Karnataka High Court
G Roopa vs Shri N S Krishna Murthy on 24 October, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC:45512
MFA No. 7439 of 2015
C/W MFA No. 1347 of 2015
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.7439 OF 2015(MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO.1347 OF 2015(MV-D)
IN MFA No. 7439/2015:
BETWEEN:
G. ROOPA
W/O LATE VENKATESH,
AGED ABOUT 44 YEARS,
R/AT NO. 940, 6TH CROSS,
2ND BLOCK, BANASHANKARI 1ST STAGE,
BENGALURU-560 050
...APPELLANT
(BY SRI MAHADEVA SWAMY P., ADVOCATE)
AND:
1. SHRI N.S. KRISHNA MURTHY,
Digitally signed
by RAMYA D NO.940, 6TH CROSS,
Location: HIGH BANASHANKARI 1ST STAGE,
COURT OF
KARNATAKA BENGALURU-560 050.
2. THE MANAGER
THE ORIENTAL INSURANCE CO. LTD.,
INDIAN MUTUAL BUILDING,
NO.221, 1ST FLOOR, CUBBONPET,
MAIN ROAD, N.R. SQUARE,
BENGALURU-02
...RESPONDENTS
(BY SRI B.S. UMESH, ADVOCATE FOR R2;
V/O/D 22.08.2019 NOTICE TO R1 D/W)
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NC: 2024:KHC:45512
MFA No. 7439 of 2015
C/W MFA No. 1347 of 2015
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 12.12.2014 PASSED IN MVC
NO.6528/2011 ON THE FILE OF THE 12TH ADDITIONAL SMALL
CAUSES JUDGE, MEMBER MACT, BENGALURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO. 1347/2015:
BETWEEN:
M/S. THE ORIENTAL INSURANCE COMPANY LIMITED
INDIAN MUTUAL BUILDING,
NO.221, 1ST FLOOR,
CUBBONPET MAIN ROAD,
N.R. SQUARE, BENGALURU,
THROUGH ITS REGIONAL OFFICE
LEO SHOPPING COMPLEX, NO.44/45,
RESIDENCY ROAD, BENGALURU-25
REP. BY ITS REGIONAL MANAGER
...APPELLANT
(BY SRI UMESH B.S., ADVOCATE)
AND:
1. G. ROOPA
W/O LATE VENKATESH
AGED ABOUT 44 YEARS.
VENKATALAKSHMAMMA
W/O LATE N.G. SRINIVASA
DELETED AS PER ORDER DATED 21.10.2014
SHE IS NOT MADE PARTY AS SHE WAS
DELETED BEFORE THE TRIBUNAL
THE RESPONDENT NO.1 IS
R/AT NO.940, 6TH CROSS, 2ND BLOCK
BANASHANKARAI 1ST STAGE,
BENGALURU-560 050
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NC: 2024:KHC:45512
MFA No. 7439 of 2015
C/W MFA No. 1347 of 2015
2. SHRI. N.S. KRISHNA MURTHY
AGE MAJOR EXACT NOT KNOW TO APPELLANT
R/AT NO.940, 6TH CROSS,
BANASHANKARAI 1ST STAGE,
BENGALURU-560 050
...RESPONDENTS
(V/O/D 02.01.2018, SERVICE OF NOTICE TO R1 H/S)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 12.12.2014 PASSED
IN MVC NO.6528/2011 ON THE FILE OF THE 12TH
ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT,
BENGALURU, AWARDING A COMPENSATION OF
RS.50,000/- WITH INTEREST @ 6% P.A FROM THE DATE
OF PETITION TILL ITS REALIZATION.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
ORAL JUDGMENT
M.F.A.No.7439 of 2015 is filed by the claimant for seeking enhancement of compensation.
2. M.F.A.No.1347 of 2015 is filed by the Insurance Company challenging the judgment and award of granting compensation amount of Rs.50,000/- to the claimants. -4-
NC: 2024:KHC:45512 MFA No. 7439 of 2015 C/W MFA No. 1347 of 2015
3. The deceased while driving Maruthi Car bearing registration No.KA-05-Z-9527 towards Bengaluru from Thirupathi on Chittoor-Bengaluru road at about 10.30 a.m., on 16.07.2011 died in an accident due to his own rash and negligent driving. Therefore, the claimant being the wife of the deceased has filed claim petition under Section 163-A of the Motor Vehicles Act (for short, hereinafter referred to as M.V. Act). The Tribunal has awarded a compensation of Rs.50,000/- under Section 140 of the M.V. Act.
4. Therefore, the claimant has preferred the above appeal for seeking enhancement of compensation, whereas, the Insurance Company has filed appeal by contending that under Section 140 of the M.V. Act, the owner alone is liable to compensate but not the Insurance Company. Hence, saddling burden on the Insurance Company to pay the above said compensation is not correct. Hence, the learned counsel appearing for the -5- NC: 2024:KHC:45512 MFA No. 7439 of 2015 C/W MFA No. 1347 of 2015 Insurance Company prays to modify the liability by fixing liability on the owner of the vehicle.
5. The learned counsel for the Insurance Company submits that by going through the provisions under Section 140 of the M.V.Act, it indicates that it is the owner alone who has to pay the compensation but not the Insurance Company; by indemnifying the owner, whereas, the compensation is awarded under Section 140 of the M.V. Act, under no fault. It is argued that the Insurance Company is not liable to indemnify the owner as per Section 140 of the M.V. Act.
