Karnataka High Court
The Legal Manager vs Sannappa @ Sannarangappa on 2 September, 2024
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NC: 2024:KHC:35767
MFA No. 929 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
MISCELLANEOUS FIRST APPEAL NO. 929 OF 2021 (MV-D)
BETWEEN:
THE LEGAL MANAGER
CHOLAMANDALAM MS GIC LTD
HASSAN
NOW REP BY ITS LEGAL MANAGER
SR. MANAGER-CLAIMS,
CHOLAMANDALAM MS GIC LTD
NO.1/2, GOLDEN HEIGHTS, 6TH FLOOR,
59TH C CROSS, 4TH M BLOCK, RAJAJINAGAR
BANGALORE 10
...APPELLANT
(BY SRI. PRADEEP B.,ADVOCATE)
AND:
1. SANNAPPA @ SANNARANGAPPA
S/O RANGAPPA
Digitally signed by AGED ABOUT 42 YEARS
AASEEFA PARVEEN
Location: HIGH R/O KENGURUBARAHATTI VILALGE
COURT OF
KARNATAKA BANAVARA HOBLI, ARSIKERE TQ
HASSAN DISTRICT
2. SEETHARAMU K S
S/O SIDDAPPA
33 YEARS
REST - DO -
...RESPONDENTS
(BY SRI. MOHAN S.,ADVOCATE FOR R1 ABSENT
R2 SERVED UNREPRESENTED)
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MFA No. 929 of 2021
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 29.05.2020 PASSED IN MVC
NO.488/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
MMACT, KADUR, CHIKKAMAGALUR DISTRICT, AWARDING
COMPENSATION OF RS. 5,00,000/- WITH INTEREST AT 7
PERCENT P.A. FROM THE DATE OF PETITION TILL
REALIZATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
ORAL JUDGMENT
Heard Sri Pradeep.B, learned counsel for the appellant.
Though Sri Mohan.S is on record representing respondent
no.1, learned counsel has failed to make his appearance.
2. Disputing its liability to pay compensation, the
Insurance Company is before this Court challenging the
order that is rendered by the Motor Accidents Claims
Tribunal, Kadur in MVC No.488/2016 dated 29.5.2020.
3. Undisputedly, a boy by name Bhagavan died in a road
traffic accident that occurred on 14.5.2015. By the date of
death, he was aged about 13 years.
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4. The father of Bhagavan (hereinafter referred to as
'deceased' for brevity) moved an application claiming
compensation. His version is that on 14.5.2015 while the
deceased was traveling in a Tata Ace vehicle bearing
registration No.KA.13/B-0308 from Kengurubarahatti to
Devarhalli village, he was thrown out from the said vehicle
due to which he sustained grievous head injuries and died
due to the injuries sustained.
5. The appellant herein resisted the claim raising a plea
that the terms and conditions of policy does not cover risk
of the deceased. The Tribunal, however, fastened the
liability against the appellant-Insurance Company and
ordered it to pay compensation of Rs.5,00,000/-.
6. Arguing the matter, Sri B Pradeep, learned counsel,
contends that the deceased was traveling in the offending
vehicle as gratuitous passenger and risk of the gratuitous
passenger is not covered under the terms and conditions
of Ex.R.2-policy and therefore, the Tribunal ought to have
exonerated the appellant from paying compensation.
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Learned counsel states that when there is clear violation of
terms and conditions of the policy, no liability can be
fastened against the Insurance Company.
7. Admittedly by all the evidence produced, it is clearly
brought on record that while the deceased was traveling in
the offending vehicle, he was thrown out from the said
vehicle, thereby he fell on the ground, sustained injuries
and died. Though owner of the vehicle took a plea that
deceased tried to board the moving vehicle, he lost control
and fell down, but the convincing evidence produced by
the claimant speaks otherwise. The manner of happening
of accident is established in clear terms and that it
occurred while deceased was traveling in the offending
vehicle. It is not the version of either the owner of the
vehicle or claimant that Ex.R.2 policy covers risk of the
gratuitous passenger. Submitting that no liability can be
fastened as the risk was not covered under the terms and
conditions of the policy, learned counsel for appellant
relied upon the decision of the Hon'ble Apex Court in the
case between Balu Krishna Chavan v. Reliance General
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Insurance Co. Ltd., 2022 SCC OnLine SC 2331 . In the said
decision, dealing a similar situation i.e., where gratuitous
passenger was traveling in the offending vehicle, the
Hon'ble Apex Court at paras (8) to (14) of the judgment
held as under :-
"8. Hence, the only aspect for our
consideration herein, is as to whether in the facts
and circumstances of the present case, an order to
direct the Insurance Company to "pay and recover",
is required to be made. On this aspect, the law is
well settled that if the liability of the Insurance
Company is decided and they are held not to be
liable, ordinarily, there shall be no direction to "pay
and recover". However, in the facts and
circumstances arising in each case, appropriate
orders are required to be made by this Court to meet
the ends of justice.
