Karnataka High Court
The Divisional Manager vs Tajuddin S/O Abdulsattar ... on 27 June, 2022
Bench: P.Krishna Bhat
-1-
MFA No. 22793 of 2010
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 27TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE P.KRISHNA BHAT
MFA NO. 22793 OF 2010 (MV-I)
BETWEEN:
THE DIVISIONAL MANAGER,
THE NATIONAL INSURANCE CO. LTD.,
BRANCH OFFICT AT HUBLI,
CO-OPERATIVE COTTON SALES SOCIETY BUILDING,
NEW COTTON MARKET, HUBLI,
BY ITS ADMINISTRATIVE OFFICER,
SUJATA COMPLEXP.B. ROAD, HUBLI
... APPELLANT
(BY SHRI S.K. KAYAKAMATH, ADVOCATE)
AND:
1. TAJUDDIN S/O.ABDULSATTAR SURANAGI,
AGE 18 YEARS, OCC: LABOUR AT VEHICLE
BEARING NO. KA-27-6896,
R/O: BANKAPUR, TAL. SHIGGAON,
DIST. HAVERI.
Digitally
signed by
ROHAN
2. ABDULSATTAR S/O.IMAMSAB SURANAGI,
HADIMANI T
ROHAN
HADIMANI Location: AGE: MAJOR, OCC: OWNER OF VEHICLE
DHARWAD
T Date:
2022.06.28 BEARING NO. KA-27/6896,
09:56:56
+0530 R/O: BANKAPUR, TAL. SHIGGAON,
DIST. HAVERI, R/O AKKI-ALUR,
TAL. HANGAL, DIST. HAVERI.
... RESPONDENTS
(BY SHRI. RAGHAVENDRA A.PUROHIT, ADVOCATE FOR
DINESH M.KULKARNI, ADVOCATE FOR R1 & R2)
-2-
MFA No. 22793 of 2010
THIS MFA IS FILED UNDER SECTION 173(1) OF M.V.
ACT, AGAINST THE JDUGMENT & AWARD DATED
15.04.2010, PASSED IN MVC NO.325/2006 ON THE FILE
OF THE PRL. SENIOR CIVIL JUDGE & MEMBER, ADDL.
AMACT, HAVERI, AWARDING COMPENSATION OF
RS.95,000/- WITH INTEREST AT THE RATE OF 6% P.A.
FROM THE DATE OF PETITION TILL REALIZATION.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY. THE COURT MADE/DELIVERED THE FOLLOWING.
JUDGMENT
1. This appeal is at the instance of the Insurance
Company calling in question the legality and validity of the
Judgment & Award dated 15.04.2010 in MVC No.325/2006
on the file of the learned Prl. Senior Civil Judge & AMACT,
Haveri.
2. The brief facts are that on 10.11.2005, while
the claimant who was working as a labourer in a Goods
Auto bearing registration No.KA-27/6896, insured with the
appellant herein was returning to Bankapur from Savanur
in the said Goods Auto, the driver of the same drove it in a
rash & negligent manner and it capsized, resulting in
grievous injuries to the claimant.
MFA No. 22793 of 2010
3. On the claim petition being filed, the appellant
and the owner of the offending vehicle, both entered
appearance through their respective counsel and filed their
separate statement of objections.
4. During the trial, the claimant examined himself
as PW1 and also examined a qualified medical practitioner
as PW2 and got marked Exs.P1 to P10. the
appellant/Insurance Company examined one of its Officials
as RW1 and got marked the policy of insurance as Ex.R1.
5. After hearing the learned counsel on both sides
and perusing the records, the learned Tribunal allowed the
claim petition in part awarding compensation of
Rs.95,000/- with interest thereon at 6% p.a. from the date
of petition till the date of payment.
6. The only grievance of the learned counsel for
the Insurance Company is that the claimant being an
unauthorized/gratuitous passenger on the Goods Auto,
there was a breach of the terms & conditions of the policy
and as such the learned Tribunal was in error in holding
MFA No. 22793 of 2010
that the appellant is jointly and severally liable to pay the
compensation and on the other hand the learned Tribunal
ought to have fastened the entire liability on the owner of
the offending vehicle. He therefore submitted that the
appeal is entitled to be allowed and the appellant is totally
exonerated from the liability to pay the compensation.
