Karnataka High Court
The Unitedindia Insu,Co.Ltd vs Chandrashekharaswamy on 24 August, 2021
Author: Shivashankar Amarannavar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 24 T H DAY OF AUGUST, 2021
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
MFA No.23395/2010
BETWEEN:
THE UNITED INDIA INSURANCE CO. LTD.,
DHARWAD, BY ITS DIVISIONAL OFFI CE,
ENKAY COMPLES ,
KESHWAPUR, HUBLI,
REP. BY DIVISION AL MANAGER,
THE UNITED INDIA INSURANCE CO, LTD.,
DIVISIONAL OFFICE NO.II,
LAMINGTON
ROAD, HUBLI .
...A PPELLANT
(BY SRI. A.G.JAD HAV, ADV OCATE)
AND:
1. SHRI. CHANDRASHEKHARSWAMY
@ CHANDRASHEKHAR
S/O. VEERAYYASW AMY
HIREMATH, A GE 38 YEARS ,
OCC: BUSINESS ,
R/O. TEACHERS COLONY ,
SAI NAGAR, UNKAL, HUBLI - 31.
2. SMT. IRAMMA W/O. CHANDRASHEKHAR
SWAMY HIREMATH,
AGE 29 YEARS ,
OCC: HOUSEHOLD WORK,
R/O. TEACHERS COLONY ,
SAI NAGAR, UNKAL, HUBLI - 31.
2
3. SHRI. S UDHAKAR NAGAPPA PALANKA R,
AGE MAJOR, OCC: BUSINESS,
RENUKA GAS A GENCIES,
R/O. VIKAS NAGA R, HOSUR,
GOKUL ROAD, HUBLI.
... RES PONDENTS
(SRI. CHANDRASHEKAR M. HOSAMAN I,
REPRES ENTING SRI. G. SUBRAMANYAM FOR R1 & R2;
SRI. V .K.K ULKARN I, ADV OCATE FOR R3)
THIS MFA IS FILED UNDER SECTION 173( 1) OF
M.V.ACT , 1988, AGAINST THE JUDGMENT AND AWARD
DATED 27.04.2010 PASSED IN MVC NO.194/ 2009 ON
THE FILE OF THE II ADDITIONAL CIVIL JUDGE (SR.
DN.) HUBLI, AW ARDING THE COMPENSATION OF
RS.1,50,000/- WITH INTEREST AT THE RATE OF 6%
P.A . FROM THE DA TE OF PETITION, T ILL REALIZATION .
THIS MFA COMING ON F OR FINAL HEARING THIS
DAY, THE COURT PASSED THE FOLLOWING:
JUDGMENT
This appeal is filed by the Insurance
Company, challenging the Judgment and award
passed in MVC No.194/2009 dated 27.04.2010
by the II Additional Senior Civil Judge and
Addl. MACT, Hubli.
2. Heard the arguments of the learned
counsel for the appellant-Insurance Company
and the learned counsel for the respondent
Nos.1 & 2-claimants.
3. The brief facts of the case are that,
on 26.02.2009 at 3.45 p.m., the son of the
respondent Nos.1 and 2, who was 01 year 08
months old, was going on the road at Sainagar,
Teacher's colony, Unkal, Hubli. At that time, a
goods Tempo bearing registration No.KA-
23/4528 driven by its driver in a rash and
negligent manner, dashed to the child and due
to the accident the child sustained grievous
injuries and was taken to KIMS Hospital, Hubli,
wherein it was declared as dead. The police
registered a criminal case against the driver of
the Tempo. The charge-sheet was filed against
the driver of the Tempo for the offences
punishable under Sections 379 and 304A of
Indian Penal Code and Section 181 of Motor
i.e. claimants presented the claimant petition,
claiming compensation for the death of their
child and the tribunal taking into consideration
the evidence of the claimants and the
documents, held that the driver of the vehicle
was driving the said vehicle without driving
license and the Insurance Company is liable to
pay a sum of Rs.1,50,000/- as compensation,
with interest at the rate of 6% per annum and
to recover the same from respondent No.3 i.e.
the owner of the Tempo as there is violation of
policy conditions.
4. The learned counsel for the appellant-
Insurance Company has contended that the
driver of the offending vehicle was not holding
a driving license and therefore, one of the
offences alleged against the driver is Section
181 of M.V.Act. He further contended that, the
owner of the offending vehicle allowed a
person to drive the vehicle who was not
holding the driving license and therefore, there
is a violation of policy conditions. He further
contended that, when there is a violation of
policy conditions, the Insurance Company
cannot be asked to pay the compensation to
the claimants and then recover the from the
owner of the vehicle.
5. The tribunal placing reliance on the
decision of the Apex Court in the case of Ram
Babu Tiwari Vs. United India Insurance
Company Limited and others, reported in
2008 (3) T.A.C.769 (S.C.) and the decision in
the case of Marakka and others Vs. Shahid
Khan and another, reported in 2010 (1)
KCCR 138 (DB) has held that, when there is a
breach of policy conditions, the Insurance
Company is not liable to pay the compensation,
but directed the Insurance Company to satisfy
the award amount and then recover the same
from the owner and driver of the offending
vehicle. The said question came for
consideration before the Full Bench of this
Court in the case of New India Assurance
Company Ltd., Vs. Yallavva W/o.
Yamanappa Dharanakeri and another,
reported in 2020(2) AKR 484, wherein it is
held that, incase of any violation of policy
conditions, the Insurance Company has to pay
and then recover the same from the owner of
the vehicle. Considering all these aspects, the
tribunal has not committed any error in
directing the appellant-Insurance Company to
pay the compensation to the claimants and
then to recover the same from the owner.
Therefore, there is no merit in the appeal, and
therefore, deserves to be dismissed.
6. Learned counsel for the appellant has
contended that, the tribunal in the Operative
Portion of the Judgment and in the Award, it
has passed the order as "Accordingly, the
petition against respondent No.2 is hereby
dismissed." and the said aspect will come in
the way of Insurance Company to recover the
compensation amount paid by it to the
claimants, from the owner of the vehicle. The
said order will come in the way of the appellant
for recovering the compensation amount from
the owner. Therefore, the said order passed in
the operative portion of the Judgment, requires
to be set aside. In the result, the following:
ORDER
The appeal is dismissed.
The order in the operative portion and in
the award i.e. "Accordingly, the petition
against respondent No.2 is hereby dismissed."
is set aside.
The amount in deposit is ordered to be
transmitted to the tribunal.
Sd/-
JUDGE
*Svh/-
