P Vimala Devaiah vs Sheikh Abdulla on 22 October, 2018

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Karnataka High Court

P Vimala Devaiah vs Sheikh Abdulla on 22 October, 2018

Bench: Krishna S.Dixit

                              1

     IN THE HIGH COURT OF KARNATAKA, BENGALURU

       DATED THIS THE 22ND DAY OF OCTOBER, 2018

                          BEFORE

       THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

                M.F.A. NO.8626/2010 (MV)
Between:
P.Vimala Devaiah,
W/o late Devaiah,
Aged 66 years,
R/o Mayamudi Village,
Gonicoppal,
Virajpet Taluk.                              ...Appellant
(By Sri. G.S.Kannur, Advocate)
And:

1.     Sheikh Abdulla,
       S/o H.K.Pokebba,
       Aged about 37 years,
       R/o Near Keera Ice Cream,
       Koladabali,
       Yarmal,
       Udupi District,
       Driver cum Owner of Lorry
       bearing Reg. No.KA-20-A-4087.
2.     Oriental Insurance Co. Ltd.,
       By its Manager,
       "Dwaraka", No.79-N.H.Road,
       Chennai.
       Policy No.412000/2006/9585
       Insurer of Lorry Bearing
       Reg.No.KA-020-A-4087.
3.     United India Insurance Co. Ltd.,
       By its Manager,
       College Road, Madikeri,
       Insurer of Mahindra Jeep
       bearing No.KA-12-M-4826            ....Respondents

(By Sri. C.Shankar Reddy, Advocate for R2;
Sri. Mohan Kumar T, Advocate of R3; R1 served)
                               2

      This Miscellaneous First Appeal is filed Under
Section 173 (1) of MV Act against the judgment and award
dated 30.6.2010 passed in MVC No.175/2008 on the file of
Civil Judge (Sr. Dn.) & MACT, Virajpet, dismissing the
claim petition for compensation.

     This Appeal coming on for Hearing on Interlocutory
Application, this day, the Court delivered the following:-

                       JUDGMENT

This appeal by the claimant calls in question the judgment and award dated 30.06.2010 made by the MACT, Virajpet, dismissing the claim petition in MVC No. 175/2008 on a short ground that the claimant could claim the compensation from his own insurer.

2. The brief facts of the case are that: in a vehicular accident that happened on 11.01.2006, appellant's jeep bearing Registration No.KA-12-M-4826 suffered damage due to rash and negligent driving of the offending lorry bearing Registration No.KA-20-A-4087. The appellant's claim petition against the Insurer of the said lorry was negatived by the MACT on the ground that it was open to the appellant to claim the benefit of insurance from his own Insurer. Accordingly, the MACT vide judgment and award dated 30.06.2010, rejected the claim. The same is under challenge in this Appeal. 3

3. The learned counsel for the appellant-owner of the damaged vehicle vehemently contends that the provisions of Section 166 of the Motor Vehicles Act, 1988 give a right to claim damages/compensation against the tort-feasor and that cannot be denied on the ground that the appellant would have claimed the benefit of insurance coverage from his own Insurer.

4. The learned Panel Counsel for the Insurer, per contra, opposes the above said contention stating that the appellant has not shown any reason as to why he cannot proceed against his own Insurer when it is legally permissible and therefore, appellant's claim lacking in bona fide is liable to be negatived here too.

5. I have heard the learned counsel for the appellant and the learned Panel counsel for the Insurer. I have perused the Appeal Papers.

6. The short question that falls for consideration of this Court is:-

"Can the claim for compensation against the owner of the offending vehicle/its insurer be denied on the sole ground that the claimant can recover the expenses of repair from the insurer of his own vehicle?"

7. Sub-section 1 of Section 166 of the Motor Vehicles Act, 1988 reads as under:

"166. Application for compensation - (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made-

(a) by the person who has sustained the injury; or

(b) by the owner of the property; or

(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

(d) by any agent duly authorized by the person inured or all or any of the legal representatives of the deceased, as the case may be:"

(rest of the provisions are not reproduced since they are not relevant to the adjudication of the lis at hand)

8. The right to claim damages or compensation arises because of tortuous act of the opponent. The same has been regulated by the provisions of the Act and the Rules made thereunder. The provisions of Section 166 specifically provide for claiming compensation from the tort-feasor, inter alia, when claimant's property, i.e, the vehicle in question is damaged. There is no provision in the Act or the Rules to deny compensation on the ground that the claimant can recover the repair charges from his own insurer. No ruling to the contrary is cited. 5

9. The MACT, as rightly contended by the learned counsel for the claimant, has recorded a specific finding that the accident took place because of the rash and negligent driving of the offending vehicle insured with the respondent-insurer. A right to damages/compensation arises from the act of the tort-feasor. A possible alternative remedy cannot defeat such a right in the absence of an enabling provision of law to the contrary.

In the above circumstances, this appeal succeeds; the matter is remanded to the jurisdictional MACT for disposal afresh on merits, keeping in mind the earlier finding as to the rash and negligent driving.

Costs made easy.

Sd/-

JUDGE CBC/RMV

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