Bangalore District Court
Sri. C.Ravikumara vs United India Insurance Co. Ltd on 21 January, 2021
BEFORE THE COURT OF VIII ADDITIONAL SMALL
CAUSES JUDGE AND THE MOTOR ACCIDENT
CLAIMS TRIBUNAL (SCCH5) AT BENGALURU
DATED THIS THE 21ST DAY OF JANUARY 2021
PRESENT: SMT. SHARMILA.S. B.COM., LLB.,
VIII ADDL. SCJ & ACMM,
MEMBER - MACT,
BENGALURU.
M.V.C No.2129/2020
PETITIONER : Sri. C.Ravikumara
S/o. D. Channappa
Aged about 45 years
Resident of No.1014/6,
17th C Cross,
Near Jain College,
Indiranagar 2nd Stage,
Bengaluru North,
Bengaluru - 560 038.
(By Sri.K.S.Anil, Adv.,)
V/s
RESPONDENT : United India Insurance Co. Ltd.,
No.487/1, C.M.H. Road,
Indiranagar 1st Stage,
Bengaluru - 560 038.
(By Sri.H.C.Nanjappa, Adv.,)
****
2 MVC No.2129/2020
SCCH 5
::JUDGMENT::
This petition is filed by the Petitioner under Section 166 of Motor Vehicles Act, 1988, claiming compensation of Rs.52,00,000/ for the death of Smt.Shanthamma, W/o.Channappa, in the alleged accident.
2. It is the case of the Petitioner that:
On 11.11.2018 early morning Petitioner and his mother Shanthamma, both went to their close relative's marriage at Rajajinagar, Bangalore in a Petitioner's Motor Cycle bearing Reg.No.KA05EG1481, where Petitioner was rider and his mother as a pillion rider. Both stayed in marriage hall till late evening, where the deceased took care of preparations of all the foods at marriage choultry, which included breakfast, lunch and dinner, to all the guests and invitees who attended the marriage. Their relatives assigned the cooking job to the said Shanthamma knowingly that she is expert in preparing 3 MVC No.2129/2020 SCCH 5 recipes and even very good at cooking. Even the deceased used to prepare home made products under her brand name "Shanthamma Home Products" at home, like snacks, cuisines including Rasam Powder, Puliyogare Mix etc., which were sold or marketed by the Petitioner to some hotels, canteens and regular customer both Petitioner and his mother, including their other family members, used to earn their livelihood. By this way the deceased used to earn Rs.30,000/ per month, which was sufficient means to lead a decent life of whole family which includes five members, which includes Petitioner, his wife and two school going children including the deceased where Petitioner used to look after all money affairs as his mother assigned money matters to him.
3. Further the Petitioner contends that, such being a state of affairs, on fatefull day, after finishing all the cooking work at the marriage party, the deceased 4 MVC No.2129/2020 SCCH 5 become tired, restless and exhausted. After that she took some rest in the marriage hall itself, later both had their dinner started towards their home in Petitioner's Bike, despite the clear ignorance from the Petitioner to take her as a pillion rider on his Motor Cycle as she is already exhausted and even suggested her to come by Autorickshaw. After futile attempt to convince his mother to come home by an Auto rickshaw, she sat behind in the Petitioner's bike as a pillion rider and both started towards their home in Indiranagar. While going so when the Petitioner approached the Hindu press junction near Infantry Road, the deceased complained about giddiness, when Petitioner about to stop his Bike at the road side, all of a sudden she fell down from the Bike sustained head injuries and become unconscious.
4. Immediately with the help of the passer by publics and an Authorickshaw driver, Petitioner shifted 5 MVC No.2129/2020 SCCH 5 his injured mother to the nearby Bowring Hospital for treatment, after getting the first aid then taken to Axon Super Speciality Hospital for better treatment. On 12.11.2018 the deceased succumbed to her injuries at Axon Hospital around 8 p.m. The Petitioner has spent about Rs.50,000/ towards hospital bills and one lakh towards his mother's funeral ceremonies.
