The Divisional Manager vs Pallavi W/O. Sandesh Desai
2021 Latest Caselaw 5167 Kant

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

      DATED THIS THE 1 S T DAY OF DECEMBER, 2021

                            BEFORE

       THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


             M.F.A.No.22190/2013 (MV-D)
                        C/W
          MFA Nos.22191/2013, 22192/2013,
           MFA Nos.22609/2013,22610/2013,
       MFA nos.22611/2013 & MFA No.22612/2013

IN MVC.NO.22190/ 2013:

BETWEEN:

The D ivisional Manager,
Natio nal Insurance Company Ltd.,
D.O. 4 t h Ramdev Galli, Be lgaum
Now re presented by its Deputy Manager,
Regional Office , Hubli.
                                          ... APPELLANT
(BY SRI RAJASHEKAR S ARANI , ADV OCATE)

AND

1. Smt. Pallavi
w/o Sandesh Desai
Age: 35 ye ars
Occ: Ho useho ld.

2. Hritika
S/o Sandesh Desai
Age: 13 ye ars
Occ: S tude nt
Mino r represented by
M/G Pe titione r No .1 natural mo ther
3. Prithviraj
S/o Sandesh Desai
                                2




Age: 11 ye ars
Occ: S tude nt
Mino r represented by
M/G Pe titione r No .1 natural mo ther

4. Smt. Padmavati
W/o Jakkappa Desai
Age: 65 ye ars
Occ: Ho useho ld

All are R/o Hanagandi Tq
Jamkhandi, D ist: Bagalko t.

5. Pravin N ingusa Katawa,
Age: Major
Occ: Business
R/o Near Basave shwar Circle
Ilakal Tq Hunagund
Dist.Bagalakot.

6. ICICI Lumbard General
Insurance Co ., Ltd.,
Branch Raichur, Garaladinni Co mple x
Ground F loor 12- 11-9
Saktachri ro ad Raichur
(cover note NO.GF 6221644 valid fro m 19.09.2007
To 18/09/2008 insurer of lo rry)

7. Smt. Preeti
W/o Treethankar Deasai
Age: Major
Occ: Ho useho ld work
R/o 4 t h Hanagandi
Tq: Jamkhandi,
Dist: Bagalkot
(Owne r o f Maruthi A lto car No.KA 29/ Z1008.)

                                        ... RES PONDENTS
(BY SRI SANTPS H RAWAOOT & A .L. S ANDRIMANI,
ADVOCATES FOR R.1-R4 AND R.7)
R2 AND R3 MINORS REPTD. BY R.1
(SRI MRUTHYUNJA YA TATA BANGI - ADV. F OR R.5)
(BY SRI R.R. MAN E, ADVOCATE F OR R.6.)
                               3




     THIS MISC.FIRST APPEAL IS FI LED UNDER SECTION
173(1) OF MOTOR VEHICLES A CT, 1988, AGAINST THE
JUDGMENT AND A WARD DATED 26.02.2013 PA SSED IN MVC
NO.70/ 2008 ON T HE FILE OF ADD L. SENI OR CIVI L J UDGE
AND MEMBER MACT, NO.VI JAMKHANDI, AWARDING THE
COMPENSATION OF RS.91,6,000/- WITH INTEREST A T THE
RATE OF 6% P.A. FROM THE DAT E OF PETITION TILL THE
DATE OF DEPOSIT .


IN M.F.A.NO.22191/2013:
BETWEEN:

The D ivisional Manager,
Natio nal Insurance Company Ltd.,
D.O. 4 t h Ramdev Galli, Be lgaum
Now re presented by its Deputy Manager,
Regional Office , Hubli.
                                           ... APPELLANT
(BY SRI RAJASHEKAR S ARANI , ADV OCATE)


AND:
1.S mt. Subhangi
W/o Abhijeet Desai
Age: 35 ye ars
Occ: Ho useo ld.

