Karnataka High Court
M/S United India Insurance Co. Ltd vs Smt.Geetha.R on 30 June, 2017
Author: B.Manohar
Bench: B.Manohar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE, 2017
BEFORE:
THE HON'BLE MR. JUSTICE B.MANOHAR
MFA.NO.4221/2009(MV)
BETWEEN:
M/S UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
B.H.ROAD, SHIMOGA,
REPRESENTED BY ITS
DIVISIONAL MANAGER. ... APPELLANT
(BY SRI.A.M.VENKATESH, ADV.)
AND:
1. SMT.GEETHA.R,
W/O.LATE BASAVARAJ,
AGED ABOUT 30 YEARS.
2. MASTER SHASHANK
S/O.LATE BASAVRAJ
AGED 7 YEARS.
3. MASTER SHRAVAN
S/O.LATE BASAVARAJ
AGED 7 YEARS.
SINCE PETITIONERS 2 AND 3 ARE
MINORS THEY ARE REPRESENTED
BY THEIR NATURAL GUARDIAN
2
AND MOTHER PETITIONER NO.1
ALL ARE C/O.RANGAPPA,
CHIKKAMMA TEMPLE ROAD,
HIREMAGALURE,
JYOTHINAGARA POST,
CHICKMAGALORE.
4. VEERABHADRAIAH,
S/O.ERAIAH,
R/O.BEHIND SUNITHA CONVENT,
DODDABANDIGALLY,
R/O.VIJAYANAGAR EXTENSION,
HASSAN CITY, OWNER OF MOTOR CYCLE,
BEARING NO.KA-13/R-2891
AND FATHER OF DECEASED BASAVRAJU.
5. SMT.LAKSHMANAMMA,
W/O.VEERABHADRAIAH,
AGED ABOUT 54 YEARS,
R/O.BEHIND SUNITHA CONVERT,
DODDABANDIGALLY
R/O.VIJAYANAGAR EXTENSION,
HASSAN CITY, AND MOTHER OF
DECEASED BASAVRAJU. ... RESPONDENTS
(BY SRI.M.C.JAYAKEERTHI, ADV. FOR R1,
R.2 & R.3 ARE MINORS REPRESENTED BY R.1,
R.4 & R.5 ARE SERVED UNREPRESENTED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED: 17.2.2009 PASSED
IN MVC NO. 480/2007 ON THE FILE OF THE DISTRICT
JUDGE, PRESIDING OFFICER, FAST TRACK COURT-II AND
MACT-IV, CHIKMAGALUR, AWARDING A COMPENSATION
3
OF RS. 4,38,000/- WITH INTEREST @ 6% P.A FROM THE
DATE OF PETITION TILL REALISATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING: -
JUDGMENT
The United India Insurance Company Limited has filed this appeal challenging the legality and correctness of the judgment and award dated 17-02-2009 passed in MVC No.480/2007 by the Motor Accident Claims Tribunal-IV, Chikmagaluru (hereinafter referred to as "the Tribunal" for short) fastening liability on them to compensate the claimants.
2. Respondent Nos.1 to 3 herein filed a claim petition contending that on 01-01-2007, the husband of the first claimant and father of claimants 2 and 3 deceased Basavaraj was returning home after completing his working in a motorcycle bearing Registration No.KA-13/R-2891 belonging to the 4th respondent. When he came near Kuppalli at about 4 6.30 p.m., the motorcycle dashed against the road side bridge. Due to that he fell down to a depth of 8 feet, and sustained fatal injuries and died on the spot. In the claim petition it was contended that at the time of death, the deceased was aged about 28 years. He was an agriculturist and self employed person, earning Rs.3,000/- p.m. The family has lost the bread earner and sought for compensation invoking Section 163A of the Motor Vehicles Act ('the Act' for brevity).
3. In response to the notice issued by the Tribunal, the respondents in the claim petition entered appearance. The 3rd respondent-insurance company filed their written statement denying the entire averments made in the claim petition and also contended that due to negligence on the part of rider of the motorcycle, he died. The deceased is not the owner of the vehicle. Due to his own negligence he dashed against the bridge, fell down and died on the spot. Hence, he 5 is a tort feasor and the claimants are not entitled for any compensation.
4. On the basis of pleadings of the parties, the Tribunal framed necessary issues.
5. The first claimant got examined herself as P.W.1 and got marked the documents as Ex.P1 to Ex.P7. On behalf of the respondents, none of the witnesses were examined. However, the insurance policy was marked as Ex.R1.
6. The Tribunal, after appreciating the oral and documentary evidence let in by the parties held that while the claimant was proceeding in the motorcycle, he dashed against the bridge, fell down and died. Under Section 163-A of the Act, the claimants need not prove the negligence since the accident occurred by use of motorcycle which belongs to the 4th respondent herein. Even though charge sheet has been filed against the deceased, the insurance policy was in force as on the date of accident. Hence the claimants are entitled 6 for compensation and fastened liability on the insurance company to compensate the claimants.