5. The Petitioner has lost his loving mother on one side and on other side he has lost his earnings because of untimely death of his mother who used to prepare all home products and now the Petitioner is sitting idle in home as he has no work/business to do. Hence, he has claimed compensation of Rs.52,00,000/ against Respondent.
6. After service of notice, Respondent appeared through counsel and filed its written statement by denying the entire averments of the petition and 6 MVC No.2129/2020 SCCH 5 contends that the petition is not maintainable either in law or on facts and the same is liable to be dismissed in limine. According to this Respondent, the Petitioner was riding his Motor Cycle bearing Reg.No.KA05EG1481 along with his mother as a pillion rider. The Petitioner was riding his Motor Cycle in a rash and negligent manner with high speed and he is responsible for cause of accident. The Police constable who was on traffic duty came to know about the incident and booked a case against the rider Petitioner and charge sheeted.
7. Further the Respondent contends that, the deceased woman was not feeling well at the time of the accident as admitted by the Petitioner in the petition and she was not in a position to sit properly and travel on the Motor Cycle. The deceased fell down from the Motor Cycle on her own and sustained injuries to her body. This is a 7 MVC No.2129/2020 SCCH 5 clear case of self accident and the Company is not liable to pay any compensation to the Petitioner.
8. According to this Respondent, the Petitioner is the owner of the Motor Cycle bearing Reg.No.KA05EG 1481 TVS Firero and Policy holder. He should be made as one of the Respondents in addition to insurer in the claim petition. The liability of the Company arises only when the insured is liable according to the principles of vicarious liability. When the insured is not made as a party, Company alone is not liable and the claim petition is not maintainable and the same is liable to be dismissed as a rider Petitioner is the tort feasor. Tort feasor cannot maintain any claim petition that too against his own vehicle. Among other grounds, the Respondent prays to dismiss the petition.
9. On the basis of the above pleadings, I have framed the following:
8 MVC No.2129/2020
SCCH 5 ::ISSUES::
1. Whether Petitioner proves that, on 11.11.2018 when himself and his mother deceased Smt.Shanthamma both went to their close relatives marriage at Rajajinagar, Bangalore in a Petitioner's Motor Cycle who was riding the same and his mother as a pillion rider, till late evening Shanthamma took care of preparations of all the food at marriage choultry to all the guests and invites who attended the marriage, when the Petitioner approached the Hindu Press Junction, near Infantry Road, Shanthamma complained about the giddiness and when Petitioner was about to stop his Bike at the road side, all of a sudden Shanthamma fell down from the Bike and sustained head injuries and became unconscious as mentioned in claim petition?
2. Whether Petitioner is entitled for compensation as prayed in the petition? If so, from which Respondent?
3. What Order or award?9 MVC No.2129/2020
SCCH 5
10. In order to prove the above Issues for consideration, Petitioner examined himself as PW1 and got marked Ex.P.1 to Ex.P.15 documents and closed his side evidence. Per contra, the Administrative Officer in the 1st Respondent examined herself as RW1 and got marked Ex.R.1 to Ex.R.11 documents and closed its side evidence.
11. Heard the arguments of learned counsel for the Petitioner and Respondents. The Petitioner counsel filed written arguments and also relied decision decided on 16.08.2001 between Lata Wadhwa and Ors. V/s. State of Bihar and Ors. The Respondent counsel relied on a decisions reported in;
i) AIR 2018 SCC 4133 in between National Insurance Co. Ltd., V/s. Ashalata Bhowmik and Ors.
10 MVC No.2129/2020
SCCH 5
ii) MFA No.11979/2006 (MV) in between National Insurance Co. Ltd., V/s. Parvathamma and Ors.
iii) MFA No.13/2008 in between United India Insurance Co. Ltd., V/s. Mumtaz Begum and Ors.
iv) 2009 ACJ 2020 in between Ningamma and Anr. V/s. United India Insurance Co. Ltd.,
v) 2009 ACJ 2033 in between National Insurance Co. Ltd., V/s. Parvathamma and Ors.
