Bangalore District Court
Smt.Madhuri Choudhary vs Mr.Tushar Kumar on 10 July, 2020
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
Court of Small Causes, Bangalore,
DATED THIS THE 10th DAY OF JULY 2020
PRESENT: SRI.SANTOSH SIDDAPPA PALLEDH
B.A. LL.B (Spl.)
VII Addl. SCJ and ACMM,
Member, MACT-3, Bengaluru.
M.V.C. No.1240/2019
Petitioners: 01. Smt.Madhuri Choudhary,
W/o Ganesh Kumar Choudhary,
Aged about 45 years,
02. Sri.Ganesh Kumar Choudhary,
S/o Asarphy Choudhary,
Aged about 50 years,
Both are residing at:
No.DT-1836, Tanki Side,
Near Panchwati Maiden,
Dhurwa Taluk,
Ranchi District,
Jharkhand - 834 004.
(By Sri.K.T.Madhu, Advocate)
-Vs-
Respondents: 01. Mr.Tushar Kumar,
S/o Rakesh Kumar,
# 50, MHN Kuteer,
1st Main Road, 3rd Cross Road,
1st Block, Sai Lotus Layout,
Channasandra,
(SCCH-3) 2 MVC 1240/19
BEML 5th Stage,
Bengaluru - 560 067.
(Owner of M/C No.KA-03-HS-3138)
(Exparte)
02. United India Insurance Co. Ltd.,
Regional Office,
No.18, Krushi Bhavan,
5th & 6th Floor,
Opp. to Hudson Circle,
N.T. Road,
Bangalore - 01.
(Policy No.0718833118P107933357
valid from 19-09-2018 to 18-09-2019)
(By Sri.M.I.Nijaguli, Advocate)
********
JUDGMENT
This petition is brought U/Sec 163(A) of the Motor Vehicles Act, 1988 for the compensation to the death of one Sri.Shivam Kumar S/o Ganesh Kumar Choudhary, who died in the accident caused on 16-12-2018.
02. The brief facts are as under:-
It is the case of the petitioners that they are the parents of deceased Shivam Kumar and on 16-12-2018 said Shivam Kumar was riding the Motor (SCCH-3) 3 MVC 1240/19 Cycle bearing reg. No.KA-03-HS-3138 towards Channasandra on Uttarahalli - Kengeri Main Road. At about 6.10 p.m. when he was near Mantri Apartments, Kengeri, he lost the control of the said bike and fell on the road. As a result Shivam Kumar suffered severe injuries and was shifted to B.G.S. hospital at Bengaluru, wherein he was declared dead. The petitioners have performed last rituals and incurred Rs.5,000-00 for transportation and Rs.50,000-00 for funeral expenses.
03. According to the petitioners, the deceased was hale and healthy prior to accident and was studying in 3rd year B.E. (Mechanical) at RNSIT, Uttarahalli Main Road, Bengaluru. As such they claimed Rs.6,00,000-00 (Six lakhs only) as compensation against the respondents under no fault liability.
04. In response to the notice issued, the respondent No.1 failed to appear and was placed exparte. The respondent No.2 appeared through MIN Advocate and filed written statement contending that the petition is not maintainable as the deceased himself is negligent in causing the accident. The other details furnished by the petitioners are denied as false. Therefore, sought to dismiss the petition against them.
(SCCH-3) 4 MVC 1240/1905. Based on the aforesaid pleadings, the following Issues have been framed: -
ISSUES 1. Whether the petitioner No.1 and 2 prove that they are the LRs/dependants of the deceased Shivam Kumar?
2. Whether the petitioners prove that the death of Shivam Kumar S/o Ganesh Kumar Choudhary is due to the accident caused on 16-12-2018 at 6.10 p.m. on Uttarahalli, Kengeri Main Road, near Mantri Apartments, Kengeri, by the use of Motor Cycle bearing No.KA-03-HS-3138 as alleged in the petition?
3. Whether the respondent No.2 prove that the petition is not maintainable as the deceased was tort-feasor?
4. Whether the petitioners are entitled for compensation? If so, from whom and at what quantum?
5. What order or award?
06. In support of petition contents, petitioner No.1 examined herself as P.W.1 and has produced Ex.P.1 to Ex.P.10 documents. On the other hand respondent No.2 has examined its Company Official as R.W.1 and through them Ex.R.1 and Ex.R.2 documents are marked.
