Remanded

Sri. D. C. Kumar v. Sri. Premkumar

Karnataka HC29 Nov 2022MFA/1186/2017

Case brief

AI extract

What is this about?

The High Court set aside an award where the Tribunal deleted the insurance company as a party upon the insurer's memo without issuing statutory notice. The court held the insurer is a necessary party under the Motor Vehicles Act and remanded the case for fresh consideration with active insurer participation.

What did the court decide?

Impugned judgment and award set aside and matter remitted to Tribunal for fresh consideration with Insurance Company as an active party.

Sri. D. C. Kumar Vs Sri. Premkumar — Motor Accident Claims | Karnataka HC (2022)

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MFA No. 1186 of 2017 C/W MFA No. 5753 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF NOVEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 1186 OF 2017 C/W MISCELLANEOUS FIRST APPEAL NO. 5753 OF 2017 (WC)

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IN MFA NO.1186/2017

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BETWEEN:

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Digitally signed by PAVITHRA B Location: High Court of Karnataka

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SRI. D. C. KUMAR S/O. CHANDRAIAH, AGED ABOUT 36 YERAS, OWNER OF MINI LORRY KA-51/4804, DHARAMPURA, HIRIYUR TALUK, CHITRADURGA DISTRICT-577 546.

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…APPELLANT

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(BY SRI. JAYANNA G R., ADVOCATE)

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AND:

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SRI. PREMKUMAR S/O. BASAVARAJAPPA, AGED ABOUT 32 YEARS, SAKARA-VILLAGE, HIRIYUR TALUK, CHITRADURGA DISTRICT-577 598.

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MFA No. 1186 of 2017 C/W MFA No. 5753 of 2017

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THE BRANCH MANAGER RELIANCE GENERAL INSURANCE CO. LTD., 1^ST FLOOR, MAGANUR COMMERCIAL COMPLEX, NEAR K.S.R.T.C., BUS STAND, B.D. ROAD, CHITRADURGA-577 501.

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…RESPONDENTS

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(BY SRI. SPOORTHY HEDGE NAGARAJ, ADVOCATE FOR R1, SRI H.S.LINGARAJ, ADVOCATE FOR R2)

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THIS MFA FILED U/S.30(1) OF THE WORKMEN'S COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD DATED:03.12.2016 PASSED ON ECA NO.76/14 ON THE FILE OF THE SENIOR CIVIL JUDGE & ECC, HIRIYUR, AWARDING COMPENSATION OF RS.4,03,046-40 WITH INTEREST AT 12% P.A. FROM THE DATE OF ACCIDENT TILL THE DATE OF DEPOSIT.

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IN MFA NO.5753/2017

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BETWEEN:

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PREMAKUMAR

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S/O BASAVARAJAPPA AGED ABOUT 32 YEARS R/O SAKRA VILLAGE

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HIRIYUR TALUK

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CHITRADURGA DISTRICT-577 501.

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…APPELLANT

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(BY SRI. SPOORTHY HEGDE NAGARAJA., ADVOCATE)

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MFA No. 1186 of 2017 C/W MFA No. 5753 of 2017

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AND:

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D.C. KUMAR S/O CHANDRAIAH MAJOR

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OWNER OF MINI LORRY REGN. NO.KA-51/4804 R/O DHARMAPURA AT ANY POST HIRIYUR TALUK CHITRADURGA DISTRICT-577 501.

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RELIANCE GENERAL INSURANCE CO.LTD. BY ITS BRANCH MANAGER BRANCH OFFICE 1ST FLOOR,MAGANUR COMMERCIAL COMPLEX, NEAR KSRTC BUS STAND, B D ROAD, CHITRADURGA-577 501.

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…RESPONDENTS

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(BY SRI. G.R.JAYANNA, ADVOCATE FOR R1, SRI H.S. LINGARAJ, ADVOCATE FOR R2 (VK NOT FILED)

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THIS MFA FILED UNDER SECTION 30(1) OF THE EMPLOYEES COMPENSATION ACT, 1923, AGAINST THE JUDGMENT AND AWARD DATED 03.12.2016 PASSED IN ECA NO.76/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ECC HIRIYUR, PARTLY ALLOWING THE PETITION FILED UNDER SECTION 22 OF EMPLOYEES COMPENSATION ACT 1923.

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4 - MFA No. 1186 of 2017 C/W MFA No. 5753 of 2017

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THESE APPEALS, COMING ON FOR FURTHER ARGUMENTS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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MFA.No.1186/2017 is filed by the owner of the lorry bearing Reg.No.KA-51-4804 challenging the judgment and award dated 03.12.2016, passed in ECA.No.76/2014 by the Senior Civil Judge & E.C.C., Hiriyur, questioning the liability fastened on him.

