IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.M.SHYAM PRASAD MISCELLANEOUS FIRST APPEAL NO.5530 OF 2011 (MV) BETWEEN:
THE ORIENTAL INSURANCE COMPANY LTD., D O 12, JAYALAKSHMI MANSION, II FLOOR, 1001/56, IV BLOCK, DR.RAJKUMAR ROAD, RAJAJINAGAR, BANGALORE 560 010, ALSO REP. BY ITS MANAGER AT, REGIONAL OFFICE NO.44/45, IV FLOOR, LEO SHOPPING COMPLEX, RESIDENCE ROAD CROSS, BANGALORE – 560 001.
...APPELLANT (BY SRI K SRIDHARA, ADVOCATE) AND:
1. SHRI VENKATESHAPPA, S/O.BEERAPPA, AGED ABOUT 62 YEARS, KAMBALAPALLI, AUDUGAL, SRINIVASAPURA, KOLAR DISTRICT.
2. SHRI V BALU, MAJOR, R/A NO.24, 1ST MAIN, 3RD CROSS, MAHALAKSHMI TOURING TALKIES, GANESHA BLOCK, MAHALAKSHMI LAYOUT, BANGALORE.
…RESPONDENTS (BY SRI N M SRINIVASA MURTHY, ADVOCATE FOR R1; VIDE ORDER DATED 19.03.2018 NOTICE TO R2 IS HELD SUFFICIENT) ***** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 27.11.2010 PASSED IN MVC NO.4814/2009 ON THE FILE OF THE XVI ADDITIONAL JUDGE, MACT, BANGALORE, AWARDING A COMPENSATION OF RS.93,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel for the appellant-insurer and the learned counsel for the respondent No.1-claimant, and perused the impugned judgment and the lower Court records.
2. This appeal is filed by the insurer calling in question the judgment and award dated 27.11.2010 on the file of the Motor Vehicles Accident Claims Tribunal, Bengaluru City, SCCH-14 (for short ‘Tribunal’). The Tribunal by the impugned judgment has allowed the claim petition in MVC No.4814/2009 granting a total sum of Rs.93,000/- as compensation along with interest at the rate of 6% p.a. from the date of petition till the date of realization. The amount is awarded under the following heads:
3. The learned counsel for the insurer and claimant do not dispute that the claimant and his family members/acquaintance were traveling in a Tata Sumo bearing Reg.No.KA-02-N-2257 on 17.07.2006 when it was involved in a accident when it hit a Tipper Lorry. This Tata Sumo, as on the date of the accident, was insured with the appellant-insurer. At the time of accident, about 10 persons including 04 children were traveling in the Tata Sumo. The claimant suffered injuries and has received treatment. In fact, there is no dispute about the quantum of compensation awarded by the Tribunal. The only ground urged in this appeal on behalf of the insurer is the insurer’s liability to pay compensation on the ground that because the Tata Sumo, a private vehicle, was given on hire in breach of the terms of the policy. Therefore, the insurance company cannot be liable.
4. The learned counsel for the appellant argued that Sri Ramakrishna Reddy, one of the occupants of the Tata Sumo at the time of accident, has lodged the first information with the jurisdictional Police in FIR No.45/2006. In this information Sri Ramakrishna Reddy has been very categorical that the Tata Sumo was taken on hire to travel to Dharmasthala from Bengaluru. The Tribunal has overlooked this material evidence while fixing the liability on the insurance company. The learned counsel relies upon the decision of the Hon’ble Supreme Court in the case of Oriental Insurance Company Limited vs. Premlata Shukla and others and contends that the claimant, who has relied upon the FIR to prove the factum of accident, cannot deny such part of the FIR, which is inconvenient to him and enures to the advantage of the insurer. The contents of the first information lodged by Sri Ramakrishna Reddy immediately after the accident establishes that there was breach of the policy terms inasmuch as the Tata Sumo was given on hire. As such, the insurance company is entitled to deny its liability under Section 149 of the Motor Vehicles Act.
5. On the other hand, the learned counsel for the claimant submits that the Tribunal has found the insurer liable to pay compensation negating its defence because the insurer has settled the claim by the owner of the vehicle after the order dated 28.04.2010 in Complaint No.2887/2009 on the file of the II Additional District Consumer Disputes Redressal Forum, Seshadripuram, Bengaluru, and on appreciation of oral testimony of both the Owner of the Tata Sumo and an Official of the insurer. The Tribunal’s finding is justified and the insurer has not established any infraction of the terms of the policy. Therefore, no interference is called for in this appeal.
6. In the light of the rival submissions, the question that arises for consideration is :
“Whether the Tribunal has erred in arriving at its conclusion that the insurer would be liable to pay compensation refusing to accept the defence that there is breach of terms of the policy”.
7. The informant, Sri Ramakrishna Reddy has stated that the Tata Sumo vehicle was taken on hire to travel to Dharmasthala from Bengaluru. If it is indeed established that this information to the jurisdictional Police is true, the insurer would be in a position to avoid its liability as there would be breach of the policy conditions. However, the question whether the Tata Sumo vehicle was taken on hire is a question of fact that will have to be decided on the basis of the evidence on record.
8. The claimant is categorical that his friend, Sri Ramakrishna Reddy, with whose family members he was traveling, is the owner of the vehicle. The Respondent No.2, the registered owner of the vehicle, is categorical that he had only lent the vehicle to his friend and that he had lent the vehicle for the first time. The vehicle at the time of accident was been driven by Sri Umesh. The Officer, examined on behalf of the insurer to establish that the Tata Sumo was given on hire, has only stated in his evidence that because it is mentioned in the FIR that the Tata Sumo Vehicle was given on hire, he is stating that the owner had given the vehicle on hire, and he does not have any personal knowledge. This underlines the fact that the insurer has not taken any effort to ascertain whether indeed the vehicle was given on hire.
9. Further, it is also undisputed that the claim for own damage of the vehicle, which was refused, was settled after the order of the Consumer Disputes Redressal Forum in a complaint filed by respondent No.2. The insurer refused to settle this claim on the grounds like there was delay in filing the claim, estimate for the repairs of the vehicle was not filed and the value claimed was exaggerated. The insurer did not resist the claim on the ground that it would not be liable to pay compensation because the vehicle was being used in breach of the terms of the policy.
10. These circumstances cannot be discarded and claim rejected only because of the statement in the FIR. Therefore, the decision relied upon by the learned counsel for the insurance company in the facts and circumstances discussed above, would not be applicable. The significant circumstances have been rightly considered by the Tribunal in arriving at its conclusion. As such, there is no ground for interference in this appeal.
The amount in deposit, if any, shall be transmitted to the Tribunal for disbursal.
SD/- JUDGE BSR