC: SERVICE,
R/O. PARIMALA APARTMENT,
1ST FLOOR, T.V.TOWER ROAD,
JADHAV NAGAR, BELGAUM.
3. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO.LTD.,
D.O.AT MARUTI GALLI, BELGAUM.
4. SHIVAJI M GAIKWAD,
AGE: MAJOR, OCC: BUSINESS,
R/O: KOLHAPUR.
..... RESPONDENTS
(BY SRI VITTHAL S TELI, ADV. FOR R1
SRI R.M. KULKARNI, ADV. FOR R-2
SRI M.K. SOUDAGAR, ADV. FOR R-3
R-4 NOTICE DISPENSED WITH)
THIS MFA FILED U/SEC.173(1) OF MV ACT 1988,
AGAINST JUDGMENT AND AWARD DTD:04.04.2014, PASSED IN
MVC.NO.2239/2011 ON THE FILE OF THE FAST TRACK COURT II
AND ADDL. MACT, BELGAUM, AWARDING THE COMPENSATION
OF RS.8,31,000/- WITH INTEREST AT 8% P.A. FROM THE DATE
OF PETITION TILL THE DATE OF DEPOSITED.
IN M.F.A. NO.102179 OF 2014
BETWEEN
KEERTHI W/O SHIVAKUMAR,
AGE: MAJOR, OCC: SERVICE,
R/O.PARIMALA APARTMENT,
1ST FLOOR, T.V.TOWER ROAD,
JADHAV NAGAR,
BELGAUM.
..... APPELLANT
(BY SRI R M KULKARNI, ADV.)
4
AND
1. SHRISHAIL S/O MALLAPPA HEDAGE,
AGE: 47 YEARS,
OCC: ASST.CONSULTANT ENGINEER,
R/O.SECTOR NO.9, RANI CHANNAMMA MARG,
ANJANEYA NAGAR, BELGAUM.
2. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO.LTD.,
D.O.AT MARUTI GALLI, BELGAUM.
3. SHIVAJI M.GAIKWAD,
AGE: MAJOR, OCC: BUSINESS,
R/O.GURU ASHISH COMPLEX,
FLAT NO.C-201, PLOT NO.35,
SECT 1E, KALAMBOLI,
RAIGARH, MAHARASTRA-410218
4. THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURANCE
COMPANY LTD., D.O.OFFICE
AT CLUB ROAD, BELGAUM.
..... RESPONDENTS
(BY SRI VITTHAL S TELI, ADV. FOR R1
SRI M.K. SOUDAGAR, ADV. FOR R-2
SRI G.I. GACHCHINAMATH, ADV. FOR R-3
SRI RAVINDRA R. MANE, ADV. FOR R-4)
MFA FILED U/SEC.173(1) OF MV ACT 1988, AGAINST
JUDGMENT AND AWARD DTD:04.04.2014, PASSED IN
MVC.NO.2239/2011 ON THE FILE OF THE FAST TRACK COURT II
AND ADDL. MACT, BELGAUM, AWARDING THE COMPENSATION
OF RS.8,31,000/- WITH INTEREST AT THE RATE OF 8% P.A.
FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
NAGARATHNA J., DELIVERED THE FOLLOWING:
5
JUDGMENT
These appeals were disposed off by judgment dated 18.04.2016 by a Co-ordinate Bench of this Court. The appellant in M.F.A.No.102179/2014 assailed the judgment of this Court before the Hon'ble Supreme Court in Special Leave Petitions which were converted into Civil Appeal Nos.7127- 7129/2018 by order dated 25.07.2018. The Civil Appeals were allowed and this Court was requested to decide the matter in the light of the decision of the Hon'ble Supreme Court in the case of K. Suresh Vs. New India Assurance Co. Ltd. an d another reported in (2012) 12 SCC 274 . The order dated 25.07.2018 passed by the Hon'ble Supreme Court reads as under:
"Leave granted.
Heard Mr. P.R. Ramasesh, learne d counsel for the appellant, Mr. H. Chandra Sekhar, learned counsel fo r re sponde nt No.1, Dr. A run Kumar Maji, learned counsel 6 for respondent No .2 and Ms.Sakshi Mittal, learned counse l fo r re spondent No .4.
