IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF OCTOBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Miscellaneous first Appeal No.4681 OF 2011 (MV) Between:
NATIONAL INSURANCE CO LTD., REP BY ITS ADMINISTRATIVE OFFICER, DIVISION OFFICE NO 2, RASIK CHAMBERS, OPP CENTRAL MARKET, MANGALORE 575001 ... APPELLANT (BY SRI K.DHIRAJ KUMAR, ADVOCATE) And:
1. K.SHESHAPPA GOWDA, DECEASED REPRESENTED BY LR’S a) K.SULOCHANA DAUGHTER OF K.SHESHAPPA GOWDA, AGED ABOUT 35 YEARS, b) SMT. ANUSUYA DAUGHTER OF LATE SHESHAPPA GOWDA, AGED ABOUT 63 YEARS, c) SMT. RATHNAVATHI DAUGHTER OF LATE SHESHAPPA GOWDA, AGED ABOUT 60 YEARS, d) SMT. SUMATHI DAUGHTER OF LATE SHESHAPPA GOWDA, AGED ABOUT 57 YEARS, e) SRI. KARUNAKARA SON OF LATE SHESHAPPA GOWDA, AGED ABOUT 51 YEARS, f) SRI. ASHOKA SON OF LATE SHESHAPPA GOWDA, AGED ABOUT 49 YEARS, g) SRI. HEMACHANDRA SON OF LATE SHESHAPPA GOWDA, AGED ABOUT 45 YEARS, ALL ARE RESIDING AT KALLEGA HOUSE, NEHRU NAGARA POST, KABAKA VILLAGE, PUTTUR TALUK, DAKSHINA KANNADA DISTRICT – 574 201 2. SMT. K.KAMALA WIFE OF K.SHESHAPPA GOWDA SINCE DECEASED, REPRESENTED BY HER LEGAL REPRESENTATIVES a) K.SULOCHANA DAUGHTER OF K.SHESHAPPA GOWDA, AGED ABOUT 35 YEARS, b) SMT. ANUSUYA DAUGHTER OF LATE SHESHAPPA GOWDA, AGED ABOUT 63 YEARS, c) SMT. RATHNAVATHI DAUGHTER OF LATE SHESHAPPA GOWDA, AGED ABOUT 60 YEARS, d) SMT. SUMATHI DAUGHTER OF LATE SHESHAPPA GOWDA, AGED ABOUT 57 YEARS, e) SRI. KARUNAKARA SON OF LATE SHESHAPPA GOWDA, AGED ABOUT 51 YEARS, f) SRI. ASHOKA SON OF LATE SHESHAPPA GOWDA, AGED ABOUT 49 YEARS, g) SRI. HEMACHANDRA SON OF LATE SHESHAPPA GOWDA, AGED ABOUT 45 YEARS, ALL ARE RESIDING AT KALLEGA HOUSE, NEHRU NAGARA POST, KABAKA VILLAGE, PUTTUR TALUK, DAKSHINA KANNADA DISTRICT – 574 201 3. K.SULOCHANA DAUGHTER OF K.SHESHAPPA GOWDA, AGED ABOUT 35 YEARS, RESIDING AT KELLEGA, NEHRU NAGARA POST, KABAKKA VILLAGE, PUTTUR TALUK, D.K.-574 201 4. K.NARAYANA NAIK SON OF AITHA NAIK, AGE: 36 YEARS, RESIDING AT KAIPANGALA, NETHANIGE VILLAGE – 623 251 5. PANDI @ PANDYAN SON OF GOVINDARAJ, AGE: 37 YEARS, RESIDING AT NARIMEDUMATHUVADI VILLAGE, PUTHUKKOTTAL DISTRICT – 622 003 6. BALU @ BALASUBRAHMANYAM SON OF CHINNATHAMBI, AGE: 37 YEARS, RESIDING CHIRIYAR STREET, THIRUCHIRAMBALAM, THANJAVOOR DISTRICT – 613 001 ... RESPONDENTS (BY SRI K.CHANDRASHEKAR ACHAR, ADVOCATE FOR R3 & LRs. OF R1 & R2;
NOTICE TO R4 & R6 IS DISPENSED WITH V/O. DATED 31.08.2016 & 21.03.2016 RESPECTIVELY;
R5-SERVED AND UNREPRESENTED) THIS MISCELLENEOUS FIRST APPEAL IS FILED UNDER SEC 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.11.2010 PASSED IN MVC NO. 1095/2001 ON THE FILE OF THE MEMBER, MACT, PUTTUR, D.K., AWARDING A COMPENSATION OF RS.3,03,000/- FROM THE DATE OF PETITION TILL DEPOSIT.
THIS MISCELLENEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment Heard the learned counsel for the appellant- Insurance Company and the learned counsel for the respondents-claimants. Perused the impugned judgement and the lower Court records.
