The Manager vs Chandrakala
2022 Latest Caselaw 9565 Kant

                        1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 24TH DAY OF JUNE 2022

                     BEFORE

THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

          MFA No. 5886 OF 2019 (MV)
                    C/W
          MFA No. 5887 OF 2019 (MV)
IN MFA NO.5886/2019

BETWEEN:

THE MANAGER
IFFCO-TOKIO GIC LTD.
P.6-(D), 1ST MAIN ROAD,
1ST PHASE, PEENYA LAND,
BENGALURU-560 058.
NOW REPRESENTED BY
LEGAL MANAGER, IFFCO TOKIO GIC LTD.,
CUSTOMER SERVICE CENTER,
SRI. SHANTHI TOWERS, 5TH FLOOR,
NO.141, 3RD MAIN, EAST OF NGEF LAYOUT,
KASTURI NAGAR,
BANGALORE-560 043.
                                    ...APPELLANT
(BY SRI. PRADEEP B., ADVOCATE)

AND:

1.   CHANDRAKALA
     W/O LATE PUSHPARAJ
     AGED ABOUT 41 YEARS,
                        2




2.   AKSHID JAIN
     S/O LATE PUSHPARAJ
     AGED ABOUT 25 YEARS,

     BOTH ARE R/AT HALUVAGILU ROAD,
     TANNIRUHALLI, CHIKKMANDIGANAHALLI,
     HASSAN

3.   SUJATHA
     W/O LATE RAJU
     MAJOR,
     R/AT NO.21 A, 1ST CROSS,
     1ST MAIN, ULLALA MAIN ROAD,
     MUNESHWARA NAGARA,
     BENGALURU-56.

4.   H.S. SHANTHIPRASAD
     S/O SRUENDRA, 18TH CROSS,
     KUVEMPU NAGARA, HASSAN.
                                   ...RESPONDENTS

(BY SRI. GIRISH B. BALADARE, ADV. FOR R1 & R2
 NOTICE TO R3 & R4 SERVED BUT UNREPRESENTED)

     THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST   THE   JUDGMENT    AND    AWARD   DATED
04/04/2019, PASSED IN MVC NO.1699/2017, ON THE
FILE OF THE II ADDITIONAL DISTRICT & SESSIONS
JUDGE & ADDITIONAL MACT, HASSAN, AWARDING
COMPENSATION OF RS.9,71,000/- WITH INTEREST AT
                        3



6% P.A., FROM THE DATE OF PETITION TILL THE
DATE OF REALISATION.

IN MFA NO.5887/2019

BETWEEN:

THE MANAGER
IFFCO-TOKIO GIC LTD.
P.6-(D), 1ST MAIN ROAD,
1ST PHASE, PEENYA LAND,
BENGALURU-560 058.
NOW REPRESENTED BY
LEGAL MANAGER, IFFCO TOKIO GIC LTD.,
CUSTOMER SERVICE CENTER,
SRI. SHANTHI TOWERS, 5TH FLOOR,
NO.141, 3RD MAIN, EAST OF NGEF LAYOUT,
KASTURI NAGAR,
BANGALORE-560 043.

                                   ...APPELLANT
(BY SRI. PRADEEP B., ADVOCATE)

AND:

1.   CHANDRAKALA
     W/O LATE PUSHPARAJ,
     AGED ABOUT 41 YEARS,
     R/AT HALUVAGILU ROAD,
     TANNIRUHALLI,
     CHIKKAMANDIGANAHALLI,
     HASSAN.
                         4



2.   SUJATHA
     W/O LATE RAJU,
     MAJOR,
     R/AT NO.21A, 1ST CROSS,
     1ST MAIN, ULLALA MAIN ROAD,
     MUNESHWARA NAGARA,
     BENGALURU-56.

