2005 Supreme(Kar) 590

Karnataka High Court
Oriental Insurance Co.Ltd. - Appellant
Versus
Purushotham T.M. - Respondent
Decided On : 09-26-05
M.F.A. : 7397 of 2005

Headnote:Motor Accident Claims -Principle -Principle -Liability of insurer -Accident to a private car -Death of passenger -Insurer liable.

       Cases Referred: 2001 ACJ 1565; 2003 ACJ 1; 1992 ACJ 851; 1990 ACJ 1043 Approved & Followed: ILR 2004 KAR 398; 1999 ACJ 1499 Followed: 2003 ACJ 523; 1999 ACJ 1524 Over ruled: 2003 ACJ 1992; MFA No. 2209 of 1995 disposed of on 26th May 1997.

       Motor Vehicles Act, 1988 -Liability of insurer -Section 147 -Liability of insurer -Accident to a private car -Death of passenger -Insurer liable. [P. Vishwanatha Shetty and H. G. Ramesh, JJ]: It is necessary to point out that the Tribunal in the impugned order has fastened the liability on the Insurance Company following the decision of this Court in the case of Ramachandra and Another vs Shantaram and Others [ILR 2004 Kar 398]. In the case of Ramachandra (supra), this Court, after elaborately considering the law on the subject and more particularly the Full Bench decision of the Kerala High Court in the case of Oriental Insurance Company Ltd. vs Ajayakumar [1999 ACJ 1499], has held that under the provisions of the Motor Vehicles Act, 1988 the insurer is compulsorily required to cover the risk of the passengers of a private car or of any passenger carrying vehicle including a two wheeler. It is useful to refer to the observation made in the said Judgment at paragraph 15, which reads as: "15. In view of the change in law as explained by this Court and the High Courts of Kerala, Madras and Madhya Pradesh in the above referred decisions, I hold that an insurer under the New Act is compulsorily required to cover the risk of passengers of a private car or of any passenger carrying vehicle including a two wheeler." In the light of the discussion made above, we have no hesitation to reiterate that the view taken in the case of Ramachandra, lays down the correct legal position.

       Cases Referred: 2001 ACJ 1565; 2003 ACJ 1; 1992 ACJ 851; 1990 ACJ 1043 Approved & Followed: ILR 2004 KAR 398; 1999 ACJ 1499 Followed: 2003 ACJ 523; 1999 ACJ 1524 Over ruled: 2003 ACJ 1992; MFA No. 2209 of 1995 disposed of on 26th May 1997.

       Karnataka Rent Act, 1999 -Denial of landlord and tenant relationship by tenant -Section 43 -Denial of landlord and tenant relationship by tenant - Sustainability. [V. Gopala Gowda, J]: The tenant has questioned the locus standi of the plaintiff for filing the suits. According to the tenant, there is no relationship of landlord and tenant between the parties. The stand taken by the tenant is wholly untenable and is liable to be rejected. It is pertinent to note that the tenancy of the tenant in respect of the suit schedule properties is not in dispute. Originally, the father of the plaintiff was the owner. After his death the plaintiff became the owner of the suit schedule properties. The tenant has produced modified lease deed along with LA. 112005 to show that the tenancy is with plaintiffs father and that plaintiff has no right to file suit for ejectment. Plaintiffs father expired on 28-8-2000. Thereafter, as per the family arrangement that took place on 28-9-2000 the plaintiff became the owner of the suit schedule premises. Accordingly, katha had been changed in his name. After the death of plaintiffs father, the tenant paid rents to the plaintiff through account payee cheques. Even the mother of plaintiff who is examined as PW-2 has supported the case of the plaintiff. The brothers and sisters of the plaintiff, who were examined as PW s 3 to 7 also stated that in the family arrangement the suit schedule properties gone to the share of the plaintiff. That apart, since the tenant paid rents to the plaintiff, the plaintiff will be the landlord under Section 109 of Transfer of Property Act. in view of all these, it is not open for the tenant to contend that plaintiff has no locus Stndi to file the ,suits for ejectment against the defendants in the suits.

