Chandakant Parappa Gandroli vs Gangawwa W/O Shankar Patil
2022 Latest Caselaw 11735 Kant

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                                      MFA No. 22219 of 2013


      IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

         DATED THIS THE 12TH DAY OF SEPTEMBER, 2022

                          BEFORE

            THE HON'BLE MR. JUSTICE H.P.SANDESH

     MISCELLANEOUS FIRST APPEAL NO.22219 OF 2013 (MV-D)

BETWEEN:

CHANDAKANT PARAPPA GANDROLI,
AGE:40 YEARS, OCC: BUSINESS,
R/O.BADAKUNDRI, TQ: GOKAK,
DT: BELGAUM.
                                                ...APPELLANT
                [BY SRI B.M. PATIL, ADVOCATE]
AND:

1.    SMT. GANGAWWA,
      W/O SHANKAR PATIL,
      AGE: 40 YEARS,
      OCC: HOUSE HOLD WORK,
      R/O: NARASINGPUR,
      TQ: HUKKERI, DT: BELGAUM.

2.    SRI PRAKASH SHANKAR PATIL,
      AGE: 27 YEARS, OCC: NIL,
      R/O.NARASINGPUR, TQ: HUKKERI,
      DT: BELGAUM.

3.    SMT. SHARAWWA,
      W/O MAHALINGAPPA PATIL,
      AGE: 70 YEARS, OCC: NIL,
      R/O.NARASINGPUR,
      TQ: HUKKERI, DT: BELGAUM.

4.    THE DIVISIONAL MANAGER,
      NEW INDIA ASSURANCE CO.LTD.,
      CLUB ROAD, BELGAUM INSURANCE OF
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                                     MFA No. 22219 of 2013


     (TEMPO TRAX BEARING NO.KA-23/M-3716
     POLICY NO.151201/31/07/02/00005775
     VALIDITY FROM 11-09-2007 TO 10-09-2008
     POLICY ISSUED BY
     ITS KOLHAPUR BRANCH).

5.   SHRI MARUTI BALAPPA JANJI,
     SINCE DECEASED BY HIS LRS.

A.   BASAVARAJ MARUTI JANJI,
     AGE: 42 YEARS,
     OCC: AGRICULTURE,
     R/O.YAMAKANMARADI,
     TQ: HUKKERI.

B.   SURESH MARUTI JANJI,
     AGE: 36 YEARS,
     OCC: AGRICULTURE,
     R/O.YAMAKANMARADI,
     TQ: HUKKERI.

C.   SHRIDHAR MARUTI JANJI,
     AGE: 30 YEARS,
     OCC: AGRICULTURE,
     R/O.YAMAKANMARADI,
     TQ: HUKKERI.

     SINCE DECEASED,
     R-5(A) AND (B) ARE TREATED AS
     LRS OF R-5(C).

                                              ...RESPONDENTS
      [BY SRI SRINAND A. PACHHAPURE, ADVOCATE FOR
                        R-1 AND R-3,
        SRI RAJASHEKAR S. ARANI, ADVOCATE FOR R-4,
        SRI MRUTYUNJAYA TATA BANGI, ADVOCATE FOR
                     R-5(A) AND R-5(B),
      R-5(A) AND R-5(B) ARE TREATED AS LRS OF R-5(C)]

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED 24.01.2012
PASSED IN MVC NO.478/2009 ON THE FILE OF THE PRESIDING
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                                        MFA No. 22219 of 2013


OFFICER, FAST TRACK COURT AND MEMBER, MACT, HUKKERI,
AWARDING THE COMPENSATION OF Rs.4,21,000/- WITH INTERST
AT THE RATE OF 6% PER ANNUM FROM THE DATE OF PETITION
TILL REALISATION.

                       JUDGMENT

Heard the learned counsel for the appellant and the

learned counsel for the respondents.

2. The claimants made the claim before the Tribunal

that the deceased Shankar Patil was going in Tempo Trax on

13.06.2008 along with his friends and the driver drove the

vehicle in a rash and negligent manner and he lost the control

over the vehicle and dashed to the front going tractor and

trailer and as a result, Shankar Patil, who sustained injuries,

succumbed to the injuries and hence claim was made before

the Tribunal. The respondent Nos.1 to 3 appeared through

their independent advocates and though several opportunities

were given to respondent No.1, he did not file objections to the

main petition. The respondent No.2 has filed the written

statement denying the claim made by the claimants. The

claimants in order to substantiate their case, examined two

witnesses as P.W.1 and P.W.2 and got marked the documents

at Exs.P.1 to 9. On the other hand, the respondents examined

MFA No. 22219 of 2013

one witness as R.W.1 and also produced the copy of the policy

as Ex.R.1. The Tribunal after considering the material on

record, allowed the claim petition granting compensation of

Rs.4,21,000/- with 6% interest and directed respondent No.1

owner to deposit the entire compensation amount and

exonerated the liability of respondent Nos.2 and 3. Hence, the

present appeal is filed by the owner/insured.

