Allowed

The Oriental Insurance Co. Ltd. v. Smt Shobha P

Karnataka HC28 Jun 2021MFA/3137/2013

Case brief

AI extract

What is this about?

High Court allowed appeal in part, quashing Tribunal compensation under Section 140. Court held insurer not liable under no-fault liability for death of owner-driver, but liable to pay Rs. 2 lakh under special personal accident contract with interest.

What did the court decide?

The appeal allowed in part; compensation under Section 140 quashed; insurer directed to pay Rs. 2,00,000/- with 7.5% interest.

The Oriental Insurance Co. Ltd. Vs Smt Shobha P — Insurance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 28^TH DAY OF JUNE, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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M.F.A.NO.3137/2013 (MV)

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BETWEEN:

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THE ORIENTAL INSURANCE CO. LTD., NO.1, THEJUS COMPLEX, CSI SAYYAJI RAO ROAD, PB 27, MYSURU.

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REP. BY ITS REGIONAL MANAGER THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE NO.44/45, LEO SHOPPING COMPLEX RESIDENCY ROAD CROSS, BENGALURU – 25.

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… APPELLANT

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(BY SRI SHANKARA REDDY C., ADVOCATE)

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AND:

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1 . SMT. SHOBHA P., W/O LATE CHALUVARAJU AGED ABOUT 30 YEARS

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2 . DARSHINI D/O LATE CHALUVARAJU MINOR

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3 . APOORVIKA D/O LATE CHALUVARAJU MINOR

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RESPONDENT NOS.2 AND 3 ARE MINORS REPRESENTED BY THEIR MOTHER 1^ST RESPONDENT SHOBHA P.,

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ALL ARE R/AT NAGUVANAHALLI VILLAGE KASABA HOBLI, SRIRANGAPATNA TALUK MANDYA DISTRICT-571 438.

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… RESPONDENTS

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(NOTICE TO R1, R2 AND R3 ARE HELD SUFFICIENT VIDE ORDER DATED 15.12.2016)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 06.12.2012 PASSED IN MVC NO.230/2012 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR.DN.), MACT, SRIRANGAPATNA, AWARDING COMPENSATION OF Rs.50,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL COMPENSATION.

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THIS MFA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 10.06.2021 THROUGH ‘VIDEO CONFERENCE’ THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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J U D G M E N T

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This appeal is filed challenging the judgment and award passed in M.V.C.No.230/2012 dated 06.12.2012 on the file of

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the Principal Civil Judge (Sr.Dn.) & MACT, at Srirangapatna questioning the liability fastened on the Insurance Company to pay compensation of Rs.50,000/- on the head of no fault liability.

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The factual matrix of the case is that the claimants before the Tribunal have contended that the deceased Cheluvaraju met with an accident on 15.01.2012 at about 1.30 p.m. and due to the injuries, he succumbed to the same. Hence,

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the claim petition was filed before the Tribunal. The Tribunal allowed the claim petition granting compensation of Rs.50,000/on the head of no fault liability, as the deceased was the insured of the vehicle involved in the accident. Hence, the present appeal is filed contending that the Tribunal has committed an error in fastening the liability on the Insurance Company directing to pay the amount of Rs.50,000/- on the head of no fault liability.

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The deceased Cheluvaraju being the owner of the

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insured vehicle, the claimants, who are the legal heirs of the deceased Cheluvaraju are not entitled for any compensation and also contended that the policy is an act policy and in view of the

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judgment reported in ACJ 2009 Page 1433 in the case of National Insurance Company Limited –vs- Sheela and Another, the Tribunal without considering all these aspects erred in fixing the liability on the appellant-Insurance Company without any basis. The Tribunal ought to have noticed that deceased himself is the owner of the vehicle in question and the respondents being the wife and children cannot assume the seat of third parties as per the terms and conditions of the insurance

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policy. The appellant-Insurance Company is liable to pay the compensation only for bodily injuries or death that may be caused to a third party alone. Hence, the liability fastened on the appellant-Insurance Company is incorrect and the same is liable to be set aside.

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This Court has issued notice to the respondents and

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they did not choose to appear before the Court and hence, notice to the respondents is held sufficient.

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Having heard the learned counsel for the appellant-

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Insurance Company and also on perusal of the records, the

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points that would arise for consideration of this Court are:

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(i) Whether the claimants are entitled for compensation under the Special Contract for personal accident claim benefit?

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(ii) Whether the Tribunal has committed an error in awarding an amount of Rs.50,000/- under the head of no fault liability?

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(iii) Whether the claimants have to approach the Insurance Company for personal accident claim or this Court can grant compensation under personal accident claim in view of Special Contract?

(iv) What order?