2. S idhanth
S/o Abhijeet Desai
Age: 09 ye ars
Occ: S tude nt
Mino r rep. by M/G Petitio ner No.1
natural mother

3. S mt. Sure kha
W/o Dadasaheb De sai
Age: 60 ye ars,Occ: Househo ld

All are R/o Hanagandi Tq Jakakhandi
District Bagalkot.
                               4




4. Pravin N ingusa Katawa
Age: Major
Occ: Business
R/o near Basaveshwar Circle
Ilakal
Tq Hunagund D ist Bagalko t

5. I CICI Lumbar General Insurance Co .,Ltd.
Branch Raichur
Garaladinni co mplex
Ground F lor 12- 11-9
Saktachari road
Raichur (cove r note no GF 6221644
Valid fro m 19.09.2007 to 18/09/2008
Insure r o f lorry)

6. Smt Pree ti
W/o Treethankar Desai
Age: Major
Occ: Ho useho ld work
R/o Hanagandi Tq Jakakhandi
District Bagalkot.
                                   ....RES PONDENT S

(BY SRI A .L. SAND RIMANI & SANTPS H RAWAOOT
ADVOCATES FOR R.1-R3 AND R.6)
R2- MINOR REPTD. BY R.1
(SRI MRUTHYUNJA YA TATA BANGI - ADV. F OR R.4)
(BY SRI R.R. MAN E, ADVOCATE F OR R.5.)


     THIS MISC.FIRST APPEAL IS FI LED UNDER SECTION
173(1) OF MOTOR VEHICLES A CT, 1988, AGAINST THE
JUDGMENT AND A WARD DATED 26.02.2013 PA SSED IN MVC
NO.71/ 2008 ON T HE FILE OF ADD L. SENI OR CIVI L J UDGE
AND MEMBER MACT, NO.VI JAMKHANDI, AWARDING THE
COMPENSATION OF RS.8,10,000/- WITH INTEREST A T THE
RATE OF 6% P.A. FROM THE DAT E OF PETITION TILL THE
DATE OF DEPOSIT .
                               5




IN M.F.A.NO.22192/2013:

BETWEEN:

The D ivisional Manager,
Natio nal Insurance Company Ltd.,
D.O. 4 t h Ramdev Galli, Be lgaum
Now re presented by its Deputy Manager,
Regional Office , Hubli.
                                          ... APPELLANT
(BY SRI RAJASHEKAR S ARANI , ADV OCATE)


AND:
1. S mt. Rupali
W/o Anand Desai
Age: 31 ye ars
Occ: Ho useo ld.

2. Harshavardan Anand Desai
Age: 07 ye ars
Occ: S tude nt
Mino r rep. by M/G Petitio ner No.1
natural mother

3. S mt. Chandrakala
W/o Bhaiyyasahe b Desai
Age: 68 ye ars
Occ: N il

All are R/o Hanagandi
Tq Jakakhandi
District Bagalkot

4. Pravin N ingusa Katawa
Age: Major
Occ: Business
R/o near Basaveshwar Circle
Ilakal
Tq Hunagund D ist Bagalko t
                               6




5. I CICI Lumbar General Insurance Co .,Ltd.
Branch Raichur
Garaladinni co mplex
Ground F lor 12- 11-9
Saktachari road
Raichur (cove r note no GF 6221644
Valid fro m 19.09.2007 to 18/09/2008
Insure r o f lorry)

6. Smt Pree ti
W/o Treethankar Desai
Age: Major
Occ: Ho useho ld work
R/o Hanagandi Tq Jakakhandi
District Bagalkot.
                                   ....RES PONDENT S

(BY SRI A .L. SAND RIMANI & SANTPS H RAWAOOT
ADVOCATES FOR R.1-R4 AND R76)
R2- MINOR REPTD. BY R.1
(SRI MRUTHYUNJA YA TATA BANGI - ADV. F OR R.5)
(BY SRI R.R. MAN E, ADVOCATE F OR R.6.)


     THIS MISC.FIRST APPEAL IS FI LED UNDER SECTION
173(1) OF MOTOR VEHICLES A CT, 1988, AGAINST THE
JUDGMENT AND A WARD DATED 26.02.2013 PA SSED IN MVC
NO.72/ 2008 ON T HE FILE OF ADD L. SENI OR CIVI L J UDGE
AND MEMBER MACT, NO.VI JAMKHANDI, AWARDING THE
COMPENSATION OF RS.9,16,000/- WITH INTEREST A T THE
RATE OF 6% P.A. FROM THE DAT E OF PETITION TILL THE
DATE OF DEPOSIT .