9. In the instant case, the appellant has relied
on the judgment dated 21.02.2017 passed by this
Court in Civil Appeal No(s).3047 of 2017 titled as
"Manuara Khatun v. Rajesh Kr. Singh". In the said
case also, a Bench of this Court, having referred to
the earlier decisions in Para-15 and 16 of that
Judgment, has concluded that normally, there would
be no order to "pay and recover". However, in the
said facts, this Court, to meet the ends of justice,
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had taken into consideration the fact situation
though, the claimant therein, was a 'gratuitous
passenger' and had kept in view that the benevolent
object of the Act and had directed the payment by
the Insurance Company and to recover the amount.
10. Therefore, on the legal aspect, it is clear
that in all cases such order of "pay and recover"
would not arise when the Insurance Company is not
liable but would, in the facts and circumstances, be
considered by this Court to meet the ends of justice.
11. If this aspect of the matter is kept view, in
the instant facts, it is noticed that the appellant, as
on the date of the accident, was aged about 19 years
and due to the injuries suffered in the accident by
him, his left leg was amputated below the knee.
12. Even, if the contention that the appellant
was in the vehicle getting trained to be as a cleaner,
is not taken into consideration, the fact remains that
any other avocation that is to be undertaken by the
appellant would involve physical labour which the
appellant will not be able to perform and in such
circumstance, if the appellant is not able to realise
the amount of compensation awarded in his favour at
this stage from the owner of the vehicle, the
appellant would be prejudiced. However, the
Insurance Company, if ordered to pay to the
appellant and recover it from the owner of the
vehicle, it would not be prejudiced to that extent.
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13. Therefore, keeping all aspects in view, and
not making this case as a precedent, but, only to
serve the ends of justice in the f736acts of this case,
we direct that respondent no. 1 (Insurance
Company) to deposit the compensation amount
before the MACT within eight weeks from the date of
the receipt of a copy of this judgment, whereupon,
the MACT shall disburse the amount of compensation
to the appellant.
14. The respondent no. 1 (Insurance
Company) is reserved the liberty to recover the
compensation from the owner of the vehicle."
8. In the case on hand, a boy of 13 years old died in a
road traffic accident that too due to rash and negligent
driving of the offending vehicle. The owner who validly
insured his vehicle permitted the deceased to travel in the
said vehicle. Though the deceased was traveling as a
gratuitous passenger, yet having considered the fact that
the boy lost his life at a tender age and that his father has
to lead his entire life in grief and further taking into
consideration the contents of the aforementioned decision
where, exhibiting a view that the Motor Vehicles Act is a
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welfare legislation, the Hon'ble Apex Court has ordered the
Insurance Company to pay the amount awarded granting
liberty to recover the same from the owner, this Court
considers desirable to allow the appeal in part ordering
pay and recover.
9. Sri B Pradeep, learned counsel also raised a plea with
regard to grant of interest. The Tribunal ordered the
Insurance Company to pay awarded amount of
Rs.5,00,000/- with interest at the rate of 7% p.a.
However, interest to be awarded should be in consonance
with banking rate of interest at the relevant period.
Therefore, this Court is of the view that award amount is
liable to be paid with interest at the rate of 6% p.a. Thus,
the appeal is disposed of with the following :
ORDER
i) The appeal is allowed in part;
ii) The appellant is directed to deposit total
compensation of Rs.5,00,000/- with interest at
the rate of 6% p.a. from the date of petition till
the date of deposit;
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iii) On such deposit, the appellant is permitted to
recover the same from respondent no.2/owner of
the vehicle by initiating appropriate proceedings;
iv) Amount if any, in deposit be transmitted to
the concerned Tribunal forthwith.
Sd/-
(DR.CHILLAKUR SUMALATHA)
JUDGE
rs
