IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY MISCELLANEOUS FIRST APPEAL No.7443 OF 2016 (MV) BETWEEN:
M/S ICICI LOMBARD GENERAL INSURANCE COMPANY LTD., NO.89, 2ND FLOOR, S.V.R. COMPLEX, HOSUR MAIN ROAD, MADIWALA, BANGALORE NOW REP. BY ITS LEGAL MANAGER, M/S ICICI LOMBARD GENERAL INSURANCE COMPANY LTD., REGIONAL OFFICE, THE ESTATE 9TH FLOOR, DICKENSON ROAD, M G ROAD, BANGALORE – 42 ...APPELLANT (BY SRI.B C SHIVANNE GOWDA, ADV.) AND:
1. N.MOHAN KUMAR S/O B NAGAPPA, AGED ABOUT 45 YEARS R/O 36, 7TH B MAIN, 4TH BLOCK, JAYANAGARA WEST, BANGALORE 2. R SURESH S/O S RAMANNA, R/O CHUNCHAGATTA, KANAKAPURA ROAD, KONANAKUNTE POST, BANGALORE – 62 ...RESPONDENTS (BY SRI.H T JAGADEESH, ADV. FOR R1; SRI.C.S.VINOD, ADV. FOR R2) MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:18.03.2016 PASSED IN MVC NO.5317/14 ON THE FILE OF THE 3RD ADDITIONAL SENIOR CIVIL JUDGE, COURT OF SMALL CAUSES, BENGALURU, AWARDING COMPENSATION OF RS.2,42,000/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T Insurance is in appeal challenging the order dated 18th March 2016 passed in MVC No.5317 of 2014 by the Motor Accident Claims Tribunal, Bengaluru.
2. The claimant, for the injuries in the road traffic accident that took place on 14th November 2014, has filed claim petition. After issuance of notice and after hearing all the parties, the Tribunal awarded compensation of Rs.2,42,000/- by fastening the liability on the insurer.
3. The specific case of the appellant before the Tribunal is that the owner who represented on service of notice; and also the claimants, have not produced copy of the policy or even the original cover note. Though the owner appeared and produced photocopy of the cover note, but on verification it was found that only a submission has been made to that effect and that there was no existence of policy.
4. Despite the fact that the Insurance Company having taken specific defence and making submission to the Tribunal that there is no existence of policy resulting in absence of contract, the question of indemnification does not arise, the same has not been considered by the Tribunal. The respondent-claimant, though has taken sufficient time to produce the original policy or the original cover note, but has not produced the same. Under the circumstance, it is to be presumed that there was no existence of policy. Hence, fastening liability on the insurance is contrary to law and fact. In order to make a claim against the insurance, there shall be a contract between the parties, otherwise indemnification is improper and illegal. With these observations, the appeal is allowed. Liability is fastened on the owner and the award of the Tribunal directing the Insurance to pay the compensation stands deleted. Amount in deposit is directed to the refunded to the appellant.
lnn Sd/- JUDGE