Karnataka High Court

United India Insurance Co Ltd vs Smt Pavithra on 2 January, 2024

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                                                         NC: 2024:KHC:121
                                                    MFA No. 7802 of 2013
                                                C/W MFA No. 7801 of 2013




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 2ND DAY OF JANUARY, 2024

                                        BEFORE
                      THE HON'BLE MR JUSTICE C.M. POONACHA
             MISCELLANEOUS FIRST APPEAL NO. 7802 OF 2013 (MV)
                                  C/W
             MISCELLANEOUS FIRST APPEAL NO. 7801 OF 2013 (MV)

             IN MFA NO.7802/2013

             BETWEEN:

             1.    UNITED INDIA INSURANCE CO LTD.,
                   HASSAN BRANCH
                   THROUGH ITS REGIONAL OFFICE
                   5TH FLOOR, KRISHI BHAVAN
                   NRUPATHUNGA RAOD, BANGALORE - 01
                   REP BY ITS MANAGER
                   SRI CHANDRASHEKAR
                                                              ...APPELLANT
             (BY SRI. SEETHARAMA RAO B C.,ADVOCATE)

             AND:
Digitally
signed by    1.    SRI PREETHAM
BHARATHI S         AGED ABOUT 5 YEARS
Location:
HIGH COURT         S/O B NATESH
OF
KARNATAKA          SINCE MINOR, REP BY HIS MOTHER
                   SMT PAVITHRA
                   THE FIRST RESPONDENT HEREIN
                   RESIDENT OF G THIMMANAHALLI
                   ALUR TALUK, HASSAN DISTRICT

             2.  SRI AYYANNA, MAJOR
                 S/O CHANNEGOWDA
                 M/S LAKSHMI NARAYANA ENGINEERING WORKS
                 NEW WORK SHOP LANE
                 B M ROAD, HASSAN
                                                           ...RESPONDENTS
             (NOTICE TO R1 & R2 IS HELD SUFFICIENT V/O DTD 7-8-17)
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                                            NC: 2024:KHC:121
                                       MFA No. 7802 of 2013
                                   C/W MFA No. 7801 of 2013



      THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 5.12.2012        PASSED IN MVC
NO.226/2012 ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT-2, MACT, HASSAN, AWARDING A COMPENSATION OF
RS.35,000/- WITH INTEREST @ 6% P.A FROM THE DATE OF
PETITION TILL THE DATE OF DEPOSIT.

IN MFA NO.7801/2013

BETWEEN:

1.   UNITED INDIA INSURANCE CO LTD
     HASSAN BRANCH
     THROUGH ITS REGIONAL OFFICE
     5TH FLOOR, KRISHI BHAVAN
     NRUPATHUNGA ROAD
     BANGALORE - 01
     REP BY ITS MANAGER
     SRI K CHANDRASHEKAR
                                                 ...APPELLANT
(BY SRI. SEETHARAMA RAO B C.,ADVOCATE)

AND:

1.   SMT PAVITHRA
     AGED ABOUT 28 YEARS
     W/O SRI NATESH
     RESIDENT OF G THIMMANAHALLI
     ALUR TALUK
     HASSAN DISTRICT

2.   SRI AYYANNA , MAJOR
     S/O CHANNEGOWDA
     M/S LAKSHMI NARAYANAS ENGINEERING WORKS
     NEW WORK SHOP LANE
     B M ROAD, HASSAN
                                              ...RESPONDENTS
(NOTICE TO R1 IS HELD SUFFICIENT V/O DTD 13/4/17
 R2 SERVED AND UNREPRESENTED)

      THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 05.12.2012       PASSED IN MVC
NO.225/2012 ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT-2, MACT, HASSAN, AWARDING COMPENSATION OF
RS.6,000/- WITH INTEREST @ 6% P..A FROM THE DATE OF
PETITION TILL DEPOSIT.
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                                                                     NC: 2024:KHC:121
                                                              MFA No. 7802 of 2013
                                                          C/W MFA No. 7801 of 2013



     THESE APPEALS, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                                                JUDGMENT

The above appeals are filed by the insurer challenging the

judgment and award dated 5.12.2012 passed in MVC

Nos.225/2012 and 226/2012 by the Presiding Officer, Fast Track

Court-II, MACT, Hassan1.

2. The relevant facts necessary for consideration of

the present appeals are that when the first respondent2 in both

the appeals were travelling in a Maruti 800 Car bearing No.KA-

05-N-3277 on 13.10.2011 from their native village to Hassan

and when they reached the outskirts of Hassan, the driver of

the said Maruti Car hit against a Tanker lorry causing the

accident in question wherein, they sustained injuries. Hence,

they filed claim petitions in MVC Nos.225/2012 and 226/2012

claiming compensation for the injuries sustained by them

arraying the owner and insurer of the said Maruti Car as

respondents. The said respondents entered appearance before

the Tribunal and contested the claim petitions. Common

evidence was adduced and the claimant in MVC No.225/2012

Hereinafter referred to as the 'Tribunal'

Hereinafter referred to as the 'claimant'

NC: 2024:KHC:121

examined herself as PW.1 as well as PW.2 as a guardian on

behalf of his minor son who is the claimant in MVC

No.226/2012 and marked Exs.P1 to P12. The insurer adduced

evidence of its representative as RW.1 and marked the policy of

insurance as Ex.R1. The Tribunal vide its judgment and award

dated 5.12.2012 allowed the claim petitions and awarded

compensation in a sum of `6,000/- to the claimant in MVC

No.225/2012 and `35,000/- to the claimant in MVC

No.226/2012 and held that the owner and insurer are jointly

and severally liable to pay the compensation awarded. Being

aggrieved, the insurer has preferred the present appeals.

