United India Insurance Co Ltd vs Ningamma on 29 September, 2010

[Cites 5, Cited by 2]

Karnataka High Court

United India Insurance Co Ltd vs Ningamma on 29 September, 2010

Bench: V Jagannathan

IN THE HIGH COURT OF KARNATAKA.
CIRCUIT BENCH AT GULBARGA

DATED THIS THE 29'1"" DAY OF SEP'I'EMBER."u

BEFORE

THE HON'BLE MR. JUSTICEv.V*'JEAGA':§§i'\'@Li5§iI§N  

BETWEEN

UNITED INDIA INSURANCE   >

Co. LTD, BAGALKOT BRANCEQT'-..V_ 
THROUGH ITS REGIONAL OFFICE, 
# 25, SI1ANI<.ARANARA'I*ANA'-I    '
BUILDINGS, M.G. ROAD,  I  "
BANGALORE ~ 560 001;  ~ 

REP. Ef{"I*fS I vIA'NAGERI,""
SR1 P.S:,_ cI--I~HuA,S;A.'VI _  ~ . ...APPELLANT

(BY SR1 II/IANVENDRA REEEY, ADI/.,)

I Am1 

  I ., VS'IvfT:""'NIN'GAMMA,'éA
 W/Ow SR1 'RANIARRA @

P,A;MAN~NfA.,VKAB.BINDA.
AGED ABQLijIT"29 YEARS,

 4 ',2. SRIHVMAHANTESH.
*  VS/Q RAMAPPA @
- _ v.IjRA:\/{ANNA KABBINDA.
1. AQEI3 ABOUT II YEARS,

M.F.A. NO.4152 OF      



¥d

SINCE MINOR. REP. BY HIS
MOTHER AN E) NATURAL
GUARDIAN '1 5'? RESPONDENT.

BOTH ARE R/AT' GUDUR {S.B.)
HUNAGUND TALUK,
BAGALKOT DISTRICT.   

3. SR1 PARANAGOUDA.

AGED ABOUT 40 YEARS, A 

s/0 DURGANAGOUDA PA'l'IL.,__ A

R/AT GUDUR [S.B.}, 

HUNAGUNDA TALUK,  _ , H --.    
BAGALKOT DISTRICT.-._f~   A I "~.__'»,_L..RESiPONDENTS

{BY Sm BABU H.VME'rAgErDDA__'ADV;  R1;
SR} A B NANEIAPPA, ADV,.{_VFOR"R3}VV ' 

    .

THIS' M.,.jE.A.  E'1LED UNDER SECTION 173(1) OF
MV ACT ._AGAINST  JUDGMENT AND AWARD
DATED 9.2.2005"PASSED_I,N' MVC NO.896/00 ON THE
FILE OF__ "THE 4M»E'1'v:BER, MACTJ/I, BIJAPUR.
AWARDING"'C_()MPEN.SAl'lON OF RS.2,59,80O/W WITH

 _ lNTE.?RES'1' AT 8%' 1>.A¢.,

.V'i'E;11'AS'«1z\/{*;.F.A. COMING ON FOR HEARING, THIS

 {DAY *rs1jEEDAcOVLI1%§T DELIVERED THE FOLLOWING:

JUDGMENT

2 appea} is being heard after remand by the A Apex Caurt: in CM} Appeai NOs.3538/O9 and 3540/09. %"

K ;>

2. The appellant United India Insurance Company Limited cha.1lenged the award passed by the l\'I_;'J:{7p'l7_4l_iinVV MVC No.89(:'>/2000 and the tribunal had etllVowed§"c:'the-.--T~ said claim petition which was f11edAA»by4 the wifefand dsone-,_V it of deceased Rarnappa. On proceeding in a motorcycle'.l§;r'a;29/E~Ie_82é3»?L'-.1fron'1'w~lll<al " it towards his native Gudur ontlie aﬁbulloek cart suddenly stopped who was proceeding against the bullock rod. On account of the Ramappa died on the claimants filed the claim petition under_:VSe.c'-tio'11 V1"63~A of the Motor Vehicles Act ._allowe'd"the claim petition by awarding the said award was called in question by '-the v_vpreiseAnt appellant before this Court earlier in N;3.4152/2005.

