IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.No.4724/2012 (MV) BETWEEN:
M/S. RELIANCE GENERAL INSURANCE CO. LTD. RGICL, No.28, EAST WING, 6TH FLOOR CENTURY BUILDING M.G. ROAD BENGALURU-560 001.
REPRESENTED BY ITS ZONAL SENIOR MANAGER. … APPELLANT (BY SRI. D.S. SRIDHAR, ADVOCATE) AND:
1. PUTTASWAMY S/O. SRI. MADEGOWDA AGED 47 YEARS C/O. VIJAYA KUMAR GURU NILAYA NO.10, D CROSS, V MAIN, BYATARAYANAPURA NEW EXTENSION MYSURU ROAD BENGALURU-560 026.
2. GANESH S/O. DODDAMALLAIAH MAJOR R/O. MARANAHALLI VILLAGE RAMESHWARA POST DODDABALLAPUR TALUK BENGALURU RURAL DISTRICT-560 064 RESPONDENTS (BY SRI. K.R. RAJENDRA, ADVOCATE FOR R1 SMT. M.K. SABINA AND SMT. ANITHA H.C., ADVOCATES FOR R2) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21.11.2011 PASSED IN MVC.NO.6211/2010 ON THE FILE OF THE I ADDITIONAL SMALL CAUSE JUDGE, MACT, BENGALURU, AWARDING A COMPENSATION OF RS.1,80,000/- WITH INTEREST @ 6% P.A. FROM 25.09.2010, TILL REALIZATION.
THIS M.F.A. COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This Miscellaneous First Appeal is filed against the judgment and award passed in MVC No.6211/2010 dated 21.11.2011 on the file of I Additional Senior Civil Judge and Member-Motor Accident Claims Tribunal, Bengaluru (SCCH- 11) questioning the fastening of the liability on the Insurance Company.
2. The brief facts of the case:
It is the case of the claimant that he was proceeding in a lorry carrying the goods from Bengaluru to Nippani and the vehicle met with an accident and he sustained injuries. Hence, he claimed compensation of Rs.7,00,000/-. The Insurance Company-respondent No.2 has contended in the written statement that the lorry involved in the accident is a goods carrying vehicle and this claimant was proceeding as a passenger in the said vehicle and not as owner of the goods. Hence, the Insurance Company is not liable to pay the compensation. The claimant in support of his contention, examined himself as PW.1 and got marked documents Ex.P1 to Ex.P7. The claimant also examined another witness, who is the Doctor as PW.2. The respondent-Insurance Company examined one witness as RW.1 and got marked the insurance policy as Ex.R1.
3. The Tribunal considering both oral and documentary evidence allowed the claim petition by granting a compensation of Rs.1,80,000/- with interest at the rate of 6% per annum. The Tribunal fastened the liability on the Insurance Company rejecting its contention and relying upon the judgment of Sathpal Singh’s case. Hence, this appeal is filed by the Insurance Company.
4. The main grounds urged in the appeal memo is with regard to fastening the liability on the Insurance Company. It is contended that Sathpal Singh’s case has been overruled by the Apex Court in Asha Rani’s Case and the very reliance placed by the Tribunal on the Sathpal Singh’s case is erroneous. Hence, the liability is to be fastened on the insured and not on the Insurance Company.
5. Learned counsel appearing for the respondent- claimant would contend that he was proceeding as the owner of goods and not as a passenger and the same is evident from the complaint. Hence, the very contention of the Insurance Company that the claimant was proceeding as a passenger cannot be accepted. Considering the factual aspects that the claimant was the owner of goods, the Insurance Company is liable to pay the compensation and not the insured. Hence, the Tribunal has rightly fastened the liability on the Insurance Company. Hence, prayed this Court to dismiss the appeal.
6. Having heard learned counsel appearing for the appellant/Insurance Company as well as learned counsel appearing for the respondents, the points that arise for consideration of this Court are:-
1. Whether the Tribunal has committed an error in fastening the liability on the Insurance Company and it requires interference of this Court?
2. What order?
7. Point Nos.1 and 2: The present appeal is with regard to the liability and the very contention of the Insurance Company is that the claimant was proceeding as a passenger in the lorry. In order to substantiate the said contention that he was a passenger, no material is placed before the Court. The claimant in his evidence categorically claims that he was proceeding as the owner of goods and he was carrying casurina (Nilagiri) trees from Bengaluru to Nippani and an accident was taken place. In support of his contention, he also relied upon the complaint which is marked as Ex.P.2. On perusal of Ex.P.2-complaint, it is clear that the complaint was filed within two hours of the accident on the same day and it also reflects that he was proceeding as the owner of goods and not as a passenger. The very contention of the Insurance Company is not substantiated by any material evidence except the oral evidence of RW.1. Mere taking of the defense by the Insurance Company that the claimant was a passenger is not enough and nothing is placed on record in support of the same. Even in the evidence of P.W.1, nothing has been elicited with regard to the said aspect. A suggestion was also made that he was proceeding as a passenger and the same has also been categorically denied.
8. No doubt the Tribunal has relied upon Sathpal Singh’s Case in fastening the liability on the Insurance Company. The judgment of Sathpal Singh’s case is overruled by the Apex Court in the case of NEW INDIA ASSURANCE CO., LTD., VS. ASHA RANI & OTHERS reported in (2003)2 SCC 223. It is also the settled law that when the claimant was proceeding as the owner of goods, which is also evident from the records, the contention of the Insurance Company that the liability is wrongly fastened on them cannot be accepted. When the claimant proceeded as the owner of goods and in the absence of any material that he was proceeding as a passenger, the very contention of the Insurance Company cannot be accepted. Both oral and documentary evidence placed before the Tribunal discloses that the claimant was proceeding as the owner of goods. Under the said circumstances, I do not find any reasons to interfere with the award of the Tribunal. Hence, I answered this point in the negative.
9. In view of the discussion made above, I pass the following:-
ORDER (i) The appeal is dismissed.
(ii) The amount in deposit shall be transmitted to the Tribunal forthwith.
Sd/- JUDGE PYR