IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.37396 of 2013 (GM AC) c/w WRIT PETITION No.37395 of 2013 (GM AC) IN WP No.37396 of 2013 BETWEEN NEW INDIA ASSURANCE CO. LTD., BRANCH OFFICE, PUSHPA BUILDING, KUNDAPUR, REPRESENTED BY NEW INDIA ASSURANCE CO. LTD., M.G. ROAD, BANGALORE, ITS MANAGER.
... PETITIONER (BY SRI R. JAIPRAKASH, ADVOCATE) AND 1. SMT. ROHINI R. KINI, AGED ABOUT 54 YEARS, 2. SMT. SWATHI R. KINI, AGED ABOUT 26 YEARS, 3. SMT. ACHALA R. KINI, AGED ABOUT 21 YEARS, (R2 and R3 are treated as LRs of deceased R1 vide Court order dated 23.04.2015) 1ST RESPONDENT IS THE WIFE, RESPONDENT Nos.2 & 3 ARE CHILDREN OF RAMESH KINI, ALL ARE RESIDING AT BELVE VILLAGE, OPP: KUNDAPUR TALUK, UDUPI DISTRICT – 576 201.
4. SRI SATISH KINI, S/O. LATE SRINIVAS KINI, AGED MAJOR, BELVE VILLAGE, KUNDAPUR TALUK, UDUPI DISTRICT – 576 201.
(BY SRI A.R. HOLLA, ADVOCATE FOR R2 & R3 R4 is served but unrepresented vide Court order dated 23.04.2015) ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE ORDER DATED 01.03.2013 PASSED BY THE SENIOR CIVIL JUDGE, MACT, KUNDAPUR ON IA XVII IN MVC No.718 of 2005 VIDE ANNEXURE-K.
IN WP No.37395 of 2013 BETWEEN NEW INDIA ASSURANCE CO. LTD., BRANCH OFFICE, PUSHPA BUILDING, KUNDAPUR, REPRESENTED BY NEW INDIA ASSURANCE CO. LTD., M.G. ROAD, BANGALORE, ITS MANAGER.
(BY SRI R. JAIPRAKASH, ADVOCATE) AND 1. SMT. ROHINI R. KINI, AGED ABOUT 54 YEARS, ... PETITIONER 2. SMT. SWATHI R. KINI, AGED ABOUT 26 YEARS, 3. SMT. ACHALA R. KINI, AGED ABOUT 21 YEARS, (R2 and R3 are treated as LRs of deceased R1 vide Court order dated 13.02.2019) 1ST RESPONDENT IS THE WIFE, RESPONDENT Nos.2 & 3 ARE CHILDREN OF RAMESH KINI, ALL ARE RESIDING AT BELVE VILLAGE, OPP: KUNDAPUR TALUK, 4. SRI SATISH KINI, S/O. LATE SRINIVAS KINI, AGED ABOUT 40 YEARS, BELVE VILLAGE, KUNDAPUR TALUK.
... RESPONDENTS (BY SRI A.R. HOLLA, ADVOCATE FOR R2 & R3 R4 notice dispensed with vide Court order dated 05.08.2019) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE ORDER DATED 08.11.2010, PASSED BY THE SENIOR CIVIL JUDGE, MACT, KUNDAPUR ON IA.IV IN MVC No.718 of 2005 PRODUCED AT ANNEXURE-H TO SERVE THE INTEREST OF JUSTICE.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING, THIS DAY THE COURT MADE THE FOLLOWING:
ORDER W.P.No.37396/2013 is filed by the New India Assurance Company Limited seeking to set aside the order dated 01.03.2013 passed on I.A.No.17 filed under Order 1 Rule 10(2) and Section 151 of CPC in MVC No.718/2005 by the Senior Civil Judge and Additional MACT, Kundapur, while W.P.No.37395/2013 is filed by the New India Assurance Company Limited to set aside the order dated 08.11.2010 passed on I.A.No.4 in MVC No.718/2005 by the Senior Civil Judge & Additional MACT, Kundapur.
2. The claimants filed the claim petition under Sections 166 and 140 of the Motor Vehicles Act, 1908 (‘Act’ for short) claiming compensation of Rs.25,37,000/- for the death of one Ramesh Kini in a motor vehicle accident. The respondents therein filed objections to the claim petition.