7. Per contra, learned counsel for the respondent
Nos.1 i.e., the claimant in this appeal submits that the
learned Tribunal has come to the correct conclusion and
the relief granted is in accordance with law and therefore,
there is no merit in this appeal and it is liable to be
dismissed.
8. I have given my anxious consideration to the
submissions made on both sides and I have carefully
perused the records.
9. The negligence on the part of the driver of the
offending vehicle in causing the accident is not questioned
nor is the fact that the claimant/respondent No.1 in this
MFA No. 22793 of 2010
appeal was traveling in the offending Goods Auto and
resultantly he suffered injuries in the accident.
10. Learned counsel Shri S.K. Kayakamath
appearing for the appellant/Insurance Company
strenuously contended that the ratio of the Hon'ble
Supreme Court in the case of SHIVARAJ VS. RAJENDRA
AND ANOTHER reported in (2018)10 SCC 432, is not
applicable to the present case, wherein at paragragph
No.11, it is held as under:
"11. At the same time, however, in the facts
of the present case the High Court ought to have
directed the Insurance Company to pay the
compensation amount to the appellant claimant
with liberty to recover the same from the tractor
owner, in view of the consistent view taken in that
regard by this Court in National Insurance Co. Ltd.
Vs. Swarna Singh; Mangla Ram Vs. Oriental
Insurance Co. Ltd.; Rani Vs. National Insurance
Co. Ltd., and including Manuara Khatun Vs. Rajesh
Kumar Singh. In other words, the High Court
should have partly allowed the appeal preferred by
the respondent No.2. The appellant may, therefore,
succeed in getting relief of direction to respondent
No.2 Insurance Company to pay the compensation
amount to the appellant with liberty to recover the
same from the tractor owner, respondent No.1."
11. His submission is that the clamant, apart from
the intrinsic infirmities about his claim as labourer in the
Goods Auto, was a gratuitous/unauthorized passenger and
MFA No. 22793 of 2010
therefore, a larger Bench of the Hon'ble Supreme Court
has held in 2003 that for the risks of the said
unauthorized/gratuitous passengers, the Insurance
Company is not liable to pay the compensation as such
risks are not at all covered under the Policy of Insurance.
12. The above decision as extracted, rendered by
the Hon'ble Supreme Court on 05.09.2018 has considered
various decisions and has come to the conclusion that the
proper order to be passed in cases of this nature is to
initially direct the Insurance Company to pay the
compensation and thereafter recover the said
compensation amount with interest paid thereon from the
owner of the vehicle.
13. Needless to say that the concept of 'pay and
recover' has been evolved over a period of time by the
Hon'ble Supreme Court to ensure that the third party
victims of the accidents are not left destitutes and
immediate succor should be made available to them by
issuing a direction to the Insurance Company to pay the
MFA No. 22793 of 2010
compensation and enabling the Insurance Company to
recover the same from the insured/owner.
14. Suffice it to say that much water has flown
under the bridge and it is no longer possible to put the
clock back and accede to the request of the learned
counsel Shri S.K. Kayakamath at this distance of time.
Accordingly, I do not find any merit in the contention of the
learned counsel for the appellant and I reject the same.
However, in modification of the direction of the learned
MACT fastening on the Insurance Company alone to pay
the compensation, in view of the decision of the Hon'ble
Supreme Court in SHIVARAJ VS. RAJENDRA AND
ANOTHER (Supra) a direction is required to be given in
favour of the appellant to the effect that the Insurance
Company shall in the first instance pay the compensation
amount with interest thereon and thereafter recover the
same from the owner in the same proceedings.
15. With the above observations, the appeal stands
disposed off. The amount in deposit shall be transmitted to
the learned Tribunal along with TCR forthwith. The balance
MFA No. 22793 of 2010
amount of compensation shall be deposited before the
learned Tribunal within six weeks from today for
disbursement to the claimant.
Sd/-
JUDGE
Vnp*
