Karnataka High Court
The Oriental Insurance Co. Ltd vs Sri. Ganesh Devadiga on 2 February, 2022
Bench: P.Krishna Bhat
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE P. KRISHNA BHAT
MFA NO.9577/2010(MV)
BETWEEN:
THE ORIENTAL INSURANCE CO. LTD
DIVISIONAL OFFICE,
VISHNU PRAKASH BUILDING,
COURT ROAD, UDUPI-576101
DULY REPRESENTED BY:
THE REGIONAL MANAGER
THE ORIENTAL INSURANCE CO. LTD
REGIONAL OFFICE,
LEO SHOPPING COMPLEX,
44/45, RESIDENCY ROAD,
BANGALORE-560025
BY ITS MANAGER
... APPELLANT
(BY SRI. A RAVISHANKAR, ADVOCATE)
AND:
1. SRI. GANESH DEVADIGA
AGED ABOUT 40 YEARS
S/O SRI. SHESHAPPA DEVADIGA
R/O SKANDA DARSHAN,
HOIGEGUDDE ROAD,
PADUEAMAMBUR,
MANGALORE TALUK-575001
2. SRI ABDUL KHADAR
AGED ABOUT 54 YEARS
2
S/O SRI. SOOFI BEARY
R/O DEEPAK COMPOUND
PANGALA
UDUPI TALUK-576 101
3. SRI. ASHOK
AGED ABOUT 45 YEARS
S/O LATE SUNDARA POOJARI
R/O NO.76, BADAGABETTU
BAINDOOR
UDUPI TALUK-576 101
... RESPONDENTS
(BY SRI. V.S. HEGDE, ADVOCATE FOR R3;
V/O DATED 23.01.2015 NOTICE TO R2 H/S
R1 SERVED AND UNREPRESENTED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED
26.6.2010 PASSED IN MVC NO.1423/2004 ON THE FILE OF II
ADDITIONAL DISTRICT JUDGE & MEMBER, MACT-III,
DAKSHINA KANNADA, MANGALORE, AWARDING A
COMPENSATION OF RS.71,960/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL REALISATION.
THIS MFA COMING ON FOR HEARING THIS DAY,
THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is at the instance of insurance company
calling in question the correctness of the judgment and award
dated 26.07.2010 passed in MVC No.1423/2004 by the II
Addl. District Judge & Member, MACT-III, Dakshina Kannada,
Mangalore, to the extent of fastening the liability to pay the
compensation on it.
2. A claim petition seeking compensation was filed
on the allegation that on 31.07.2004 at about 8.45 p.m. when
claimant was proceeding in Bajaj Chetak Scooter No.CTA
8277 as a pillion rider and the scooter reached near Petrol
pump at Padupanambur Village, on account of rash and
negligent riding of the scooter by its rider, scooter fell on the
road and claimant suffered fracture of his left leg.
3. Before the learned Claims Tribunal owner of the
offending scooter remained absent and he was placed
exparte. The appellant-insurance company contested the
proceedings by filing detailed written statement denying the
material averments made in the claim petition.
4. Subsequently, one Ashok, S/o. Late Sundara
Poojary was brought in as respondent No.3 and even though
he entered appearance through a learned counsel, did not
choose to file any written statement.
5. During the trial claimant examined himself as PW1
and Exs.P-1 to P-9 were marked. Respondents did not
examine any witness and policy of insurance was marked as
Ex.R-1.
6. Learned counsel for the appellant-insurance
company candidly submits that he does not dispute
occurrence of accident and injuries suffered by the claimant
as a pillion rider and his only grievance is that even though
offending scooter was covered with an Act policy and no
additional premium was paid to cover the risk of pillion rider,
learned Tribunal merely on account of the fact that there was
policy coverage for the scooter, has proceeded to fasten the
liability on the insurance company. Therefore, he submits
that in view of the series of decisions of Hon'ble Supreme
Court, more importantly the one in ORIENTAL INSURANCE
CO. LTD. vs. SUDHAKARAN K. V. reported in 2008 ACJ
2045 (SC) and NATIONAL INSURANCE CO. LTD vs
BALAKRISHNAN & ANOTHER reported in (2013) 1 SCC
731, the direction in the award to the extent of fastening
liability on the insurance company is required to be set aside
and the appeal is entitled to be allowed to the said extent.
