IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 29TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H P SANDESH M.F.A.NO.10362 OF 2012 (MV) BETWEEN:
The Branch Manager, United India Insurance Company Limited, Basavanagudi, Bengaluru-560004.
By Regional Manager, United India Insurance Co. Ltd., 5th Floor, Krishi Bhavan, Nrupathunga Road, Hudson Circle, Bengaluru-560027.
By it’s Manager (By Sri. O.Mahesh, Advocate) AND:
1. Sri. M.G.Ramakrishnappa @ Ramakrishne Gowda, Aged about 53 years, S/o. Gangadharappa @ Gangadhara Gowda, R/at No.65, Raghavendra Colony, Lalbagh, Siddapura, Bengaluru-560011.
2. Smt. Jayalakshmi, Major, R/at No.1521, 6th Cross, ... Appellant Peenya 2nd Stage, Rajagopal Nagar, Bengaluru-560072.
(By Sri. R.L.Udayakumar, Advocate for R1 ... Respondents Vide order dated 17.4.2013 Notice to R2 is held sufficient) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act, against the judgment and award dated 23.04.2012 passed in MVC No.2019/2011 on the file of the II Additional Judge, MACT, Court of Small Causes, Bengaluru, awarding a compensation of Rs.1,60,000/- with interest @ 6% P.A. from the date of petition till deposit in tribunal.
This MFA coming on for final hearing this day, the Court delivered the following:-
J U D G M E N T This Miscellaneous First Appeal is filed by the insurance company challenging the judgment and award dated 23.04.2012 passed in MVC No.2019/2011 on the file of Motor Vehicle Accidents Claims Tribunal, Bengaluru(SCCH-13), questioning the liability fastened on the insurance company and ordered to pay and recover the award amount from the insured.
2. Brief factual matrix of the case is that:
On 22.03.2011 at about 10.00 pm, when the petitioner was riding the motorcycle bearing Reg.No.KA-04 ET-1634 on Bettadakote – Bilagunda Road within Bellur police Station limits slowly and at that time driver of Auto rickshaw came in rash and negligent manner from the opposite direction and dashed against his motorcycle, as a result, he fell down and sustained injuries. He was shifted to Adichunchanagiri Hospital and thereafter he was shifted to Mallige Hospital, Bengaluru.
3. In pursuance of the claim petition, the respondent No.2/insurance company appeared before the Court and filed written statement contending that the insurance company is not liable to pay the compensation and there is breach of terms and conditions of the policy.
4. The claimant in order to substantiate his claim, examined himself as PW-1 and also examined one doctor on his behalf as PW-2 and got marked documents as Exs.P.1 to P.11. The second examined got examined two witnesses on its behalf as RW-1 and RW-2 and got marked documents as Exs.R.1 to R.3.
5. The Tribunal after considering both oral and documentary evidence, allowed the claim petition in part and awarded compensation of RS.1,60,000/- with 6% interest and directed the second respondent/insurance company to deposit the amount and however liberty is given to recover the amount from the first respondent/insured.
6. Being aggrieved by the said judgment and award of the Tribunal, fastening the liability on the insurance company / appellant and also ordering to pay and recovery the same, the present appeal is filed.
7. The main ground urged in the appeal memo is that the Tribunal has committed an error in directing the insurance company even though there was violation of permit and hence it requires interference of this Court.
8. The counsel appearing for the appellant in his arguments reiterates the grounds urged in the appeal and submits that the Tribunal ought not to have order to pay and recover against the insurance company.
9. Per contra counsel appearing for the respondent in his arguments contended that the Tribunal considering the materials available on record and rightly ordered to pay and recovery and hence the appeal cannot be entertained.
10. Having heard the arguments of the appellant’s counsel and the counsel appearing for the respondent No.2 and also in keeping the rival contentions of the parties, the points that arise for my consideration are:
1. Whether the Tribunal has committed an error in fastening the liability on the insurance company and directing the insurance company to pay and recover from the insured and whether it requires interference of this Court?
2. What Order?
11. After considering rival contentions of the parties and having considered the materials available on record the Tribunal come to conclusion that there was violation of the policy. However, considering the note of the policy was in force as on the date of the accident, the Tribunal has directed the respondent to deposit the compensation amount and recover the same from the insured. In view of the recent judgment of the Apex Court in the case of PAPPU AND OTHERS VS. VINOD KUMAR LAMBA AND ANOTHER reported in (2018)3 SCC 208 the Apex Court in a case of violation of permit also ordered to pay and recover the amount from the insured and hence I do not find any error committed by the Tribunal in ordering to pay the amount and recover the same from the insured. In view of the discussion made above, I pass the following:-
ORDER (i) The appeal is dismissed.
(ii) Office is directed to transmit the amount in deposit, if any, along with LCR to the concerned Tribunal forthwith.
Sd/- JUDGE Kmv/-