Karnataka High Court
M/S The Oriental Insurance Company ... vs H. Kencha Dyamappa on 22 October, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC:42492
MFA No. 7318 of 2012
C/W MFA No. 7317 of 2012
MFA No. 7319 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 7318 OF 2012 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 7317 OF 2012
MISCELLANEOUS FIRST APPEAL NO. 7319 OF 2012
IN MFA No. 7318/2012
BETWEEN:
M/S THE ORIENTAL INSURANCE COMPANY LIMITED
IML BUILDING, 1ST FLOOR, NO.221,
CUBBONPET MAIN ROAD,
N R SQUARE, BANGALORE - 560 002
THROUGH ITS REGIONAL OFFICE
LEO SHOPPING COMPLEX,
NO.44/45, RESIDENCY ROAD,
BANGALORE - 560 025.
Digitally signed by REPRESENTED BY ITS,
PAVITHRA B
Location: HIGH
REGIONAL MANAGER
COURT OF
KARNATAKA ...APPELLANT
(BY SRI. B S UMESH, ADVOCATE)
AND:
1. H. KENCHA DYAMAPPA
S/O RAMAPPA,
AGED 53 YEARS,
SINCE DECEASED BY HIS LRS
1(A) K RAVI KUMAR
S/O LATE KENCHA DYAMAPPA,
AGED ABOUT 51 YEARS,
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NC: 2024:KHC:42492
MFA No. 7318 of 2012
C/W MFA No. 7317 of 2012
MFA No. 7319 of 2012
1(B) K. PREMA
W/O NAGARAJU &
D/O LATE KENCHA DYAMAPPA,
AGED ABOUT 44 YEARS,
1(C) K. JAYALAKSHMI
W/O K V RAGHU,
AND D/O LATE KENCHA DYAMAPPA
AGED ABOUT 46 YEARS
2. SMT. G K SHANTAMMA
W/O H KENCHA DYAMAPPA
AGED ABOUT 59 YEARS
(ALL RESPONDENTS 1 TO 2 HEREIN
ARE RESIDING AT 2ND MAIN,
7TH CROSS, GANDHINAGAR
K H B COLONY,
YELAHANKA,
BANGALORE - 560 064
3. THE DIRECTOR
M/S BRINDAVAN BEVERAGES (P) LTD.,
NO. 44/1, BELLARY ROAD
KODIGEHALLI GATE,
HEBBAL,
BANGALORE - 560 024.
4. R S SHANKAR
S/O RAMIAH
AGE MAJOR,
EXACT AGE NOT KNOWN TO
APPELLANT
SETTYGERE,
CHIKKANAYAKAHALLI TALUK
TUMKUR DISTRICT - 572 226.
5. CHITTINI NAGESHWARA RAO
AGE MAJOR, FATHERS NAME &
EXACT AGE NOT KNOWN TO
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NC: 2024:KHC:42492
MFA No. 7318 of 2012
C/W MFA No. 7317 of 2012
MFA No. 7319 of 2012
APPELLANT
NO.44/1, KODIGEHALLI GATE
HEBBAL, BELLARY ROAD
BANGALORE - 560 024
6. H KENCHADYAMAPPA
S/O RAMAPPA
AGE MAJOR, EXACT AGE &
FATHERS NAME NOT KNOWN TO
APPELLANT
R/AT 2ND MAIN,
7TH CROSS,
GANDHINAGAR
K H B COLONY,
YELAHANKA,
BANGALORE - 560 064.