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MFA.No.5753/2017 is filed by the claimant

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challenging the aforesaid judgment and award for seeking enhancement of the compensation.

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Brief facts of the case are that, the claimant

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was working as a driver for the mini lorry bearing Reg.No.KA-51-4804 under the employment of respondent No.1. On 18.11.2010 when the claimant was discharging

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his duty as a driver, he was driving from Chitradurga to Bharamsagar and when reached near K.Ballekattte cross on NH-4 road, an unknown tractor driver came in a rash and negligent manner and dashed against the claimant’s vehicle. As a result, the claimant sustained injuries on his right leg and on body.

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Heard arguments from both sides and perused the records.

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Learned counsel for the appellant/owner submitted that before the Tribunal respondent No.2Insurance Company has filed a memo for deleting the Insurance Company as a party and on the same day, the Tribunal without giving an opportunity to the appellant to contest or to have his say on the memo, has passed the order deleting the Insurance Company from the array of parties and partly allowed the claim petition and fastened

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MFA No. 1186 of 2017 C/W MFA No. 5753 of 2017

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the liability on the owner of the offending vehicle. Hence, submitted that the procedure adopted by the Tribunal in entertaining the memo filed by the Insurance Company to delete the Insurance Company from the array of parties is not correct in view of the decision rendered by the Division

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Bench of this Court in the case of B.Srinivasa Reddy and

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Another v. Khatumbi and Others¹ .

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Before the Tribunal, initially, the claimant has

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filed a claim petition making the owner and the Insurance Company of the offending vehicle viz., the Lorry bearing Reg.No.KA-51-4804 as necessary parties. However, during the pendency of the petition, the Insurance Company filed a memo seeking deletion of the Insurance Company from the array of parties and the Tribunal has allowed the memo and partly allowed the claim petition fastening liability on the owner of the offending vehicle. Therefore,

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1 ILR 1974 KAR 994

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it is the contention of the learned counsel for the appellant-owner that such a practice adopted by the Insurance Company in filing the memo and the Tribunal allowing the said memo and partly allowing the claim petition fastening liability on the owner, is not correct. Further it is submitted that the offending vehicle has got a Insurance Policy as there was a valid coverage as on the date of accident. Therefore, in order to prove the nature of vehicle, driving licence, defence, insurance policy etc., the Insurance Company is a necessary party. By deleting the Insurance Company from the array of parties on the basis of the memo filed by the Insurance Company is not a proper procedure and the Tribunal has committed an error in not following the procedure adopted in dealing with the claim petition. This Court in the case of B. Srinivasa Reddy (cited supra) has observed at paragraph Nos.17 to 22 as follows:

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“ 17. Neither the Act nor the Rules requires that the claimant making an application under Section 110-A of the Act, should implead as respondent or opponent the insurer of the vehicle involved in the accident. A duty is cast on the Tribunal to send a notice of such application to the insurer. When such notice is issued to the insurer, he can be regarded as a party to the proceedings before the Tribunal.

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18. A similar view was expressed by a Bench of this Court consisting of one of us, in (The Concord of India Insurance Co., Ltd. vs. Rudregowda and another(1), There, the question that B arose for determination was whether an insurer can be impleaded as a parly to an application under Section 110-A of the Act after the expiry of the period of limitation prescribed by sub-section (3) of that Section, for presentation of such application. Dealing with that question, this is what that Bench observed:

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"There is no express provision in the Act or the rules made there- under, which requires that the insurer of a motor vehicle involved in an accident, should be impleaded as party in a petition under Section 110-A in which compensation is claimed as against the owner of that vehicle.

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All that is necessary to make the insurer so liable, is to give him through the court or the Tribunal, notice of the proceeding, in which compensa- tion is claimed as against the insured."

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19. A like view was taken by a Bench of the Bombay High Court in Besarlal vs. M.A. Claims Tribunal (2). Their Lordships observed at page 340:

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"It is quite clear on a reading of the prescribed form that it does not direct the claimant for compensation to include in the application any party as defendant and/or opposite party. We apprehend that all the relevant facts are in this connection left to be ascertained by the Claims Tribunal which has been entrusted with the very serious duties of finding out all the parties who may be liable to pay compensation by recording evidence to be produced by the parties concerned......... "

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20. As the insurer becomes a party to the proceedings before the Tribunal by virtue of the notice issued to him by the Tribunal to delete the insurer as a party to those proceedings. 110-A of the Act, has no right to give up the insurer as a party to the proceedings before the Tribunal, nor can he ask the Tribunal to delete the insurere as a party to those proceedings. The view we have taken receives support from the following observations of a Bench of the Madhya Pradesh High

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MFA No. 1186 of 2017 C/W MFA No. 5753 of 2017

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Court in M.P. State Road Transport Corporation Vs. Jahiram (3).

