4_A_A 1 Jllllll IN THE HIGH COURT OF' KARNATAKA AT BANGALORE DATED THIS THE 06?" DAY OF NOVEMBER, 2009 BEFORE THE HON'BLE MRs.JUsT1CE E.V.NAGARATHNAjj"--.U. M.F.A.NO.é.~369/2006(MV] J V' BETWEEN: M/S UNITED INDIA INSURANCE COMPANY LTD DWISIONAL OFFICE 442/314, 11 FLOOR, CRAMARAJA DOUBLEV ROAD V NEAR RAMASWAMY CIRCLE, " MYSORE 24, NOW REREY REGIONAL..QFFICERA..I$EOI25, SI-IANKARANARAYANA M.G.ROAD, BANGALORE T. A . RERTD. BY ITS REGIONAL. 1v:ANACgER'<_ " ' .. APPELLANT [By Sri: » S/O, RAMANNA - R/ATMAYAGANAHAL1 KASBA HOEL1, RAMANACARAM TQ., "BANGALORE DISTRICT. M/S SURFACE LANE CAROE (P) LTD A NO.I8(OLD N054) I FLOOR, ORIENT POWER PREM COMPOUND, LALABAGH ROAD. BANGALORE 27. :3 ... RESPONDENTS
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{By Sri: M/S S RAJU 8: A/S FOR R1)
MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:19/10/2005 PASSED IN
MVC NO.667/2003 ON THE FILE OF PRL. CIVIL JUDGE
(SRDNI & MEMBER, ADDL. MACT, RAMANAGARAM,
AWARDING COMPENSATION OF RS.31,000/–
INTEREST @ 6% RA. FROM THE DATE OF
THE DATE OF’ PAYMENT. .
This MP’ A coming on for fina1__h.ea_1fing D I
court delivered the f0IIowing:– b j j
Junqggfighz
This appeal is filed 1ns”ur’an(I:’ea by
challenging the Judgmezintfi the MACT,
Ramanagarairiivfdatefdt19′.’1Q;2O(I5V ‘exit the question of liability.
2. For vsakea” :eQ.n\}enience the parties shall be
referred to in teiirnevof their status before the Tribunal.
12.6.200?———at about 5.30am when the claimant
‘\iI.aS’itraVeiiiiigr’in a tempo bearing N0.KA–O1/A-2756 near
Kenthanalsifijpwgde Janatha Colony at Bidadi, on account of
rash’ Znheégligent driving of the said vehicle it fell down. as
I ~ resiilt the claimant sustained injuries. Contending that he
“suffered permanent disability, he filed claim petition
I seeking compensation on various heads.
4. After service of notice from the Tribunal the insurance
company appeared and flied its written statement, while the
second respondent herein did not file any written statement.
In the written statement it was stated that the
respect of the vehicle in question was admitted,3V_:b’ut”Vit”—was_”‘ .
contended that the claimant was notpaloader ‘of—-t:I_1e’Vins’u_red”
and that he was travelling in the ternpp’
passenger and therefore, the irisurance~co1npany”is not liable >
to satisfy the award. _
5. On the basis of ‘the ab’ovei..’p1ea:i_ings, the” Tribunal
framed V
__ Do’esA’=_the’V petitioner prove that he
4;: sustained A. injuries in an accident arising out of
of vehiCie”bearing No.KA-O1/A–27’56 as
the petitioner is entitled for
‘ conapeitsation? if so, how much and from whom?
V3. What order?”
-Vin support of his case, the claimant examined himseif
F’W.i and got marked EXP} to P4» while the respondent
V did not let in any evidence. On the basis of the said
evidence, the Tribunal awarded compensation of Rs.31,0()0/–
with interest at 6% p.a from the date of petition and directed
ff
7%-w
1 I
the owner and insurer of the vehicle were liable to satisfy the
award and the insurer was at liberty to recover the amount
from the owner of the vehicle by executing the award. l3eing
aggrieved by the said direction the insurance compvan:yl_has
preferred this appeal.
7. I have heard the learned counsel for the”apj3_~ellant–
the learned counsel for the first respondent.
8. It is submitted on behalf of the fappe11antAti’1at
instant case the Tribunal has give’r1,a categorical that V
the first llre’sepondefigtl’vvasitravellling as a passenger in the
vehicle not Therefore. in View of the
decisions éfwhe Apex the Tribunal ought to have held
” _Atha’trt~he…insurancecompany is absolved of its liability rather
L’ thanpassing direction with regard to pay and recovery. He
therefore’, ‘.i9.equests this court to modify that portion of the
l V V award… l
g In. support of his case he has relied upon the decision
-.o’f–._tlfn1e Apex Court in the case of National Insurance
…_éompany Limited Vs. Bommithi Subbhayamma 82. Others
reported in 2005 ACJ 721 and New India Assurance
‘?
