Partly allowed

Bhutali S/O Siddappa Bevannavar v. Tushar Uttam Nagavekar

Karnataka HC1 Oct 2020MFA/21930/2012

Case brief

AI extract

What is this about?

Fatal motorcycle accident claims concerned a borrower-rider and a pillion rider. The court limited the borrower's compensation to contractual personal accident cover and reduced general damages for the pillion rider under the Second Schedule. Both insurer appeals were partly allowed, both enhancement appeals dismissed, and interest fixed at 6% per annum.

What did the court decide?

Both compensation awards reduced; interest fixed at 6% per annum from petition until satisfaction. Deposited amounts directed to be transferred to the Tribunal.

Bhutali S/O Siddappa Bevannavar Vs Tushar Uttam Nagavekar — Insurance | Karnataka HC (2020)

¶1

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

¶2

DATED THIS THE 1^ST DAY OF OCTOBER 2020

¶3

¶4

BEFORE

¶5

THE HON’BLE MR. JUSTICE M.NAGAPRASANNA

¶6

MFA No.22058/2011 (MV) C/W MFA No.21929/2012 MFA No.21930/2012 MFA No.22059/2011

¶7

IN MFA No.22058/2011

¶8

BETWEEN:

¶9

THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE CO. LTD., CLUB ROAD, THROUGH ITS REGIONAL MANAGER, MTP HUB OFFICE, 2ND FLOOR, SRINATH COMPLEX, NEW COTTON PET, HUBLI-580 023.

¶10

.. APPELLANT

¶11

(BY SRI.R.R.MANE ADV.)

¶12

AND:

¶13

SRI.TUSHAR S/O UTTAM NAGAVEKAR, AGED: MAJOR, OCC: BUSINESS, R/O HATIS, POST: TANADE, TALUK & DIST: RATNAGIRI-415 612.

¶14

SRI.SALIM S/O ISMAIL PATTANWALE, AGE: MAJOR, OCC: BUSINESS & OWNER OF MOTOR CYCLE, R/O PAVAS GHAIDITAL, TALUK & DIST. RATNAGIRI-415 612

¶15

¶16

SMT.SHOBHAWWA W/O SHEKHAR PUJARI, AGE: 23 YEARS, OCC: HOUSEHOLD WORK, R/O SHIVPUR, TALUK: ATHANI-591 304.

¶17

KUMARI POOJA D/O SHEKHAR PUJARI, AGE: 7 YEARS, MINOR, REP. BY GUARDIAN MOTHER, SMT SHOBHAWWA W/O SHEKHAR PUJARI, R/O SHIVAPUR, TALUK: ATHANI-591 304.

¶18

SMT.GANGAWWA W/O LINGAPPA @ SHIVAPPA PUJARI, AGE: 48 YEARS, OCC: HOUSEHOLD WORK, R/O SHIVAPUR, TALUK: ATHANI-591 304

¶19

.. RESPONDENTS

¶20

(BY SRI.GIRISH S.HIREMATH, ADV. FOR R1, SRI.SANJAY S.KATAGERI, ADV. FOR R3-R5, R2 IS SERVED)

¶21

THIS APPEAL IS FILED UNDER U/SEC.173(1) OF M.V. ACT, AGAINST THE JUDGMENT AND AWARD DATED:05.02.2011, PASSED IN M.V.C. NO.440/2008 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-III & ADDL. MACT. BELGAUM AT BELGAUM, AWARDING THE COMPENSATION OF RS.4,58,000/- WITH INTEREST AT THE RATE OF 8% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.

¶22

IN MFA No.21929/2012

¶23

BETWEEN:

¶24

SMT.SHOBHAWWA W/O SHEKAR PUJARI AGE: 24 YEARS, OCC: HOUSEHOLD WORK,

¶25

KUMARI POOJA D/O SHEKAR PUJARI AGE: 8 YEARS, OCC: STUDENT,

¶26

GANGAWWA W/O LINGAPPA @ SHIVAPPA PUJARI AGE: 49 YRS, OCC: HOUSEHOLD,

¶27

¶28

APPELLANT NO.2 MINOR REP. BY HER M/G NATURAL MOTHER APPELLANT NO.1, ALL ARE R/O SHIVAPUR, TQ: ATHANI, DIST: BELGAUM (BY SRI.K.ANANDKUMAR, ADV.) AND:

