Karnataka High Court
The Manager Oriental Insurance ... vs Peeddaiah S/O Late Chinnaiah on 10 December, 2021
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 10 T H DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
M.F.A.No.25085/2010 (MV)
BETWEEN:
THE MANAGER,
THE ORI ENTAL INS URANCE COM PANY LTD.,
BY IT'S BRANCH OFFICE
AT BALLARI- 583101,
THROUGH ITS REGIONAL MANAGER,
SUMANGALA COMPLEX, 2 N D FLOOR,
LAMINGTON ROAD ,
HUBBALLI-580 020.
... APPELLANT
(BY SRI. R.R.MAN E, ADVOCATE)
AND
1. SRI PEDDAIA H,
S/O LAT E CHINNAIAH,
AGED 45 YEARS ,
OCC: AGRICULT URE.
2. MARAKKA,
W/O P.PEDDAIAH,
AGED 41 YEARS ,
OCC: HOUSEHOLD WORK.
BOTH ARE RESIDENTS OF
MAKANADUKU VILLAGE,
KUDLIGI TA LUK ,
BALLARI DISTRI CT,
NOW R/AT HARAPA NAHALLI IN
2
DAVANAGERE DISTRICT-583 135.
3. SRI V.MANJUNATH,
S/O VENKATA SWA MY,
AGE: 27 YEARS ,
OCC: DRIVER OF MAHENDRA JEEP
NO.KA- 19/ 5023,
RESIDENT OF MAKANADUKU VILLAGE,
KUDLIGI TA LUK ,
BALLARI DISTRI CT-583 135.
4. SRI E.V.THIMMAPPA,
S/O VENKATA SWA MY,
AGE: 35 YEARS ,
OWNER OF THE MA HENDRA JEEP,
NO.KA- 19/ 5023,
RESIDENT OF MAKANADUKU VILLAGE,
KUDLIGI TA LUK ,
BALLARI DISTRI CT-583 135.
... RES PONDENTS
(BY SRI T .HANUMA REDDY, ADV OCATE FOR R1 AND R2;
SRI JAYAVANT SA VAGAON , ADV OCA TE FOR R3 AND R4)
THIS MISC.FIRST APPEAL IS FI LED UNDER SECTION
173(1) OF MOTOR VEHICLES A CT, 1988, AGAINST THE
JUDGMENT AND A WARD DATED 19.04.2010 PA SSED IN MVC
NO.1265/2007 ON THE FILE OF THE MEMBER, M.A .C.T-V,
BALLARI , AWARDING THE COMPENS ATION OF RS.4,96,000/-
WITH INTEREST A T THE RATE OF 6% P.A. FROM THE DATE
OF PETITION TI LL THE REA LIZATION .
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT , DELIVERED THE F OLLOWING:
3
JUDGMENT
Challenging the judgment and award dated
19.04.2010 passed by Member, M.A.C.T-V, Ballari (for
short, 'tribunal') in MVC No.1265/2007, this appeal is
filed.
2. Sri R.R.Mane, learned counsel for appellant-
insurer submitted that on 11.09.2007, Sanna Obaiah
was traveling in Mahindra Jeep bearing registration
no.Ka-19/5023, driver of jeep applied brakes suddenly.
Due to which, Sanna Obaiah was thrown out of jeep
sustained grievous injuries and died during treatment.
Claiming compensation for untimely death, his parents
filed claim petition under Section 166 of Motor Vehicles
Act, 1988 (for short, 'M.V.Act') against driver, owner
and insurer of jeep.
3. On service of notice, respondent No.2-owner
of vehicle filed objections stating that deceased
belonged to family of his neighbours who were
accompanying owners to attend a pooja ceremony at
Gangatte Mayamma Temple. Respondent no.2 also
stated that vehicle was insured with respondent no.3-
insurer and driver was holding valid and effective
driving licence. Respondent no.3 filed objections
denying liability both on the ground of lack of driving
licence and also on the ground that deceased was
traveling as an unauthorized/gratuitous passenger and
that liability of insurer was subject to terms and
conditions of policy. It was also specifically pleaded
that there was no coverage of risk of passengers in
vehicle.
4. Based on pleadings, tribunal framed
following issues:
1. Whether the petitioners prove that, the
accident dated 11.09.2007 was due to
rash and negligent act of driving of
Mahindra Jeep No.KA-19/5023 by the
first respondent and that it resulted in
death of Sanna Obaiah?
2. Whether the petitioners are entitled for
compensation? If so, from whom and to
what extent?
3. What order or award?
5. In order to establish case, claimant no.1
examined as PW1. Exhibits P1 to P7 were marked. On
behalf of respondents, an official of insurer was
examined as RW1. Exhibits R1 and R2 were marked.
6. On consideration, tribunal answered issues
no.1 and 2 in the affirmative and issue no.3 by
awarding compensation of Rs.4,96,000/- holding
respondent-insurer liable to pay interest at 6% per
annum. Challenging the award, insurer is in appeal.
7. Sri R.R.Mane, learned counsel for appellant-
insurer submitted that vehicle in question was issued
with an 'Act liability only policy' and as deceased was
admittedly a passenger of vehicle; the risk of occupant
of private car would not be covered under an Act
liability only policy. Learned counsel further submitted
that deceased even according to version of respondent
no.2-owner was traveling as per instructions of owner
and would submit that deceased would step into shoes
of owner.
8. On the other hand, Sri T.Hanumareddy,
learned counsel respondents-claimants and Sri
Jayavant Savagaon, learned counsel for respondents
no.3 and 4 sought to support judgment and award. Sri
T.Hanumareddy, learned counsel submitted that
deceased was not an unauthorized occupant, but was
travelling as per instructions of owner of vehicle. Sri
Jayavant Savagaon, learned counsel submitted that as
on date of accident, insurance policy was valid and in
force and driver of vehicle was having valid driving
licence and therefore insurer is liable to pay
compensation.
9. From above submission, occurrence of
accident involving insured vehicle and death of Sanna
Obaiah in the said accident due to rash and negligent
driving of insured vehicle is not in dispute. Tribunal
has assessed compensation and passed award. Neither
claimant nor owner has preferred appeal against same.
Therefore, quantum of compensation is also not in
dispute. Insurer is in appeal challenging award only
insofar as liability. Therefore, point that arises for
consideration in this appeal is:
"Whether tribunal was justified in directing
appellant-insurer to pay compensation?"
10. On perusal of Ex.R1-insurance policy marked
by respondent-insurer, it is seen that policy issued is
an 'Act liability only policy'. No additional premium was
paid for covering the risk of occupants. As it is not in
dispute that deceased was an occupant of car, risk of
occupant would not be covered. Though learned
counsel sought to rely upon decision of this Court in
New India Assurance Company Limited V/s
Yallavva and others reported in 2020(2) KCCR 1405
(FB) case, in view of decision of Hon'ble Supreme
Court in National Insurance Company Limited V/s
Balakrishnan and another reported in (2013) 1 SCC
731, liability of insurer would not extend to occupants
in the case of an 'Act liability only policy'. The
resultant position would be that direction issued by
tribunal fastening liability upon insurer would be
contrary to law. Hence, point for consideration is
answered in favour of appellant. In the result, I pass
the following:
ORDER
i. Appeal is allowed.
ii. The liability of appellant-insurer is set
aside.
iii. Amount in deposit is ordered to be
refunded to the appellant.
iv. It is clarified that claimants would be
at liberty to proceed against owner for
award.
Sd/-
JUDGE
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