Dismissed

The Oriental Insurance Co. Ltd. v. Gangamma

Karnataka HC2 Jun 2021MFA/5331/2013

Case brief

AI extract

What is this about?

Appeals challenging Motor Accident Claim awards were dismissed. The Court allowed an application for production of the insurance policy but held that the Tribunal did not err in fastening liability as the policy covered coolies traveling in the tractor, negating the insurer's contention.

What did the court decide?

Both appeals dismissed. Compensation amount in deposit to be transmitted to Tribunal.

The Oriental Insurance Co. Ltd. Vs Gangamma — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND 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.5332/2013 (MV)

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C/W. M.F.A.NO.5331/2013 (MV)

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IN M.F.A.NO.5332/2013 (MV):

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BETWEEN:

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THE ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE: JAYADEVA HOSTEL BUILDING B H ROAD TIPTUR

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THROUGH ITS BENGALURU REGIONAL OFFICE NO.44/45, RESIDENCY ROAD BENGALURU-25 REPRESENTED BY ITS DEPUTY MANAGER

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… APPELLANT

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(BY SRI S.V.HEGDE MULKHAND, ADVOCATE)

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AND:

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1 . SHOBHA

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D/O RANGASWAMY AGED ABOUT 32 YEARS R/O AVALAGERE VILLAGE C N HALLI TALUK NOW RESIDING AT MADHUGIRI ROAD SIRA GATE, TUMAKURU

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2 . BALARAMAIAH S/O GUDDPPA AGED ABOUT 38 YEARS R/O BULLENAHALLI VILLAGE

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C N HALLI TALUK TUMAKURU DISTRICT.

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… RESPONDENTS

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(NOTICE TO R1 IS DISPENSED WITH VIDE ORDER DATED 02.06.2021; R2-IS SERVED)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 09.01.2013 PASSED IN MVC.NO.281/2010 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, MACT, TUMAKURU, AWARDING A COMPENSATION OF RS.32,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.

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IN M.F.A.NO.5331/2013 (MV):

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BETWEEN:

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THE ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE: JAYADEVA HOSTEL BUILDING B H ROAD TIPTUR THROUGH ITS BENGALURU REGIONAL OFFICE NO.44/45, RESIDENCY ROAD BENGALURU-25 REPRESENTED BY ITS DEPUTY MANAGER

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… APPELLANT

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(BY SRI S.V.HEGDE MULKHAND, ADVOCATE)

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AND:

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1 . GANGAMMA

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W/O NINGAIAH AGED ABOUT 47 YEARS R/O AVALAGERE VILLAGE C N HALLI TALUK NOW R/A BOVIPALYA ANTHARASANAHALLI TUMAKURU-572 101

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2 . BALARAMAIAH

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S/O GUDDAPPA AGED ABOUT 38 YEARS R/O BULLENAHALLI VILLAGE C N HALLI TALUK TUMAKURU DISTRICT-572 101.

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… RESPONDENTS

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(R1 AND R2 ARE SERVED)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 09.01.2013 PASSED IN MVC.NO.280/2010 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, MACT, TUMAKURU, AWARDING A COMPENSATION OF RS.63,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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THESE MFAs’ COMING ON FOR ORDERS THROUGH ‘VIDEO CONFERENCE’ THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Though the appeals are listed for orders today, with the consent of learned counsel appearing for the appellant/Insurance Company, the same are taken up for final disposal.

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These two appeals are filed by the Insurance

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Company challenging the Judgment and Award dated 09.01.2013 passed in M.V.C.No.281/2010 and M.V.C.No.280/2010, respectively, on the file of Principal District

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and Sessions Judge & JMFC., at Tumakuru (‘the Tribunal’ for short), questioning the liability fixed on the Insurance Company.

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The factual matrix of the case is that the claimants before the Tribunal contended that the accident was taken place on 24.12.2004 at about 8:00 a.m, between AnkanabaviM.H.Kaval Gate on Huliyar-C.N.Halli road, Kandikere Hobli, C.N.Halli Taluk, occurred due to the rash and negligent driving of the Tractor/Trailer bearing registration No.KA-44-T-165/166 by its driver, while the claimants were traveling in the said vehicle. They have sustained the injuries in the said motor accident.

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The said claim petitions were opposed by filing the detailed objections by the Insurance Company contending that the claimants were the employees of one Cheluvaraja and the policy was issued in respect of one Balaramaiah.

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The Tribunal after considering the material available on record came to a conclusion that the policy was not placed before the Tribunal and hence, the Insurance Company is liable to pay the compensation. Hence, the present appeals are filed before this Court.

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The main contention of the learned counsel for the

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appellant is that the appellant/Insurance Company has filed an application-IA No.2/2013 filed under Order 41 Rule 27 read with Section 151 of CPC for production of additional documents i.e., copy of the Insurance Policy covering the risk of the tractortrailer bearing No.KA-44-T-165/166 for the period from 29.10.2004 to 28.10.2005 in both the appeals and praying this Court to permit the appellant to produce the copy of the Insurance policy and the same could not be placed before the Tribunal.

