Karnataka High Court
The Manager vs Sri Mokshith N J on 28 May, 2024
1
MFA.8520/2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA
MFA NO.8520 OF 2017 (MV-I)
BETWEEN:
THE MANAGER
UNITED INDIA INSURANCE CO. LTD.
SALDANA BUILDING, BRIDGE ROAD
BALMATTA KANARA SOUTH
MANGALURU - 575 001
THROUGH ITS REGIONAL OFFICE
KRISHI BHAVAN BUILDING
NRUPATHUNGA ROAD
BENGALURU - 560 009
REP. BY ITS DEPUTY MANAGER
MR. AJAY KUMAR SINHA ... APPELLANT
(BY SRI.B.C.SEETHA RAMA RAO, ADV.)
AND:
1. SRI. MOKSHITH N.J.
AGED ABOUT 18 YEARS
S/O SRI.JANARDHANA GOWDA
2. SRI. JANARDHANA GOWDA
AGED ABOUT 46 YEARS
S/O SHEENAPPA GOWDA
RC OWNER OF SCOOTER NO.
KA.19/X-0286
BOTH ARE R/O NADUVAL HOUSE
NOOJIBALTHILA VILLAGE
PUTTUR TALUK
3. SRI. RANJITH KUMAR
R/AT H.NO.7-3-411/2
BOLOOR GUDDE
2
MFA.8520/2017
NEAR SULTHAN BATHERY
MANGALURU - 575 003
INSURED OF SCOOTER NO.
KA.19/X-0286 ... RESPONDENTS
(BY SRI.VISHWANATHA POOJARI K., ADV. FOR R1;
R2 & R3 ARE SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 01.09.2017
PASSED IN MVC NO.1328/2015 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND ACJM, MEMBER, MACT,
PUTTUR, AWARDING COMPENSATION OF RS.1,27,000/- WITH
INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL
REALIZATION.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 19.04.2024 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, the Insurance Company has
challenged the judgment and award dated 01.09.2017
in M.V.C.No.1328/2015 passed by the Principal Senior
Civil Judge and A.C.J.M. and M.A.C.T., Puttur ('the
Tribunal' for short).
2. The appellant was 2nd respondent, 1st
respondent was the petitioner and 2nd respondent was
the 1st respondent before the Tribunal. For the sake of
convenience, the rank of the parties shall be referred
to as per their status before the Tribunal.
3. Brief facts of the case are, petitioner is the
son of first respondent. On 14.01.2015, first
respondent was riding Honda Activa bearing
registration No.KA-19/X-0286 along with petitioner as
a pillion rider. At about 4.30 p.m. at Nekkilu,
Noojibalthila village, Puttur Taluk, first respondent rode
the Honda Activa recklessly due to which it was
capsized on the road and injured the petitioner. He
was treated at Government Hospital, Kadaba and then
at K.S.Hegde Charitable Hospital, Mangalore under
hospitalization for a period of 14 days. After taking
treatment, since the petitioner was minor through his
mother/guardian approached the Tribunal for grant of
compensation of Rs.15 lakhs with interest @ 21% per
annum.
3(a). Claim was opposed by the Insurance
Company on the ground that there was no accident,
there was no nexus between the injuries and the
accident, claim is false, petitioner is guilty of
contributory negligence, first respondent did not
possess valid driving licence. The Tribunal after
holding enquiry and by taking the evidence by the
impugned judgment allowed the claim petition
awarding compensation of Rs.1,27,000/- with interest
at 6% per annum, directing the Insurance Company to
indemnify the first respondent/owner of the Honda
Activa. Aggrieved by the same, the Insurance
Company has questioned its liability to pay
compensation on the ground that the policy of
insurance is an 'Act Policy' and it will not cover the risk
of the pillion rider.
4. Heard the arguments of Sri.B.C.Seetharama
Rao, learned Counsel for the Insurance Company and
Sri.Vishwanatha Poojari, learned counsel for the
petitioner.
5. It is the contention of the learned counsel for
the Insurance Company that the alleged accident
occurred on 11.01.2015 whereas the petitioner making
a false claim that the accident had occurred on
14.01.2015 has erroneously approached the Tribunal;
there was no damages on the scooter though capsized
on the road, showing that there was no accident, the
alleged accident is tailor-made with the assistance of
the Doctors and the Police.
5.1. It is further contended that the policy
obtained by the first respondent in respect of Honda
Activa is only 'liability only policy', no premium was
paid in respect of pillion rider; inspite of it, the Tribunal
has misinterpreted the statement of the witness on
behalf of the respondent that there is an admission
that the risk of the pillion rider was covered under the
policy. Since there was no policy of insurance covering
the risk of the injuries sustained by the petitioner in
the alleged accident, he has to seek the compensation
from the owner of the motor cycle.
