Karnataka High Court
Lalita W/O Siddeshwara Javali vs Siddeshwar S/O Sheelavantappa Javali on 2 January, 2017
Author: Raghvendra S. Chauhan
Bench: Raghvendra S. Chauhan
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 2nd day of January 2017
Present
THE HON'BLE MR. JUSTICE RAGHVENDRA S. CHAUHAN
And
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
Miscellaneous First Appeal No.102941/2014 (MV)
Between
Smt. Lalita, W/o Siddeshwara Javali,
Age: 41 years, Occ: Housewife,
R/o C/o S.S. Javali,
Near Laxmi Narayan Temple,
Near Gandhi Chowk, Raviwarpeth,
Dharwad. ...Appellant
(By Sri Harish S.Maigur, Advocate)
And:
1. Siddeshwar,
S/o Sheelavantappa Javali,
Age: 56 years, Occ: Business,
R/o Near Laxmi Narayan Temple,
Near Gandhi Chowk, Raviwarpeth,
Dharwad.
2. The Divisional Manager,
United Insurance Co. Ltd.,
Opp: Kala Bhavan, Jubilee Circle,
P.B.Road, Dharwad. ...Respondents
(By Sri C.V.Angadi, Advocate for R2)
(R1 - served)
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This Appeal is filed under Section 173(1) of the Motor
Vehicles Act, against the judgment and award dated
03.05.2014, passed in M.V.C. No.357/2013, on the file of the
Presiding Officer, Fast Track Court and Member, Additional
Motor Accident Claims Tribunal, Dharwad, partly allowing
the claim petition for compensation and seeking
enhancement of compensation.
This Appeal coming on for Admission this day,
RAGHVENDRA S. CHAUHAN, J, delivered the following:
JUDGMENT
The appellant, Smt. Lalita, has challenged the legality of the award dated 3.5.2014, passed by Fast Track Court and Additional Motor Accident Claims Tribunal, Dharwad, whereby the learned Tribunal has denied the benefit of Section 163A of the Motor Vehicles Act ('the Act', for short), and instead has granted the compensation to the extent of Rs.50,000/- by giving the benefit of Section 140 of the Act, to the appellant. The learned Tribunal has also granted interest at the rate of 8% per annum, from the date of filing of the petition till the date of depositing of the compensation amount.
2. Briefly the facts of the case are that on 25.11.2012, around 2.30 p.m., Akash and his friends were proceeding towards Kelageri on motor cycles. Akash was riding on a motor cycle bearing registration No.KA-25/EC-9251. The said motor 3 cycle was owned by his father. According to the appellant, Akash was riding his motor cycle at a moderate speed on the Kelageri Road. As he approached Vinayak Nagar, suddenly, a bullock-cart came on the road. In order to avoid the bullock- cart, Akash turned his motor cycle to the other side. But, unfortunately, he dashed against a tree standing near the road. Due to the impact, he sustained serious injuries. Despite the fact that he was rushed to S.D.M. Hospital, Sattur, Dharwad, on the next day, on 26.11.2012, he succumbed to his injuries. Since the appellant had lost her son, she filed a claim petition both against the owner, and the insurance company under Section 163A of the Act. In order to substantiate her case, she examined two witnesses, and submitted eight documents. The Insurance Company, on the other hand, examined a single witness, and submitted two documents. After going through the oral and documentary evidence, the learned Tribunal opined that since Akash himself was negligent in riding the motor cycle, since the accident had occurred only due to his negligence, the claim petition was not maintainable under Section 163A of the Act. Therefore, the appellant could only be granted compensation under the beneficial provision of Section 4 140 of the Act. However, as the compensation granted under Section 140 of the Act cannot exceed Rs.50,000/-, therefore the learned Tribunal granted a compensation of the said amount along with interest as mentioned hereinabove. Hence, this appeal before this Court.
3. Mr. Harish S. Maigur, the learned counsel for the appellant submits that the very basis for denying the benefit of Section 163A of the Act is highly misplaced. Although the learned Tribunal has relied on the case of National Insurance Company Limited Vs. Sinitha and others [(2012) 2 SCC 356], it has failed to notice the fact that in the case of United India Insurance Company Limited Vs. Sunil Kumar [(2014) 1 SCC 680], the Hon'ble Supreme Court has noticed the contrary decisions in the case of Sinitha (supra) and Oriental Insurance Co. Ltd. vs. Hansrajbhai V.Kodala [2001 ACJ 827] and has referred the issue of whether Section 163A falls within the doctrine of 'no fault liability' or not, to a Larger Bench of the Hon'ble Supreme Court.