07. Heard the arguments from both sides.(SCCH-3) 5 MVC 1240/19
08. My findings on the aforesaid Issues are as under:-
Issue No.1 In the Affirmative
Issue No.2 In the Affirmative
Issue No.3 In the Affirmative
Issue No.4 In the Negative
Issue No.5 As per final order
for the following:-
REASONS
09. Issue No.1:- This case is brought by two petitioners who claim that they are the parents of the deceased Shivam Kumar. To prove the relation, the petitioner No.1 who claims to be mother of deceased has given evidence as P.W.1 by reiterating petition averments in her chief-examination filed by way of affidavit and she has produced Driving licence and Aadhaar card of deceased, Aadhaar cards of herself and petitioner No.2 at Ex.P.7 to Ex.P.10. These documents are not strongly rebutted by the respondents. Therefore, in my opinion they being the parents of the deceased are definitely the dependants and legal representatives. As such this Issue is answered in the affirmative.(SCCH-3) 6 MVC 1240/19
10. Issue No.2:- To prove the fact that deceased Shivam Kumar died while using the Motor Bike bearing reg. No.KA-03-HS-3138, the petitioner No.1 has given evidence as P.W.1 and has produced Ex.P.1 to Ex.P.6 documents such as FIR, Complaint, IMV report, Inquest report, PM report and Charge sheet.
11. It is pertinent to note that in the cross-examination of P.W.1 there is no suggestion that the vehicle of respondent No.1 is not at all involved in the accident. Therefore, the Post mortem report, FIR, Complaint, all goes to show that Shivam Kumar died due to the injuries suffered in the accident, while using the vehicle bearing reg. No. KA-03-HS-3138 and it is not disputed by the other side. The respondent No.1 has remained exparte and therefore, in my opinion the petitioners are successful in proving Issue No.2 and as such I answered the same in the affirmative.
12. Issue No.3:- On this Issue the respondent No.2 has mainly contested and examined the Company Official as R.W.1 reiterating the contents of written statement and has produced Authorization letter and Policy copy at Ex.R.1 and Ex.R.2. The cross-
examination of this witness is nothing but denial suggesting that they are liable to pay the compensation to the petitioners. However, the cross-examination of (SCCH-3) 7 MVC 1240/19 P.W.1 on this aspect is silent only suggesting that deceased himself was negligent, as such they are not liable to pay compensation.
13. The counsel for petitioners has argued at length and contended that though the Charge sheet is filed against deceased as per Ex.P.6, but it is noticeable that the claim U/Sec 163(A) of M.V. Act is maintainable. On this count the counsel has relied upon the Judgments reported in 2019 ACJ 1649, 2019 ACJ 3146 and 2020 ACJ 627. It is argued that since deceased borrowed the vehicle from respondent No.1, he cannot be called as owner and as such the liability is on the Insurance Company to give compensation. On the contrary, the counsel for respondent No.2 argued contending that the deceased himself was negligent in causing the accident, as such their liability does not exist and in this regard relied upon the Judgment reported in 2009 AIR SCW 1372 and 2009 AIR SCW 4916. The reply to this contention by the petitioners counsel is that since the policy is "package policy", it covers liability to owner-cum- driver, and as such they are liable to pay the compensation.
14. In the background of this kind of submission, it is feasible to go through Sec.163-A of M.V. Act which reads as under:-
(SCCH-3) 8 MVC 1240/19Special provisions as to payment of compensation on structured formula basis - 1) Notwithstanding anything contained in this Act or in any other law, for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the second schedule to the legal heirs or the victim, as the case may be,
2) In any claim for compensation under sub-
section (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 neglect or default of the owner of the vehicle or vehicles concerned or of any other person".
Therefore, sub section 2 of Sec.163-A of M.V. Act makes it clear that U/Sec 163-A petition the victim or claimants are not required to plea or establish that the death or permanent disablement in respect of which claim has been made was due to any wrongful or neglect or default of the owner of the vehicle concerned, or on any other person. This provision is incorporated with the object to provide speedy relief to the victims of motor vehicle accident. The non-obstante clause clearly indicates that it would over ride other provisions. The Hon'ble Supreme Court of India in Deepal Girish Bai Soni Vs United India Insurance Co., reported in 2004(5) SCC 385 has held that "we may notice that Sec.167 of the act provides that (SCCH-3) 9 MVC 1240/19 where death of or bodily injury to any person give raise to claim of compensation under the act and also under the Workman Compensation Act". He cannot claim under both acts. Sec.163-A act covers cases where even negligence is on the part of the victim and the concept of social justice has been duly taken care of. In another decision reported in United India Insurance Co., Vs Sunil Kumar in 2014(1) SCC 680, the Hon'ble Supreme Court of India has held that "we are therefore of the view that liability to make compensation U/Sec 163-A is on the principle of no fault and therefore the question as to who is at fault is immaterial". Sec.163-A does not make any provision for apportionment of the liability. If the owner of the vehicle or the Insurance Company is permitted to prove contributory negligence or default or wrongful act on the part of the victim, naturally it would defeat the very object and purpose of Sec.163-A of the act. Legislature never wanted to claim to believe or establish negligence on the part of the owner or the driver. Once it is established that the death or permanent disablement occur the course of user of the vehicle and it is insured, the Insurance Company or the owner as the case may be, shall be liable to pay the compensation which is statutory obligation.