%/ i £

3. This Court by its judgment dated 8.8.2007 allowed the appeal prefer.1'ed by the Insurance and set. aside the award and directed the 'c1II1i3:uI}ir _ refunded to the Insurance Cornpe-.ny».._< Inf i::'ourse_rVofi'._V V its judgment this Court held the Claimant was more than "ihe claim petition under xizvould V-':§I1O'[ be maintainable. This of the Apex Court decision Case (2007 (2) TAC 41579 S:-fases to hold that the Claim up the matter before the ApexA.--Co11rif' ahove mentioned Civii Appeai

- 29.09 é.n'¢1"354o/ 09. The Apex Court by its remanded the matter to this Court t(}*ree.onsider the decision in accordance with law.

ishow this appeal is being heard once again by C. i;:hi's Cot:1ri':.

5. The facts of the CEISE leading to the foilowing of the claim petition are not in dispute. The niottzriayele did not belong to the deceased Ramappa_ Bizf'4i'£V_';'%3I§§.S'.___ _ owned by Paranagouda who was ..i'..h_e first"re:s'poi1dent_. "

before the MACT. The fact that bullock cart and on aeeountiioV:f"'t.hat fatal injuries and died is also not in controversy. "I' by the parties is that under 163--A of the i .ad.mitt.ed facts this Court has to now consiiclerthe;issu'es which have been referred to A' by vtkis jA~-pex the course of its judgment. while 'ren'1a1'1dvir1.g*..thve case to this Court. It is therefore tijairefei' to the reievant paragraphs of the '._Ape>i judgment at this juncture. The relevant A f"paragraphs are para 25 and 26 and they read as under:

%* « o 6 " 25. Undoubtedly; S€C{'.iOI"i 166 of the MVA deals with "Just. Compensation" and even if in the pleadings no specific: claim sways made under Section 166 of the MVA, l'i7l1jO{.i:E7.li: 3 considered opinion a partymshoulcll not=fi'ee''' ' deprived from getting "Just_ C=;3mpeI'e1satilon""~':~-.,,__ in case the claimant. is able to "makevoutil a case under. any p1*ovisior1e<s.of law. l\leedless".toW say. the MVAV be.n'eiie_iall'l,and llwelﬁare legislation. in faetil bound and entitled to award. 'Corrl-pensation"

lTT€Sp€Clill7lé::::V~tlifl fact plea in that "r--a.isle~{.l__ claimant or not:-V ~er.._nlot the claimants vlrould' with the terms and eon-;l_it.i_ons=.of'-t_he_""ir1suranee policy and _Wheth'er_:or .ri'otl"thle'".provisions of Section 147 .,l.:tl'1e_e MVA-.....w'ould be applicable in the ._prese'n,t""ease and also whether or not there negligent driving on the part of A tihe'deft:eased, are essentially a matter of fact w_hj:..::h was required to be considered and it it ~._answered at least by the High Court. *3:

26. While erit:ertaining the appeal. no effort was made by the High Court to deal with the aforesaid issues. and therefore. we are of the considered opinion that the it present: case should be remanded batik the High Court to give its decision " on ::t..he=, ' aforesaid issues. The it required to consider the aforesaid ivsstxes even if it found that the.V_V:;')rovisio11_ of 163-A of MVA was not to'1'heV_taVet;s and eirc'umstane.e's-- oft "..__prestent1 case.

Since all the aforesaidVisisures' purely questions to deal with these 'i_ssf11es_:afi.d w"ef[sen.d the matter to for dealing With the said .__issues._ and :_4"to:"';'"ender its decision in aeeordaneeV.Withv_1a\kr. The High Court wi.1l ._"°a1so' e_onsidei<.....the question of quantum of _V COI1'1p'C1fv}S*~af[i0I1. if any, to which the claimants b.e'v.ent:it1eci to, having regard to the 'eapaeity of the deceased and "Just C~or1"§pe11sa€:ion"_. if any. Since the claim is a it old claim, we request the High Court to '' ttorisidei" the matttier as expeditiously as possibie. "

