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2020 DIGILAW 1922 (KAR)

Oriental Insurance Co. Ltd. v. Rajendra Kumar

2020-09-30

H.P.SANDESH

body2020
JUDGMENT H.P. Sandesh, J. - This appeal is filed by the Insurance Company challenging the Judgment and Award passed in MVC No.12/2003 dated 11.01.2010 on the file of the Civil Judge (Sr.Dn.) and Motor Accident Claims Tribunal, Madikeri [ Tribunal , for short], questioning the liability. 2. The factual matrix of the case is that on 27.10.2002 at about 7.30 p.m. when the petitioner was proceeding on his Hero Honda Motor Bike bearing registration No.KA-12/E-9002 on B.M. Road near Doddahonnur Gate, all of a sudden one buffalo came across, due to which he lost control and fell down on the road. As a result, the petitioner sustained injuries and immediately he was taken to Kushalnagar Government Hospital for treatment and later, he was shifted to City Hospital Research and Diagnostic Centre, Mangalore and there he was taken treatment as an inpatient from 27.10.2002 to 9.11.2002. He spent huge amount for medical treatment and he lost his income during the said period. 3. Pursuant to the claim petition, notice was issued against respondent-Insurance Company. The Insurance Company filed written statement contending that the petitioner/claimant cannot claim any compensation. The claimant, to substantiate his claim, examined himself as PW.1 and got marked the documents as Exs.P.1 to P.28. Through the Court Commissioner Exs.C.1 and C.2 were marked. The Insurance Company did not adduce any evidence. The Tribunal, after considering the materials on record, allowed the claim petition in part granting compensation in a sum of Rs.82,600/- with interest at 6% per annum from the date of petition till the date of deposit. 4. The main contention urged in this appeal is that the Tribunal ought to have noticed that the claimant himself is the owner of the vehicle and as such, the claimant is not entitled to claim compensation from the appellant - Insurance Company as the said risk is not covered either under the Statute or under the policy of insurance. Further, the Tribunal ought to have held that the liability, if any, under the policy of insurance is joint and several along with the insured since the only respondent arrayed in the present case is the Insurance Company and hence, the claim itself is bad in law. The learned counsel in support of his contention has relied upon the decision of the Hon ble Supreme Court in the case of National Insurance Co. Ltd. Vs. The learned counsel in support of his contention has relied upon the decision of the Hon ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Ashalata Bhowmik, (2018) AIR SC 4133 and referring this judgment, the learned counsel would submit that the injured being the owner-cumdriver of the offending vehicle is not a third party within the meaning of the Act and hence, the insurer is not liable to pay compensation. 5. Per contra, learned counsel for the respondent-claimant in his arguments vehemently contended that there is an express contract between the insured and the Insurance Company and collected the premium of Rs.100/- towards personal accident coverage in respect of the owner/driver. When such being the case, the Insurance Company cannot contend that there was no liability and separate premium is not collected. Hence, the appeal is liable to be dismissed. 6. Having heard the arguments of both Counsels and perused the materials on record, the points that would arise for consideration are: [i] Whether the Tribunal has committed an error in directing the Insurance Company to pay compensation? [ii] What order? Reg: Point No.[i]: 7. Having perused the materials on record, the Insurance Company did not choose to lead any evidence before the Tribunal. The main contention is that the claimant being the owner-cum-driver of the offending vehicle is not entitled to claim any compensation from the appellant-Insurance Company as the said risk is not covered either under the Statute or under the policy of insurance. The learned counsel appearing for the appellant would submit that the policy issued in respect of two wheeler is a motorcycle policy B comprehensive and in support of his contention, he has also produced IRDA definition with regard to what is covered under the two wheeler insurance policy; and the package policy covers accidental loss or damages to the vehicle, and liability to third parties, personal accident covers to owner driver. Though the policy was not placed before the Tribunal, the learned counsel for the Insurance Company has placed a copy of the Policy before this Court vide memo dated 16.8.2018. Having taken note of the policy, it is a B comprehensive policy and as per the definition, it also includes personal accident cover to the owner-driver. The contention of the Insurance Company that the decision of the Hon ble Supreme Court in the case of National Insurance Co. Having taken note of the policy, it is a B comprehensive policy and as per the definition, it also includes personal accident cover to the owner-driver. The contention of the Insurance Company that the decision of the Hon ble Supreme Court in the case of National Insurance Co. Ltd. v. Ashalata Bhowmik, (2018) AIR SC 4133 is aptly applicable to the present case, cannot be accepted for the reason that the contract between the insured and the insurer while issuing B-comprehensive package policy covers the personal loss to the owner also. The very contention of the Insurance Company that the Insurance Company is not liable to pay compensation cannot be accepted. The Insurance Company did not adduce any evidence before the Tribunal in order to substantiate the contention raised before this Court and also not examined any of the witnesses and the policy was not marked before the Tribunal and now the learned counsel for the Insurance Company made an effort to produce the copy of the policy before this Court along with a memo. Having taken note of the policy that it is B-comprehensive policy, I am of the considered opinion that the Tribunal has not committed any error in fastening the liability on the Insurance Company. Re-point No.2. 8. In view of the discussions made above, I pass the following: ORDER [a] Appeal is dismissed. [b] The amount, if any, in deposit shall be ordered to be transmitted to the Tribunal. [c] The Registry is directed to transmit the trial court records to Tribunal forthwith.