(SCCH-3) 10 MVC 1240/1915. Even it is finally laid down by larger bench of Hon'ble Supreme Court of India in the matter of United India Insurance Company Ltd., Vs Sunil Kumar in (2019)12 SCC 398 wherein it is decided by three Judges on the reference in the case of United India Insurance Company Vs Sunil Kumar and National Insurance Company Ltd., Vs Sinitha, that "the permission to the insurer to raise defence of negligence U/Sec 163(A) of M.V. Act would be to bring a proceeding on par with Sec.166 of M.V. Act which would not only be self contradictory but also defeat the very legislative intention - thus, in a proceeding U/Sec 163(A) of the Act, it is not open to insurer to raise defence of negligence on the part of victim". Therefore, the contention of respondent No.2 that deceased himself was negligent is of no use and they are not permitted to raise such defence. In Judgment reported in (2009) 2 SCC 417 between New India Assurance Co. Ltd., Vs Sadanand Mukhi and others which is also relied by counsel for respondent No.2, it is a case where the son of the claimant died in an accident and the vehicle is owned by father, thereby the Hon'ble Apex Court rejected to regard the son of the owner as third party and declined the liability of Insurance Company and the same is not aptly applicable to the facts of this case. The other decision relied by counsel for respondent No.2 is 2009 AIR (SCCH-3) 11 MVC 1240/19 SCW 4916 wherein the Hon'ble Apex Court has held that "when the owner of the motor vehicle himself was involved in the accident, the petition is not maintainable as the person cannot be both claimant and recipient". It is right on part of the counsel for respondent to say that the claimants cannot maintain petition. This is because, in the case of Oriental Insurance Company Ltd Vs Rajni Devi and others (2008) 5 SCC 736, wherein it has been categorically held that "in a case where third party is involved, the liability of the insurance company would be unlimited. It was also held in the said decision that where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the claimant against the insurance company would depend upon the terms thereof. It was held in the said decision that Section 163-A of the MVA cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question is no longer res integra. The liability under Section 163-A of the MVA is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the MVA. In our considered opinion, the ratio of the (SCCH-3) 12 MVC 1240/19 aforesaid decision is clearly applicable to the facts of the present case. In the present case, the deceased was not the owner of the motorbike in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be employee of the owner of the motorbike although he was authorised to drive the said vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike".
"We have already extracted Section 163-A of the MVA hereinbefore. A bare perusal of the said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle. In a case wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that event the liability to make payment of the compensation is on the insurance company or the owner, as the case may be as provided under Section 163-A. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of Section 163-A of the MVA. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163-A of the Motor Vehicle Act".(SCCH-3) 13 MVC 1240/19
16. In view of aforesaid observations of Apex Court, it is clear that deceased in this case who was riding the motor cycle No. KA-03-HS 3138 after borrowing the same from owner/ respondent no.1 had stepped into the shoes of owner of the motorcycle and therefore cannot be called as third party and the liability of payment being of the owner himself U/s 163-A of MVA, the legal representatives of the deceased cannot claim compensation.