2. This appeal is filed by the insurer of motor car bearing registration No.KA-21352 calling in question the judgement and award dated 26.11.2010 in M.V.C.No.1095/2001 on the file of the Motor Accident Claims Tribunal at Puttur, D.K. (for short ‘the Tribunal’). The Tribunal has allowed the claim petition awarding a total sum of Rs.3,03,000/- along with interest at the rate of 6% per annum under the following heads:
Particulars Amount (in Rs.)
3. The claim petition in M.V.C. No.1095/2001 is filed by the parents and sister of the deceased Sri. Dinakara Gowda contending that the deceased breathed his last when he was stabbed to death by the respondent Nos.4 and 5. These claimants contended that the respondent Nos.4 to 6 hired the car (insured with the Insurer-appellant) on 28.04.1995 at about 7.30 pm to go to Panaje from Puttur. The deceased Sri. Dinakara Gowda, who was the owner of the car, was driving the car. Sri. Dinakara Gowda was accompanied by his friend, Sri. Sundara Gowda (PW2). When they reached Panaje, the respondent Nos.4 to 6 asked the deceased to proceed further towards Vaninagara. After they crossed Karnataka-Kerala border, near Chennamoole, the respondent No.5 (who was sitting in front next to the deceased) and the respondent No.4 (who was in the rear seat) stabbed the deceased who tried to escape but succumbed to the stabbed injuries. The claimants further contended that the respondent Nos.4 to 6 hired the car with the sole intention of committing theft of the car, and the death of the deceased was caused while committing such felony- theft. As such, the demise of the deceased would be because of the use of the car on a public road and that the claimants, being the dependants of the deceased Sri. Dinakara Gowda, would be entitled to compensation under the provision of the Motor Vehicle Act, 1988.
4. The insurer of the car resisted the claim petition, but the other respondents viz., respondent Nos.5 and 6 remained ex parte. The insurer resisted the claim petition on twin grounds i.e., the murder of the deceased would not be an accident as contemplated under the provisions of the Motor Vehicle Act, 1988, and though the car was covered under a package policy, the deceased being the owner and the insured of the vehicle, the Insurer would not be liable. The Tribunal, insofar as the aforesaid twin fold defence framed the following two issues:-
Whether the petitioners prove that the act of the respondent Nos.2 to 4 amounts to rash and negligent act under the Motor Vehicle Act, 1988 Whether the petitioners prove that the deceased Dinakara Gowda succumbed to the injuries sustained in the motor accident 5. The Tribunal concluded relying upon the decision of the Hon’ble Supreme Court in Smt.RitaDevi and Others Vs. New India Assurance Co., Ltd., (reported in ILR 2000 KAR 2509) and the judgement of the Hon’ble High Court of Kerala in Criminal Appeal No.797/1998 concluded that the respondent Nos.5 and 6 did not have the intention of committing the murder of the deceased and their intention was to commit theft of the car and incidentally, the deceased was killed. As such, in the light of the decision of the Hon’ble Supreme Court in the case of Smt. Rita Devi (supra), the demise of the deceased should be considered as death brought about by accident by the use of the vehicle in a public place and the Insurer would be liable. As regards the second defence, the Tribunal concluded that the insurer because it had collected premium for covering its statutory liability and also certain terms, would be liable to pay the compensation. The Tribunal awarded a total sum of Rs.3,03,000/- to the claimants along with interest at the rate of 6% per annum holding that the insurer shall be liable to pay the compensation awarded and also the interest.
6. The learned counsel for the appellant argued in support of the appeal reiterating the two fold defence on which the insurer contested its liability. The learned counsel contended that the Tribunal had erred in concluding that the intention of the respondent Nos.4 to 6 in hiring the car was to steal the vehicle and was not to commit the murder. This is borne out by the evidence of PW2-Sundara Gowda, who has asserted that he was present at the time of the commission of the offence and he was also hurt because of the assault. Insofar as Insurer being liable, the learned counsel submits that the insurer is not statutorily required to pay compensation to the owner/the insured and the insurer has not collected any additional premium to cover the risk of the owner/the insured. The Tribunal has over looked these two circumstances.
7. The learned counsel for the insurer emphasized that contract of insurance is essentially a contract of indemnity, and under a contract of indemnity, the insurer only compensates a third party on behalf of the owner/insured and the insurer cannot be called upon to pay compensation to the owner/insured. The learned counsel relies upon to recent decision of the Hon’ble Supreme Court in National Insurance Co. Ltd., Vs. Ashalata Bhowmik and Others.
8. On the other hand, the learned counsel for the claimants contends that the Division Bench of the Hon’ble High Court of Kerala has confirmed the conviction of the respondent Nos.5 and 6 for the offences punishable under Section 302 read with Section 34 of IPC holding that these respondents had committed the murder of the deceased in the course of committing felony and not murder. Therefore, the death of the deceased would not be ‘murder simplicitor’ but would be a ‘murder which would be an accident’ for the purpose of the Motor Vehicles Act, 1988. The Tribunal’s finding in this regard is based on proper appreciation of the evidence in this regard. The learned counsel has placed reliance upon the policy and contends that the insurer which collected additional premium of Rs.15/- towards liability for the driver as part of the package policy. The Insurer cannot deny its liability to pay compensation to the claimants because the deceased was undisputedly driving the vehicle at the time of the accident.
