Karnataka High Court

The Regional Manager vs Sandhya on 31 October, 2022

Bench: Rajendra Badamikar

                            1




       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 31ST DAY OF OCTOBER, 2022

                         BEFORE

       THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

                MFA NO.1804/2019(MV-D)
BETWEEN:

THE REGIONAL MANAGER
HDFC ERGO GIC. LTD.
LEELA BUSINESS PARK
6TH FLOOR, ANDERI, KURLA ROAD
MUMBAI-400 059
AT NOW REP. BY LEGAL MANAGER
HDFC ERGO GIC. LTD.
2ND FLOOR, NO.25/1
BUILDING NO.2
SHANKARNARAYANA BUILDING
MG ROAD, BANGALORE-560 001
                                            ... APPELLANT
(BY SRI. PRADEEP .B, ADVOCATE)

AND:

1.   SANDHYA W/O LATE B.L. NAGANNA
     AGED ABOUT 31 YEARS

2.   CHETHANA S/O LATE B.L. NAGANNA
     AGED ABOUT 10 YEARS

3.   ANKITHA D/O LATE B.L. NAGANNA
     AGED ABOUT 9 YEARS

     SINCE RESPONDENT NO.2 AND 3
     ARE MINORS THEY WILL BE
     REPRESENTED BY THEIR N/G MOTHER
     SMT. SANDHYA

     ALL ARE R/AT H. BASAVANA HALLI
                              2




     VILLAGE, HOSAKERE MAJARA
     MEDIGESHI HOBLI
     MADHUGIRI TALUK-572 085

4.   RANGASWAMAY G.B.
     S/O BASAVEGOWDA
     AGED ABOUT 53 YEARS
     R/AT 22, ANNAPOORNESHWARI
     BADAVANE, THIPPENAHALLI
     NAGASANDRA POST
     BANGALORE-560 073
                                           ... RESPONDENTS
(BY SRI. V. SRINIVAS, ADVOCATE FOR R1 TO R3,
    R2 AND R3 MINOR REPRESENTED BY R1,
    R4-SERVED)

     THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:05.12.2018
PASSED IN MVC NO.378/2016 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE, MACT, MADHUGIRI, AWARDING
COMPENSATION OF RS.10,99,000/- WITH INTEREST AT 6% P.A.
FROM THE DATE OF PETITION TILL REALIZATION.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 27.09.2022, COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                          JUDGMENT

This appeal is filed under Section 173(1) of the Motor

Vehicles Act, 1988 ('MV Act' for short) by the respondent

No.2-Insurer to set aside the judgment in MVC

No.378/2016 on the file of the Prl. Senior Civil Judge and

MACT, Madhugiri dated 05.12.2018.

2. For the sake of convenience, the parties herein

are referred as per the ranks occupied by them before the

Tribunal.

3. The brief factual matrix leading to the case are

that:

On 18.09.2015 at about 7.30 p.m., the deceased

Naganna and Ramesha were going for coolie work in a

tempo bearing registration No.KA-52-2904 at

H.Basavanahalli village. It is also alleged that at that time

the driver of the said tempo drove the tempo in a rash and

negligent manner in a reverse direction and dashed against

the deceased who was standing behind the vehicle. Due to

the impact, said Naganna fell down in to the drainage and

sustained injuries. He was shifted to Hosakere Clinic and

later on shifted to Raghavendra Nursing Home, Madhugiri,

wherein he took treatment and returned to his house. On

20.09.2015 the deceased Naganna died in the house of the

petitioners at 9.30 a.m. and later on post mortem was

conducted and his death was due to accidental injuries. The

claimants assert that deceased was aged about 33 years

and was earning Rs.20,000/- p.m. and due to his untimely

death the claimants have lost their bread earner. The

petitioner No.1 being the widow and petitioner Nos.2 and 3

are minor children are dependents and hence, they have

filed claim petition under Section 166 of the MV Act

claiming compensation of Rs.50,00,000/- with interest.

4. The respondent No.1 did not appear before the

Court. Respondent No.2 filed objection statement denying the

allegations and assertions made there under. It is contended

that the deceased was a gratuitous passenger and was

standing towards the edge of the tempo which has resulted in

accident and there is clear breach of policy conditions and

hence, they are disputing the liability.

5. The Tribunal after assessing the oral and

documentary evidence has awarded a total compensation of

Rs.10,99,000/- with interest at the rate of 6% p.a. from the

date of petition. Being aggrieved by this award, the

respondent-insurer is before this Court.

6. Heard the arguments advanced by the learned

counsel for the appellant-insurer and learned counsel for

respondents-claimants. Perused the records.