3.   H.S. SHANTHIPRASAD
     S/O. SURENDRA, 18TH CROSS,
     KUVEMPU NAGARA, HASSAN.
                                   ...RESPONDENTS

(BY SRI. GIRISH B. BALADARE, ADVOCATE FOR R1
 NOTICE TO RESPONDENT NOS.2 AND 3 SERVED BUT
UNREPRESENTED)

     THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED
04/04/2019, PASSED IN MVC NO.1700/2017, ON THE
FILE OF THE II ADDITIONAL DISTRICT & SESSIONS
JUDGE & ADDITIONAL MACT, HASSAN, AWARDING
COMPENSATION OF RS.1,30,000/- ALONG WITH
INTEREST AT 6% P.A., FROM THE DATE OF PETITION
TILL THE DATE OF REALISATION.

    THESE MFAs COMING ON FOR ADMISSION,
THROUGH PHYSICAL HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                    JUDGMENT

MFA No.5886/2019 and MFA No.5887/2019 are

filed by the Insurance Company under Section under

Section 173(1) of the Motor Vehicles Act, 1988

(hereinafter referred to as 'the Act', for short), being

aggrieved by the judgment dated 04.04.2019, passed

by the II Additional District & Sessions Court &

Additional Motor Accident Claims Tribunal, Hassan in

MVC No.1699/2017 and MVC No.1700/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 02.04.2017, at about 3.00

p.m., the claimant Smt. Chandrakala and her husband

deceased Pushparaj were proceeding in a car, bearing

registration No.KA.51.MD.3870 on NH-75 B.M. Road.

When they reached near family restaurant situated

near Ranganathapur gate, at that time, the driver of

the said car, drove the same in a rash and negligent

manner and lost control, due to that the car was rolled

3 times on the side of the road. As a result of the

aforesaid accident, they sustained grievous injuries

and claimant's husband succumbed to the injuries.

3. The claimants filed petitions under Section

166 of the Act seeking compensation for the death of

the deceased along with interest.

4. On service of summons, the respondent

No.3 appeared through counsel and filed written

statement in which the averments made in the

petition were denied.

The respondent Nos.1 and 2 did not appear

before the Tribunal inspite of service of notice and

hence were placed ex-parte.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimants, in order to

prove their case in MVC No.1699/2017 and MVC

No.1700/2017, examined claimant No.1 Chandrakala

as PW-1 and got exhibited documents namely Ex.P1

to Ex.P11. On behalf of respondents, one witness was

examined as RW-1 and got exhibited document

namely Ex.R1. The Claims Tribunal, by the impugned

judgment, inter alia, held that the accident took place

on account of rash and negligent driving of the

offending vehicle by its driver, as a result of which,

the claimant sustained injuries and her husband

sustained injuries and succumbed to the injuries. The

Tribunal further held that the claimants are entitled to

a compensation of Rs.9,71,000/- in MVC

No.1699/2017 and Rs.1,30,000/- in MVC

No.1700/2017 along with interest at the rate of 6%

p.a. and directed the Insurance Company to deposit

the compensation amount along with interest. Being

aggrieved, this appeal has been filed.

6. The learned counsel for the Insurance

company has contended that the policy issued by the

Insurance Company for the private car is a 'liability

only policy'. There is no additional premium collected.

Since, the deceased in MVC No.1699/2017 and the

claimant in MVC No.1700/2017 are the inmates of the

car, the Insurance Company is not liable to pay any

compensation. Even though the policy has been

marked as Ex-R1, the Tribunal has given a finding that

no policy has been produced. This finding of the

Tribunal is perverse and contrary to the material

available on record. In support of his contention,

relied on judgment of Apex Court (2008 ACJ 2045 and

2013 (1) SCC 731) ORIENTAL INSURANCE CO. LTD.

vs. SUDHAKARAN K.V. and NATIONAL INSURANCE

CO. LTD vs. BALAKRISHNAN & ANOTHER.

The owner of the offending vehicle is served but

unrepresented.

7. On the other hand, the learned counsel for

the claimants has contended that since the claimant is

a third party, it is for the insured and the Insurance

Company to pay the compensation. He further

contended that the Tribunal after appreciation of oral

and documentary evidence and considering the age

and avocation of the deceased has awarded just and

reasonable compensation. Hence, he prays for

dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the records.