e

7. Learned counsel Sri Manvendra Reddy for the appellant Insurance Company eonttended that though the matter was remanded t.o this Court. to C0I}Si€iE:}7_.:"ih"€.,' issues which are raised in para 25 above. ' Cmirt 111 the course of its judgme11t'~ia.s&c1e§ard1d§"ii,el claim petition under ]63~A is not'.maiif1t.ainabie_ this connection learned eoui1s.e'1"~.referred t'he"'~--rei'e'vant paragraphs of the judgrnent,="it--..i:s 'therefore'-eoiitended by him that ease dd made the observation ftheﬁbpetitionA"~~d.ii;gnVderf' :168«A is not maintairiablde' it the Apex Court has also held that Rarnappa though was not the owner of iniotoreyiele, having borrowed the same . theT'*re'a}« owndeifwtvhe deceased would step into the s.ho,es ' owner. Referring to the said i is submitted that the liability put. on the db"-.Vapp;e1lant eonipaiiy be set aside as the claim petition not niaintairiabie tinder 163-A of the MV Act. % .3 ;-

9

8. On the other hand, learned counsel Sri Babu H Met.agu_dda for the elainiants contended that even if the petition is filed under 163A of the MV Act, the it_1sure.;_' cannot escape liability in Vl€'.\N of Section II(3l3l_ofl . Motor Tariff Rules as the Insu1'2u1ce,VCompéinyis, loound, "' t.o indemnify any driver who is driVing'th*e vehicle ol1i"it.heT1.e_' insureds order. He also referred toASeC:tio1*1b._E3é1${Ul.(VC}i of the Insurance to coI1ten..d'T..hat ti'1e_ter_ri1s and conditions of the Insurancel'--poli{::yz"a;re»'i3i_nding on the insurer. In additio_n counsel also referredlltloll eourt in M/s.Orienta1 Insuranee Smt. Salma and others (2008_K,AR l\l/l';A:§C...f322v.(KAR) 1 and to the decision of the Deej5éillvGirishbhai Soni and others .Vs. lltfniteldi' Insurance Co. Ltd., (2004 ACJ 934) and I'ir:1sll.y t.o~*t1v§eAldeeisio11 of the Apex Court. in Oriental ll"4"~..l:I'1*;s1,i1'anee:' Company Lt(:l., .Vs. Meena Variyal and others , M.A.C. 487 [SC]} as well as the decision of the Apex Court in Mariaging Director, Bangalore ,9"! 3% 10 Metropolitan '1'ransport Cor'porat.ion .Vs. Sarojamnia 0-u:L and others (2008 KAR M.A.C. 475 (SC) ), submission made is that under 163A of the MV Act: it necessary to establish any riegiigence on t11e_p:a1't.A ~ driver. He aiso placed reliance on ,€lD.QtIh€ff rliiiiég of it Court reported in 200?' KAR M.A;Q'C. the point that even if the I63--A is attracted. , As "qu.an,ti§1,1rn of compensation is ttonceinedii'vttiotirisel for the claimants arg1.ie.d' over the amount'i'aiﬁia1=died bf tIhe'tribunal'§"V

9. . the : ..the aforesaid submissions putforW_ard,4"-the .point_ for consideration is, whether '""Insur_a'mf,fe (3ompany""'can be said to be liable in the "instant: it '_.

Apex Court while remanding the case to this com~t:. in civil Appeal i\§Os.. 3538/09 and 3540/09 at para 25 of its judgment that this Court 'X

2. if ',9 will have to consider the issue as to whethe1"__tl1e clairnants would be governed with the t.e1~n1s*,fané_ conditions of the Insurance policy and whether * the provisions of Section 147 of "'v$or._l1.l'(:!.4_'_';_7e applicable in the present. case and aiso"whet_her or"r1olff.. there was rash and negligent -,c:ii*iyingi'on the deceased. At the sametiine r'e.f_erring*to facts of this caselxas held that Apex Court in Oriental Instnfa:I1.ee Rajani Devi and others;' of the MV Act relatingitolloti,}i;;§;r«vl:o't""'vehilelelaslllallyherson eaI1't be both elairnantarlel of an accident wherein the owner the Inotoif Vehicle himself is involved. The 'l it {went "on to observe that the said decision further is no longer res integra. Liability unCle.r Set:~tiolr1AlV163~A of the MV Act is on the owner of the jvehiele. So a person cannot be both a Claimant also i.Aa--..VVr'e.c*.iAj3ient, with respect to the elairn. Therefore the 35:

heirs of the deceased couid not have n1ai11ta.i11ed a eiaim in terms of Section 163--A of MV Act.

