IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE K.N. PHANEENDRA R.P. NO.1146/2014 In MFA NO. 5101/2019(MV) BETWEEN:
THE BRANCH MANAGER UNITED INDIA INSURANCE CO. LTD BRANCH OFFICE, KAIKINI ROAD KARWARA.
BY UNITED INDIA INSURANCE CO. LTD., DIVISIONAL MANAGER NO.78, KRISHNA COMPLEX G.B. PANTH, UDUPI.
… PETITIONER (BY SRI. O.MAHESH, ADVOCATE) AND:
1. SUMITHRA KHARVI AGED ABOUT 36 YEARS, D/O GANAPATHI KHARVI, R/O KODI -KANYANA VILLAGE, SASTHANA POST, UDUPI TALUK-576 101.
2. NAGAPPA LAKKU KHARVI, MAJOR, S/O LAKKU KHARVI, MANIK VILLAGE AND POST, HONNAVARA TALUK,-576 201, NORTH KANNADA DISTRICT. ... RESPONDENTS (R1 - SERVED THROUGH PAPER PUBLICATION VIDE ORDER DATED 15.03.2018; R2-SERVED) THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE 1 OF CPC, PRAYING TO REVIEW THE ORDER DATED:27/08/2014 PASSED IN MFA NO. 5101/2009, ON THE FILE OF THE HON'BLE HIGH COURT OF KARNATAKA, BANGALORE.
THIS REVIEW PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 27.09.2019 COMING ON FOR ‘PRONOUNCEMENT OF ORDER, THIS DAY K.N.PHANEENDRA, J., PASSED THE FOLLOWING:
ORDER This Review Petition in MFA No.5101/2009 is filed by the appellant/petitioner to review the order passed by this court in MFA No.5101/2009(MV) dated 27.8.2014, mainly on the ground that this court has relied upon Ex.P5 cover note produced by the injured claimant without considering the policy issued by the company as per Ex.R1. This court ought to have seen that the policy does not cover the carrying of any passenger in a goods vehicle particularly in a three wheeler goods autorickshaw. Therefore, the said mistake is apparent on the face of the records. Therefore, the impugned order deserves to be reviewed.
2. Heard Sri. O. Mahesh., learned counsel appearing for the petitioner.
3. I have carefully perused the records of the Trial Court available once again. This court after considering the rulings cited by the learned counsel and also considering Ex.R1 and as well as Ex.P5 has come to the conclusion that the cover note issued on 24.9.2003 covers one passenger can be carried in the said vehicle. Though the learned counsel submits that under Section 147 of the Motor Vehicles Act, 1988, the driver is only person statutorily covered. But, by means of issuance of the cover note one passenger was also covered. Though under Ex.R1 it is seen that subsequently, on the next day, when the policy was issued, it did not cover the said one passenger. However, the cover note was issued on payment of same amount of premium for which the policy was subsequently issued.
4. Indian Motor Tariff describes the cover note that:
(1) Every cover note issued by the authorized insurer shall be in Form No.52 of Central Motor Vehicles Rules, 1989.
(2) A cover note referred to in Sub-rule (1) of Rule 142 of Central Motor Vehicles Rules, 1989, shall be valid for a period of 60 days from the date of its issue and the insurer shall issue a policy of Insurance before the date of expiry of the cover note.
5. The form of cover note also describes as follows:
“The insured described in Form No.52 referred to below; having proposed for insurance in respect of Motor Vehicles described therein and having paid the sum of Rs.4,010/- as premium, the risk is hereby held covered under the terms of the Company’s usual form of ‘B’ policy applicable thereto (subject and to any special conditions mentioned below) unless the cover be terminated by the Company by notice in writing in which case the insurance will be thereupon cease and a proportional part of the premium other-wise payable for such insurance shall be charged for the time the Company had been on risk.”
6. Therefore, on perusal of the above said tariff though the policy has been issued subsequently which does not cover the risk of a passenger under the above said goods vehicle, nevertheless the cover note earlier issued covered the said risk. There is no clarification issued as to what is the premium that was collected for the purpose of issuance of the cover note and what is the premium i.e., collected for the purpose of issuing the policy. If the premium collected, for issuance of cover note resulted in issuing the policy also, in such an eventuality, the insurance company cannot escape from the liability. In this context, it is worth to refer the provision u/s.147 of the Motor Vehicles Act, 1988. Section 147(4) of the Act reads thus – “147(4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made there under is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe.”
7. Further, added to the above, as noted by this court earlier, there is no denial regarding issuance of cover note. During the course of cross examination of PW-1, the insurance company has not cross examined anything about EX-P5. However, Ex.R1 was marked with consent. In the course of cross examination of PW-1, nothing has been elicited so far as this cover note is concerned though it is marked as Ex.P5, and nothing has been clarified by suggesting about the premium so far as the cover note and the policy is concerned. Therefore, there is a confusion crept in, in issuing the cover note and the policy. Therefore, in the absence of such materials on record, though the policy was issued without covering the risk of a passenger, the cover note has covered the same by collecting same premium.
8. In the above said circumstances, though the Insurance Company can avoid the liability u/s.149(2) of MV Act, but in view of the above said circumstances and the confusion, the Insurance Company cannot avoid liability to the third party, as the facts falls u/s.149(1) of the MV Act.
9. However, as the contract between the owner and the Insurance Company is, under the policy the Insurance Company shall pay the amount to the third party claimants and can recover the said amount from the owner under the same decree passed by this court.
Under the above said circumstances, Review Petition is partly allowed, allowing the appellant to pay the compensation to claimants and recover the same from the owner.
PL* Sd/- JUDGE