Karnataka High Court
United India Insurance Co. Ltd vs Shamshoddin S/O Abdullasab @ Abdullah ... on 2 July, 2024
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NC: 2024:KHC-K:4470
MFA No. 201025 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE UMESH M ADIGA
MISCL. FIRST APPEAL NO. 201025 OF 2021 (MV-I)
BETWEEN:
UNITED INDIA INSURANCE CO. LTD.
REPRESENTED BY ITS,
DIVISIONAL MANAGER,
DR. JAWALI COMPLEX,
SUPER MARKET,
KALABURAGI.
...APPELLANT
(BY SRI S. S. ASPALLI, ADVOCATE)
AND:
1. SHAMSHODDIN
S/O ABDULLASAB @ ABDULLAH CHABKSAWAR
Digitally signed by
SHIVALEELA AGE: 51 YEARS, OCC: BRA MANUFACTURER,
DATTATRAYA UDAGI R/O. MOHALLA PEERAN KATTA,
Location: HIGH
COURT OF TQ. BASAVAKALYAN,
KARNATAKA DIST. BIDAR-585403.
2. FAISAL KHAN S/O AYUB KHAN
AGE: MAJOR, OCC: BUSINESS,
OWNER OF BAJAJ PULSAR,
VEH. BEARING NO. KA-56/E-0627,
HOUSE NO. 17-79, GHAZIPURA LOCALITY,
TQ. BASAVAKALYAN,
DIST. BIDAR-585403.
...RESPONDENTS
(R1 AND R2 ARE SERVED)
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NC: 2024:KHC-K:4470
MFA No. 201025 of 2021
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO,
A) CALL FOR THE RECORDS IN MVC NO.505/2017 ON THE FILE
OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT-
BASAVAKALYAN DATED 03.07.2021. B) SET ASIDE THE
JUDGMENT AND AWARD IN MVC NO. 505/2017, DATED
03.07.2021 PASSED BY THE SENIOR CIVIL JUDGE AND
ADDITIONAL MACT- BASAVAKALYAN, BY ALLOWING THE
ABOVE APPEAL.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is insurer's appeal challenging the liability fastened on the Insurance Company to pay the compensation by the impugned the judgment and award passed by the Senior Civil Judge & Addl. MACT, Basavakalyan (hereinafter referred to as 'the Tribunal' for short) in MVC No.505/2017 dated 03.07.2021.
2. Though this appeal is slated for admission, with the consent of both the learned counsels, it is taken up for final disposal.
3. For the sake of convenience, the parties are referred to as per their ranks before the Tribunal. -3-
NC: 2024:KHC-K:4470 MFA No. 201025 of 2021
4. Brief facts of the case are that, on 26.05.2016 around 1:30 p.m. petitioner along with his cousin brother met with an accident due to rash and negligent riding of motorcycle bearing Reg.No.KA-36/0627 by its rider at Narayanapur cross, Hulasoor. As a result of which, the claimant sustained injures in the said accident. He had spent more than Rs.50,000/- towards medical expenses.
5. It is further contended that he was aged about 48 years at the time of accident and he was businessman and earning Rs.20,000/- per month. Due to injuries sustained in the accident, he has been suffering from permanent disability, which is affecting his earning capacity. With these reasons, the claimant prayed to award compensation of Rs.5,00,000/-.
6. Respondent/insurer denied contents of the claim petition and also contended that its liability is restricted to the terms and conditions of policy of the insurance. With these reasons, prayed for dismissal of the claim petition.
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NC: 2024:KHC-K:4470 MFA No. 201025 of 2021
7. From the rival contentions of both the parties, the Tribunal had framed the necessary issues for its determination.
8. The claimant to prove his case examined PWs.1 and 2 and got marked Exs.P1 to 18 and closed his evidence. Respondents have not led any evidence.
9. After hearing both the parties and appreciating the evidence available on record, the Tribunal by its impugned judgment, awarded compensation of Rs.2,88,480/- with interest at the rate of 6% per annum and respondent No.2 was directed to deposit the said amount.
10. The learned counsel for the appellant/insurer has vehemently contended that the policy of insurance was an Act policy. The said policy was placed before the Tribunal, which shows that basic premium + additional premium towards coverage of risk of owner-cum-rider was collected. The owner of the said vehicle did not pay any -5- NC: 2024:KHC-K:4470 MFA No. 201025 of 2021 additional sum to cover the risk of the pillion rider. The claimant/injured was a pillion rider in the said vehicle and his liability is not covered under the policy of insurance. Therefore, the appellant/insurer was not at all liable to indemnify the owner of the vehicle. The Tribunal did not consider these facts and directed to insurer to pay the compensation to indemnify the owner of the vehicle, which is erroneous. Therefore, prayed to allow the appeal and set aside the part of the judgment, which is fastening the liability on insurer.
11. Though notice was served on the owner as well as the claimant, they did not turn up.
12. Before the Tribunal, the appellant-insurer had produced the zerox copy of the insurance policy of the offending vehicle. In this appeal the appellant has produced certified copy of the policy of insurance, which shows that it was an act policy. Additional premiums were not paid to cover risk of pillion rider. Under these circumstances, the insurer is not at all liable to pay the -6- NC: 2024:KHC-K:4470 MFA No. 201025 of 2021 compensation on behalf of the owner of the vehicle, since it has no liability to pay the same.
13. The learned counsel for the appellant-insurer has relied on the judgment of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd., Shimla vs. Tilak Singh1; National Insurance Company Ltd. vs Balakrishnan & another2 and Co-ordinate Bench of this Court in the case of Divisional Manager vs Shamaraya s/o Basanna Kattimani & Ors3, it is held in the above judgments are that the insurer is not liable to indemnity the owner when the additional premium was not paid and policy of insurance is Act/Liability Policy. The said principle of law is applicable to facts of present case.
14. In view of the law laid down in the above said judgments, the appellant-Insurance Company cannot be directed to pay the compensation when the policy of 1 Manu/SC/8088/2006 2 Civil Appeal No.8163 of 2012 3 MFA No.31781/2010 and connected matters DD: 22.12.2020 -7- NC: 2024:KHC-K:4470 MFA No. 201025 of 2021 insurance is an act policy and no additional premiums has not been paid to cover the risk of the inmates of the vehicle. Therefore, the finding of the Tribunal fastening the liability on insurer is not permissible. To that extent, the impugned judgment and award passed by the Tribunal needs to be modified. Accordingly, I pass the following:
ORDER i. The appeal is allowed.
ii. The impugned judgment and award passed by
the Senior Civil Judge & Addl. MACT,
Basavakalyan, in MVC No.505/2017 dated 03.07.2021 is modified.
iii. The order passed by the Tribunal fastening the liability on the insurer to pay the compensation on behalf of owner of the vehicle is set aside.
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NC: 2024:KHC-K:4470 MFA No. 201025 of 2021 iv. Respondent No.1 owner is liable to pay the said amount of compensation with interest as awarded by the Tribunal.
v. The amount in deposit, if any, by the appellant/insurer shall be refunded to the appellant/Insurance Company, on due acknowledgment;
vi. The registry is directed to send back the Trial Court records along with copy of this judgment.
Sd/-
JUDGE SDU LIST NO.: 1 SL NO.: 32 CT:PK