Secondly, in the case of Deepal Girishbhai Soni and others V. United India Insurance Co. Ltd., [2004 ACJ 934], the Apex Court was of the opinion that even if negligence was that of the 5 rider of a motor cycle, even then the claim petition is maintainable under Section 163A of the Act. Moreover, in the case of M/s. Oriental Insurance Co. Limited., vs. Salma and Others [ILR 2008 KAR 1249], a Division Bench of this Court has noticed the judgment of the Apex Court in the case of Deepal Girishbhai Soni and others (supra) and has also opined that a claim petition under Section 163A of the Act would be maintainable, even if, the deceased himself was negligent and had caused the accident and had thereby expired. Thus, according to the learned counsel, the learned Tribunal was not justified in concluding that claim petition under Section 163A of the Act was not maintainable.
Thirdly, relying on the case of Sunil Kumar (supra), the learned counsel, further pleaded that the issue whether the accident was caused due to the negligence of the deceased himself is not even open to be thrashed out before the learned Tribunal. According to the said judgment, the said defence cannot be taken by the insurance company. Therefore, the conclusion drawn by the learned Tribunal that the negligence was on the part of Akash, the deceased in this case, is a misplaced conclusion. Since Section 163A of the Act deals with 6 'no fault liability', the benefit of structured formula given in the Second Schedule attached to the Motor Vehicles Act, the same should have been given to the appellant. Therefore, the learned Tribunal was not even justified in relying upon Section 140 of the Act and in granting the compensation only to the limited extent of Rs.50,000/-. Thus, the impugned award deserves to be interfered with.
4. On the other hand, Mr. C. V. Angadi, the learned counsel for the insurance company, has pleaded that since the deceased has caused the accident due to his own negligence, he has stepped into the shoes of the owner of the vehicle. Therefore, he is not even a third party. Since the insurance company is required to indemnify the owner for any injury or death of a third party, and since the tort-feaser himself has stepped into the shoes of the owner, therefore, the insurance company cannot be held liable to indemnify the owner. Therefore, the learned Tribunal was justified in concluding that a claim petition under Section 163A of the Act was not maintainable, and in granting the benefit of Section 140 of the Act.
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5.Heard the learned counsel for the parties and perused the impugned award.
6. A bare perusal of the impugned award clearly reveals that the learned Tribunal has relied on the case of Sinitha (supra) in order to conclude that the defence of negligence or fault is available to the Insurance Company. And in case Insurance Company succeeds in establishing the said defence, then a claim petition under Section 163A would not be maintainable before the learned Tribunal. However, while relying on the said judgment, the learned Tribunal has over-looked the judgment in the case of Hansrajbhai V.Kodala (supra) and has also overlooked the decision of the Apex Court in the case of Deepal Girishbhai Soni and others (supra). In the case of Deepal Girishbhai Soni and others (supra), the Hon'ble Supreme Court has clearly expressed its opinion that even if the negligence is that of the rider of the motor cycle due to which the death of the rider was caused, even then a claim petition under Section 163A of the Act would be maintainable.
7. In the case of Smt. Salma and others (supra), the Insurance Company had taken the plea that the observation made by the Hon'ble Supreme Court in the case of Deepal 8 Girishbhai Soni and others (supra) with regard to maintainability of the claim petition was merely an obiter and not the ratio. Even then, this Court had opined that even an obiter expressed by the Apex Court is binding upon the High Court. Therefore, in the case of Smt. Salma and others (supra), the Division Bench of this Court also held that notwithstanding the negligence on the part of the rider, a claim petition under Section 163A of the Act was maintainable. Thus, the observation made by the learned Tribunal that a claim petition under Section 163A of the Act is not maintainable is contrary to the opinion of the Apex Court and of this Court as well.
8. Considering the fact that the learned Tribunal has failed to appreciate the scope and ambit of Section 163A of the Act, considering the fact that the Tribunal's conclusion is legally unsustainable, this Court is of the opinion that the case should be remanded back to the learned Tribunal with a direction to decide the claim petition under Section 163A of the Act itself.
9. Of course, both the parties are free to raise the contentions, which have been raised before this Court, especially the Insurance Company would be free to raise the 9 contention raised before this Court with regard to the deceased not being a third party.
For the reasons stated above, the award dated 03.05.2014 is set aside. The case is remanded back to the learned Tribunal. The learned Tribunal is directed to decide the case as expeditiously as possible, and preferably within a period of six months, from the date of receipt of a certified copy of this Order.
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