7. NATIONAL INSURANCE COMPANY
SRINIVASA MARKET COMPANY
CINEMA ROAD
DODDABALALPUR - 561 203
...RESPONDENTS
(BY SMT. P. VARALAKSHMI NAGARAJ ADVOCATE FOR R1(A-C)
SRI. ASHOK N PATIL ADVOCATE FOR R7;
SRI S BHARATH KUMAR ADVOCATE FOR R5;
R2, R4, R6 SERVED AND UNREPRESENTED;
V/O DATED 07/06/2017 SERVICE OF NOTICE TO R3 HELD
SUFFICIENT)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 08.02.2012 PASSED IN MVC
NO.2386/2000 ON THE FILE OF THE XIX ADDITIONAL SMALL
CAUSE JUDGE, MACT, BANGALORE, AWARDING A
COMPENSATION OF Rs.5,39,200/- WITH INTEREST @ 6% P.A.
OUT OF TIME.
IN MFA NO. 7317/2012
BETWEEN:
M/S THE ORIENTAL INSURANCE COMPANY LIMITED
IML BUILDING, 1ST FLOOR, NO.221,
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NC: 2024:KHC:42492
MFA No. 7318 of 2012
C/W MFA No. 7317 of 2012
MFA No. 7319 of 2012
CUBBONPET MAIN ROAD,
N R SQUARE, BANGALORE - 560 002
THROUGH ITS REGIONAL OFFICE
LEO SHOPPING COMPLEX,
NO.44/45, RESIDENCY ROAD,
BANGALORE - 560 025.
REPRESENTED BY ITS,
REGIONAL MANAGER
...APPELLANT
(BY SRI. B S UMESH.,ADVOCATE)
AND:
1. FRANKLIN S/O KANAKARAJ
AGED ABOUT 42 YEARS
R/AT NO.795, 31ST CROSS
TILAK NAGAR,
BANGALORE - 560 041
2. THE DIRECTOR
M/S BRINDAVAN BEVERAGES (P) LTD
NO.44/1, BELLARY ROAD
KODIGEHALLI GATE, HEBBAL
BANGALORE - 560 024
3. R S SHANKAR S/O RAMIAH
AGE MAJOR,
EXACT AGE NOT KNOWN TO APPELLANT
SETTYGERE,
CHIKKANAYAKAHALLI TALUK
TUMKUR DISTRICT - 572 226
4. CHITTINI NAGESHWARA RAO
AGE MAJOR, EXACT AGE &
FATHERS NAME NOT KNOWN TO APPELLANT
NO.44/1, KODIGEHALLI GATE
HEBBAL, BELLARY ROAD
BANGALORE - 560 024.
5. H. KENCHA DYAMAPPA
S/O RAMAPPA,
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NC: 2024:KHC:42492
MFA No. 7318 of 2012
C/W MFA No. 7317 of 2012
MFA No. 7319 of 2012
AGED 53 YEARS,
SINCE DECEASED BY HIS LRS
5(A) K RAVI KUMAR
S/O LATE KENCHA DYAMAPPA,
AGED ABOUT 51 YEARS,
5(B) K. PREMA
W/O NAGARAJU &
D/O LATE KENCHA DYAMAPPA,
AGED ABOUT 44 YEARS,
5(C) K. JAYALAKSHMI
W/O K V RAGHU,
AND D/O LATE KENCHA DYAMAPPA
AGED ABOUT 46 YEARS
5(D) SMT. G K SHANTAMMA
W/O H KENCHA DYAMAPPA
AGED ABOUT 59 YEARS
( RESPONDENTS (5 A TO D) TO HEREIN ARE
RESIDING AT 2ND MAIN,
7TH CROSS, GANDHINAGAR
K H B COLONY,
YELAHANKA,
BANGALORE - 560 064
6. NATIONAL INSURANCE COMPANY
SRINIVASA MARKET COMPANY
CINEMA ROAD
DODDABALALPUR - 561 203
...RESPONDENTS
(BY SMT. P VARALAKSHMI NAGARAJ ADVOCATE FOR R1,
R5( ATO D);
SRI. ASHOK N PATIL ADVOCATE FOR R6;
SRI. S BHARATH KUMAR ADVOCATE FOR R2;
R3 SERVED AND UNREPRESENTED'
V /O DATED 07.06.2017 SERVICE OF NOTOICE TO R4
ARE HELD SUFFICIENT)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
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NC: 2024:KHC:42492
MFA No. 7318 of 2012
C/W MFA No. 7317 of 2012
MFA No. 7319 of 2012
JUDGMENT AND AWARD DATED 08.02.2012 PASSED IN
MVC NO. 2385/2000 ON THE FILE OF THE XIX ADDITIONAL
SMALL CAUSE JUDGE, MACT, BANGALORE, AWARDING A
COMPENSATION OF RS.2,75,600/- WITH INTEREST @ 6%
P.A. ON Rs. 2,65,600/- FROM THE DATE OF PETITION TILL
DISPOSAL DATE.
