IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF OCTOBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Miscellaneous First Appeal No. 1712 OF 2010 (MV) Between:
UNITED INDIA INSURANCE CO LTD DIVISIONAL OFFICE, M M K COMPLEX II FLOOR, AKKAMAHADEVI ROAD, II MAIN, P. J. EXTENSION,DAVANGERE, NOW REP BY DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO LTD, DIVISIONAL OFFICE, RUBBUILDING, A. A. CIRCLE, B. H. ROAD, SHIMOGA.
(BY SRI. A.N. KRISHNA SWAMY., ADVOCATE) And:
1. ANSAR SAB SON OF JABBAR SABNOW AGED ABOUT 57 YRS.
2 . M. M. SARFUN, WIFE OF ANSAR SAB NOW AGED ABOUT 45 YRS NOW DEAD 3. THAJAMMUL, SON OF ANSAR SAB NOW AGED ABOUT 27 YRS ALL RESIDENT OF 5TH CROSS, BILAL MASJIDROAD, TIPPU NAGAR, CHIKMAGALUR CITY.
... APPELLANT 4. MOHAMMED SAIFULLA SON OF LATE MOHAMMED SHEFIEF AGE MAJOR, OWNER OF MARUTHI CARNO.KA-01/N-4793, FOREST CONTRACTORNO.66, SAFAI PALYA, O T ROAD SHIMOGA.
(BY M/S. JUST LAWYERS FOR R4 (ABSENT) ... RESPONDENTS R1 & R3 ARE SERVED & UNREPRESETED) THIS MISCELLENEOUS FIRST APPEAL IS FILED UNDER SEC.173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.12.2009 PASSED IN MVC NO. 140/2005 ON THE FILE OF PRINCIPAL DISTRICT JUDGE AND MEMBER MACT, CHIKMAGALUR, AWARDING A COMPENSATION OF RS. 3,64,500/- WITH INTEREST @ 6% P.A. FROM THE DATE OF APPLICATION TILL REALISATION.
THIS MISCELLENEOUS FIRST APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is by the Insurer of Car bearing registration No.KA-01-N-4793 calling in question the judgment and award dated 4.12.2009 in MVC No.140/2005 on the file of the Principal Judge, MACT, Chikmagaluru (for short, ‘tribunal’). The claim petition in MVC No.140/2005 filed by the parents and the elder brother of the deceased Muzammil who died in a road accident while travelling in the insured vehicle, is allowed by the tribunal awarding a total compensation of Rs.3,64,500/- with interest at the rate of 6% per annum from the date of petition till realisation.
2. The learned counsel for the appellant submits that the accident on 22.01.2005 near Chrodi village Kumsi of Shimoga district is not disputed, nor the fact that the deceased, who was travelling in the insured vehicle, succumbed to the injuries suffered in such accident is disputed. The Insurer-appellant also does not dispute the quantum of compensation awarded by the tribunal. However, the Insurer disputes its liability on the ground that the insured vehicle was covered by an Act policy as of the date of the accident. The insurance company, under an Act policy, would not be liable to pay compensation in the event of death or injury to an inmate of a private vehicle. The tribunal has not considered the Insurer’s defence, and has made the Insurer liable to pay compensation. The learned counsel for the Insurer relies upon the decision of the Division Bench of this Court in the case of Branch Manager, the New India Assurance Co. Ltd. vs. Mahadev Pandurang Patil and Another reported in ILR 2012 KAR 1841, in support of the proposition that an Insurer would not be liable to pay compensation to an inmate/passenger of a private vehicle.
3. There is no dispute that the offending vehicle was insured under an Act policy, and in fact, in support of its defence that the offending vehicle was insured under an Act policy, the insured has examined its officer - Sri Vasanth Thrivikram Pal as RW.1 and marked Ex.R.1. If it is established that the insured vehicle is covered under an Act policy, the proposition that the statutory insurance will not cover liability to a passenger in a private vehicle would squarely apply. The Division Bench of this Court in the aforesaid decision has held as follows:
“The Apex Court in the case of Dr. T.V. Jose vs. Chacko PM&ORS explaining the meaning of the word ‘Third party’ in the context whether it includes a gratuitous passenger in a car has held as under:
“The Section does not, however, require a policy to cover the risk to passengers who are not carried for hire or reward. The statutory insurance does not cover injury suffered by occupants of the vehicle who are not carried for hire or reward and the Insurer cannot be held liable under the Act. But that does not prevent an Insurer from entering into a contract of insurance covering a risk wider than the minimum requirement of the statute whereby the risk to gratuitous passengers could also be covered. In such cases, where the policy is not merely a statutory policy, the terms of the policy have to be considered to determine the liability of the Insurer.
xxxx xxxx xxxx The legal liability is restricted to Clause (I)(a) which states that the indemnity is in relation to the legal liability to pay in respect of death of or bodily injury to any person but except so far as is necessary to meet the requirements of Section 95 of the Motor Vehicles Act, the company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured. Clauses (1) and (1)(a) are not very clearly worded but the words ‘except so far as is necessary to meet the requirements of Section 95 of the Motor Vehicles Act, 1939’ would indicate that the liability is restricted to the liability arising out of the statutory requirements under Section 95.
xxxx xxxx xxxxx These Clauses would themselves indicate that what was intended to be covered under Clauses (1) and (1)(a) is the risk required to be covered under Section 95 of the Motor Vehicles Act.
4. In the light of the above, the appeal is allowed and the impugned judgment and award in MVC No.140/2005 dated 4.12.2009 by the tribunal is modified setting aside the liability fastened on the insurance company to pay the compensation. However, the liability of the owner of the offending vehicle shall stand. The amount in deposit in this appeal be returned to the Insurer – appellant.
Sd/- Judge SA Ct:sr