       Cases Referred: 2004(2) SC 706; ILR 2005 Kar 4337; 2004 SCW 4422; AIR 1978 All 66; AIR 1978 SC 799; AIR 1970 SC 42; ILR 1985 Kar 3243; ILR 1986 Kar 18; ILR 2001 Kar 18; ILR 2001 Kar 3060; ILR 2005 Kar 3587 (SC); AIR 1988 All 305; AIR 1991 SC 14; AIR 1977 Bom 181; ILR 2003 Kar 3871; ILR 2001 Kar 3300.

       CIVIL PROCEDURE CODE, 1908

       Continuing offence - In case of a continuing offence, on every occasion of disobedience or non-compliance there is the offence committed. Settled principle: Continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to observe or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirements is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission, which constitutes an offence once and for all, and an act or omission, which continues and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all (AIR 1973 SC 908).

       Continuing offence

       CRIMINAL JURISPRUDENCE

       Continuing offence - Is one, which is susceptible of continuance and is distinguishable from the one committed once and for all.

       Applicability

       CRIMINAL PROCEDURE CODE, 1973

       Section 468 -Applicability - Continuing offence -Limitation -Period of limitation prescribed under - Not applicable.

       [Mohan Shantanagoudar, J]: The offence which is complained against the petitioner namely, non payment of market fee to Market Committee is a continuing offence and that therefore, the period of limitation prescribed U/s. 468 of Criminal Procedure Code, cannot have any application to the present case.

       Continuing offence

       CRIMINAL PROCEDURE CODE, 1973

       Section 472 -Continuing offence - In case of a continuing offence, on every occasion of disobedience or non-compliance there is the offence committed.

       Settled principle: Continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to observe or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirements is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission, which constitutes an offence once and for all, and an act or omission, which continues and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all (AIR 1973 SC 908).

       Limitation

       CRIMINAL PROCEDURE CODE, 1973

       Section 472 -Limitation - Continuing offence -When period of limitation commences.

       [Mohan Shantanagoudar, J]: In the case of continuing offence, a fresh period of limitation shall begin to run every moment during which the offence continues. As to the period of limitation in a continuing offence, the last act of the offence controls the commencement of period of limitation. In the case of instantaneous crimes, the limitation begins to run with the consummation, while in the case of continuous crimes, it only begins with the cessation of the criminal conduct or act.

       Taking cognizance of offence

       CRIMINAL PROCEDURE CODE, 1973

       Section 473 -Taking cognizance of offence -Delayed prosecution -Expiry of limitation -Power of court to take cognizance of offence.

       [Mohan Shantanagoudar, J]: The provision of Section 4 73 of Criminal Procedure Code, does not bar the Courts in taking cognizance of such offences. Any Court may take the cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice. Section-473 Criminal Procedure Code is the nature of an overriding provision according to which, notwithstanding anything contained in the provisions of Chapter-XXXVI of the Code of Criminal Procedure, the Courts which are confronted with the provisions which lay down a rule of limitation governing prosecutions, will give due weight and consideration to the provisions contained in Section-473 of Criminal Procedure Code.

       Liability of licencees

       KARNATAKA AGRICULTURAL PRODUCE MARKETING (REGULATION) ACT, 1966

       Section 65 A -Liability of licencees -Market fee -Failure to pay inspite of notices - Prosecution initiated -Belated payment of market fee would not absolve their guilt.

       [Mohan Shantanagoudar, J]: As could be seen from Section 65-A of the Act , if market fee levied by the Marketing committee is not paid by the assessee within stipulated period, then the assessee is liable to be levied penalty which is in the nature of revenue penalty up to the extent of 30% (thirty percent) of the original assessment. Considering the object and purpose of aforesaid provisions along with other provisions in the Act, this Court is of the opinion that the same is enacted to ensure the welfare of Market Committee of which the petitioners, traders, merchants and other market functionaries are the members. As such, the petitioners are unquestionably liable to pay the market fee to Market Committee as and when they accrued due. The late payment could not have absolved them of their original guilt but it would have snapped the recurrence.

