M/S Oriental Insurance Company ... vs Anuradha
2023 Latest Caselaw 6716 Kant

Citation : 2023 Latest Caselaw 6716 Kant
Judgement Date : 22 September, 2023

Karnataka High Court

M/S Oriental Insurance Company ... vs Anuradha on 22 September, 2023

Bench: T G Gowda

                          1
                                           MFA.7643/2012

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 22ND DAY OF SEPTEMBER, 2023

                       BEFORE

 THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA

            MFA NO.7643 OF 2012 (MV-I)

BETWEEN:

M/S ORIENTAL INSURANCE COMPANY LIMITED
TGMA BUILDING, 1ST FLOOR, J.C. ROAD, TUMKUR
NOW REP. BY ITS REGIONAL OFFICE, NO.44/45
LEO SHOPPING COMPLEX, RESIDENCY ROAD
BANGALORE-25, REP. BY ITS AUTHORIZED SIGNATORY

                                         ... APPELLANT
(BY SRI.LAKSHMINARASAPPA, ADV. FOR
    SRI. A. M. VENKATESH, ADV.)

AND:

1.     ANURADHA
       W/O HANUMANTHARAYAPPA
       AGED ABOUT 33 YEARS
       SOPANAHALLI, HEBBUR
       HOBLI, TUMKUR TALUK

2.     RAJANNA
       S/O LINGAPPA
       NEGALALA VILLAGE
       KORATAGERE TALUK                ... RESPONDENTS

(BY SRI. N. S. NARASIMHA SWAMY, ADV. FOR R2;
    R1 SERVED AND UNREPRESENTED)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 10.2.2012
PASSED IN MVC NO.1290/2009 ON THE FILE OF PRINCIPAL
SENIOR CIVIL JUDGE & MACT-10, TUMKUR, AWARDING A
COMPENSATION OF RS.20,000/- WITH INTEREST @ 6% P.A.
FROM   THE    DATE    OF   PETITION   TILL   PAYMENT.
                           2
                                           MFA.7643/2012

     THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT   ON 07.09.2023 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 10.02.2012

passed in M.V.C.No.1290/2009 by the Principal Senior

Civil Judge and MACT-10, Tumkur ('the Tribunal' in

short).

2. For the sake of convenience, the rank of the

parties shall be referred to as per their status before

the Tribunal.

3. The brief facts of the case are, on 02.08.2009

at about 7.30 p.m., a luggage auto-rickshaw bearing

No.KA-06/A-6460 met with an accident on Tumkur-

Kunigal Road in front of the house of Dasegowda at

Nagavalli hit by a Tempo bearing No.AP-02/T-4113

damaging the auto rickshaw. The petitioner claiming

that she got the auto rickshaw repaired by spending

Rs.29,275/- and Rs.20,000/- towards transportation

MFA.7643/2012

charges and Rs.25,000/- towards loss of income and

sought for award of Rs.75,000/-. The claim was

opposed by the owner of the Tempo denying the

accident and liability to pay compensation on the

ground that the Tempo is insured with second

respondent/Insurance Company, in case of any award,

the same has to be indemnified by the Insurance

Company. After taking the evidence, the Tribunal by

the impugned judgment partly allowed the claim

petition awarding compensation of Rs.20,000/-.

4. Aggrieved by the same, the Insurance

Company has filed this appeal on the ground that the

Tribunal has not properly appreciated the evidence in

attributing complete negligence against the Tempo

even though the Auto-rickshaw is also responsible for

the occurrence of the accident. The driver of the

Tempo did not possess valid driving licence. There is a

violation of terms and conditions of the policy. The

Tribunal has fastened complete liability against the

Insurance Company as it has liability only to the extent

MFA.7643/2012

of Rs.6,000/- and it being the Act policy, no additional

premium is also paid.

     5.       Heard          the       arguments           of

Sri.Lakshminarasappa,        learned   counsel     for    the

appellant/insurer      and   Sri.N.S.Narasimha      Swamy,

learned counsel for respondent No.2.

6. It is the contention of the learned counsel for

the Insurance Company that though on behalf of the

Insurance Company, no written statement was filed,

the Insurance Company can take up the contention

which is purely a point of law. According to him, the

policy issued was only an Act policy, the liability under

the policy is only Rs.6,000/- and it has to be restricted

to that extent only.

7. Per contra, learned counsel for the insured

contended that the claim made is by a third party. The

policy covers the entire risk of the insured and sought

for fastening of entire liability against the Insurance

Company.

MFA.7643/2012

8. I have given my anxious consideration to the

arguments advanced on both sides and also perused

the materials on record.

9. Admittedly, before the Tribunal, the claim was

not contested by the Insurance Company by filing the

written statement, for the first time in the appeal, the

grounds have been taken up. The copy of the

insurance policy is not made available to explain the

restriction on the limit of Rs.6,000/- to a third party to

claim property damages in case of accident. On behalf

of the Insurance Company, there is no evidence

available before the Tribunal and therefore, the plea of

contributory negligence alleged against the auto

rickshaw cannot be considered. The owner of the

Tempo has categorically stated that the driver of the

Tempo holds a valid driving licence and the insurance

policy covers the entire risk of the vehicle in respect of

third party damages. Hence, same is also not

substantiated before this Court.

MFA.7643/2012

10. As regards assessment of compensation is

concerned, the nature of damages that the auto

rickshaw sustained has been explained in the charge

sheet as well as the FIR. There are four repair bills

produced before the Tribunal. On its basis, global

compensation of Rs.20,000/- is assessed. On perusal

of the impugned judgment, the Tribunal has just

carried away with Ex.P3. The damage sustained by the

auto rickshaw has not been explained by producing the

Motor Vehicle Inspector's report nor any material is

placed before the Court to explain the kind of damages

which requires repairs, spare parts, so also idle period

for repair. Unless these aspects are explained, it will

not be possible to assess the compensation in a case of

this nature.

11. In this appeal, the Insurance Company has

come up with a specific plea that there is a

contributory negligence. It is pertinent to note that

there is no proof of damages, no evidence is placed to

assess the damages and its liability is only to the

MFA.7643/2012

extent of Rs.6,000/-. These are the aspects, which

cannot be answered now in this appeal and therefore,

the reasonable opportunity has to be given to the

Insurance Company to place the objection statement

and also to place the evidence before the Tribunal

explaining its contentions. Therefore, the matter

requires re-consideration. Hence, it is a fit case for

remand and in the result, I pass the following:

ORDER

i) The appeal is allowed.

ii) The impugned judgment is set aside.

iii) The matter is remanded back to the Tribunal to afford an opportunity to both parties to lead evidence and to decide the claim afresh in accordance with law.