3. The sole contention urged by the insurer in the

above appeals is that the claimants are the occupants in the

private car which was insured by the insurer with a 'Liability

Only Policy' and the risk of the occupants of the said car is not

covered under the said policy of insurance.

4. Learned Counsel for the appellant in support of the

said contention relies on the following judgments:

i) United India Insurance Co.Ltd., v. Tilak Singh3;

(2006) 4 SCC 404

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ii) Oriental Insurance Co.Ltd., v. Sudhakaran K.V4; and

iii) The National Insurance Co.Ltd., v. Sri Sanaulla Khan & Ors.,5

5. Further, reliance is placed on the policy of insurance

- Ex.R1 and the stand of the insurer in the statement of

objections wherein a specific contention regarding the insurer

not being liable to pay the compensation having regard to the

nature of the policy and having regard to the fact that the

claimants were the occupants in the car has been taken.

6. The respondents are served and unrepresented.

7. The submissions made on behalf of the insurer have

been considered and the material on record including the

records of the Tribunal has been perused. The question that

arises for consideration is, Whether the insurer is liable to pay

the compensation awarded?

8. The essential facts with regard to the occurrence of

the accident and the fact that the claimants were the occupants

in the private car are undisputed. It is also not the case of the

(2008) 7 SCC 428

Order dated 24.11.2023 passed in MFA No.174/2018 c/w 6621/2018

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claimants that they were either driving the car or were the

employees of the owner of the car. It is forthcoming from the

schedule of the premium paid that towards the coverage of

third party risk, a premium of `740/- is paid, towards the

coverage of compulsory personal accident cover for the owner

and driver, a sum of `100/- is paid and towards the coverage of

WC of one employee, `25/- is paid.

9. The question as to whether the insurer is liable to

pay the compensation in respect of a pillion rider or the

occupant of a car in respect of a private car is no longer res

intergra and the same has been considered by the Hon'ble

Supreme Court and this Court.

10. In the case of Tilak Singh3 , the Hon'ble Supreme

Court has held as under:

"21. In our view, although the observations made in Asha Rani case [(2003) 2 SCC 223 : 2003 SCC (Cri) 493] were in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appellant Insurance Company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion rider, as the insurance policy was a statutory policy, and hence it did not cover the risk of death of or bodily injury to a gratuitous passenger."

(emphasis supplied)

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11. In the case of Sudhakaran K.V4, the Hon'ble

Supreme Court has held as under:

"21. We have noticed the terms of the contract of insurance. It was entered into for the purpose of covering the third-party risk and not the risk of the owner or a pillion-rider. An exception in the contract of insurance has been made i.e. by covering the risk of the driver of the vehicle. The deceased was, indisputably, not the driver of the vehicle.

22. The contract of insurance did not cover the owner of the vehicle, certainly not the pillion-rider. The deceased was travelling as a passenger, stricto sensu may not be as a gratuitous passenger as in a given case she may not (sic) be a member of the family, a friend or other relative.

In the sense of the term which is used in common parlance, she might not be even a passenger. In view of the terms of the contract of insurance, however, she would not be covered thereby.

25. The law which emerges from the said decisions, is :

(i) the liability of the insurance company in a case of this nature is not extended to a pillion-rider of the motor vehicle unless the requisite amount of premium is paid for covering his/her risk; (ii) the legal obligation arising under Section 147 of the Act cannot be extended to an injury or death of the owner of vehicle or the pillion-rider; (iii) the pillion-rider in a two-wheeler was not to be treated as a third party when the accident has taken place owing to rash and negligent riding of the scooter and not on the part of the driver of another vehicle."

(emphasis supplied)

12. This Court in the case of Sri Sanaulla Khan &

Ors.,5 considering the judgments of the Hon'ble Supreme Court

in the cases of Tilak Singh3 and Sudhakaran K.V4 has held as

follows:

NC: 2024:KHC:121

"26. .......... Therefore, it is evident from the authoritative decisions that the risk of the pillion rider was not covered under the "Act only policy".

27. ........... It was a case wherein the extent of the liability of the Insurance Company was in question and while answering the same, it was held that the Insurance Company can cover the higher risk by accepting additional premium. Under these circumstances, it is clear that the deceased was pillion rider and no extra premium was collected for the occupant of the vehicle other than the driver and therefore, the risk of the pillion rider was not at all covered under the policy. Under these circumstances, it is evident that the Tribunal had erred by holding that the policy mentioned about the seating capacity of 1+1 and that itself would be the coverage of the policy. Under these circumstances, the finding of the Tribunal that the liability has to be fastened upon respondent No.2- Insurance Company is not sustainable under law."

(emphasis supplied)

12.1 In the case of Sri Sanaulla Khan & Ors.,5 , the

coordinate Bench has also considered the aspect regarding pay

and recovery and has held as follows:

" 28. Coming to the question as to the pay and recover, it is relevant to note that the avoidance clause referred supra, is concerning the person indemnified by the policy or any other person to recover an amount under or by virtue of the provisions of the Motor Vehicles Act. In the case on hand, the petitioners are not the persons covered under the Motor Vehicles Act, as the decisions referred supra clearly and categorically lay down that the pillion rider being the gratuitous passenger is not a third party. Therefore, the said clause is not at all applicable to the case on hand. Hence, the contention of pay and recover is also not maintainable."

(emphasis supplied)

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13. In view of the aforementioned settled position of

law on the factual matrix as noticed above, the question framed

for consideration is answered in the negative.

14. Accordingly, the following order is passed:

ORDER

i) The appeals are allowed;

ii) The judgment and award dated 5.12.2012 passed

in MVC Nos.225/2012 and 226/2012 by the

Presiding Officer, Fast Track Court-II, MACT,

Hassan to the extent it directs the insurer to pay

the compensation awarded is set aside;