IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR MISCELLANEOUS FIRST APPEAL NO.1770/2010 C/W MISCELLANEOUS FIRST APPEAL NO.1771/2010 (MV) IN MFA NO.1770/2010 BETWEEN:
THE NEW INDIA ASSURANCE COMPANY LTD., BRANCH NO.3 ESSEL CHAMBERS, III FLOOR KARNGAL PADDY, THROUGH ITS DIVISIONAL OFFICER, #10-27 II FLOOR, SAANGAMESHWARA NAGAR SB TEMPLE ROAD, GULBARGA REPRESENTED BY ITS DIVISIONAL MANAGER ... APPELLANT (BY SHRI. E.I. SANMATHI, ADVOCATE) AND:
1. SAMAD @ ABDUL SAMAD S/O P. MOOSA, AGED 28 YEARS R/AT NATEKAL CROSS, ASAIGOLI POST MANJANADY VILLAGE MANGALORE TALUK D.K.
2. SRI. RAVISHNAKER SHETTY S/O VISHWANATHA SHETTY MAJOR R/O KILLORU THEKKE HOUSE PAVOOR VILLAGE MANGALORE TALUK D.K.
3. B. HAMEED S/O U.M. ABDUL KHADER MAJOR R/O BONDIGIL HOUSE PERMANNUR VILLAGE MANGALORE TALUK D.K.
4. UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICER, P.L.1-76 1ST FLOOR, K.S. RAO ROAD MANGALORE ... RESPONDENTS (BY SHRI. JWALA KUMAR, ADVOCATE FOR R4; R1 TO R3-SERVED BUT UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:21.11.2009 PASSED IN MVC NO.1641/2005 ON THE FILE OF II ADDITIONAL CIVIL JUDGE (SR.DN.) & MEMBER, MACT-VI, MANGALORE, DAKSHINA KANNADA, AWARDING A COMPENSATION OF RS.69,700/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALISATION. THE APPELLANT IS LIABLE TO PAY 40% OF THE COMPENSATION.
IN MFA NO.1771/2010 BETWEEN:
THE NEW INDIA ASSURANCE COMPANY LTD., BRANCH NO.3 ESSEL CHAMBERS, III FLOOR KARNGAL PADDY, MANGALORE THROUGH ITS DIVISIONAL OFFICE #10-27, II FLOOR SAANGAMESHWAR NAGAR SB TEMPLE ROAD, GULBARGA REPRESENTED BY ITS DIVISIONAL MANAGER ... APPELLANT (BY SHRI. E.I. SANMATHI, ADVOCATE) AND:
1. SHAMSHEER @ SHAMSHUDDIN S/O P.MOOSA, MAJOR R/AT NATEKAL CROSS ASAIGOLI POST MANJANADY VILLAGE MANGALORE TALUK, D.K.
2. B. HAMEED S/O U.M. ABDUL KHADER R/O BONDIGIL HOUSE PERMANNUR VILLAGE MANGALORE TALUK.D.K.
3. SRI. RAVISHNAKER SHETTY S/O VISHWANATHA SETTY R/O KILLORU THEKKE HOUSE PAVOR VILLAGE MANGALORE TALUK.D.K.
4. UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, P.L.1-76, 1ST FLOOR K.S. RAO ROAD, MANGALORE TALUK ... RESPONDENTS (BY SHRI. JWALA KUMAR, ADVOCATE FOR R4; R1 TO R3-SERVED BUT UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:21.11.2009 PASSED IN MVC NO.1634/2005 ON THE FILE OF IIND ADDITIONAL CIVIL JUDGE (SR.DN) AND MEMBER, MACT-VI, MANGALORE, D.K., AWARDING A COMPENSATION OF Rs.7,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION. THE APPELLANT IS LIABLE TO PAY 40% OF THE COMPENSATION.
THESE MFAs COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT These two appeals are presented by the New India Assurance Company Ltd., challenging the liability.
2. On 16.08.2005, there was a collusion on National Highway No.17, between a Scooter and a Motor Cycle near Peramannur Village, Mangalore Taluk. Claimants Shamsheer and Samad sustained injuries. Shamsheer was pillion rider in the Scooter and Samad was pillion rider in the Motor Cycle. Police have filed the charge sheet against the rider of the Motor Cycle.
3. The Tribunal, on consideration of material on record, has awarded a sum of Rs.69,700/- to Samad and Rs.7,000/- to Shamsheer fixing 40% of liability on New India Assurance Company Ltd., which insured the Scooter and 60% on United India Insurance Company Ltd., which insured the Motor Cycle.
4. Learned advocate for the appellant-Insurer urged two grounds namely, that Tribunal has not recorded any cogent reasons for apportioning the liability; and Shamsheer was a pillion rider in a Scooter, which has been insured by the appellant. The owner of Scooter had obtained “Act only policy”. Therefore, Insurer cannot be held liable to indemnify the owner.
5. In support of his contention with regard to the pillion rider claiming insurance, learned advocate for the appellant placed reliance on the decision of this Court in National Insurance Co. Ltd. Vs. Smt. Lakshmamma and others1.
6. Shri Jwala Kumar, learned advocate for the Insurer of the Motor Cycle submits that 60% of liability imposed upon the United India Insurance Co. Ltd., has been paid.
7. I have carefully considered the rival contentions and perused the records.
1 MFA No.4136/2006 8. This Court, in the case of National Insurance Co.
Ltd.(supra), after considering various judgments of the Hon’ble Supreme Court, has held that Insurer cannot be held liable to indemnify the owner in case pillion rider suffers any injury or death. The said judgment is based on an earlier Division Bench decision of this Court in Branch Manager, The New India Assurance Co. Ltd., vs Mahadev Pandurang Patil and Another2.
9. So far as contributory negligence is concerned, based on the evidence, learned Tribunal has recorded that the Motor Cycle took a sudden left turn causing accident. In the evidence, both claimants have stated that riders of both Scooter and Motor Cycle were riding their respective vehicles in a rash and negligent manner. In his cross-examination, Samad has reiterated the said statement. In the circumstances, 40% of the liability saddled on the appellant in MFA No.1770/2010 2 ILR 2011 KAR 850 (MVC No.1641/2005) deserves to be set-aside. Hence, the following:
ORDER a) MFA No.1770/2010 is allowed.
Judgment and award dated 21.11.2009 in MVC No.1641/2005 passed by II Additional Civil Judge (Sr.Dn.) and Member, MACT-VI, Mangalore, D.K., so far as it relates to holding the Insurer of the Scooter namely, New India Insurance Company Ltd, liable to pay 40% of the compensation is set aside;
b) Insurer of the Motor Cycle namely, United India Insurance Company Ltd., is held liable to pay entire compensation of Rs.69,700/-. Accordingly, it shall deposit remaining 40% of compensation within four weeks from the date of receipt of a copy of this order;
c) MFA No.1771/2010 is dismissed.
Amount in deposit by the Insurer shall be sent to the Tribunal for disbursement as directed by the Tribunal; and d) Statutory amount deposited by the appellant-Insurer in MFA No.1770/2010 shall be refunded.
No costs.
Sd/- JUDGE AV