7. Learned counsel for the appellant-insurer would

contend that the records disclose that deceased was a

gratuitous passenger travelling in the tempo. He further

contended that he was not an employee in the tempo and the

tempo was there to pick up him to attend some other coolie

work. Hence, his status is nothing more than a gratuitous

passenger. They were not working in tempo and hence, he

would contend that the Tribunal has erred in fastening the

liability on insurance company. He would also assert that even

there is no order regarding pay and recovery and the

complainant was not examined in the instant case and Pw.2

was examined whose name was not referred in the complaint.

It is also asserted that his cross examination reveals that

deceased was travelling in the tempo and hence, he would

dispute the liability and prayed for allowing the appeal.

8. Per contra, the learned counsel for the

respondents-claimants would support the judgment and

award passed by the Tribunal. He would contend that

deceased was a third party as the tempo hit him while he was

standing behind the tempo, while it was driven in a reverse

direction and hence, the insurance company is liable. He

would also placed reliance on the decision of the full Bench of

this Court in the case of New India Assurance Co. Ltd. Vs.

Yallavva reported in LAWS (KAR)-2020-5-131. Hence, he

would seek for dismissing the appeal.

9. Having heard the arguments and perusing the

records, it is not under serious dispute that the deceased

Naganna died in the road traffic accident involving the

offending tempo. It is also not under serious dispute that the

tempo was insured with respondent-Insurance Company.

Admittedly it is a goods carriage vehicle and the main

contention of the appellant is that deceased was a gratuitous

passenger.

10. Though all along it is asserted by the claimants

that deceased was standing behind the tempo and tempo hit

him while taking reverse, the prosecution records clearly

establish that the deceased was travelling in the tempo by

standing on the edge of body of the tempo. This fact is again

consolidated by the cross examination of Pw.2. Hence,

undisputedly the deceased was travelling in the tempo. It is

also an undisputed fact that he was not employed by the

owner of the tempo and tempo came there to pick up him in

order to engage him in coolie work by some other person.

Hence, it is also evident that he was not employed in tempo.

On these points it is all along argued that he was a gratuitous

passenger. However, this issue has been covered by the full

Court Bench of this Court in New India Assurance Co. ltd.

vs. Yallava, wherein the full bench of this Court has clearly

held that when the deceased was a gratuitous passenger, the

Court is at liberty to pass the order fastening the liability on

insurance company with an option to pay and recover. The full

Bench of this Court in the above said case has considered the

decisions of the Hon'ble Apex Court in National Insurance

Co. Ltd. vs. Baljit Kaur and Others reported in 2004 2

SCC 1, Oriental Insurance Co. Ltd. vs. Brij Mohan and

Others reported in 2007 7 SCC 56, National Insurance

Company Limited vs. Kaushalaya Devi and Others

reported in 2008 8 SCC 246, Balbir Kaur and Others vs.

New India Assurance Company and Others reported in

2009 13 SCC 370 and number of other decisions.

11. The full bench of this Court has elaborately

discussed this issue of gratuitous passenger and also

considered the Provisions of Section 147(1)(b) and basing on

the decision of the Hon'ble Apex Court has held that though

there is breach of policy conditions the insurance company is

liable to indemnify the claimants and is at liberty to recover

the same from the owner. Even the Hon'ble Apex Court has all

along held that though there is breach of policy conditions pay

and recover order is required to be passed.

12. The full bench has also considered various other

decisions of the Hon'ble Apex Court and held that power

under Articles 141 and 142 of the Constitution of India can

also be exercised by this Court for passing an order of pay

and recovery. Hence, considering these facts and

circumstances and consistence reporting of the Hon'ble Apex

Court as well as full Court decision of this Court, it is evident

that though it is a case of gratuitous passenger, the insurance

company is liable to pay compensation to the claimants and

recover the same from the owner. In the instant case, the

Tribunal though rightly fastened the liability on the insurance

company but no order is passed regarding pay and recovery

and admittedly there is clear breach of policy conditions.

13. Further the records disclose that there is no serious

dispute regarding the quantum of compensation awarded to

the tune of Rs.10,99,000/- with interest at the rate of 6% p.a.

Looking to these facts and circumstances, the liability

fastened by the Tribunal cannot be interfered with and the

appeal can be allowed only to the extent of pay and recovery.

Hence, looking to these facts and circumstances, the appeal

needs to be allowed in part and accordingly, I proceed to pass

the following:

ORDER

i. The appeal is allowed-in-part.

ii. The judgment and award in MVC No.378/2016 on the file of the Prl. Senior Civil Judge and MACT, Madhugiri dated 05.12.2018 is confirmed holding the appellant-Insurance Company is liable to pay the compensation.