Allowed

The Divisional Manager v. Suvarna Rajendra Vakhariya

Karnataka HC9 Aug 2023MFA/21432/2011

Case brief

AI extract

What is this about?

The High Court allowed two appeals filed by an insurance company against a Motor Vehicle Claim Tribunal award. Relying on precedent, the Court held the driver's claim under Section 163A was not maintainable. Furthermore, the Court ruled that under an Act Liability Policy without additional premium, the insurer is not liable for occupant injuries, exonerating the company from compensation liability

What did the court decide?

Insurance Company appeals allowed; Tribunal judgment set aside; Liability for occupant compensation fixed on car owner.

The Divisional Manager Vs Suvarna Rajendra Vakhariya — Insurance | Karnataka HC (2023)

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NC: 2023:KHC-D:8612 MFA No. 21432 of 2011 C/W MFA No. 21433 of 2011

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 9^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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MISCELLANEOUS FIRST APPEAL NO.21432/2011(MV-I) C/W MISCELLANEOUS FIRST APPEAL NO.21433/2011

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IN MFA.NO.21432/2011:

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BETWEEN:

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THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, CLUB ROAD, BELGAUM, REPRESENTED BY ASST. MANAGER, REGIONAL OFFICE, TP-HUB, 2ND FLOOR, SRINATH COMPLEX, NEW COTTON MARKET, HUBLI – 580 029.

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…APPELLANT

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(BY SRI G. N. RAICHUR, ADVOCATE)

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Digitally signed by SUJATA SUBHASH PAMMAR

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AND:

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SMT. SUVARNA RAJENDRA VAKHARIYA, AGE: 47 YEARS, OCC: TAILORING (NOW NIL) R/O: H.NO.314, DALAL PETH, NIPPANI, TQ: CHIKKODI.

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SRI RAJARAM SHAMRAO KAMBLE, AGE: MAJOR, OCC: SERVICE, R/O: NO. 21/B, MOUNI VIDHYAPITH STAFF, QUARTERS, POST: GARGOTI, TQ: BHUDARGAD, DIST: KOLHAPUR, MAHARASHTRA. (OWNER OF MARUTI CAR NO. MH-0/AB-5425)

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…RESPONDENTS

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NC: 2023:KHC-D:8612 MFA No. 21432 of 2011 C/W MFA No. 21433 of 2011

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(BY SRI S.L. LINGANGOUDAR, ADVOCATE FOR SRI HARISH S. MAIGUR, ADVOCATE FOR R1; NOTICE TO R2 IS HELD SUFFICIENT)

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THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLE ACT, 1988, PRAYING TO CALL FOR THE RECORDS HEAR THE PARTIES AND SET ASIDE THE JUDGMENT AND AWARD DATED 16.12.2010 IN MVC NO.3126/2008, PASSED BY THE PRESIDING OFFICER FAST TRACK COURT – IV AND MOTOR ACCIDENT CLAIMS TRIBUNAL, BELGAUM, BY ALLOWING THIS APPEAL WITH COST IN THE ENDS OF JUSTICE AND EQUITY.

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IN MFA.NO.21433/2011:

BETWEEN:

…APPELLANT

(BY SRI G. N. RAICHUR, ADVOCATE)

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AND:

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SRI RAJENDRA MANIKANT VAKHARIYA, AGE: 58 YEARS, OCC: MEDICL PRACTITIONER,

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NC: 2023:KHC-D:8612 MFA No. 21432 of 2011 C/W MFA No. 21433 of 2011

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R/O: H.NO.314, DALAL PETH, NIPPANI, TQ: CHIKKODI, DIST: BELGAUM.

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SRI RAJARAM SHAMRAO KAMBLE, AGE: MAJOR, OCC: SERVICE, R/O: NO. 21/B, MOUNI VIDHYAPITH STAFF, QUARTERS, POST: GARGOTI, TQ: BHUDARGAD, DIST: KOLHAPUR, MAHARASHTRA. (OWNER OF MARUTI CAR NO. MH-09/AB-5425)

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…RESPONDENTS

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(BY SRI S.L. LINGANGOUDAR, ADVOCATE FOR SRI HARISH S. MAIGUR, ADVOCATE FOR R1; NOTICE TO R2 IS HELD SUFFICIENT)

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THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLE ACT, 1988, PRAYING TO CALL FOR THE RECORDS HEAR THE PARTIES AND SET ASIDE THE JUDGMENT AND AWARD DATED 16.12.2010 IN MVC NO.3125/2008, PASSED BY THE PRESIDING OFFICER FAST TRACK COURT – IV AND MOTOR ACCIDENT CLAIMS TRIBUNAL, BELGAUM, BY ALLOWING THIS APPEAL WITH COST IN THE ENDS OF JUSTICE AND EQUITY.