¶29

.. APPELLANTS

¶30

TUSHAR UTTAM NAGAVEKAR AGE: MAJOR, OCC: BUSINESS, R/O HATIS, POST: TANADE, TQ: & DIST: RATNAGIRI, MAHARASTRA STATE 2. SALIM ISMAIL PATTANWALE, AGE: MAJOR, OCC: BUSINESS, R/O PAV AS GHADITAL, TQ. & DIST. RATNAGIRI, MAHARASTRA STATE 3. THE DIVISIONAL MANAGAER, THE NEW INDIA ASSURANCE CO. LTD., DO.O.CLUB ROAD, BELGAUM .. RESPONDENTS (BY SRI.GIRISH S.HIREMATH, ADV. FOR R1, SRI.N.R.KUPPELUR, ADV. FOR R3, R2 SERVED)

¶31

THIS APPEAL IS FILED UNDER SECTION 173(1) OF THE M.V.ACT TO CALL FOR THE RECORDS AND MODIFY THE JUDGMENT AND AWARD DATED 05.02.2011 IN MVC NO.440/2008 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT-III & ADDL. MACT AT BELGAUM BY ENHANCING THE COMPENSATION REASONABLY AND ADEQUATELY.

IN MFA No.21930/2012

BETWEEN:

BHUTALI S/O SIDDAPPA BEAVANUR, AGE: 49 YEARS, OCC: COOLIE, R/O MAYANATTI, TALUK: ATHANI, DIST: BELGAUM.

¶36

SMT.SHANTAWWA W/O BHUTALI BEAVANUR, AGE: 42 YEARS, OCC: HOUSEHOLD WORK, R/O MAYANATTI, TALUK: ATHANI, DIST: BELGAUM.

¶37

.. APPELLANTS

¶38

(BY SRI.K.ANANDKUMAR, ADV.)

¶39

AND:

¶40

TUSHAR UTTAM NAGAVEKAR AGE: MAJOR, OCC: BUSINESS, R/O HATIS, POST: TANADE, TQ: & DIST: RATNAGIRI, MAHARASTRA STATE

¶41

SALIM ISMAIL PATTANWALE, AGE: MAJOR, OCC: BUSINESS, R/O PAV AS GHADITAL, TQ. & DIST. RATNAGIRI, MAHARASTRA STATE

¶42

THE DIVISIONAL MANAGAER, THE NEW INDIA ASSURANCE CO. LTD., DO.O.CLUB ROAD, BELGAUM

¶43

.. RESPONDENTS

¶44

(BY SRI.GIRISH S.HIREMATH, ADV. FOR R1, SRI.N.R.KUPPELUR, ADV. FOR R3)

¶45

THIS APPEAL IS FILED UNDER SECTION 173(1) OF THE M.V.ACT TO CALL FOR THE RECORDS AND MODIFY THE JUDGMENT AND AWARD DATED 05.02.2011 IN MVC NO.441/2008 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT-III & ADDL. MACT AT BELGAUM BY ENHANCING THE COMPENSATION REASONABLY AND ADEQUATELY.

IN MFA No.22059/2011

BETWEEN:

THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE CO. LTD., CLUB ROAD, THROUGH ITS REGIONAL MANAGER, MTP HUB OFFICE, 2ND FLOOR, SRINATH COMPLEX, NEW COTTON PET, HUBLI-580 023. .. APPELLANT

¶50

(BY SRI.R.R.MANE ADV.)

¶51

AND:

¶52

SRI.TUSHAR S/O UTTAM NAGAVEKAR, AGED: MAJOR, OCC: BUSINESS, R/O HATIS, POST: TANADE, TALUK & DIST: RATNAGIRI-415 612.

¶53

SRI.SALIM S/O ISMAIL PATTANWALE, AGE: MAJOR, OCC: BUSINESS & OWNER OF MOTOR CYCLE, R/O PAVAS GHAIDITAL, TALUK & DIST. RATNAGIRI-415 612

¶54

SHRI.BHUTALI S/O SIDDAPPA BEAVANUR, AGE: 48 YEARS, OCC: COOLIE WORK, R/O MAYANATTI, TALUK: ATHANI-591304.

