NEW INDIA ASSURANCE CO LTD Vs. LAKKAMMA

JUDGEMENT

(1.) RESPONDENT No. 2, insurance company in M.V.C. No. 338 of 2005 on the file of M.A.C.T., Chitradurga, has come up in appeal in M.F.A. No. 2952 of 2008 and similarly the same insurance company, which is the respondent No. 2 in M.V.C. No. 704 of 2006 on the file of M.A.C.T., Chitradurga, has also come up in appeal in M.F.A. No. 3528 of 2008. Both the claim petitions are filed by two different claimants against the owner of bus bearing No. KA 14-A 9495 owned by respondent No. 1 in both the claim petitions and insured by the respondent No. 2 insurance company, common in both the claim petitions.

(2.) BRIEF facts leading to filing of M.F.A. No. 2952 of 2008 are that on 21.11.2004 one Chikka Kariyappa was travelling in the bus bearing No. KA 14-A 9495 from Mathodu to Kanchipura which met with an accident near Kappanayakanahally Gate and in the said accident he succumbed to the injuries leading to his death. Hence his widow and three children filed claim petition seeking compensation for his death. In the said proceeding, the accident is not in dispute, ownership of the bus by the respondent No. 1, since deceased and represented by his widow and children, was also not in dispute. It is also not in dispute that at the relevant time of accident, i.e., on 21.11.2004 the said bus was insured with respondent No. 2, appellant herein. In the claim petition filed by the widow and children of deceased Chikka Kariyappa, the insurance company, appellant herein having entered appearance, filed written statement accepting the issuance of policy covering the bus in question. It was also accepted that the said policy was issued in the name of original owner, N.B. Rudramuni. Incidentally in the said proceedings, while filing the written statement there is no reference to the policy being issued in the name of dead person. What was contended by the respondent No. 2 insurance company in the said proceeding is that the accident has taken place due to negligence on the part of deceased Chikka Kariyappa, who was standing carelessly on the footboard of the bus and when the said bus was taking turn, deceased Chikka Kariyappa having lost the balance, fell down resulting in his death. Therefore, the cause of death is his own negligence in not taking precaution in getting into the bus instead of travelling on the footboard.

(3.) BRIEF facts leading to filing of M.F.A. No. 3528 of 2008 are that the claimants in M.V.C. No. 704 of 2006, namely, Chikkaopa, claimant No. 1, along with his wife, Gangamma, claimant No. 2, and his two children, namely, Mariyamma and Latha, claimant Nos. 3 and 4, were travelling in the bus bearing No. KA 14-A 9495 belonging to the respondent No. 1 before the Tribunal and insured with respondent No. 2 insurance company, appellant herein. On 8.12.2005 when they were so travelling, the said bus met with an accident, wherein the claimant No. 1 suffered injuries to his head resulting in his losing consciousness, for which he took treatment and thereafter the claimant No. 1, his wife and children together filed claim petition seeking compensation for the injuries sustained by the claimant No. 1. In the said proceeding, respondent No. 2 the insurance company, appellant herein, entered appearance and filed detailed objections taking up a defence that as on the date of accident, respondent No. 1 N.B. Rudramuni had died long back, i.e., on 6.7.2004 and in fact subsequent to his death, insurance policy which was issued in his name for the aforesaid bus was renewed with the appellant herein without disclosing the fact of N.B. Rudramuni's death to the insurance company. Therefore, the policy issued by the insurance company covered the liability of the owner of the said bus, cannot be enforced in law for the reason that there cannot be a valid and binding contract between the insurance company and deceased N.B. Rudramuni, since he was dead as on the date of issuance of policy. Therefore, it was contended that the entire claim petition is required to be dismissed. In the said proceeding, in addition to the evidence that is adduced by claimant No. 2 in support of their case, the insurance company adduced the evidence through its officer, C.K. Surya Prakash as RW 1, wherein he has reiterated the averments in the statement of objection and tried to substantiate that as on the date of issue of policy since N.B. Rudramuni was dead, issuance of policy in the name of a dead person itself was invalid and as such the insurance company is (sic not liable to) to indemnify the liability that may arise against the owner of the bus, N.B. Rudramuni. The Tribunal after going through the pleadings, oral and documentary evidence available on record, proceeded to reject the said ground and allowed the claim petition awarding compensation to the claimants in a sum of Rs. 18,000 payable with interest at 6 per cent per annum, from the date of petition till the deposit of the entire amount. The respondent No. 2 insurance company, being aggrieved by the same, has come up in this appeal on similar grounds, i.e., as on the date of issuance of policy for the years 2004-05 and 2005-06, the policy that was issued being in the name of a dead person, the same was not valid and as such the insurance company is legally not bound to answer the said claim.