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

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NC: 2023:KHC-D:8612 MFA No. 21432 of 2011 C/W MFA No. 21433 of 2011

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JUDGMENT

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MFA No.21432/2011 and MFA No.21433/2011 are

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filed by the Insurance Company challenging the common judgment and award passed in MVC Nos.3125/2008 and 3126/2008 dated 16.12.2010 passed by the Fast Track Court-IV and MACT, Belagavi questioning the liability fixed on the Insurance Company.

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The fact of occurrence of accident and claimants sustaining injuries in the said accident is not in dispute. The applicability and coverage of the insurance policy is also not in dispute. The appellant-Insurance Company is before this Court only challenging the liability fastened on it to pay compensation to claimants.

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Heard the learned counsel for the parties and perused the material on record.

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In the present case, claimant-Suvarna in MFA

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No.21432/2011 is occupant in the Maruti car bearing

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NC: 2023:KHC-D:8612 MFA No. 21432 of 2011 C/W MFA No. 21433 of 2011

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No.MH-09/AB-5425 and the claimant-Rajendra in MFA No.21433/2011 was driving the car.

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The driver Rajendra has filed claim petition under Section 163A of the Motor vehicle Act, 1988. The said driver Rajendra is not the employee of the owner of the car. But, on behalf of owner by stepping into the shoes of

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the owner of the car, while driving the car met with an accident. Therefore, the claim petition filed by the claimant Rajendra is not maintainable in view of the principle of law laid down by the Hon’ble Supreme Court in the case of Ramkhiladi and another vs. United India Insurance

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Company and another1. Therefore, the judgment and award passed insofar as claim petition filed under Section 163A of M.V.Act, 1988 is liable to be set aside.

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The occupant in the car by name Suvarna is concerned the Insurance policy of the car is Act Policy/Liability only. The occupant in the car is not third

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1 AIR 2020 SC 527

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- 6 - NC: 2023:KHC-D:8612 MFA No. 21432 of 2011 C/W MFA No. 21433 of 2011

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party. There is no evidence that additional premium is paid covering the risk of the occupant in the car. Therefore, the issue involved in this case is no more resintegra in view of the order of this Court (Kalaburagi Bench) in the case of Divisional Manager, United India

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Insurance Company Limited and others Vs.

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Shamaraya and others in MFA No.31781/2010 and connected matters dated 22.12.2020.

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In the present case, Insurance Policy is Act Policy. Hence, occupant Suvarna is not third party. Therefore, under the Act Policy, the risk of the occupant of the car is not covered and also for the reason that there is no proof regarding payment of premium/additional premium. Therefore, judgment and award of the Tribunal insofar as fastening the liability on the Insurance Company is liable to be set aside. Insofar payment of compensation to claimant-Suvarna is concerned, the owner is liable to pay compensation. Therefore, both the appeals are liable to be allowed. Hence, I proceed to pass the following:

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NC: 2023:KHC-D:8612 MFA No. 21432 of 2011 C/W MFA No. 21433 of 2011

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ORDER

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i) Appeals filed by the insurance

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company are allowed.

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ii) Judgment and award passed in MVC Nos. 3125/2008 dated 16.12.2010 passed by the Fast Track Court-IV and MACT, Belagavi is hereby set aside.

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iii) Judgment and award passed in MVC Nos.3126/2008 dated 16.12.2010 passed by the Fast Track Court-IV and MACT, Belagavi is hereby modified to the effect that the owner of the car shall pay compensation to the claimant. Thus, the insurance company is exonerated from it’s liability to pay compensation to occupant-Suvarna.

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iv) Registry is directed to return the Trial Court Records to the Tribunal, along with

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