11. After having observed thus by referring;to:'ft.he_ decision in Rajani Devfs ease and referring * of the present case, Apex Court has made' A observations: V p " In the present Ca_Se.,__.the' 'deVeease'd"ﬁ;{a«s..

not the owner of the in':-pjeetior}. He borrowed theéaid from its['rea1 owner. The deceased' to be e1;1pt1'6yeg}p-, A xfrtejtj ' ' A of" the motorbike although to drive the said V€hiC}3__4by_itS therefore, he would 'grep. into= shoes of the owner of the A "'r~-rr1Cs'torbike".

.e1Ag'a.in» in paragraph No. 19 the Apex Court. has new mugs "

V : ''V4We have already extracted Section " of the MVA hereinbefore. A bare

-perusai of the said provision wouid make it 'fer explicitly clear that persons like the deceased in the present: case would step into the shoes of the ()W"I1€l' of the vehicle. in a wherein t:he victim died or where he - permanently disabled due to an accicilenti' arising out of the aforesaid m»ot.or veh1ttlefi1i'~. ' that event the liability to the compensation is _ on 1ns1i,:=:;u'§~:e company or the owner.-..a's~._pthe.'Ca_se.;fnay"~--he' as provided under Sectionuil»»6_3aA. But. proved that the A{:lr:i'ver--'_VAis;V- .tth'e.__'oivvr1er of the motor vehicle, in could not himself be all reei_:pient'~..lof_Vconipensation tojlpayﬁ t.hve...sjame is on him. This --_ clear on a reading of the MVA.

_A(:eor(iing:ly,_t~he'*.legal representatives of the stepped into the shoes of of the motor vehicle Could not compensation under Section A 1 6v3~--Avl'o*i'Althe MVA".

13." In para 20 the observations made by the Apex I V.:Cc)1irt.iare also very 1'e}eV'a1"1t, and they are as under:

&:

:

" When we apply the said principle into the facts of the present. case we are of the View that the Claimants were not entitled to claim compensation under Section 163--A.._of..'*f; the MVA and to that extent. the High it was _just.i£ied in coming to_..t.,h_e cc.{i1(ffL'1si;ori''' ' that the said provision is riot the facts and circumsta_r1ces«'----o_f'the case. However, the question whether an ap;p.1icatiVonderriand compensation haVe?.i.»Eivee'rjjv'v:riade by the legal repreesentativeis as providediri' of

14. Thus A.e1ear'=frorr1 the aforesaid observations of the Apeidi ;ir1ac_le'i,.r~i the instant case on facts that decease»d...has borrowed the motor bike from '-the deceased would step into the shoes oi" the motor bike and Consequently a "V.petitiondb1'mder 163--A will not be maintainabie. The ':9 observation of the Apex Court in para 20 thatfto ?\ extent" of this Court having held that 1_63»A petition ea:

/) 1 is not: maintaihabie, the High Court was justified in Coming to the said C01"1CiL1s1'()n.

15. It is therefore clear from observmions of the Apex Court. t.hat-a.t V place in the course of its j11dgmen't".Aﬁ.eX has' that petition under Section.

In View of the aforesaidzvcategerteait"ehsert?ét;tQn;; made by the Apex Court the preset case, in my the under 163--A therefore caI'1r1e_t---- be Said'-tTe:i13§i_»xjtain abie. As referred to by the learned eeizrisei for 'theﬁespondents - claimants are A_c0neeicne_d, in the Diyision Benchis ruling of this Court 'V..Air:v.,VOri.e1<3.t.a~I"E»riSu_rance Company .Vs. Srnt. Saima and others, of the Apex Court in Rajani Devfs 'ease hrzdteehrs) sec 736), the Apex Court decision m XNewt"h¢1dia1 Assurance Company .Vs. Sadanahda _ML1kti "'."{2QO9 (2) SCC 417) were not considered and so :s1£s() the "

question of the driver of the Vehicle stepping into the shoes of the owner of the motor vehicle was also__._not considered. In the other decisions referred to learned counsel for the respondents ~ elainiantsl:'ont:e""1 "