In MFA NO.22609/2013:

BETWEEN:

ICICI Lumbard Ge neral
Insurance Co ., Ltd.,
Branch Raichur, Garaladinni Co mple x
Ground F loor 12- 11-9
Saktachri ro ad Raichur 01
Represented by I CICI
                                7




Lombard General I nsurance Co .,Ltd.,
2 n d F loor, Be llad & Company
Gokul road, Hubli 580 030
Represented by its Manager-Le gal
                                        .. A PPELLANT
(By S ri R.R. MANE, ADV OCATE)

AND:

1. Smt Pree ti
W/o Treethankar Desai
Age: 43 ye ars, Occ: House ho ld

2. S hubham
S/o Treethankar D esai
Age: 19 ye ars,Occ: Student

3. Snehal
D/o Treethankar D esai
Age: 10 ye ars,Occ: Student
Be ing a mino r, re presente d by
Natural Guardian mothe r-Respo ndent no .1

4. Smt. Saroj ini
W/o Krishnagoud Desai
Age: about 67 ye ars
Occ: Ho useho ld

5. Krishnago uda A llappa Desai
Age: about 77 ye ars, Occ: N il.

All are R/o Hanagandi Tq Jakakhandi
District Bagalkot.

6. Pravin N ingusa Katawa
Age: Major,Occ: Business
R/o near Basaveshwar Circle
Ilakal,Tq Hunagund D ist Bagalko t
(Owne r o f truck N o KA-22/A-5831)
                                     ... RES POND ENTS
(BY SHRI A .L. SANDRIMANI , ADV O F OR R 1 TO R5.)
R3 MINOR REPTD. BY R.1
(BY SHRI MRUTHY UNJAYA TATA BAN GI, ADVOCAT E F OR R.6)
                                8




     THIS MISC.FIRST APPEAL IS FI LED UNDER SECTION
173(1) OF MOTOR VEHICLES A CT, 1988, AGAINST THE
JUDGMENT AND A WARD DATED 26.02.2013 PA SSED IN MVC
NO.69/ 2008 ON T HE FILE OF ADD L. SENI OR CIVI L J UDGE
AND MEMBER MACT, NO.VI JAMKHANDI, AWARDING THE
COMPENSATION OF RS.8,18,000/- WITH INTEREST A T THE
RATE OF 6% P.A . FROM 30.04.2011 TILL DEPOSIT.

IN MF A N O.22610/2013:
BETWEEN:

ICICI Lumbard Ge neral
Insurance Co ., Ltd.,
Branch Raichur, Garaladinni Co mple x
Ground F loor 12- 11-9
Saktachri ro ad Raichur 01
Represented by I CICI
Lombard General I nsurance C.,Ltd.,
2 n d F loor,Be llad & Company
Gokul road, Hubli 580 030
Represented by its Manager-Le gal
                                         .. A PPELLANT
(By S ri R.R. MANE, ADV OCATE)

AND:

1. Smt. Pallavi
w/o Sandesh Desai
Age: 35 ye ars
Occ: Ho useho ld.

2. Hritika
S/o Sandesh Desai
Age: 13 ye ars
Occ: S tude nt
Mino r represented by
M/G Pe titione r No .1 natural mo ther
3. Prithviraj
S/o Sandesh Desai
Age: 11 ye ars
Occ: S tude nt
                                 9




Mino r represented by
M/G Pe titione r No .1 natural mo ther

4. Smt. Padmavati
W/o Jakkappa Desai
Age: 65 ye ars
Occ: Ho useho ld

All are R/o Hanagandi Tq
Jamkhandi, D ist: Bagalko t.


5. Pravin N ingusa Katawa
Age: Major
Occ: Business
R/o near Basaveshwar Circle
Ilakal,Tq Hunagund D ist Bagalko t
(Owne r o f truck N o KA-22/A-5831)

6. Smt Pree ti
W/o Treethankar Desai
Age: 43 ye ars
Occ: Ho useho ld
R/o Hanagandi
Tq: Jamkhandi, D ist Bagalkot
(Owne re o f Maruti Alto Car
Bearing No.KA- 29/ Z-1008)

7. The D ivisional Manage r,
Natio nal Insurance Company Ltd.,
D.O. 4 t h Ramdev Galli, Be lgaum
(Insure r o f Maaruti A lto Car bearing
No.KA 29 Z 1008)
                                    ... RES POND ENTS
(BY SHRI A .L. SANDRIMANI & SANTHOSH B RAW OOT
ADVOCATES , F OR R 1,R4 T O R6.)
R2 & R3 MINOR REPTD. BY R.1
(BY SHRI MRUTHY UNJAYA TATA BAN GI, ADVOCAT E F OR R5)
(SRI R.S . ARNI, A DVOCATE FOR R.7)


