Karnataka High Court

The Oriental Insurance Company Ltd vs Smt Pushpalatha on 31 July, 2024

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                                                     NC: 2024:KHC:30173
                                                   MFA No. 3234 of 2014




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 31ST DAY OF JULY, 2024

                                      BEFORE

                      THE HON'BLE MR JUSTICE C.M. POONACHA

              MISCELLANEOUS FIRST APPEAL NO. 3234 OF 2014 (MV-D)

             BETWEEN:

             THE ORIENTAL INSURANCE COMPANY LTD.,
             BRANCH OFFICE,
             M.H. BORAIAH BUILDING, VV ROAD,
             MANDYA. REPRESENTED BY ITS AUTHORIZED
             SIGNATORY AT THE REGIONAL OFFICE,
             44/45, LEO SHOPPING COMPLEX,
             RESIDENCY ROAD,
             BANGALORE - 560 025.

                                                                APPELLANT
             (BY SRI. SRISHAILA S .,ADVOCATE)
             AND:

             1.   SMT. PUSHPALATHA
                  W/O LATE G.V.THIRUMALESH BABU,
                  AGED ABOUT 33 YEARS,
Digitally
signed by
BHARATHI S   2.   SMT.SANJEEVAMMA
Location:         W/O LATE VENKATARAMANAPPA,
HIGH              AGED ABOUT 45 YEARS,
COURT OF
KARNATAKA         RESIDING AT 8TH CROSS,
                  GANDHINAGAR, MANDYA CITY.
                                                            RESPONDENTS

             (BY SRI. BHUSHANI KUMAR ADVOCATE FOR R1 & R2)
                  THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
             JUDGMENT AND AWARD DATED22.01.2014 PASSED IN MVC
             NO.687/2009 ON THE FILE OF PRL. SR. CIVIL JUDGE, MACT,
             MANDYA, AWARDING COMPENSATION OF Rs.4,40,000/- WITH
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                                                     NC: 2024:KHC:30173
                                                  MFA No. 3234 of 2014




INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
PAYMENT.
     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:           HON'BLE MR JUSTICE C.M. POONACHA

                                     ORAL JUDGMENT

The present appeal is filed by the Insurer challenging the

judgment and award dated 22.01.2014 in MVC No.687/2009 by

the Principal Civil Judge (Senior Division) & MACT, Mandya1.

2. The relevant facts necessary for consideration of the

present appeal are that the legal representatives of the one

deceased G. V. Tirumalesh Babu, who is the owner of TVS Victor

Motor Cycle bearing registration No.KA-01/EA-2222 have filed the

claim petition claiming compensation for death of the deceased-

Thirumalesh Babu, on 03.05.2009 when he was traveling as a

pillion driver in the said Motor Cycle. The Tribunal allowed the said

claim petition and awarded a total compensation of Rs.4,40,000/-

with interest at the rate of 6% p.a. Being aggrieved, the present

appeal is filed.

Hereinafter referred to as 'Tribunal'

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3. Heard the submissions of Sri. Srishaila S., learned

counsel appearing for the appellant-insurer and Sri. Kumar,

learned counsel for respondent Nos.1 and 2.

4. It is the primary contention of learned counsel for the

appellant-insurer that the owner of the vehicle himself was riding

as a pillion driver on the insured vehicle at the time of accident

and due to the said accident the owner having died, the question

that his legal representatives filing the claim petition does not

arise. Hence, he seeks for allowing of the appeal and to dismiss

the claim petition.

5. Per contra, learned counsel for the respondents

vehemently seeks to justify the judgment and award passed by the

Tribunal.

6. With regard to the contention put forth by the learned

counsel for the appellant, reliance is placed by the learned counsel

for the appellant on the judgment of a Division Bench of this Court

in the case of Mohammad Yusuf vs. The Divisional Manager,

New India Asurance Co. Ltd., Dharwad, wherein, it has been

held at Para Nos.14, 15 and 17 as follows:

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"14. Therefore, this provision makes it clear that liability of the Insurance company is not a primary liability.

The primary liability is that of the owner of the vehicle who has taken an insurance policy. In other words, the liability should be of the insured and claims should be preferred against the insured. If the claimant wants Insurance Company to pay him the compensation, he should make the Insurance Company, a party. No such claim against the insurer would lie if he is not made a party to the said proceedings. In such a proceeding, if a judgment or decree is passed holding that the insurer is liable to pay compensation to the claimant, then the insurance company steps into the shoes of the insurer as a judgment debtor and thus makes payment. Therefore, before an insurance company is made liable under the act the award should be against the owner. Then insurance company will step into his shoes as a judgment debtor and satisfy the award.

15. In this background, if we look into the case on hand the owner is the claimant who has filed a claim petition. As rightly pointed out by the Tribunal the petition is not filed against the owner. Therefore, when no decree could be passed against the owner, the question of insurance company being liable to satisfy the decree or award would not arise. In other words, the claim cannot be put forth against the Insurance company independently, if owner is not made a party to the proceedings, the insurance company is not liable to pay the claim also.

16. .........

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17. In that view of the matter, Tribunal is right in holding that the petition filed by the owner who is not a third party is not maintainable under Section 166 of the MV Act. We do not see any error committed by the Tribunal in dismissing the claim petition."

(emphasis supplied)

7. Further, this Court in the case of Junjamma @

Thayamma and Others vs. Oriental Insurance Co. Ltd.,

Tumkur and Another, relied on by the learned counsel for the

appellant has held at Para No.4 as follows:

"4. After going through the grounds urged in the appeal memo with reference to the finding of tribunal in dismissing the appeal and also on going through Ex.R1, it is clearly seen that additional premium of `50/- charged by insurance company is to cover the liability of owner - driver. That means, if owner himself is driving the vehicle and if any injury is caused to him, he would be entitled to receive compensation for the injuries suffered to him and also would give raise right to his dependents to seek compensation for his death. In the instant case, no doubt deceased was owner of vehicle, but he was not driving the vehicle at that time. Therefore, additional premium of `50/- which would have come to his rescue provided if he were to be driving the vehicle would not be available to him when he was raveling in the said vehicle as pillion rider. In that view of matter, the interpretation sought to be given for said endorsement in Ex.R1, insurance policy is unacceptable and in the result, the appeal filed by

NC: 2024:KHC:30173

claimant seeking reversal of finding of tribunal in dismissing their claim petition does not survive for consideration."

(emphasis supplied)

8. In view of the settled proposition of law as noticed

above, it is not open for the owner or the legal representatives of

the vehicle in question to file a claim petition and seek for

compensation. Hence, the judgment and award passed by the

Tribunal is liable to be set aside and the claim petition is liable to

be dismissed.

9. In view of the aforementioned, the following: