Karnataka High Court
The Oriental Insurance Co. Ltd vs Prakash on 26 December, 2023
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NC: 2023:KHC:47022
MFA No. 1550 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 1550 OF 2013 (MV-INJ)
BETWEEN:
THE ORIENTAL INSURANCE CO. LTD.
1ST FLOOR, VINAYAKA COMPLEX
GARDEN AREA, 1ST FLOOR, SHIMOGA
NOW REP. BY REGIONAL OFFICE, HUBLI
2ND FLOOR, "SUMANGALA COMPLEX"
LAMIGTON ROAD, HUBLI - 580 020
REP. BY ITS ASSISTANT MANAGER
SRI. BALAKRISHNA K. NAYAK ... APPELLANT
(BY SMT. PADMA S. UTTUR, ADV. FOR
SRI. ASHOK N. PATIL, ADV.)
AND:
1. PRAKASH
S/O KRISHNAPPA
AGED ABOUT 35 YEARS
AGRICULTURAL COOLIE
R/O ALADAHALLI
NEAR SOMINAKOPPA
SHIMOGA TALUK-591 266
Digitally signed by
MALA K N 2. SYED KAISAR
Location: HIGH COURT S/O SYED ANWAR
OF KARNATAKA AGED ABOUT 28 YEARS
(DRIVER OF BUS BEARING
REG.NO. KA-18/3810)
R/O HARNALLI VILLAGE
SHIMOGA TALUK - 573 122
(DL NO.640/2004-05)
3. MARHID SADIQ ALI
S/O MAHID HASSAN SAB
AGED ABOUT 35 YEARS
(OWNER OF BUS BEARING
REG.NO.KA-18/3810
R/O J.P.NAGAR, 2ND CROSS
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MFA No. 1550 of 2013
SHIMOGA - 577 202 ... RESPONDENTS
(BY SRI.LOKESH BOOVANAHALLI, ADV. FOR R1;
R2 SERVED BUT UNREPRESENTED
VIDE ORDER DATED 02.04.2018;
R3 IS HELD SUFFICIENT)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 1.09.2012
PASSED IN MVC NO.1263/2010 ON THE FILE OF THE
PRL.SENIOR CIVIL JUDGE AND MACT, SHIMOGA, AWARDING
A COMPENSATION OF RS.65,000/- WITH INTEREST AT 6%
P.A., FROM THE DATE OF PETITION TILL DEPOSIT.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 27.11.2023 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, the Insurance Company has
challenged the judgment and award dated 01.09.2012
in M.V.C.No.1263/2010 passed by the Principal Senior
Civil Judge and M.A.C.T., Shimoga ('the Tribunal' for
short).
2. For the sake of convenience, the rank of the
parties will be referred to as per their status before the
Tribunal.
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3. Brief facts of the case are, on 10.12.2009, the
petitioner boarded the bus bearing Reg.No.KA-18-3810
at Haranahalli in order to go to Nyamathi. Due to
heavy rush in the bus, the driver and conductor of the
bus asked him to board atop of the bus. On
Haranahalli-Hirekere Road, the bus was toppled, the
persons sitting in the roof-top including the petitioner
fell down from the bus and sustained injuries. After
taking treatment, the petitioner has approached the
Tribunal for grant of compensation of Rs.65,000/-.
Claim was opposed by the Insurance Company. The
Tribunal after taking the evidence, allowed the claim
petition, awarding compensation of Rs.65,000/- with
6% interest p.a., fastening the liability against driver,
owner and the Insurance Company. Aggrieved by the
same, the Insurance Company has filed this appeal on
various grounds.
4. Heard the arguments of Smt. Padma. S,
learned counsel on behalf of Sri. Ashok. N. Patil,
learned counsel for the Insurance Company and
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Sri. Lokesh Boovanahalli, learned counsel for the
petitioner.
5. It is the contention of the learned counsel for
the Insurance Company that the petitioner is a roof-
top passenger; policy issued was only liability policy,
passengers of the bus were not covered under the
policy, hence the owner has to pay the compensation.
It is further contended that the accident is tailored,
there is a delay of 15 days in filing the complaint and
he sought for interference.
6. Per contra, learned counsel for the petitioner
has contended that before the Tribunal, the Insurance
Company has not taken such a defence that the
petitioner is a roof-top passenger, the policy does not
cover such passengers, now the Insurance Company
shall not be permitted to argue the said contention and
he supported the impugned judgment.
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7. I have given my anxious consideration to the
arguments advanced on both sides and also perused
the materials on record.
8. The material on record did point out that on
10.12.2009, the accident had taken place. There is a
delay of 15 days in filing the complaint. It is the
contention of the Insurance Company that the
complaint is tailored for the purpose of compensation.
It is pertinent to note that Ex.P6/wound certificate
points out that there was an accident on 11.12.2009 at
06:30 pm, but the petitioner pleads that the accident
was on 10.12.2009. He has visited the
Mc. Gann Hospital, Shimoga with a history of road
traffic accident only on 24.12.2009. Since the owner
of the vehicle has not disputed the accident nor
challenged the same, the claim is only with regard to
liability. Hence, it is not proper to go in detail with the
validity of the accident or interfering with the
compensation determined by the Tribunal.
