Allowed

The Manager v. Khajamohiddin

Karnataka HC21 Aug 2023MFA/6844/2017

Case brief

AI extract

What is this about?

The High Court allowed the appeal filed by the insurance company against a Motor Accidents Claim Tribunal award. The Court held that an insurance policy is not required to cover the risk of death or bodily injury to the owner of the vehicle under Section 147 of the Motor Vehicles Act. Since the claimant was the vehicle owner, the liability was contractual, not statutory third-party, requiring a di

What did the court decide?

The impugned Judgment and Award of the Tribunal dated 05.01.2017 in MVC No. 25/2012 is set aside and the petition is dismissed. The deposit is refunded to the appellant.

The Manager Vs Khajamohiddin — Insurance | Karnataka HC (2023)

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NC: 2023:KHC:29695 MFA No. 6844 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR. JUSTICE C.M. JOSHI

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MISCELLANEOUS FIRST APPEAL NO.6844 OF 2017(MV-I)

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BETWEEN:

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Digitally signed by T S NAGARATHNA Location: High Court of Karnataka

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THE MANAGER THE ORIENTAL INSURANCE CO. LTD DIVISIONAL OFFICE S S COMPLEX SUBASH SQUARE HASSAN (POLICY NO.472600/31/2011/11361 VALID FROM 02/03/2011 UPTO 01/03/2012 NOW REPRESENTED BY ITS THE ORIENTAL INSURANCE CO LTD REGIONAL OFFICE, TP HUB LEO SHOPPING COMPLEX RESIDENCY ROAD CROSS Bengaluru-560025 BY ITS DEPUTY MANAGER LEGAL. …APPELLANT

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(BY SRI. H C VRUSHABHENDRAIAH, ADVOCATE)

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AND:

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KHAJAMOHIDDIN S/O ABDUL MAJEED AGED ABOUT 58 YEARS FRUIT MERCHANT R/O C/O T. BABASAB 5^TH CROSS, KODICAMP, TTK, CHICKMAGALUR DISTRICT-577101.

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SYED JAFFER SADIQUE S/O BASA SAB AGED ABOUT 42 YEARS DRIVER OF TATA GOODS VEHICLE BEARING NO.KA-13/A-5098 R/O KODI CAMP TARIKERE TOWN CHICKMAGALURU DISTRICT-577101.

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…RESPONDENTS

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(BY SRI. D.S DODDAIAH, ADVOCATE FOR SRI ANANDA SHETTY, ADVOCATE FOR R1; R2 SERVED AND UNREPRESENTED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.01.2017 PASSED IN MVC NO.25/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND PRINCIPAL JMFC, MAMACT, TARIKERE, AWARDING COMPENSATION OF RS.4,50,562/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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

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NC: 2023:KHC:29695 MFA No. 6844 of 2017

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JUDGMENT

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Heard Learned counsel for the appellant and the learned counsel for the respondent No.1.

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This appeal by the Insurance Company is directed against the Judgment and Award passed in MVC No.25/2012 dated 05.01.2017 by the Senior Civil Judge and MAMACT, Tarikere (for short, 'the Tribunal') whereby the appellant was directed to pay compensation of Rs.4,50,562/- to the claimant.

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The parties will be referred to as per their rank before the Tribunal for the sake of convenience.

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Brief facts of the case are as below:

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The petitioner who is respondent No.1 herein, filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short, 'the Act') claiming compensation of Rs.16,25,000/- on account of injuries sustained by him in the accident caused on 29.05.2011. It is alleged that the petitioner was going to Hubli from Hassan in his lorry bearing No. KA-13A-5098 carrying load of ginger. At about 4.40 a.m. near Ramanakoppa Cross on N.H. 4, the respondent No.1 being the

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driver of the said lorry, drove the same in negligent manner in high speed and while overtaking another lorry, lost control and dashed against the said vehicle resulting in the vehicle of the claimant turning turtle. The petitioner sustained injuries and he was taken to Lifeline Hospital, Hubli in ambulance and he underwent treatment for about 20 days. Later, he was shifted to SSM Hospital at Hassan. It was contended that the petitioner had sustained spinal cord injury at cervical C4 level. He was operated and on account of the injuries sustained, petitioner has gross weakness in his legs and moderate weakness in hands etc. and as such, he suffered permanent disability. It is contended that the vehicle was insured with respondent No.2 and driver was having valid and effective driving licence and therefore, the respondent Nos.1 and 2 who are the driver and insurer of the vehicle are liable to pay compensation to him.