Point No.(i)

Having perused the records, it is the claim of the claimants before the Tribunal that they are the legal heirs of deceased Cheluvaraju and they have claimed compensation by filing the claim petition contending that, when they were proceeding in the vehicle, the dog suddenly came across the road, as a result, the driver of the car i.e.., the deceased Cheluvaraju, in order to avoid the accident, took the vehicle other side, at that time, he went and hit the pillar of the bridge. As a result, he has sustained grievous injuries and he was succumbed to the injuries. He was working in a Railway Workshop and was drawing a sum of Rs.40,000/- per month. Hence, the claim petition is filed claiming the compensation.

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On perusal of the claim petition, no provision is mentioned in the claim petition whether the petition is under Section 166 or 163(A) of the MV Act. The appellant-Insurance Company took the defence in the written statement that the accident was on account of the negligence on the part of the deceased himself. The police also after investigation have filed

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the abated charge sheet against the deceased. It is also contended that the deceased was the insured and liability is subjected to the terms and conditions of the policy. It is further contended that the policy issued is only a liability policy. Under the said policy, the inmates of the private car are not covered. Hence, the appellant-Insurance Company is not liable to pay any compensation.

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Having perused the records, it is not in dispute that the insured himself was driving the car. The claimants, in order to substantiate their claim, have examined the first claimant, who is the wife of late Cheluvaraju as P.W.1 and got marked the documents Exs.P1 to P9. The Insurance Company examined one witness as R.W.1 and got marked the documents Exs.R1 and R2, policy and charge-sheet.

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In the affidavit, R.W.1 has reiterated that the policy is only a private car liability policy. The deceased had paid premium for personal accident for owner cum driver which does not come under the vehicle accident claims. Hence, the petition is not maintainable and liable to be dismissed. It is also not in dispute that the other occupant has also filed claim petition in

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M.V.C.No.229/2012. In the cross-examination, he admits that

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the seating capacity under the policy is shown as three plus one.

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Now this Court has to examine the contents of the

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policy and no doubt, the policy is only a private car liability policy, on perusal of the schedule of premium, an amount of Rs.100/- is collected towards personal accident claims for ownerdriver-GR36A, an additional amount of Rs.25/- is collected towards LL-paid driver, conductor, cleaner-IMT-28. Having perused Ex.R1-policy, it is clear that, under the special contract, the Insurance Company has collected an amount of Rs.100/towards personal accident claim for owner-driver, apart from collecting an amount of Rs.25/- towards LL paid driver. The Insurance Company also not disputed the said fact that they collected an amount of Rs.25/- towards LL paid driver and Rs.100/- towards PA claim for owner-driver.

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On perusal of the judgment of the Tribunal, the

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Tribunal failed to take note of the fact that an amount of Rs.100/- was collected under the special contract towards personal accident claim. The Apex Court, in the judgment reported in AIR 2018 SCC 4133 in the case of National

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Insurance Co. Ltd. v. Ashalata Bhowmik and others held

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that accident occurring due to rash and negligent driving of deceased and no other vehicle involved in the accident. The deceased being owner-cum-driver of offending vehicle, not third party within the meaning of the Act, the insurer not liable to pay compensation. But however held that indemnification extended to personal accident of the deceased is limited to the extent of Rs.2,00,000/- under the contract of insurance, the respondents are entitled for the said amount towards compensation. Having perused the judgment, it is clear that, the claimants are not entitled for compensation under Section 166 of MV Act. However, they are entitled for compensation under the personal accident claim since, there was a contract of insurance.

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The Apex Court also, in the recent judgment reported in AIR 2020 SC 527 in the case of Ramkhiladi and another v. United India Insurance Company and another held that the claimants are entitled for compensation and the terms of contract of insurance would be taken recourse to. In this judgment also, the Apex Court referred the Ashalata Bhowmik’s case (supra) wherein it is held that the parties shall

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be governed by the terms and conditions of the contract of insurance. Therefore, as per the contract of insurance, the Insurance Company shall be liable to pay the compensation to a third party and not to the owner, except to the extent of Rs.1,00,000/- as observed herein above i.e., allowing the claim nder personal accident claims benefit, in view of the special contract between the parties. Hence, it is clear that in view of collection of Rs.100/- under the special contract for personal accident claim, the claimants are entitled for compensation of Rs.2,00,000/- and the Apex Court in Ramkhiladi’s case (supra) allowed the interest at the rate of 7.5% per annum for the year 2020. Hence, the claimants are entitled for compensation under the personal accident claim to the tune of Rs.2,00,000/- with interest at 7.5% per annum. Hence, Point No.1 is answered as affirmative. Hence, Point No.(i) is answered as ‘affirmative’.