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" ...... Their Lordships of the Supreme Court have in British India General Insurance Co., Ltd. v. Captain Ither Singh and Others(4) indicated the nature of defences that are available to an insurer upon being impleaded as a party. We fail to appreciate how can the statutory NIVASA defences be raised unless the insurer is made a party. That is the only manner in which the insurer can avoid its liability. In view of the clear provisions contained in Section 96 (9) and (6) of the Motor Vehicles Act, it can hardly be asserted that an insurer is not a party to an action for recovery of damages. Thus, the insurer must, of necessity, be a party to such proceedings."

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21. After notice was issued to the Insurance Company and it filed its statement of objections and the Tribunal framed issues as to whether the compensation to the claimants, the Tribunal could not, in our opinion, delete the Insurance com- pany as a party to the proceedings even if the Claimants stated that they did not press their case against the Insurance Com- pany. So long as the Claimants did not give up their claim against the owner of the Vehicle involved in the accident, the Insurer to whom a notice had already been issued, was necessary party because under Section 96(1) of the Act

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MFA No. 1186 of 2017 C/W MFA No. 5753 of 2017

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the insurer is liable to pay the person entitled to the benefit of the decree passed against the insured.

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22. Thus, the Tribunal was not justified in dismissing the Claimants' application as against the Insurance Company merely because the Claimants did not press their claim against the Insurance Company. The judgment of the Tribunal is vitiated by this material illegality.”

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Therefore, when it is incumbent on the part of

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the Tribunal to issue notice to the insurer where a claim petition is filed by the claimant seeking compensation on account of the injuries sustained by him in the motor vehicle accident, then the Insurance Company cannot seek for deletion of Insurance Company from the proceedings simply by filing the memo. Therefore, filing memo seeking deletion of Insurance company is not a correct approach.

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The claimant has made the Insurance Company

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a party in the claim proceedings is because that Tribunal is

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MFA No. 1186 of 2017 C/W MFA No. 5753 of 2017

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enabled issuance of notice to the Insurance Company. Therefore, basically, it is the duty cast on the Tribunal to issue notice to the Insurance Company. Therefore, making the Insurance Company as a party in the claim petition is not the choice of the claimant, but it is the duty cast on

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the Tribunal to issue notice to the Insurance Company as per Sections 166 and 168 of the Motor Vehicles Act, 1988.

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Therefore, in this regard, the Tribunal has committed a procedural irregularity. Therefore, without expressing any opinion on the merit of the case, the case is remitted to the Tribunal for fresh consideration after making the Insurance Company to actively participate in the case. Therefore, the judgment and award is liable to be set aside and matters are remitted back to the Tribunal for fresh consideration. Accordingly, the following order is passed :

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MFA No. 1186 of 2017 C/W MFA No. 5753 of 2017

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ORDER

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MFA.No.1186/2017 filed by the owner of lorry

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bearing Reg.No.KA-51-4804 is allowed-in-part .

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MFA.No.5753/2017 filed by the claimant is allowedin-part .

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The impugned judgment and award dated 03.12.2016, passed in ECA.No.76/2014 by the Senior Civil Judge & E.C.C., Hiriyur, is hereby set aside and remanded to the Tribunal for fresh consideration in accordance with law.

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All the parties including the Insurance Company shall appear before the Tribunal/Commissioner on 02.01.2023.

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The Tribunal/Commissioner shall decide and adjudicate the case and dispose of the same within a period of three months from 02.01.2023.

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Liberty is reserved to both the parties to adduce additional oral and/or documentary evidence, if the parties are so advised.

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I.A.No.1/2022 along with the annexed documents

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shall be returned to the learned counsel appearing for the

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owner of lorry bearing Reg.No.KA-51-4804.

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Other I.As. do not survive for consideration. Hence,

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they are disposed of.

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All the contentions of the parties are kept open.

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The amount in deposit made by the appellant/owner along with accrued interest shall be transmitted to the Tribunal and the Tribunal shall not disburse the said

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amount either to the claimant or owner till the disposal of the matter.

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