It is submitte d by learned counse l for the appellant that the policy was a comprehensive po licy and the liability o f Insurance Company is cove red as per the judgment rende re d by this Co urt in K. Suresh vs. New I ndia Assurance Company Ltd.& Ors, (2012) 12 SCC 274. This decision has no t been no tice d in the impugne d j udgme nt.
In view o f the aforesaid, the matter is remitte d to the High Co urt to de al with the issue o f 'compre hensive policy' in the light of the judgment rendere d by this Court in K.Suresh's case(supra). The High Court is requested to decide the matter within three months from today.
The appeals are allowed to the e xte nt indicated above . There shall be no order as to costs."
In the circumstances, we have reheard these appeals having regard to the direction issued by the Hon'ble Supreme Court.
7
2. On perusal of the same, it is noted that the Hon'ble Supreme Court has remitted the matter to this Court to deal with the issue on the comprehensive policy in question being a comprehensive policy or otherwise and to decide the matter accordingly. The appeals filed by the appellant-owner of the offending vehicle were allowed only to the aforesaid extent. Therefore, at this stage itself we observe that the judgment passed in M.F.A. No.102420/2014 and M.F.A.No.101450/ 2014 by a Co-ordinate Bench of this Court would not call for any reconsideration except to the extent indicated by the Hon'ble Supreme Court. We further observe that the said controversy regarding the nature of the policy essentially arise in M.F.A. No.102179/2014.
3. The aforesaid appeals arose before this Court out of M.V.C.No.2239/2011 which assailed the judgment and award passed on 04.04.2014 by 8 the Fast Track Court-II and Additional Motor Accident Claims Tribunal, Belagavi (hereinafter referred to as 'the Tribunal', for the sake of brevity).
4. The relevant facts of the case are that respondent/claimant filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'M.V. Act', for short) seeking compensation on account of injuries sustained by him in a road traffic accident that occurred on 17.02.2011 at 1.00 p.m. on National Highway-4 near Kotur Rajasthan Dhaba when the driver of the Qualis Toyota vehicle bearing registration No.KA-22/M-8778 owned by the appellant-insured, drove the same in high speed, rash and negligent manner and dashed against the stationed lorry bearing registration No.MH-06/AQ- 5954 which had long sized pipes loaded which were protruding from the lorry which was stated to 9 be parked negligently. The injured claimant Sri Shrishail was traveling in the Qualis Toyota vehicle. The claim petition was contested by the owner and insurer of the vehicle by filing written statements.
5. On the basis of the pleadings, following issues were framed by the Tribunal for its consideration:
1. Whethe r the pe titioners prove s that he has sustaine d injuries in the allege d accident caused on 17.2.2011 at abo ut 1.00 p.m., while he was pro ceeding in Qualis Toyota vehicle bearing KA-22/M-8778, alo ng with another pe rson, on National Highway- 4, near Kotur Rajashtan Dhaba, due to rash and negligent act of the driver of the Qualis To yota vehicle bearing No.KA -22/M-
8778 and negligent act o f the driver of the Lorry bearing No .MH-06/AQ- 5954?
2. Whethe r the pe titione r is entitled to compensation, if so for how much and from whom?
3. What order or Award?"
10
6. In support of his case, claimant examined himself as PW-2. Three doctors were examined as PWs-1, 3 and 4. Claimant produced 28 documents which were marked as Exs.P-1 to P-
28. The respondents before the Tribunal examined two witnesses as RWs-1 & 2. Eight documents were produced which were marked as Exs.R-1 to R-8. On the basis of the said evidence, the Tribunal answered issue Nos.1 and 2 in the affirmative and awarded compensation of Rs.11,88,000/- with interest at the rate of 8% per annum from the date of claim petition till realization by apportioning negligence between the Qualis Toyota vehicle and insurance company to an extent of 75:25. Being aggrieved by the said judgment and award, claimant, insurer of the vehicle as well as the owner of the Qualis Toyota vehicle filed appeals before this Court viz., M.F.A.No.102420/2014, M.F.A. No.101450/2014 and M.F.A.No.102179/2014 respectively. 11
7. As already noted, in the judgment dated 18.04.2016 passed by a Co-ordinate Bench of this Court, the appeal filed by the claimant was allowed in part. The compensation was enhanced to Rs.32,12,480/-. The appeal filed by the insurer was also allowed and negligence and liability to an extent of 25% saddled by the Tribunal was set aside while the appeal filed by the owner of the Qualis Toyota vehicle was dismissed. Being aggrieved by the said common judgment passed by this Court, the owner of the Qualis Toyota vehicle filed Special Leave Petitions before the Hon'ble Supreme Court which were converted to Civil Appeals and were allowed by the Hon'ble Supreme Court by order dated 25.07.2018 which is extracted above, remanding the matter to this Court in order to ascertain as to whether the policy issued in respect of offending Qualis Toyota 12 vehicle was a comprehensive policy or an 'Act Policy'.