¶55

SMT.SHANTAWWA W/O BHUTALI BEAVANUR, AGE: 41 YEARS, OCC: HOUSEHOLD WORK, R/O MAYANATTI, TALUK: ATHANI-591304. .. RESPONDENTS

¶56

(BY SRI.GIRISH S.HIREMATH, ADV. FOR R1, R2 TO R4 ARE SERVED)

¶57

THIS APPEAL IS FILED UNDER U/SEC.173(1) OF M.V. ACT, AGAINST THE JUDGMENT AND AWARD DATED:05.02.2011, PASSED IN M.V.C. NO.441/2008 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-III & ADDL. MACT. BELGAUM AT BELGAUM, AWARDING THE COMPENSATION OF RS.3,41,000/- WITH INTEREST AT THE RATE OF 8% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.

¶58

¶59

THESE APPEALS HAVING BEEN HEARD AND RESERVED ON 04.09.2020 COMING ON FOR PROUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶60

JUDGMENT

¶61

These appeals under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) have been filed by the claimants and Insurance Company being aggrieved by the judgment dated 05.02.2011 passed by the Presiding Officer Fast Track Court-III & Additional MACT, Belagavi in M.V.C.Nos.440 and 441 of 2008.

¶62

Parties will be referred to as per their ranking before the Claims Tribunal.

¶63

Facts giving rise to the filing of the appeals

¶64

briefly stated are that, on 08.12.2007 the deceased was riding a motorcycle bearing Reg.No.MH-08/M-2717 from

¶65

¶66

Ratnagiri to Pavsas along with his friend, who was a pillion rider. While riding the motorcycle, the rider lost control of the motorcycle and dashed to a road side stone. As a result of which, the rider of the motorcycle and pillion rider sustained grievous injuries and died on the spot.

¶67

The claimants filed a petition invoking Section 163A of the Act and sought compensation on the ground that the deceased was only breadwinner of the family and having lost the sole breadwinner of the family, the claimants are put to jeopardy and accordingly, claimed compensation to the tune of Rs.10,00,000/- along with interest.

¶68

On service of notice, respondent Nos.1 to 3 appeared. Respondent No.2 did not file any statement objections. Respondent Nos.1 and 3 filed separate statement of objections. Respondent No.3-Insurance

¶69

¶70

Company contends that the petition is not maintainable as the very question where the legal representatives or surviving members of the family of the claimants is itself doubtful. The age, avocation and income of the deceased were all denied by the Insurance Company. It was also contended that the insured has not paid any extra premium to cover the risk of the pillion rider. Therefore, the Insurance Company is not at all liable to pay any compensation to the claimants.

¶71

On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence.

¶72

The claimants, in order to prove their case,

¶73

examined two witnesses as P.Ws.1 and 2 and got marked 11 documents namely Exs.P1 to P11. On the other hand,

¶74

¶75

Insurance Company examined one witness as R.W.1 and got marked 7 documents namely Exs.R1 to R7.

¶76

The Claims Tribunal, by the impugned judgment, inter alia , held that the claimants are entitled to compensation of Rs.4,58,000/and Rs.3,41,000/-

¶77

respectively along with interest at the rate of 8% p.a. The Insurance Company has filed MFA No.22058/2012 and MFA No.22059/2011 challenging the quantum of compensation awarded by the Tribunal in a proceedings arising out of Section 163A of the Act in case of a rider of the motorcycle against whom the maximum compensation could be awarded was Rs.1,00,000/-. The claimants have also filed MFA No. 21929/2012 and MFA No.21930/2012 seeking enhancement of compensation.

¶78

I have heard Sri.Ravindra R.Mane, learned

¶79

counsel for the appellant-Insurance Company, Sri.Girish

¶80

¶81

S.Hiremath, learned counsel for respondent No.1,

¶82

Sri.Sanjay S.Katageri, learned counsel for respondent Nos.3 to 5, Sri.K.Anand Kumar, learned counsel for the appellant-claimants, Sri.N.R.Kuppelur, learned counsel for Insurance Company.

¶83

Learned counsel Sri.R.R.Mane would contend

¶84

that the Tribunal grossly erred in granting compensation of Rs.4,58,000/- in the case of rider of the motorcycle in a proceeding arising out of Section 163A of the Act. He would contend that the rider of the motorcycle steps into the shoes of the owner of the motorcycle and there cannot be any claim against his own insurer and what would be available as compensation to the claimants of the deceased rider of the motorcycle would be in terms of the contract between owner and the Insurance Company, which is Rs.1,00,000/- to the maximum. He would place reliance on the following judgments of the Apex Court and this Court.

¶85

¶86

i) Ningamma and Another Vs United India Insurance Company Limited reported in (2009) 13 Supreme Court Cases 710.