       Complaints

       KARNATAKA AGRICULTURAL PRODUCE MARKETING (REGULATION) ACT, 1966

       Section 114 -Complaints of Secretary of Committee - Maintainability - Resolution passed by Committee - Authorised its Secretary to lodge complaints - Held, his complaints are maintainable.

       [Mohan Shantanagoudar, J]: Counsel appearing for the respondent points out from the records maintained by the Market Committee that a resolution has been passed by the Committee authorizing the Secretary to lodge complaints in question. Thus, the complaints lodged by the Secretary of the Market Committee are maintainable.

       Applicability of Section 468, Cr.P.C

       KARNATAKA AGRICULTURAL PRODUCE MARKETING (REGULATION) ACT, 1966

       Section 114 - Applicability of Section 468, Cr.P.C - Failure to pay market fee by licencees is a continuing offence - Hence, period of limitation thereunder is not applicable.

       [Mohan Shantanagoudar, J]: The offence which is complained against the petitioner namely, non payment of market fee to Market Committee is a continuing offence and that therefore, the period of limitation prescribed U/s. 468 of Criminal Procedure Code, cannot have any application to the present case.

       Delay in prosecution

       KARNATAKA AGRICULTURAL PRODUCE MARKETING (REGULATION) ACT, 1966

       Section 114 -Delay in prosecution - Failure to pay market fee by licencees -Prosecution for -Expiry of limitation -Need of taking cognizance.

       [Mohan Shantanagoudar, J]: Looking to the scheme of the Act and the purpose and object for which the market fee is prescribed and collected, the interest of justice demands that the Court shall take cognizance of the offence, even after expiry of the period of limitation, in the interest of justice.

       Failure to pay market fee

       KARNATAKA AGRICULTURAL PRODUCE MARKETING (REGULATION) ACT, 1966

       Section 114 -Failure to pay market fee -Licencees are required to pay market fee as and when it fell due -Failure to pay is a continuing offence.

       [Mohan Shantanagoudar, J]: The concept of "continuing offence" does not wipe out the original guilt, but it keeps the contravention alive day by day. Continuing offence is a type of crime, which is committed over a span of time. A continuing wrong or a continuing offence is, after all, a continuing breach of duty which itself is continuing. If a duty continues from day to day, the non-performance of that duty from day to day is a continuing wrong. Wrongful withholding of the market fees, to which APMC., is legitimately entitled to, cannot be said to be terminated by a single act, but would subsist for the period until the market fee in the offenders possession is delivered or paid. It will be a recurring or continuing offence until the wrongful withholding is vacated or put an end to. Thus, as the petitioners have failed to pay the market fee assessed by the respondent, the offence also continued till lodging of the complaint. Each day that they failed to comply with the obligation to pay their market fee dues, they continued to commit the offence. Thus, I find it impossible to hold that the offence is hot a continuing offence.

       Limitation

       KARNATAKA AGRICULTURAL PRODUCE MARKETING (REGULATION) ACT, 1966

       Section 114 - Limitation - Failure to pay market fee is a continuing offence -How limitation be determined.

       [Mohan Shantanagoudar, J]: In the case of continuing offence, a fresh period of limitation shall begin to run every moment during which the offence continues. As to the period of limitation in a continuing offence, the last act of the offence controls the commencement of period of limitation. In the case of instantaneous crimes, the limitation begins to run with the consummation, while in the case of continuous crimes, it only begins with the cessation of the criminal conduct or act.

       CRIMINAL JURISPRUDENCE ; Continuing offence Continuing offence - Is one, which is susceptible of continuance and is distinguishable from the one committed once and for all.

       Taking cognizance of offence

       TRIAL PROCEDURE - Taking cognizance of offence -Delayed prosecution -Expiry of limitation -Power of court to take cognizance of offence.