17. Even in the judgment relied by counsel for Petitioner in 2020 ACJ 627 between Ramkhiladi and another vs United India Insurance complainant.Ltd and another, wherein the Hon'ble Supreme Court has held in para 5.9 "Now, so far as the submission made on behalf of the claimants that in a claim under Section 163A of the Act mere use of the vehicle is enough and despite the compensation claimed by the heirs of the owner of the motorcycle which was involved in the accident resulting in his death, the claim under Section 163A of the Act would be maintainable is concerned, in view of the decision of this Court in Rajni Devi (supra), the aforesaid cannot be accepted. In Rajni Devi (supra), it has been specifically observed and held that the provisions of Section 163A of the Act cannot be said to have any application with regard to an accident wherein the owner of the motor vehicle himself is involved. After considering the decisions of this Court in the cases of Oriental Insurance Co. Ltd. V. Jhuma Saha (2007) 9 SCC 263; Dhanraj (supra); National Insurance (SCCH-3) 14 MVC 1240/19 Co. Ltd. V. Laxmi Narain Dhut (2007) 3 SCC 700 and Premkumari v. Prahlad Dev (2008) 3 SCC 193, it is ultimately concluded by this Court that the liability under Section 163A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient and, therefore, the heirs of the owner could not have maintained the claim in terms of Section 163A of the Act". Thereby such being the observation, the claim petition is not maintainable as the claimants have not proved that deceased is the third party. Even it is pertinent to note that in the said case two vehicles were involved. But in this case only one vehicle is involved. The Judgments relied by petitioners' counsel in 2019 ACJ 1649, 2019 ACJ 3146 though are of similar facts to this case, they are not followed as these matters were decided on 05-03-2018 and 22-03-2018 respectively, whereas the Hon'ble High Court of Karnataka in the matter of Smt.Sangeetha and others Vs Krishna Chari and another in MFA No.5537/2011 decided on 24-09-2018 has held that, "To sum up, in the opinion of this Court, a claim petition seeking payment of compensation in a road accident, by the owner of the vehicle or by any other person driving the vehicle and not being an employee, is not maintainable under Section 163A or Section 166 of the M.V. Act, before MACT. This position holds good even where the vehicle is insured for own damages and premium is paid to cover the risk of "owner-cum-driver" under (SCCH-3) 15 MVC 1240/19 comprehensive policy or contract policy. The basis for maintaining a petition, both under Sections 163A and 166 of the M.V. Act is provided under Section 147 of the M.V. Act. The difference between Sections 163A and 166 is, the need to prove negligence under Section 166 and non-requirement of proving negligence under Section 163A. The other difference is unlimited liability on the Insurer under Section 166 and payment of compensation on structured formula basis as indicated in the Second schedule of M.V. Act in case of a claim made under Section 163A. The only exception in Section 163A is that a claim petition could be maintained by an employee (or his legal heirs) being a driver/rider having to plead and prove that the motor vehicle accident was caused during the course of employment. As stated earlier, in the context of chapter XI of the MV Act, wherever the word "employee" is used, it is impliedly referable to the meaning it receives under the Workmen's Compensation Act, 1923". No doubt, the Hon'ble Supreme Court has held that the insurer cannot raise defence of negligence, but the question will arise only when who is at fault in case of more than one vehicle involved. But in this case only one vehicle is involved and the petitioners are not able to show any other grounds other than the negligence on the part of deceased. Under such circumstances, the claim petition of the petitioners is not maintainable as per (SCCH-3) 16 MVC 1240/19 the latest Judgments. Hence, I find that there is no force in the argument of petitioners counsel. As such I answered Issue No.3 in the Affirmative.
18. Issue No.4:- In view of my answer to the above Issue No.3 in the Affirmative, the petitioners are not entitled for any compensation and hence I answered Issue No.4 in the Negative.
19. Issue No.5:- In view of my finding on Issue Nos.1 to 4 as above, I proceed to pass the following:
ORDER The claim petition filed by the petitioners U/Sec 163(A) of the M.V. Act is hereby dismissed.
Draw award accordingly.
(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in open court, on this the 10th day of July 2020).
(SANTOSH SIDDAPPA PALLEDH) VII Addl. Judge and ACMM, Bengaluru.
ANNEXURE List of witnesses examined for the petitioner:
P.W.1 Madhuri Choudhary
(SCCH-3) 17 MVC 1240/19
List of documents marked on behalf of the
petitioner:
Ex.P.1 Copy of FIR
Ex.P.2 Copy of Complaint
Ex.P.3 Copy of IMV report
Ex.P.4 Copy of Inquest
Ex.P.5 Copy of PM report
Ex.P.6 Copy of Charge sheet
Ex.P.7 Notarized copy of Driving licence of
deceased Shivam Kumar
Ex.P.8 Notarized copy of Aadhaar card of
deceased Shivam Kumar
Ex.P.9 Notarized copy of Aadhaar card of
petitioner No.1
Ex.P.10 Notarized copy of Aadhaar card of
petitioner No.2
List of witnesses examined for the Respondents:
R.W.1 Navakumar.M
List of documents marked on behalf of the
Respondents:
Ex.R.1 Authorization letter
Ex.R.2 Policy copy
(SANTOSH SIDDAPPA PALLEDH)
VII Addl. Judge and ACMM,
Bengaluru.