Karnataka High Court
Kirti W/O Sanjay Sankeshwar vs Yaqub M Mahat on 26 July, 2022
Bench: H.P.Sandesh
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MFA No. 25756 of 2012
C/W MFA No. 25757 of 2012
MFA No. 25758 of 2012
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 26TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 25756 OF 2012 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 25757 OF 2012
MISCELLANEOUS FIRST APPEAL NO. 25758 OF 2012
IN M.F.A.No.25756/2012
BETWEEN:
1. KIRTI W/O SANJAY SANKESHWAR,
AGE: 35 YEARS, OCC: HOUSE HOLD and DOMESTIC
BUSINESS,R/O: BATAKURKI,TQ: RAMDURG,DIST:
BELGAUM-590 001.
...APPELLANT
(BY SRI. SHIVARAJ S.BALLOLLI AND
SHRI RAMESH I. ZIRALI, ADVOCATES)
AND:
1. YAQUB M MAHAT,
AGE: MAJOR, OCC: OWNER OF TATA SUMO,
R/O: KURUNDWAD, TQ: SHIROL,
DIST: KOLHAPUR. MAHARASHTRA.
(OWNER OF TATA SUMO BEARING NO. MH-07/B-4155)
RESPONDENT NO.1 IS DELETED V/O DATED 04.04.2017)
Digitally signed
by J MAMATHA
J
MAMATHA
Location:
Dharwad 2. BALU GANAPAT PATIL,
Date: 2022.07.27
11:38:19 +0530
AGE: MAJOR, OCC: II OWNER OF TATA SUMO,R/O:
HARINAGAR, NIPPANI,TQ: CHIKODI,DIST: BELGAUM.(II
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MFA No. 25758 of 2012
OWNER OF TATA SUMO BEARING NO.MH-07/B-4155)
3. THE ORIENTAL INSURANCE CO., LTD.,
BRANCH ASHOK NAGAR, NIPPANI.THROUGH ITS
DIVISIONAL OFFICE,DIVSIONAL MANAGER,SHANBHAG
CHAMBERS, KIRLOSKAR ROAD,BELGAUM. (POLICY
YR/NO. 2002 833 VALIDFROM 27/6/2001 TO 26/6/02)
...RESPONDENTS
(R1 - DELETED,
BY SMT.SHARMILA M.PATIL, ADV. FOR R3,
NOTICE TO R2 IS HELD SUFFICIENT)
THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED:16-08-2012 PASSED IN MVC
NO.1011/2002 ON THE FILE OF SECOND ADDL. SENIOR CIVIL
JUDGE AND MEMBER, ADDL. MACT, SAUNDATTI, DISMISSING
THE PETITION FILED U/SEC.166 OF MV ACT.
IN M.F.A.No.25757 OF 2012
BETWEEN
1. TEJAWATI W/O MAHAVEER SANKESHWAR,
AGE: 58 YEARS, OCC: HOUSE HOLD and DOMESTIC
BUSINESS,R/O: BATAKURKI,TQ: RAMDURG,DIST:
BELGAUM-590 001.
..APPELLANT
(BY SHRI SHIVARAJ S.BALLOLLI, ADV. AND
SHRI RAMESH I.ZIRALI, ADV. )
AND
1. YAQUB M MAHAT,
AGE: MAJOR, OCC: OWNER OF TATA SUMO,
R/O: KURUNDWAD, TQ: SHIROL,
DIST: KOLHAPUR. MAHARASHTRA.
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(OWNER OF TATA SUMO BEARING NO. MH-07/B-4155)
2. BALU GANAPAT PATIL,
AGE: MAJOR, OCC: II OWNER OF TATA SUMO,R/O:
HARINAGAR, NIPPANI,TQ: CHIKODI,DIST: BELGAUM.(II
OWNER OF TATA SUMO BEARING NO.MH-07/B-4155)
3. THE ORIENTAL INSURANCE CO., LTD.,
BRANCH ASHOK NAGAR, NIPPANI.THROUGH ITS
DIVISIONAL OFFICE, DIVSIONAL MANAGER,SHANBHAG
CHAMBERS, KIRLOSKAR ROAD,BELGAUM. (POLICY
YR/NO. 2002 833 VALIDFROM 27/6/2001 TO 26/6/02)
... RESPONDENTS
(BY SMT.SHARMILA M.PATIL, ADV. FOR R3,
R1 DELETED,
NOTICE TO R2 IS HELD SUFFICIENT)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:16-08-2012 PASSED IN MVC
NO.1012/2002 ON THE FILE OF SENIOR CIVIL JUDGE AND
MEMBER, ADDL. MACT, SAUNDATTI, DISMISSING THE
PETITION FILED U/SEC.166 OF MV ACT.