       [Mohan Shantanagoudar, J]: The provision of Section 4 73 of Criminal Procedure Code, does not bar the Courts in taking cognizance of such offences. Any Court may take the cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice. Section-473 Criminal Procedure Code is the nature of an overriding provision according to which, notwithstanding anything contained in the provisions of Chapter-XXXVI of the Code of Criminal Procedure, the Courts which are confronted with the provisions which lay down a rule of limitation governing prosecutions, will give due weight and consideration to the provisions contained in Section-473 of Criminal Procedure Code.

       CRIMINAL PROCEDURE CODE, 1973 - Limitation - Continuing offence -When period of limitation commences. ; [Mohan Shantanagoudar, J]: In the case of continuing offence, a fresh period of limitation shall begin to run every moment during which the offence continues. As to the period of limitation in a continuing offence, the last act of the offence controls the commencement of period of limitation. In the case of instantaneous crimes, the limitation begins to run with the consummation, while in the case of continuous crimes, it only begins with the cessation of the criminal conduct or act.

       TRIAL PROCEDURE ; No.3173 ; Synopsis ; Limitation ; Limitation - Continuing offence -When period of limitation commences. [Mohan Shantanagoudar, J]: In the case of continuing offence, a fresh period of limitation shall begin to run every moment during which the offence continues. As to the period of limitation in a continuing offence, the last act of the offence controls the commencement of period of limitation. In the case of instantaneous crimes, the limitation begins to run with the consummation, while in the case of continuous crimes, it only begins with the cessation of the criminal conduct or act.

       TRIAL PROCEDURE ; No.3178 ; Synopsis ; Taking cognizance of offence ; Taking cognizance of offence -Delayed prosecution -Expiry of limitation -Power of Court to take cognizance of offence. [Mohan Shantanagoudar, J]: The provision of Section 4 73 of Criminal Procedure Code, does not bar the Courts in taking cognizance of such offences. Any Court may take the cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice. Section-473 Criminal Procedure Code is the nature of an overriding provision according to which, notwithstanding anything contained in the provisions of Chapter-XXXVI of the Code of Criminal Procedure, the Courts which are confronted with the provisions which lay down a rule of limitation governing prosecutions, will give due weight and consideration to the provisions contained in Section-473 of Criminal Procedure Code.

       KARNATAKA AGRICULTURAL PRODUCE MARKETING (REGULATION) ACT, 1966 ; No.1609 ; Synopsis ; Liability of licencees ; Section 65 A -Liability of licencees -Market fee -Failure to pay inspite of notices - Prosecution initiated -Belated payment of market fee would not absolve their guilt. [Mohan Shantanagoudar, J]: As could be seen from Section 65-A of the Act , if market fee levied by the Marketing committee is not paid by the assessee within stipulated period, then the assessee is liable to be levied penalty which is in the nature of revenue penalty up to the extent of 30% (thirty percent) of the original assessment. Considering the object and purpose of aforesaid provisions along with other provisions in the Act, this Court is of the opinion that the same is enacted to ensure the welfare of Market Committee of which the petitioners, traders, merchants and other market functionaries are the members. As such, the petitioners are unquestionably liable to pay the market fee to Market Committee as and when they accrued due. The late payment could not have absolved them of their original guilt but it would have snapped the recurrence.

       KARNATAKA AGRICULTURAL PRODUCE MARKETING (REGULATION) ACT, 1966 ; No.1611 Synopsis ; Complaints ; Section 114 -Complaints of Secretary of Committee - Maintainability - Resolution passed by Committee - Authorised its Secretary to lodge complaints - Held, his complaints are maintainable. [Mohan Shantanagoudar, J]: Counsel appearing for the respondent points out from the records maintained by the Market Committee that a resolution has been passed by the Committee authorizing the Secretary to lodge complaints in question. Thus, the complaints lodged by the Secretary of the Market Committee are maintainable.

