Karnataka High Court

Chandrakanth Mallappa Hosamani vs The Divisional Manager on 7 July, 2021

Author: Krishna S. Yerur

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

          DATED THIS THE 7th DAY OF JULY 2021

                           PRESENT

      THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

                             AND

  THE HON'BLE MR.JUSTICE PRADEEP SINGH YERUR

                 M.F.A. NO.24387/2012 (MV)
              C/w M.F.A. Crob No.706/2013 (MV)

In MFA No.24387/2012

Between

The Branch Manager,
Future General Insurance Company
 Limited, Chetana Cross, Gadag,
Represented by its Divisional Office,
Deshpande Nagar,
By its Authorised Signatory, Hubli.              ...Appellant

(By Sri. S.K.Kayakamath, Advocate)

And

1. Chandrakant, S/o Mallappa Hosamani,
   Age: 52 years, Occ: NEKRTC Employee,
   R/o Vivekanand Nagar Road,
   Gadag-581117.

2. Shweta,
   D/o Chandrakant Hosamani,
                                2




  Age: 27 years, Occ: Computer Operator,
  R/o Vivekanand Nagar Road,
  Gadag-581117.

3. Sanketh,
   S/o Chandrakant Hosamani,
   Age: 22 years, Occ: Student,
   R/o Vivekanand Nagar Road,
   Gadag-581117.                             ...Respondents

(By Smt. Shashikala L.Desai, Advocate)

      This MFA is filed under Section 173(1) of the Motor
Vehicles Act, 1988, against the judgment and award dated 02-
08-2012 passed in MVC No.335/2010 on the file fo the District
Judge and Member, MACT, Gadag, awarding the compensation
of Rs.8,52,701/- with interest at the rate of 6% P.A. from the
date of petition till the date of realization.

In MFA Crob No.706/2013

Between

1. Shri Chandrakanth Mallapa
    Hosamani, Age: 53 years,
   Occ: NEKRTC Employee,

2. Shri. Shweta,
   D/o Chandrakanth Hosamani,
   Age: 28 years,
   Occ: Computer Operator,

3. Sanketh,
   S/o Chandrakanth Hosamani,
   Age: 26 years, Occ: Student,

  All are R/o Vivekananda Nagar Road,
  Gadag.                                     ...Cross Objectors

(By Smt. Shashikala L.Desai, Advocate)
                                 3




A n d:

1. The Divisional Manager,
   Future General Insurance Co. Ltd.,
   Deshpande Nagar, Hubli.

2. The Branch Manager,
   Future General Insurance Co. Ltd.,
   Chetana Cross, Gadag.                           ...Respondents

      This MFA Crob. in MFA No.24387/2012 is filed under
Order 41 Rule 22 of CPC against the judgment and award
dated 02.08.2012 passed in MVC No.335/2010 on the file of
the District Judge and Member, MACT, Gadag, partly allowing
the claim petition for compensation and seeking enhancement
of compensation.

     This MFA and MFA Cross objections coming on for Final
Hearing this day, Krishna S.Dixit, J, delivered the following:


                           JUDGMENT

The Appeal in M.F.A. No.24387/2012 by the insurer and

the Cross-Appeal in M.F.A. Crob No.706/2013 by the claimants

seek to call in question the same Judgment & Award dated 2nd

August 2012, whereby the claimants' M.V.C. No.335/2010

having been favoured a compensation of Rs.8,52,701/- with

interest at the rate of 6% per annum has been awarded with a

usual condition of 50% of the award amount being parked in an

interest earning Bank Deposit for a period of three years.

2. The insurer's appeal is founded on the ground of

limited liability in terms of the Contract of Insurance, whereas

the claimant's appeal is founded on the inadequacy of

compensation.