IN M.F.A.No.25758 OF 2012
BETWEEN
1. SANJAY S/O MAHAVEER SANKESHWAR,
AGE: 38 YEARS, OCC: FOODGRAIN,R/O:
BATAKURKI,TQ: RAMDURG,DIST: BELGAUM-590 001.
...APPELLANT
(BY SHRI SHIVARAJ S.BALLOLLI, ADV. AND
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MFA No. 25756 of 2012
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MFA No. 25758 of 2012
SHRI RAMESH I.ZIRALI, ADV. )
AND
1. YAQUB M MAHAT,
AGE: MAJOR, OCC: OWNER OF TATA SUMO,
R/O: KURUNDWAD, TQ: SHIROL,
DIST: KOLHAPUR. MAHARASHTRA.
(OWNER OF TATA SUMO BEARING NO. MH-07/B-4155)
RESPONDENT NO.1 IS DELETED V/O DATED
04.04.2017)
2. BALU GANAPAT PATIL,
AGE: MAJOR, OCC: II OWNER OF TATA SUMO,R/O:
HARINAGAR, NIPPANI,TQ: CHIKODI,DIST: BELGAUM.(II
OWNER OF TATA SUMO BEARING NO.MH-07/B-4155)
3. THE ORIENTAL INSURANCE CO., LTD.,
BRANCH ASHOK NAGAR, NIPPANI.THROUGH ITS
DIVISIONAL OFFICE,DIVSIONAL MANAGER,SHANBHAG
CHAMBERS, KIRLOSKAR ROAD,BELGAUM. (POLICY
YR/NO. 2002 833 VALIDFROM 27/6/2001 TO 26/6/02)
... RESPONDENTS
(BY SMT.SHARMILA M.PATIL, ADV. FOR R3,
R1 DELETED,
NOTICE TO R2 IS HELD SUFFICIENT)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:16-08-2012 PASSED IN MVC
NO.1013/2002 ON THE FILE OF SENIOR CIVIL JUDGE AND
MEMBER, ADDL. MACT, SAUNDATTI, DISMISSING THE
PETITION FILED U/SEC.166 OF MV ACT.
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THESE APPEALS COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING.
JUDGMENT
Though these matters are listed for admission, with the
consent of learned counsel for the parties, are taken up for final
disposal.
2. The factual matrix of the case of the
claimants/appellants before the Tribunal is that on 16.11.2001
all the claimants were proceeding in a Tata Sumo vehicle
bearing registration No.MH-07/B-4155 from Nippani to
Mantralaya. At about 11. 45 p.m., on Kaladagi-Lokapur road
within the limits of Kachidoni village, the driver of the said
vehicle lost control over the vehicle and dashed to the wall of
the road side bridge and caused the accident. All the claimants
sustained grievous injuries all over their body. Immediately,
after the accident, they were shifted to Government Hospital,
Mudhol and after first aid, they took treatment at Government
Hospital, Nipanni as inpatients and have spent considerable
amount. They filed claim petitions before the Tribunal seeking
compensation for the injuries sustained by them.
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3. The Insurance Company appeared before the
Tribunal and filed its statement of objection contending that the
claimants were the paid passengers and the vehicle was used
on hire basis. In support of their case, the claimants got
examined themselves as PWs-1 to 3, the doctor as PW-4 and
got marked documents Ex.P.1 to Ex.P.23. On the other hand,
respondents got their official examined as RW-1 and got
marked Ex.D.1 and Ex.D.2. The Tribunal after appreciating
both oral and documentary evidence available on record
dismissed the claim petitions on the ground that the claimants
were the fair paid passengers and hence, the Insurance
Company was not liable to pay the compensation. Aggrieved
by the said judgment, the claimants/appellants have filed the
present appeals before this Court.
