Karnataka High Court
New India Assurance Co Ltd vs Sri A Babu on 25 October, 2024
-1-
NC: 2024:KHC:43166
MFA No. 9636 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO. 9636 OF 2013 (MV-I)
BETWEEN:
NEW INDIA ASSURANCE CO. LTD.,
OPPOSITE H.P.O, UDUPI,
REPRESENTING NEW INDIA
ASSURANCE COMPANY,
NO.9, II FLOOR,
MAHALAKSHMI CHAMBERS,
M.G. ROAD, BANGALORE,
BY ITS MANAGER.
...APPELLANT
(BY SRI. R. JAIPRAKASH, ADVOCATE)
AND:
1. SRI. A. BABU,
S/O MADA MANAKALA,
R/AT BAILUMANE ANGALLI VILLAGE,
KUNDAPUR TALUK - 576 201.
Digitally
signed by
NANDINI R 2. SRI. SANDEEP POOJARY,
Location: AGED ABOUT 30 YEARS,
High Court of S/O NAGAPUJARI, THANIBERU,
Karnataka
BETTINAMANE ALUR VILLAGE,
KUNDAPUR TALUK - 576 201
...RESPONDENTS
(BY SRI. N.S. MALLIKARJUNA, ADVOCATE FOR
SRI. S.S. HAVERI, ADVOCATE FOR R2;
R1 - SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 18.07.2013 PASSED IN MVC
NO.907/2008 ON THE FILE OF THE ADDITIONAL DISTRICT AND
SESSIONS JUDGE, ADDITIONAL MACT, UDUPI, (SITTING AT
KUNDAPURA), KUNDAPURA, AWARDING COMPENSATION OF
-2-
NC: 2024:KHC:43166
MFA No. 9636 of 2013
Rs.1,03,460/- WITH INTEREST @ 7% P.A. FROM THE DATE OF
PETITION TILL PAYMENT.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE C M JOSHI
ORAL JUDGMENT
Heard learned counsel Sri.R.Jaiprakash appearing for
the appellant and learned counsel N.S.Mallikarjuna
appearing for the respondents.
2. The short point that arise in this appeal is
whether the appellant/Insurance Company is liable to pay
the compensation despite the offending vehicle auto
rickshaw was driven out side the permit area.
3. The claimant/respondent No.2 herein had filed
a claim petition in MVC No.907/2008 seeking
compensation on account of the injuries sustained in road
traffic accident dated 13.07.2008, wherein he was injured
due to the rash and negligent driving of the auto rickshaw
bearing registration No. KA-20-A-5969, which was insured
by the appellant herein.
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4. On issuance of notice, the appellant/Insurance
Company appeared before the Tribunal and took up the
contention amongst other grounds that the terms and
conditions of the policy were violated and therefore, it is
not liable to pay the compensation amount.
5. The Tribunal after framing of the appropriate
issues and letting in evidence by the parties, awarded a
compensation of Rs.1,03,460/- fastening the liability on
the Insurance Company despite there being a contention
that the auto rickshaw was being plied outside the permit
area. The award passed by the Tribunal was challenged by
the claimant in MFA.No.7872/2013, wherein the
enhancement of compensation was sought and it came to
be disposed of by order dated 26.09.2019 by this Court.
An enhancement of about Rs.33,000/- was allowed. In the
said proceedings, the pendency of the present appeal was
not brought to the notice of the Court and as such, the
present appeal remained for adjudication.
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6. Learned counsel appearing for the appellant
would submit that the Tribunal erred in holding that the
appellant/Insurance Company is liable to pay
compensation since there was evidence to show that the
auto rickshaw was being plied outside the permit area. In
this regard, he submits that the judgment in the case of
AMRIT PAUL SINGH AND ANOTHER V. TATA AIG
GENERAL INSURANCE CO. LTD. AND OTHERS1, lays
down the appropriate principle.
7. Learned counsel appearing for the
respondent/claimant would submit that the Tribunal in
para No.9 of the impugned judgment has dealt with the
matter and no interference is required. Perusal of para
No.9 of the impugned judgment would show that the
appellant/Insurance Company had taken up the contention
that the permit conditions were violated and even there
was evidence let in by the official of the Insurance
Company in the form of RW.1 reiterating the said
(2018) 7 SCC 558
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contention that the auto rickshaw was being plied outside
the permit area and as such, there is violation of
conditions of the Insurance Policy.
8. The Tribunal distinguishes the case on hand
after referring to a judgment in the case of NEW INDIA
ASSURANCE COMPANY LIMITED, BANGALORE V.
PAPAIAH AND OTHERS2. The Tribunal also held that
there is a defence set up by the claimant that the auto
rickshaw was being taken to garage for repairs and
therefore, the adequate evidence was not placed before it.
9. It is relevant to note that the contention of the
vehicle being plied within the permit area was taken up by
the claimant during the cross-examination of RW.1. In
order to establish the said fact, positive evidence should
have been led by the claimant. No such contention was
either taken in the petition or in the evidence of PW.1. It
was noted in the cross-examination of RW.1 that such a
defence was taken but RW.1 has denied the same.
2006 ACJ 126
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Therefore, the fact remains that the vehicle was being
plied outside the permit area and the evidence of RW.1 in
this regard is not effectively rebutted.
10. The resultant and effect would be that there is
infraction of the conditions of the policy and therefore, the
ratio laid down by the Apex Court in the case of AMRIT
PAUL SINGH (Supra) is applicable, wherein, it is held that
in case of infraction of the policy conditions, Insurance
Company is liable to satisfy the award and then, recover
the amount from the owner the vehicle. Hence, the
appeal succeeds. Hence, the following:
ORDER
The appeal is allowed.
The appellant is at liberty to recover the
compensation amount paid from the owner of
the vehicle i.e., respondent No.1 after paying
the same to the claimant/respondent No.2.
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The amount in deposit shall be transmitted
to the Tribunal.
Sd/-
(C M JOSHI)
JUDGE
PHM, NR
CT: BHK