8. In the circumstances, we have heard learned counsel for the owner and learned counsel for the respondent-claimant as well as learned counsel for insurer of the lorry and perused the material on record.
9. Learned counsel for the appellant-owner of the Qualis Toyota vehicle contended that the Tribunal as well as this Court had ignored the fact that the policy in question was not an 'Act policy'. That over and above, the requisite amount to be paid for covering the risk of a third party in accordance with the Act, additional premium of Rs.25/- had been paid. That the policy covering the vehicle in question was a comprehensive or package policy and not an Act or statutory policy. That in order to ascertain the said aspect, the 13 matter has been remanded by the Hon'ble Supreme Court. That having regard to the terms and conditions of the policy, it emerges that the policy in question is strictly not an act policy and the risk of the inmate in the Qualis Toyota vehicle was also covered. He contended that the risk of the inmate of the car who is the injured claimant being covered the insurer is liable to satisfy the award and therefore, the said direction may be issued in this case.
10. Per contra, learned counsel for the insurer of the car contended that what was issued to the insured-appellant was only a statutory or an Act policy. That the risk of only third party was covered, additional premium of Rs.25/- was paid to cover the risk of workman-driver and the risk of the inmate of the car i.e. the injured claimant was not covered as no premium was paid to cover the said risk. Therefore, the policy cannot be 14 construed as a package or comprehensive policy and hence, the decisions of the Hon'ble Supreme Court in the case of N ational Insurance Company Ltd., Vs. Balakr ishnan and Another reported in 2013 ACJ 1999 would apply and there is no merit in this appeal. He further submitted that reliance placed on the decision in the case of K. Suresh by the insurer herein before the Hon'ble Supreme Court was wholly irrelevant as the said case did not consider the issue as to nature of the policy and hence, relying on the decision of Hon'ble Supreme Court in Balakrishnan's case, this Court may dismiss the appeal. He further contended that since the remand of the matter is only to the extent to ascertain the nature of the policy, the judgment of this Court with regard to other two appeals may not be interfered with.
11. Learned counsel for the claimant also submitted that no doubt this Court has enhanced 15 the compensation amount but the Hon'ble Supreme Court has not interfered with that aspect of the matter. Therefore, the same may remain intact and this Court may only consider the aspect of the nature of the policy and may pass an appropriate order.
12. Learned counsel for the insurer of the lorry also contended that this Court has set aside the negligence and liability to an extent of 25% on the driver of the lorry insured by the said insurance company and the same has not been interfered with by the Hon'ble Supreme Court and hence, it is not necessary to go into that question once again by this Court.
13. By way of reply, learned counsel for the appellant-owner of the Qualis car contended that when additional premium has been paid to an extent of Rs.25/- to cover the risk of a workman, it would imply that the risk of all inmates of the 16 car are covered and that the policy in question is strictly not a liability only or Act policy. Hence, the liability may be fastened on the insurer of his car.
14. Having heard learned counsel for the respective parties, the following points would arise for our consideration:
1) Whether Ex.R-4 policy issued in respect of Qualis Toyota car is an Act policy or a liability only policy as opposed to a comprehensive or package policy?
2) If point No.1 is answered in the affirmative, what order?