3. The National Insurance Company, the petitioner herein, filed I.A.No.4 under Order 1 Rule 10(2) read with 151 of CPC to strike out or delete the name and address of respondent Nos.1 to 3 contending in the affidavit filed in support of the application that since the claimants amended the petition in view of the contention taken in the written statement that the accident took place due to the sole negligence of the rider of the motorcycle bearing Regn.No.KA-20/Q-9626 and that the auto-rickshaw bearing Regn.No.KA-20/A-566 was not at all involved in the accident and it was not plying near the vicinity of the accident spot thereby, the claimants withdrawn the claim against respondent Nos.1 to 3. Hence, there is no case against respondent Nos.1 to 3 and if the petition is continued against them, it will further cause financial loss to the insurance company.
4. After considering the objections filed, the Tribunal by the order dated 08.11.2010 allowed the application filed by the insurance company and ordered to delete respondent Nos.1 to 3 from the array of parties. During the pendency of the proceedings, National Insurance Company, the present petitioner, filed I.A.No.17 under Order 1 Rule 10(2) and Section 151 of CPC to implead the proposed respondents stated therein. The said application was opposed by the claimants. The Tribunal, after considering the application and the objections recorded a finding that in view of the amendment of the claim petition, the proposed respondents, who were initially parties to the case, were deleted vide order passed on I.A.No.4 filed by the insurance company. Now, I.A.No.17 has been filed under Order 1 Rule 10(2) of CPC for impleading the said deleted respondents as respondent Nos.3 to 5. As rightly argued by learned counsel for the proposed respondent No.5, the Tribunal has already passed a considered order on I.A.No.4 and the same has attained the finality as the applicant has not preferred any appeal, as such the Tribunal could not consider the application for impleading the proposed respondents. Hence, I.A.No.17 is not maintainable as the principles of res judicata is applicable. Accordingly, I.A.No.17 came to be dismissed on 01.03.2013. Hence, the present writ petitions by the insurance company to quash the aforesaid orders.
5. I have heard Sri Jaiprakash, learned counsel for the petitioner and Sri A.R. Holla, learned counsel for respondent Nos.2 and 3.
6. Learned counsel for the petitioner-insurance company contended that the order passed by the Tribunal allowing the application I.A.No.4 filed under Order 1 Rule 10(2) of CPC seeking deletion of the original respondent Nos.1 to 3 is contrary to the material on record and therefore, the Insurance company subsequently filed I.A.No.17 to implead the said respondents, who were deleted vide order dated 08.11.2010, by the Tribunal. The Tribunal has rejected the application I.A.No.17 erroneously. He contended that they are the necessary and proper parties. Therefore, the writ petitions are against both the orders.
7. The learned Counsel for the respondents sought to justify the impugned orders.
8. Having heard the learned counsel for the parties, it is an undisputed fact that the original claimants filed MVC No.718/2015 claiming compensation of Rs.25,37,000/- on account of the death of the deceased in a motor vehicle accident that occurred on 30.04.2005. The said petition was opposed by the insurance company by filing objections. During the pendency of the petition, an application for amendment came to be filed by the claimants, which came to be allowed on 31.12.2009. Subsequently, I.A.No.4 came to be filed by respondent No.3 in MVC No.718/2005 for deletion of proposed respondent Nos.1 to 3, which came to be allowed on 08.11.2010. The said order was not challenged at the inception. Subsequently, the insurance company filed another application I.A.No.17 under Order 1 Rule 10(2) of CPC to implead the deleted respondent Nos.1 to 3 in terms of order dated 08.11.2010. The said application came to be rejected on 01.03.2013. The W.P.No.37395/2015 filed challenging the order dated 08.11.2010 is not maintainable. At the instance of the present petitioner, the application for deletion came to be allowed and he is not the aggrieved party. Subsequently, it filed another application for impleadment of the same parties, which came to be rejected. Ultimately, it is for the claimants, who came to the court have to prove whether the owner or insurer is liable to pay the compensation.
9. The insurance company, the petitioner herein, at one stretch, cannot file an application for deletion of respondent Nos.1 to 3 and subsequently file another application seeking to implead the same respondents contending that they are the necessary and proper parties. Therefore, the writ petitions filed by the insurance company challenging the orders passed Tribunal are not maintainable. Once the order has reached the finality at the end of insurance company, the Tribunal is justified in rejecting the I.A.No.17 for impleading the persons who were deleted by passing order on I.A.No.4. Therefore, the petitioner-insurance company has not made out any ground to interfere with the orders impugned passed by the Tribunal. It is ultimately for the claimants to prove whether the insurance company is liable to pay compensation or the owner. It requires full-fledged adjudication between the parties.
10. In view of the above, the petitioner has not made out any ground to interfere with the impugned orders passed by the Tribunal. Accordingly, the writ petitions are dismissed.
Sd/- JUDGE mv