6. Per contra, learned counsel for the petitioner
has contended that the accident took place on
11.01.2015; there may be a typographical error in the
claim petition that the accident had occurred on
14.01.2015. The records placed before the Tribunal
clearly explain that the accident was on 11.01.2015
only, but on the clerical mistake, the Insurance
Company cannot plead that it is a false claim. The
petitioner soon after the accident took treatment at
Government Hospital, Kadaba and during that period,
he felt that there was no major hurt, but two days
later when he found that the pain persisted on the
injury portion, he was taken to K.S.Hegde Charitable
Hospital, Deralakatte, Mangalore where he was
diagnosed with fractures. Hence, complaint was filed
to the Police on 14.01.2015 reporting the incident with
proper explanation. The medical records explain the
injuries, nature of treatment, disability suffered by the
petitioner and by considering all these aspects, the
Tribunal has assessed the compensation.
6.1. It is further contended that the policy of
insurance is admitted, there is no evidence let in by
the Insurance Company to show that the rider of the
Honda Activa was not holding any driving licence. The
officer of the Insurance Company during the course of
cross-examination admitted that the policy of
insurance covers the risk of the injured. Accordingly,
the Tribunal fastened the liability against the owner
with a direction to the Insurance Company to
indemnify the owner. There is no error committed by
the Tribunal and he supported the impugned
judgment.
7. I have given my anxious consideration to the
arguments addressed on behalf of both parties and
perused the records.
8. The argument of the learned Counsel for the
Insurance Company is of two fold. Firstly, the claim is
false. Secondly, the policy of insurance will not cover
the risk of the petitioner as pillion rider of the Honda
Activa.
9. Adverting to the first point is concerned, the
material on record clearly points out that there was an
accident on 11.01.2015 at 4.30 p.m. while the father
of petitioner was riding the Honda Activa with
petitioner as pillion rider and at 4.30 p.m., it was
capsized on the road due to reckless riding for which
the father of petitioner has been prosecuted by the
Kadaba Police in Crime No.4/2015 for the offences
punishable under Sections 279 and 337 of IPC. The
averments made in the complaint as per Ex.P2 clearly
point out that on 14.01.2015 the statement of the
petitioner was recorded at Government Hospital,
Kadaba between 2.00 and 3.00 p.m., which shows that
on 14.01.2015, the petitioner was under
hospitalization in Government Hospital, Kadaba and
upon his statement only, FIR came to be registered
and after investigation, father of petitioner has been
charge sheeted for the offences punishable under
Sections 279 and 337 of IPC before the learned
Additional Civil Judge and JMFC., Puttur, D.K.District.
9.1. The medical records pertaining to
Government Hospital, Kadaba is not produced. The
Motor Vehicles Accident Report at Ex.P6 points out the
damage to 'rear view mirror' of Honda Activa. If the
Honda Activa is capsized on the road, the
circumstances need not explain that there should be
major damage to Honda Activa. The spot mahazar and
the sketch show after passing the curve, the accident
had occurred in 8 feet road. The delay in filing the
complaint has been explained properly as it is not
expected from the rider to go and file a complaint
against himself as the petitioner was minor admitted to
Government Hospital, Kadaba.
9.2. The records pertaining to K.S.Hegde
Charitable Hospital as per Exs.P8 to P17 clearly point
out that the petitioner has suffered avulsion fracture of
left knee, for which he was treated for a period from
15.01.2015 to 24.01.2015 and also from 16.02.2015
to 19.02.2015. In the claim petition, there is a specific
mentioning that the accident had occurred on
11.01.2015, it is a drafting mistake and it is not a
mistake on the part of the petitioner. The material on
record clearly points out that the accident had occurred
on 11.01.2015. Hence, in this aspect and there is no
substance in the argument of the Insurance Company.
10. As regards assessment of compensation is
concerned, the Tribunal has considered the medical
bills, injuries, age of the petitioner as '16' being a
student and assessed the compensation on various
heads, such as, medical expenses, pain and suffering,
loss of amenities and discomfort, attendant charges,
conveyance charges, food and nourishment and also
money towards future medical expenses and assessed
the compensation at Rs.1,27,000/-. Having regard to
the circumstances and the bills produced, the Tribunal
has awarded just compensation with interest @ 6% per
annum and it needs to be ratified.