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Point No.(ii)

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The very contention of the learned counsel appearing for the Insurance Company is that the Tribunal has committed an error in awarding compensation of Rs.50,000/- on the head of no fault liability. There is a force in the contention of the learned counsel for the Insurance Company. It is not in dispute that the

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deceased Cheluvaraju is the owner of the insured vehicle and the claimants are the legal heirs of deceased Cheluvaraju. Having perused the provision of Section 140 of the M.V. Act, it is clear that even the liability under Section 140 of the M.V. Act is a statutory liability and under the statutory liability, the owner or Insurance Company is liable to pay the compensation to third parties. Here is a case where the claimants are the legal heirs of the owner of the insured vehicle. When such being the case, the claimants, who are the legal heirs of the deceased are not entitled for compensation under Section 140 of M.V. Act.

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The Apex Court in the judgment reported in AIR 2010 SC 2913 in the case of Indra Devi & Ors v. Bagada Ram & Anr. , while considering Section 140 of the M.V. Act has held that the victim of accident himself at fault and cause of accident does not deprive him from no fault compensation and the Apex Court directed not to recover the amount paid under Section 140 of the M.V. Act and in the said case, the legal representatives are not the owner of the vehicle and they are legal representatives of third party.

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The Apex Court also discussed the same issue in the judgment reported in (2010) 3 SCC (Cri) 1042 in the case of Eshwarappa Alias Maheshwarappa and Another v. C.S. Gurushanthappa and Another wherein the Apex Court has discussed the scope of Section 140 of M.V. Act and no fault liability of payment of compensation and the Apex Court has gone to the extent of extending the benefit under Section 140 of M.V. Act in respect of persons, who have not approached the Apex Court and in the said case also, the claimants are not the legal heirs of the original owner.

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I have already pointed out that on reading of the provision of Section 140 of M.V. Act, it is clear that, if an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this Section and the same is a statutory liability and not arising out of any contract and the question of the Insurance Company indemnifying the claimants does not arise.

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Hence, I am of the opinion that the Tribunal has

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committed an error in awarding compensation under Section 140 of M.V. Act under no fault liability in respect of the claimants, who are the legal heirs of the insured. However, I have already pointed out that there was a special contract between the owner and the Insurance Company under the personal accident claim which has been discussed in detail in paragraph Nos.11 and 12 of this judgment and the claimants are entitled for compensation under the special contract for personal accident claims benefit and according, Point No.(ii) is answered as ‘affirmative’.

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Point No.(iii)

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The learned counsel appearing for the Insurance Company would contend that the claimants have to approach the Insurance Company for personal accident claim and this Court cannot entertain the same. It has to be noted that the claim petition was filed before the Tribunal seeking compensation under Section 166 of M.V. Act and the Tribunal comes to the conclusion that the claimants are entitled for compensation under Section 140 of M.V. Act under no fault liability and awarded a compensation of Rs.50,000/-. On perusal of the

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policy, which has been marked as Ex.R1, this Court has noticed that there was a special contract between the owner and the Insurance Company for personal accident claim. When the Court has come to the conclusion that claimants are not entitled for compensation under Section 166 of the M.V. Act and also under Section 140 of M.V. Act and having perused Ex.R1-policy, it is evident that an additional amount has been collected for personal accident claim. When such being the case, claimants need not approach the Insurance Company once again for personal accident claim and the Insurance Company ought to have paid the said amount, when there was a special contract and the same has not been paid. Having perused Ex.R1-policy and when the special contract is in existence between the Insurance Company and the owner, the claimant once again need not approach the Insurance Company and the Insurance Company is liable to pay compensation under personal accident claim. Hence, this Court can grant the compensation under personal accident claim, in view of the special contract between the owner and the Insurance Company as held by the Apex Court in Ashalata Bhowmik’s case and Ramkhiladi’s case

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referred (supra). Accordingly, I answer point No.(iii) as ‘affirmative’.

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Point No.(iv)

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In view of the discussions made above, I proceed to pass the following:

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ORDER

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(i) The appeal filed by the Insurance Company is allowed in part, so far as the liability under Section140 of M.V. Act and the judgment and award of the Tribunal passed in M.V.C.No.230/2012 dated 06.12.2012 on the file of the Principal Civil Judge (Sr.Dn.) & MACT, at Srirangapatna is modified and the Insurance Company is not liable to pay compensation under Section 140 of M.V. Act.

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(ii) The Insurance Company is directed to pay compensation of Rs.2,00,000/- in favour of the claimants under personal accident claim with 7.5% interest within six weeks from today.

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(iii) The amount deposited by the Insurance Company is ordered to be transmitted to the Tribunal forthwith.

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(iv) The Registry is directed to transmit the TCR to the Tribunal forthwith.

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Sd/JUDGE

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The Oriental Insurance Co. Ltd. v. Smt Shobha P

Case brief

What is this about?

What did the court decide?

The Oriental Insurance Co. Ltd. v. Smt Shobha P

Case brief

What is this about?

What did the court decide?

What the court decided

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