IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 4TH DAY OF DECEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI M.F.A. No.8708/2019 (MV) BETWEEN:
THE ORIENTAL INSURANCE COMPANY LTD “VISHNU PRAKASH”, 3RD FLOOR COURT ROAD, UDUPI.
REPRESENTED BY REGIONAL OFFICE NO.44/45, LEO SHOPPING COMPLEX RESIDENCY ROAD, BENGALURU - 560 025 BY ITS REGIONAL MANAGER. ... APPELLANT (BY SMT. RAVISHANKAR C.R., ADVOCATE) AND:
1. SRI. RAJKUMAR K.S. AGED ABOUT 58 YEARS S/O SRI. SUBBAYYA GOWDA 2. SMT. YASHODA RAJKUMAR AGED ABOUT 56 YEARS W/O. SRI. RAJKUMAR. K.S.
3. SRI. MITHUN AGED ABOUT 23 YEARS, S/O SRI. RAJKUMAR K.S.
THE RESPONDENTS NO.1 TO 3 ARE R/O MASTHIKATTE HOSANAGAR TALUK SHIVAMOGGA DISTRICT.
4. SRI. MADAN H. S. AGED ABOUT 26 YEARS S/O. SRI. SHREENIVASA SHETTY 5. SRI. SHREENIVASA SHETTY AGED ABOUT 66 YEARS S/O SRI. NARAYANA SHETTY OCC AGRICULTURE THE RESPONDENTS NO.4 AND 5 ARE R/O. 5TH WARD, NEHRU ROAD HOSANAGAR, SHIVAMOGGA DISTRICT. ... RESPONDENTS THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED : 30.11.2018, PASSED IN MVC NO.20/2015, ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., AND ADDITIONAL MACT-10, SAGAR ITINERARY AT HOSANAGAR, AWARDING COMPENSATION OF RS. 39,02,100/- WITH INTEREST AT THE RATE OF 6 PERCENT P.A., ON RS.33,62,100/- FROM THE DATE OF PETITION TILL REALIZATION THIS APPEAL COMING ON FOR ORDERS THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
J U D G M E N T Though there is a delay of forty days in filing the appeal, we have nevertheless, heard learned counsel for the appellant/insurer on the merits of the appeal.
2. The insurance company has preferred this appeal assailing the judgment and award passed by the Additional Senior Civil Judge and JMFC and Additional MACT 10, Sagar, Itinerary at Hosanagar, dated 30/11/2018, passed in MVC.No.20/2015, by contending that cannot indemnify the insured although the issuance of policy in respect of the offending vehicle is admitted.
3. For the sake of convenience, the parties shall be referred to in terms of their status and ranking before the Tribunal.
4. The respondents/claimants have filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation on account of injuries sustained by the third claimant Mithun. According to the claimants, on 29/03/2014, at about 1.00 p.m. when he was proceeding as a pillion rider on motorcycle bearing No.KA-15-S-1985 from Hosanagar towards Nagar side, which was driven by respondent No.1 in a rash and negligent manner and on account of the said negligence, the motorcycle skidded off the road and claimant No.3 fell down and sustained grievous injuries to his neck. He was shifted to Government Hospital, Nagar, and from there to Kasturba Hospital, Manipal, where he took treatment as an inpatient for three months and thereafter he took treatment in S.D.M. Hospital, Udupi as an inpatient once in two months and spent huge sum for his treatment. Despite that, claimant No.3 did not recover from the injuries and became bed ridden and not in a position to attend to his routine activities. Therefore, the claim petition was filed seeking compensation on various heads by contending that claimant No.3 was hale and healthy and good athlete. He had participated in the State and National level competitions and bagged several prizes. He was studying in II PUC when the accident occurred. It was further contended that as against respondent No.1, a criminal case in Cr.No.37/2014 was filed and respondent No.1 is the rider of the vehicle and respondent No.2 is the owner of the vehicle and respondent No.3 is the insurer of the vehicle were all liable to pay compensation to the claimants.
5. On receipt of the notice issued by the Tribunal, the respondents appeared through their counsel and respondent No.3 filed its written statement, whereas the other respondents did not file their statement of objections. Respondent No.3 insurance company denied the material averments made in the claim petition except the issuance of an insurance policy in respect of the motorcycle bearing No.KA-15-S-1985. It was contended that the certificate of registration in respect of the motorcycle was in the name of one Manoj H.S. and he was not arrayed as party. He was a necessary party to the petition. Therefore, insurance company sought for dismissal of the petition.
6. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration.
(i) Whether the petitioners prove that on 29/03/2014 at about 01.00 p.m., while petitioner No.3 was proceeding in a Bajaj Pulser Motorcycle bearing Regn.No.KA-15-S- 1985 as a pillion rider, on Kotekare road of Moodugoppa village, the 1st respondent being the rider of said motorcycle rode the same in a high speed, rash and negligent manner and lost control over the said vehicle and the vehicle fell into the roadside gutter caused accident, resulting which, 3rd petitioner sustained grievous injuries?
