Karnataka High Court
National Insurance Co. Ltd vs Sri Govindappa on 28 October, 2024
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NC: 2024:KHC:43419
MFA No. 3920 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO. 3920 OF 2013 (MV-I)
BETWEEN:
NATIONAL INSURANCE CO. LTD.
REGIONAL OFFICE, NO.144
SUBHARAM COMPLEX, M.G.ROAD
BANGALORE - 560 001
REP. BY ITS DEPUTY MANAGER MR. R.RAVI ... APPELLANT
(BY SRI.B.C.SEETHARAMA RAO, ADV.)
AND:
1. SRI. GOVINDAPPA
AGED ABOUT 50 YEARS
S/O LATE CHIKKA VENKATAPPA
R/AT DODDA ATHI VILLAGE
RAJENDRAHALLI POST
MULABAGAL TALUK
KOLAR DISTRICT - 563 131
Digitally signed by
CHANDRASHEKAR 2. MR. K. V. MADHUKAR, MAJOR
LAXMAN
KATTIMANI
Location: HIGH
S/O VENKATACHALAPATHY
COURT OF
KARNATAKA R/AT KATARIPALYA, KOLAR - 563 101
... RESPONDENTS
(BY SRI.N.GOPALAKRISHNA, ADV. FOR R1;
R2 SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 23.03.2013 PASSED
IN MVC NO.3722/2008 ON THE FILE OF THE XVI ADDITIONAL
JUDGE, MACT, BANGALORE, AWARDING COMPENSATION OF
RS.5,86,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF
PETITION TILL PAYMENT.
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MFA No. 3920 of 2013
THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT
COMING ON FOR PRONOUNCEMENT THIS DAY,
T.G.SHIVASHANKARE GOWDA, J., DELIVERED/PRONOUNCED THE
FOLLOWING:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
JUDGMENT
In this second round of litigation, the Insurance
Company is challenging the judgment and award dated
23.03.2013 passed in M.V.C.No.3722/2008 by the XVI
Additional Judge & MACT, Bangalore (SCCH-14).
2. 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, on 13.08.2007 at 7.30
p.m., while the petitioner as pillion was riding the motor
cycle bearing Reg.No.KA-07/J-9539 ridded by one Ravi,
near Budaderu village gate, on Mulabagal - Punganur
road, the motor cycle fell into the road side ditch, due to
which, the petitioner sustained head injury. He was
treated at R.L.Jalappa Hospital, Kolar under hospitalization
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and also at Abhaya Hospital, Bangalore. After taking
treatment, the petitioner has approached the Tribunal for
grant of compensation of Rs.50 lakhs. The Insurance
Company has opposed the claim. The Tribunal, after
taking the evidence and hearing both the parties by
judgment dated 25.03.2010 allowed the claim petition
against the owner and the Insurance Company by
awarding compensation of Rs.5,89,976/-. Aggrieved by
the same, the Insurance Company has filed an appeal in
M.F.A.No.6953/2010. This Court by order dated
21.11.2012 allowed the appeal and remanded the matter
by affording an opportunity to both parties to lead
additional evidence with a direction to the Tribunal to
decide the claim petition afresh in accordance with law.
3.1. After remand, the Tribunal has taken up the
matter, after recording additional evidence and hearing
the counsel for the petitioner as well as the Insurance
Company by impugned judgment allowed the claim
petition by awarding compensation of Rs.5,86,000/- and
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fastening the liability against the Insurance Company to
pay compensation. Aggrieved by the same, the Insurance
Company is before this Court on various grounds.
4. Heard the arguments of Sri.B.C.Seetharama Rao,
learned counsel for the Insurance Company and
Sri.N.Gopalakrishna, learned counsel for the petitioner.
5. It is contended by the learned counsel for the
Insurance Company that, the petitioner was the rider of
the motor cycle and not Ravi. When the petitioner was
brought to R.L.Jalappa Hospital, Kolar, it was reported that
the petitioner was under intoxication. The Tribunal has
relied on the previous judgment itself inspite of the same
being set aside in the appeal. The medical evidence
clearly shows that the accident was due to fall from the
bike while riding the motor cycle under the influence of
alcohol. The said evidence has been ignored by the
Tribunal. There is inordinate delay in seizure of the motor
cycle in question.
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5.1. It is further contended that, post-remand, the
claim was dismissed against the owner of the vehicle. The
Tribunal ought to have dismissed the claim against the
Insurance Company as there is no direct liability against it.
The role of the Insurance Company comes only if there is
any liability against the owner of the vehicle and the
insurer has to indemnify the insured. When the claim
itself was dismissed against the insured and there is no
question of Insurer indemnifying the insured at all. The
Tribunal without considering this aspect has allowed the
claim petition, which needs interference.
6. Per contra, learned counsel for the petitioner has
contended that notice of the claim petition was originally
served on the owner of the vehicle, who is placed exparte.
Post-remand, notice was not served on the owner. Since
the notice of the claim petition was already served on the
owner of the vehicle, same is sufficient and the Tribunal
has rightly held that both respondents are jointly and
severally held liable to pay compensation.
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6.1. It is further contended that when the petitioner
was brought to R.L.Jalappa Hospital, he was under
unconscious state. There is no evidence on record to show
as to who gave the history of the accident. Even though
the petitioner was under intoxication, he was a pillion
rider, he has nothing to do with the accident and
therefore, the Tribunal is right in accepting the case
pleaded by the petitioner and the Insurance Company
cannot avoid its liability.
7. I have given my anxious consideration to the
arguments addressed on behalf of both parties and
perused the records.
