The Oriental Insurance Co. Ltd. vs Shobha D/O Rangaswamy
2021 Latest Caselaw 2088 Kant

                               1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 2ND DAY OF JUNE, 2021

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                 M.F.A.NO.5332/2013 (MV)
                           C/W.
                 M.F.A.NO.5331/2013 (MV)

IN M.F.A.NO.5332/2013 (MV):

BETWEEN:

THE ORIENTAL INSURANCE CO. LTD.,
BRANCH OFFICE:
JAYADEVA HOSTEL BUILDING
B H ROAD TIPTUR
THROUGH ITS BENGALURU REGIONAL OFFICE
NO.44/45, RESIDENCY ROAD
BENGALURU-25
REPRESENTED BY ITS DEPUTY MANAGER
                                           ... APPELLANT

          (BY SRI S.V.HEGDE MULKHAND, ADVOCATE)
AND:

1.     SHOBHA
       D/O RANGASWAMY
       AGED ABOUT 32 YEARS
       R/O AVALAGERE VILLAGE
       C N HALLI TALUK
       NOW RESIDING AT
       MADHUGIRI ROAD
       SIRA GATE, TUMAKURU

2.     BALARAMAIAH S/O GUDDPPA
       AGED ABOUT 38 YEARS
       R/O BULLENAHALLI VILLAGE
                                2



       C N HALLI TALUK
       TUMAKURU DISTRICT.
                                         ... RESPONDENTS

        (NOTICE TO R1 IS DISPENSED WITH VIDE ORDER
              DATED 02.06.2021; R2-IS SERVED)

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 09.01.2013
PASSED IN MVC.NO.281/2010 ON THE FILE OF THE PRINCIPAL
DISTRICT   AND    SESSIONS   JUDGE,   MACT,  TUMAKURU,
AWARDING A COMPENSATION OF RS.32,000/- WITH INTEREST
@ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.

IN M.F.A.NO.5331/2013 (MV):

BETWEEN:

THE ORIENTAL INSURANCE CO. LTD.,
BRANCH OFFICE:
JAYADEVA HOSTEL BUILDING
B H ROAD TIPTUR
THROUGH ITS BENGALURU REGIONAL OFFICE
NO.44/45, RESIDENCY ROAD
BENGALURU-25
REPRESENTED BY ITS DEPUTY MANAGER
                                          ... APPELLANT

          (BY SRI S.V.HEGDE MULKHAND, ADVOCATE)
AND:

1.     GANGAMMA
       W/O NINGAIAH
       AGED ABOUT 47 YEARS
       R/O AVALAGERE VILLAGE
       C N HALLI TALUK
       NOW R/A BOVIPALYA
       ANTHARASANAHALLI
       TUMAKURU-572 101
                                       3



2.   BALARAMAIAH
     S/O GUDDAPPA
     AGED ABOUT 38 YEARS
     R/O BULLENAHALLI VILLAGE
     C N HALLI TALUK
     TUMAKURU DISTRICT-572 101.
                                                   ... RESPONDENTS

                    (R1 AND R2 ARE SERVED)

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 09.01.2013
PASSED IN MVC.NO.280/2010 ON THE FILE OF THE PRINCIPAL
DISTRICT   AND    SESSIONS   JUDGE,  MACT,   TUMAKURU,
AWARDING A COMPENSATION OF RS.63,000/- WITH INTEREST
@ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF
DEPOSIT.

     THESE MFAs' COMING ON FOR ORDERS THROUGH 'VIDEO
CONFERENCE' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                           JUDGMENT

Though the appeals are listed for orders today, with the

consent of learned counsel appearing for the appellant/Insurance

Company, the same are taken up for final disposal.

2. These two appeals are filed by the Insurance

Company challenging the Judgment and Award dated

09.01.2013 passed in M.V.C.No.281/2010 and

M.V.C.No.280/2010, respectively, on the file of Principal District

and Sessions Judge & JMFC., at Tumakuru ('the Tribunal' for

short), questioning the liability fixed on the Insurance Company.

3. The factual matrix of the case is that the claimants

before the Tribunal contended that the accident was taken place

on 24.12.2004 at about 8:00 a.m, between Ankanabavi-

M.H.Kaval Gate on Huliyar-C.N.Halli road, Kandikere Hobli,

C.N.Halli Taluk, occurred due to the rash and negligent driving of

the Tractor/Trailer bearing registration No.KA-44-T-165/166 by

its driver, while the claimants were traveling in the said vehicle.

They have sustained the injuries in the said motor accident.

4. The said claim petitions were opposed by filing the

detailed objections by the Insurance Company contending that

the claimants were the employees of one Cheluvaraja and the

policy was issued in respect of one Balaramaiah.

5. The Tribunal after considering the material available

on record came to a conclusion that the policy was not placed

before the Tribunal and hence, the Insurance Company is liable

to pay the compensation. Hence, the present appeals are filed

before this Court.

6. The main contention of the learned counsel for the

appellant is that the appellant/Insurance Company has filed an

application-IA No.2/2013 filed under Order 41 Rule 27 read with

Section 151 of CPC for production of additional documents i.e.,

copy of the Insurance Policy covering the risk of the tractor-

trailer bearing No.KA-44-T-165/166 for the period from

29.10.2004 to 28.10.2005 in both the appeals and praying this

Court to permit the appellant to produce the copy of the

Insurance policy and the same could not be placed before the

Tribunal.

