Dismissed

B K Basavaraju v. the Oriental Insurance Co. Ltd.

Karnataka HC23 Jun 2023MFA/1474/2012

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed an appeal challenging the dismissal of a compensation claim petition filed by an owner-driver against his insurer. The court held Section 166 claims are not maintainable but granted liberty to claim under personal accident coverage.

What did the court decide?

Appeal dismissed; liberty granted to claimant to work out remedy under personal accident coverage before appropriate forum.

B K Basavaraju Vs the Oriental Insurance Co. Ltd. — Insurance | Karnataka HC (2023)

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NC: 2023:KHC:21875 MFA No. 1474 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 1474 OF 2012 (MV)

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BETWEEN:

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B K BASAVARAJU, S/O KALABHOVI @ MARIYAPPA, AGED ABOUT 36 YEARS, R/AT YEDIYUR, YEDIYUR HOBLI, KUNIGAL TALUK, TUMKUR DISTRICT.

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…APPELLANT

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(BY SMT. SUNITHA B H, ADVOCATE FOR SRI. RAJANNA, ADVOCATE)

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AND:

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Digitally signed by VIJAYALAKSHMI B N Location: HIGH COURT OF KARNATAKA

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THE ORIENTAL INSURANCE CO. LTD., B.O.METAGALLI, NO.4/12, NAVEEN COMPLEX, 1ST FLOOR, HEBBAL MAIN ROAD, MYSORE - 570 016. REPRESENTED BY ITS MANAGER.

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…RESPONDENT

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(BY SRI. H S LINGARAJ, ADVOCATE)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.6.2011 PASSED IN MVC NO.243/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC & ADDITIONAL MACT, AT KUNIGAL, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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NC: 2023:KHC:21875 MFA No. 1474 of 2012

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JUDGMENT

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The appeal is filed by the claimant challenging the judgment and award dated 17.06.2011 passed in MVC No.243/2008 by the Court of Senior Civil Judge and JMFC & Addl. MACT, Kunigal by which the claim petition is dismissed.

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2. Brief facts of the case are that:

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On 30.12.2007 at about 11.30 a.m., the claimant

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was traveling on his Tata Ace vehicle bearing Reg.No.KA54-458. At that time, near Byaladakere village, on NH.48 road, B.M. Road from Bindiganavile to Bangalore, the driver of the said Tata Ace vehicle drove the same in a rash and negligent manner in high speed and applied the brakes and steered the vehicle to left side of the road and thereby dashed against the tree on the left side of the road. As a result, the claimant has sustained grievous

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3 - NC: 2023:KHC:21875 MFA No. 1474 of 2012

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injuries. Therefore, the claimant has filed the claim petition, seeking compensation.

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Heard the arguments of learned counsel for the appellant and the learned counsel for the respondentInsurance Company and perused the records.

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In the present case, the claimant while driving Tata Ace vehicle bearing Reg.No.KA-54-458 on 30.12.2007 has caused accident near NH.48 from Bindiganavile to Bangalore. The claimant himself is the owner of the said vehicle. The claimant being the owner drove the said vehicle and has sustained injuries in the accident. Therefore, the claimant being the owner had filed the claim petition by incorporating Section 166 of the Motor Vehicles Act against the insurer. The Tribunal has dismissed the claim petition on the ground that the claimant himself is the owner of the offending vehicle and the claim petition filed by the owner against insurance company is not maintainable. As such, dismissed the claim petition.

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NC: 2023:KHC:21875 MFA No. 1474 of 2012

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The Tribunal has also discussed with regard to

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the driver did not hold valid and effective driving license to drive the vehicle at the time of accident. But the fact remains that the claimant himself is the owner of Tata Ace vehicle and had filed claim petition against the insurance company. Therefore, the claim petition filed by the owner making the claim against himself is not maintainable just because there is contract insurance between the insurance company and the owner of the offending vehicle. The role of insurance company to pay compensation is basically on

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the principle of indemnifying the owner of offending vehicle. Therefore, the claim petition is filed basically against the owner but the question of payment of compensation by the insurance company arise because of the fact that there is contract of insurance between the insurance company and the owner. Therefore, in this regard, the owner cannot claim against himself as he is appearing in the present case. The responsibility of paying compensation by the insurance company is by virtue of

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5 - NC: 2023:KHC:21875 MFA No. 1474 of 2012

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indemnifying the owner of the vehicle. If there is no indemnification, then there is no question of payment of compensation by the insurance company. Therefore, the claim petition filed under Section 166 of Motor Vehicles Act is not maintainable and the Tribunal has rightly dismissed the claim petition. This view is forfeited by the judgment of Division Bench of this Court in the case of Mohammed Yusuf versus The Divisional Manager, New India Assurance Co.Ltd., Dharwad reported in 2012 (3)KCCR 2068 (DB) . At the most, the claimant is entitled for compensation under the personal accident coverage and it is purely contractual insurance between the claimant and the insurance company. But there is disputed fact in the case that whatever the nature of injuries sustained by the claimant and what is the disability suffered by him. This disputed fact can be worked out before the appropriate forum as observed in para No.18 of the judgment rendered by Division Bench of this Court in the aforementioned case. Therefore, the claimant is given liberty to work out his remedy for

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6 - NC: 2023:KHC:21875 MFA No. 1474 of 2012

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claiming compensation under personal accident coverage before the appropriate forum, if the claimant is advised to do so. As such, with the aforesaid liberty granted, the appeal is liable to be dismissed.

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Accordingly, I proceed to pass the following:

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ORDER

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i. The appeal is dismissed .

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ii. Liberty is reserved to the claimant to approach appropriate forum to workout his case to claim compensation.

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iii. The amount if any, in deposit is ordered to be transmitted to the Tribunal, forthwith.

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iv. Registry is directed to return the Trial Court Records along with certified copy of this order without delay.

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v. No order as to costs.

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SSD

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Sd/JUDGE

B K Basavaraju v. the Oriental Insurance Co. Ltd.

Case brief

What is this about?

What did the court decide?

B K Basavaraju v. the Oriental Insurance Co. Ltd.

Case brief

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What did the court decide?

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