8. This is the second round of litigation between
the parties. In the first round, the petitioner was awarded
with compensation of Rs.5,89,976/-. The said award
came to be set aside by this Court as per the order dated
21.11.2012 in M.F.A.No.6953/2010. After remand, the
matter was taken up by the Tribunal, the petitioner
appeared through his advocate.
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9. On perusal of the order sheet of the Tribunal, it
is pertinent to note that on 20.12.2012, post-remand, the
Tribunal passed order directing Court notice to the owner
and the insurer of the motor cycle to appear on
31.12.2012. Accordingly, notice was dispatched. The
owner of the vehicle resides within the jurisdiction of Kolar
District. The notice was sent through Process Nazer, Kolar
on 01.01.2013. Said notice was returned as same was
received after the hearing date on 31.12.2012. On
31.12.2012, the Tribunal posted the case to 15.01.2013
awaiting notice of the respondents. On 15.01.2013, notice
was directed against the respondents by fixing the date of
hearing as 31.01.2013. The Advocate for the Insurance
Company has voluntarily appeared and taken notice.
9.1 From 31.01.2013, matter was posted to
12.02.2013 for taking steps, then to 16.02.2013. No
steps were taken on those dates. When the matter was
called on 19.02.2013, there was no representation on
behalf of the petitioner. Hence, the matter was posted for
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taking steps in respect of owner of the motor cycle on
22.02.2013. On that day, since there was no
representation on behalf of the petitioner and no steps
was taken in respect of the owner of the vehicle, who is
the first respondent, the claim petition came to be
dismissed for default. Thereafter matter was proceeded
against the Insurance Company and the impugned award
came to be passed, hence, the Insurance Company is
before this Court.
10. Post remand as per the order of this court in
M.F.A.No.6953/2010 the tribunal is required to provided
opportunity to both petitioner and the respondents to lead
additional evidence. Presence of the petitioner and
respondents is required to be secured and then the matter
ought to have been adjudicated on merits. Notice issued
to respondent No.1 by the Tribunal was not at all served,
case was posted for taking steps against owner but the
petitioner and his counsel were remained absent. No
steps were taken against the owner of the motor cycle and
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ultimately, on 22.02.2013 the claim is dismissed against
the owner of the vehicle.
11. In view of dismissal of the claim against the
owner of the vehicle, as contended by the learned counsel
for the petitioner, whether service of notice of claim
petition at the first round of litigation is sufficient. While
setting aside the judgment and award of the Tribunal this
court specifically directed the Tribunal to provide
opportunity to both sides. No evidence is placed on record
to show the owner of the vehicle was made known about
remand. Post remand independent notice is necessary to
the owner. In view of the same Tribunal rightly directed
notice. Hence petitioner now cannot say service of notice
during first round is sufficient service for 2nd round.
12. First respondent was served with the notice
during first round of litigation. Post-remand, no notice
was served on the first respondent nor any steps is taken.
It is the duty on the part of the Tribunal to secure the
presence of respondent No.1. The Insurance Company is
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the insurer. The owner of the vehicle is insured. The
liability on the part of the Insurance Company arises only
if there is liability fastened against the owner of the
vehicle. Here in this case, the Tribunal committed an error
in fastening liability against the respondent No.1 inspite of
dismissing the claim petition as per its order dated
22.03.2013. When the claim petition was dismissed
against the owner of the vehicle for default, the Tribunal
ought to have dismissed the claim petition against both
respondents as the claim against the Insurance Company
becomes infructuous. Unless liability is fastened against
the owner, role of the Insurance Company does not arise.
In the instant case, once the claim was dismissed against
the owner of the vehicle on 22.03.2013, there is no claim
petition pending against the owner and thereby there is no
claim at all. Therefore, the role of the Insurance
Company does not arise. In view of this, it is not proper
to touch upon the merits of the claim.
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13. The Tribunal in the impugned judgment though
referred that the claim petition was dismissed against the
owner of the vehicle, it has fastened the liability against
both the owner and Insurance Company. There is no
provision to directly fasten the liability against the
Insurance Company. The role of the Insurance Company
comes only if liability is fastened against the owner of the
vehicle first, as the insurer, then the Insurance Company
has to indemnify the insured under contract of insurance.
After dismissal of claim against the owner of the vehicle
Tribunal has no jurisdiction to fasten liability against the
owner and consequently against the Insurance Company.
Thereby the Tribunal has committed an error in again
fastening liability against the owner of the vehicle.
14. Having regard to the circumstances of the case,
without the presence of the owner of the vehicle,
adjudication of the claim petition by the Tribunal is
erroneous. Though the petitioner is not in appeal, in the
interest of justice, the matter requires to be remanded to
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the Tribunal with a direction to the Tribunal to secure the
presence of the owner of the vehicle and then to
adjudicate the claim in accordance with law.
15. In the light of the above discussion, the appeal
merits consideration, in the result, the following:
ORDER
i) The appeal is allowed.
ii) The impugned judgment and award is set
aside.
iii) The matter is remanded back to the Tribunal
to the stage of taking steps in respect of
respondent No.1/owner of the motor cycle;
iv) The Tribunal shall direct the petitioner to
secure the presence of the owner of the
vehicle and then to decide the case purely on
merits in accordance with law;
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iv) Without further notice, the parties shall
appear before the Tribunal on 25th
November 2024.
v) The amount in deposit, if any, shall be
transmitted to the Tribunal.
Sd/-
(T.G. SHIVASHANKARE GOWDA)
JUDGE
KNM/-
CT:HS
