Karnataka High Court
Sri Lakshmana vs Sri Venkatesh on 16 February, 2024
-1-
NC: 2024:KHC:6757
MFA No. 8332 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO.8332 OF 2015 (MV-D)
BETWEEN:
1. SRI LAKSHMANA
S/O KENCHAPPA,
AGED ABOUT 50 YEARS,
2. SMT ANNAPOORNAMMA
W/O SRI LAKSHMANA
AGED ABOUT 43 YEARS
Digitally signed BOTH ARE R/O KARILAKKENAHALLI VILLAGE,
by BHARATHI DAVANAGERE TALUK & DIST-577002
S
Location: HIGH ...APPELLANTS
COURT OF
KARNATAKA (BY SMT. SREE VIDYA G.K., ADVOCATE)
AND:
1. SRI VENKATESH
GALAGANATH,
RAJENDRANAGARA
HAVERI-577101
2. M/S THE UNITED INDIA
INSRANCE CE LTD
DIVISIONAL OFFICE,
MMK COMPLEX,
AKKAMAHADEVI ROAD
P J EXTENSION
DAVANAGERE-577002
...RESPONDENTS
(BY SRI. P B RAJU, ADVOCATE FOR R2;
-2-
NC: 2024:KHC:6757
MFA No. 8332 of 2015
R-1 SERVED AND UNREPRESENTED)
THIS MFA FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 27.04.2015
PASSED IN MVC.NO.945/2010 ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE AND MACT-V, DAVANAGERE
BE MODIFIED BY GRANTING COMPENSATION AS CLAIMED IN
THE CLAIM PETITION AND THIS MISCELLANEOUS FIRST
APPEAL MAY BE ALLOWED WITH COSTS.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The above appeal is filed by the claimants challenging
the order dated 27.04.2015 passed in MVC No.945/2010 on
the file of I Additional Senior Civil Judge and MACT V,
Davanagere1.
2. For the sake of convenience, the parties herein
are referred as per their ranking before the Tribunal.
3. The relevant facts necessary for consideration of
the present appeal are that the claimants instituted a claim
petition claiming compensation for the death of one
Hanumanthappa2, in a road traffic accident which occurred
on 08.04.2001. The Tribunal by its judgment and award
Hereinafter referred to as the 'Tribunal'
Hereinafter referred to as the 'Deceased'
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dated 07.10.2011 had allowed the claim petition and
awarded a sum of `2,65,000/- together with interest at 6%.
4. Being aggrieved the insurer preferred MFA
No.38/2012 c/w MFA Crob.60/2012. This Court by order
dated 10.06.2014 passed the following order:
"MFA No.38/2012 is accepted. The impugned
award is set aside. The matter is remanded to
Tribunal to record a finding on the question
whether deceased was traveling in the insured
vehicle as the owner of goods at the time of
accident. The Tribunal need not consider the other
aspects. The amount deposited by Insurance
Company shall be refunded to it. In view of
decisions in MFA No.38/2012,
MFA.CROB.No.60/2012 does not survive for
consideration for the present".
5. Pursuant to remand made vide order dated
10.06.2014 the Tribunal by its order dated 27.04.2015
recorded its findings in the negative that deceased was
traveling in the vehicle insured as the owner of the goods.
Being aggrieved the present appeal is filed.
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6. Learned counsel for the appellants-claimants
submits that having regard to the judgment of the Hon'ble
Supreme Court in the case of MANURA KHATUN AND
OTHERS VS. RAJESH KUMAR SINGH AND OTHERS3 the
insurer is liable to pay the compensation awarded with
liberty to recover the same from the owner of the vehicle.
7. Learned counsel for respondent No.2-insurance
company does not dispute the legal position as held in the
case of "MANURA KHATUN AND OTHERS VS. RAJESH
KUMAR SINGH AND OTHERS3
8. The Hon'ble Supreme Court in the case of
"MANURA KHATUN AND OTHERS VS. RAJESH KUMAR
SINGH AND OTHERS3" held as follows:
13. The only question, which arises for
consideration in these appeals, is whether the
appellants are entitled for an order against the
insurer of the offending vehicle i.e. (Respondent 3)
to pay the awarded sum to the appellants and then
to recover the said amount from the insured
(2017) 4 SCC 796
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(owner of the offending vehicle Tata Sumo)
Respondent 1 in the same proceedings.
15. This question also fell for consideration
recently in National Insurance Co.Ltd. v.Saju
P.Paul wherein this Court took note of entire
previous case law on the subject mentioned above
and examined the question in the contest of
Section 147 of the Act. While allowing the appeal
filed by the insurance company by reversing the
judgment of the High Court, it was held on facts
that since the victim was traveling in offending
vehicle as "gratuitous passenger" and hence, the
insurance company cannot be held liable to suffer
the liability arising out of accident on the strength
of the insurance policy. However, this Court
keeping in view the benevolent object of the Act
and other relevant factors arising in the case,
issued the directions against the insurance
company to pay the awarded sum to the claimants
and then to recover the said sum from the insured
in the same proceedings by applying the principle
of a "pay and recover".
21. In view of the foregoing discussion, we
are of the view that the direction to United India
Insurance Co.Ltd. (Respondent 3) they being the
insurer of the offending vehicle which was found
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involved in causing accident due to negligence of
its driver needs to be issued directing them (United
India Insurance Co. Ltd. Respondent 3) to first pay
the awarded sum to the appellants (claimants) and
then to recover the paid awarded sum from the
owner of the offending vehicle (Tata Sumo)
Respondent 1 in execution proceedings arising in
this very case as per the law laid down in para 26
of Saju P.Paul case quoted supra.
22. Accordingly, the appeals succeed and
are allowed. Impugned order is modified to the
extent that Respondent 3 United India Insurance
Co.Ltd. is accordingly directed to pay the awarded
sum to the appellants (claimants). Thereafter
Respondent 3 United India Insurance Co.Ltd.
would be entitled to recover the entire paid
awarded sum from the owner (insured) of the
offending vehicle (Tata Sumo) Respondent 1 in
these very proceedings by filing execution
application against the insured.
9. In view of the settled legal position as noticed
above, the insurer in the present case is liable to required to
pay the compensation awarded and recover the same from the
owner of the vehicle. Hence, the following:
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ORDER
i) The above appeal is allowed in part.
ii) The judgments dated 27.04.2015 and
07.10.2011 passed in MVC No.945/2010 by the I
Additional Senior Civil Judge and MFACT V,
Davanagere shall be modified to the extent of
holding that the compensation of an amount of
`2,65,000/- together with interest at 6% from the
date of petition till the date of realization shall be
paid by respondent No.2-insurer with liberty to
recover the same from respondent No.1-owner of
the vehicle.
iii) Respondent No.2-insurer shall deposit before
the Tribunal the compensation awarded together
with accrued interest within eight weeks from the
date of receipt of the copy of this order.
iv) Consequent to deposit, the compensation
amount shall be disbursed in terms of the judgment
of the Tribunal.
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v) Registry to draw modified award.
No costs.
Sd/-
JUDGE
GPG
