Sangappa S/O Karbasappa Khobanna vs Ramanna S/O Govindappa Arki And ...
2022 Latest Caselaw 10403 Kant

                             1




          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

         DATED THIS THE 6TH DAY OF JULY 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

                MFA No.33088/2013 (MV)

BETWEEN:

Sangappa S/o Karbasappa Khobanna,
Age: 52 years, Occ: Agriculture & Business,
R/o Kankatta, Tq. Humnabad-585 330.
                                           ... Appellant

(By Sri. Basavaraj R. Math, Advocate)

AND:

1.     Ramanna S/o Govindappa Arki,
       Age: 43 years, Occ: Nil,

2.     Shobhawati W/o Ramanna Arki,
       Aged about 42 years, Occ: Household,

3.     Lokesh S/o Ramanna Arki,
       Aged about 18 years, Occ: Nil/Student,

4.     Jaishree D/o Ramanna Arki,
       Aged about 16 years, Student, Minor.

5.     Govind S/o Ramanna Arki,
       Aged about 12 years, Student,
                               2



      All are R/o Nagankhera,
      Tq. Humnabad-585 330.

6.    The Divisional Manager,
      United India Insurance Co. Ltd.,
      Jawali Complex, Super Market,
      Gulbarga-585 103.
                                              ... Respondents

(Sri. Sanjay M. Joshi, Advocate for R6;
 R1 to R3 are served;
 R4 & R5 are minors Reptd. by R1)

      This MFA is filed under Section 173(1) of the Motor
Vehicles Act, praying to set aside the impugned judgment
and award dated 24.09.2013 passed by the Senior Civil
Judge & MACT, Humnabad in MVC No.235/2011.


      This appeal coming on for final hearing this day, the
Court delivered the following:


                          JUDGMENT

This appeal is filed by respondent No.1- owner under

Section 173(1) of the Motor Vehicles Act, against the

judgment and award dated 24.09.2013 passed in MVC

No.235/2011 by the Senior Civil Judge and MACT,

Humnabad (hereinafter referred to as 'the Tribunal' for

short), challenging the liability fastened on him.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them

before the Tribunal.

3. The brief factual matrix leading to the case are

that, the claimants have filed a claim petition under

Section 166 of the M.V. Act before the Tribunal claiming

compensation of Rs.15,00,000/- on account of death of

one Sangeeta in the road traffic accident that occurred on

31.07.2011 involving the Tata Ace vehicle bearing

No.KA.39/6446 near I.B. Rajola on Basavakalyan-Rajola

road.

4. The Tribunal, after assessing the oral and

documentary evidence has held that the claimants are

entitled for total compensation of Rs.6,68,000/- together

with costs and interest at the rate of 6% p.a. However, the

Tribunal has fastened the liability on respondent No.1-

owner on the ground that there is breach of policy

conditions and the liability of insurance company came to

be exonerated.

5. Being aggrieved by this judgment and award,

respondent No.1-owner has filed this appeal.

6. The learned counsel for the

appellant/respondent No.1 would contend that the policy is

a package policy and only one claim is made arising out

the said accident. Further, the risk of the owner-cum-

driver as well as two employees is also covered under the

insurance policy - Ex.P9. Hence, he would contend that

though more number of persons were travelling in the

offending vehicle, only one claim is made arising out of the

accident and since it is a package policy covering the risk

of the inmate, the insurance company is liable to pay the

compensation. Hence, he would seek for allowing the

appeal by fastening the liability on the insurance company

- respondent No.2 before the Tribunal.

7. Per contra, learned counsel for respondent

No.6-insurer/respondent No.2 would support the judgment

and award passed by the Tribunal.

8. Having heard the arguments and perusing the

records, it is evident that deceased Sangeeta was traveling

in a Tata Ace vehicle bearing No.KA.39/6446, which met

with an accident. She subsequently succumbed because of

the injuries sustained by her. The contention of the

insurance company is that there is a breach of policy

conditions as more number of passengers being carried in

the offending vehicle. However, in this regard, learned

counsel for the appellant invites the attention of the Court

to the insurance policy at Ex.P9, which disclose that apart

from the risk of owner-cum-driver, the risk of two

employees is also covered under the policy. It is also

evident that it is a package policy issued. Admittedly,

there is only one claim arise out of the said accident. In

this context, the learned counsel for the appellant has

placed reliance on a decision of the Hon'ble Apex Court

reported in AIR 2007 SC 2870 (National Insurance Co.

Ltd. Vs. Anjana Shyam and Others), wherein the

Hon'ble Apex Court had an occasion to deal with excess

passengers being travelled in the vehicle and to what

extent the insurance company is liable. The Hon'ble Apex

Court in the said decision has observed as under:

"Motor Insurance-Liability of Insurance Company-Limit and extent of-Offending bus insured for 42 passengers-Overloaded and carried 90 passengers at time of accident-Death of 26 passengers and injuries to other passengers-Whether insurance can be taken to cover more passengers than permitted by certificate of registration and permit as a stage carriage and that it will cover all passengers overloaded-Held; no, because, insurance taken out for number of permitted passengers can alone determine liability of Insurance Company in respect of those passengers-Therefore, Insurance Company was liable to pay compensation to 42 passengers out of 90 passengers. (M.V. Act, 1988, Section 147]."

9. Admittedly, in the instant case, the policy was

a package policy covering the risk of two

passengers/workmen. Admittedly, only one claim is made

arising out of this accident. Under such circumstances, in

view of the law laid down by the Hon'ble Apex Court in

Anjana Shyam's case (Supra), the Tribunal is not justified

in fastening the liability on respondent No.1-owner and the

insurance company having issued the package policy, is

responsible to pay the compensation. The claimants have

not challenged the quantum. Under these circumstances,

the appeal needs to be allowed. Accordingly, I proceed to

pass the following:

ORDER

i. The appeal is allowed.

ii. The judgment and award dated 24.09.2013

passed by the Tribunal in MVC No.235/2011 is

modified by fastening the liability on

respondent No.2-insurance company before

the Tribunal and the insurance company is

directed to pay the entire awarded amount

with interest accrued thereon to the claimants

within six weeks from the date of this

judgment.

iii. The statutory amount deposited by the

appellant-owner shall be refunded to him.

Sd/-

JUDGE

LG