12. My findings on the above Issues are as under:
Issue No.1 : In the Negative
Issue No.2 : Does not survives for
consideration
Issue No.3 : As per final order for the
following:
::REASONS::
13. Issue No.1: As this claim petition is filed
under Sec.166 of the M.V.Act, the burden is on the Petitioner to prove that, this accident was due to the 11 MVC No.2129/2020 SCCH 5 negligence of her mother while proceeding as a pillion rider, riding by the Petitioner insured under Respondent.
14. Before going to any other aspects, this Court has to access whether Petitioner has proved rash and negligence on the part of the offending Vehicle bearing Reg.No.KA05EG1481? It may be true that the Motor Vehicles Act, insofar as it relates to claims for compensation arising out of accidents, is a beneficient piece of legislation. It may also be true that subject to the rules made in that behalf, the Tribunal may follow a summary procedure while dealing with a claim. That does not mean that a Tribunal approached with a claim for compensation under the Act should ignore all the basic principles of law in determining the claim for compensation. In this regard, both parties have led oral and documentary evidence. PW1 filed his affidavit in lieu 12 MVC No.2129/2020 SCCH 5 of chiefexamination and got marked Ex.P.1 to 15 documents i.e., FIR with Complaint, Requistion by the Police, Judgment in C.C.No.12066/2019, P.M.Report, Charge Sheet, Insurance Policy, Death Certificate, Aadhaar Cards, Driving licence, R.C, Inpatient Bill along with Report, Death Summary, Bank Pass Book and 2 Sample Covers to show the home products done by the deceased. He has been crossexamined by the Respondent's Counsel wherein he deposed that, at the time of the accident he was riding his Bike along with deceased as pillion rider proceeding from Bangalore to Rajajinagar. Further he deposed that, the Police have obtained signature in a blank whitepapers, of his mourning wife and constable himself filled the whitepaper and made it as complaint and false FIR was registered on the basis of the said false compliant in Cr.No.40/2018 for the offences punishable under Section 13 MVC No.2129/2020 SCCH 5 279, 304A of IPC against the Petitioner and final charge sheet was filed before the 1 st M.M.T.C, Bangalore. After full fledged trial the Petitioner was aquitted.
15. Per contra, Respondent also examined Administrative Officer of its Company as RW1 and got marked Ex.R.1 to Ex.R.11 documents i.e., FIR with Complaint, Inquest, Requisition by the Police, Charge Sheet, Sketch, Mahazar, 133 Notice, Reply, P.M. Report, IMV Report and copy of Policy. She was not subjected to crossexamination by the Petitioner's counsel. This clearly shows that the entire negligence on the part of Petitioner and the petition is not maintainable U/s.166 of M.V.Act.
16. At the time of arguments learned counsel for the Petitioner relied on a decision of Hon'ble Supreme Court of India decided on 16th August 2001 between Lata Wadhwa & Ors Vs State of Bihar & Ors. I have 14 MVC No.2129/2020 SCCH 5 perused the decision wherein it has been alleged in the Writ petition that, while 150th Birth Anniversary of Sir Jamshedji Tata, was being celebrated on 3rd of March, 1989 within the factory premises and a large number of employees, their families including small children had been invited, but the organizers had not taken adequate safety measures and on the other hand, several provisions of the Factories Rules and Factories Act had been grossly violated. A devastating fire engulfed the VIP Pandal and area surrounding and by the time the fire was extinguished, a number of persons lay dead and may were suffering with burn injuries. Some of the injured also died on the way to the hospital or while being treated at the hospital. The death toll reached 60 and the total number of persons injured were 113. Amongst the persons dead, there are 26 children, 25 women and 9 men. Further it was also observed that, "Amongst the 15 MVC No.2129/2020 SCCH 5 deceased, there were many housewives and they have been classified in two categories, one those, whose husbands were employees of the company and as such whose income is known, and others who were outsiders, physical suffering and emotional turmoil and as such, all these factors should be borne in mind, while determining the compensation".
