Karnataka High Court
United India Insurance Co. Ltd vs Shamshoddin S/O Abdullasab @ Abdullah ... on 2 July, 2024
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NC: 2024:KHC-K:4470
MFA No. 201025 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE UMESH M ADIGA
MISCL. FIRST APPEAL NO. 201025 OF 2021 (MV-I)
BETWEEN:
UNITED INDIA INSURANCE CO. LTD.
REPRESENTED BY ITS,
DIVISIONAL MANAGER,
DR. JAWALI COMPLEX,
SUPER MARKET,
KALABURAGI.
...APPELLANT
(BY SRI S. S. ASPALLI, ADVOCATE)
AND:
1. SHAMSHODDIN
S/O ABDULLASAB @ ABDULLAH CHABKSAWAR
Digitally signed by
SHIVALEELA AGE: 51 YEARS, OCC: BRA MANUFACTURER,
DATTATRAYA UDAGI R/O. MOHALLA PEERAN KATTA,
Location: HIGH
COURT OF TQ. BASAVAKALYAN,
KARNATAKA DIST. BIDAR-585403.
2. FAISAL KHAN S/O AYUB KHAN
AGE: MAJOR, OCC: BUSINESS,
OWNER OF BAJAJ PULSAR,
VEH. BEARING NO. KA-56/E-0627,
HOUSE NO. 17-79, GHAZIPURA LOCALITY,
TQ. BASAVAKALYAN,
DIST. BIDAR-585403.
...RESPONDENTS
(R1 AND R2 ARE SERVED)
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MFA No. 201025 of 2021
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO,
A) CALL FOR THE RECORDS IN MVC NO.505/2017 ON THE FILE
OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT-
BASAVAKALYAN DATED 03.07.2021. B) SET ASIDE THE
JUDGMENT AND AWARD IN MVC NO. 505/2017, DATED
03.07.2021 PASSED BY THE SENIOR CIVIL JUDGE AND
ADDITIONAL MACT- BASAVAKALYAN, BY ALLOWING THE
ABOVE APPEAL.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is insurer's appeal challenging the liability
fastened on the Insurance Company to pay the
compensation by the impugned the judgment and award
passed by the Senior Civil Judge & Addl. MACT,
Basavakalyan (hereinafter referred to as 'the Tribunal' for
short) in MVC No.505/2017 dated 03.07.2021.
2. Though this appeal is slated for admission, with
the consent of both the learned counsels, it is taken up for
final disposal.
3. For the sake of convenience, the parties are
referred to as per their ranks before the Tribunal.
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4. Brief facts of the case are that, on 26.05.2016
around 1:30 p.m. petitioner along with his cousin brother
met with an accident due to rash and negligent riding of
motorcycle bearing Reg.No.KA-36/0627 by its rider at
Narayanapur cross, Hulasoor. As a result of which, the
claimant sustained injures in the said accident. He had
spent more than Rs.50,000/- towards medical expenses.
5. It is further contended that he was aged about
48 years at the time of accident and he was businessman
and earning Rs.20,000/- per month. Due to injuries
sustained in the accident, he has been suffering from
permanent disability, which is affecting his earning
capacity. With these reasons, the claimant prayed to
award compensation of Rs.5,00,000/-.
6. Respondent/insurer denied contents of the
claim petition and also contended that its liability is
restricted to the terms and conditions of policy of the
insurance. With these reasons, prayed for dismissal of the
claim petition.
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7. From the rival contentions of both the parties,
the Tribunal had framed the necessary issues for its
determination.
8. The claimant to prove his case examined PWs.1
and 2 and got marked Exs.P1 to 18 and closed his
evidence. Respondents have not led any evidence.
9. After hearing both the parties and appreciating
the evidence available on record, the Tribunal by its
impugned judgment, awarded compensation of
Rs.2,88,480/- with interest at the rate of 6% per annum
and respondent No.2 was directed to deposit the said
amount.
10. The learned counsel for the appellant/insurer
has vehemently contended that the policy of insurance
was an Act policy. The said policy was placed before the
Tribunal, which shows that basic premium + additional
premium towards coverage of risk of owner-cum-rider was
collected. The owner of the said vehicle did not pay any
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additional sum to cover the risk of the pillion rider. The
claimant/injured was a pillion rider in the said vehicle and
his liability is not covered under the policy of insurance.
Therefore, the appellant/insurer was not at all liable to
indemnify the owner of the vehicle. The Tribunal did not
consider these facts and directed to insurer to pay the
compensation to indemnify the owner of the vehicle, which
is erroneous. Therefore, prayed to allow the appeal and
set aside the part of the judgment, which is fastening the
liability on insurer.
11. Though notice was served on the owner as well
as the claimant, they did not turn up.
12. Before the Tribunal, the appellant-insurer had
produced the zerox copy of the insurance policy of the
offending vehicle. In this appeal the appellant has
produced certified copy of the policy of insurance, which
shows that it was an act policy. Additional premiums were
not paid to cover risk of pillion rider. Under these
circumstances, the insurer is not at all liable to pay the
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compensation on behalf of the owner of the vehicle, since
it has no liability to pay the same.
13. The learned counsel for the appellant-insurer
has relied on the judgment of the Hon'ble Supreme Court
in the case of United India Insurance Co. Ltd., Shimla
vs. Tilak Singh1; National Insurance Company Ltd. vs
Balakrishnan & another2 and Co-ordinate Bench of this
Court in the case of Divisional Manager vs Shamaraya
s/o Basanna Kattimani & Ors3, it is held in the above
judgments are that the insurer is not liable to indemnity
the owner when the additional premium was not paid and
policy of insurance is Act/Liability Policy. The said principle
of law is applicable to facts of present case.
14. In view of the law laid down in the above said
judgments, the appellant-Insurance Company cannot be
directed to pay the compensation when the policy of
Manu/SC/8088/2006
MFA No.31781/2010 and connected matters DD: 22.12.2020
NC: 2024:KHC-K:4470
insurance is an act policy and no additional premiums has
not been paid to cover the risk of the inmates of the
vehicle. Therefore, the finding of the Tribunal fastening
the liability on insurer is not permissible. To that extent,
the impugned judgment and award passed by the Tribunal
needs to be modified. Accordingly, I pass the following:
ORDER
i. The appeal is allowed.
ii. The impugned judgment and award passed by
the Senior Civil Judge & Addl. MACT,
Basavakalyan, in MVC No.505/2017 dated
03.07.2021 is modified.
iii. The order passed by the Tribunal fastening
the liability on the insurer to pay the
compensation on behalf of owner of the
vehicle is set aside.
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iv. Respondent No.1 owner is liable to pay the
said amount of compensation with interest as
awarded by the Tribunal.
v. The amount in deposit, if any, by the
appellant/insurer shall be refunded to the
appellant/Insurance Company, on due
acknowledgment;
vi. The registry is directed to send back the Trial
Court records along with copy of this
judgment.
Sd/-
JUDGE
SDU
CT:PK
