Allowed

United India Insurance Co. Ltd. v. Rajkumar Tavnu Ammanavar

Karnataka HC17 Feb 2017MFA/21565/2009

Case brief

AI extract

What is this about?

The High Court allowed the appeal filed by United India Insurance Co. against the Motor Accident Claims Tribunal award. The Court held that since the accident resulted solely from the rider's negligence without third-party involvement, the rider stepped into the shoes of the vehicle owner and was disentitled to compensation under Section 163-A of the Motor Vehicles Act.

What did the court decide?

The judgment of the Tribunal dated 13.08.2008 was set aside and the claim petition was dismissed.

United India Insurance Co. Ltd. Vs Rajkumar Tavnu Ammanavar — Insurance | Karnataka HC (2017)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 17^TH DAY OF FEBRUARY 2017

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BEFORE

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THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR

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M.F.A. NO. 21565/2009 (MV)

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BETWEEN

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UNITED INDIA INSURANCE CO LTD R/B ITS DIVISIONAL MANAGER, D.O.MARUTI GALLI, BELGAUM .. APPELLANT

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(By Sri. M G GADGOLI, ADVOCATE)

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AND

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RAJKUMAR TAVANU AMMANNAVAR AGE 31 YEARS OCC LAB TECHNICIAN R/O BORGOAN TQ CHIKODI, DIST. BELGAUM.

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KUBER APPASAB UGARE AGE MAJOR, OCC BUSINESS R/O SADALGA TQ CHIKODI, DIST. BELGAUM OWNER OF MOTOR CYCLE BEARING No. KA-23/Q-2097 ... RESPONDENTS

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(By Sri. K ANANDKUMAR, ADVOCATE, FOR R1; R2 IS SERVED)

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THIS MFA FILED U/S 173 (1)OF THE MV ACT, AGAINST THE JUDGMENT AND AWARD DATED:13-08-2008 PASSED IN MVC.NO.157/2003 ON THE FILE OF THE I ADDL. CIVIL JUDGE (SR DN) & MACT, BELGAUM, AWARDING THE COMPENSATION OF RS.1,02,440/- ALONG

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WITH INTEREST AT THE RATE OF 6% P.A.FROM THE DATE OF PETITION TILL ITS DEPOSIT.

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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:

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JUDGMENT

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The Insurance Company has questioned the correctness of judgment of M.A.C.T., Belgaum, in M.V.C. No.157/2003 passed on 13.08.2008 in fastening the liability on it in connection with the motor vehicle accident in which the respondent No.1 in this appeal suffered injuries.

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Briefly mentioned, the details of the accident are that on 01.11.2002, the first respondent and his friend, Manohar Padmanna Lende, visited the house of Kuber Appasab Ugare, the second respondent herein. In connection with work entrusted by second respondent, he went towards Nippani by taking the latter’s motor bike bearing Registration No.KA-23/Q-2097 with his friend Manohar Padmanna Lende. While the first respondent was riding the motor cycle, his friend was a pillion rider. As they

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came near Somnath Industry on Nippani Akol road, the motor cycle skidded. Resultantly, the first respondent and his friend were thrown off the motor cycle and fell on the ground sustaining injuries. This accident gave raise to a claim petition under section 163-A of Motor Vehicles Act being made by the first respondent herein before the tribunal, which after holding an enquiry awarded an amount of Rs.1,02,440/- towards compensation along with interest at 6% p.a. thereof. The appellant – Insurance Company, since being directed to pay the compensation, is now before this Court challenging the saddling of the liability on it.

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I have heard the arguments of learned counsel for the appellant as well as first respondent.