IN MFA NO. 7319/2012
BETWEEN:
M/S THE ORIENTAL INSURANCE COMPANY LIMITED
IML BUILDING, 1ST FLOOR, NO.221,
CUBBONPET MAIN ROAD,
N R SQUARE, BANGALORE - 560 002
THROUGH ITS REGIONAL OFFICE
LEO SHOPPING COMPLEX,
NO.44/45, RESIDENCY ROAD,
BANGALORE - 560 025.
REPRESENTED BY ITS,
REGIONAL MANAGER
...APPELLANT
(BY SRI. B S UMESH.,ADVOCATE)
AND:
1. SUNNY DANIEL,
S/O N DANIEL,
AGED ABOUT 33 YEARS
RESIDING AT NO. 12/5 # 17/5
2ND MAIN, SLVT TEMPLE
STREET, CHIKKA ADUGODI
BANGALORE - 560 029.
2. THE DIRECTOR,
M/S BRINDAVAN BEVERAGES (P) LTD,
NO.44/1, BELLARY ROAD,
KODIGEHALLI GATE, HEBBAL,
BANGALORE - 560 024.
3. R S SHANKAR S/O RAMIAH
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NC: 2024:KHC:42492
MFA No. 7318 of 2012
C/W MFA No. 7317 of 2012
MFA No. 7319 of 2012
AGE MAJOR,
EXACT AGE NOT KNOWN TO APPELLANT
SETTYGERE,
CHIKKANAYAKAHALLI TALUK,
TUMKUR DISTRICT - 572 101.
4. CHITTINI NAGESHWARA RAO
AGE MAJOR, EXACT AGE &
FATHERS NAME NOT KNOWN TO APPELLANT
NO.44/1, KODIGEHALLI GATE
HEBBAL, BELLARY ROAD
BANGALORE - 560 024.
5. H. KENCHA DYAMAPPA
S/O RAMAPPA,
AGED 53 YEARS,
SINCE DECEASED BY HIS LRS
5(A) K RAVI KUMAR
S/O LATE KENCHA DYAMAPPA,
AGED ABOUT 51 YEARS,
5(B) K. PREMA
W/O NAGARAJU &
D/O LATE KENCHA DYAMAPPA,
AGED ABOUT 44 YEARS,
5(C) K. JAYALAKSHMI
W/O K V RAGHU,
AND D/O LATE KENCHA DYAMAPPA
AGED ABOUT 46 YEARS
5(D) SMT. G K SHANTAMMA
W/O H KENCHA DYAMAPPA
AGED ABOUT 59 YEARS
( RESPONDENTS (5 A TO D) TO HEREIN ARE
RESIDING AT 2ND MAIN,
7TH CROSS, GANDHINAGAR
K H B COLONY,
YELAHANKA,
BANGALORE - 560 064
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NC: 2024:KHC:42492
MFA No. 7318 of 2012
C/W MFA No. 7317 of 2012
MFA No. 7319 of 2012
6. NATIONAL INSURANCE COMPANY,
REPRESENTED BY HIS REGIONAL MANAGER,
SRINIVASA MARKET COMPANY
CINEMA ROAD
DODDABALALPUR - 561 203
...RESPONDENTS
(BY SRI. ASHOK N PATIL ADVOCATE FOR R6;
SRI. S. BHARATH KUMAR ADVOCATE FOR R2;
SMT. P. VARALAKSHMI NAGARAJ ADVOCATE FOR R5(A
TO D);
R3 SERVED AND UNREPRESENTED;
V/O DATED 07.06.2017 SERVICE OF NOTICE IS HELD
SUFFICIENT IN R1 AND R4
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 08.02.2012 PASSED IN
MVC NO.2387/2000 ON THE FILE OF THE XIX ADDITIONAL
SMALL CAUSE JUDGE, MACT, BANGALORE, AWARDING A
COMPENSATION OF Rs.72,000/- WITH INTEREST @ 6%
P.A. FROM THE DATE OF PETITION TILL DISPOSAL DATE
.21.12.2005.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
ORAL JUDGMENT
All the above three appeals viz., MFA Nos.7318/2012,
7317/2012 and 7319/2012 are filed by the appellant/The
Oriental Insurance Company Limited, challenging the
impugned common judgment and award dated 08.02.2012
passed in MVC Nos.2386/2000, 2385/2000 and
NC: 2024:KHC:42492
2387/2000, questioning the liability fixed on the
appellant/Insurance Company.
2. Brief facts of the case are:
That on 12.06.2000 when the claimants were
