IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18^TH DAY OF JANUARY 2016 BEFORE:

THE HON’BLE MR. JUSTICE ANAND BYRAREDDY WRIT PETITION No.984 OF 2010 (GM-AC)

BETWEEN:

The New India Assurance Company Limited, No.33A, II Floor, I Stage, P.B.No.3883, Indiranagar, Bangalore 560 038, Represented by Division Office-5, Infantry Road, Bangalore 560 001, By its Senior Divisional Manager, Smt. Neeraja Kapur.

…PETITIONER (By Shri C.R.Ravishankar, Advocate)

AND:

1. M/s. Tata AIG General Insurance Company Limited, 5^th Floor, West Entrance, Khanija Bhavan, Race Course Road, Bangalore 560 001, Represented by its Manager.

2. M/s. K. Mohan and Company (Exports), Regd. Office: No.B1, 62/5, Begur Road, Bommanahalli, Bangalore 560 068, Represented by P.A.Holder, M/s. Tata AIG General Insurance Company Limited.

3. Sri. Chandrashekar Reddy, M/s. A.K.Transport, No.827/6, Ramamurthynagar Main Road, Banaswadi Post, Bangalore 560 043.

… RESPONDENTS (By Shri O. Mahesh, Advocate for Respondent No.1;

Respondent nos. 2 and 3 served)

*****

This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to call for the records in MVC No.1628/2003 on the file of the Motor Accident Claims Tribunal Court of Small Causes Bangalore City (SCCH-10) peruse the same and set aside/quash the impugned order dated 12.5.2006 vide Annexure-A and consequently pass an order allowing the application and dismiss the claim petition as not maintainable in law.

This Writ Petition having been heard and reserved on

08.12.2015 and coming on for pronouncement of Orders this day, the Court delivered the following:-

O R D E R

This petition is filed challenging an Order passed by the Motor Accident Claims Tribunal & Court of Small Causes, Bangalore City (SCCH-10), on a preliminary issue, in a claim for compensation made under Section 166 of the Motor Vehicles Act, 1988.

2. The brief facts are as follows:

The second respondent herein is an exporter. It had despatched a consignment of goods from Gujarat to Bangalore on a lorry bearing no. KA 01 6075. The goods were duly insured, with the first respondent. It transpires that when the lorry was moving on National Highway no.4 and when it had reached Anegodu, Davanagere District, Karnataka, it is said to have collided with another lorry, bearing no. NL 05 A 1062. As a result of the collision, the goods that were being carried are said to have been damaged beyond salvation. The second respondent is said to have laid a claim for the insurance amount with the first respondent and recovered the same. The accident is said to have been attributed to the lorry bearing no. NL 05 A 1062. The third respondent was said to be the owner of that lorry. The petitioner herein was the insurer of the same. Respondent no.1 after having satisfied the insurance claim of respondent no.2, pertaining to the goods that were damaged, has sought to recover the said amount from the owner and insurer of the offending lorry in the pending claim before the MACT.

The petitioner herein and the third respondent had resisted the claim by filing their respective pleadings. The very maintainability of the claim petition was questioned and it was denied that the first respondent could make a claim under a purported right of subrogation. It is in that context that the Tribunal had proceeded to frame a preliminary issue and after hearing the parties has held that the claim was maintainable. It is that which is sought to be questioned in this petition.

3. The learned counsel for the petitioner contends that the Tribunal has erroneously placed reliance on an unreported judgment of this court in the case of K.F.Browne v. KSRTC, Bangalore, MFA 1846/1992, which related to taking over the interest of the insured to all rights and remedies of the insured applicable to all cases of general insurance recognized under Section 141 of the Indian Contract Act, 1872. It is contended that the said decision would not enable the first respondent to initiate recovery proceedin