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It is the argument of learned counsel for the appellant that the Insurance Company has very specifically taken a stand before the tribunal that the first respondent being the rider was himself responsible for the occurrence of the accident. No other vehicle was involved in the vehicle. Since the first respondent was rash and negligent in riding the motor cycle, he lost control over it resulting in the skid of the motor cycle. Although the Insurance Company does not dispute the insurance coverage, but the motor cycle

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belonged to the second respondent from whom the first respondent had borrowed the motor cycle and met with an accident due to his own negligence. Such being the case, the first respondent would step into the shoes of the owner of the motor cycle i.e., the second respondent, and therefore, the owner cannot claim compensation being a tortfeasor. In spite of a specific defence taken in this regard, the tribunal erred in giving a finding that the appellant should indemnify the liability of the second respondent, which is an error in law committed by the tribunal. In support of his argument, the learned counsel has placed reliance upon the judgment of the Hon’ble Supreme Court in the case of Ningamma and Another vs. United India Insurance Co., Ltd., [CDJ 2009 SC 1028] . Therefore, he submitted that the appeal should be allowed and the judgment and award of the tribunal set aside.

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The learned counsel for the first respondent argued for sustaining the judgment of the tribunal. His argument was that the second respondent lent his motor cycle to the first respondent in connection with his work. That means, the first respondent was riding the motor cycle for attending the work of the second respondent. The first respondent was

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a Lab Technician and he was working under the second respondent. Therefore, when the first respondent met with an accident by using the vehicle belonging to the second respondent, he becomes a third party, and therefore, the Insurance Company is liable to indemnify the liability of the second respondent because insurance was in force on the date of the accident. In support of his argument, he refers to the judgment of this Court in the case of Divisional Manager, Oriental Insurance Co., Ltd., vs. Smt. Indubai Annappa Patil and Another [M.F.A. No.7324/2007] and a judgment of the Supreme Court in the case of National

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Insurance Co., Ltd., vs. Sinitha and others [2012(2) SCC 356] .

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The above arguments give rise to the following questions for being answered.

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i) Whether the accident occurred due to negligence of the 1^st respondent?

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ii) If the answer to the 1^st question is in the affirmative, whether the tribunal is justified in granting compensation to the 1^st respondent for the injuries sustained by him in the accident?

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Question No. (i)

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The Tribunal has merely given a finding that first respondent got injured when he met with an accident due to use of motor cycle. The Tribunal has not discussed whether he was negligent or not in spite of a specific defence being taken by the appellant in its written statement; an issue in this regard should have been framed.

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The 1^st respondent himself has stated in the claim petition that he borrowed the motorcycle of the 2^nd respondent to go to Nipani for attending the work of the latter. It remains a fact that the 1^st respondent and his friend were riding the motorcycle involved in the accident and any other vehicle was neither coming in the opposite direction nor behind the motorcycle at the time of the accident took place. That means to say, except the motorcycle, no other vehicle was involved. The 1^st respondent also pleaded guilty before the criminal court as charge sheet was filed against him. In addition to this, Ex.P1, a report made by pillion rider of the motorcycle to the police about the accident clearly states that the 1^st respondent was riding the motorcycle in a high speed and approached a tractor going ahead of them and suddenly applied the breaks. Resultantly, the

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motorcycle fell down and they sustained injuries. So, the report thus made by the pillion rider also shows that the 1^st respondent was negligently riding the motorcycle. From this uncontroverted evidence, it can be concluded that the accident took place due to negligence of the first respondent. Accordingly, this question is answered in affirmative.

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Question No. (ii)

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Though the tribunal has observed very clearly about pleading of guilt by the 1^st respondent before the criminal court, but its observation is that, since the petition filed by the 1^st respondent is under Section 163-A of Motor Vehicles Act, the claimant i.e. the 1^st respondent need not establish the negligence in the occurrence of the accident. The tribunal has relied upon a judgment of Division Bench of this Court in the case of Oriental Insurance Company vs. Salma (2008 ACJ 1197) for arriving at this conclusion.