9. It is not in dispute that deceased Pushparaj

died in the accident and the claimant Chandrakala has

suffered an injury in the road traffic accident occurred

on 02.04.2017, due to rash and negligent driving of

the offending vehicle by its driver.

10. The Tribunal after considering the evidence

and records has held that the driver of the car bearing

registration No. KA.51.MD.3870 is negligent in causing

the accident. The finding of the Tribunal has not been

challenged by either driver or owner of the car. Only

point which has been raised in this case before this

Court by the Insurance Company is that the insurance

policy issued by the company for a private car is

'liability only policy' and no extra premium has been

collected. The Insurance company has marked Ex-R1.

It is very clear that they have collected basic premium

of Rs.2,237/- + Rs.50/- for legal liability to the driver

and Rs.100/- for PA owner driver. They have not

collected any extra premium for inmates. Therefore,

the Insurance Company is not liable to pay the

compensation. In this aspect, the Apex Court in case

of the ORIENTAL INSURANCE CO. LTD. vs.

SUDHAKARAN K.V. reported in 2008 ACJ 2045

(SC), has observed as follows:

"19. The law which emerges from the said decisions is: (i) the liability of the insurance company in a case this nature is not extended to a pillion rider of the motor vehicle unless the requisite amount of premium is paid for covering his/her risk;

(ii) the legal obligation arises under section 147 of the Act cannot be extended to an injury or death of the owner of vehicle or the pillion rider; and (iii) the pillion rider on a two-wheeler was not to be treated as a third party when the accident has taken place owing to rash and negligent riding of the scooter and not on the part of the driver of another vehicle."

11. Similarly Hon'ble Supreme Court in the

case of NATIONAL INSURANCE CO. LTD vs

BALAKRISHNAN & ANOTHER reported in (2013)

1 SCC 731 has observed as follows:

"26. In view of the aforesaid factual position, there is no scintilla of doubt that a "comprehensive/package policy" would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an "Act Policy" stands on a different footing from a "Comprehensive/Package Policy". As the circulars have made the position very clear and the IRDA, which is presently the statutory authority, has commanded the insurance companies stating that a "Comprehensive/Package Policy" covers the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of the "Act Policy" which admittedly cannot cover a third party risk of an

occupant in a car. But, if the policy is a "Comprehensive/Package Policy", the liability would be covered. These aspects were not noticed in the case of Bhagyalakshmi (supra) and, therefore, the matter was referred to a larger Bench. We are disposed to think that there is no necessity to refer the present matter to a larger Bench as the IRDA, which is presently the statutory authority, has clarified the position by issuing circulars which have been reproduced in the judgment by the Delhi High Court and we have also reproduced the same."

12. Above decisions of Hon'ble Supreme Court

are explicit to the effect that unless additional

premium is paid covering the risk of a pillion

rider/occupant of a car, an Act policy issued will not

make the insurance company liable to pay the

compensation awarded for the personal injury or

death of a pillion rider/occupant of a car arising out of

accident involving the insured two wheeler/car.

13. The Tribunal has failed to consider this

aspect of the matter. Therefore, the finding given by

the Tribunal that the Insurance Company is to

indemnify the owner of the offending vehicle is

unsustainable. The same is perverse and contrary to

material on records.

In view of the above, the finding of the Tribunal,

that the Insurance Company is liable to indemnify the

owner of the offending vehicle is unsustainable.

Hence, the same is set aside. In respect of other

aspect is concerned, it is confirmed.

11. In the result, the appeal is allowed in

part. The judgment of the Claims Tribunal is modified.

The owner of the offending vehicle Sujatha, who

is respondent No.1, before the Tribunal is directed to

deposit entire compensation amount with interest at 6

% p.a. from the date of filing of the claim petition till

the date of realization, within a period of six weeks

from the date of receipt of copy of this judgment.

Amount in deposit is directed to be refunded to the

Insurance Company after due verification.

Sd/-

JUDGE

JY