4. The main contention of the learned counsel for the
appellants/claimants is that the Tribunal committed an error in
dismissing the entire claim petitions and even assuming that
the Insurance Company is not liable to pay the compensation,
ought to have considered the case on merits and fastened the
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liability on the owner even if there was fundamental breach of
the terms of the policy conditions. He further contends that the
policy is a comprehensive policy and hence covered the inmates
of the vehicle. When such being the case, the Tribunal ought
not to have dismissed the claim petitions without considering
the case on merits.
5. In support of his submissions, he relied on the
unreported judgment of the division bench of this Court in
M.F.A.No.5748/2002 dated 23.06.2010 wherein the division
bench held that the Court did not find any rationale for the
insurer as a 'State' to discriminate between the paid inmate
and the gratuitous inmate when the vehicle is covered with
comprehensive policy. If the vehicle is a private vehicle plied
on hire, the owner shall be liable for the penal and fiscal
consequences under the Motor Vehicles Act for payment of
penalty and taxes applicable to the commercial vehicles. But
from the stand point of the insurer, it makes no difference
whether the inmate is a paid passenger or gratuitous
passenger. When the policy issued is a comprehensive policy
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covering the risk of the inmates of a private vehicle, the insurer
cannot avoid liability on the ground that the inmate is a paid
passengers. He also relied on a decision of this Court in
UNITED INDIA INSURANCE CO., LTD., VS. BASAVARAJ
AND ANOTHER (2020 SCC ONLINE KAR 1652) wherein the
single bench referring to the earlier judgment of this Court in
UNITED INDIA INSURANCE CO., LTD., VS. KALAWATHI
(ILR 2001 KAR 2328) came to the conclusion that when the
vehicle was covered with a comprehensive policy and extra
premium was collected, the Insurance Company was liable to
pay the compensation.
6. Per contra, Smt.Sharmila M.Patil, learned counsel
for the Insurance Company vehemently contended that
admittedly vehicle is used for hire purpose and no doubt the
inmates of the vehicle are covered under the policy. She
further submits that the owner ought to have used the vehicle
for personal use and not for hire purpose and hence there was
a fundamental breach of the policy condition. Therefore, she
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submits that the Tribunal has not committed any error in
dismissing the claim petitions of the claimants.
7. Having heard the learned counsel appearing for the
parties and also on perusal of the material available on record,
the point that arises for consideration of this Court is:
"Whether the Tribunal has committed any error in
dismissing the claim petitions of the claimants without
considering the case on merits?"
8. On perusal of the material available on record,
there is no dispute between the parties that the vehicle
involved in the accident was having comprehensive policy and it
covers the inmates of the private vehicle. It is not disputed by
the Insurance Company that the vehicle is covered under a
comprehensive policy and when such being the case, the
Tribunal committed an error in dismissing the claim petitions
even without considering the merits of the matter. Apart from
that the finding of the Tribunal that the vehicle was used for
hire purpose and hence Insurance Company is not liable to pay
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the compensation is not sustainable. The principle laid down by
this Court in the judgment referred to supra by the Division
Bench is very clear that no discrimination would be made
between the paid inmates and the gratuitous inmates when the
vehicle is covered with a comprehensive policy. Therefore, it is
appropriate for this Court to set aside the judgment of the
Tribunal and remand the matter for fresh consideration on
merits. Hence, I answer the point raised in the affirmative.
9. In view of the above, I pass the following:
ORDER
i) The appeals are allowed,
ii) The impugned order dated 16.08.2012 passed in
M.V.C.Nos.1013/2002, 1011/2002 and 1012/2002
by the Senior Civil Judge and Addl. MACT,
Saundatti, is hereby set aside and the Tribunal is
directed to consider the matter on merits in the
light of the observations made above.
iii) As the matters are of the year 2002 and almost two
decades have elapsed, it is appropriate to direct the
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Tribunal to dispose of the claim petitions within an
outer limit of three months from today.
iv) The registry is directed to send the records
forthwith to the concerned Tribunal,
v) Both the parties to appear before the Tribunal on
01.08.2022 without expecting any separate notice
and shall co-operate with the Tribunal in disposal of
the matters within the stipulated time.
(Sd/-)
JUDGE
JM
