The Oriental Insurance Co., Ltd vs Richard S/O. Coustance D Souza
2023 Latest Caselaw 9531 Kant

Karnataka High Court

The Oriental Insurance Co., Ltd vs Richard S/O. Coustance D Souza on 6 December, 2023

Author: Hanchate Sanjeevkumar

Bench: Hanchate Sanjeevkumar

                                         -1-
                                               NC: 2023:KHC-D:14327
                                                  MFA No. 24251 of 2011




                         IN THE HIGH COURT OF KARNATAKA,
                                 DHARWAD BENCH

                    DATED THIS THE 6TH DAY OF DECEMBER, 2023

                                      BEFORE

                 THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

                 MISCELLANEOUS FIRST APPEAL NO.24251/2011(MV-I)

            BETWEEN:

            THE ORIENTAL INSURANCE COMPANY LIMITED,
            DHARWAD BRANCH, BY ITS DIVISIONAL OFFICE,
            ENKAY COMPLEX, KESHWAPUR, HUBBALLI,
            DIST: DHARWAD, REPRESENTED BY IT'S
            ASST. MANAGER, REGIONAL OFFICE,
            SUMANGALA COMPLEX, LAMINGTON ROAD,
            HUBBALLI - 580 029.
                                                            ...APPELLANT
            (BY SRI G. N. RAICHUR, ADVOCATE)
            AND:

            1.   SRI RICHARD S/O. COUSTANCE D' SOUZA,
                 AGE: 34 YEARS, OCC: PRIVATE SERVICE,
                 R/O: NIRMAL NAGAR, DANDELI,
                 TQ: HALIYAL, DIST: KARWAR(N.K),
                 NOW R/O: CHANNAPETH, HUBBALLI.
Digitally
signed by
SUJATA      2.   SRI M. M. KADKANY,
SUBHASH          AGE: MAJOR, OCC: OWNER,
PAMMAR
                 R/O: GANDHI CHOWK, OLD DANDELI,
                 TQ: HALIYAL, DIST: UTTARA KANNADA.
                                                         ...RESPONDENTS
            (BY SRI AHAMED ALI RAHIMAN SHAH
            AND S.B.KUMBAR, ADVOCATES FOR R1;
            R2 IS SERVED)

                 THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
            VEHICLES ACT, 1988, SET ASIDE THE JUDGMENT AND AWARD
            DATED 23.03.2011 PASSED BY THE COURT OF THE ADDITIONAL
            MOTOR ACCIDENT CLAIMS TRIBUNAL, YELLAPUR, SITTING AT
            HALIYAL IN MVC NO.50/2009, BY ALLOWING THIS APPEAL WITH
            COST AND ETC.,
                                 -2-
                                      NC: 2023:KHC-D:14327
                                         MFA No. 24251 of 2011




     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:



                        JUDGMENT

The appeal is filed by the insurance company

challenging the liability fastened on it to pay

compensation.

2. The factum of accident and injury sustained by

the claimant are not disputed. The only disputed fact is

that whether the Tata Sumo vehicle was used for hire and

reward basis and thus the insurance company is liable to

pay compensation or not.

3. Heard arguments from both sides and perused

the material placed on record.

4. In the present case, it is case of the claimant

that on 18.12.2000 he was traveling in the Tata Sumo

vehicle from Sirigur to Dandeli and said vehicle was met

with the accident and claimant sustained injuries. The

appellant/insurance company is denying the claim that the

Tata Sumo vehicle was used for hire and reward basis and

NC: 2023:KHC-D:14327

hence, there is a violation of conditions of insurance

policy. Thus, the insurance company is not liable to

indemnify the owner and to pay compensation. For

proving this aspect, the appellant has produced documents

at Ex.R.2 and R.3 before the tribunal, which are certified

copies of deposition of owner of the Tata Sumo vehicle in

Criminal case and certified copy of judgment before the

District Consumer Forum. In Ex.R.2 deposition before the

Criminal Court is for the very same accident. She has

deposed that she was using the Tata Sumo vehicle for hire

and reward basis and Tata Sumo vehicle is a private

vehicle. Ex.R.3 is the judgment copy of the District

Consumer Forum, in which, the Forum has categorically

discussed and gave finding that Tata Sumo vehicle was

used on hire and reward basis and it is a private vehicle.

Thus, denied to grant damages to the owner of the Tata

Sumo vehicle. These two documentary evidences prove

that the Tata Sumo vehicle is a private vehicle and was

used for hire and reward basis. Hence, there is violation of

conditions of insurance policy. Thus, the insurance

NC: 2023:KHC-D:14327

company is not liable to indemnify the owner and pay

compensation to the claimant since it is proved that

conditions of insurance policy is violated. Therefore, the

owner of the Tata Sumo vehicle is liable to pay

compensation. Hence, I proceed to pass the following:

ORDER

i) The appeal is allowed.

ii) The judgment and award passed in MVC No.50/2009 dated 23.03.2011 by the Additional MACT, Yellapur, sitting at Haliyal, stands modified holding that respondent No.2/owner of the Tata Sumo vehicle shall pay compensation to the claimant. The appellant insurance company is exonerated from the payment of compensation.

iii) The amount in deposit shall be refunded to the appellant/insurance company.

SD/-

JUDGE SSP

CT-ASC