17. On the other hand, learned counsel for the Respondent relied on a decision reported in AIR 2018 Supreme Court 4133 between National Insurance Co., Ltd., vs Ashalata Bhowmik and Ors.,wherein It was held that:
"Motor Vehicles Act S.147, S.166Insurer's liabilityAccident occurring due to rash and negligent driving of deceased and no other vehicle involved in sameDeceased being owner cum driver of offending vehicle, not third party 16 MVC No.2129/2020 SCCH 5 within meaning of the ActInsurer not liable to pay compensation.
"Accident had occurred due to the rash and negligent driving of the vehicle by the deceased. No other vehicle was involved in the accident. The deceased himself was responsible for the accident. The deceased being the owner of the offending vehicle was not a third party within the meaning of the Act. The deceased was the victim of his own action of rash and negligent driving. A claimant, cannot maintain a claim on the basis of his own fault or negligence and argue that even when he himself may have caused the accident on account of his own rash and negligent driving, he can nevertheless make the Insurance Company to pay for the same. Therefore, the Respondents being the LRS of the deceased could not have maintained the claim petition filed under S.166 of the Motor Vehicles Act".17 MVC No.2129/2020
SCCH 5
18. Further it was observed that, "11.Liablity of the insurer company is to the extent of indemnification of the insured against the Respondent or an injured person, a third person or in respect of damages of property. Thus, if the insured cannot be fastened with any liability under the provisions of the Motor Vehicles Act, the question of the insurer being liable to indemnify the insured, therefore, does not arise".
19. Further in MFA No.11979/2006(MV) between National Insurance Co., Ltd., Vs Parvathamma and others decided on 31st day of July 2009, wherein Hon'ble High Court of Karnataka held that, "Policy issued by the appellant, covers the liability incurred by the insured, in respect of death or bodily injury to any person carried in 18 MVC No.2129/2020 SCCH 5 the vehicle and damage to any property of a third party caused by arising out of the use of the vehicle. Premium was paid to cover the liability of 12 passengers, third party property damage Rs.25,000/ and WC to employee. The premium paid was in respect of the aforesaid categories only. The policy does not cover any risk for injury to the ownerinsured himself".
20. In MFA No.13/2018 decided on 8th August 2011between United India Insurance Co., Ltd., Vs Mumtaz Begum and others wherein it was observed that:
"On the facts of the case, it is unnecessary to consider all the contentions urged by the counsel for the appellant. One of the contentions urged is that the claim petition filed by Respondent No.1 under Section 166 of the Motor Vehicles Act, 1988 for the death of 19 MVC No.2129/2020 SCCH 5 her son namely Tariq Nadeem was not maintainable in law as the deceased himself was the owner/insured of the Jeep. He submitted that the deceased, being himself the owner and insured of the jeep, a claim for compensation relating to his death is not maintainable under the Act, as against this own insurer as an insured is not a third party, visà vis his own insurer".
21. Further in a decision reported in 2009 ACJ 2020 between Ningamma and another Vs United India Insurance Co., Ltd., wherein Hon'ble Supreme Court of India held that:
"Motor Vehicles Act, 1988, Sec.163AClaim applicationMaintainability ofDeath of borrower of Motor CycleMotor Cycle dashed against a Bullock Cart proceeding ahead resulting in death of motorcyclistDeceased had borrowed the 20 MVC No.2129/2020 SCCH 5 motorcycle from its ownerLegal representatives of the deceased filed claim under Sec.163A Tribunal allowed compensation against Insurance CompanyHigh Court held that claim was not maintainable as there was no tortfeasor involved Whether legal representatives of a person driving a vehicle after borrowing it from the owner meets with accident without involving any other vehicle would be entitled to claim compensation under Section 163AHeld: no; borrower steps in to the shoes of the owner; owner cannot by himself be a recipient of compensation as liability to pay the same is on him".
22. In 2010 ACJ 2033 between National Insurance Co., ltd., Vs Parvathamma and others wherein Hon'ble High Court of Karnataka held that:
"Motor Vehicles Act, 1988, 163A, 140 and 147(1)Motor insuranceowner insureddeath of -21 MVC No.2129/2020
SCCH 5 no fault liabilityliability of insurance company owner travelling in his maxicab sustained fatal injuries when it met with accident due to rash and negligent driving by its driverHeirs of the deceased filed claim application under section 166 and subsequently converted the same as under section 163ATribunal allowed Rs.50,000/ to the claimants under section 140 and held the Insurance Company liablePolicy covers third party claims loss to property of third party and work manpolicy dies not cover risk of owner insuredWhether the Tribunal was justified in passing award for death of owner of vehicle against insurance companyHeld: no."
