United India Insurance Co.Ltd vs Sri Srinivasa Raju
2021 Latest Caselaw 1137 Kant

                                               MFA.108/2016
                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 18TH DAY OF JANUARY 2021

                         BEFORE

       THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

             M.F.A.No.108/2016 (MV - I)

BETWEEN:

UNITED INDIA INSURANCE CO. LTD.,
BANGALORE BRANCH OFFICE,

THROUGH ITS REGIONAL OFFICE, NO.18,
KRISHIBHAVAN,
HUDSON CIRCLE,
BANGALORE - 560 001.
REP. BY ITS MANAGER.                       ... APPELLANT

(BY SRI. JANARDHAN REDDY, ADV.)

AND:

1.     SRI. SRINIVASA RAJU,
       S/O SRI LATE KANTHARAJU,
       AGED ABOUT 43 YEARS,
       R/AT NO.18, 2ND MAIN ROAD,
       BEHIND G.K.W.LAYOUT,
       SHAMBAVINAGAR, PEENYA 2ND STAGE,
       BANGALORE - 560 058.

2.     SRI. ARMUGAUM.M.,
       S/O SRI K.MALLAPPA,
       AGED ABOUT 39 YEARS,
       R/AT NGANAYAKANAHALLI VILLAGE,
       GUMMAREDDYPURA POST,
       KOLAR TALUK & DISTRICT - 563 101.
                                           MFA.108/2016
                              2



3.   THE DIVISIONAL MANAGER,
     IFFCO-TOKIO GENERAL INSURANCE CO. LTD.,
     ITGI-STRATEGIC BUSINESS UNIT,
     BANGALORE,
     SRI. SHANTHI TOWERS,
     4TH FLOOR, NO.141, 3RD MAIN,
     EAST OF NGEF LAYOUT,
     KASTURI NAGAR, BANGALORE - 560 043.

4.   M/S JAYANTH ENTERPRISES,
     NO.11, 1ST FLOOR, 1ST CROSS,
     M.S.IYENGAR STREET,
     SHESADRIPURAM,
     BANGALORE - 560 020.           ... RESPONDENTS

(BY SRI. M.RAVINDRANATH, ADVOCATE. FOR R-1,
   SRI. M.G.SURESH, ADVOCATE FOR R-2,
   SRI. E.I.SANMATHI, ADVOCATE FOR R-3)


     THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT    AGAINST     THE     JUDGMENT   AND     AWARD
DATED:12.08.2015 PASSED IN MVC NO,928/2013 ON THE
FILE OF THE 12TH ADDITIONAL SMALL CAUSES JUDGE &
MEMBER, MACT, BENGALURU, AWARDING COMPENSATION
OF RS.4,07,155/- WITH INTEREST AT 8% P.A. FROM THE
DATE OF PETITION TILL REALISATION.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                      JUDGMENT

1. The Insurance Company which had insured the

Concrete pump is in appeal.

MFA.108/2016

2. The claim petition was filed contending that when

the claimant was riding pillion on a motorcycle, a Swaraj

Mazda LGV truck collided with themotorcycle and as a

result of the impact, the concrete pump which was being

towed by the Swaraj Mazda LGV truck ran over the

claimant's left leg resulting in grievous injuries to the

claimant for which compensation was sought for on

various heads.

3. The claim petition was contested by only the

Insurance Company, which had insured the Swaraj

Mazda LGV truck.

4. This appeal is filed by the Insurance Company

which had insured the concrete pump which was being

towed.

5. The Tribunal after recording a finding that an

accident, as stated in the claim petition, had occurred

proceeded to award a compensation in a sum of

Rs.4,07,155/-.

MFA.108/2016

6. The Tribunal thereafter directed that the owner of

the Swaraj Mazda to pay the compensation to an extent

of 20% and the owner of the concrete pump and its

insurer i.e., the fourth respondent to pay the

compensation to the remaining extent of 80%.

7. The insurer of the concrete pump is in appeal

contending that the policy issued by it covering the

Concrete pump was only for a sum of Rs.6,00,000/-

andit was subject to condition that liability in respect of

third party was only to an extent of 10% of the sum

insured. He submitted that as a result of this policy, the

liability of the Insurance Company could not have

exceeded 10% of Rs. 6,00,000/- as stipulated in the

policy.

8. I have considered the submissions of learned

counsel for both parties and perused the materials on

record.

MFA.108/2016

9. The insurer of concrete pump in his statement of

objections, did not even set up the plea that its liability

was limited to an extent of 10% of the sum insured. The

only contention before the Tribunal was that Swaraj

Mazda LGV truck had committed a breach of the policy

conditions and it could not have been made liable for the

accident.

10. The contention sought to be now raised by the

Insurance Company, as regards the extent of liability, is

basically a plea that there was a breach of policy

conditions. If the Insurance Company set up a plea of

breach of a policy condition, the settled position of law is

that the Insurance Company would have to firstly satisfy

the award and thereafter proceed against the owner of

the vehicle for recovery of the sums paid by it.

11. In view of this legal position, in my view, there is

no merit in this appeal and the same is accordingly

dismissed.

MFA.108/2016

12. It is needless to state that it is open for the Insurer

(fourth respondent/appellant) to proceed against the

insured to prove the alleged breach of policy condition

and recover the sums paid by it to satisfy the award.

13. The Amount in deposit shall be transmitted to the

Tribunal for disbursement in terms of the award.

Sd/-

JUDGE

KTY