Allowed

The Manager New India Assurance Co. Ltd. v. Boregowda

Karnataka HC19 Mar 2024MFA/1462/2013

Case brief

AI extract

What is this about?

Insurer appealed a Tribunal award for injuries to a claimant injured when a lorry capsized. The High Court held the claimant was an unauthorized gratuitous passenger in a goods vehicle whose risk was not covered, set aside the Tribunal's judgment fastening liability on the Insurance Company, exonerated it, and directed the vehicle owner to satisfy the award.

What did the court decide?

Tribunal's judgment fastening liability on the Insurance Company set aside; insurer exonerated; deposit to be refunded to the Insurance Company.

The Manager New India Assurance Co. Ltd. Vs Boregowda — Insurance | Karnataka HC (2024)

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NC: 2024:KHC:11284 MFA No. 1462 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI MISCELLANEOUS FIRST APPEAL NO.1462 OF 2013 (MV)

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BETWEEN:

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THE MANAGER, NEW INDIA ASSURANCE CO.LTD., DIVISIONAL OFFICE III, M.G.ROAD, BANGALORE, NOW REPRESENTED BY ITS REGIONAL MANAGER. NEW INDIA ASSURANCE CO. LTD., REGIONAL OFFICE, 2-B, UNITY BUILDING, ANNEXE, P.KALINGA RAO ROAD, BANGALORE-560 027.

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…APPELLANT

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(BY SRI. A.N.KRISHNA SWAMY., ADVOCATE)

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AND:

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Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA

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BOREGOWDA S/O DODDAIAH, S/O CHIKKALINGEGOWDA @ NINJEGOWDA, AGED ABOUT 25 YEARS, R/O RAMADEVANAHALLI, KASABA, HOBLI, NAGAMANGALA TALUK.

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SHIVALINGAIAH S/O RAMALINGAIAH, AGED ABOUT 43 YEARS, DRIVER OF LORY, R/O TOLALI VILLAGE, KASABA HOBLI, NAGAMANGALA TALUK.

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V.B.RAVEENDRA S/O BOREGOWDA, MAJOR,

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NC: 2024:KHC:11284 MFA No. 1462 of 2013

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OWNER OF LORRY, R/O DODDAJATAKA GATE HOUSE, ANCHECHITTANAHALLI POST, NAGAMANGALA TALUK.

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…RESPONDENTS

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(BY SRI. G.H.RAVIKUMAR., ADVOCATE FOR R1; NOTICE TO R2-DEEMED TO BE COMPLETE V/O DATED:13.09.2017; R3-SERVED AND UNREPRESENTED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED:24.07.2012 PASSED IN MVC NO.49/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MEMBER, MACT, NAGAMANGALA.

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

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JUDGMENT

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Sri.A.N.Krishna Swamy., learned counsel for the appellant has appeared in person.

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Notice to the respondents was ordered on 21.02.2013. A perusal of daily order sheet depicts that vide order dated:13.09.2017 notice to respondents 1 & 2 are held sufficient. They have neither engaged the services of an advocate nor conducted the case as party in person.

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NC: 2024:KHC:11284 MFA No. 1462 of 2013

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For the sake of convenience, the parties are referred to as per their status and rankings before the Tribunal.

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The claimant contended that on the 15^th day of February 2007 at about 9:00 p.m., he along with one Ravi after loading the vegetable bags in a Lorry bearing No.KA-11/B-3751 and traveled in the said lorry. When the Lorry reached Hosahakkipalya on Mangalore to Bangalore road, due to the rash and negligent driving, the lorry got capsized on the left side of the road and fell into a 'Halla'. Due to which, the claimant sustained multiple injuries. Immediately, he was shifted to Kunigal Government Hospital and thereafter to KIMS Hospital, Bangalore. He took treatment as an in-patient from 16.02.2007 to 16.05.2007 and also took treatment as an outpatient for over four months. Contending that he is entitled for compensation, the claimant filed claim petition.

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In response to the notice, the respondents 1 to 3 appeared through their counsel. The third respondent filed written statement denying the petition averments. They specifically contended that the claimant was traveling as a gratuitous passenger in a goods vehicle and the policy does not

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4 - NC: 2024:KHC:11284 MFA No. 1462 of 2013

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cover the risk of gratuitous passenger. Hence, it is not liable pay the compensation. It also contended that the driver of the lorry was not holding valid and effective driving license to drive the particular category of the vehicle as on the date of the accident. Among other grounds, it prayed for dismissal of the petition.

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Based on the above pleadings, the Tribunal framed issues, parties led evidence and marked the documents. The Tribunal vide Judgment dated:24.07.2012 partly allowed the Claim Petition. The Insurance Company has assailed the Judgment of the Tribunal in this appeal on several grounds as set-out in the Memorandum of appeal.

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Learned counsel for the appellant has urged several contentions. Heard, the contentions urged on behalf of the appellant and perused the appeal papers and also the records with utmost care.

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The point that requires consideration is whether the Tribunal is justified in fastening the liability on the Insurance Company?

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NC: 2024:KHC:11284 MFA No. 1462 of 2013

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The facts are sufficiently stated and do not require reiteration. It is an interesting case of a claimant who traveled in a goods vehicle as a gratuitous passenger. The claimant contended that the lorry got capsized due to rash and negligent driving and he sustained injuries. He also contended that the lorry was insured and hence, he is entitled for the compensation.

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Suffice it to note that the claimant was traveling as gratuitous passenger in a lorry i.e., goods vehicle. It's a commonsense that one should not travel as a passenger in a goods vehicle. In the present case, the claimant traveled as a gratuitous passenger in a goods vehicle, that too without the consent of the owner or the driver of the lorry. If that be so, the risk of the claimant is not required to be covered by the Insurance Company. The Tribunal has overlooked this aspect of the matter and has erroneously fastened the liability on the Insurance Company. This is unsustainable in law.

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To conclude, I can say only this much that the Tribunal has failed to have regard to relevant consideration and disregarded relevant matters.

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6 - NC: 2024:KHC:11284 MFA No. 1462 of 2013

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For the reasons stated above, the Judgment dated:24.07.2012 passed by the Senior Civil Judge and MACT, Nagamangala in MVC No.49/2008 (Old No.440/2008) in so far as fastening liability on the Insurance company is concerned is liable to be set-aside. Accordingly, it is set-aside. The Insurance Company is exonerated from the liability to pay the compensation.

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In view of exoneration of liability on the Insurance Company, the second respondent - V.B.Raveendra is directed to satisfy the award of the Tribunal.

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Resultantly, the Miscellaneous First Appeal is allowed .

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The Registry concerned is directed to refund/ release the amount in deposit, if any in favor of the Insurance Company after due identification.

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Sd/JUDGE

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MRP

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List No.: 1 Sl No.: 24

The Manager New India Assurance Co. Ltd. v. Boregowda

Case brief

What is this about?

What did the court decide?

The Manager New India Assurance Co. Ltd. v. Boregowda

Case brief

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What did the court decide?

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