Karnataka High Court
The New India Assurance Company ... vs Smt S Shashikala on 14 February, 2022
Bench: P.Krishna Bhat
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE P. KRISHNA BHAT
MISCELLANEOUS FIRST APPEAL NO.8842 OF 2010 (MV)
BETWEEN:
THE NEW INDIA ASSURANCE COMPANY LTD.
DO NO.1, LAKSHMI COMPLEX,
NO.40, OPP. VANI VILAS HOSPITAL,
K. R. ROAD, BENGALURU,
BY ITS REGIONAL OFFICE,
NO.2B, UNITY BUILDING ANNEXE,
P. KALINGA RAO ROAD,
(MISSION ROAD),
BENGALURU-560 027,
REPRESENTED BY ITS MANAGER.
... APPELLANT
(BY SRI P.B. RAJU, ADV.)
AND:
1. SMT. S. SHASHIKALA
W/O. LATE P. M. BASAVARAJU,
AGED ABOUT 32 YEARS.
2. MASTER B. GOUTHAM
MINOR,
S/O, LATE P. M. BASAVARAJU,
AGED ABOUT 10 YEARS.
3. KUM. NEHA
MINOR,
D/O. LATE P. M. BASAVARAJU,
AGED ABOUT 8 YEARS.
2
4. SHRI P. MADHA @ MADHAIAH
S/O. LATE SUBBAIAH,
AGED ABOUT 75 YEARS.
5. SMT. MALLAMMA
W/O. SHRI P. MADHA @ MADHAIAH,
AGED ABOUT 63 YEARS.
THEY ARE RESIDENTS OF
SINGANALLURU VILLAGE & P.O.,
KOLLEGALA TALUK,
CHAMARAJANAGAR DISTRICT,
RESIDING NOW AT NO.100,
SARASWATHI BLOCK, VISWAKARMA COLONY,
K.S.R.P. QUARTERS, GAYATRIPURAM,
MYSORE-19.
SINCE RESPONDENT NOS.2 AND 3 ARE MINORS,
THEY ARE REPRESENTED BY THEIR MOTHER,
SMT. S. SHASHIKALA,
RESPONDENT NO.1.
6. SHRI PRAKASHKUMAR
S/O. ANNAIAHSWAMY,
H-2, P & T COLONY,
UDAYAGIRI, MYSORE DISTRICT-12.
... RESPONDENTS
(BY SRI S. RAJU, ADV., FOR R-1 TO R-5,
R-6: SERVED)
***
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE
JUDGMENT AND AWARD DATED 21-7-2010 PASSED IN M.V.C.
NO.553 OF 2008 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
(SR. DN.), MEMBER & MACT, RAMANAGARA, AWARDING A
COMPENSATION OF RS.14,57,500/- WITH INTEREST @ 6% PER
ANNUM FROM THE DATE OF PETITION TILL DEPOSIT.
THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
3
JUDGMENT
This appeal is at the instance of the Insurance
Company calling in question the legality and correctness
of the judgment and award dated 21-7-2010 in M.V.C.
No.553 of 2008 passed by the Principal Civil Judge (Senior
Division) and Member, Motor Accident Claims Tribunal,
Ramanagara.
2. Claim petition is filed on the allegation that one
P.M. Basavaraju (hereinafter referred to as 'deceased') was
a passenger in Tata Sumo bearing Registration
No.KA-35 M-727 and on 19-9-2008 at about 3:45 a.m., it
met with an accident on account of rash and negligent
driving of its driver resulting in the death of the deceased.
3. Before the Tribunal, the owner of the offending
vehicle entered appearance and filed detailed written
statement. In substance, he admitted the averments
made in the claim petition, except rash and negligent
driving of the Tata Sumo vehicle by its Driver. Insurance
Company contested the proceedings by filing the written
statement and pleaded that, though the offending vehicle
was covered by a valid policy issued by the appellant, it
was an 'Act Policy'.
4. During trial, claimant No.1 examined herself as
P.W.1 and Exs.P.1 to P.7 were marked. Insurance
Company examined its official as R.W.1 and insurance
policy was marked as Ex.R.1.
5. After hearing the learned counsel on both sides
and perusing the records, the Tribunal allowed the claim
petition in part and awarded compensation of
Rs.14,57,500/- with interest thereon at 6% per annum.
The Tribunal directed in the award that the owner and
insurer are jointly and severally liable to pay the
compensation.
6. Learned counsel for the appellant-Insurance
Company contended that the appellant is aggrieved only
by the directions in the award to an extent that the
appellant is made liable to pay the compensation. In
support of his contention, he submitted that the appellant
had issued policy coverage to the offending vehicle, but it
was an Act Policy and therefore, there was no coverage to
passengers in the offending vehicle which was Tata Sumo
vehicle. He submitted that the deceased, in this case,
was a passenger and therefore, there was no policy
covering the risk for the death or bodily injured suffered
by the claimant. In that view of the matter, direction in
the award to the extent challenged herein is illegal and
therefore, appeal is entitled to be allowed.
7. Learned counsel for the respondents-claimants
contended that the judgment and award is just and
reasonable and it is in accordance with law and therefore,
there is no merit in the appeal and the same is liable to be
dismissed.
8. It is the case of the claimants that the deceased
was a passenger in Tata Sumo bearing Registration
No.KA-35 M-727 and on 19-9-2008 at about 3:45 a.m., on
account of rash and negligent driving by its Driver, it
capsized and due to the impact, the deceased succumbed
to the injuries. Ex.R.1 is the insurance policy issued by
the appellant. There is no dispute about the fact that it is
an 'Act Policy'. Consequence of an Act Policy is that, it
covers the risk of third parties and in order to cover the
risk of passengers, additional premium has to be paid. In
this case, no such premium has been paid. In that view of
the matter, the deceased admittedly being a passenger,
Insurance Company is not liable to pay the compensation
in view of the decision of the Hon'ble Supreme Court in
ORIENTAL INSURANCE COMPANY LIMITED v.
SURENDRA NATH LOOMBA AND OTHERS1 and in
1 AIR 2013 SC 483
ORIENTAL INSURANCE COMPANY LIMITED v.
SUDHAKARAN K.V. AND OTHERS2.
9. In that view of the matter, the direction in the
award to the extent that the appellant-Insurance
Company is liable to pay the compensation to the
claimants is illegal and liable to be set aside. Hence, I
pass the following:
ORDER
i. Appeal is allowed;
ii. Direction in the judgment and award dated
21-7-2010 in M.V.C.No.553 of 2008
passed by the Principal Civil Judge (Senior
Division) and Member, Motor Accident
Claims Tribunal, Ramanagara, is set aside
and the appellant-Insurance Company is
absolved from the liability to pay
compensation.
2 (2008) 7 SCC 428
iii. Amount in deposit shall be refunded to the
*Appellant, and
iv. Transmit the records to the Tribunal,
forthwith.
Sd/-
JUDGE
kvk
* Corrected vide Court order dated 09.03.2022