15. In order to answer the aforesaid points, at the outset, it is necessary to consider the nature of the policy issued by the insurance company. On perusal of the same, it is noted that even the heading of the policy is "liability only". The particulars of the vehicle insured and the 17 inmates of the lorry and other details read as under:
R e g. Engine No. Chassis No. M ak e T y pe Year C u b ic No. of of C a p a-
B o dy M f g. c it y KA- 21 9 73 5 54 9 10 5 47 4 70 / 0 2 T O Y O T A 20 0 2 24 4 6 22 - M - QUALIS 87 7 8
N a m e o f t h e R e g i s t r a t io n A u t h o r i t y : B e l g a u m Ge o gr a ph i c a l A r e a : I N D I A P E R S O N S O R C L A S S E S O F P E R S O N S E N T I T L E D T O D R I V E : An y pe r s o n i n c l u d i n g t h e i n s u r e d, p r o v i de d t h a t a p e r s on dr i v in g h o l d s an e f f e c t iv e dr i v in g l i c e n c e at t h e t i m e o f t h e a c c i de n t a n d i s n o t d is qu a l i f ie d f r o m h o l d in g o r o b t a in i n g s u c h a l i c e nc e . P r o v i de d a l s o t h a t t h e p e r s o n h o ld i n g an e f f e c t i v e L e ar n e r 's L ic e n c e m ay a l s o dr iv e t h e v e h i c l e an d s u c h a pe r s o n s a t i s f ie s t h e r e qu ir e m e n t s o f R u le 3 o f C e n t r a l M o t o r V e h i c le R u l e s , 19 8 9. L I M I T A T I O N S A S T O U S E : T h e P o l ic y c o v e r s u s e o f t h e V e h i c l e f o r an y p u r po s e o t h e r t h a n a) H ir e o r R e w ar d by C ar r i ag e o f Go o d s ( o t h e r t h an s am p le s o r pe r s o n a l lu g ga g e ) c ) O r g an iz e d r a c i n g d) P a c e m a k in g e ) S p e e d t e s t i n g a n d R e l i a b i l it y t r i a l s f ) U s e in c o n n e c t i o n w it h M o t o r t r ad e .
Premium: S t am p D u t y : R s . 1 S e r v i c e T ax :
R s . 2, 52 5 R s . 26 0 T o t a l: R s . 2, 7 8 Recpt Dt. Cover Note 5 N o . 16 0 50 2/ 8 1/ 09 0 00 00 0 82 8 4 26 / 0 No/Dt: 2/ 20 10 A g e n c y / B r o k e r C o de : 1 12 0 Service Tax R e gd. N o . A A A C U 5 5 52 C F T 0 0 1 D e v e lo pm e n t O f f ic e r C o de : 1 2
L I M I T S O F L I A B I L I T Y : U n d e r S e c t i o n 1 1 K ( i) D e a t h o f o r b o d i ly in j u r y t o an y p e r s o n in c lu d in g o c c u p an t s c ar r i e d i n t h e v e h i c le ( pr o v id e d s u c h o c c u p an t s ar e n o t c ar r ie d f o r h ir e or r e w ar d ) b u t e x c e p t s o f ar as it i s n e c e s s ar y t o m e t t h e r e qu ir em e n t s o f M o t o r V e h i c l e s A c t , t h e C o m p an y s h a l l n o t b e l i a b le w h e r e s u c h d e at h o r in j u r y ar i s e s o u t o f an d i n t h e c o u r s e o f t h e e m p l oy m e n t o f s u c h pe r s o n by t h e in s u r e d.
U n d e r S e c t io n I I ( i i ) D am a ge t o t h ir d p a r t y pr o pe r ty in r e s p e c t o f an y o n e c l a i m o r s e r i e s o f c l a im s ar i s in g o u t o f o n e e v e n t : U P T O R s . 75 0 00 0 S u bj e c t t o I M T E n d o r s e m e n t s N o s . , t e r m s an d c o n d i t io n s a s p e r I n d i a M o t o r T ar if f : 2 8"18
On a reading of the same, it becomes clear that a sum of Rs.2,525/- has been paid as the premium. The said premium computation table is as under:
Premium Computation Table
Basic CNG/ PA FOR PA FOR LL TO FOR NET SERVICE TOTAL
Pre miu m LPG OWNER PAID WORK- ANY PREMIUM TAX PREMIUM
Trailers K1 DRIVER DRIVERS, MAN OTHER
In clu ding CLEANERS EXTRA
TPPD/
Endt.No
Rs.2,500 Rs.0 Rs.0 Rs.0 Rs.25 Rs.0 Rs.2.525 Rs.260 Rs.2,785
Rs.2,500/- is the basic premium covering the risk of third party and Rs.25/- has been paid towards the liability of workman. No other extra amount towards premium has been paid. In the absence of payment of any other additional premium, the policy in question is a "liability only"
policy or an "Act policy" as it is the duty of the owner of a vehicle to cover the risk of a third party vis-à-vis the vehicle in terms of Section 147 of the M. V. Act, 1988 which is statutory coverage as also under the provisions of the Workmen's Compensation Act, it is the obligation of the 19 employer to cover the risk of an employee and hence Rs.25/- has been paid. The Qualis Toyota vehicle is not a public service vehicle but a private service car which cannot be used for hire or reward. Therefore, the risk of a passenger in a private car is not statutorily covered as that of a passenger in a public service vehicle, is statutorily covered under Section 147 of the M. V. Act, 1988.