23. If we carefully peruse the oral and documentary evidence available on record, Ex.P.1 & 5 and Ex.R.1 and Ex.R.4 are the copy of FIR with Complaint and Charge Sheet which clearly indicates that, case has been registered against this PW1 in Crime 22 MVC No.2129/2020 SCCH 5 No.40/2018 for the offences punishable under Sec.279, 337 of IPC and complaint was lodged by the wife of the Petitioner. Even charge sheet has been filed against this PW1 for the offences punishable under Section 279, 304A of IPC.
24. It is the specific case of the PW1 that, he was riding the Motor Cycle with pillion rider with careful cautious manner by following traffic rules and on the fatefull day after finishing all the cooking work at the marriage party, his mother deceased felt like tired, restless and exhausted. After that she took some rest and later both started towards their home in the Bike. Though the Petitioner suggested her to come by autorickshaw, but she sat behind in his Bike as a pillion rider and while proceeding the deceased all of a sudden fell down from the Bike and sustained head injuries and succumbed to the injuries. If at all, the story narrated 23 MVC No.2129/2020 SCCH 5 by the PW1 was true, he could have produced photographs to show that, which portion of his vehicle was fully damaged and towards that, IMV Report was also done. In the absence of this, it is very difficult to believe the version of PW1. This facts clearly shows that, this accident was due to rash and negligent driving by the Petitioner himself and there is no negligence nor contributory negligence on the part of the deceased.
25. As this claim petition is filed under Sec.166 of the M.V.Act, the burden was on the Petitioner to prove rash and negligence on the part of the other vehicle. But in this case, except the vehicle of Petitioner, no other vehicles were involved.
26. On perusal of the claim petition, it is revealed that the petition has been filed under Section 166 of 24 MVC No.2129/2020 SCCH 5 Motor Vehicles Act. As per Section 163A (2) of the Act, in any claim for compensation under Sub Sec.(1) the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or negligent or default of the owner of the vehicle or vehicles concerned or of any other person. So the claimant need not prove the negligence of the owner of the vehicle or vehicles concerned or of any other person. So the claimant need not prove the negligence of the owner of the vehicle. If the application is filed U/s.166 of Motor Vehicles Act, they have to prove the negligence on the part of the driver and owner of the vehicle is vicariously liable to pay the compensation. In the case on hand, the Petitioner has filed petition U/s.166 of M.V.Act. So it is the duty of the Petitioner to prove the negligence. 25 MVC No.2129/2020
SCCH 5
27. A combined reading of Sections 165(1) and 166(1) clearly suggests that the person who himself caused the accident and out of whose own act loss allegedly occurred to him, is not supposed to be a person coming within the scope, ambit and purview of either Section 165(1) or Section 166(1) of M.V.Act. He cannot therefore, accuse himself of rashness or negligence and attempt to get compensated for his own fault. These two aforesaid sections clearly suggest that a person can approach a Claims Tribunal by way of filing an application only if such a person accuses another person of doing a civil wrong to him, resulting in loss to him, which he requires to be compensated for. The doing of civil wrong by the wrongdoer against the applicant in a petition U/s.166(1) is the sine qua non of initiating an action. It is inconceivable that a person initiates action against himself by pleading that it was because of his 26 MVC No.2129/2020 SCCH 5 fault that loss was caused to him and that he should be asked to compensate himself. It is not that such a person has no remedy in law. If a person is driving a motor vehicle and even if by his own negligence or rashness accident occurs to his vehicle resulting in loss to him, either by way of damage to the vehicle or the goods being carried thereon, he can always lodge a claim with the insurer of the vehicle to compensate him towards the loss occurring which, in terms of the insurance policy, the insurer is obliged to indemnify. If the insurer refuses to indemnify such a loss, it is always open to such a person to take legal recourse by approaching a civil court by filing civil suit. That is an appropriate remedy. Taking recourse to Section 166 (1) of Motor Vehicles Act was neither an appropriate remedy nor a desirable course of action in such a case.