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It is true that the Division Bench of this Court in the case of Oriental Insurance Company vs Salma and others (supra), has, in a circumstance made out above, clearly held that claim petition made under Section 163-A of Motor Vehicles Act is maintainable even in a case where

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negligence can be attributed to victim. The Division Bench has relied upon judgment of the Hon’ble Supreme Court in the case of Deepal Girishbhai Soni Vs United India

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Insurance Company Ltd., (2004 ACJ 934), which is a judgment rendered by three Hon’ble Judges of the Supreme Court. But the learned counsel for the insurance company has relied upon another judgment of the Hon’ble Supreme Court in the case of Ningamma and another vs United

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India Insurance Company Ltd., (CDJ 2009 SC 1028). In this judgment reference has been made to Deepal Girishbhai Soni’s case. Ultimately it has been held by the Hon’ble Supreme Court in the case of Ningamma as below:-

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“17. However, in the facts of the present case, it was forcefully argued by the counsel appearing for the respondent that the claimants are not the `third party', and therefore, they are not entitled to claim any benefit under Section 163-A of the MVA. In support of the said contention, the counsel relied on the decision of this Court in the case of Oriental Insurance Co. Ltd. v. Rajni Devi, (2008) 5 SCC 736; and New India Assurance Co. Ltd. v. Sadanand Mukhi and Ors., (2009) 2 SCC 417.

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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 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

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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”.

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(underlining by me)

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The learned counsel for the 1^st respondent has referred to the judgment of this court in the case of Divisional Manager, Oriental Insurance Co. Ltd., Vs. Smt Indubai Annappa Patil, in MFA 7324/2007 and the Hon’ble Supreme Court in the case of National Insurance Co. Ltd., vs Sinitha and others (2012) 2 SCC 356. Of course in Indubai Annappa Patil , it is held that even for the fault of the insured, insurance company is liable. But in Sinitha’s case what actually is held by the Hon’ble Supreme Court is that the onus of proof of contributory negligence is on the shoulders of the defence. It is also further held that if the rider of the motor cycle should not be considered as third party, the actual relationship between the owner and the rider should be established, and again this onus is on the insurance company. And for the reason that this onus was not discharged, it was not possible to treat the rider of the motorcycle as other than a third party not entitled to claim

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compensation. Therefore considering the principles laid down by the Hon’ble Supreme Court in the case of Ningamma and Sinitha , what can be deduced is that when there is sufficient proof that the accident took place owing to the negligence of the claimant himself without the involvement of another vehicle, he is disentitled to claim compensation.

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Factually, in this case, the first respondent and his friend are found to be borrowers of motor cycle of the second respondent. Though it is stated by the first respondent in the claim petition that he and his friend proceeded towards Nippani for attending to the work of second respondent, it is just a self-serving assertion for claiming compensation. Even it is contrary to contents of Ex.P1, the report made by pillion rider to the police. It is clearly stated in Ex.P1 that first respondent’s friend, the pillion rider wanted to collect a certificate and salary from the Civil Hospital at Savantwadi for having worked there temporarily and for that purpose they borrowed the motor cycle of second respondent to go to that place. The appellant may not have brought any independent evidence except taking a defence in its written statement, but when it is possible to discern this from the

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documents produced by the first respondent, it has to be inferred that the position of first respondent is that of the owner of motor cycle, i.e., the second respondent.

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Since question No.(i) is answered in affirmative, the first respondent-claimant, having stepped into the shoes of the owner of the motor cycle, is not entitled to claim compensation. The findings of the Tribunal that he is entitled to compensation cannot be justified. Therefore, question No. (ii) is answered in negative.

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The result of the above discussion is that the appeal should succeed. In accordance with Order 41 Rule 33 CPC, the claim petition has to be dismissed notwithstanding the fact that owner of the motor cycle i.e, the second respondent in this appeal has not questioned the legality of the award of Tribunal. Hence, the following

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Order

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(i) Appeal is allowed. (ii) The judgment and award dated 13.8.2008 passed in MVC No. 157/2003 by the I Additional Civil Judge (Sr. Division) & MACT, Belgaum, is set aside. Claim petition is dismissed.

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(iii) Statutory deposit or any other deposit made by the appellant be refunded to it.

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Sd/JUDGE

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Hnm/yan

United India Insurance Co. Ltd. v. Rajkumar Tavnu Ammanavar

Case brief

What is this about?

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United India Insurance Co. Ltd. v. Rajkumar Tavnu Ammanavar

Case brief

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