The Oriental Insurance Co.Ltd vs Mahesh S/O Vasanthrao Kulkarni ...
2022 Latest Caselaw 8923 Kant

                               1




          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

        DATED THIS THE 16TH DAY OF JUNE 2022

                          BEFORE

  THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR


               MFA No.31032/2013 (MV)

BETWEEN:

The Oriental Insurance Co. Ltd.
Divisional Office
N.G. Complex, 1st Floor
Opp. Mini Vidhana Soudha, Gulbarag

Now represented by
Divisional Manager, Gulbarga
                                         ... Appellant

(By Sri. S.S. Aspalli, Advocate)

AND:

1.     Mahesh S/o Vasanthrao Kulkarni
       Age: 27 years, Occ: Agriculture
       R/o Bolani, Taluka Aland
       Now Resident of Khadri Chowk
       Aland Road, Gulbarga - 585 101

2.     Kartikayya S/o Digambarayya Math
       Age: Major, Occ: Business and
       Owner of Jeep Reg. No.KA-32/M-1516
                              2



     R/o Bolani, Taluka Aland
     Dist. Gulbarga - 585 302
                                             ... Respondents

(Sri Babu H. Metagudda, Advocate for R1;
 Sri Prashant S. Myakeri, Advocate for R2)


      This MFA is filed under Section 173(1) of the Motor
Vehicles Act, praying to set aside the judgment and award
in MVC No.727/2012 dated 26.02.2013 passed by the Prl.
Senior Civil Judge & MACT, Gulbarga, by allowing the
above appeal.


      This appeal having been heard and Reserved for
judgment on 02.06.2022, coming on for 'Pronouncement
of Judgment' this day, the Court delivered the following:


                       JUDGMENT

This appeal is filed by the Insurance Company

against the judgment and award dated 26.02.2013 passed

in MVC No.727/2012 by the Principal Senior Civil Judge

and MACT, Gulbarga (hereinafter referred to as 'the

Tribunal' for short), whereby the Tribunal has awarded a

compensation of Rs.2,10,000/- with interest at the rate of

6% p.a. in favour of the claimant by fastening liability on

the Insurance Company.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them

before the Tribunal.

3. As per the case of the claimant, on 16.02.2011

at about 5.00 p.m. while he was proceeding in a Jeep

bearing No.KA-32/M-1516 to his village along with others,

the jeep over turned as a result of rash and negligent

driving of the driver and the claimant suffered injuries.

Hence, he filed a claim petition claiming compensation of

Rs.10,50,000/- from the respondents.

4. The Tribunal, after appreciating the oral and

documentary evidence has awarded compensation of

Rs.2,10,000/- with interest at the rate of 6% p.a. from the

date of petition till its realization.

5. Being aggrieved by this judgment and award,

the Insurance Company has filed this appeal.

6. Heard the arguments advanced by the learned

counsel for the appellant and the learned counsel for the

respondents and perused the records.

7. The learned counsel for the appellant-

Insurance Company would contend that since it is an Act

policy and no additional premium has been paid, the risk of

the inmates is not covered under the policy. He would

invite the attention of the Court towards the copy of the

policy available in the Trial Court records and also referred

para 24 of the impugned judgment.

8. Admittedly, the policy is an Act policy. The

vehicle was Mahindra & Mahindra having Cubic Capacity of

2523. It is also evident that the premium was Rs.2,625/-

and including the Service Tax and Stamp Duty, the total

premium collected was Rs.2,895/-. The Tribunal, based on

the decision of this Court in MFA No.30201/2008 C/W

MFA No.6902/2008 has held that the total premium

payable was Rs.2,525/-, which is indicative of Package

policy being issued by the Insurance Company and there is

no explanation as to why additional premium had been

collected and hence, held that it is to be inferred as

Package policy which covers the risk of inmates.

9. The learned counsel for the respondent-

claimant would also contend that for the third party claim,

the premium is only Rs.700/- and excess premium is being

collected. Hence, he argued that it is to be treated as a

Package policy in the instant case, as rightly held by the

Tribunal. In this regard, he has placed reliance on India

Motor Tariff, but it does not disclose for which year this

alleged premium of Rs.700/- is applicable. The notification

in this regard is not at all produced. Hence, the said

argument cannot be accepted.