again the emphasis was on the expression 0_f.t'rI1f'¢ viet.i'in7--. but not as regards the situation where"'the., himself was driving the vehiele..l,:f:'i'r.ithe 'driirer who borrow the Vehicle' and the islioesé of the owner were involved. ' ldﬁlvenwthe __.'ref_eVrVenee made to Section 11(3) of ..t"i3e Indian also cannot be @?iinto"'ser\fiee1";Vii1 _tfh.e'instant case as the said rule will have. to be context of the provisions contained in'E3eetion of the Motor Vehicles Act. the-----above circumstances, particularly, the observations made by the Apex oc§i,~¢'t'tin Appeal NOs.3538/09 and 3540/09, I of theiview that the claim petition under l63~--A is it "not._niai1ita1iiia1ble as deceased Ramappa steps into the 2/ shoes of the owner of the niotoreycle and ('.OI1S€QE,1€'1]l.ly no Claim petition can be mairitained by the eiaim_a__ni.s agamst the owner. in so far as the issues Whteh. required to be considered by this Court hatri115g"regard'r H the observations made in para 25" 'of. the Ap:e:?.._Cot1:rtl"-V judgnient are eoricerried, it has 'that' claim petition is not filed und'e.r"lt66 oi The terms and conditions vof._t.he poiieyalso does not permit the insuredltolriiaihtaiiiplv'thievlelaim petition against. his town ir1s_urer..~' in hrie-sp_eet of his own negligerieenf 'Asffarl factor is concerned. the Very inaririerfj-» "accident occurred itself explains to who In other words, the fact that the motorcycle diiiveri by Ramappa hit the bullock

-v..pca1'tv»W.hiei1 was"goi_n'g.vahead itself explains as to who V \i;%as_Iﬁegl'ig{ei1tt'.;ind it was none other than Ramappa, the Vdrilxzerl 'o.f'"th'eVfmotoreyele. Having thus answered the issues whieh--_.l*1ave been referred to at para 25 of the 'Apex Cotirt. decision, in my View the claimants therefore Ex :5 18 are not eiigible for any eompensation in a petition ﬁled by them under 163-A of the Motor Vehicles Act.

18. Notwithstanding the aforesaid V' made to the effect that Claim petit.j-ori under rnaintainable in View of the Catlegorleal made by the Apex Court Cvivilt reference yet this Cou-1't_ ais(;2i"'C:cvA3't.lni1f1'(VV)V'&a._.1'ose"'sight; of the observations made in Q1:-4 Apex Court has obserVed§..that_'.thedwiiétigtl consider the question of if any, to which the c1ai:inantsVniiVigh,»t."b§:"€n't--i.ti'ed to, having regard to the earning ta_paeity_ of deceased and "Just Comp§g;nsi21tion't'; "if :any_ Therefore as rightly submitted A":_Vby;"t}1e counsel Babu H Metagudda for the c:w(fn;1n£s' Section 140 of the Motor Vehicles Act wiil be entitled to €50,000/~ in case of it "v~:Geat}'s«--..Aan1d having regard to the afei~=esa=iei provision of ""'l21ix; <.:oI1tai_z1ed in Section 140 and the Apex Court in w ye 19 Niiigamma and another .Vs. United India iiistiraiaee Co. Ltd, (2009 AC} 2020) also having observed that. a party should not be deprived from gettiiig just ctimpen-Vsat'io:fivv.. in case the claimant is able to make out a i any provision of law. in my \»'ieW"the'«-only provision-Tof law that can come to the aid of Section 140 of the M.V. Act. liayiiig the facts and circumst.arices,_of partictilar the observations made by the-T-iiiipiexjt Coi1rtyi§7hi_1e remanding the casejwithoutiioeiiigicitedeas"atgifecﬁﬂiérit in future, in the instant' thieii'Iris=;§ranee"CVompany is directed to pay ?.5()vx'.--QC)O/¥ as if the claim is made under Section iiiﬂof Act.

he aA15pe---ai«"is therefore disposed of in the "'.€tbvO\%€'I.é'iTi3;1f3§"F01' the aforesaid reasons While setting"

aside"the_:iCih_r}5e1i1satic)n awarded by the tribunal to the T"-..«._'e1aimants;1- the appe}1ar1t Insurance company shall pay 350,000/-- to the elairnants as if the claim 4% 20 is made urlder Sectiion 14-0 of the MV Act. cIa.in1a11t:s are an liberty {to withdraw the e1I110_{:;1ft'-«.Vi"n' deposit. EXCESS amount if cleposiiied by t1'1e f11s.uVr21iicé* V' company be refunded to it.

20. Appeal stands disposed % EUDGE YKL/~

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