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On being issued notice by the Tribunal, the respondent Nos.1 and 2 appeared before the Tribunal and respondent No.1 did not file any objections.

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The respondent No.2 in its objections contended that the petitioner is owner of the insured vehicle and the vehicle is

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insured by respondent No.2. It contended that the petitioner

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being the owner, cannot be third party and therefore, the present petition filed under Section 166 of the Act is not maintainable. It was contended that, respondent No.2 is not liable to pay any compensation to the petitioner. It was further contended that, there was no statutory liability as against the owner of the vehicle and therefore, the petition be dismissed. Inter alia, it was also contended that, the compensation claimed is highly exorbitant, imaginary and untenable in law.

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On the basis of the above pleadings, appropriate issues were framed by the Tribunal and the petitioner was examined as P.W.1 and Exhibits P1 to P13 were marked in evidence. Two witnesses were examined as C.W.1 and C.W.2 and three documents were marked as Exhibits C1 to C3. The Official of respondent No.2 was examined as R.W.1.

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After hearing both sides, the Tribunal held that the petitioner is entitled for compensation of Rs.4,50,562/under different heads as below:

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1.	Pain and suffering	Rs. 30,000=00
2.	Medical Expenditure	Rs. 2,34,074=00
3.	Conveyance, Food & Attendant Charges	Rs. 10,000=00
4.	Loss of income during laid up period. (Rs. 10,000x2)	Rs. 20,000=00
5.	Loss of future income (10,000x12x11x10.34%)	Rs. 1,36,488=00
6.	Loss of Amenities	Rs. 20,000=00
	Total	Rs. 4,50,562=00

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While coming to the above conclusion, the Tribunal held

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that the policy issued by respondent No.2 also covered the appellant herein and the contention of respondent No.2 - insurance company that the appellant - petitioner is not a third party cannot hold good. Being aggrieved by the said Judgment and Award, the respondent No.2 - insurance company is before this Court in appeal.

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On issuance of notice, respondent No.1 herein has appeared through his counsel. However, the driver of the vehicle i.e. respondent No.2 herein did not appear despite service of notice.

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The Trial Court records have been secured. The arguments of learned counsel appearing for the appellant and the learned counsel for the respondent No.1 are heard.

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The learned counsel appearing for the appellant submits that the Tribunal failed to notice that the risk of the insured is

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not required to be covered under Section 147 of the Act as the petitioner himself is the owner of the lorry and also owner of the goods in it. It is contended that, the Tribunal failed to appreciate the evidence adduced by the appellant with regard to non coverage of the risk of the owner / insured and in fact, petitioner himself was the owner of the vehicle and as such, the risk is not required to be covered under the provisions of the Act. It is submitted that the nature of the liability of the insurance company towards owner of the vehicle is purely contractual in nature and therefore the forum of MACT cannot be utilised by the petitioner for that purpose. In furtherance of his contentions, learned counsel placed reliance on the decision

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of the case of DHANRAJ Vs. NEW INDIA ASSURANCE CO.

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LTD. AND ANOTHER¹ and a few other decisions.

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Learned counsel appearing for the respondent No.1 - petitioner has contended that the terms and conditions of the policy clearly mention that there is a personal accident cover to the owner cum driver and also the owner of the goods and therefore, the Tribunal has rightly awarded the compensation to the petitioner. He contends that no interference is required

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1 2005 ACJ 1

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in the Judgment and Award passed by the Tribunal and as such, the appeal is liable to be dismissed.

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The fact that the petitioner - respondent No.1 herein was the owner of the lorry which was insured by the appellant - respondent No.2 is not in dispute. The fact that the petitioner was travelling in his own lorry along with his goods in the lorry is also not in dispute. The only question that requires to be considered is whether the risk of the petitioner is covered under the terms and conditions of the policy and whether it falls within the scope of third party under Chapter XI of the Motor Vehicles Act, 1988?

