IN THE HIGH COURT OF' KARNATAKA AT BANGALORE
DATED THIS THE 07'7"" DAY OF OCTOBER 2009
BEFORE
THE HONBLE MR. JUSTICE N. ANANDA---- I "
MISCELLANEOUS FIRST APPEAL No.3030/'v:2{J0€%A,:(*l\EJ"_V}EE ' E
C/W. .
MISCELLANEOUS FIRST APPEAL cnossi T_
No.116/2009 A 'E
IN M.F.A. No.3030/2008 (Ma?)
BETWEEN:
- ._ U. PCSONA-CHA ADVOCATE)
THE BRANCH MANAGEE1, V . ._
M /S. ORIENTAL 1NsURAN.EC).3El:3,[2~()O3' ON THE FILE OF THE 11
ADDL. CNILVJILIDGE'{sR.13ire}._ANTD ADDL. MACT, SHIMOGA,
AWARDING "A ' C--D__MPE_NSAT1GN...V"OF Rs.80,000/-- WITH
INTEREST @E*AV6~',Vo PLA FROM 'I'HE DATE OF PETIT1ON TILL
DEPOSIT. --. ' " " _ ' '
MFA.CR0E._4N0v. '
BETWEEN
«_ SR1 RAMESH S/0. NARAYANA SHETTY,
" "AGED 4'OxY1'3RAS, R/0. opp.
MURUDESEWARA BEED STALL
. "(NEAR SUPREME MOTORS},
MUTT ROAD, SHIMOGA.
...CROSS OBJECTOR
« (Ev-.si%i. s. V. PRAKASH ADVOCATE)
" ,.} 'RESEOEDENTS V
1. THE BRANCH MANAGER,
M/S. ORIENTAL INSURANCE CO. LTD..
BRANCH OFFICE, KULVADI BUILDING,
K. S. RAO ROAD.
I-{AMPANAKA'I'I'E, MANGALORE.
REGIONAL OFFICE.
2. SR1 DEVAPPA, S/0. IVEANJU P:QoJAi;i,
AGED 44 YEARS.
R/0. KLIYA KOTEKAR, - V "
MANGALORE.
3. MRS. SAGUNA c. NAIK, MAJOR, "_
MANAGING PAR'FI'J_EE2, ' V u
M /0 MAHABALLES}iWPJ{AE1?JTERPR1'SES.
MANGALoRE.,__
RESPONDENTS
THIS 4- MEA_.CRQE'--.__:N. MFA No.3030/2008 FILED
U/0RDER'g_ 41 'R_U;..E= 32.2 OF CPC, AGAINST THE
JUDGEMENT AND AWARD DATED 25.08.2007 PASSED IN
Mvc_;N0u..395/2003 ON THE FILE OF II ADDITIONAL CIVIL
"'«--..JUD.GE;_«.gSE.,DN.) 8:""IviEMBER, MACT, SHIMOGA, PARTLY
CLAIM PETETION FOR COMPENSATION
_AND"S.EE_I§iN'G_ ENHANCEMENT OF COMPENSATION.
AND MEACROB COMING 0N FOR
; ADNiISS'1QN'"'THIS DAY. THE COURT.' DELIVERED THE
C' " " -- ---- _"33'oVLLoW:NG:
4
JUDGMENT
The insurance company has filed this appeal to set
aside the award inter aiia contending that the risk of
claimant was not covered under the policy. The insurance
company has not called into question .
compensation.
2. The claimant has filed M1’$A.cRoB
of compensation. I When thctV’in_sura’nce not
called into question the of co1I.tpe.nsai:ion, the
claimant can not file’ enhancement of
compe,nsatio’n;.t’v , e
3. “I have heard ‘.IV;E;” U. Poonacha, learned counsel
for in slvirance conipany;
– ’41?” leamedtttcounsel for insurance company would
u._.s’U.i;mit.V::”tIf1atMV “ecvlaimant was a cleaner in the passenger
ca1′.tjyingV.vehi–cie. Therefore, his risk was not covereé under
~ .. Hthe poii,c_\_I3~. awfiéw
so we . » ~
5. As could be seen from records, the insured had
paid additional premium to cover the risk of conductor as
per IMT:18 of the policy. The claimant has contendedthat
he was travelling in the bus involved in the
conductor–cum–cleaner. The insurance it
contended that claimant was travel-li”r”1g—as’
risk was not covered under theand
statutory obligation on the of to ”
cover the risk of cleaner in ‘pas”s’en.ger.E carrying
bus.
Ithairelgone_pthrou;§Ii..lt11e_ records. Before the Tribunal.
the insurance “not taken such a contention.
Therefore, before thhe appellate court, it can not be permitted
V’ to i’aise:guChx a contention.
calelw
-Z—iii I he
r.
of claimant, he has
was”*– traireiling as a conductor~cum~cleaner in the bus
_:”1I1\IC)’1V€(3.”‘.lI1 the accident. This fact has not been
controverted. On the other hand, it has been suggested to
£9’,-\_…-m
claimant that he continues to work as such after the
accident.
7. In terms of IM’i’:18 of the policy, K V’
company is liable to pay compensation’ fQr–.Abodii):f’ »«i1_1_i}.V1’1’$r’ efi
the claimant either in terms of W0rkmei’a?s Corf1pensatiOn’Act’ ~_
or as is pennissibie by comrnon law. W_’I’h.erevfouré. the
contention of the insurance cAcV>e:1’I§5.?’1t_:I’x–)/’V\t~.}.1._.£att it ‘is”notV§IiabIe to
pay compensation can View of this, the
appeal is disrru’vs4s:ed’ at as also Cross
Objection. transferred to the
IIAcid1. Civi1e.C911_r:t” Shimoga. Parties
to bear H’ /.
JUDGE