Icici Lombard General Insurance Vs. Mehaboob P. - Court Judgment

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2023. KHC:26267 MFA No.3463 of 2012 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE24H DAY OF JULY, 2023 R BEFORE THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.3463 OF2012(MV-I) BETWEEN: ICICI LOMBARD GENERAL INSURANCE COMPANY LTD. BRANCH OFFICE SHIMOGA, NOW REP. BY ITS MANAGER, M/S ICICI LOMBARD GENERAL INSURANCE COMPANY LTD., SVR COMPLEX, NO.89, 2ND FLOOR, HOSUR MAIN ROAD, BANGLAORE – 560 068 …APPELLANT (BY SRI. B. PRADEEP AND MALLIKARJUN REDDY N.A,ADVOCATE) AND:

1. MEHABOOB S/O GOUSE SAB AGAED ABOUT37YEARS, AGRICULTURIST R/O JAMBARGATTA VILLAGE, HOLEHONNUR HOBLI, BHADRAVATHI TALUK.

2. DASTHAGIR S/O HAJARATH ALI AGED ABOUT22YEARS, RIDER OF THE MOTOR CYCLE - 2 - NC:

2023. KHC:26267 MFA No.3463 of 2012 R/O SIDDIPURA CAMP HOLEHONNUR HOBLI, BHADRAVATHI TALUK. …RESPONDENTS (R1 AND R2 ARE SERVED) THIS MFA IS FILED U/S1731) OF MV ACT AGAINST THE JUDGMENT

AND AWARD DATED28.9.2011 PASSED IN MVC NO.54/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE, CHIEF JUDICIAL MAGISTRATE, 12TH ADDITIONAL MACT, BHADRAVATHI, AWARDING A COMPENSATION OF RS.16,762/- WITH INTEREST @ 6% P.A. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT

The present appeal is filed by the appellant- Insurance Company challenging the judgment and award dated 28.09.2011 in MVC.No.54/2010 passed by the Senior Civil Judge & Chief Judicial Magistrate and 12th Addl. MACT, Bhadravathi, on the ground that the owner has filed the claim petition against himself, just because, there is a contract of insurance between the owner and appellant-Insurance Company. Hence, the claim petition is filed virtually against himself and is not maintainable. Therefore, prays to allow the appeal.-. 3 - NC:

2023. KHC:26267 MFA No.3463 of 2012 2. The factum of accident is not in dispute.

3. Heard the arguments from both sides and perused the records.

4. In the present case, respondent No.1 being the owner of the motorcycle bearing No.KA-14-TR-13469 was the pillion rider and respondent No.2 was riding the said motorcycle. It is alleged that due to rash and negligent driving of the motorcycle by respondent No.2, respondent No.1-owner sustained injuries. Therefore, respondent No.1-owner filed the claim petition under Section 166 of Motor Vehicle Act against the driver and insurer of the motorcycle and prays to hold that the appellant-Insurance Company and respondent No.2-driver are jointly and severally liable to pay compensation.

5. The Tribunal has allowed the claim petition and granted compensation by directing the appellant-Insurance Company to pay compensation.

6. Admittedly, respondent No.1 (claimant therein) is the owner of the motorcycle bearing No.KA-14-TR-13469 and - 4 - NC:

2023. KHC:26267 MFA No.3463 of 2012 he had sustained injuries while he was the pillion rider on the said motorcycle. Therefore, respondent No.1 being the owner had filed the claim petition virtually against himself. The Tribunal has committed error by holding that the vicarious liability arises between the driver of the motorcycle and Insurance Company. But the vicarious liability arises between the employer and employee / master and servant. In the present case, the Insurance Company is not employer or master of respondent No.2-driver. The contract of insurance is between the appellant-Insurance Company and respondent No.1-owner. The Insurance Company comes into picture by virtue of contract of insurance between the Insurance Company and owner. Therefore, if any, tort is committed by an employee/servant, then the employer or master is vicariously liable for the tort committed by employee/servant. In the present case, there is no relationship of employer and employee between respondent No.2-driver of the motorcycle and Insurance Company. Therefore, there is no question of holding that the Insurance Company is vicariously liable for the tort committed by respondent No.2-driver. This principle is lost sight by the - 5 - NC:

2023. KHC:26267 MFA No.3463 of 2012 Tribunal. The claim petition is filed by respondent No.1-owner is nothing, but making claim against himself and this is not maintainable.

7. The above said aspect is squarely covered by the judgment of this Court in the case of National Insurance Co., Ltd., Represented by its Regional Manager Vs. Smt.Parvathamma and Others1.

8. Section 165 of the Motor Vehicle Act stipulates as follows: “165. Claims Tribunals.—(1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both.” (2) x x x (3) x x x (4) x x x (emphasis supplied) 1 ILR2009KAR3773- 6 - NC:

2023. KHC:26267 MFA No.3463 of 2012 9. Therefore, the claim can be made before the Tribunal for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party only. Therefore, whoever is third party can make claim against the owner of the motorcycle and Insurance Company is impleaded in the case by virtue of contract of insurance and not otherwise. It is the duty of the Insurance Company to indemnify the owner where death or injury or damage to property of third party is caused in respect of third party only. The role of Insurance Company is to indemnify the owner. Primarily, the claim petition is filed against the owner of the vehicle, then it is the duty cast on the Tribunal to issue notice to the Insurance Company in case there is insurance coverage for third party, then only the Insurance Company can be involved in the claim proceeding for convenient and the claim petitions are filed by making Insurance Company as party. Therefore, the owner and Insurance Company are sailing on the same boat by standing on the same pedestal.-. 7 - NC:

2023. KHC:26267 MFA No.3463 of 2012 10. Section 170 of the Motor Vehicle Act stipulates as follows: “170. Impleading insurer in certain cases.—Where in the course of any inquiry, the Claims Tribunal is satisfied that— (a) there is collusion between the person making the claim and the person against whom the claim is made, or (b) the person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in sub- section (2) of section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made.

11. Therefore, as per Section 170 of the Motor Vehicle Act the insurer is impleaded because of contract of insurance between the owner and insurer and the Insurance Company is given liberty to take whatever defences available to the owner - 8 - NC:

2023. KHC:26267 MFA No.3463 of 2012 in the claim proceedings, so as to avoid collusion between the owner and claimant (means third party).

12. But in the present case, the owner himself is the claimant and filed the claim petition for seeking compensation against the Insurance Company is not maintainable, just because, there is a contact of insurance between the owner and the Insurance Company. Hence, upon the principle of law laid down above, the claim petition filed by the owner as if the claim is not maintainable and this principle of law is lost sight by the Tribunal. Hence, the appeal is liable to be allowed and the judgment and award passed by the Tribunal is liable to be set aside. Accordingly, I proceed to pass the following ORDER

i. The appeal is allowed. ii. The impugned judgment and award dated 28.09.2011 in MVC.No.54/2010 passed by the Senior Civil Judge & Chief Judicial Magistrate and 12th Addl. MACT, Bhadravathi, is set aside.-. 9 - NC:

2023. KHC:26267 MFA No.3463 of 2012 iii. No order as to costs. iv. Registry is directed to transmit the TCR along with copy of this order to the Tribunal forthwith. v. The amount in deposit shall be refunded to the appellant-Insurance Company through digital payment. Sd/- JUDGE PB List No.:

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