Company Limited Vs. Vedwati 82. Others reportedin 2007
AG} 1043.
10. Per contra, it is submitted on behalf of the first
respondent that the claimant was travelling as a loader in
the vehicle and that he was not an unauthorized.c.passen’glerV.
and therefore, the Tribunal was justified in givinglavdirecttionl V’
regarding pay and recovery, which’AA’d’oes_
interference in this appeal. In support hisd.c_on’tentilc;n’
has relied upon a decision 0’f._ this court case of V
National Insurance Can;pany”Lin1itécl.Vs.lSarajdmma 82.
othersféjsortégt tiiitgjmjizllaos iidhtataka 542.
11. Having hea’rf’ci..AAtlt1e co_1insel’ on both sides the only point
that arise for ‘my lconsilderattion is as to whether, the Tribunal
wastjtistified in’: holding that the appellant/insurance
satisfy the award and thereafter recover the
« front second respondent / insured.
12…” F’rVomit£ie material on record, it is not in dispute that
“-.the first respondent was travelling in the Vehicle bearing No.
“‘i:l’_£{Ajf)A_«1/A»2756 at about 5.3oa.m on 12.6.2003 and that
there was an accident in which the first respondent was
injured. In support of his case, the first respondent has let
in evidence as PW.1. In his examination–in–chief he has
stated that for the purpose of performing his dutiesas a
loader he got into the vehicle in question along \J\7};*Jf1::”:’:§>)VI}”l€
luggage and at that time he sustained injui9ies”‘ .
accident that occurred on 12.6.2003mat
has also stated that prior to the aceident lv1as.lworki:ng as
a loader in respect of the tempo in quest_io’n.p V pp _
13. On a perusal of the said evidence, it*’becon1es’1.apparent
that nowhere he has stated thatlhe vwasworkingv’asemployee
of the H It case for the purpose of
performing’ his in the vehicle. On the other
handghe pVt1*avelliiigl”*with some goods. There is no
to whether he was travelling with the goods
tbelonging tolthe’-insured or to some other person who had
engaged .tk’ie’i._vehicle or with his own goods. The plea
‘v._gregardingg_working as a loader and travelling with the goods
fared in fact contradictory. However, in his examinationwinw
‘ chief later on he states that prior to the accident, he was
working as a loader. From the said evidence it is not
established that he was travelling in the vehicle either as the
owner of the goods or as representative of the owner of the
fix
#4.
goods or as an employee of the insured. In fact a suggestion
was put to him by the insurance company that he was
working in a private factory which of course is denied.
However, on the evidence of PW.l itself, the only conclusion
that can be arrived at is that he was an _
passenger in the said vehicle. In fact the
basis of E:-§.Pl which is the complaint. the
claimant has held that he was travelling’ as a p’a’sj;~:engerj’§ and ;
not as a loader. Since he was aénnulnauthorized ‘passenger in
a goods vehicle, there ~ clear §v.iola_ti.on«.pof the terms and
conditions of the policy. _Hov.«rev’e._r, :the’Tril:~i’unal relied upon a
decision” the case of Pramodh
Kumafl”.4gjafival: Mushtari Begam reported
in AIR 2064 SC. tloihold that the insurance company
V’ is 1vi’ab1eb_..to pay the amount and in the operative portion
for the insurance company by executing
the award.’ said decision is based on a earlier decision of
the S.upr_eme Court in the case of ational Insurance
g X{»::i»<<.:/1%,
VA 'v~:lf"Cpornpany Limited Vs. reported in 2004 AIR SCW 212.
' However, the subsequent decisions of the Supreme Court in
Wlliiommithi Subbhayarnmas case referred to supra would
make it clear that in the case of gratuitous passenger in a
goods carriage, the insurance company would be absolved of
i:
ii»
its liability. Therefore, the Tribunal was not right in
directing the appellant/insurance company to pay the
compensation and thereafter to recover the same from the
insured. Hence that portion of the award is rI1odifie.dl~by
allowing this appeal and holding that the i.is_”‘ .
absolved of its liability. The first responderrtis liberty to
execute the award against the seconds’respondent/’insnr-ed
and recover the cornpensationf
14. For the aforesaid reasongcethe appeal is. it The ‘V
amount in deposit is” …directed=lfto be refunded to the
appellant. = _ .
sa/–
JUDGE