Karnataka High Court
The Oriental Insurance Co. Ltd vs Irawwa W/O. Shankrappa Rathod on 6 January, 2025
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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MFA No. 22983 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.22983 OF 2012 (MV-D)
BETWEEN:
THE ORIENTAL INSURANCE COMPANY LIMITED,
R/BY ITS DIVISIONAL MANAGER,
MADIWAL BUILDING, CLUB ROAD, BELAGAVI,
R/BY ITS ASST. MANAGER, REGIONAL OFFICE,
SUMANGALA COMPLEX, LAMINGTON ROAD, HUBLI-29.
...APPELLANT
(BY SRI G.N. RAICHUR, ADVOCATE FOR APPELLANT (V/C))
AND:
1. SMT. IRAWWA W/O. SHANKRAPPA RATHOD,
AGE: 44 YEARS, OCC: HOUSEHOLD WORK,
R/O. CHANAPUR LAMANI TANDA,
TQ: RAMDURG, DIST: BELAGAVI.
2. SMT. GEETA SHIVASHING RAJPUT,
AGE: MAJOR, OCC: BUSINESS,
R/O. PLOT NO.26, H.NO.2, FORT,
BELAGAVI, DIST: BELAGAVI.
(OWNER OF TRACTOR AND TRAILER
NO.KA-22/6219 AND 6220)
Digitally signed by
MALLIKARJUN
RUDRAYYA 3. SRI SHANKAR @ SHANKRAPPA
KALMATH
Location: HIGH S/O. SONAPPA RATHOD,
COURT OF AGE: MAJOR, OCC: DRIVER,
KARNATAKA
R/O. CHANAPUR DODDA LAMANI TANDA,
TQ: RAMDURG, DIST: BELAGAVI.
...RESPONDENTS
(BY SRI SHIVARAJ S.BALLOLLI, ADVOCATE FOR R1;
SRI HARISH S.MAIGUR, ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE M.V.ACT, SET ASIDE THE JUDGMENT AND
AWARD DATED 09.04.2012, PASSED IN MVC NO.1983/2010 PASSED
BY THE FAST TRACT COURT-III AND ADDL. MACT, BELAGAVI BY
ALLOWING THIS APPEAL WITH COST IN THE ENDS OF JUSTICE AND
EQUITY.
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MFA No. 22983 of 2012
THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR
HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)
This appeal is filed under Section-173(1) of the Motor
Vehicles Act, 1988 (hereinafter referred to as 'MV Act' for
brevity) by the appellant - Insurance Company, challenging the
judgment and award dated 09.04.2012, passed in MVC
No.1983/2010, on the file of Fast Track Court-III and Additional
M.A.C.T, Belgaum (hereinafter referred to as 'the Tribunal' for
brevity), questioning the liability fastened on it to pay
compensation to the claimants.
2. It is the case of claimant that on 11.02.2007 the
deceased Kumar was waiting for his father i.e., respondent
No.3 herein near Shivabasav Nagar Kalyan Mantap Cross,
Belgaum and the respondent No.3, who was driver on the
tractor and trailer No.KA-22/6219 and 6220, was coming
towards circle to go to Gangwadi. When respondent No.3, the
driver on the said tractor and trailer was about to stop the
vehicle near Kalyan Mantap, the vehicle moved further from
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Kalyan Mantap, meanwhile the deceased Kumar was about to
get into the said tractor and at that time, deceased Kumar
came in contact with left wheel of the said tractor and jumped
into ground. Consequently, wheel of tractor ran over on the
deceased Kumar, due to which, the deceased Kumar died on
the spot. Therefore, the claim petition is filed under Section
163-A of the M.V Act for seeking compensation. The Tribunal
has allowed the petition in part and granted compensation of
Rs.2,50,000/- along with interest at the rate of 8% per annum
from the date of petition till its realization by fastening liability
on the Insurance Company.
3. The Insurance Company has preferred the
appeal on the ground that the deceased Kumar was traveling in
the tractor and trailer as a gratuitous passenger by sitting on
the mudguard of the tractor engine. Therefore, in view of the
full bench decision of this Court in the case of
GADHILINGAPPA @ GADHILINGA And Another VS K.
GULEPPA S/O K LINGAPPA AND OTHERS1, the Insurance
Company is not liable to indemnify the owner of the vehicle and
therefore prays to exonerate the Insurance Company.
ILR 2021 KAR 3377
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4. Heard arguments from both the sides and
perused records.
5. Though the claimant has taken a different stand
in the claim petition as stated above, but registers a complaint
with FIR and charge sheet (Ex.R5) being laid, it is proved that
the deceased Kumar, a minor, aged 13 years old was travelling
on the tractor engine by sitting on the mudguard. It is the
complaint given at earliest point of time that the deceased
Kumar was travelling by sitting on the mudguard of the tractor
engine, who is son of respondent No.3, who was driving the
tractor. Therefore, it is proved that the deceased was
gratuitous passenger, being a minor, son of the respondent
No.3, has travelled by sitting on the mudguard of the tractor.
The issue is purely covered by the full bench decision of this
Court in the case of GADHILINGAPPA @ GADHILINGA
referred supra. Therefore, the Insurance Company is not liable
to indemnify the owner of the vehicle and thus is liable to be
exonerated from paying the compensation.
6. However, in similar facts and circumstances of
the case where the deceased was travelling in the tractor by
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sitting on mudguard of the tractor as a gratuitous passenger,
then the Hon'ble Supreme Court in the cases of
V. RENGANATHAN AND ANOTHER VS. BRANCH MANAGER,
UNITED INDIA INSURANCE COMPANY LIMITED AND
ANOTHER2 (V. RENGANATHAN CASE) and ORIENTAL
INSURANCE COMPANY LIMITED VS. DULARI DEVI AND
OTHERS3 (DULARI DEVI CASE), the Hon'ble Supreme Court
was pleased to pass an order of pay and recovery.
