Branch Manager vs Yallappa S/O Nandappa Kattimani
2022 Latest Caselaw 8970 Kant

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          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.201708/2014 (MV)

BETWEEN:

Branch Manager
Oriental Insurance Company Ltd.
S.S. Front Road, Bijapur
Now represented by its
Divisional Manager
                                           ... Appellant

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

AND:

1.     Yallappa S/o Nandappa Kattimani
       Age: 45 years, Occ: Coolie
       R/o Muddebihal, Dist. Bijapur - 586 101

2.     Ashok S/o Sayabba Kapanur
       Age: Major, Occ: Business
       At: Po: Gajarakot, Tq. Yadagi
       Dist. Gulbarga - 585 202
                                           ... Respondents

(Sri G.B. Yadav, Advocate for R1;
 R2 - served)
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       This MFA is filed under Section 173(1) of the Motor
Vehicles Act, praying to set aside and modify the judgment
and award dated 30.06.2014 passed in MVC No.25/2011
by the VIII Motor Accident Claims Tribunal & Senior Civil
Judge & JMFC, Muddebihal by allowing the appeal with
costs.

      This appeal having been heard and reserved 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 30.06.2014 passed in MVC

No.25/2011 by the VIII Motor Accident Claims Tribunal and

Senior Civil Judge & JMFC, Muddebihal, whereby the

Tribunal has awarded compensation of Rs.4,92,000/- with

interest at the rate of 6% p.a. from the date of petition till

its realisation in favour of the claimant by fastening liability

on both respondent Nos.1 and 2 jointly and severally.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them

before the Tribunal.

3. The brief facutal matrix leading to the case are

that, on 03.02.2009 at about 5.00 p.m., deceased

Basamma was proceeding in the Jeep bearing Reg.

No.KA-32/M-3218 and the driver drove the jeep in a rash

and negligent manner as a result of which deceased

Basamma fell down from the jeep sustaining fatal injuries

and later on she succumbed because of the injuries.

Hence, the claimant has filed a claim petition under

Section 166 of the M.V. Act, seeking compensation of

Rs.38,20,000/- from the respondents and the same was

partly allowed by the Tribunal by awarding compensation

of Rs.4,92,000/- with interest at 6% p.a. as against

respondent Nos.1 and 2.

4. There is no dispute of the fact that respondent

No.1 is the owner and respondent No.2 is the insurer.

5. The learned counsel for the appellant-insurer

has invited the attention of the Court to Ex.R1 available in

the Trial Court records, which is the policy issued by

respondent No.2. On perusal of the same, it is evident

that premium was Rs.2,625/- and after including Service

Tax as well as Stamp Duty, total premium of Rs.2,949/-

was collected in respect of offending vehicle. The Cubic

Capacity of the vehicle is 2523 and it is admittedly an Act

policy. No premium was paid towards covering the risk of

the passengers of the vehicle.

6. The Tribunal has not considered this aspect

and only considered the fact that though there is breach of

policy conditions, the vehicle was plying in the State of

Karnataka and terms and conditions are not violated.

However, the Tribunal has not considered that the policy

was an Act policy and not a Comprehensive policy. In this

context, the Hon'ble Apex Court in the decision reported in

(2013) 1 SCC 731 (National Insurance Company

Limited v. Balkrishnan and another) has dealt with

Comprehensive/Package policy and Act policy and the

liability fastened under the separate policies in detail in

para 26.

7. Further, the learned counsel for the appellant

in this context has placed reliance on the judgment of the

Co-ordinate Bench of this Court in MFA No.20607/2010,

dated 28.02.2018 (Divisional Manager v. Veerabhadrappa

and others), wherein the Co-ordinate Bench of this Court

has held that merely an extra amount is collected by the

Insurance Company, does not mean that an Act policy

should be treated as a Comprehensive policy, as the Act or

Rules do not provide this provision of law.

8. Admittedly, the policy under Ex.R1 is an Act

policy and in similar circumstances, the Co-ordinate Bench

of this Court in MFA No.31781/2010 C/w other matters, by

order dated 22.12.2020 again considered this aspect and

by relying on various decisions has held that the Act policy

does not cover the risk of the inmates and the Act policy

cannot be termed as a Comprehensive or a Package policy

in view of extra amount being paid. Under these

circumstances, the Tribunal has erred in fastening the

liability on the appellant-Insurance Company and as such,

the appeal needs to be allowed by accepting the

contentions raised by the Insurance Company. Hence, I

proceed to pass the following:

ORDER

i. The appeal stands allowed.

ii. The impugned judgment and award passed by the Tribunal is set aside so far as it relates to appellant-Insurance Company and the award is liable to be executed only as against respondent No.1-owner.

iii. The statutory deposit made by the appellant-

Insurance Company is ordered to be refunded to the company.

Sd/-

JUDGE

LG