27 MVC No.2129/2020
SCCH 5
28. As already stated that since claim petition has been filed U/s.166 of the M.V.Act, it is the duty of the claimants to prove the negligence and thereafter only they are entitled to compensation. In the instant case as per the evidence of PW1, the Motor Cycle bearing Reg. No.KA05EG1481 came with high speed and due to which the deceased being the pillion rider fell down and sustained grievous injuries and succumbed to the injuries. But in the affidavit filed in support of the claim petition itself Petitioner stated that, the case was registered against him before the Shivajinagar Traffic Police Station. But no reason has been assigned as to why no complaint has been lodged by the Petitioner. Except ipse dixit of the Petitioner, no other evidence has been let in by him.
29. Per contra, the Administrative Officer of the United India Insurance Company in her evidence stated 28 MVC No.2129/2020 SCCH 5 that the Motor Cycle was insured with their Company. Admittedly the complaint was filed by the wife of the Petitioner. But the Petitioner who rode the Two Wheeler has not filed any complaint. Even no document was marked to prove the damages to the vehicle. Hence, Petitioner has failed to prove Issue No.1. Accordingly, Issue No.1 is answered in negative.
30. Issue No.2: It may be true that the mother of the deceased was succumbed to the injuries in an accident. But, as the factum of negligence on the part of the Petitioner himself, claim petition deserves to be dismissed as not maintainable. Accordingly, Issue No.2 does not survives for consideration.
31. Issue No.3: On the basis of discussions made on Issues Nos.1 and 2, I proceed to pass the following: 29 MVC No.2129/2020
SCCH 5 ::ORDER::
Petition filed by the Petitioner under Sec.166 of MV Act, 1989 is hereby dismissed.
No order as to costs.
(Dictated to the stenographer directly on the computer, typed by her thereof is corrected and then pronounced by me in the Open Court on this the 21st day of January, 2021) (SHARMILA.S) VIII ADDL. SCJ & ACMM, MEMBER, MACT, BENGALURU.
::A N N E X U R E::
LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER: PW1 : Sri. D.C. Ravikumara LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONER: Ex.P.1 : Copy of FIR with Complaint Ex.P.2 : Copy of Requisition by the Police Ex.P.3 : C/c. Of Judgment in CC No.12066/2019 Ex.P.4 : Copy of P.M. Report Ex.P.5 : Copy of Charge Sheet Ex.P.6 : Copy of Insurance Policy Ex.P.7 : Notarized copy of Death Certificate Ex.P.8 : Notarized copy of Aadhar Card of the deceased 30 MVC No.2129/2020 SCCH 5 Ex.P.9 : Notarized copy of Aadhar Card of Petitioner Ex.P.10 : Notarized copy of D.L. Ex.P.11 : Notarized copy of R.C. Ex.P.12 : Inpatient Bill along with Report Ex.P.13 : Death Summary Ex.P.14 : Bank Pass Book Ex.P.15 : 2 Sample Covers to show the home products done by the deceased LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENT: RW1 : Smt. M.S. Savitha LIST OF DOCUMENTS MARKED ON BEHALF OF THE RESPONDENT: Ex.R.1 : Copy of FIR with Complaint Ex.R.2 : Copy of Inquest Ex.R.3 : Copy of Requisition by the Police Ex.R.4 : Copy of Charge Sheet Ex.R.5 : Copy of Sketch Ex.R.6 : Copy of Mahazar Ex.R.7 : Copy of Sec.133 Notice Ex.R.8 : Copy of Reply Ex.R.9 : Copy of P.M. Report Ex.R.10 : Copy of IMV Report Ex.R.11 : Copy of Policy (SHARMILA.S) VIII ADDL. SCJ & ACMM, MEMBER, MACT, BENGALURU.