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The provisions of the Act, particularly, Section 147 of the Act show that the insurance company is not required to cover the risk of the owner under the statutory liability. The provisions of Chapter XI of the Act are mainly meant for third parties and the meaning of the word 'third parties' is that they are not parties to the contract between the insured and the insurer. Therefore, it is evident that the petitioner being the owner of the lorry was a contracting party with the respondent No.2. It is trite law that the insurance company need not cover

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the risk and liability of the owner of the vehicle who is a contracting party under the statutory liability. At no stretch of imagination it can be held that the petitioner was third party within the meaning of Chapter XI of the Act. The decision in the case of ORIENTAL INSURANCE COMPANY LTD. Vs.

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SMT. JHUMA SAHA AND OTHERS² follows the ratio laid down in the case of DHANRAJ Vs. NEW INDIA ASSURANCE CO.

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LTD. AND ANOTHER³ .

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In the aforesaid case of DHANRAJ , at para 8 and 10, it was held as below:

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“8. Thus, an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorised representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle.

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10. In this case, it has not been shown that the policy covered any risk for injury to the owner himself. We are

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2 AIR 2007 SC 1054

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3 2004(8) SCC 553

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unable to accept the contention that the premium of Rs 4989 paid under the heading ‘Own damage’ is for covering liability towards personal injury. Under the heading ‘Own damage’, the words ‘premium on vehicle and non-electrical accessories’ appear. It is thus clear that this premium is towards damage to the vehicle and not for injury to the person of the owner. An owner of a vehicle can only claim provided a personal accident insurance has been taken out. In this case there is no such insurance.”

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Learned counsel for the appellant also placed reliance on a decision of this Court in the case of THE BRANCH MANAGER, NATIONAL INSURANCE CO. LTD. Vs. SUNIL PINTO @ SUNIL BASIL PINTO⁴ , where again, it was held that the insured is not entitled for compensation unless there is death, loss of both limbs, or sight of two eyes or one limb and sight of one eye or permanent total disablement and such other specified injury in the contract. In the case on hand, learned counsel appearing for the appellant submits that the injuries specified in the contract of insurance are not sustained

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by the petitioner and therefore, it is not liable to pay compensation to the petitioner. He also relied on the decision

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4 MFA No.9944/2012 disposed of on 23.01.2023

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in the case of M.N.AMARANATH Vs. THE ORIENTAL INSURANCE CO. LTD.⁵ by a Division Bench of this Court, wherein again, it was held that the insurance company is liable to pay compensation only in respect of specified injuries in the policy and not otherwise.

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In view of above position of law, even though the petitioner is covered by the insurance policy issued by the appellant - insurance company, it is subject to the terms and conditions of the policy and unless the petitioner has sustained any of the injuries enumerated in the policy or the terms of the policy, the appellant is not entitled for compensation. Secondly it is to be noted that the liability to pay the compensation arises out of the tortuous liability due to the negligent driving by the driver of the vehicle. The owner of the vehicle will be liable to third party vicariously. The insurance company having indemnified the owner of the vehicle in respect of the claims that might arise out of third parties, is liable to pay the compensation on account of the contractual liability. In the case on hand, the petition is filed under Section 166 of the Act

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5 MFA No.7408/2017 and connected case disposed of on 24.02.2022

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which deals with the liability that has to be satisfied in respect of third parties. The petitioner does not come within the meaning of third party as he is the owner of the vehicle. The relationship between the petitioner and the insurance company is contractual in nature. Therefore, if there is deficiency of service on the part of the insurance company, the forum to redress the deficiency in service is before a different forum. Under these circumstances, the appeal deserves to be allowed. Hence, the following:

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ORDER

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(i) The appeal is allowed.

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(ii) The impugned Judgment and Award dated

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05.01.2017 passed by the Tribunal in MVC No. 25/2012 is hereby set aside.

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(iii) The MVC No. 25/2012 is hereby dismissed.

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(iv) Liberty is kept open for the petitioner - respondent