Karnataka High Court
Cholamandalam Ms Gic Ltd vs Shankariah on 1 July, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:24342
MFA No. 248 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 248 OF 2021 (MV-I)
BETWEEN:
1. CHOLAMANDALAM MS GIC LTD
PRESENTLY AT
6TH FLOOR, GOLDEN HEIGHTS BUILDING
NEAR SUJATHA THEATRE
RAJAJI NAGAR,
BENGALURU-10
REPRESENTED BY ITS DY MANAGER
NAME AS PER THE JUDGEMENT
THE MANAGER THE CHOLA MS
THE CHOLA INSURANCE
DISTRIBUTION SERVICES PVT LTD
3196, OPP APMC MAIN GATE
BH ROAD LAKSHMIPURA
ARASIKERE-573103
Digitally ...APPELLANT
signed by (BY SRI. MURALIDHARA N., ADVOCATE)
LAKSHMI T
Location: AND:
High Court of
Karnataka
1. SHANKARIAH
S/O LATE GANGADHARAIAH
AGED ABOUT 63 YEARS
R/A ARADAVALLI VILLAGE
CHIKKAMAGALURU TALUK AND
DISTRICT-577101.
2. SHIVRAJ B.A
S/O ANJANABHOVI
AGED ABOUT 32 YEARS
R/AT BASAVARAJAPURA VILLAGE
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MFA No. 248 of 2021
CHEELANIKANAHALLU POST
BELUR TALUK
HASSAN DISTRICT-573115
...RESPONDENTS
(BY SRI. GIRISH B. BALADARE.,ADVOCATE FOR R1;
R2 SERVED, BUT UNREPRESENTED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 25.02.2020 PASSED IN MVC
NO.501/2018 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE
AND CJM, MEMBER, MACT, CHIKKAMAGALURU, AWARDING
COMPENSATION OF RS.4,95,000/- WITH INTEREST AT 9
PERCENT P.A. FROM THE DATE OF PETITION TILL THE DATE OF
REALIZATION.
THIS APPEAL IS COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant-Insurance Company
challenging the liability fastened on it by the Court of Principal
Senior Civil Judge and CJM and MACT, Chikkamgaluru, in
MVC No.501/2018 dated 25.02.2020 allowing the petition filed
by respondent No.1-claimant under Section 166 of the Motor
Vehicles Act, 1988 (for short 'MV Act'), awarding compensation
of Rs.4,95,000/-.
2. Appellant herein is respondent No.2 before the
Tribunal and respondent No.1 herein is the petitioner/claimant
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before the Tribunal and respondent No.2 herein is respondent
No.1-owner/driver of the offending vehicle before the Tribunal.
3. The rankings of the parties before the trial Court is
retained for the sake of convenience.
4. Respondent No.2-owner of the vehicle though
served is unrepresented.
5. Heard arguments of learned counsel for the
appellant- Insurance Company , learned counsel for respondent
No.1 - Claimant/Petitioner.
6. The petitioner has filed the claim petition under
Section 166 of the MV Act, claiming compensation of
Rs.20,00,000/- for the injuries sustained by him in the road
traffic accident occurred on 20.04.2018. It is alleged that on
20.04.2018, at about 7.15 a.m., the petitioner was proceeding
in a TVS XL Motorcycle bearing registration
No.KA-18/EF-7686 as a pillion rider driven by one Nagaraja
from Aradavalli to Mugulavalli, Chikkamgaluru Taluk. When
they were near Mugulavalli Gate, respondent No.1 i.e., the
driver/owner of the car bearing registration No.KA-46/M-4762
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drove the same in a rash and negligent manner with a high
speed and dashed to the motorcycle. Due to which, the
petitioner sustained grievous injuries. Initially, he was shifted
to M.G.Hospital, Chikkamagaluru and thereafter he was shifted
to Father Muller Medical College Hospital, Mangaluru, for
further treatment. He took treatment as in-patient and
underwent surgeries. He spent huge amount towards medical
expenses. He was an agriculturist and doing milk vending
business and earning more than Rs.25,000/-. Due the injuries
sustained, he was not in a position to work as he was doing
earlier. It is contended that respondent No.1-owner/driver of
the vehicle and respondent No.2-Insurer of the vehicle are
liable to pay compensation. Hence, sought for compensation.
7. In pursuant to the notice, respondent No.1-
owner/driver remained absent and he was placed ex-parte and
respondent No.2-insurer appeared and filed their objections
specifically contending that the insurance policy was issued in
favour of respondent No.1 on 20.04.2018 at 4.23 p.m.
whereas, the accident had occurred on 20.04.2018 at 7.15 a.m.
The policy was not in force at the time of accident, the rider of
the motorcycle was not made as a party and therefore, the
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insurer is not liable to pay any compensation amount. Hence,
prayed for dismissal of the claim petition.
8. Based upon the pleadings, the Tribunal framed four
issues:
"1. Whether the petitioner proves that he
sustained grievous injuries in a road traffic
accident on 20.4.2018 at about 7.15 AM near
Mugulavalli gate, on Chikkamagaluru main road,
due to the rash and negligent driving of car
bearing Reg. No.KA:46:M:4762 by the 1"
respondent as averred in the petition?
2. Whether the respondent No.2 proves that the
petition is bad for non-joinder of necessary
parties?
