ORIENTAL INSURANCE CO LTD Vs. RUDREGOWDA

JUDGEMENT

(1.) These miscellaneous first appeals are filed by the Insurance Company challenging the judgment and award dated 3.10.2009 passed by the Civil Judge(Sr.Dn.) and AMACT at Belur, in MVC.Nos.2 and 3/2008 questioning the liability fastened on the insurance company.

(2.) The brief facts of the case of the claimants before the Tribunal are that on 8.10.2002 at about 11.30 a.m. on Hassan-Belur Road, near Mallikarjunappa gate, towards southern side, the claimant in MVC.No.2/2008 was talking with Somashekar, the deceased in MVC.No.3/2008. At that time, the driver of the car bearing Regn.No.KL-13-D-3993 came in a high speed in a rash and negligent manner and dashed against them, as a result of which the claimant- Rudregowda sustained fracture of his left leg and injuries all over his body and the deceased Somashekar sustained grievous injuries to forehead, right leg and left hand. Both of them were shifted to hospital for treatment. The deceased Somashekar succumbed to the injuries in the hospital. Hence, the claimant in MVC.No.2/2008 filed claim petition seeking compensation for the injuries sustained and the claimants in MVC.No.3/2008 who are the dependants of deceased Somashekar filed claim petition seeking compensation for his death.

(3.) The main contentions of the appellant-insurance company in both the appeals are that the Tribunal has failed to take note of the fact that the insured had lost ownership in respect of the vehicle as possession was forcibly taken by the thieves and one Mahamad Abdulla was driving the vehicle and was in possession of the vehicle and he alone caused the accident. He was not an employee or an agent of the insured and as such there is no vicarious liability on the insured to indemnify the tortuous act of Mahamad Abdulla, and consequently the appellant is not liable to pay any compensation. The Tribunal has also failed to take into consideration that the police had filed 'C' report to the effect that the vehicle could not be traced and the accident in question had occurred by the use of such a stolen vehicle and the policy of insurance gets cancelled ab initio the moment the insured loses his legal right and control over the vehicle. The appellant is not required to indemnify either the insured or the person who has stolen the vehicle and caused the accident by using the vehicle after such act. The Tribunal has failed to appreciate both oral and documentary evidence available on record and that the compensation claimed is also excessive.