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This Court has issued notices against the

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respondents and the respondents are served and they have not chosen to appear or engage any counsel on their behalf.

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Learned counsel for the appellant/Insurance

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Company in his arguments vehemently contended that the policy which was issued is standing in the name of one Balaramaiah and does not cover the risk of the persons, who traveling in the said tractor-trailer and the Company is not liable to pay any compensation. The Tribunal contrary to the evidence on record erred in fastening the liability to pay the compensation, which is

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contrary to the principles laid down in the judgment of the Apex Court. The records and evidence show that admittedly the claimants were working in a mines belonging to one Shri. Cheluvaraja and were proceeding on the said tractor/trailer at the time of the accident to attend the mines work of Shri. Cheluvaraja. The evidence on record clearly shows that the claiamants were not the employees of the insured-respondent No.2 (Balaramaiah). Hence, it requires an interference of this Court.

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Having heard the arguments of learned counsel for the appellant/Insurance Company and on perusal of the grounds urged in both the appeals and the materials available on record, the points that would arise for consideration of this Court are:

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(1) Whether the appellant/Insurance Company has made out a case in an application-IA No.2/2013 filed under Order 41 Rule 27 read with Section 151 of CPC?

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(2) Whether the Tribunal has committed an error in fastening the liability on the Insurance Company and whether it requires an interference of this Court?

(3) What order?

Point No.(i):

The appellant in the application-IA No.2/2013 filed under Order 41 Rule 27 read with Section 151 of CPC praying this Court to permit the appellant to produce the copy of the policy covering the risk of the Tractor/Trailer bearing registration No.KA-44-T-165/166 for the period from 29.10.2004 to 28.10.2005. The reason assigned in the affidavits that the Company is not liable to pay the compensation as the policy does not cover the risk of the persons travelled in the tractor/trailer and the same could not be placed before the Tribunal. The Company is not statutorily liable to pay the compensation and hence, the Company may be permitted to produce the same. Hence, the matter requires re-consideration.

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In spite of service of notice against respondent Nos.1 and 2, they have not appeared and opposed the application and the appeals. The fact that the Insurance Company has not produced the policy before the Tribunal, is not in dispute. In order to consider the grievance of the appellant and when the application is not opposed, it is appropriate to allow the

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application filed under Order 41 Rule 27 read with Section 151 of CPC. Hence, I answer point No.(i) as ‘affirmative’.

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Point Nos.(ii) & (iii):

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Now, the question before this Court is with regard to even in the absence of non-production of the policy, whether the Tribunal has committed an error in fastening the liability on the Insurance Company. The fact that the policy was issued in respect of the tractor/trailer is not in dispute. The witnesses, P.W.1 in both the claim petitions, who have been examined before the Tribunal depose that in order to attend the coolie, work in the mines belonging to one Shri. Cheluvaraja near C.N.Halli, they were proceeding in the Tractor/Trailer, which was driven in a rash and negligent manner, dashed against a Tamarind Tree standing on the road side due to which, claimants and others have sustained injuries.

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The main contention of the learned counsel for the appellant/Insurance Company is that the claimants were traveling as Coolies of one Shri. Cheluvaraja and not the coolies of Shri. Balaramaiah. No doubt, the policy, which is produced before the Court stands in the name of Balaramaiah and the said

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Balaramaiah, is the owner of the tractor/trailer and when the policy covers the risk of the Coolie and when they were traveling as a Coolie in the particular tractor, the very contention that they were the employees of Shri. Cheluvaraja, the Insurance Company is not liable to pay the compensation, cannot be accepted.

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The policy is not in dispute and the fact that the claimants were also travelled as Coolie is also not in dispute and when the contract of Indemnity is in existence, I do not find any error in fastening the liability on the Insurance Company by the Tribunal. No doubt, the Tribunal fastened the liability on the ground that the policy is also not produced before the Tribunal. Even if the policy, which is produced before this Court is also taken on record, it will not twist the reasoning given by the Tribunal. I have already pointed out that the claimants are Coolies, who travelled in the tractor to attend the coolie work and the policy covers the risk of the coolies, who travelled in the tractor as coolies. I do not find any force in the contention of the learned counsel for the appellant.

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In view of allowing the applications-IA No.2/2013 filed under Order 41 Rule 27 read with Section 151 of CPC, even if the appeals are remanded, the liability cannot be exonerated in respect of the Company and no need to remand the matters. Hence, I do not find any merit in the appeals to set-aside the Judgments and awards and also to re-consider the fastening of the liability on the Insurance Company.

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) Both the appeals are dismissed.

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(ii) The amount in deposit, if any, shall be transmitted to the concerned Tribunal, forthwith.

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In view of allowing the main appeals, I.As, if any, do not

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survive for consideration and the same stand disposed of.

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Sd/JUDGE

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cp*

The Oriental Insurance Co. Ltd. v. Gangamma

Case brief

What is this about?

What did the court decide?

The Oriental Insurance Co. Ltd. v. Gangamma

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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