Karnataka High Court
The New India Assurance Co Ltd vs Smt Jayashree Nagesh Bedhewant on 6 March, 2014
1 MFA 13712/07
IN THE HIGH COURT OF KARNATAKA
GULBARGA BENCH
DATED THIS THE 6TH DAY OF MARCH, 2014
BEFORE:
THE HON'BLE MR. JUSTICE A.S.PACHHAPURE
MISCELLANEOUS FIRST APPEAL No.13712 OF 2007 [MV]
BETWEEN:
The New India Assurance Co., Ltd.,
Bijapur,
Rep. by Regional office,
No.27/B, Unity Building Annex,
Mission Road,
Bangalore-560 027,
By its duly constituted Attorney. ... APPELLANT/S
[By Sri. C.R.Ravishankar, and
Sri. Sudarshan, M., Advs.]
AND:
1. Jayashree Nagesh Bedhewant,
Aged about 32 years,
W/o. late Nagesh Bedhewant,
Occ: Household work,
R/o. Jorapurpet,
Bijapur.
2. Suresh Sidram Dudagi,
Age: major,
Occ: Owner of Motorcycle,
R/o. No.7/25, Kavitha Nagar,
2 MFA 13712/07
Police Line,
Solapur. ... RESPONDENT/S
[By Sri. Avinash A.Uplaonkar, Adv. for R1.
Notice to R2 is served.]
***
This MFA is filed under Section 173(1) of M.V.
Act against the Judgment and Award dated 22.06.2007
passed in MVC No.27/05 on the file of Member, MACT-
III, Bijapur, Awarding a compensation of
Rs.3,82,000-00 with interest at 6% p.a. from the
date of the petition till deposit.
This MFA coming on for Final Hearing, this day
the Court delivered the following:
JUDGMENT
The insurer has challenged the Judgment and Award granting compensation to the 1st respondent for the death of her husband-Nagesh, in the road traffic accident.
2. The facts reveal that on 02.05.2004 at 10.30 p.m., Nagesh [deceased] was riding the motorcycle bearing reg. No.MH-13-Z/3655 with his friend, who was a pillion rider and on the way, he 3 MFA 13712/07 suddenly applied the break and as a result, the vehicle skidded and Nagesh sustained grievous injuries. He was admitted in the hospital, where he died on 14.05.2004. His wife made a compensation for loss of dependency and on other conventional heads.
During the course of the enquiry, the claimant was examined as P.W.1 and in her evidence, Exs.P1 to 4 were marked. No witnesses were examined by the respondents.
The Tribunal after hearing the counsel and on appreciation of the evidence on record, allowed the claim petition filed under Section 163-A of the Motor Vehicle Act [hereinafter referred to as "M.V. Act" for short] and granted compensation of Rs.3,82,000-00 with interest at 6% p.a. from the date of the petition and directed the appellant/insurer to pay the compensation. Aggrieved by the Judgment and Award, the present appeal is filed.
4 MFA 13712/07
3. I have heard learned counsel for the appellant/insurer. Learned counsel for the 1st respondent is absent.
4. The points that arise for my consideration are;
1) Whether the claimant could maintain a claim under Section 163-A of the M.V. Act for the negligence of the deceased?
2) Whether the appellant/insurer is
liable to pay the sum of
Rs.3,82,000-00, the compensation
awarded by the Tribunal with
interest at 6% p.a.?
5. Learned counsel for the appellant submits that the claim petition under Section 163-A of the M.V. Act is not maintainable on the ground that Nagesh [deceased] was riding the motor cycle at the time of the accident and the accident occurred due to his negligence. Learned counsel further submits 5 MFA 13712/07 that in such circumstances, the petition under Section 163-A cannot be maintained.
6. The perusal of the evidence of P.W.1 would reveal that she is not a witness to the accident. Her evidence is hearsay so far as occurrence of the accident is concerned. Ex.P1 is the copy of the complaint and Ex.P2 is the copy of the spot-mahazar. The perusal of the complaint would reveal that on the date of the accident, Nagesh [deceased] was riding the motorcycle in high speed and when he abruptly applied the break, the vehicle skidded and thereby in the accident he sustained grievous injuries. He was then shifted to the hospital, where he died in the course of the treatment.
7. So far as the claim petition under Section 163-A of the M.V. Act is concerned, the application under the said provision is covered under Chapter XI relating to the insurance of motor vehicles against third-party risks. It is relevant to note that under the aforesaid chapter of the M.V. Act, the 6 MFA 13712/07 claimants have a right to claim compensation both under Sections 163-A and 166 of the M.V. Act. So far as the claim under Section 166 of the M.V. Act is concerned, it is necessary for the claimants to establish the negligence on the part of the rider of the vehicle and the claimant must be a third party. So also, a claim under Section 163-A under the aforesaid chapter of the M.V. Act could be maintained only by the persons, who fall within the purview of third parties and as the accident in question was due to the negligence of Nagesh [deceased], a petition under Section 163-A of M.V. Act cannot be maintained.
8. Reliance is placed on the Judgment of this Court reported in 2009(3) AIR Kar. R 412 (DB) [Oriental Insurance Co. Ltd., Bangalore Vs. Sharada G. & Ors.] wherein the similar set of circumstances, this Court has taken a view that a claim under Section 163-A of the M.V. Act cannot be maintained by the claimant, who is solely responsible for the 7 MFA 13712/07 accident. To mean, a claim cannot be maintained under Section 163-A of the M.V. Act. But, anyhow, under the provisions of Section 140 of the M.V. Act, the claimant is entitled to a sum of Rs.50,000-00 under no fault liability, which is a benefit extended to the legal representative and despite any negligence on the part of the rider, the claim could be maintained under Section 140 of the M.V. Act. Therefore, I am of the opinion that the respondent herein is entitled to Rs.50,000-00 with interest at 6% p.a. from the date of the petition till its payment and her claim under Section 163-A has to be rejected. Hence, the points are answered in negative.
Consequently, the appeal is allowed in part. The impugned Judgment and Award are set aside. The 1st respondent/claimant is entitled to Rs.50,000-00 with interest at 6% p.a. from the date of the petition till its payment under Section 140 of the 8 MFA 13712/07 M.V. Act and the appellant/insurer shall pay the same within 6 [six] weeks from today.
The amount in deposit before this Court be transmitted to the jurisdictional Tribunal and after satisfaction of the claim of the 1st respondent, excess amount, if any, shall be paid to the appellant/insurer.
Sd/-
JUDGE.
Ksm*