     THIS MISC.FIRST APPEAL IS FI LED UNDER SECTION
173(1) OF MOTOR VEHICLES A CT, 1988, AGAINST THE
                               10




JUDGMENT AND A WARD DATED 26.02.2013 PA SSED IN MVC
NO.70/ 2008 ON T HE FILE OF ADD L. SENI OR CIVI L J UDGE
AND MEMBER MACT, NO.VI JAMKHANDI, AWARDING THE
COMPENSATION OF RS.9,16,000/- WITH INTEREST A T THE
RATE OF 6% P.A . FROM 30.04.2011 TILL DEPOSIT.

IN MF A N O.22611/2013:

BETWEEN:

ICICI Lumbard Ge neral
Insurance Co ., Ltd.,
Branch Raichur, Garaladinni Co mple x
Ground F loor 12- 11-9
Saktachri ro ad Raichur 01
Represented by I CICI
Lombard General I nsurance Co .,Ltd.,
2 n d F loor,Be llad & Company
Gokul road, Hubli 580 030
Represented by its Manager-Le gal
                                        ... A PPELLANT
(By S ri R.R. MANE, ADV OCATE)

AND:

1. .Smt. Subhangi
W/o Abhijeet Desai
Age: 35 ye ars
Occ: Ho useo ld.

2. S idhanth
S/o Abhijeet Desai
Age: 09 ye ars
Occ: S tude nt
Mino r rep. by M/G Petitio ner No.1
natural mother

3. S mt. Sure kha
W/o Dadasaheb De sai
Age: 60 ye ars
Occ: Ho useho ld

All are R/o Hanagandi
                              11




Tq Jakakhandi
District Bagalkot

4. Pravin N ingusa Katawa
Age: Major
Occ: Business
R/o near Basaveshwar Circle
Ilakal,Tq Hunagund D ist Bagalko t
(Owne r o f truck N o KA-22/A-5831)

5. Smt Pree ti
W/o Treethankar Desai
Age: 43 ye ars
Occ: Ho useho ld
R/o Hanagandi
Tq: Jamkhandi, D ist Bagalkot
(Owne r o f Maruti Alto Car
Bearing No.KA- 29/ Z-1008)

6. The D ivisional Manage r,
Natio nal Insurance Company Ltd.,
D.O. 4 t h Ramdev Galli, Be lgaum
(Insure r o f Maruti Alto Car
Bearing No KA- 29/ Z 1008)
                                      ... RES POND ENTS

(BY SHRI A .L. SANDRIMANI & SANTHOSH B RAW OOT
ADVOCATES , F OR R 1,R3 T O R5.)
R2 MINOR REPTD. BY R.1
(BY SHRI MRUTHY UNJAYA TATA BAN GI, ADVOCAT E F OR R4)
(SRI RAJASHEKAR S. ARNI , ADV OCAT E FOR R.6)


     THIS MISC.FIRST APPEAL IS FI LED UNDER SECTION
173(1) OF MOTOR VEHICLES A CT, 1988, AGAINST THE
JUDGMENT AND A WARD DATED 26.02.2013 PA SSED IN MVC
NO.71/ 2008 ON T HE FILE OF ADD L. SENI OR CIVI L J UDGE
AND MEMBER MACT, NO.VI JAMKHANDI, AWARDING THE
COMPENSATION OF RS.8,10,000/- WITH INTEREST A T THE
RATE OF 6% P.A. FROM THE DAT E OF PETITION TILL THE
DATE OF DEPOSIT .
                              12




IN MF A N O.22612/2013:
BETWEEN:

ICICI Lumbard Ge neral
Insurance Co ., Ltd.,
Branch Raichur, Garaladinni Co mple x
Ground F loor 12- 11-9
Saktachri ro ad Raichur 01
Represented by I CICI
Lombard General I nsurance C.,Ltd.,
2 n d F loor,Be llad & Company
Gokul road, Hubli 580 030
Represented by its Manager-Le gal
                                        .. APPELLANT
(By S ri R.R. MANE, ADV OCATE)