9. In the light of these submissions, the questions that arise for consideration are:
a) Whether the Tribunal is justified in concluding that the demise of the deceased Dinakar Gowda was a “murder simplicitor”, but “murder that would amount to accident” under the provisions of the Motor Vehicles Act, 1988.
b) Whether the Tribunal is justified in calling upon the insurer to pay compensation to the claimants holding that the insurer would be liable statutorily and under the terms of the policy.”
10. The law on whether the ‘Murder’ could be an accident for the purpose of the provisions of the Motor Vehicles Act, 1988 has been settled by the Hon’ble Supreme Court in the case of Smt. Rita Devi (supra), the Hon’ble Supreme Court has declared as follows:
“10. The question, therefore, is can a murder be an accident in any given case? There is no doubt that ‘murder’, as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident in a given set of facts. The difference between a ‘murder’ which is not an accident and a ‘murder’ which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominant intention of the Act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simplicitor, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder.”
11. The claimants have examined PW.2- Sri Sundara Gowda in support of their claim that the murder of the deceased Dinakar Gowda would not be ‘murder simplicitor’. This witness has been categorical in his deposition that the respondent Nos.4 to 6 hired the car stating that they wanted to travel to Panaje and when the aforesaid respondents reached Panaje, they asked the deceased to drive further. When they crossed the Karnataka border and reached Chennamoole, the respondent Nos.4 to 5 stabbed the deceased with the knives and caused the death of the deceased at the spot. He has stated that he was also travelling in the said vehicle. He is consistent in stating that though he was not aware that the respondents had hired the vehicle to commit the theft, it is clear to him from the subsequent event that their only intention was to commit the theft. Nothing has been elicited in his cross- examination to reasonably infer that there was any prior acquaintance between the deceased and the respondent Nos.5 and 6 and because of some animosity between them, the deceased was put to death. The Tribunal, in the considered opinion of this Court, has appreciated the evidence on record in the light of the decision of the Division Bench of the High Court of Kerala in Criminal Appeal No.797/1998 in arriving at its conclusion that the death of the deceased could be murder simplicitor. Therefore, no interference is called for by this Court.
12. The facts insofar as the insurance cover extended by the insurer is that the vehicle was covered under a package policy issued in favour of the deceased As sum of Rs.15/- is taken as additional payment for the liability towards the driver. However, this sum of Rs.15/- is to cover the risk to a paid driver i.e., an employee under the insured/owner, and no premium is collected to cover the risk to the insured/owner. It is settled that the owner of the vehicle is not statutorily covered. Insofar as the liability towards the owner- insured, the Hon’ble Supreme Court in the case of National Insurance Co Ltd V/s Ashalata Bhowmik And Ors referring to its earlier decision in Oriental Insurance Co.Ltd. Vs. Jhuma Saha reported in 2007 9 SCC 263, has concluded that an insurer would not be statutorily liable to cover the risk of an insured while considering the question could the insurer be liable in the case of the injury or demise to the owner who was driving the vehicle at the time of the accident. The Hon’ble Supreme Court has extracted the following ratio from its decision in Oriental Insurance Co.Ltd. Vs. Jhuma Saha.
“10. The deceased was the owner of the vehicle. For the reasons stated in the claim petition or otherwise, he himself was to be blamed for the accident. The accident did not involve motor vehicle other than the one which he was driving. The question which arises for consideration is that the deceased himself being negligent, the claim petition under Section 166 of the Motor Vehicles Act, 1988 would be maintainable.
11. Liability of the insurer Company is to the extent of indemnification of the insured against the respondent or an injured person, a third person or in respect of damages of property. Thus, if the insured cannot be fastened with any liability under the provisions of the Motor Vehicles Act, the question of the insurer being liable to indemnify the insured, therefore, does not arise.”
13. There is no evidence that the insurer has collected additional premium to cover the risk of the owner/insured. Therefore, in the light of the undisputed facts and the law declared by the Hon’ble Supreme Court, the Tribunal is not justified in fastening the liability to pay compensation on the Insurance Company and infact, the Tribunal has neither examined the terms of the policy nor the law on the point. The second question is answered accordingly. For the foregoing reasons the following order :
ORDER The appeal is allowed in part. The impugned judgment and award dated 26.11.2010 in M.V.C.No.1095/2007 on the file of the Motor Accident Claims Tribunal at Puttur, D.K. is modified absolving the insurer of the liability to pay compensation. The amount in deposit in this appeal if any be returned to the insurer. No costs.
SD/-
Judge KPS/RB