traveling in a Maruthi Van bearing Registration No.KA-03-
N-907 and reached near Geological Survey of India Office
on Ring Road at about 9.15 p.m., a Canter Lorry bearing
No.KA-04-1733 came with high speed and in a rash and
negligent manner and dashed against the Maruthi Van,
due to which, the claimants have sustained grievous
injuries and immediately they have taken treatment as
inpatients at St.John's Medical College Hospital.
Therefore, for having sustained injuries the claimants have
filed claim petition under Section 166 of the Motor Vehicles
Act, claiming compensation.
3. The Tribunal after appreciating the evidence on record
has awarded compensation of Rs.5,39,200/-,
Rs.2,75,600/- and Rs.72,000/- respectively, by saddling
liability on the appellant/Oriental Insurance Company
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NC: 2024:KHC:42492
Limited on the reason that the offending vehicle/Canter
Lorry was covered with Insurance Policy. Therefore, the
Tribunal held that the respondent /owner of the Canter
Lorry and the appellant/Oriental Insurance Company
Limited, are jointly and severally liable to pay the
compensation and accordingly, saddled the burden on the
appellant/Oriental Insurance Company Limited.
4. Aggrieved by the same, the appellant/Oriental
Insurance Company Limited has filed these appeals on the
ground that the appellant has not issued the Insurance
Policy towards coverage of insurance in respect of the
Canter Lorry bearing No.KA-04-1733. Therefore, on this
ground prays to set aside the impugned common
judgment and award passed by the Tribunal.
5. Learned counsel for the appellant/Oriental Insurance
Company Limited submitted that appellant has not issued
the Insurance Policy in respect of the Canter Lorry bearing
No.KA-04-1733 and also the appellant has examined its
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Officer as RW.1 and RW.1 has given the evidence that
appellant/Insurance Company has not at all issued any
Insurance Policy. But the Tribunal has given a strange
reason that the Officer, who has issued the policy, has not
been examined. Therefore, for this reason held that the
appellant/Insurance Company is liable to pay
compensation, is not correct. Learned counsel further
submitted that when it is the contention taken by the
appellant/Insurance Company and evidence of RW.1 that
the appellant has not at all issued any Insurance Policy,
then the observation made by the Tribunal that the
Officer, who issued policy is not examined, is completely
perverse approach in appreciating the evidence on record.
Therefore, prays to set aside/modify the judgment and
award passed by the Tribunal exonerating the
appellant/Insurance Company to pay the compensation.
6. The respondent/Chittini Nageshwara Rao, who is the
owner of the Canter Lorry remained ex-parte in spite of
service of notice on him.