3. Whether the petitioner is entitled for the
compensation? If yes, for what amount and from
whom?
4. What order or award? "
9. To substantiate his contention, the claimant examined
himself as PW1 and got marked 20 documents as Exs.P1 to P20
and respondent No.2-insurer has not lead any oral evidence.
The doctor was examined through Court Commissioner as CW1
and got marked 06 documents as Exs.C1 to C6.
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10. After hearing and perusal of records, the Tribunal
has answered Issue Nos.1 and 3 in the affirmative, Issue No.2
in the negative and awarded compensation of Rs.4,95,000/-
with interest @ 9% p.a. from the date of petition till the date of
realization fastening liability on respondent No.2-insurance
company. Feeling aggrieved, the Insurance Company is before
this Court.
11. Learned counsel for the appellant- Insurance
Company has seriously contended that the Tribunal erred in
fastening liability on the Insurance company, which is prima
facie illegal and perverse as the insurance policy itself came
into force on the evening of 20.04.2018 at 04.23 p.m. onwards
whereas the accident occurred on the same day in the morning
at 7.15 a.m. Therefore, there was no policy coverage for the
vehicle in question at the time of accident. Hence, sought for
allowing the appeal by setting aside the order of the Tribunal.
12. Per contra, the learned counsel for respondent
No.1-petitioner/claimant has contended that the Tribunal has
rightly given a finding that question of issuing policy to a
damaged vehicle does not arise and therefore, fastened liability
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on the Insurance Company. Hence, prayed for dismissal of the
appeal.
13. Having heard both sides, the point that arises for
my consideration is:
"Whether the Tribunal was justified in fastening liability
on the Insurance Company?"
14. During the course of arguments, Court insisted the
appellant-Insurance company to produce insurance policy and
receipt for having received premium from owner of the vehicle.
Photographs of the car on various angles taken at 4.15 p.m.,
were produced and the receipt for having paid Insurance
Premium by respondent No.1-owner/driver of the car is
Rs.9,450/-. Perusal of these documents would clearly reveal
that owner of the car had approached the insurance company
only in the evening whereas photographs of the car were taken
by the insurance agent at 4.15 p.m. and subsequently, the
insurance policy was issued at 4.23 p.m. on 20.04.2018. It is
not in dispute that as per police records and the evidence of the
petitioner, the accident occurred at 7.15 a.m. near Mugulavalli
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Gate, Chikkamagaluru Taluk. FIR also came to be registered at
12.30 p.m., on the same day as per Ex.P2. Ex.P7-IMV Report
reveals the damages found on the offending vehicle namely
front bumper broken, front number plates broken, front
windscreen glass smashed etc., and the date of inspection was
shown as 24.04.2018. It is pursuant to note as per
panchanama, the vehicle was inspected by the police and found
that the front number plate of the car was damaged. On
perusal of the charge sheet, panchanama and the IMV report,
it would reveal the damages were caused to the vehicle while it
was standing on the road near the place of accident. But, the
IMV inspection report says that the vehicles were inspected in
the police station on 24.04.2018. It is very difficult to accept
that the insurance policy was issued by the insurer on the same
day and whether in the photographs obtained by the insurance
company before issuing the insurance policy there was no
damages seen on the vehicle. The front number plate is also
visible in the photograph. Even otherwise it would reveal from
the records that something has occurred while inspecting the
motor vehicle in finding the damages and photographs taken by
the agent of the insurer before issuing the insurance policy but
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the fact remains that the accident occurred at 7.15 a.m. on
20.04.2018 whereas the insurance policy was issued only at
4.23 p.m. It is a clear case that there is no insurance policy
coverage for the vehicle at the time of accident. Respondent
No.1-owner of the vehicle could have appeared before the
Tribunal by filing statement of objections and could have given
evidence to clarify whether the insurance policy was already in
force for the vehicle in question at the time of accident. But,
the fact remains that the insurance policy was issued after the
accident. Therefore, the finding of the Tribunal fastening
liability on the Insurance Company does not arise.
15. The learned counsel for the appellant relied upon
the judgment of the Hon'ble Apex Court in SLP (Civil)
No.10954/2019 in the case of Reliance Life Insurance
Company Ltd. and Another v. Jaya Wadhwani, wherein the
Apex Court has exonerated the liability of the Insurance
Company. Considering the same, I am of the view that the
Tribunal has erred in fastening liability on the insurance
company, when the policy itself was not in force at the time of
accident.
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16. There is no dispute regarding quantum of
compensation. However, fastening liability on the insurance
company by the Tribunal has to be interfered with.
Accordingly, I answer point No.1 in 'affirmative' in favour of the
insurance company as against the respondents. Hence, the
following:
ORDER
i. The appeal is allowed. However, fastening liability
on the Insurance company is set aside.
ii. The compensation awarded by the Tribunal in
favour of respondent No.1/claimant is confirmed.
iii. Respondent No.2 herein/owner of the vehicle is
liable to pay compensation awarded by the Tribunal to the
claimant.
iv. The claim petition filed under Section 166 of the
Motor Vehicles Act, against the Appellant - Insurance Company
is hereby dismissed.
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v. Amount in deposit is ordered to be refunded to the
appellant-Insurance Company.
Sd/-
JUDGE
TL
