Legal Manager Vs Nagaraju

LEGAL MANAGER RELIANCE GENERAL INSURANCE CO. LTD., HEBBAL, MYSORE-571 401, NOW REP BY ITS THE LEGAL MANAGER, RELIANCE GENERAL INSURANCE CO. LTD., REGIONAL OFFICE, 5TH FLOOR, CENTENARY BUILDING, NO.28, M.G. ROAD, BANGALORE-560 001.

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APPELLANT

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(BY SRI. PRADEEP B.,ADVOCATE)

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AND:

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BHARATHI H M

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Digitally signed by BHARATHI H M Location: HIGHCOURT OF KARNATAKA DHARWAD BENCH DHARWAD

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NAGARAJU S/O. LATE NANJAPPA, AGED ABOUT 40 YEARS, R/AT VADESAMUDRA VILLAGE, KASABA HOBLI, PANDAVAPURA TALUK.

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NAGEGOWDA S/O. SINGRIGOWDA, NOW AGED ABOUT 45 YEARS, R/O. ANCHEMUDDENAHALLI VILLAGE, SHEELANERE HOBLI, K.R. PETE TALUK.

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RESPONDENTS

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(BY SRI. SREENIVASAN M Y.,ADVOCATE FOR R1; R2 SERVED.)

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NC: 2025:KHC:28645 MFA No. 1896 of 2017

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HC-KAR

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 27.01.2015 PASSED IN MVC NO.1069/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC AT PANDAVAPURA, AWARDING COMPENSATION OF RS.1,08,080/WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT AND ETC,.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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The present appeal is filed by the insurer under Section 173(1) of the Motor Vehicles Act, 1988¹ challenging the judgment and award dated 27.01.2015 passed in MVC.No.1069/2012 by the Senior Civil Judge and JMFC, Pandavapura² .

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The Tribunal vide its judgment and award dated 27.01.2015 has partly allowed the claim petition and awarded a total compensation of `1,08,080/- together with interest at 6%

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per annum and held respondent Nos.1 and 2 before the Tribunal i.e., the owner and insurer of the auto-rickshaw

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1 Hereinafter referred as to ‘Act’

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2 Hereinafter referred as to ‘Tribunal’

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3 - NC: 2025:KHC:28645 MFA No. 1896 of 2017

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HC-KAR

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respectively, jointly and severally liable to pay the said compensation. The Tribunal further directed the insurer to deposit the compensation amount. Being aggrieved, the present appeal is filed.

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The primary contention put forth by the learned counsel Sri Pradeep B appearing for the appellant/insurer is that the insurer has not issued any policy of insurance covering the vehicle in question i.e. the auto-rickshaw, and the Tribunal ought not to have fastened the liability to pay the compensation awarded on the insurer.

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Per contra , learned counsel Sri Sreenivasan MY appearing for respondent No.1/claimant contended that the requisite policy details have been furnished in the claim petition itself.

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The submissions of both the learned counsels have

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been considered and the material on record including the records of the Tribunal has been perused.

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NC: 2025:KHC:28645 MFA No. 1896 of 2017

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HC-KAR

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The question that arises for consideration is ‘whether the Tribunal was justified in fastening the liability on the insurer to pay the compensation awarded?’

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In the claim petition, the claimant has mentioned the policy number and the policy period. The insurer in its statement of objections filed before the Tribunal has specifically contended that they have not issued any policy of insurance, in respect of the vehicle in question, namely Ape auto bearing No. KA-27-A-4924. The insurer having specifically denied the issuance of the policy itself, the burden was on the claimants to produce a copy of the policy, which admittedly, has not been done. In the absence of the policy of insurance, the Tribunal erred in directing the insurer to pay the compensation awarded.

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It is pertinent to note here that the owner of the vehicle was represented by a counsel in the claim proceedings. However, no statement of objections have been filed. It is clear that the insurer having denied the issuance of the policy, either the claimants or the owner ought to have furnished the requisite details of the policy of insurance, if the insurer was required to be held liable to pay the compensation awarded.

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5 - NC: 2025:KHC:28645 MFA No. 1896 of 2017

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HC-KAR

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Learned counsel for the appellant relied upon the judgment of a Co-ordinate Bench of this Court in the case of THE ORIENTAL INSURANCE CO. LTD V/S NS DEVARAJA

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AND OTHERS³ wherein it has held as follows:

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“15. This judgment may be taken to consideration because it is relevant to throw light about the existence of relevant fact and it shows that the vehicle was covered by insurance, but not on the date of occurrence. The insurance covering the vehicle was covering it for the period from 14.2.1983 to 13.2.1984 and so far as 11.2.83 is concerned that document did not show that it was covered on that date. Apart from this document in this case, the claimant as well as the owner of the vehicle on whom the burden to lay any order to claim any relief against respondent No.3, that is the present appellant insurance company, by way of award against respondent No.3 or by way of claim being indemnified for the amount which the owner of the vehicle may pay as damages to the claimant to prove that the vehicle in question on the date of occurrence or incident was insured, has not been discharged and they failed to establish it.

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This being the position, in my opinion, an appeal filed by the appellant deserves to be allowed and the order of the Tribunal or award of the Tribunal is partly modified. It is modified as under:-

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That the award drawn for Rs.10,000/- shall be payable by respondents 1 and 2, jointly and severally with interest at the rate of 6 per cent per annum from the date of petition till payment and the petitioner will be entitled to costs as well against respondents 1 and 2 in the claim petition that is against respondents 1 and 2 in the appeal. Respondents No.3 is entitled to get and realise the amount under the award from respondents 1 and 2 only and not from the present appellant that is insurance company who was respondent No.3 in the

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3 “ILR 1997 KAR 1061”

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6 - NC: 2025:KHC:28645 MFA No. 1896 of 2017

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HC-KAR

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claim petition. The appeal as such is hereby allowed. Costs made easy.”

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(emphasis supplied)

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In view of the legal position as noticed above, the relief sought for by the appellant in the present appeal is liable to be granted. Accordingly, the question framed for

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consideration in the above appeal is answered in the negative .

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In view of the aforementioned, the following:

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ORDER

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i) The appeal is allowed;

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ii) The judgment and award dated 27.01.2015 passed in MVC No.1069/2012 by the Senior Civil Judge and JMFC, Pandavapura, is hereby modified to the extent of holding that the claim petition in MVC No.1069/2012 shall stand dismissed against the insurer (appellant herein /respondent No.2 before the Tribunal);

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iii) The compensation awarded together the accrued interest shall be paid by the owner of the vehicle (respondent No.2 herein / respondent No.1 before the Tribunal). In all other respects, the judgment and award of the Tribunal remains unaltered;

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