MFA No.31363/2012

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IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 16^TH DAY OF JANUARY, 2021

BEFORE

THE HON’BLE MR.JUSTICE SURAJ GOVINDARAJ

MFA No.31363/2012 (WC)

Between:

The Divisional Manager,

M/s Royal Sundaram Alliance Insurance Co. Ltd.

Gulbarga.

... Appellant

(By Sri. Sudarshan.M, Advocate)

And:

1.

Smt. Shailaja W/o Late Shrikanth,

Aged about 25 years,

2.

Kum. Bhagya Jyoti S/o Late Shrikanth,

Aged about 6 years,

3.

Bhakti S/o Late Shrikanth,

Aged about 3 ½ years,

All are R/at Jatta,

Presently R/at Kaggoda,

Dist. Bijapur.

4.

Smt. Kashibayi W/o Dattu Shindhe,

Aged about 62 years,

Household,

Respondents No.2 & 3 are

MFA No.31363/2012

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Minors Reptd. By their

Mother Guardian i.e.,

Respondent No.1.

All are R/at Philkan Aread,

Wadi Junction,

Wadi, taluk Chittapur,

Dist: Gulbarga.

5.

Sri. Valmeeki D/o Yamallu Rathod,

Aged about 52 years, Occ: Business & Owner

of Lorry bg. KA-32/A-7667,

R/at Sevalal Nagar,

Wadi Junction, Wadi,

Taluk Chittapur Taluk,

Dist. Gulbarga.

... Respondents

(By Sri. B.Ali Mohammed, Advocate for R1 to 4;

R2 and R3 are minors represented by R1;

R5 is served)

This Miscellaneous First Appeal is filed under Section

30(1) praying to:

(a)

Call for the records in WC:CR No.57/2010 by the

Labour Officer and Commissioner for Workmen’s

Compensation, Gulbarga.

(b)

To set aside the judgment and award dated

25.05.2012 passed in WC:CR No.57/2010 by the

Labour Officer and Commissioner for Workmen’s

Compensation, Gulbarga, at Bijapur and exonerate

the Insurance Company from liability.

MFA No.31363/2012

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This appeal coming on for final hearing this day, the

Court delivered the following:-

JUDGMENT

1.

The insurance company is before this Court assailing

the judgment and award passed by Commissioner

for Workmen’s Compensation, Gulbarga in CR

No.57/2010 dated 25.05.2012 seeking for exonerate

of the insurance company from liability.

2.

On 20.11.2009 when the deceased was working as

Lorry Driver, employed by respondent No.5 herein,

the deceased was checking the vehicle condition and

at that time requested the cleaner of the vehicle to

start the said vehicle while the said vehicle was in

the gear and as such the vehicle ran over the

deceased causing his death. It is on account of the

same that respondents No.1 to 4 being legal

representatives had approached the Workmen’s

Compensation for compensation,

who in term

awarded compensation a sum of Rs.4,03,320/-.

MFA No.31363/2012

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3.

It is aggrieved by the said award, the appellant-

insurance company is before this Court contending

that the cleaner was not authorized to drive the

vehicle and in fact, cleaner has been charge sheeted

under Section 3 & 181 of the Motor Vehicles Act. On

this ground he submits that the insurance company

ought to have been exonerated of its liability.

4.

Per contra, Sri.B.Ali Mohammed, learned counsel

appearing for the respondent Nos.1 to 4 would

submit that the said contention of the appellant is no

longer resintegra. The Apex Court in Skandia

Insurance

Co.

Ltd.

V/s

Kokilaben

Chandravadan and others, reported in T.A.C.

(1980-95) 213 has categorically held that the insurer

is not at fault as he has not done anything which he

should

not have done. Hence, the insurance

company is liable to pay compensation. In the said

case, it has been held that since the owner never

MFA No.31363/2012

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gave permission to his cleaner to drive, he could

not be held guilty of the breach of the

contractual

condition embodied in the policy of insurance and

therefore, the insurer cannot plead any exception

on the ground that the owner had committed breach

of the specified condition. The starting of the vehicle

by the unauthorized driver would not exonerate the

insurance company from its liability. He submits that

the respondent No.5 owner not having authorized