16. The Hon'ble Supreme Court in the case of Balakrishnan has considered the very same question and on analyzing the policy in question therein held that in the said case, the policy was a package policy or a comprehensive policy. Therefore, liability was fastened on the insurer. In order to ascertain the said aspect, the matter was remanded to the High Court for reconsideration but the Hon'ble Supreme Court has clearly discussed the ramification of a comprehensive or package policy as opposed to an 20 'Act policy'. Paragraph 21 of the said judgment is apposite and the same reads as under:
"21. In view of the aforesaid factual position, the re is no scintilla o f doubt that a "comprehe nsive/package po licy" wo uld co ver the liability of the insurer fo r payment of compensation fo r the occupant in a car. There is no cavil that an "Act Policy" stands on a diffe re nt footing from a "Comprehe nsive/Package Po licy". As the circulars have made the position very cle ar and the IRDA , which is presently the statuto ry autho rity, has commanded the insurance companies stating that a "Comprehe nsive/Package Policy" co vers the liability, there cannot be any dispute in that regard. We may haste n to clarify that the earlier prono unce ments were rendered in respect of the "Act Po licy" which admittedly canno t cove r a third party risk of an occupant in a car. But, if the po licy is a "Comprehe nsive/Package Policy", the liability would be cove red. These aspects were no t notice d in the case of Bhagyalakshm i, ( 2009) 7 SCC 148 and, there fore , the matter was referred to a larger Bench. We are dispose d to think that the re is no necessity to refer the present matte r to a large r Be nch as the 21 IRDA, which is presently the statuto ry authority, has clarified the po sition by issuing circulars which have bee n re produced in the judgment by Delhi High Court and we have also reproduced the same."
17. That if the policy is an 'Act policy' or statutory policy or a liability only policy as in the instant case, then the risk of an occupant of a private car is not covered as such an occupant is not a third party and does not get a cover under Section 147 of the Act. On a reading of the policy in question in the instant case, it also emerges that the policy is a statutory or liability only policy, Act policy or one of limited liability and not a comprehensive nor a package policy. It does not cover the risk of an inmate or a passenger of the car. Therefore, the risk of the claimant in the instant case is not covered. Hence, the Tribunal was justified in fastening the liability on the owner of the vehicle. The matter has been remanded to this 22 Court by the Hon'ble Supreme court to consider its judgment in the case of K. Suresh vs. New India Assurance Company Ltd. and Ors . reported in (2012)12 SCC 274 . The said judgment deals with just compensation and the award of compensation on various heads. We have closely studied the said judgment and find that the same does not consider the issue raised by the insurance company in these appeals. As already held, the policy under consideration is an 'Act Policy' or not 'liability only policy' and not a 'comprehensive policy'. The liability of the insurer is limited and hence, the risk of a passenger in the Qualis Toyota vehicle was not covered under the policy. In view of the limited extent of remand made by the Hon'ble Supreme Court and on answering the said question in the negative, the appeal is dismissed.
18. The appellant-owner of the offending vehicle is directed to satisfy the award in an 23 expeditious manner. The amount in deposit before this Court be transmitted to the Tribunal.
19. It is unnecessary to clarify that the findings and conclusions arrived at by this Court in M.F.A.No.102420/2014 and M.F.A.No.101450/2014 are not interfered with having regard to the precise direction issued by the Hon'ble Supreme Court.
In view of the dismissal of the appeal, I.A.No.1/2018 also stands dismissed.
Parties to bear their respective costs.
Sd/-
JUDGE Sd/-
JUDGE Naa