IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S. DIXIT M.F.A. NO.9462 OF 2010 (MV) C/W M.F.A.NO.9463 OF 2010, M.F.A.NO.9464 OF 2010 IN M.F.A.NO.9462 OF 2010:
BETWEEN THE ORIENTAL INSURANCE CO. LTD., CHAMARAJPET, BANGALORE, THROUGH ITS REGIONAL OFFICE, # 44/45, LEO SHOPPING COMPLEX, RESIDENCY ROAD, BANGALORE-560 025.
REP BY ITS DEPUTY MANAGER, SMT SUDHA GANESH. ... APPELLANT (BY SRI.B.C. SEETHARAMA RAO, ADVOCATE) AND 1. SMT. RATHNAMMA, AGED ABOUT 45 YEARS, W/O LATE NAGARAJAPPA, 2. GIRIJA, AGED ABOUT 30 YEARS, D/O LATE NAGARAJAPPA, 3. HEMA, AGED ABOUT 27 YEARS, D/O LATE NAGARAJAPPA, 4. SRI. MUTHU, AGED ABOUT 25 YEARS, S/O LATE NAGARAJAPPA, 5. MISS. ASHA, AGED ABOUT 23 YEARS, D/O LATE NAGARAJAPPA, 6. SRI. MAHADEVA, AGED ABOUT 21 YEARS, S/O LATE NAGARAJAPPA, 7. MISS. SUGUNA, AGED ABOUT 20 YEARS, D/O LATE NAGARAJAPPA, 8. MISS .VIDYA, AGED ABOUT 18 YEARS, D/O LATE NAGARAJAPPA, ALL ARE RESIDENTS OF HUNSUR VILLAGE, H.D. KOTE TALUK, MYSORE DISTRICT.
9. MR. FIYAZ KHAN, S/O REHAMANTHULLA KHAN, R/AT NO. 6, 6TH CROSS, I MAIN, VALMIKINAGARA, MYSORE ROAD, BANGALORE-560 026.
10. THE DIVISIONAL CONTROLLER, KSRTC, BANNI MANTAP, MYSORE. ... RESPONDENTS (BY SRI.PRAKASH M PATIL, ADVOCATE FOR R1 TO R8; NOTICE TO R9 IS D/W V/O DATED 04.01.2011;
SRI.B PHALAKSHAIAH, ADVOCATE FOR R10) THIS MFA IS FILED U/S 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 22.7.2010 PASSED IN MVC NO.406/2009 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-I, & MEMBER, ADDITIONAL MACT, MYSORE, AWARDING A COMPENSATION OF RS.2,77,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALISATION.
IN M.F.A.NO.9463 OF 2010:
BETWEEN THE ORIENTAL INSURANCE CO. LTD, CHAMARAJPET, BANGALORE.
THROUGH ITS REGIONAL OFFICE, # 44/45, LEO SHOPPING COMPLEX, RESIDENCY ROAD, BANGALORE-560 025.
REP. BY ITS DEPUTY MANAGER, SMT.SUDHA GANESH. ... APPELLANT (BY SRI. LAKSHMINARASAPPA, ADVOCATE FOR SRI.B.C. SEETHARAMA RAO, ADVOCATE) AND 1. SRI.H.P. SHIVANNA, AGED ABOUT 56 YEARS, S/O LATE PUTTASWAMAPPA, 2. SMT. DEVEERAMMA @ NEELAMMA, AGED ABOUT 51 YEARS, W/O SRI H.P. SHIVANNA, 3. SMT. SOUBHAGYA, AGED ABOUT 23 YEARS, W/O LATE SRIKANTA MURTHY, 4. MISS. PUSHPA, AGED ABOUT 6 YEARS, D/O LATE SRIKANTA MURTHY, 5. MISS. KALA, AGED ABOUT 3 YEARS, D/O LATE SRIKANTA MURTHY, RESPONDENTS 4 & 5 BEING MINORS, ARE REP. BY THEIR MOTHER & NATURAL GUARDIAN, THE THIRD RESPONDENT.
ALL ARE RESIDENTS OF HOSAHALLI, HANUR POST, H.D. KOTE TALUK, MYSORE DISTRICT.
PRESENTLY R/AT D.NO.105, GOWRI SHANKAR NAGAR, OOTY ROAD, MYSORE-570 004.
6. MR. FIYAZ KHAN, S/O REHAMANTHULLA KHAN, R/AT NO.6, 6TH CROSS, I MAIN, VALMIKINAGARA, MYSORE ROAD, BANGALORE-560 026.
7. THE DIVISIONAL CONTROLLER, KSRTC, BANNI MANTAP, MYSORE. ... RESPONDENTS (BY SRI.PRAKASH M PATIL, ADVOCATE FOR R1 TO R5; NOTICE TO R6 IS D/W V/O DATED 07.03.2011;
SRI.B PHALAKSHAIAH, ADVOCATE FOR R7) THIS MFA IS FILED U/S 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 22.7.2010 PASSED IN MVC NO.548/2009 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-I, & MEMBER, ADDITIONAL MACT, MYSORE, AWARDING A COMPENSATION OF RS.4,53,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALISATION.
IN M.F.A.NO.9464 OF 2010:
BETWEEN:
THE ORIENTAL INSURANCE CO. LTD, CHAMARAJPET, BANGALORE.
THROUGH ITS REGIONAL OFFICE # 44/45, LEO SHOPPING COMPLEX, RESIDENCY ROAD, BANGALORE.
REP. BY ITS DEPUTY MANAGER SMT SUDHA GANESH. ... APPELLANT (BY SRI. LAKSHMINARASAPPA, ADVOCATE FOR SRI.B.C. SEETHARAMA RAO, ADVOCATE) AND 1. SRI. SOMASHEKARA, AGED ABOUT 51 YEARS, S/O MALLAPPA, RESIDENT OF HOSAHALLI, HANUR POST, H.D KOTE TALUK, MYSORE DISTRICT.
