Karnataka High Court
The Branch Manager vs Shri Firoz on 27 October, 2023
Bench: T G Gowda
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MFA 3539/2016 C/W
MFA 3536/2016 &1758/2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA
MFA NO.3539 OF 2016 C/W MFA NOS.3536 OF 2016
(MV-D) & 1758 OF 2017 (MV-I)
IN MFA NO.3539 OF 2016
BETWEEN:
THE BRANCH MANAGER
THE NEW INDIA ASSURANCE
COMPANY LIMITED, BRANCH OFFICE,
I FLOOR, BH ROAD, TUMKUR SHOPPING
COMPLEX, TUMKUR-572 101
REP. BY THE MANAGER,
REGIONAL OFFICE (MOTOR TP HUB)
THE NEW INDIA ASSURANCE
COMPANY LIMITED
MAHALAKSHMI CHAMBERS
NO.9, M.G. ROAD
BANGALORE-560 001 ... APPELLANT
(BY SRI G.S.MARULAIAH, ADV.)
AND:
1. SMT. PARVEEN TAJ
WIFE OF SHRI SYED MUSTAFA
AGED ABOUT 59 YEARS
2. SHRI FIROZ
SON OF SHRI SYED MUSTAFA
AGED ABOUT 38 YEARS
3. SHRI SYED AFROZ
SON OF SHRI SYED MUSTAFA
AGED ABOUT 35 YEARS
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MFA 3539/2016 C/W
MFA 3536/2016 &1758/2017
4. SHRI SYED TABARAJ
SON OF SHRI SYED MUSTAFA
AGED ABOUT 33 YEARS,
5. SHRI. SYED TAJAMULL
SON OF SHRI SYED MUSTAFA
AGED ABOUT 31 YEARS
6. MS NAZIYA KHOUSAR
D/O SYED MUSTAFA
AGED ABOUT 27 YEARS
ALL ARE R/AT DEVARAYANADURGA ROAD
NEAR DARGA, SIRA GATE
TUMKUR TOWN-572 106
7. SHRI. MAHAMMED SHAHID PASHA
S/O MOHAMMED ARIFF PASHA
AGED ABOUT 45 YEARS,
R/O. RANGANATHAPURA VILLAGE,
NAGAVALLI POST, HEBBUR HOBLI,
TUMKUR TALUK-572 120 ... RESPONDENTS
(BY SRI RAMESH KUMAR R. V., ADV. FOR R1 TO T6;
R7 SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 01.01.2016
PASSED IN MVC NO.705/13 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE & MACT-10, TUMKURU, AWARDING
COMPENSATION OF RS.3,25,000/- WITH INTEREST AT 6%
P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN MFA NO.3536 OF 2016
BETWEEN:
THE BRANCH MANAGER
THE NEW INDIA ASSURANCE
COMPANY LIMITED, BRANCH OFFICE
1ST FLOOR, BH ROAD, TUMKUR SHOPPING
COMPLEX, TUMKUR-572 101
REP. BY THE MANAGER,
REGIONAL OFFICE (MOTOR TP HUB)
THE NEW INDIA ASSURANCE
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MFA 3539/2016 C/W
MFA 3536/2016 &1758/2017
COMPANY LIMITED
MAHALAKSHMI CHAMBERS
NO.9, M.G. ROAD
BANGALORE-560 001 ... APPELLANT
(BY SRI G.S.MARULAIAH, ADV.)
