Karnataka High Court
The Branch Manager vs Smt. Mariyamma on 4 July, 2024
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MFA No. 7754 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MS JUSTICE J.M.KHAZI
M.F.A NO.7754 OF 2023 (MV-D)
BETWEEN:
THE BRANCH MANAGER
M/S ROYAL SUNDARAM
GENERAL INSURANCE CO. LTD.,
BRANCH OFFICE, DOOR NO.2609/17,
GROUND FLOOR, MCC 'A' BLOCK,
MUDDALLI THOTA, CHURCH ROAD,
S B DAVANAGERE,
REPRESENTED BY REGIONAL OFFICE,
NO.30, 3RD FLOOR, JNR CITY CENTRE,
RAJARAM MOHAN ROY ROAD,
SAMPANGIRAMA NAGAR,
BENGALURU - 560 027,
Digitally BY ITS STATE HEAD LEGAL
signed by ...APPELLANT
REKHA R (BY SRI. RAVI SHANKAR S SAMPRATHI, ADVOCATE)
Location:
High Court AND:
of Karnataka
1. SMT. MARIYAMMA
W/O LATE K MANJUNATH,
AGED ABOUT 59 YEARS,
RESIDENT OF GUDDADA
RANGAVVANAHALLI VILLAGE,
CHITRADURGA TALUK AND DISTRICT.
2. SRI B SHIVAKUMAR
S/O LATE BASAPPA,
MAJOR IN AGE,
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MFA No. 7754 of 2023
RESIDENT OF HIREKANDAWADI VILLAGE,
HOLALKARE TALUK,
CHITRADURGA DISTRICT.
3. SMT D REKHA
W/O LATE UMESH BABU,
AGED ABOUT 29 YEARS,
RESIDENT OF GUDDADA
RANGAVVANAHALLI VILLAGE,
CHITRADURGA TALUK AND DISTRICT.
...RESPONDENTS
(BY SRI. H.L.NACHIKETH, ADVOCATE FOR R1;
SRI. N.R.RANGEGOWDA, ADVOCATE FOR R2;
SRI. R.SHASHIDHARA, ADVOCATE FOR R3)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD PASSED
BY THE COURT OF THE I ADDITIONAL SENIOR CIVIL JUDGE
AND ADDITIONAL MACT NO.IV, CHITRADURGA, PRESIDED
OVER BY SMT. CHITRA A.M, B.SC., LL.B, I ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC, CHITRADURGA DATED
10.08.2023 PASSED IN MVC NO.718/2021 AND DISMISS THE
SAID CLAIM PETITION AS AGAINST THE APPELLANT, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
SREENIVAS HARISH KUMAR J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is preferred by the insurance company
challenging the judgment and award dated 10.08.2023 in
MVC.No.718/2021 on the file of I Addl. Senior Civil Judge
and JMFC, Chitradurga.
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2. The son of the claimant Umesh Babu was killed
in the accident that took place on 13.12.2020.
3. The claimant's case is that her son was working
as hamali under respondent No.1, who owned the tractor-
trailer bearing registration No.KA-16-TC-1501-1502. The
allegation is that on 13.12.2020, the accident occurred on
account of rash or negligent driving by the driver of
tractor-trailer and as it toppled, Umesh Babu died and two
others got injured.
4. Smt.D.Rekha, the wife of the deceased was
arraigned as respondent No.3 in the claim petition.
5. The insurance company took specific
contentions that deceased was a gratuitous passenger in
the tractor-trailer, and even if he was working as a hamali,
there was no insurance coverage for hamali as no extra
premium had been paid by respondent No.1.
6. The claimant being the mother of the deceased
adduced evidence as PW-1, RW-1 is the owner of the
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tractor-trailer and RW-2 is the insurance officer. The
Tribunal awarded the compensation in a sum of
Rs.26,30,000/- with interest at the rate of 6% p.a.
7. We have heard Sri.Ravishankar S.Samprathi,
learned counsel for appellant and Sri.R.Shashidhara,
learned counsel for respondent No.3 - Smt.D.Rekha.
8. The specific contention of Sri.Ravishankar
S.Samprathi, learned counsel for appellant is that there
was no insurance coverage for the hamali. Moreover, RW-
1 had purchased the insurance policy for agricultural
purpose and it did not cover any risk when it was used for
commercial purpose. The tractor was said to be used for
transporting areca nut from the garden of respondent
No.1, but respondent No.1 did not produce any document
in proof of the fact that he owned areca nut garden. His
evidence is that deceased was working as hamali under
him and at the time when the accident took place, the
trailer was loaded with areca nut belonging to him. In the
absence of proof with regard to any agricultural land
owned by respondent No.1, the Tribunal should not have
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fastened liability on the insurance company. He further
argued that although insurance company examined its
Officer as RW-2, the Tribunal has not discussed the
evidence adduced by RW-2. In this view the Tribunal has
erred in passing the judgment and award against the
insurance company although its liability is not there.
Therefore, he argued for setting aside the impugned
judgment and award and for remand of the case to the
Tribunal for consideration of the entire case once again.
9. Sri.Shashidhara, learned counsel for respondent
No.3 argued that deceased was working as hamali under
respondent No.1 and the insurance policy marked as per
Ex.R1 clearly shows extra amount being collected. This
extra amount was collected to cover the risk of a person
other than the driver. Since Indian Motor Tariff (IMT)
automatically covers the risk of the driver, the extra
amount collected was to cover the risk of any person other
than the driver and hence, Tribunal is justified in granting
compensation against insurance company.
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10. We have considered the arguments and
perused the records and evidence. Though several
contentions have been taken by the insurance company
and RW-2 the Officer of insurance company adduced
evidence specifically that the risk of the deceased was not
covered under the policy, if we peruse the judgment and
award of the Tribunal, we find that there is no discussion
on the evidence adduced by RW-2. The entire defence
taken by the insurance company is not at all considered.
When the insurance company specifically contends that
the risk is not covered because the deceased was a hamali
and that the vehicle was used for the purpose other than
agriculture, the defence version ought to have been
discussed by the Tribunal before giving findings. In this
view, we are of the considered opinion that the judgment
and award passed by the Tribunal suffers from infirmity.
Without expressing anything regarding the findings of the
Tribunal on the compensation awarded, we find that the
case has to be remanded and in that view, the following:
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ORDER
(i) Appeal is allowed.
(ii) The impugned judgment and award dated
10.08.2023 in MVC.No.718/2021 on the
file of I Addl.Senior Civil Judge and JMFC,
Chitradurga is set aside.
(iii) The matter stands remitted to the Tribunal
for reconsideration of entire case afresh
and passing fresh award by discussing the
evidence of both the parties. If necessary
the parties may lead further evidence to
enable the Tribunal to arrive at proper
conclusions.
(iv) The statutory deposit made by the
appellant in this Court be transferred to
the Tribunal. The amount already
deposited by the insurance company
before the Tribunal and the amount
transferred from this Court shall be kept in
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deposit in a Nationalised bank for a period
of six months.
(v) The parties are directed to appear before
the Tribunal on 05.08.2024 and the
Tribunal shall dispose of the case within
three months from the date of appearance
of the parties.
Sd/-
JUDGE
Sd/-
JUDGE
RR