NOW R/AT NO.33, 7TH CROSS, RAMANUJA ROAD, K.R MOHALLA, MYSORE-570 004.
2. MR. JAMEEL, MAJOR, S/O IBRAHIM, NEW GURAPPANA PALYA, B.G ROAD, BANGALORE.
3. MR. FIYAZ KHAN, S/O REHAMANTHULLA KHAN, RESIDING AT NO.6, 6TH CROSS, I MAIN, VALMIKINAGARA, MYSORE ROAD, BANGALORE-560 026.
4. THE DIVISIONAL CONTROLLER, KSRTC, BANNI MANTAP, MYSORE. ... RESPONDENTS (BY SRI.PRAKASH M PATIL, ADVOCATE FOR R1;
NOTICE TO R2 IS D/W V/O DATED 08.12.2014; R3 SERVED; SRI.B PHALAKSHAIAH, ADVOCATE FOR R4) THIS MFA IS FILED U/S 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:22.07.2010 PASSED IN MVC NO.776/2009 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-I, MEMBER ADDITIONAL MACT, MYSORE, AWARDING A COMPENSATION OF Rs.55,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THESE APPEALS COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T These appeals by the Insurer lay a challenge to the common judgment and multiple awards dated 22.07.2010 made by MACT at Mysore, allowing the claim petitions in M.V.C.Nos.406/2009, 548/2009 and 776/2009, the former two being death cases and latter one being the injury case, whereby the various sums of compensation with interest at the rate of 6 % per annum thereon have been awarded subject to a usual condition of bank deposit.
2. The learned Panel Counsel for the Insurer vehemently contends that the MACT is not justified in levying the liability on the Insurer when there was absolutely no material to show that the claimants were covered by the Insurance Policy; he further submits that there is absolutely no material to establish that the deceased and the injured were traveling as the owners of the goods in the offending vehicle on the eventful day. So arguing, he seeks allowing of the appeal by setting aside the levy of award liability on the Insurer.
3. The learned counsel Sri.Prakash M Patil appearing for the claimants vehemently contends that there is a specific finding by the MACT under the impugned judgment as to the nature of policy and the extent of the coverage in as much as extra premium was paid. The FIR which is marked as Exhibit P-1 in the deposition of claimants side itself states that the deceased and the injured claimants were traveling in the offending vehicle as the owners of a particular vegetable [Avarekayi]. He also banks upon Rule 100 of the Karnataka Motor Vehicle Rules, 1989, in support of his contention that the owner of the goods can travel in the transport vehicle, subject to certain conditions. So arguing, he has sought for dismissal of the appeals.
4. I have heard the learned counsel for the Insurer and the learned counsel for the respondent-claimants. I have perused the Appeal Papers. I have also perused relevant pages of the original LCR.
5. The contention of the learned counsel for the Insurer that the deceased and the injured claimants were not supposed to travel in the offending goods transport vehicle, is too farfetched an argument at this length of time in as much as the FIR which is marked as exhibit P.1 is almost a spontaneously generated document in the discharge of public duties soon after the accident and this FIR mentions that the deceased and injured, being the owners of the vegetables were traveling in the goods vehicle on the eventful day. There is no effective cross- examination from the side of the Insurer to discredit the version emerging from the FIR which is a public document. To this is added, the further force inasmuch as, after the investigation, the charge sheet also has been filed by the jurisdictional police. Therefore, this contention stands rejected.
6. The second contention of the Insurer that the policy in question does not cover the deceased and the injured, inasmuch as no extra premium was paid for such coverage, again is contrary to the evidentiary material on record. The MACT having adverted to the contents of the policy, has recorded a finding that extra premium has been paid and it covers the owners of the goods traveling in the transport vehicle.
7. The reliance placed by the Insurer on the decision of the Apex Court in the case of United India Insurance Co. Ltd Vs. Suresh K.K. and another, 2008 ACJ 1741 also does not come to his aid. In the very said decision, the Apex Court has permitted the Insurer to recover the compensation after the same is paid to the Claimants. Paras 14 to 17 of the said judgment reads as under:
“14. The Tribunal and the High Court, therefore, in our considered opinion, should have held that the owner of the vehicle is guilty of the breach of the conditions of policy.
15. The question which arises for our consideration, however, is keeping in view the fact that the accident took place on or about 13.08.1999, and further in view of the fact that the claimant was a coolie worker as to whether he would be in a position to realize the dues from the owner of the vehicle. We think not.
16. Keeping in view the aforementioned facts and circumstances into consideration, we are of the opinion that with a view to do complete justice between the parties, a direction should be given to the appellant to pay the amount to the claimant and realize the same from the owner of the vehicle. Such a direction would, in our opinion, serve the ends of justice.
17. We are passing this order also in view of the fact that the appellant has already deposited the amount pursuant to a direction issued by this court dated 13.11.2006.”
8. In view of the decision of the Apex Court in the case of National Insurance Co. Ltd Vs. Challa Upendra Rao and Others, (2004) 8 SCC 517, it is open to the Insurer to execute this judgment by approaching the jurisdictional Tribunal for recovering the compensation amount, after the same is paid to the Claimants.
9. In the above circumstances, no other ground having been urged, these appeals succeed in part; the impugned judgment and awards are modified in terms of the principle of ‘pay and recover’. However, in all other aspects, the award is left intact.
The amount in deposit shall be transmitted to the jurisdictional MACT for being released to the Claimants, forthwith.
No costs.
Sd/- JUDGE cbc