Karnataka High Court
Cholamandalam Ms General Insurance ... vs Smt Anusaya W/O Dashrath Desai on 17 February, 2017
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17TH DAY OF FEBRUARY, 2017
BEFORE
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
M.F.A. No. 21665/2009 (MV)
BETWEEN:
CHOLAMANDALAM MS
GENERAL INSURANCE CO.LTD
DARE HOUSE, 2ND FLOOR, NEW NO.2
(OLD No. 234), NSC
BOSE ROAD, CHENNAI - 600 001
REP. HERIN BY CHOLAMANDALAM MS
GENERAL INSURANCE CO.LTD
REGIONAL OFFICE, 9/1, ULSOOR ROAD,
BANGALORE, BY ITS AUTHORIZED
SIGNATORY. .. APPELLANT
(By Sri. RAVINDRA.R.MANE, ADVOCATE)
AND
1. SMT ANUSAYA W/O DASHRATH DESAI
AGE ABOUT 51 YEARS,
OCC: HOUSEHOLD WORK,
R/A AT POST BELVATTI
TAL & DIST. BELGAUM.
2. JAGANNATH SHRIMANT PARANDE
AGED ABOUT 40 YEARS,
OCC: BUSINESS
R/O SUPRABHAT WELFARE
SOCIETY, BASTIWALA COMPOUND,
MAHAKALI, GUNFA ROAD, ANDHERI (EAST)
MUMBAI No. 93. ... RESPONDENTS
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(By Sri. JAGADISH PATIL, ADVOCATE, FOR R1;
R2 IS SERVED)
THIS MFA FILED U/S 173(1) OF THE MOTOR
VEHICLES ACT AGAINST THE JUDGMENT AND AWARD
DATED:04/09/2008 PASSED IN MVC NO.1366/2006 ON
THE FILE OF THE FAST TRACK COURT IV AND MOTOR
ACCIDENT CLAIMS TRIBUNAL AT BELGAUM, AWARDING A
COMPENSATION OF RS.4,12,500/-ALONG WITH INTEREST
AT THE RATE OF 6% PER ANNUM FROM THE DATE OF
PETITION TILL ENTIRE REALISATION OF THE AWARD
AMOUNT.
THIS MFA HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 13.1.2017, AND COMING ON FOR
PRONOUNCEMENT THIS DAY, THIS COURT DELIVERED
THE FOLLOWING : -
JUDGMENT
The name of the deceased is Santosh. The first respondent in this appeal Smt. Anusaya is the mother of the deceased. On 26.10.2005 Santosh was riding a motor cycle bearing No. MH02/AH7598 and fell down due to skid of the motor cycle. He succumbed to the injuries in the hospital. So his mother laid a claim for Rs.6,84,500/- towards compensation in MVC No. 1366/2006 before MACT, Belgaum. The tribunal assessed the compensation at Rs.4,12,500/- with interest @ 6% p.a from the date of petition till realisation by passing the judgment and award :3: on 4.9.2008. Aggrieved by this judgment, the insurance company has approached this Court in Appeal.
2. The learned counsel for the appellant-insurance company has argued that the deceased had borrowed the motor cycle from its real owner Sri Jagannath Shrimanth Parande, i.e., the second respondent in this Appeal. The accident took place owing to the negligence and fault of the deceased. The evidence discloses that the second respondent asked the deceased to fill up fuel to his motor bike and, therefore, the deceased having taken motor cycle for that purpose, if met with an accident on the way, he would step into the shoes of the real owner. For these reasons, the mother cannot claim compensation and the claim petition under Section 163-A of the Motor Vehicles Act is not maintainable. In support of his argument, he has placed reliance on the judgment of the Supreme Court in the case of Ningamma and Another Vs United Insurance Company Limited [CDJ 2009 SC 1028].
He argued another point that under the insurance policy, the coverage was restricted to Rs.1,00,000/- and for :4: this reason the insurance company cannot indemnify more than this limit.
3. From the respondents' side none appeared and argued.
4. The tribunal has held that since the petition is filed under Section 163-A of the Motor Vehicles Act, it is not necessary for the claimant to prove that the accident took place due to rash and negligent riding of the vehicle by anybody and also that the accident as also the death of the deceased due to the injuries sustained by him in the accident have been admitted by the insurance company as well as the owner of the motor cycle.