7. With regard to quantum of compensation is concerned, taking the income of the deceased as Rs.3,000/- p.m., applying the multiplier 17 since the deceased was between the age group of 28-30 years, the Tribunal has awarded a sum of Rs.4,08,000/- towards loss of dependency and a sum of Rs.30,000/- towards conventional heads. In all, the Tribunal has awarded a sum of Rs.4,38,000/- with interest at the rate of 6% p.a., fastening liability on the insurance company to compensate the claimants. The insurance company being aggrieved by he judgment and award passed by the Tribunal, fastening liability on them to compensate the claimants has filed this appeal.
8. Sri.A.M.Venkatesh, learned counsel appearing for the appellant contended that the judgment and award passed by the Tribunal is contrary to law. The deceased Basavaraj was not the owner of the offending motorcycle and 4th respondent 7 is the owner of the said vehicle. While the deceased was proceeding in the said motorcycle, due to his own negligence he dashed against the road-side bridge, fell down and died on the spot. The deceased is a tort feasor, for his own negligence, the insurance company cannot be held liable to compensate the claimants. Further, the vehicle in question is a lent vehicle. The deceased has stepped into the shoes of the owner and hence he cannot seek compensation against his own vehicle. Further the issue raised in this appeal is covered by the judgment of the Hon'ble Supreme Court reported in 2009 ACJ 2020 in the case of NINGAMMA AND ANOTHER v/s UNITED INDIA INSURANCE COMPANY LIMITED and also Division Bench judgment of this Court reported in 2004 ACJ 1289 in the case of APPAJI (SINCE DECEASED) AND ANOTHER v/s M.KRISHNA AND ANOTHER. Hence the judgment and award passed by the Tribunal cannot be sustained and sought for setting aside the same.
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9. On the other hand, Sri.Suresh M Lathur, learned counsel appearing for Respondent Nos.1 to 3 argued in support of the judgment and award and contended that under Section 163A of the Motor Vehicles Act, the claimants need not prove the negligence. It is a special provision for payment of compensation on structured formula. Section 163A of the Motor Vehicles Act contains a non-obstante clause, which provides that for "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 or 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". In the instant case, while the deceased Basavaraj was proceeding in the motorcycle, due to his own negligence he dashed against the road side bridge, due to which he fell down and died. Under 9 Section 163A of the Act, the claimants need not prove negligence. Hence sought for dismissal of the appeal.
10. I have carefully considered the arguments addressed by the learned counsel appearing for the parties. Perused the judgment and award, oral and documentary evidence adduced by the parties.
11. The records clearly disclose that 4th respondent is the owner of the motorcycle. As on the date of accident, the deceased Basavaraj was riding the said vehicle and near Kuppalli, he dashed against the said bridge, fell down and died on the spot. The deceased is a tort feasor. Since, he is not the owner of the motorcycle, he cannot claim compensation under Section 163A of the Act. The Hon'ble Supreme Court, in NINGAMMA case referred to above in paragraph 18 and 19 held as under:
18. In the case of Oriental Insurance Company Ltd. v. Rajni Devi and Others, (2008) 5 SCC 736, wherein one of us, namely, Hon'ble Justice S.B. Sinha is a party, 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 10 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 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.
19. 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. 11
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 MVA.
12. Further the Division Bench of this Court in APPAJI case in paragraph 19 has held as under:
19. The right to receive compensation under Section 163-A presupposes that the person who makes a claim is a victim or the legal heirs of a victim. The provision of the plane language employed in the same does not entitled a person who is neither a victim nor his/her legal heirs to claim any compensation. In other words, one who is the victim of his own actions of rash or negligent driving cannot invoke section 163-A for making a claim. The concern of the legislature and the jurists is understandably for the victim in contradistinction to the victimizer or one who falls a victim to his own action. While road accidents generally affect innocent third parties or those making use of public transport, cases where the owner or driver of the vehicle along suffers on account of his rash and negligent driving are not uncommon. Drunken driving, speeding in what or high performance new generation of automobiles including two wheelers are accounting for a large number of accidents every day. Quite often these accidents kill or would even the person who is driving the vehicle.
Parliament did not in our opinion intend to provide for compensation to the person responsible for the accident on structured formula basis in such cases. 12 Neither the provisions of the section 163-A nor the background in which the same were introduced disclose any such intention. The argument that section 163-A is a panacea far all ills concerning the accidents regardless of whether the person who is killed or injured is or is not a victim must therefore be rejected.
13. In view of the authoritative pronouncement of law by the Hon'ble Supreme Court as well as this Court, the deceased was a tort feasor, there is no technical problem to the said vehicle, on the other hand, the deceased himself dashed against the bridge, fell down and died. He was not the owner of the said vehicle. Hence, the insurance company is not liable to compensate the claimants. The judgment and award passed by the Tribunal cannot be sustained. Accordingly, I pass the following:
ORDER The appeal is allowed. The judgment and award dated 17-02-2009 passed in MVC No.480/2007 by the Motor Accident Claims Tribunal, Chitradurga is set aside. The claim petition filed by the claimants is dismissed.13
The amount in deposit is directed to be refunded to the appellant.
Sd/-
JUDGE mpk/-*