Liability of the Insurance Company in a motor vehicle accident is determined by the type of policy and whether it covers the risk of occupants of the vehicle.

JUDGMENT/ORDER

H.P. Sandesh, J. - This appeal is filed challenging the judgment and award dated 21.05.2016 passed in M.V.C.No.271/2012 on the file of the Principal Senior Civil Judge and MACT., Srirangapatna ('the Tribunal' for short), questioning the liability fastened on the Insurance Company.

2. The parties are referred to as per their original rankings before the Tribunal to avoid confusion and for the convenience of the Court.

3. The factual matrix of the case of the claimant that on 11.01.2012 at about 12:35 a.m., near Hampapura Railway Gate, Hampapura Village, K.R.Nagar Taluk, when the petitioner along with his friends was going in Omni Car bearing registration No.KA-05-Z-2905 from Hassan towards Mysuru, at that movement the driver of the offending Omni Car bearing registration No.KA-05-Z-2905 has driven the same at high speed in a rash and negligent manner and dashed the omni Car to the back portion of the KSRTC bus bearing registration No.KA-18-F-361 resulting into the accident and injuries to the petitioner. As a result of the accident, the petitioner has sustained fracture of both the bones of right fore arm and injuries to his right thigh, fore-head. Immediately after the accident petitioner was taken to B.M. Hospital, Mysore, from there he was shifted to ESI Hospital, Mysore, wherein, he was subjected to surgery and fractured bones of right fore arm were fixed with plates and screws. It is his contention that he has spent an amount of Rs.1,00,000/- and as a result of accidental injuries, he has sustained permanent disability. Hence, claimed the compensation.

4. In pursuance of the claim petition, respondent Nos.1 to 3 appeared before the Court and contested the claim petition by filing objection statements. The first respondent in his objection statement has contended that he has sold the omni car to the fourth respondent for a sale consideration of Rs.1,05,000/- and obtained the delivery note and the same was communicated to the RTO and the policy was in force.

5. The second respondent - Insurance Company in its objection statement contended that the liability is subject to the terms and conditions of the policy and the Insurance Company is not liable to pay the compensation since the policy is 'an act only policy'. The third respondent in his objection statement has contended that no negligence on the part of the driver of the KSRTC., bus and it is only on account of the negligence on the part of the driver of the Omni Car. The fourth respondent did not contest the matter.

6. The claimant, in order to prove his case, examined himself as P.W.1 and also examined the Doctor as P.W.2 and got marked the documents as Exs.P1 to P72(b). On the other hand, the respondents have also examined R.Ws.1 to 3 and got marked the documents as Exs.R1 to R4.

7. The Tribunal, after considering both oral and documentary evidence placed on record, allowed the claim petition in part granting compensation of Rs.5,48,000/- together with interest at the rate of 9% per annum from the date of filing of the petition till the date of deposit of the compensation amount before the Tribunal and fastened the liability on the second and fourth respondent. In view of the contract of Insurance, fastened the liability on the second respondent. Hence, the present appeal is filed by the Insurance Company.

8. The main contention of the Insurance Company in this appeal is that there is violation of terms and conditions of the policy of the Insurance Company and provisions of the Motor Vehicles Act. The learned counsel appearing for the appellant/Insurance Company would vehemently contend that the policy issued is in respect of a private Car and the injured is not a third party. The judgment of the Apex Court in the case of United India Insurance Co. Ltd., v. Tilak Singh & Others reported in 2006 ACJ 1441 SC, was not considered by the Division Bench and the Tribunal considered the Division Bench Judgment and saddled the responsibility on the Insurance Company and