11. The second leg of argument of the Insurance
Company is the liability on the part of the insurer to
indemnify the insured. Admittedly, the vehicle
involved in the accident is Honda Activa, which is two-
wheeler. Father of the petitioner was riding the Honda
Activa and son was pillion rider. According to the
Insurance Company, the policy of insurance was only a
liability policy, the Insurance Company can only
indemnify the owner for the third party liability.
12. In this regard, it is relevant to refer to the
policy of insurance, which is placed before the Tribunal
as per Ex.R1. It is not in dispute that Ex.R1 is the
'liability only policy' for motor cycle/scooter, the policy
was in force on the date of accident. Under the policy,
for a motor cycle/scooter, a sum of Rs.530/- was
collected as the premium. On a perusal of the
premium schedule, it is pertinent to note that a sum of
Rs.422/- was collected as basic TP, Rs.50/- towards
compulsory PA for owner driver, in all Rs.472/-; adding
service tax and stamp duty of Rs.58/-, the total
premium stands at Rs.530/-. Under the policy, no
additional premium has been paid to the rider or pillion
rider. Compulsory personal accident cover for the
owner/driver is only covered by collecting premium of
Rs.50/- to an extent of Rs.1,00,000/-. In view of the
same, it is thus clear that the policy is not a
comprehensive policy, no premium was paid either to
the rider or the pillion rider. In view of this, whether
the policy covers the risk of the pillion rider as third
party has to be examined now.
13. In this regard, it is relevant to refer to the
decision in Oriental Insurance Company Limited -
vs- Sudhakaran K.V. and Others1. The Hon'ble
Apex Court was dealing in respect of a pillion rider on a
scooter where pillion rider was a lady fell down from
the scooter and succumbed to injuries sustained by
her. The Insurance Company in the written statement
raised the contention that she being the pillion rider,
the policy being the 'Act Policy', the Insurance
Company is not liable to reimburse the owner of the
scooter. The Tribunal held that the Insurance
Company has to pay the compensation under the
(2008) 7 SCC 428
existing insurance policy. The High Court has
dismissed the appeal filed by the Insurance Company.
13(a). Before the Hon'ble Apex Court, the
question that arose for consideration was whether the
pillion rider on scooter would be a third party within
the meaning of Section 147 of the Motor Vehicles Act,
1988? The Hon'ble Apex Court referring to several
judgments at paragraphs-20, 21, 22 discussed about
the provision of law and also liability on the part of the
Insurance Company to cover the risk of the owner of
the vehicle when the policy is only a liability policy and
ultimately, at para-25 of its judgment held as under:
"20. The provisions of the Act and, in
particular, Section 147 of the Act were enacted
for the purpose of enforcing the principles of
social justice. It, however, must be kept confined
to a third-party risk. A contract of insurance
which is not statutory in nature should be
construed like any other contract.
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.
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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."
14. In view of the law being settled that in case
of liability of the Insurance Company, there is no legal
obligation under Section 147 of the M.V.Act to cover
the risk of the pillion rider in a two-wheeler and he
cannot be treated as a third party. In the absence of
payment of additional premium, the Hon'ble Apex
Court has held that the Insurance Company cannot be
held liable to indemnify the insured and set aside the
order of the Tribunal as well as the judgment of High
Court and exonerated the Insurance Company from
indemnifying the owner.
14.1. The facts of this case is amply applicable to
the above judgment. Admittedly, no additional
premium was paid. The policy under Ex.R1 is only
'liability only policy' and the risk of the third party as
contemplated under Section 147 of the M.V.Act is not
available to the petitioner being the pillion rider and
therefore, the finding recorded by the Tribunal that the
Insurance Company has to indemnify the owner cannot
be sustained.
15. I have carefully perused the impugned
judgment. The Tribunal has assigned the reasons that
RW-1, the officer of the Insurance Company has
admitted that there is a coverage of pillion rider under
Ex.R1/policy. The original records is made available
before this Court. On perusal of the cross-examination
of the Officer of the Insurance Company, there is no
such admission is noticed. The cross-examination is
misunderstood by the Tribunal as the law being settled
supra in Sudhakaran's case (supra), the Insurance
Company has no liability to indemnify the owner.
Hence, the appeal merits consideration accordingly. In
the result, the following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and award passed by
the Tribunal is modified;
(iii) The Insurance Company is exonerated from
indemnifying the owner as directed by the
Tribunal;
(iv) The petitioner is at liberty to recover the
compensation awarded by the Tribunal from
owner and rider of the motor cycle only.
(v) The amount in deposit shall be returned to
the Insurance Company.
Sd/-
JUDGE
KNM/-
CT:HS
