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2024 Supreme(Online)(KAR) 28662
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF SEPTEMBER, 2024 BEFORE THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA MFA NO.4497 OF 2014(MV-D)
BETWEEN:
1. SMT MANJULA, W/O K SUGUNA MURTHY, AGED ABOUT 45 YEARS.
2. SRI RAJU, S/O LATE K SUGUNA MURTHY, AGED ABOUT 30 YEARS, BOTH ARE R/AT VEMGAL VILLAGE, VEMAGAL POST, KOLAR TALUK , AND DISTRICT – 563 101.
APPELLANTS (BY SMT SUGUNA R REDDY, ADV.)
AND:
1. SRI K RAMACHARI, S/O K GOVINDA CHARI, MAJOR IN AGE, Digitally signed by R/AT NO.2217, MALDAR STREET, PRAJWAL A OLD TOWN, ANANTHAPURA, ANDRA PRADESH – 515 001.
Location: HIGH COURT OF KARNATAKA
2. THE BRANCH MANAGER, THE ORIENTAL INSURANCE CO LTD.
DIVISIONAL OFFICE, KALPANA COMPLEX, R F ROAD, ANANTHAPURA, ANDRA PRADESH – 515 001.
3. SRI BALMINDAR SINGH, S/O CHARAN SINGH, MAJOR IN AGE, R/AT NO.C-5, SEC-4, C-80, NEW MUMBAI, MAHARASTRA STATE -400 057.
4. THE BRANCH MANAGER, NEW INDIA INSURANCE CO LTD.
BRANCH OFFICE, BAGLUR MANSION, 2ND FLOOR, DODDAPET, KOLAR – 563 101.
RESPONDENTS (BY SRI K N SRINIVASA, ADV. FOR R2;
SRI E I SANMATHI, ADV. FOR R4;
V/O/DT: 06.12.2019 SERVICE OF NOTICE IS HELD SUFFICIENT IN RESPECT OF R1 AND R3)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 27.11.2013 PASSED IN MVC NO.52/2007 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, CJM, MACT, KOLAR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
ORAL JUDGMENT
In this appeal, the petitioners are challenging the judgment dated 27.11.2013 passed in MVC.No.52/2007 by the Principal Civil Judge and JMFC, Kolar (in short ‘the Tribunal’).
2. For the sake of convenience, the parties herein are referred as per their ranking before the Tribunal.
3. Brief facts of the case are, on 08.09.1997, the husband of petitioner No.1 and father of petitioner No.2 by name K. Suguna Murthy, the deceased, as per the instructions of his employer-respondent No.1 was traveling in the lorry bearing registration No. AP-02-T- 0789 (in short ‘Andhra lorry’) for unloading groundnut extraction at Bengaluru. At about 7:00 p.m near Yalakamakalapalli bus stand at NH-7, the said lorry dashed against another lorry bearing registration No. MH-04/h-3205 (in short ‘Maharashtra lorry’) coming from the opposite direction, as a result of which the deceased sustained injuries and succumbed to death at the spot. The petitioners seeking grant of compensation of `10,00,000/- have approached the Tribunal under Section 163A of the Motor Vehicles Act, 1988 ('the Act' for short). The claim was opposed by both the Insurance Companies. The Tribunal after taking the evidence and hearing both the parties has assessed compensation of `2,20,000/- and directed the owners of both lorries to pay compensation equally and dismissed the claim petition against the Insurance Companies. Pleading inadequacy, seeking enhancement and challenging the order of the dismissal of the claim against Insurance Companies, the petitioners are before this Court.
4. Heard the arguments of Smt. Suguna R.
Reddy learned counsel for the petitioners, Sr. K.N. Srinivasa, learned counsel for the Insurance Company of the Andhra lorry and Sri. E.I. Sanmathi, learned counsel for the Insurance Company of the Maharashtra lorry. 5. It is contended by the learned counsel for the petitioners that the deceased was employee under respondent No.1, they have filed petition for grant of compensation under the Workmen’s Compensation Act, 1923 before the Commissioner. For the reason of non- establishment of relationship, the claim petition came to be dismissed. Without any alternative, the petitioners have filed the claim under Section 163A of the Act.
5.1. It is also contended that the accident is not in dispute, the deceased was the inmate of the Andhra lorry, policy of insurance covers the risk of the deceased irrespective of whether coolie or inmate of the lorry. The insurer of the Andhra lorry is bound to indemnify the owner. Inspite of furnishing particulars of the insurance policy, the insurer of the Maharashtra lorry has not produced the insurance policy. By drawing adverse inference, the insurer of the Maharashtra lorry is to be directed to pay the compensation.
5.2. It is further contended that, the claim made by the driver and cleaner of the Andhra lorry before the Tribunal at Andhra Pradesh was satisfied by the Insurance Company and only with respect to the petitioners they are blowing hot and cold.
6. Per contra, learned counsel for the Insurance Company of the Andhra lorry has contended that, the deceased was non fair paying passenger in the lorry, he was not an employee employed by the respondent No.1. For this reason, claim petition filed before Workmen’s Compensation Commissioner came to be dismissed. The deceased being a non-fare paying passenger, the policy does not cover his risk. The policy covers only non-fare paying employee No.1, paid drivers or workmen No.6. When there is no coverage of policy, there is no liability on the part of the insurer to indemnify the insured.
7. Learned counsel for the Insurance Company of the Maharashtra lorry has contended that the policy of insurance mentioned in the cause title of the claim petition was not issued by the Insurance Company. No evidence is placed by the petitioners to establish the existence of policy of insurance in respect of Maharashtra lorry and therefore, the Insurance Company has no liability to indemni
