IN THE HIGH COURT OF KARNATAKA AT _
DATED THIS THE 22ND DAY OF NOVEMBER;
:PRESENT:_ '
THE HON'BLE MR.JUSfI'It:,_'i~3~~i\I.I§£;.P}1Tf£I.:" '
THE HON'BLE MR.JI;§é;T:cs:,_H.S§KEi\(;r;;;ivNA
M.F.A-fie. _ 72:24; IMV}
Between: _ V
Oriental Insurance Co.,jiL'td.,.V 1 .
Tumkur, t b .
Now represented byits "'*::. "
Regional Manager_,"s=.rr12_Vgof on
account of the death of dece.aéed._'».:S'i"i.._ Tholasanaika,
in the road traffiegaecidzent.' by the said
judgment presented this
appeal, "afar-the same, so far as it
relates tothie to the Insurer to pay to
the ciairnantsb and-v._to._sr'e-etover from the owner of the
3- Irrbrief. the facts of the case are:
".__""V1b'hev.r;--1ai..1.1'1:;ant Nos. 1 to 3 are the Wife and minor
b0"~.~«.._'_'e~hiIdren the deceased Sri. Tholasanajka, who died in
accident that occurred on 7.12.2000 at about 3.00
due to the rash and negligent driving by the
WM.»
-«vtdriver of the Tempfiaring Reg.No.KA.07.1302 near
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Karachikkanahalli, when he has applied the brakeVs_,i"l_t
is the further case of the claimants that, dec_e§ased_' _
aged about 45 years, working as Eolice £'l'I_1Cl\:* .,..
drawing the salary of $6,500/- per
after the welfare of the famiiyhand tttiatimelyh
death, they have ,'.%Uff€1'(3_d:u:"xbGt1'l and
economically. On accountgof the deceased,
Claimants have filed a ci'airn:Tpetiti'on that the Tribunal
under secticln claiming compensation
against andlnsurer of the offending
Vehicle. The- had come up for
consideration.' tlhellifribunal. The Tribunal after
'hearing loothl~tA_sidesv"'and after assessing the oral and
docurnen-ta-ry eyi.dence has accepted the contentions of
l the l'nsu..i'e1'~,l'«that the deceased was travelling in the
Vehicle and thereby there cannot be any liability
part of the Insurer. However, the Tribunal
T -jwplacing reliance on the judgment reported in ILR 2004
t " :Karnataka 4622 s.c.,§ held that though the vehicle in
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i
question is a goods vehicle, it was covered witli.
Insurance as on the date of the accident V'
the Insurer is liable to pay the I-claimants
instance and it is at liberty to reco:Verl--t_he same from ''
owner of the vehicle and
claim petition in part -
as compensation under interest at
6% p.a., from; date 2 I the payment.
Being aggrieyed' and award, the
lnsurerighas seeking appropriate
reliefs as stated .. " ' it
Kl-. . Welluhayaeeheard the learned counsel appearing
for V"insu'r*er'l'e.lg_and learned counsel appearing for
Fourth respondentowner of the Vehicle
V ” served and unrepresented.
.. “After careful perusal of the materials available
4’_’_gon._Vrecord, including the impugned judgment and award
T –_:’p’assed by the Tribunal, it emerges that, the occurrence
i it “of the accident and the resultant death of the deceased
M’
f
are not in dispute. It is crystal clear from
the Insurance Policy that, the passengers V’
vehicle are not covered the risk -of 1-nsurancell
therefore, the liability cannot be
to pay the claimants at the “instance torecover
the same from the owner of «The Tribunal,
after assessing the oral evidence
available on iahaiswll just and
reasonable 20/- towards loss of
dependencv conventional heads
and therefore,’ this Court is not called
for. However’, Vtheifritrunal has committed an error of
law’ and Eilliegality, resulting in miscarriage of justice in
iAs–sui.ng’addirecltivon to the Insurer to pay the claimants
‘ at the..first’in«stance and then to recover the same from
it ovvner of the vehicle, contrary to the well settled law
by the Apex Court in the case of National
l–:’..:Ir1’si1rance Company Limited Vs. Bommithi
dsubbhayamma and others reported in 2005(2) TAC I
%n._w»
/
(SC) and in the case of M.V. Jayadevappa and
V5. Orienta! Insurance Company Limited M
reported in 2005 (2) mo 5 (so), :wh’erein,”.(&it
the Insurer cannot be made iiabiextodlpay conjpen:3ati’oia.:V”
to unauthorised passengers recotrer the from
the insured. Furtherpj’ the the
Insurer placing reliancieion of the Apex
Court in Baljit or 2004(1) so
15 has in risk in respect
of gratuitous a good carriage and
therefore)”the and award passed by
the Tribunal liable to” be modified. We find some force
in the by the counsel for the Insurer.
is’«we1i~settIed~(principles of law laid down by the Apex
‘ _Court«..an._d Court in hosts of judgment that, “he”
:”.v4.44’—Eiabiltity is “not on the part of the insurer, ~. issuing
‘_’_rdirec’ti’on to the Insurer to pay to the victims at the
~ f1′”r’st instance and to recover it from the owner cannot be
sustained. However, in some Cases, exercising powers
under Article 142 of the Constitution of
Supreme Court has issued directions to it
pay and recover from the owner Zofthe yé:hicl’el7’V:’B1it’thexfl’.
same power is not envisaged underconstitution of India ”
either to the High Court or Tribunal.’
we are of the considereiyyiew’jptheAdirecti’onV:issued
by the Tribunal to the claimants
at the first instal”iee* vit.__fi’o’m the Insured
cannot be the impugned
judgrnent’ Tribunal is liable to
be set aside? to tliat.»
Ij’oruth.e foregoing reasons, the appeal filed by
the isalloweldin part.
judgment and award passed by the
_’I’ribu’na1..__r’in-.l’«:’MVC No.225/2001 is hereby modified,
H H ” aside the direction issued by the Tribunal to the
tins-urer to pay to the claimants at the first instance and
T torecover the same from the owner of the Vehicle .
._Z»»»M*””””M
It is needless to clarify that the
entitled to execute the judgment and awartt
the Tribunal against the owner of
The statutory deposit rVr1adeA:’i::y»:’tt_1ze Insurer
refunded to the Insurer.
Office is directedte drziiir etwrstrd, ateeotdingly.
JUDGE
.... fl
L 'hH,W*h%.' JUDGE
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