AND:
1. SHRI FIROZ
SON OF SHRI SYED MUSTAFA
AGED ABOUT 38 YEARS
2. SMT.MAHABOOB BEE
W/O SHRI FIROZ
AGED ABOUT 31 YEARS
BOTH ARE R/AT DEVARAYANADURGA ROAD
NEAR DARGA, SIRA GATE
TUMKUR TOWN-572 106
3. SHRI. MAHAMMED SHAHID PASHA
S/O MOHAMMED ARIFF PASHA
AGED ABOUT 45 YEARS,
R/O. RANGANATHAPURA VILLAGE
NAGAVALLI POST, HEBBUR HOBLI,
TUMKUR TALUK-572 120 ... RESPONDENTS
(BY SRI RAMESH KUMAR R. V., ADV. FOR R1 & R2;
R3 SERVED BUT UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 01.01.2016
PASSED IN MVC NO.704/13 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE & MACT-10, TUMKURU, AWARDING
COMPENSATION OF RS.2,40,000/- WITH INTEREST AT 6%
P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN MFA NO.1758 OF 2017
BETWEEN:
THE NEW INDIA ASSURANCE
COMPANY LIMITED, BRANCH AT 1ST FLOOR
TUMKUR SHOPPING COMPLEX, B.H.ROAD
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MFA 3539/2016 C/W
MFA 3536/2016 &1758/2017
TUMKUR-572 101. REP. BY THE MANAGER
THE NEW INDIA ASSURANCE COMPANY
LIMITED, 2ND FLOOR
MAHALAKSHMI CHAMBERS
NO.9/2, M.G. ROAD
BANGALORE-560 001 ... APPELLANT
(BY SRI G.S.MARULAIAH, ADV.)
AND:
1. SMT.AYESHA
W/O SHRI SYED TABAREZ
AGED ABOUT 22 YEARS
RESIDING NEAR MASJID
DEVARAYANADURGA ROAD
SIRA GATE, TUMKUR -572 101
2. SHRI. MAHAMMED SHAHID PASHA
S/O MOHAMMED ARIF PASHA
AGED ABOUT 47 YEARS
R/O. RANGANATHAPURA VILLAGE
NAGAVALLI POST, HEBBUR HOBLI,
TUMKUR TALUK & DISTRICT-572 118 ... RESPONDENTS
(BY R1 & R2 ARE SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 15.11.2016
PASSED IN MVC NO.1097/2015 ON THE FILE OF THE VI
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MEMBER,
ADDITIONAL MACT, TUMAKURU, AWARDING COMPENSATION
OF RS.74,000/- WITH INTEREST AT 7.5% P.A., FROM THE
DATE OF PETITION TILL REALIZATION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 29.09.2023 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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MFA 3536/2016 &1758/2017
JUDGMENT
In these appeals, the Insurance Company has
challenged the liability fastened against it by the
Tribunal.
(i) M.F.A.No.3536/2016 and 3539/2016 are
arising out of the common judgment dated
01.01.2016 passed in M.V.C.No.704/2013 and
705/2013 by the Principal Civil Judge and M.A.C.T-X,
Tumkur.
(ii) M.F.A.No.1758/2017 is arising out of
judgment dated 15.11.2016 in M.V.C.No.1097/2015
passed by the VI Addl. District and Sessions Judge
and M.A.C.T., Tumkur.
2. For the sake of convenience, the parties
shall be referred to as per their status before the
Tribunal.
3. Brief facts of the case are, one Syed
Mustafa, the husband of the 1st petitioner, father of
MFA 3539/2016 C/W
MFA 3536/2016 &1758/2017
petitioners No.2 to 6 in M.V.C.No.705/2013 while
returning home from Doodh Darga along with his
family members in a tata sumo bearing Reg.No.KA-
33-2320 at about 01:00 pm on Sirigere Bendematti
Cross, met with an accident and succumbed to death
at the spot along with 2½ year old Habeeba, child of
the petitioners in M.V.C.No.704/2013 and other
inmates have sustained the injuries including the
petitioner in M.V.C.No.1097/2015. The petitioners
have approached the Tribunal for compensation.
Claim was opposed by the Insurance Company. The
Tribunal after taking the evidence, by impugned
judgment awarded compensation of Rs.2,40,000/- in
M.V.C.No.704/2013, Rs.3,25,000/- in M.V.C.No.
705/2013 and Rs.74,000/- in M.V.C.No.1097/2015
and directed the Insurance Company to pay the
compensation. Aggrieved by the same, the
Insurance Company has filed these appeals on
various grounds.
MFA 3539/2016 C/W
MFA 3536/2016 &1758/2017
4. Heard the arguments of Sri. G.S. Marulaiah,
learned counsel for the Insurance Company and Sri.
Ramesh Kumar. R.V, learned counsel for the
petitioners.
5. It is the contention of learned counsel for the
Insurance Companies that the tata sumo was
covered with only act policy and there is no
insurance coverage to the inmates of the tata sumo.
The Tribunal has committed error in fixing the
liability against the Insurance Company and sought
for interference.