3. Brief facts:

a) In a vehicular accident that happened on

28.4.2010 at 4.00 a.m. near Aralihalli village in Shorapur

Taluk, wife of the first claimant who happened to be mother of

other claimants having sustained fatal injuries, breathed her

last. This accident happened because of rash & negligent

driving of the offending Car bearing Registration No.KA-26/M-

3483. The subject claim petition was resisted by the insurer by

filing the Written Statement.

b) To prove the claim, son of the deceased Mr.Sanket

Hosmani was examined as PW.1 and the daughter Miss.Swetha

was examined as PW.2 inasmuch as the daughter was also a

claimant in the companion MVC No.336/2010. In their

deposition 121 documents came to be marked in the common

trial. They inter alia comprised of police papers, medical

papers, birth certificate, etc; from the side of insurer, one

Mr.Akbar Nadaf it's official was examined as RW.1 and three

documents came to be marked in his deposition, namely

Authorization Letter, Insurance Policy & Complaint.

c) The MACT after adverting to the pleadings of the

parties and after weighing the evidentiary material on record

has entered the Judgment & Award in question that are put in

challenge by both the sides each controverting the version of

other.

4. Having heard the learned counsel for the parties

and having perused the original Trial Court Records, we are

inclined to grant a limited relief to the insurer and decline

indulgence in the Cross Appeal of the claimants, as under and

for the following reasons:

a) Learned panel counsel for the insurer vehemently

contends that the liability of the insurer is limited by the

contractual terms engrafted in the Insurance Policy and

therefore in any event the subrogated liability cannot exceed

what is fixed in terms of insurance. He draws our attention to

Ex.R.2 the original Insurance Policy cum Certificate, which

mentions Rs.2,00,000/- for which Rs.100/- was paid as

additional premium to cover insured i.e., owner cum driver;

for the purpose of clarity the same is reproduced.

                      "Add:   Compulsory   PA   to    Owner-
               Driver - Rs.2 lacs.                100.00"



     b)        Per contra, it is contended by the claimant side

that once additional premium is paid for personal coverage,

the liability is unlimited. We have considered these rival

contentions in the light of the law declared by the Co-ordinate

Bench of this Court in Dr.S.Jayaram Shetty vs. The

National Insurance Company Limited, ILR 2002 KAR

3117, wherein paragraph No.13 reads as under:

13. The issue can be viewed from another angle also. Section 147 enjoins that the policy issued by the authorised insurer should insure the person specified in the policy against any liability which may be incurred by him in respect of death of or bodily injury to any person specified in Sub-section (1)(b)(i) and (ii). The critical expression "against any liability, which may be incurred by him" in Section 147(1)(b)(i) leaves no manner of doubt that the policy of insurance, which the owner obtains from the

authorised insurer is meant to insure the owner or the holder of the policy against any liability that he may incur qua third parties whether such liability be on account of death or bodily injury to any such person or damage to any property owned by him. In terms of Sub-section (1)(b)(ii), the policy must also insure the owner against the death of or bodily injury caused by or arising out of the use of the vehicle if it is a public service vehicle used in a public place. In other words, if no liability arises against the holder of the policy, the same cannot arise against the Insurance Company. That position of law is fairly well-settled by the decision of the Supreme Court in Oriental Insurance Company Limited v. Sunita Rathi and Ors., AIR 1997 SC 4228. The High Court had in that case while exempting the owner of the vehicle made the insurer liable to pay the compensation. The Court declared that approach to be erroneous and held that liability of the insurer arises only when the liability of the insured has been made out for purposes of indemnifying the insurer under the contract of insurance.

Therefore we are in agreement with the contention of the

learned Sr.Panel Counsel for the insurer.

c) The contention of learned counsel for claimants

that there should have been a higher award for compensation

does not merit consideration in the light of their intention to

enforce the liability against the deceased who is none other

than the wife of the first claimant & mother of other claimants.

Any award being made in that connection would be against the

estate of the deceased to which otherwise also the claimants

succeed in accordance with the personal law applicable to

them.

In the above circumstances insurer's appeal succeeds in