3. The main contention of the appellant/owner is that

the Tribunal ought to have dismissed the claim petition on the

ground that there is a delay of one day in lodging the complaint

and the said vehicle tempo trax is not at all involved in the

accident. The police have wrongly charge-sheeted the driver of

the tempo trax and the evidence of P.W.2 reveals that there is

another vehicle which is involved in the accident i.e., tractor

and trailer. There is a contributory negligence on the part of

the tractor and trailer also. The Tribunal ought not to have

saddled the liability on the insurer of the vehicle, since the

vehicle was insured with respondent No.4.

4. The learned counsel in support of his arguments

relied upon the judgment of the Apex Court in the case of

MFA No. 22219 of 2013

MOHANA KRISHNAN S. v. K. BALASUBRAMANIYAM AND

OTHERS reported in 2022 Live Law (SC) 726 and submits

that in a case of "act only" policy, the Apex Court regarding

liability is concerned whether pillion rider comes within the

meaning of third party, the notice has been ordered and to

constitute larger bench to consider the question of law. The

learned counsel in support of his arguments submits that this

order was passed on 25.08.2022 and the matter is still pending

before the Apex Court for consideration of similarly placed

matter in connection with "act only policy".

5. Per contra, the learned counsel for the respondent

Insurance Company would submit that the Tribunal has taken

note of the fact that in terms of the policy, it is a "act only

policy" and the same is found in document Ex.R.1 that it is a

private car policy, a liability only policy and no separate

premium is paid in respect of the inmates of the car. The

learned counsel also brought to the notice of this Court, the

schedule of premium, TP basic and compulsory PA to owner-

cum-driver premium was collected and no separate premium is

paid in respect of the inmates and the policy is only liability

MFA No. 22219 of 2013

only policy and hence the liability cannot be fastened on the

Insurance Company and the Tribunal rightly fastened the

liability on the insured. The learned counsel in support of his

arguments, placed the order dated 16.04.2019 passed in

Special Leave Petition (Civil) Diary No.36722/2019, wherein the

judgment in the cases of NATIONAL INSURANCE CO. LTD.,

v. BALAKRISHNAN reported in (2013) 1 SCC 731 and

JAGTAR SINGH ALIAS JAGDEV SINGH v. SANJEEV KUMAR

AND OTHERS reported in (2018) 15 SCC 189 are also

referred, since the insurance policy was an "act only policy" and

not a "comprehensive package policy" and the insurer was not

liable for the injuries which were sustained by the pillion rider.

However, condoned the delay and notice was also ordered.

6. In the case on hand, admittedly, the deceased was

travelling in the tempo trax and the policy, which is marked as

Ex.R.1 discloses that it is a "act only policy" and no separate

premium is paid in respect of inmates of the car and the Apex

Court in Balakrishnan's case (supra) held that if it is a "act

policy", inmates are not liable to be indemnified and merely

because the matter is referred to larger bench in Mohana

MFA No. 22219 of 2013

Krishnan's case (supra) as referred by the learned counsel for

the appellant and the same is in respect of pillion rider is

concerned whether he comes within the purview of third party

or not. In the case on hand, admittedly the claimant was the

occupant in the car in which he has proceeding which met with

an accident. On perusal of the policy in respect of the vehicle

in which he was travelling, no separate premium is collected in

respect of inmates of the car. The Apex Court in the case of

Balakrishnan's case (supra) held that if no separate premium

is paid, the inmates are not entitled to claim any compensation

when the policy is "act only policy". On perusal of Ex.R.1

policy, only TP third party premium was collected and only

compulsory PA to owner-cum-driver to the extent of Rs.2 lakhs

is collected and the policy was issued and no premium is

collected in respect of the inmates of the car and when such

being the material on record and when the car is also a private

car, the question of directing the Insurance Company to pay

the compensation does not arise.

7. The present appeal is filed by the owner/insured

and it is not the case of the appellant/insured that premium

MFA No. 22219 of 2013

was collected covering the risk of the inmates of the car. When

such being the case, I do not find any force in the contention of

the learned counsel for the appellant that liability has to be

fastened on the Insurance Company and there is no need to

keep the matter pending only because the matter is referred to

larger bench in respect of pillion rider is concerned whether he

is a third party or not and here is a case, where the inmate had

sustained injury and he succumbed to the injuries. Hence, I do

not find any force in the contention of the learned counsel for

the appellant and there is no any merit in the appeal.

8. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is dismissed.

(ii) The amount deposited by the appellant is ordered to be transferred to the Tribunal forthwith.

Sd/-

JUDGE

MD