(ii) Whether petitioner No.3 is entitled for compensation? If so, to what and from whom?
(iii) What order or award?
7. In order to substantiate their case, father of claimant/petitioner No.1 examined himself as PW.1. Another witness Nemiraj was examined as PW.2 and two doctors were examined as CWs.1 and 2 and got marked twenty-eight documents marked as Exs.P-1 to P-28. On behalf of the doctors fifteen documents were produced which were marked as Exs.C-1 to C-15. The other respondents, including the appellant herein did not let-in any evidence before the Tribunal.
8. On the basis of the evidence on record, the Tribunal answered issue Nos.1 and 2 in the affirmative and allowed the claim petition in part and held that claimant No.3 was entitled for compensation of Rs.39,02,100/- with interest at the rate of 6% p.a. from the date of claim petition till realization and directed the insurance company to pay the compensation with upto date interest.
9. Being aggrieved by the directions issued by the Tribunal to the appellant/insurer to satisfy the award, the insurer has preferred this appeal.
10. We have heard learned counsel for the insurance company and perused the material on record as well as the copy of the insurance policy issued in respect of the offending vehicle as the same has been furnished by appellant’s counsel during the course of his arguments.
11. Appellant’s counsel contended that the policy in respect of the offending vehicle was issued in the name of Manoj H.S. that he has not been made a party to the proceeding, instead, Madan H.S., the rider of the vehicle has been made a party. That in the absence of the insured being made a party to the proceeding, no direction could have been issued to the insurance company to satisfy the award. He contended that the liability of the insurance company is to indemnify the insured and when the insured is not a party to the proceeding, there is no question of indemnifying the insured. He further submitted that the liability is always joint and several vis-à-vis the insured and the insurer, but in the instant case, in the absence of the insured being arrayed as party, a direction has been issued against the insurance company to satisfy the award which is not correct.
12. Learned counsel for the insurer next submitted that the insured Manoj H.S. was not arrayed as a party. That it has been admitted by PW.1 that Manoj H.S. insured had died. That in the absence of the insured being made a party to the proceeding, there is no liability to satisfy the award.
13. We have considered the aforesaid submissions of appellants’ counsel in light of the evidence furnished during the course of submission. It is noted that the accident occurred on 29/03/2014. The insurance policy was issued in the name of Manoj H.S. for the period from 23/10/2013 to 22/10/2014. Therefore, it is admitted that there is indeed an insurance policy in respect of the offending vehicle. It is noted from the evidence on record that PW.1 has stated that the insured Manoj H.S. had died and his father was arrayed as a party, who is respondent No.5 herein. He is also the offender who caused the accident. It is observed that on account of the death of the insured, the policy issued by the insurance company in the name of the insured would not terminate automatically rather, Section 155 of the Motor Vehicles Act, 1988, which reads as under would apply:
“155. Effect of death on certain causes of action.- Notwithstanding anything contained in section 306 of the Indian Succession Act, 1925 (29 of 1925), the death of a person in whose favour a certificate of insurance had been issued, if it occurs after the happening of an event which has given rise to a claim under the provisions of this Chapter, shall not be a bar to the survival of any cause of action arising out of the said event against his estate or against the insurer.”
On a reading of the same, it is noted that the said provision is an exception to Section 306 of the Indian Succession Act, 1925. It states that even if the person in whose favour the certificate of insurance was issued dies, the same would not be a bar to the survival of any cause of action arising out of any such event against his estate or against the insurer. Therefore, even if it is admitted by PW.1 that the insured had died, the liability to indemnify the estate of the insured does not cease. The insurer would be liable to indemnify estate of the deceased insured. It has also come in the evidence that respondent No.5 herein is the father of insured. Therefore, when the issuance of policy in respect of the offending vehicle is admitted by the insurance company and there is a coverage of the said vehicle under the policy as on the date of the accident, the insurer cannot escape its liability to indemnify the insured.
14. Further, the contention of the appellant that the insured was not made a party and that he had died and in the absence of the legal representative of the insured being arrayed as a party, no direction to satisfy the award could have been issued cannot also be accepted. It may be for the reason that respondent No.5 herein is the father of the insured and respondent No.1 Madhan H.S. is the cause for the accident and the tortfeasor is none other than the brother of the insured i.e., Manoj H.S. Therefore, the estate of the deceased insured has been adequately represented in the petition filed by the claimants. In the circumstances, there is no merit in the appeal. Appeal is hence dismissed.
In view of the dismissal of the appeal, pending applications stand dismissed.
The amount in deposit shall be remitted to the concerned Tribunal.
Sd/- JUDGE Sd/- JUDGE S*