       KARNATAKA AGRICULTURAL PRODUCE MARKETING (REGULATION) ACT, 1966 ; No.1612 ; Synopsis ; Applicability of Section 468, Cr.P.C ; Section 114 - Applicability of Section 468, Cr.P.C - Failure to pay market fee by licencees is a continuing offence - Hence, period of limitation thereunder is not applicable. [Mohan Shantanagoudar, J]: The offence which is complained against the petitioner namely, non payment of market fee to Market Committee is a continuing offence and that therefore, the period of limitation prescribed U/s. 468 of Criminal Procedure Code, cannot have any application to the present case.

       KARNATAKA AGRICULTURAL PRODUCE MARKETING (REGULATION) ACT, 1966 ; No.1613 ; Synopsis ; Delay in prosecution ; Section 114 -Delay in prosecution - Failure to pay market fee by licencees -Prosecution for -Expiry of limitation -Need of taking cognizance. [Mohan Shantanagoudar, J]: Looking to the scheme of the Act and the purpose and object for which the market fee is prescribed and collected, the interest of justice demands that the Court shall take cognizance of the offence, even after expiry of the period of limitation, in the interest of justice.

       KARNATAKA AGRICULTURAL PRODUCE MARKETING (REGULATION) ACT, 1966 ; No.1614 ; Synopsis ; Failure to pay market fee ; Section 114 -Failure to pay market fee -Licencees are required to pay market fee as and when it fell due -Failure to pay is a continuing offence. [Mohan Shantanagoudar, J]: The concept of "continuing offence" does not wipe out the original guilt, but it keeps the contravention alive day by day. Continuing offence is a type of crime, which is committed over a span of time. A continuing wrong or a continuing offence is, after all, a continuing breach of duty which itself is continuing. If a duty continues from day to day, the non-performance of that duty from day to day is a continuing wrong. Wrongful withholding of the market fees, to which APMC., is legitimately entitled to, cannot be said to be terminated by a single act, but would subsist for the period until the market fee in the offenders possession is delivered or paid. It will be a recurring or continuing offence until the wrongful withholding is vacated or put an end to. Thus, as the petitioners have failed to pay the market fee assessed by the respondent, the offence also continued till lodging of the complaint. Each day that they failed to comply with the obligation to pay their market fee dues, they continued to commit the offence. Thus, I find it impossible to hold that the offence is hot a continuing offence.

       KARNATAKA AGRICULTURAL PRODUCE MARKETING (REGULATION) ACT, 1966 ; No.1615 ; Synopsis ; Limitation ; Section 114 - Limitation - Failure to pay market fee is a continuing offence -How limitation be determined. [Mohan Shantanagoudar, J]: In the case of continuing offence, a fresh period of limitation shall begin to run every moment during which the offence continues. As to the period of limitation in a continuing offence, the last act of the offence controls the commencement of period of limitation. In the case of instantaneous crimes, the limitation begins to run with the consummation, while in the case of continuous crimes, it only begins with the cessation of the criminal conduct or act.

       Continuing offence

       TRIAL PROCEDURE - Continuing offence - Limitation -Applicability of S. 468 Cr. P.C. - Held, period prescribed thereunder is not applicable.

       [Mohan Shantanagoudar, J]: The offence which is complained against the petitioner namely, non payment of market fee to Market Committee is a continuing offence and that therefore, the period of limitation prescribed U/s. 468 of Criminal Procedure Code, cannot have any application to the present case.

       Limitation

       TRIAL PROCEDURE - Limitation - Continuing offence -When period of limitation commences.

       [Mohan Shantanagoudar, J]: In the case of continuing offence, a fresh period of limitation shall begin to run every moment during which the offence continues. As to the period of limitation in a continuing offence, the last act of the offence controls the commencement of period of limitation. In the case of instantaneous crimes, the limitation begins to run with the consummation, while in the case of continuous crimes, it only begins with the cessation of the criminal conduct or act.