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7. In the instant case, the Tribunal has held that
appellant/Insurance Company and respondent/Chittini
Nageshwara Rao are jointly and severally liable to pay
compensation on the reason that there was Insurance
policy in respect of Canter Lorry. The appellant in the
written statement has specifically taken a contention that
appellant/Insurance Company has not issued policy
towards canter lorry, also the appellant has examined its
officer as RW.1 and RW1 has deposed before the Tribunal
that the appellant/Insurance Company has not issued the
Insurance Policy in respect of the Canter Lorry bearing
No.KA-04-1733.
8. But the Tribunal has made strange observation that if
really the 2nd respondent (appellant herein) had not issued
the policy, at least he would have summoned the author,
who actually issued the policy to the said Canter Lorry.
This observation of the Tribunal is completely perverse
and illegal in nature. When the appellant has taken
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specific contention that the appellant has not issued
Insurance Policy and also examined its officer as RW.1,
who stated that Insurance Policy was not issued to the
Canter Lorry No.KA-04-1733, then where is the question
of examining the author of the policy, is lost sight by the
Tribunal. This shows non application of mind of the
Tribunal, while appreciating the evidence on record.
Hence, this is perverse approach of the Tribunal.
Therefore, when the Insurance Policy is not issued, as per
the contention taken by the appellant, then there is no
question of summoning and examining the Officer, who is
stated to have issued the policy. Therefore, this
observation of the Tribunal is liable to be set aside.
9. When the appellant/Insurance Company has taken
the contention that it has not issued the Insurance policy,
then the burden is on the respondent/Chittini Nageshwara
Rao-owner of the Canter Lorry to produce the Insurance
Policy. The 3rd respondent has examined its official as
RW.1 and has stated that the respondent/Chittini
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Nageshwara Rao is the owner of the Canter Lorry and in
support of his evidence, he has produced Ex.R4 showing
that the respondent/Chittini Nageshwara Rao is the owner
of the Canter Lorry bearing No.KA-04-1733. Therefore,
as per Ex.R4 and evidence of RW.2 it is proved that
respondent/Chittini Nageshwara Rao was the owner of the
Canter Lorry as on the date of the accident. Therefore,
the burden is on the respondent/Chittini Nageshwara Rao
to produce the Insurance Policy and to prove that there
was Insurance Policy in respect of the Canter Lorry bearing
No.KA-04-1733, but the respondent/Chittini Nageshwara
Rao has not discharged his burden. Therefore, when there
is no proof that policy was issued in respect of the Canter
Lorry, then the appellant is not liable to indemnify and to
pay the compensation. Therefore, the respondent/Chittini
Nageshwara Rao being the owner of the Canter Lorry is
liable to pay compensation to the claimants. Hence the
burden fixed on the appellant/Insurance Company to pay
compensation, is hereby set aside. Therefore, the above
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three appeals are liable to be allowed. Accordingly I
proceed to pass the following :-
ORDER
a. All the above three appeals viz., MFA
Nos.7318/2012, 7317/2012 and 7319/2012 are
allowed;
b. The impugned common judgment and award
dated 08.02.2012 passed in MVC Nos.2386/2000,
2385/2000 and 2387/2000 by the XIX Additional
Small Cause Judge, MACT, Bangalore, is modified
holding that the respondent/Chittini Nageshwara
Rao, who is the owner of the Canter Lorry bearing
No.KA-04-1733, is liable to pay the
compensation.
c. The burden saddled on the appellant/Insurance
Company to pay compensation is hereby set
aside;
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d. The amount in deposit made by the
appellant/Insurance Company shall be returned to
the appellant/Insurance Company.
e. Registry is directed to transmit the Trial Court
Records to the concerned Tribunal forthwith.
f. No order as to costs.
SD/-
(HANCHATE SANJEEVKUMAR)
JUDGE
NG
List No.: 1 Sl No.: 24 CT:RK
