The Oriental Insurance Co Ltd vs Smt Bhagyalakshmi on 19 August, 2020

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Karnataka High Court

The Oriental Insurance Co Ltd vs Smt Bhagyalakshmi on 19 August, 2020

Bench: N.S.Sanjay Gowda

                             1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 19TH DAY OF AUGUST, 2020

                         BEFORE

     THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA

                  MFA.No.10260/2010 (MV)
BETWEEN:

The Oriental Insurance Co Ltd
DO No-IV Hyderabad,
First floor, 6-2-976,
Pavani Estates,
Khairatabad, Hyderabad-500004
Through its Bangalore Regional Office
No. 44/45, Residency Road
Bangalore 25
Represented by its
Deputy Manager.                         ... APPELLANT

(By Sri S.V. Hegde Mulkhand, Adv.)

AND:

1.    Smt. Bhagyalakshmi
      W/o Late B. Jayashankar
      Aged about 36 years
      R/o No.760, 9th Cross
      5th main road,
      II Block, R T Nagar
      Bangalore - 32.

2.    Master Mahesh B
      S/o Late B. Jayashankar
      Aged about 12 years
      Since minor
      Represented by mother and
                                 2


     Natural guardian Respondent No.1
     R/o No.760, 9th Cross
     5th main road,
     II Block, R T Nagar
     Bangalore - 32.

3.   Sri Rajagopal T.
     S/o Veerareddy T
     Major in age
     R/o Plot No.158 Phase-II
     FCI Colony
     Vanasthalipuram
     Hyderabad - 560070.                     ... RESPONDENTS

(By Sri N. Gopalakrishna, Adv. for R1.
     R2 is minor, represented by R1
     Vide order dated 07.06.2012, notice
     to R3 is held sufficient)

     This MFA is filed under Section 173(1) Of MV Act to set
aside the judgment and award dated 27.08.2010 passed in
MVC No. 7404/2008 on the file of XVI Addl. Judge, MACT,
Bangalore City (SCCH-14), partly allowing the claim petition
and awarding a compensation of Rs. 4,31,900/- with interest
at 6% p.a. from the date of petition till the date of realization.

      This MFA coming on for final hearing this day, the
Court delivered the following:


                         JUDGMENT

The Insurance Company has filed the appeal challenging the award of compensation of a sum of Rs. 4,31,900/- for the death of B. Jayashankar. 3

2. The wife and son of deceased B. Jayashankar filed a Claim petition under Section 163A of Motor Vehicles Act contending that while B. Jayashankar was riding a motor cycle, suddenly, a dog ran across the road and in order to avoid the said dog, he lost the control of the vehicle, fell on the road, severely injuring himself and he ultimately succumbed to the injuries.

3. It is their case that B. Jayashankar was the sole bread winner and they were entitled for compensation, without going into the negligence as contemplated under Section 163A of the Motor Vehicles Act.

4. The Tribunal on consideration of the evidence adduced before it, came to the conclusion that the accident did occur on 29.12.2007 in which B. Jayashankar was killed. The Tribunal thereafter awarded a sum of Rs. 4,31,900/- as per the structured 4 formula prescribed under Section 163A of the Motor Vehicles Act.

4. Learned counsel for the Insurance Company contended that the Insurance company cannot be made liable since the accident occurred solely due to the negligence of the rider himself. He also relied upon the judgment of the Hon'ble Supreme Court in Ningamma' case reported in 2009 (13) SCC 710.

5. On the other hand, learned counsel Sri N. Gopalakrishna submitted that the issues raised by the Insurance company are no longer res-integra and the matter is covered by the decision of the Hon'ble Supreme Court rendered in the case of United Insurance Co. Ltd. V/s Sunil Kumar and Another reported in AIR 2017 SC 5710 which has also been followed by the Division Bench of this Court in MFA No. 3889/2011 (DD 11.06.2019).

6. It cannot be in dispute any longer that the question of negligence is not a issue which is germane to a Claim petition filed under Section 163A of Motor Vehicles Act. The Apex Court in AIR 2017 SC 5710 has categorically held that it is impermissible for the Insurer to raise any defence of negligence on the part of the victim in a proceeding under Section 163A of the Act. In view of the decision of the Hon'ble Supreme Court in the aforementioned case, the contentions advanced by the Insurance Company cannot be accepted. Consequently there is no merit in this appeal and the same is accordingly dismissed.

The amount in deposit shall stand transferred to the Tribunal for disbursement in terms of the award.

Sd/-

JUDGE mbb/pgg

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