10. On the contrary, learned counsel for the

appellant would contend that the policy being an Act

policy, no liability could have been fastened on the

Insurance Company, as it can be distinguished from

Comprehensive policy. This aspect has been considered by

the Hon'ble Apex Court in the decision reported in (2013)

1 SCC 731 (National Insurance Company Limited v.

Balkrishnan and another). The Hon'ble Apex Court in

the said decision has considered the

Comprehensive/Package policy and Act policy. It is

specifically observed that Comprehensive/Package policy

would stand on entirely different footing compared to an

Act policy. It is further observed that the

Comprehensive/Package policy covers the liability of the

inmates, while the Act policy cannot cover a third-party

risk of an occupant in the vehicle.

11. Learned counsel for the respondent-claimant

would contend that the Insurance Company having

collected excess premium, the policy automatically to be

considered as Comprehensive policy. This aspect has been

considered by the Co-ordinate Bench of this Court in MFA

No.20607/2010 (MV), dated 28.02.2018 (Divisional

Manager, United India Insurance Co. Ltd. v.

Veerabhadrappa and others), wherein the Co-ordinate

Bench has observed as under:

"The Act or the Rules do not contain any provision to the effect that once extra amount is taken by the Insurance Company it should be presumed to be extra premium and further on such payment being received the "Act Policy" automatically gets metamorphosed into a comprehensive policy."

12. It is further observed in the said decision itself

that, if the contention of the counsel for the claimant is

accepted, it amounts to re-writing the contract of

Insurance which is not permissible.

13. The order of Insurance Regulatory and

Development Authority is made available, which stipulates

the Tariff in respect of private vehicles. It clearly disclose

that for a private car exceeding 1500 cubic capacity, the

third party premium would be Rs.2,750/- with effect from

25th April 2011. No doubt, the accident in question has

occurred on 16.02.2011, but the policy does not disclose

that any premium is collected towards the licenced

passenger. Further, merely on the ground that additional

premium is paid, it cannot be held that the Act policy

automatically gets metamorphosed into a Comprehensive

policy, as it amounts to re-writing the contract of

Insurance which is not permissible. The similar view is also

taken by the Co-ordinate Bench of this Court in MFA

No.20275/2011 C/w MFA No.21043/2011, dated

27.01.2017. Though the learned counsel for the

respondent has relied on India Motor Tariff regarding

covering risk of a third party at premium of Rs.700/-, he

did not produce any authenticated order of the Insurance

Regulatory and Development Authority as produced by the

learned counsel for the appellant which was with effect

from 25th April 2011. Under these circumstances, the

contention of the learned counsel for the respondent-

claimant that the Insurance Company having collected

extra premium is liable to pay compensation holds no

water.

14. The learned counsel for the claimant would

contend that the Insurance Companies are not placing any

proper material before the Court and by misleading, they

are getting the orders in their favour, which cannot be

accepted. Nothing prevented the learned counsel for the

claimant to produce the order of the Insurance Regulatory

and Development Authority to show that any extra

premium collected in respect of an Act policy automatically

to be treated as a Comprehensive policy. No decision of

any Court is also placed before the Court so substantiate

this contention. If at all the insurance companies had

obtained orders by misleading the Courts, it is open for the

concerned party to approach by way of review or to a

Higher Court. Without taking any recourse to such an act,

a passing remarks in this regard cannot be entertained.

15. Admittedly, in the instant case, the policy is an

Act policy and the claimant is an inmate of the jeep which

met with an accident and he does not fall under the

definition of third-party. As such, the Tribunal has erred in

fastening the liability on the Insurance Company on

presumption that it is a Comprehensive policy. As such,

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

pass the following:

ORDER

i. The appeal is allowed.

ii. The impugned judgment and award of the Tribunal is set aside so far as it relates to appellant-Insurance Company and the liability is fixed only on the owner-respondent No.1 before the Tribunal.

iii. The statutory deposit made by the appellant-

Insurance Company is ordered to be refunded to the company.

Sd/-

JUDGE

LG