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9. Ex.R1/policy of insurance explains that it is
only a 'liability only policy'. On perusal of the policy, it
is pertinent to note that amount of the premium of
Rs.10,915/- was towards basic T.P. cover, Rs.100/-
was towards P.A. cover for owner-driver, Rs.15/-
towards L.L.- paid driver, conductor and cleaner,
Rs.25/- towards L.L. to employees and including
service tax of Rs.1,140/-, total amount of premium
comes to Rs.12,205/-. Policy also refers the seating
capacity of the bus as '33+2'. There is no premium
paid covering the risk of the passengers. When the
Insurance policy did not cover the risk of the
passengers, whether the Insurance Company is liable
to pay the compensation or not is the question.
10. In this regard, this Court in Divisional
Manager, United India Insurance Co. Ltd. -Vs.-
Shamaraya and others1 and other connected
matters in M.F.A.No.31781/2010 by judgment dated
22.12.2020 referring to judgment of Hon'ble Apex
M.F.A.No.31781/2010 and connected matters, decided on
22.12.2020
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Court in National Insurance Company Limited
-Vs.- Balakrishnan2 discussed about the difference
between Act Policy / statutory policy / liability only
policy and comprehensive / package policy in detail.
It has also referred to the judgment of Hon'ble Apex
Court in Oriental Insurance Company Limited
-Vs.- Sudhkaran.K.V3, Oriental Insurance
Company -Vs.- Meena Variyal and others4 held
at paragraph No.31 of its judgment that under the
Act policy / statutory policy / liability only policy, the
risk of the occupants of the jeep / car / pillion rider
is not covered. Hence, Insurance Company is not
liable to pay the compensation.
10.1. Paragraph No.31 of the judgment reads
as follows:
"31. Therefore, the ratio laid down in the Meena
Variyal's case (supra) is squarely applicable to
the present facts, circumstances involved in these
cases. Section 147 of the M.V.Act prescribes,
(2013) 1 SCC 731
2008 ACJ 2045
(2007) 5 SCC 428
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requirements of policy of insurance and limits of
liability, while in the proviso appended therete
carves cut an exception to the main provision. It
prescribes compulsorily coverage of risk to third
parties and to those who are stated in the said
provision. Therefore, unless the purchase of
insurance policy compulsorily at minimal covering
the risk of third parties, the owner cannot ply the
vehicles on road or on public places and also in
private places. Therefore, the provisions of the
M.V.Act are benevolent in nature protecting right
and interest of victims arising out of accident
particularly who are third parties. There is
compulsion on the owner for purchasing 'Act
Policy/Statutory Policy/liability only policy' but the
owner is at option to purchase insurance policy
covering more risk apart from third parties.
Therefore, for covering risk for occupant in the
car/jeep or pillion rider on the motorcycle, then
the owner has to pay additional premium.
Therefore, proof of additional premium is a pure
question of fact. Therefore, where compulsorily
purchase of insurance policy covering third
parties only the insurance policy is Act
Policy/Statutory Policy/liability only policy' but
under this 'Act Policy/Statutory Policy/ liability
only policy' the risk of occupant of the car/jeep or
pillion rider is not covered as they are not be
categorized as third parties. Therefore, by this
judgment it is held that under the 'Act
Policy/Statutory Policy/ liability only pclicy, the
risk of occupant of the jeep/car or pillion rider is
not covered hence the Insurance Company is not
liable to pay compensation in respect of death or
bodily injury occurred to the occupant of the
car/jeep or pillion rider. Therefore, under these
circumstances the appeal filed by the Insurance
Companies in the cases of putting burden on the
Insurance Companies to pay compensation, are
hereby allowed as putting burden on the
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Insurance Companies are erroneous, thus putting
burden on Insurance Companies is set-aside.
Consequently, the appeal filed by the claimants
and owners of the vehicle if they are calling in
questior exonerating the Insurance Companies
are hereby dismissed. "
11. Here in this case, admittedly, the petitioner
was a roof-top passenger, he was made to board the
roof-top of the bus at the instructions of its conductor
and driver. In order to cover the risk of the owner, he
is required to obtain a comprehensive insurance policy
by paying premium for the carrying passengers in the
bus. If the policy is a comprehensive one, then only
the liability of the Insurance Company to indemnify the
owner of the bus comes into picture. In this case,
since the owner of the bus did not pay any premium to
cover the risk of the passengers under the liability only
policy, the Insurance Company cannot be asked to
indemnify the owner.
12. On perusal of the impugned judgment, the
Tribunal did not examine the liability under
Ex.R1/liability policy. It has simply assumed that there
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is an insurance cover for the passengers of the bus and
fastened the liability against the Insurance Company to
indemnify the owner which is contrary to the material
on record and it is erroneous and unsustainable. In
the absence of policy covering the risk of the
passengers, the owner of the bus is alone liable to pay
the compensation. Hence, the appeal merits
consideration, in the result, the following:
ORDER
i) Appeal is allowed-in-part;
ii) Impugned judgment and award is
modified;
iii) The Insurance Company is exonerated
from indemnifying the owner of the bus;
iv) Respondents No.1 and 2 (owner and
driver) are jointly liable to pay the
compensation to the petitioner, they are
directed to deposit the compensation
along with interest within eight weeks
from the date of receipt of certified copy
of this judgment;
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v) The Insurance Company is entitled for
refund of the amount deposited by it.
Sd/-
JUDGE
PA
CT:HS