7. Learned counsel appearing for respondent No.3
has remained absent.
8. I have given anxious consideration to the
submissions made by the learned counsel for the appellant
and I have carefully perused the records.
9. Ex.R-1 is the policy of insurance issued by the
appellant-insurance company in respect of the offending
scooter bearing registration No.CTA 8277. Case of the
claimant is that on 31.07.2004 while he was a pillion rider of
the scooter, on account of rash and negligent riding of the
scooter he fell on the road and suffered certain injuries.
10. Perusal of Ex.R-1 shows that no additional
premium was paid by the owner of the scooter to cover the
risk of pillion rider. Hon'ble Supreme Court in the case of
ORIENTAL INSURANCE CO. LTD. vs. SUDHAKARAN K. V.
reported in 2008 ACJ 2045 (SC), has observed as follows:
"19. The law which emerges from
the said decisions is: (i) the liability of the
insurance company in a case this nature is
not extended to a pillion rider of the motor
vehicle unless the requisite amount of
premium is paid for covering his/her risk;
(ii) the legal obligation arises under section
147 of the Act cannot be extended to an
injury or death of the owner of vehicle or
the pillion rider; and (iii) the pillion rider on
a two-wheeler was not to be treated as a
third party when the accident has taken
place owing to rash and negligent riding of
the scooter and not on the part of the driver
of another vehicle."
11. Similarly Hon'ble Supreme Court in the case of
NATIONAL INSURANCE CO. LTD vs BALAKRISHNAN &
ANOTHER reported in (2013) 1 SCC 731 has observed as
follows:
"26. In view of the aforesaid factual
position, there is no scintilla of doubt that a
"comprehensive/package policy" would
cover the liability of the insurer for payment
of compensation for the occupant in a car.
There is no cavil that an "Act Policy" stands
on a different footing from a
"Comprehensive/Package Policy". As the
circulars have made the position very clear
and the IRDA, which is presently the
statutory authority, has commanded the
insurance companies stating that a
"Comprehensive/Package Policy" covers the
liability, there cannot be any dispute in that
regard. We may hasten to clarify that the
earlier pronouncements were rendered in
respect of the "Act Policy" which admittedly
cannot cover a third party risk of an
occupant in a car. But, if the policy is a
"Comprehensive/Package Policy", the
liability would be covered. These aspects
were not noticed in the case of
Bhagyalakshmi (supra) and, therefore, the
matter was referred to a larger Bench. We
are disposed to think that there is no
necessity to refer the present matter to a
larger Bench as the IRDA, which is presently
the statutory authority, has clarified the
position by issuing circulars which have
been reproduced in the judgment by the
Delhi High Court and we have also
reproduced the same."
12. Above decisions of Hon'ble Supreme Court are
explicit to the effect that unless additional premium is paid
covering the risk of a pillion rider/occupant of a car an Act
policy issued will not make the insurance company liable to
pay the compensation awarded for the personal injury or
death of a pillion rider/occupant of a car arising out of
accident involving the insured two wheeler/car.
13. Learned Member of the MACT without taking note
of the above position of law has merely observed that
respondent No.2 has admitted that offending scooter was
insured with it at the time of accident as per Ex.R-1 and
proceeded to fasten liability on the insurance company
overlooking the fact that there was no additional premium
paid to cover the risk of a pillion rider. In that view of the
matter, appellant-insurance company should not have been
held liable to reimburse the compensation. Accordingly,
impugned award to the extent it directs the appellant-
insurance company to pay the compensation is concerned, is
liable to be set aside. Hence, the following:
JUDGMENT
(1) Appeal is allowed.
(2) Direction in the impugned judgment and
award dated 26.07.2010 passed in MVC
No.1423/2004 by the II Addl. District
Judge & Member, MACT-III, Dakshina
Kannada, Mangalore, to the extent of
fastening liability on appellant-insurance
company to pay the compensation is
concerned, is set aside.
(3) Amount in deposit, if any, shall be
refunded to the appellant-insurance
company and records shall be
transmitted to the learned MACT
forthwith.
Sd/-
JUDGE
DR
