Karnataka High Court
The New India Assurance Co Ltd vs Sri George Kutty on 6 December, 2023
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MFA No. 6939 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO. 6939 OF 2014 (MV)
BETWEEN:
THE NEW INDIA ASSURANCE CO. LTD,
NO. 40, LAKSHMI COMPLEX,
OPP. VANI VILAS HOSPITAL,
K. R. ROAD, FORT, BANGALORE - 560 004,
REPRESENTED BY MOTOR T. P. APPEALS HUB,
M. G. ROAD, BANGALORE -560 001,
BY ITS DULY CONSTITUTED ATTORNEY.
...APPELLANT
(BY SRI. RAVISHANKAR C. R, ADVOCATE)
AND:
1. SRI. GEORGE KUTTY,
AGED ABOUT 60 YEARS,
S/O LATE GEEVARGHESE CHAKO,
Digitally signed by
MALA K N 2. SMT. AMMINI,
Location: HIGH COURT AGED ABOUT 56 YEARS,
OF KARNATAKA
W/O SRI GEORGE KUTTY,
BOTH ARE RESIDING AT,
KANIYAMPARAMPIL CHIRAYIL,
CHERUTHANA POST, CHERUTHANA SOUTH,
KARUVALLA, ALAPUZHA DISTRICT,
KERALA.
3. SRI BABU RAJ,
MAJOR,
S/O SRI RAJENDRAN,
R/AT THETTLE HOUSE,
-2-
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MFA No. 6939 of 2014
BHAVANINAGAR,
CHANNA NAYAKANAPALYA,
NAGASANDRA POST,
BANGALORE.
...RESPONDENTS
***
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 02.07.2012 PASSED IN MVC
NO. 5826/2005 ON THE FILE OF THE 13TH ADDITIONAL SMALL
CAUSES JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT,
BANGALORE, AWARDING A COMPENSATION OF RS. 3,07,200/-
WITH INTERST @ 6% P.A FROM THE DATE OF PETITION TILL
REALIZATION OF ENTIRE AMOUNT.
THIS APPEAL, COMING ON FOR ORDER, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal petitioners have challenged the judgment
and award dated 02.07.2012 passed in MVC No.5826/2005 by
the XIII Addl. Small Causes Judge & Member, MACT at
Bangalore (SCCH-15) ('the Tribunal' in short)
2. For the sake of convenience, the rank of the parties
to the appeal shall be referred to as per their status before the
Tribunal.
3. The brief facts of the case are, on 01.03.2005 at
about 10.00pm, the son of the petitioners, by name, Shibu
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George, the deceased, while riding the Motor Cycle bearing
Registration No.KA-01 / Q-130, as a pillion rider, on Bangalore
- Tumkur Road, Opposite Deepak Factory, T.Dasarahally,
Bengaluru, met with an accident, as Motor Cycle hit against the
foot path culvert injuring the pillion rider / deceased. He was
treated at Sarojini Hospital and then at M.S. Ramaiah Hospital,
but, he succumbed to injuries. Petitioners being the parents
have filed a petition before the Tribunal for grant of
compensation of Rs.10 lakhs. Claim was opposed by the
Insurance company. After taking evidence, the Tribunal
awarded compensation of Rs.3,66,000/-.
3.1 Aggrieved by the same Insurance company has filed
an appeal in MFA No.9747/2006. The said appeal was allowed
and the matter was remanded back to the Tribunal to consider
whether policy covers the risk of the pillion rider or not. After
the remand, the Insurance company did not appear before the
Tribunal. Hence, the Tribunal by impugned judgment allowed
the claim petition and awarded compensation of Rs.3,07,200/-,
fastening the liability against the owner and the Insurance
company.
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3.2 Seeking review of the said order Insurance
company has filed a Misc.No.225/2013, which came to be
dismissed vide order dated 19.04.2013. Hence, Insurance
company has filed this appeal on various grounds.
4. Heard arguments of learned counsel Sri C.R.
Ravishankar appearing for the Insurance company.
5. It is the contention of the learned counsel for
Insurance company that the policy issued to the Motor Cycle is
only a liability policy, in order to cover the risk of the pillion
rider, owner ought to have taken the package policy. On the
basis of liability policy, the risk of the pillion rider is not covered
as he is not a third party. Since Insurance company could not
appear before the Tribunal after the remand due to change in
address, review petition was filed under Order IX Rule 13
seeking to set aside the exparte judgment and award, which
came to be dismissed and he sought for interference.
6. I have given my anxious consideration to the
arguments addressed by the learned counsel for Insurance
company and perused the material on record.
7. Ex.P1 to 11 are the records relied upon by the
petitioners, which do not consists of the policy of insurance. In
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Miscellaneous petition Insurance company has produced a copy
of the insurance policy as per Ex.P2. On its perusal, it is clear
that the policy of insurance is only a liability policy. The
schedule of the policy clearly indicate the risk of the third party
and there is no mention about covering risk of the pillion rider
or rider. Even there is no PA cover to the owner / rider of the
Motor Cycle.
8. On perusal of the impugned judgment, the Tribunal
has recorded a finding at Para-21, that it is a Act policy. The
Tribunal did not consider whether the Act policy covers the risk
of the pillion rider. The Tribunal assigned the reason that there
is no evidence let in by the Insurance company to explain that
the Act Policy does not cover the risk of the pillion rider and
fastened the liability. Evidence is lead in Misc. No.225/2013,
explaining under what circumstances the policy can covers the
risk. Para-12 of the order in Misc. No.225/2013, the Tribunal
has specifically considered that the premium paid by the owner
at Rs.160/- for the third party and PA to owner and driver at
Rs.50/-, totally amount of Rs.210/-. The policy is not a
package policy and as such the recital of the policy clearly
express that the liability policy will not cover the risk of the
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pillion rider and for want of insurance cover, no liability can be
fastened against the Insurance company. Hence, owner of the
Motor Cycle alone is liable to pay the compensation. Hence,
the appeal merits consideration. In the result, the following
order:
ORDER
(1) Appeal is allowed in part.;
(2) The impugned judgment and award of the
Tribunal is modified.;
(3) The liability against the Insurance company is
exonerated.;
(4) The owner of the Motor Cycle is liable to pay the
entire compensation to the petitioners.;
(5) Amount in deposit shall be returned to the
Insurance company.
Sd/-
JUDGE
VK