7. In the case of V. RENGANATHAN referred
supra, the Hon'ble Apex Court has observed as under:
"5. We find no fault with the finding of the High Court
that the insurance company could not be held liable for
the payment of compensation in view of the judgment of
3-Judge Bench of this court in the case of New India
Assurance Co.Ltd. v. Asha Rani, 2003 ACJ 1 (SC).
However, at the same time, we find that in view of the
settled position, the High Court ought to have partly
allowed the appeal. We may gainfully refer to the
observations of this court in similar facts at para 10 of the
judgment of this court in Shivaraj v. Rajendra, 2018 ACJ
2755 (SC).
2023 ACJ 623
2023 ACJ 1243
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6. As already observed, the facts in the present case
are similar to the facts in the case of Shivaraj v. Rajendra
(supra).
7. In the present case also, the High Court ought to
have partly allowed the appeal preferred by the insurance
company and ought to have directed it to pay the amount
of compensation to the appellants and granted liberty to
recover the same from the tractor owner.
8. We are, therefore, inclined to allow the appeal. We
uphold the finding of the High Court that the respondent
No.1-insurance company cannot be held liable for
payment of compensation. At the same time, we direct
the respondent No.1-insurance company to pay the
compensation to the appellants-claimants as determined
by the learned Tribunal with interest as specified in the
order within three months from today with liberty to
recover the said amount from the owner of the vehicle."
8. Further, in the case of DULARI DEVI CASE
referred supra, it is observed at paragraph Nos.6 and 7 as
follows:
"6. It has been held by Hon'ble Supreme Court in
National Insurance Co. Ltd. V. Baljit Kaur, 2004 ACJ 428
(SC), that the insurance company cannot be made liable
to pay the compensation for gratuitous passengers who
were neither contemplated at the time when the contract
of insurance was made nor any premium was paid. The
sum and substance of the ratio decided in Baljit Kaur's
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case (supra) is that in case of gratuitous passenger the
insurance company is not liable to indemnify the owner of
the vehicle for paying compensation on ground of breach
of terms of insurance policy, but it has a liability to pay
compensation to the third party and recover the same
from the owner of the vehicle.
7. Here in the present case there is a definite finding
of fact recorded by the learned Tribunal that the deceased
was traveling on the mudguard of the tractor at the
relevant time of the accident. Permitting a person to
travel on the tractor when it could accommodate only one
person, namely, driver, by the owner of the vehicle is a
breach of terms and conditions of the policy and therefore
in view of the ratio of the Hon'ble Apex Court in Shivaraj
v. Rajendra, 2018 ACJ 2755 (SC), the insurance company
was not liable to pay the compensation amount. However,
the insurance company shall pay the compensation
amount to the claimants with liberty to recover the same
from the owner of the tractor."
9. Therefore, in view of the principles of law laid
down by the Hon'ble Supreme Court referred supra, in the
present case also, since the deceased Kumar has travelled as a
gratuitous passenger on the tractor by sitting on the mudguard
of the tractor, hence the Insurance Company though is not
liable to pay compensation, but an order of pay and recovery
directing the appellant-Insurance Company to pay
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compensation at the first instance and then recover it from the
owner of the tractor and trailer No.KA-22/6219 and 6220 can
be made.
10. The Hon'ble Supreme Court in the case of
ORIENTAL INSURANCE COMPANY LIMITED VS.
NANJAPPAN AND OTHERS4 has held as follows:
"8. Therefore, while setting aside the judgment of the
High Court we direct in terms of what has been stated in
Baljit Kaur's case (supra) that the insurer shall pay the
quantum of compensation fixed by the Tribunal, about
which there was no dispute raised, to the respondent
claimants within three months from today. For the purpose
of recovering the same from the insured, the insurer shall
not be required to file a suit. It may initiate a proceeding
before the executing court concerned as if the dispute
between the insurer and the owner was the subject-matter
of determination before the Tribunal and the issue is
decided against the owner and in favour of the insurer.
Before release of the amount to the claimants, owner of the
vehicle shall be issued a notice and he shall be required to
furnish security for the entire amount which the insurer will
pay to the claimants. The offending vehicle shall be
attached, as a part of the security. If necessity arises the
executing court shall take assistance of the Regional
Transport Authority concerned. The executing court shall
pass appropriate orders in accordance with law as to the
manner in which the insured, owner of the vehicle shall
make payment to the insurer. In case there is any default it
shall be open to the executing court to direct realization by
disposal of the securities to be furnished or from any other
property or properties of the owner of the vehicle, the
AIR 2004 SC 1630
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insured. The appeal is disposed of in the aforesaid terms,
with no order as to costs. Order accordingly."
11. The Insurance Company is at liberty to file
Execution Petition directly before the concerned Jurisdictional
Court and may seek attachment of movable or immovable
properties or both of the owner of the tractor and trailer and
recover the amount as per law as observed in NANJAPPAN
case referred supra.
12. Accordingly, I proceed to pass the following:
ORDER
a) The appeal is allowed-in-part.
b) The impugned judgment and award passed by the
Tribunal in MVC No.1983/2010 dated 09.04.2012
by the Fast Track Court-III and Additional M.A.C.T,
Belgaum is hereby modified holding that the
Insurance Company is exonerated from its liability.
However, the Insurance Company shall pay
compensation to the claimants at the first instance
and then recover it from the owner of the tractor
and trailer as observed above.
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c) The amount in deposit made by the appellant shall
be transmitted to the Tribunal.
d) Costs made easy.
e) Ordered accordingly.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
PMP