6. It is the submission of the learned counsel for the claimant that under the insurance policy, there is coverage of personal accident claim and as per this, the claimant is entitled to a sum of Rs.1 Lakh. Admittedly, the insurance policy is a comprehensive policy and was in force as on the date and time of the accident and for personal accident coverage, the claimant is entitled for a sum of Rs.1 Lakh and he has placed reliance on the -6- NC: 2024:KHC:45512 MFA No. 7439 of 2015 C/W MFA No. 1347 of 2015 judgment of the Hon'ble Supreme Court in the case of Ramkhiladi Vs. the United Insurance Company1.
7. It is also another submission made by the counsel for the Insurance Company that under the personal accident coverage, only the owner cum driver, which means, while the owner driving the Car met with an accident alone is entitled for compensation under the personal accident coverage but not by any other person. Therefore, it is submitted that, in the case on hand, the deceased is not the owner of the Car but has borrowed the Car and met with an accident. Hence, on this ground also, he submitted that the claimant is not entitled for compensation under the personal accident coverage.
8. Admittedly, the insurance policy issued in the case is comprehensive policy and sum assured under the personal accident coverage is Rs.1 Lakh. The insurance policy was in existence as on the date of the accident. The deceased was not owner of the Car, but he has borrowed 1 (2020)6 SCC 550 -7- NC: 2024:KHC:45512 MFA No. 7439 of 2015 C/W MFA No. 1347 of 2015 the Car from the owner. Then, the deceased being a borrower of the Car has stepped into the shoes of the owner. Therefore, the personal accident coverage is also applicable to the borrower of the vehicle. On this ground, I place reliance on the judgment of the Hon'ble Supreme Court in the case of Ramkhiladi (referred supra) wherein also under the similar set of facts and circumstances, it is held at para No.9.8, which reads as follows:
"However, at the same time, even as per the contract of insurance, in case of personal accident the ownerdriver is entitled to a sum of Rs.1 lakh. Therefore, the deceased, as observed hereinabove, who would be in the shoes of the owner shall be entitled to a sum of Rs.1 lakh, even as per the contract of insurance. However, it is the case on behalf of the original claimants that there is an amendment to the 2nd Schedule and a fixed amount of Rs.5 lakh has been specified in case of death and therefore the claimants shall be entitled to Rs.5 lakh. The same cannot be accepted. In the present case, the accident took place in the year 2006 and even the Judgment and Award was passed by the learned Tribunal in the year 2009, and the impugned Judgment and Order has been passed by the High Court in 10.05.2018, i.e. much prior to the amendment in the 2nd Schedule. In the facts and circumstance of the present case, the claimants shall not be entitled to the benefit of the amendment to the 2nd Schedule. At the same time, as observed hereinabove, the claimants shall be entitled to Rs.1 Lakh as per the terms of the contract of insurance, -8- NC: 2024:KHC:45512 MFA No. 7439 of 2015 C/W MFA No. 1347 of 2015 the driver being in the shoes of the owner of the vehicle".
9. Therefore, the claimant is entitled for compensation under the personal accident coverage of Rs.1 Lakh.
10. It is another submission made by the learned counsel for the Insurance Company that granting of compensation of Rs.1 Lakh as personal accident coverage is by verge of contract of insurance, hence, the petition under Section 163-A of the M.V. Act is not maintainable and cannot be granted and the claimant has to approach another Forum for claiming compensation under personal accident coverage, which cannot be accepted for the reason that though under the personal accident coverage, the claimant is entitled for compensation as held above, whereas, the petition is filed under Section 163-A of the M.V.Act and when the insurance was valid and was in existence as on the date and time of the accident, once -9- NC: 2024:KHC:45512 MFA No. 7439 of 2015 C/W MFA No. 1347 of 2015 again directing the appellant to approach another Forum is nothing but causing harassment to the claimant.
11. If the Insurance Company has already paid compensation under personal accident coverage to the claimant or to the owner of the car, then the Insurance Company restrains from payment of compensation. If no claim is made earlier, for receiving compensation under personal accident coverage in respect of the deceased, then the Insurance Company shall pay compensation of Rs.1 Lakh to the claimant. Therefore, the appeal filed by the claimant is allowed in part. Accordingly, the impugned judgment passed by the Tribunal is modified. Hence, I proceed to pass the following:
ORDER
i) M.F.A.No.7439 of 2015 filed by the claimant is allowed in part.
ii) M.F.A.No.1347 of 2015 filed by the Insurance Company is dismissed.
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NC: 2024:KHC:45512 MFA No. 7439 of 2015 C/W MFA No. 1347 of 2015
iii) The judgment and award passed by the Tribunal is modified holding that the Insurance Company shall pay compensation of Rs.1,00,000/- (Rupees One Lakh only) to the claimant under personal accident coverage, in case, no claim is made under personal accident coverage or paid by the Insurance Company despite of death of deceased.
iv) The amount in deposit shall be transmitted to the Tribunal.
v) No order as to costs.
SD/-
(HANCHATE SANJEEVKUMAR)
JUDGE
DH
List No.: 1 Sl No.: 16
CT:SNN