6. Per contra, learned counsel for the
petitioners has contended that the driver of the tata
sumo was holding valid driving licence, the tata
sumo is covered with the third-party liability, the
deceased as well as the injured being the passengers
of the tata sumo are the third-parties, the Tribunal
has rightly concluded that the Insurance Company
MFA 3539/2016 C/W
MFA 3536/2016 &1758/2017
having liability to indemnify the insured for the third-
party liability and he supported the impugned
judgment.
7. I have given my anxious consideration to the
arguments addressed on both sides and also perused
the materials on record.
8. There is no dispute as to the accident, cause
of the accident, death of minor child, deceased Syed
Mustafa and petitioner Ayesha sustaining injuries in
the accident and entitlement of the petitioners to
claim compensation. The Insurance Company has
not challenged the quantum of compensation and
the petitioners have not filed any appeal seeking
enhancement of compensation. Hence, the question
of quantum of compensation does not arise.
9. The precise point is liability on part of the
Insurance Company to indemnify the insured.
Admittedly, the tata sumo was covered with third-
MFA 3539/2016 C/W
MFA 3536/2016 &1758/2017
party insurance. Whether this third-party insurance
covers the inmates of the tata sumo or not is to be
considered. The Tribunal in the impugned judgment
referred that the tata sumo is covered with the third-
party insurance, the injured and the deceased were
inmates of the tata sumo, they come within the
purview of third-parties and Insurance Company is
liable to pay the compensation.
10. RW-1 A. Devendra Prasad is the Officer of
the Insurance Company. His testimony asserts that
claim by the petitioners is not covered under the
policy. Ex.R2 is captioned as "Private Car Liability
Policy". The amount of premium collected is
Rs.2,903/- for a third-party coverage apart from the
service tax. So it is clear that there is no
comprehensive package insurance for the vehicle
and it is liability policy only.
MFA 3539/2016 C/W
MFA 3536/2016 &1758/2017
11. This Court in Divisional Manager, United
India Insurance Co. Ltd. -Vs.- Shamaraya and
others and other connected matters in
M.F.A.No.31781/2010 by judgment dated
22.12.2020 referring to judgment of Hon'ble Apex
Court in National Insurance Company Limited -
Vs.- Balakrishnan 1 discussed that about the
difference between Act Policy/
statutory policy/liability only policy and
comprehensive/package policy in detail. It is also
referred to the judgment of Hon'ble Apex Court in
Oriental Insurance Company Limited -Vs.-
Sudhkaran.K.V2, Oriental Insurance Company -
Vs.- Meena Variyal and others3 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
(2013) 1 SCC 731
2008 ACJ 2045
(2007) 5 SCC 428
MFA 3539/2016 C/W
MFA 3536/2016 &1758/2017
pay the compensation. 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,
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
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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
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. "
12. Now here in this case, the injured and the
deceased are the inmates of the tata sumo. Ex.R2 is
only the 'liability only policy', it points out non-
payment of additional premium to cover the inmates
of the tata sumo. Hence, the principles laid down
above are aptly applicable to the facts and
circumstances of this case. The insured as well as
the deceased being the inmates of tata sumo, policy
of insurance will not cover their risk and therefore,
Insurance Company has no liability to indemnify the
insured.
13. Hence, the compensation arising out of this
unfortunate accident has to be paid by the owner of
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MFA 3536/2016 &1758/2017
tata sumo. Hence, the finding recorded by the
Tribunal in fastening the liability against the
Insurance Company is contrary to the terms of policy
of insurance obtained by the owner of tata sumo.
Hence, impugned judgments call for interference.
Hence, all these appeals merit consideration, in the
result, the following:
ORDER
i) All the appeals are hereby allowed-in-
part.
ii) Impugned judgment and award is
hereby modified to the extent of
liability of the Insurance Company.
iii) The appellant/Insurance Company is
exonerated from the payment of
compensation.
iv) The owner of the tata sumo is directed
to deposit the compensation within four
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weeks from the date of receipt of
certified copy of this judgment.
v) Rest of the judgment of the Tribunal is
kept intact.
vi) Amount in deposit, if any, shall be
refunded to the Insurance Company.
Sd/-
JUDGE
PA
CT:HS
