Iffco Tokio General Insurance Company Limited vs K.H. Mallikarjuna and Another

H.N. Nagamohan Das, J.—This appeal is directed against the judgment and award dated 9th April, 2010 in MVC No. 241 of 2009 passed by MACT, Bellary. Sri Ravindra R. Mane, learned Counsel for the appellant-Insurance Company, firstly, contends that the Insurance Policy-Ex. R. 3 specifies that the vehicle covered under the policy shall be utilised only in accordance with the permit issued under the Motor Vehicles Act, 1988. It is further contended that the accident in question had taken place in Andhra Pradesh on the National Highway from Bellary to Bangalore.

I perused the permit issued under the Motor Vehicles Act and the same specifies as under:

Area for which permit/s valid "within a radius of 20 Kms. of Bellary City".

It is not in dispute that the accident in question though had taken place in Andhra Pradesh, the same is within 20 Kms. of Bellary City. Therefore, the autorickshaw involved in the accident had been used in accordance with the permit issued under the Motor Vehicles Act, 1988. Further, the permit issued by the Motor Vehicles Authority do not specify that the vehicle in question shall not be used in Andhra Pradesh area. Therefore, I decline to accept this contention of the learned Counsel for the appellant.

Learned Counsel for the appellant relying on a judgment of this Court in New India Assurance Company Limited Vs. Papaiah and Others, , contend that the vehicle involved in the accident was used contrary to the permit and in that event, the Insurance Company is not liable to pay compensation. This judgment is on a different set of facts. Firstly, in the Papaiah''s case, permit was only to the extent of radius of 10 Kms., but, the accident had taken place at 20 Kms. and the same was in clear violation of terms of the Insurance Policy. But, in the instant case, the accident had taken place within a radius of 20 Kms. of Bellary City as specified in the permit.

Secondly, learned Counsel for the appellant contends that there is violation of conditions of permit and in the very same proceedings, the appellant-Insurance Company may be permitted to recover the award amount from the owner of the vehicle. In the instant case, the appellants have filed a memo seeking dispensation of notice on the respondent-owner of the vehicle and the same was granted at the risk of the appellants. Therefore, second prayer of the appellant is also liable to be rejected. Thirdly, learned Counsel for the appellant contends that the owner of the vehicle remained ex parte before the Tribunal, therefore, they sought for dispensation of notice on the 2nd respondent-owner in this appeal. There is no dispute with regard to this proposition of law. But, the fact remains that the respondent-owner of the vehicle, though remained ex parte, the impugned judgment and award was in his favour. Without hearing him and without making him a party to the proceedings, it is not proper for this Court to fasten liability on the 2nd respondent-owner, who is not a party to the proceedings. At the risk of the appellant, notice to 2nd respondent-owner was dispensed and, therefore, no liability can be passed on the respondent-owner of the vehicle in question.

Accordingly, the appeal is dismissed.

The amount in deposit be remitted to the Tribunal for disbursement in terms of the award.