AND:

1. Smt. Rupali
W/o Anand Desai
Age: 31 ye ars
Occ: Ho useo ld.

2. Harshavardan
S/o Anand Desai
Age: 07 ye ars
Occ: S tude nt
Be ing M ino r rep. by natural
Guardian mo the r Responde nt No.1

3. S mt. Chandrakala Bhaiyyasaheb Desai
Age: 60 ye ars
Occ: Ho useho ld

4. Bhaiyyasaheb Parappa Desai
Age: 68 ye ars, Occ: N il

All are R/o Hanagandi
Tq Jakakhandi
District Bagalkot

5. Pravin N ingusa Katawa
Age: Major
                              13




Occ: Business
R/o near Basaveshwar Circle
Ilakal,Tq Hunagund D ist Bagalko t
(Owne r o f truck N o KA-22/A-5831)

6. Smt Pree ti
W/o Treethankar Desai
Age: 43 ye ars
Occ: Ho useho ld
R/o Hanagandi
Tq: Jamkhandi, D ist Bagalkot
(Owne re o f Maruti Alto Car
Bearing No.KA- 29/ Z-1008)

7. The D ivisional Manage r,
Natio nal Insurance Company Ltd.,
D.O. 4 t h Ramdev Galli, Be lgaum
(Insure r o f Maruti Alto Car
Bearing No KA- 29/ Z 1008)

                                          ... RES POND ENTS

(BY SHRI A .L. SANDRIMANI & SANTHOSH B RAW OOT
ADVOCATES , F OR R 1to R4 & R6)
R2 MINOR REPTD. BY R.1
(BY SHRI MRUTHY UNJAYA TATA BAN GI, ADVOCAT E F OR R5)
(SHRI S.K . KAYAKAMATH, ADVOCAT E FOR 7)

     THIS MISC.FIRST APPEAL IS FI LED UNDER SECTION
173(1)   OF   MOTOR   VEHICLES    A CT,   1988,   AGAINST   THE
JUDGMENT AND A WARD DATED 26.02.2013 PA SSED IN MVC
NO.72/ 2008 ON T HE FILE OF ADD L. SENI OR CIVI L J UDGE
AND MEMBER MACT, NO.VI JAMKHANDI, AWARDING THE
COMPENSATION OF RS.9,16,000/- WITH INTEREST A T THE
RATE OF 6% P.A. FROM THE DAT E OF PETITION TILL THE
DATE OF DEPOSIT .
                               14




     THIS APPEA LS COMING ON FOR ADMISSION THIS DAY,
THE COURT , D ELIV ERED THE F OLLOW ING:


                          JUDGMENT

Though these appeals are listed for admission,

with consent of learned counsel for the parties, they

are taken up for final disposal.

2. These appeals are filed challenging common

judgment and awards dated 26.02.2013 passed by

Additional Senior Civil Judge & MACT - VI, Jamkhandi

(for short 'tribunal') in MVC Nos.69/2008, 70/2008,

71/2008 and MVC No.72/2008.

3. MFA Nos.22190/2013, 22191/2013 and MFA

No.22192/20013 are filed by National Insurance

Company Ltd., - insurer of Maruti Alto Car bearing

No. KA-29/Z- 1008 (hereinafter referred to as 'insurer of

car'). These appeals are filed challenging finding of

tribunal insofar as liability to pay 50% of compensation

on the ground that appellant was arrayed as proforma

party and claimants had not sought any relief against

it.

4. MFA Nos.22609/2013, 22610/2013 22611/2013

and 22612/2013 are filed by ICICI Lombard General

Insurance Co., Ltd., insurer of lorry bearing

registration No .KA-22/A- 5831 (he re inafter refe rred to as

'insurer of lorry') . These appeals are file d challenging

liability of appellant on the ground that contract of

insurance was void as cheque issued towards premium

was dishonoured and there was no consideration.

5. Brief facts as stated are that on 04.10.2007,

four persons viz., Anand Desai, Thirthankar Desai,

Sandesh Desai and Abhijith Desai were traveling in

Maruti Alto car bearing No.KA-29/Z-1008. It was driven

by Anand Desai. Near Jeergal village, lorry bearing

registration no.KA-22/A-5831 was parked on Lokapur-

Mudhol road without any indicator or signal. As car

driver could not notice lorry parked on road, it dashed

against hind-side of lorry. In the accident, all four

inmates of car died. Separate claim petitions were filed

against owner and insurer of vehicles involved in

accident.

