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2010 Supreme(Kar) 672
High Court of Karnataka (Circuit Bench At Gulbarga)
THE HONOURABLE MR JUSTICE K. SREEDHAR RAO & THE HONOURABLE MR JUSTICE K. GOVINDARAJULU
United India Insurance Co. Ltd, Rep by its DM
Versus
Kalawathi & Others
M.F.A.No.5748 of 2002 (MV)
Decided on : 23-06-2010
For the Appellant:R.V. Nadagouda, Advocate.
For the Respondents:R2, I.R. Biradar, G.G. Chagashetty, R3, R4, J.M. Anil Kumar, Advocates.
Headnote:MOTOR VEHICLES ACT, 1988 - Section 147: [K.Sreedhar Rao & K.Govindararjulu, JJ] Liability of Insurance Company - Appeal by Insurance Company - Grant of compensation and direction to the Insurer to pay the compensation - Vehicle involved in the accident is a Jeep, a private vehicle - Plea that the vehicle was hired for reward in violation of the terms of the policy and the inmate is a paid passenger - Held, There cannot be any rationale for the insurer as a ’State’ to discriminate between the paid inmate and the gratuitous inmate when the vehicle is covered with comprehensive policy. If the vehicle is a private vehicle plied on hire, the owner may be liable for the penal and fiscal consequences under the Motor Vehicles Act for payment of penalty and taxes applicable to the commercial vehicles. But from the stand-point of the insurer, it makes no difference whether the inmates is a paid passenger or gratuitous passenger. When the policy issued is a comprehensive policy covering risk of the inmates of a private vehicle, the insurer cannot avoid liability on the ground that the inmate is a paid passenger. In that view, it can be held that the terms in the policy, which discriminates the liability of the insurer for the paid inmate and gratuitous inmate is discriminatory and illegal. On facts, held, There is no express averment that the jeep was taken on hire for the purpose of journey. The evidence of PW-1 does also not disclose that the jeep was hired by the deceased and other students for the journey. The insurer has contended that the jeep was taken on hire basis. But there is no evidence adduced to that effect. The policy is a comprehensive policy, which covers the risk of inmates.
MOTOR VEHICLES ACT, 1988 - Section 173(1): [K.Sreedhar Rao & K.Govindarajulu,JJ] Accidental Claim -Tribunal directing the Insurer to pay the compensation - Appeal by the insurer - Policy issued is a comprehensive policy covering risk of the inmates of a private vehicle - Liability of the insurer - Held, When the policy issued is a comprehensive policy covering risk of the inmates of private vehicle, the insurer cannot avoid liability on the ground that the inmate is a paid passenger. If the vehicle is a private vehicle plied on hire, the owner may be liable for the penal and fiscal consequences under the Motor Vehicle Act for payment of penalty and taxes applicable to the commercial vehicles. But from the stand-point of the insurer, it makes no difference whether the inmate is a paid passenger or gratuitous passenger. Therefore, the terms in the policy, which discriminates the liability of the insurer for the paid inmate and gratuitous inmate is discriminatory and illegal.
Sreedhar Rao, J
One Parimal @ Anand one of the inmates of the jeep belonging to respondent No.3 met with an accident. The mother and brother of the deceased had filed petition seeking compensation. The Tribunal awarded the compensation and directed the insurer to pay the compensation. The insurer is an appeal on the ground that the jeep is a private vehicle hired for reward in violation of the terms of the policy. Hence, the insurer is not liable to pay the compensation.
2. The facts disclose that the deceased and other students of agricultural university were travelling in the jeep for the purpose of project work. In the course of the journey, the jeep hit the stationary tractor as a result the son of first petitioner died.
3. The petitioner makes an averment to the effect that the deceased and other who were travelling in the jeep was for the purpose of project work. There is no express averment that the jeep was taken on hire for the purpose of journey. The evidence of PW-1 does also not disclose that the jeep was hired by the deceased and other students for the journey. The insurer has contended that the jeep was taken on hire basis. But there is no evidence adduced to that effect. The policy is a comprehensive policy, which covers the risk of inmates.
4. That apart we do not find any rationale for the insurer as a ‘State’ to discriminate between the paid inmate and the gratuitous inmate when the vehicle is covered with comprehensive policy. If the vehicle is a private vehicle plyed on hire, the owner may be liable for the penal and fiscal consequences under the Motor Vehicles Act for payment of penalty and taxes applicable to the commercial vehicles. But from the stand-point of the insurer, it makes no difference whether the inmate is a paid passenger or gratuitous passenger. When the policy issued is a comprehensive policy covering risk of the inmates for a private vehicle, the insurer cannot avoid liability on the ground that the inmate is a paid passenger. In that view, we hold that the terms in the policy, which discriminates the liability of the insurer for the paid inmate and gratuitous inmate is discriminatory and illegal.
Appeal dismissed.
