The Maanger/Duly Constituted vs Mohammed Khajahussain And Anr
2022 Latest Caselaw 9017 Kant

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            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

          DATED THIS THE 17TH DAY OF JUNE 2022

                         BEFORE

       THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
                 MFA No.31618/2013 (MV)
BETWEEN:
THE MANAGER/DULY CONSTITUTED,
ATTORNEY OF ICICI LOMBARD GEN.
INS, CO, LTD, RAICHUR NOW
REPRESENTED THROUGH MANAGER LEGAL
ICICI LOMBARD GEN. INS, CO. LTD,
KOTHARI COMPLEX, S.V.PATEL CHOWK,
GULBARGA.
                                           ... APPELLANT
(BY SRI. C.S.KALBURGI, ADVOCATE)
AND:
1.     MOHAMMED KHAJAHUSSAIN
       S/O KADARBASHA,
       AGE: 46 YEARS, OCC: OWNER OF
       LORRY NO.KA-07-6064,
       R/O NEAR IDGA, BAPPUR ROAD,
       SINDHANUR, DIST: RAICHUR-584101.

2.     HUSSAINSAB S/O DASTAGIRISAB,
       AGE: 29 YEARS, OCC: DRIVER OF
       LORRY NO.KA-07-6064,
       R/O MUDUGAL, TQ: LINGASUGUR,
       DIST: RAICHUR-584101.
                                        ... RESPONDENTS
(BY SRI. BASAVARAJ R.MATH, ADVOCATE FOR R1;
V/O DATED 29.11.2017 NOTICE TO R2 IS DISPENSED WITH)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO
CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT AND
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AWARD DATED 22 ND MARCH-2013 PASSED BY THE SENIOR
CIVIL JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL AT
LINGASUGUR, SITTING AT SINDHANUR IN MVC NO.183/2010
AND TO PASS SUCH OTHER ORDERS AS THIS HON'BLE
COURT DEEMS FIT UNDER THE FACTS AND CIRCUMSTANCES
OF THE CASE, INCLUDING THE COSTS.

     THIS APPEAL COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-

                              JUDGMENT

The appellant-ICICI Lombard General Insurance

Company Limited has filed this appeal under Section 173(1)

of the Motor Vehicles Act, 1988 ( 'MV Act' for short) against

the judgment and award dated 22.03.2013 passed by Motor

Accidents Claims Tribunal, Lingasugur, sitting at Sindhanur

('Tribunal' for short), in MVC No.183/2010, challenging the

liability and jurisdiction.

2. For the sake of convenience, the parties herein

are referred as per the ranks occupied by them before the trial

Court.

3. The brief factual matrix leading to the case are

that, the petitioner is the owner of lorry bearing Registration

No. KA.07/6064 and Respondent No.1 is the driver of the said

lorry. The said vehicle was insured with Respondent No.2. On

13.06.2009 the petitioner was proceeding in the said lorry

towards Sangli of Maharashtra for transportation of Rice Bags

and when the lorry reached within the limits of Managuli, a

boy suddenly came across the road. In order to avoid the said

boy, Respondent No.1 took a sudden turn, due to which the

lorry over-turned and got damaged. The petitioner/claimant

got repaired the lorry from M/s. Thaj Body Builders at

Basavakalyana by spending more than Rs.5.00 Lakhs. It is

claimed that, the claimant was earning Rs.40,000/- p.m., from

the said lorry and it was the only source of his income, But,

due to accidental damage to the Lorry, he lost his source of

income and hence he prayed for awarding compensation of

Rs.5.00 Lakhs.

4. Respondent No.2 appeared and contested the

matter contending that, the petition is not maintainable. It is

also contended that the petitioner has not arrayed himself as

a party to the case being a owner of the said lorry. It is

further asserted that the accident has occurred due to the own

fault of Respondent No.1 and there is no involvement of any

other vehicle and hence, the petition is liable to be dismissed.

He has also filed additional objections claiming that under

Section 165 of the MV act, the petitioner not being a third

party, the petition is not maintainable. Hence, he sought for

dismissal of the claim petition.

5. The Tribunal after considering the oral and

documentary evidence, has awarded compensation of

Rs.1,40,000/- with interest at 6% p.a.. This order is

challenged in this appeal.

6. Heard the learned counsels appearing on both

sides and perused the records.

7. Learned counsel for the appellant/Respondent

No.2 would contend that, the claimant himself being the

owner, he cannot maintain the claim petition and he ought to

have approached the Consumer Redressal Forum. He

contended that no third party is involved in the accident and

as such he sought for allowing the appeal by dismissing the

claim petition.

8. Per contra, the respondent/claimant would

contend that the policy was a Comprehensive Package Policy

and premium is also collected by the Insurer in respect of own

damages and hence, it cannot lie in the mouth of the insurer

that, it is not liable. Hence, he would seek for rejection of the

appeal.

9. Having heard the arguments advanced by the

learned counsels appearing on both sides and perusing the

records, it is evident that there is no serious dispute of the

fact that the petitioner was the owner of the vehicle-Lorry

and it met with an accident and got damaged considerably.

There is no serious dispute regarding quantum of

compensation awarded by the Tribunal to the extent of

Rs.1,40,000/-. The dispute raised is only regarding the

maintainability of the claim petition.

10. Ex.P3 discloses that the vehicle did met with an

accident. Further Ex.R1 is the Insurance Policy and it is

evident that a sum of Rs.6,462/- is collected by the Insurance

Company as a premium towards own damages. When the

Insurance Company collects premium pertaining to own

damages, now it cannot lie in the mouth of the Insurance

Company that no third party is involved in the accident and

they are not liable to pay any compensation.

11. Learned counsel for the appellant-Insurer has

placed reliance on an unreported decision of the Hon'ble Apex

Court in Appeal (Civil) No.1140/2007 rendered on

02.03.2007 in the case of National Insurance Company

Limited Vs. Laxmi Narayana Dhut. But, the facts and

circumstances of the said case are entirely different. In the

said case, the policy was an Act Policy. But, in the present

case, the policy is a comprehensive policy and it specifies

regarding own damage premium being collected to the extent

of Rs.6,462/-. Under these circumstances, the principles

enunciated in the above cited decision will not come to the aid

of the learned counsel for the appellant-Insurer. In fact, the

Insurance Company ought to have settled the claim. But, in

spite of that, it has driven the claimant to the Court by

denying compensation and when they collected premium, it

was the duty of the Insurance Company to reimburse the cost

of damages to the vehicle under the head of 'Own Damages'.

Therefore, the contention raised by the learned counsel for the

appellant-Insurance Company holds no water. Hence, the

contention regarding maintainability of the petition also does

not survive for consideration, as the claim is arising out of use

of the vehicle, in pursuance of the policy issued under the MV

Act. Hence, the appellant-Insurer has failed to make-out any

grounds for interference with the judgment and award passed

by the Tribunal. As such, the appeal being devoid of any

merits, does not survive for consideration. Hence, I proceed to

pass the following:-

ORDER

The appeal is dismissed.

The amount in deposit, shall be transmitted to the concerned Tribunal.

Sd/-

JUDGE KGR*