7. This Court has issued notices against the

respondents and the respondents are served and they have not

chosen to appear or engage any counsel on their behalf.

8. Learned counsel for the appellant/Insurance

Company in his arguments vehemently contended that the policy

which was issued is standing in the name of one Balaramaiah

and does not cover the risk of the persons, who traveling in the

said tractor-trailer and the Company is not liable to pay any

compensation. The Tribunal contrary to the evidence on record

erred in fastening the liability to pay the compensation, which is

contrary to the principles laid down in the judgment of the Apex

Court. The records and evidence show that admittedly the

claimants were working in a mines belonging to one Shri.

Cheluvaraja and were proceeding on the said tractor/trailer at

the time of the accident to attend the mines work of Shri.

Cheluvaraja. The evidence on record clearly shows that the

claiamants were not the employees of the insured-respondent

No.2 (Balaramaiah). Hence, it requires an interference of this

Court.

9. Having heard the arguments of learned counsel for

the appellant/Insurance Company and on perusal of the grounds

urged in both the appeals and the materials available on record,

the points that would arise for consideration of this Court are:

(1) Whether the appellant/Insurance Company has made out a case in an application-IA No.2/2013 filed under Order 41 Rule 27 read with Section 151 of CPC?

(2) Whether the Tribunal has committed an error in fastening the liability on the Insurance Company and whether it requires an interference of this Court?

(3) What order?

Point No.(i):

10. The appellant in the application-IA No.2/2013 filed

under Order 41 Rule 27 read with Section 151 of CPC praying

this Court to permit the appellant to produce the copy of the

policy covering the risk of the Tractor/Trailer bearing registration

No.KA-44-T-165/166 for the period from 29.10.2004 to

28.10.2005. The reason assigned in the affidavits that the

Company is not liable to pay the compensation as the policy

does not cover the risk of the persons travelled in the

tractor/trailer and the same could not be placed before the

Tribunal. The Company is not statutorily liable to pay the

compensation and hence, the Company may be permitted to

produce the same. Hence, the matter requires re-consideration.

11. In spite of service of notice against respondent Nos.1

and 2, they have not appeared and opposed the application and

the appeals. The fact that the Insurance Company has not

produced the policy before the Tribunal, is not in dispute. In

order to consider the grievance of the appellant and when the

application is not opposed, it is appropriate to allow the

application filed under Order 41 Rule 27 read with Section 151 of

CPC. Hence, I answer point No.(i) as 'affirmative'.

Point Nos.(ii) & (iii):

12. Now, the question before this Court is with regard to

even in the absence of non-production of the policy, whether the

Tribunal has committed an error in fastening the liability on the

Insurance Company. The fact that the policy was issued in

respect of the tractor/trailer is not in dispute. The witnesses,

P.W.1 in both the claim petitions, who have been examined

before the Tribunal depose that in order to attend the coolie,

work in the mines belonging to one Shri. Cheluvaraja near

C.N.Halli, they were proceeding in the Tractor/Trailer, which was

driven in a rash and negligent manner, dashed against a

Tamarind Tree standing on the road side due to which, claimants

and others have sustained injuries.

13. The main contention of the learned counsel for the

appellant/Insurance Company is that the claimants were

traveling as Coolies of one Shri. Cheluvaraja and not the coolies

of Shri. Balaramaiah. No doubt, the policy, which is produced

before the Court stands in the name of Balaramaiah and the said

Balaramaiah, is the owner of the tractor/trailer and when the

policy covers the risk of the Coolie and when they were traveling

as a Coolie in the particular tractor, the very contention that

they were the employees of Shri. Cheluvaraja, the Insurance

Company is not liable to pay the compensation, cannot be

accepted.

14. The policy is not in dispute and the fact that the

claimants were also travelled as Coolie is also not in dispute and

when the contract of Indemnity is in existence, I do not find any

error in fastening the liability on the Insurance Company by the

Tribunal. No doubt, the Tribunal fastened the liability on the

ground that the policy is also not produced before the Tribunal.

Even if the policy, which is produced before this Court is also

taken on record, it will not twist the reasoning given by the

Tribunal. I have already pointed out that the claimants are

Coolies, who travelled in the tractor to attend the coolie work

and the policy covers the risk of the coolies, who travelled in the

tractor as coolies. I do not find any force in the contention of

the learned counsel for the appellant.

15. In view of allowing the applications-IA No.2/2013

filed under Order 41 Rule 27 read with Section 151 of CPC, even

if the appeals are remanded, the liability cannot be exonerated

in respect of the Company and no need to remand the matters.

Hence, I do not find any merit in the appeals to set-aside the

Judgments and awards and also to re-consider the fastening of

the liability on the Insurance Company.

16. In view of the discussions made above, I pass the

following:

ORDER

(i) Both the appeals are dismissed.

      (ii)     The amount in deposit, if any, shall be
               transmitted   to    the   concerned   Tribunal,
               forthwith.

In view of allowing the main appeals, I.As, if any, do not

survive for consideration and the same stand disposed of.

Sd/-

JUDGE

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