6. Claim petitions were opposed mainly on the

ground of negligence. Insurer of car alleged negligence

against driver of lorry, which was wrongfully parked on

road without signal or indicators. Insurer of lorry

contended that lorry was parked on extreme left side

of road and car driver was negligent in not noticing

same. Both insurers denied age, occupation, income of

deceased and dependency of claimants. Claim petitions

were also opposed as being excessive.

7. As claim petitions arose out of same accident,

they were clubbed together, issues were framed and

common evidence was recorded. Claimant no.1 in each

claim petition were examined as PWs 1 to PW4

respectively. Three other witnesses were examined as

PWs 5 to PW7. Exhibits P.1 to P.54 were marked. On

behalf of respondent, RWs 1 to RW3 were examined

and Exhibits R1 to R9 were marked.

8. On consideration, tribunal answered issue no.1

by holding that driver of lorry and car contributed

negligence in equal measure in causing accident.

Tribunal determined age and monthly income of

deceased and answered issue no.2 in affirmative, issue

no.3 in negative and issue nos. 4 and 5 by assessing

compensation and holding insurer of two vehicles

liable to pay compensation to an extent of 50% each.

In MVC No.72/2008, where deceased was driving car,

tribunal held that claimants would not be entitled to

50% of compensation, as 50% contributory negligence

was apportioned against deceased.

9. Claim petitions were disposed of by common

judgment. Assailing same, insurers are in appeal as

stated above.

10. Heard learned counsel for appellant and

respondents. Perused impugned judgment and award

and record.

11. Shri Rajashekhar S Arani, learned counsel for

insurer of car submitted that complaint, FIR and charge

sheet at Ex.P.1, P.2 and Ex.P.6 reveals that case was

registered against lorry driver. Claim petitions were

filed seeking relief only against owner-insurer of lorry

by arraying owner-insurer of car as proforma party. As

such, tribunal was not justified in holding appellant

liable to pay compensation to the extent of 50% due to

apportionment of contributory negligence against

deceased - car driver.

12. It was submitted that as per claimants' case

and also police investigation records, lorry was parked

on tar road, which is a State Highway and driver of

lorry had not switched on indicators or put any signal

to caution other road users. It was further submitted

that in rough sketch of accident spot appended to

Ex.P.3, position of lorry was shown on tar road. As

road was a State Highway, parking of vehicle on

highway would be deemed negligent. Therefore,

apportioning 50% liability against appellant was

unsustainable.

13. On the other hand, Shri R.R. Mane, learned

counsel for insurer of lorry submitted that owner of

lorry had obtained insurance cover note on 18.09.2007

with a condition that policy would be void ab initio in

case cheque issued towards premium were

dishonoured. Likewise, cheque issued towards

insurance premium was dishonoured on 04.10.2007 on

account of insufficient funds. Thereafter appellant-

insurer issued notice for cancellation of cover note,

under 'certificate of posting' and by 'RPAD' on

16.10.2007. But insured did not make good the

premium amount. Therefore, contract of insurance was

without consideration and void. Without noticing same,

tribunal erroneously fastened liability upon insurer

contrary to decision of Hon'ble Supreme Court in the

case of United India Insurance Co., Ltd., Vs.

Lakshmamma and others reported in 2012 ACJ

1307.

14. On the other hand, Shri Santhosh Rawoot,

learned counsel for claimants/respondents submitted

that there was no dispute about issuance of insurance

cover note in respect of lorry in question. It was

submitted that as accident occurred on 04.10.2007,

before steps were taken by insurer for cancellation of

policy, contract of insurance was subsisting on date of

accident. Therefore, insurer cannot escape liability.

15. Shri Mrutyunjaya Tata Bangi, learned counsel

for respondent/owner adopted above submissions.

16. From the above, occurrence of accident due to

rash and negligent driving of lorry and death of four

inmates of car are not in dispute. While passing

impugned award, tribunal determined age, monthly

income and dependency of claimants and after

assessing compensation passed impugned award.

Neither claimants nor owner have challenged the

award. From above submissions, following points arise

for consideration in these appeals:

i) Whether tribunal was justified in holding insurer of car liable to pay compensation to the extent of 50% of award?

ii) Whether liability of insurer of lorry stands discharged due to dishonour of cheque issued towards insurance premium?