5. The claim made by the mother is under Section 163-A of the Motor Vehicles Act. According to Section 163-A (2), the claimant need not establish wrongful act or default of the owner of the vehicle. That means to say without having to prove negligence of the owner or the driver of the vehicle which causes the accident, the claim petition can be prosecuted. But, the Supreme Court in National Insurance Company vs Sinitha and Others [2012 (2) SCC 356] has :5: made it very clear that the negligence or neglect or fault of the owner of the offending vehicle need not be established, but the petition can be countered by taking up a defence by the respondents that the injured or the deceased himself was at wrong in the occurrence of the accident. The clear observation of the Supreme Court are extracted and reproduced below :-
"13. ..... A perusal of Section 163(A) reveals that sub-section (2) thereof is in pari materia with sub-section (3) of Section 140. In other words, just as in Section 140 of the Act, so also under Section 163A of the Act, it is not essential for a claimant seeking compensation, to "plead or establish", that the accident out of which the claim arises suffers from "wrongful act" or "neglect" or "default" of the offending vehicle. But then, there is no equivalent of sub-section (4) of Section 140 in Section 163A of the Act. Whereas, under sub-section (4) of Section 140, there is a specific bar, whereby the concerned party (owner or insurance company) is precluded from defeating a claim raised under Section 140 of the Act, by "pleading and establishing", "wrongful act", "neglect" or "default", there is no such or similar prohibiting clause in Section 163A of the Act. The additional negative bar, precluding the :6: defence from defeating a claim for reasons of a "fault" ("wrongful act", "neglect" or "default"), as has been expressly incorporated in Section 140 of the Act (through sub-section (4) thereof), having not been embodied in Section 163A of the Act, has to have a bearing on the interpretation of Section 163A of the Act. In our considered view the legislature designedly included the negative clause through sub- section (4) in Section 140, yet consciously did not include the same in the scheme of Section 163A of the Act. The legislature must have refrained from providing such a negative clause in Section 163A intentionally and purposefully. In fact, the presence of sub-section (4) in Section 140, and the absence of a similar provision in Section 163A, in our view, leaves no room for any doubt, that the only object of the Legislature in doing so was, that the legislature desired to afford liberty to the defence to defeat a claim for compensation raised under Section 163A of the Act, by pleading and establishing "wrongful act", "neglect" or "default". Thus, in our view, it is open to a concerned party (owner or insurer) to defeat a claim raised under Section 163A of the Act, by pleading and establishing anyone of the three "faults", namely, "wrongful act", "neglect" or "default". .......":7:
6. In the case of Ningamma (supra), the Hon'ble Supreme Court has observed as follows :-
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 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 :8: 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".
(underlining by me)
7. In the light of the principles laid down by the Supreme Court in the decisions referred to above, the facts of this case have to be analysed.
Nothing can be made out from the evidence of PW1 as to how the accident took place, because she is the mother of the deceased and not an eye witness. But, the owner of the motor cycle, i.e., respondent No.2 in this appeal, has stated in his written statement that he used to give his motor cycle to the deceased in connection with latter's work, and that on 26.10.2005 at about 11.00 PM he gave his motor cycle MH02/AH7598 to the deceased and paid him Rs.50/- and asked him to fill up petrol to the motor cycle. The appellant- insurance company in its written statement has stated that :9: the deceased himself was responsible for the accident. Therefore, he cannot be a victim for the purpose of claiming compensation and, therefore, petition under Section 163-A of the Act is not maintainable.
8. The appellant having taken up a contention should prove it. It has not adduced any evidence except producing the insurance policy marked as Ex. R1. But, from the documents produced by the first respondent-claimant before the tribunal it is possible to make out the cause of the accident. Ex. P6 is the statement given by the second respondent. From this statement it can be made out that on 26.10.2005, at about in between 23.15 and 23.30 hours, he was about to go out for filling petrol to his motor cycle, that at that time the deceased Santosh Desai asked him where he was going. When he told him that he was going to fill petrol to his motor cycle, the deceased himself told that he would get petrol filled up and, therefore, he gave him the motor cycle and Rs.50/- for the purpose of getting fuel filled up. After half an hour one Deepakar came and told him that Santosh had a fall from the motor cycle.
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9. Ex.P5 is the statement of Deepakar Ajit Potiyar who had gone with the deceased on the motor cycle. His statement is that he was a pillion rider on the motor cycle, that there was rainfall, that they were going speedily and when they took left turn near a cross, Santosh applied the brakes suddenly and therefore they fell down.
10. Therefore, from the documents produced by the claimant-first respondent, if it is possible to make out that the accident occurred due to sudden apply of the brakes of the motor cycle, non-else other than the deceased was responsible for the accident to take place. Another vehicle was not involved in the accident. Actually it was the deceased who volunteered to go to petrol bunk and get the petrol filled to the motor cycle of the second respondent. In these circumstances, as has been held by the Supreme Court in the case of Ningamma, he would step into the shoes of the owner of the motor cycle. Hence, for the fault of the deceased himself, there cannot be a claim for compensation under Section 163-A of the Act. The tribunal, without noticing the subtle aspect of the matter has awarded compensation on the ground that there was no need to prove : 11 : negligence. This finding cannot be sustained in the light of the principles enunciated in the decisions referred to above. Therefore, the claim petition is not at all maintainable. In view of this discussion, the following ORDER
1) Appeal is allowed. The judgment and award dated 4.9.2008 passed in MVC No. 1366/2006 by the Fast Track Court IV and MACT, Belgaum, is set aside. The claim petition is dismissed.
2) The statutory deposit and any other deposit made by the insurance company be refunded to it. There is no order as to costs.
Sd/-
JUDGE ckl