17. Re.Point No.1: On perusal of claim petitions,

it is seen that they were filed seeking compensation

towards 'loss of dependency' from owner and insurer of

lorry only. Entire negligence was alleged against driver

of lorry, insurer of car was arrayed as formal party to

avoid technicalities. This stand was maintained even

during oral evidence of claimants. Without there being

any prayer for passing award against owner/insurer of

car, tribunal passed impugned award against appellant

also.

18. It was never the case of claimants that

instant case was one of composite negligence. Even

tribunal did not hold it so. Therefore, finding of

tribunal apportioning 50% liability against insurer of

car is unsustainable.

19. There is considerable force in the submission

of Shri Santhosh Rawoot and Mruthyunjaya Tata Bangi,

learned counsel, who submitted that insurance policy

issued to car was a comprehensive policy and risk of

passengers was fully covered, as additional premium

was paid for four inmates as per IMT 16.

20. Learned counsel Shri Rajashekar S Arani, in

reply submitted that personal accident coverage limit

was Rs.1,00,000/- only and in any case insurer cannot

be directed to pay more than Rs.1,00,000/-.

21. As per law laid down by Hon'ble Supreme

Court in the case of Nataional Insurance Co., Ltd.,

Vs. Ashalata Bhowmik, reported in (2018) 9 SCC

801, insurer would be liable to pay compensation to

the extent of personal accident coverage, for which

premium is paid without relegating claimants to

separate proceedings. Therefore, point for

consideration is answered partly in negative. It is held

that insurer is liable to pay Rs.1,00,000/- to claimants

with interest at 6% per annum towards personal

accident coverage.

22. Re.Point No.2: Insofar as liability of insurer

of lorry is concerned, it is seen insurer has stated in

its objections filed to claim petitions that contract of

insurance was rendered void due to dishonour of

cheque issued towards insurance premium. In order to

establish the same, insurer has not only examined its

official, but has also produced bank intimation slip as

Ex.R.1, notice issued to owner of lorry as Ex.R.2, proof

of dispatch of notice by producing certificate of posting

as Ex.R.3 and postal cover along with RPAD

acknowledgement as Ex.R.4. No contra evidence is led

by claimant or owner of lorry.

23. From the above, it is seen that cheque issued

towards insurance premium was dishonoured on

04.10.2007. Insurer issued letter of intimation of

dishonour of cheque to owner of lorry vide Ex.R.2

dated 16.10.2007 both by RPAD and certificate of

posting. Postal cover sent through RPAD returned with

a shara 'unserved.'

24. In Lakshmamma's case (supra), it was held

that insurer would be liable to pay compensation to

third party claimants with liberty to recover the same

from insured. In said case, insurance cover note was

issued on 14.04.2004. After dishonour of cheque issued

towards insurance premium, notice of cancellation was

given on 21.05.2004, but accident occurred on

11.05.2004. In the above facts, it was held that

insurer would be liable to pay compensation to third

party claimants and would be at liberty to recover the

amount paid to claimants from insured.

25. In the instant case, tribunal directed insurer

to pay compensation to claimants would be justified,

but denial of liberty to recover same from insured

would be unsustainable. Point no.2 is answered in

favour of appellant - insurer to this extent. It is held

that award of tribunal requires modification in this

regard.

26. In the result, I pass following:

ORDER

i. MFA Nos.22190/2013, 22191/2013 and MFA No.22192/2013 are allowed in part. Award passed by tribunal against appellant - insurer of car is set aside. However, appellant - insurer is held liable to pay Rs.1,00,000/- towards personal accident coverage to claimants in each claim petition with interest at 6% per annum.

ii. Amount in deposit is ordered to be transmitted to tribunal for payment.

iii. MFA Nos.22609/2013, 22610/2013, 22611/2013 and MFA No.22612/2013 are allowed in part. Appellant-insurer of lorry is held liable to pay 50% of award amount to claimants with interest at 6% per annum from date of petition till deposit. On payment liberty is reserved to recover compensation paid to claimants from insured.

iv. Insurers are directed to deposit compensation amount before tribunal within six weeks from date of receipt of a copy of this order.

v. Award of tribunal is modified to above extent only.

Sd/-

JUDGE

Psg*