¶87

ii) Dhanraj Vs New India Assurance Co. Ltd and Another reported in (2004) 8 Supreme Court Cases 553.

¶88

iii) Ramkhiladi and Another Vs United India Insurance Company and Another reported in (2020) 2 Supreme Court Cases 550.

¶89

iv) New India Assurance Company Ltd. Vs Sadanand Mukhi & Others reported in AIR 2009 Supreme Court 1788.

¶90

v) Oriental Insurance Co.Ltd., Vs Sunita Rathi and Others reported in (1998) 1 Supreme Court Cases 365.

¶91

On the other hand, learned counsel

¶92

Sri.K.Anandkumar appearing for the claimants would

¶93

contend that, in a claim under Section 163A of the Act, no negligence need to be proved which is immaterial whether

¶94

the owner or a rider of the vehicle for claim of

¶95

¶96

compensation, which is akin to Section 166 of the Act. He would place reliance on the following judgments.

¶97

i) Shivaji and Another Vs Divisional Manager, United India Insurance Co.Ltd., and Others in Civil Appeal No.2816/2018.

¶98

ii) Chandrakanta Tiwari Vs New India Assurance Company Ltd., & Another, Civil Appeal No.2527/2020. iii) Deepal Girishbhai Sone and Others Vs United Insurance Co.Ltd, Baroda reported in 2004 AIR SCW 1864. iv) United India Insurance Co., Ltd., Vs. Sunil Kumar and Another reported in 2018 ACJ 1. v) MFA No.20884/2010 and connected matter disposed of on 27.11.2019.

¶99

vi) MFA No.23666/2009 disposed of on 12.06.2020.

¶100

I have given my anxious consideration to the

¶101

submissions made by the learned counsel for the parties

¶102

¶103

and perused the material on record. In terms of the pleadings stated hereinabove and the judgments relied on by the learned counsel for the parties, the issue that falls for my consideration is:

¶104

“Whether the rider of the vehicle involved in the accident who is not the owner would be entitled to a compensation in a claim under Section 163A of the Act, if so, to what extent?”

¶105

13. Statutory Framework:

¶106

Section 163A forms a part of Chapter XI of the Act.

¶107

Chapter XI deals with insurance of motor vehicles against third party risks. Section 163A of the Act reads as follows:

¶108

“163A. Special provisions as to payment of compensation on structured formula basis .—

¶109

(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of

¶110

¶111

motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.

¶112

Explanation.—For the purposes of this subsection, “permanent disability” shall have the same meaning and extent as in the Workmen’s Compensation Act, 1923 (8 of 1923).

¶113

(2) In any claim for compensation under subsection (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.

¶114

(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.]”

¶115

The compensation that is available in a claim

¶116

under Section 163A of the Act is hedged by the stipulation made in the Second Schedule to the legal heirs of the victim. The Second Schedule reads as follows:

¶117

¶118

“ THE SECOND SCHEDULE (See Section 163A) SCHEDULE FOR COMPENSATION FOR THIRD PARTY FATAL ACCIDENTS/INJURY CASES CLAIMS

¶119

1 . (a) Fatal Accidents:

¶120

Compensation payable in case of Death shall be five lakh rupees.

¶121

(b) Accidents resulting in permanent disability:

¶122

Compensation payable shall be = [Rs. 5,00,000/- × percentage disability as per Schedule I of the Employee’s Compensation Act, 1923 (8 of 1923)] :

¶123

Provided that the minimum compensation in case of permanent disability of any kind shall not be less than fifty thousand rupees.

¶124

(c) Accidents resulting in minor injury:

¶125

A fixed compensation of twenty five thousand rupees shall be payable:

¶126

2. On and from the date of 1st day of January, 2019 the amount of compensation specified in the clauses (a) to (c) of paragraph (1) shall stand increased by 5 per cent annually”.

¶127

¶128

3. This notification shall come into form on the date of its publication in the Official Gazette.”

¶129

15. The comparative age, application of multiplier

¶130

and income are all stipulated in the Second Schedule, the heading of which reads as follows:

¶131

“Schedule for Compensation for Third Party Fatal Accidents/Injury Cases Claims.”

¶132

Thus, Chapter XI under which Section 163A falls

¶133

and the Schedule appended to Section 163A makes it unmistakably clear that the claims are maintainable only against third party risks.

¶134

In the case on hand, the claim was made by the claimants in MVC No.440/2008 for the death of the deceased, who was rider of the motorcycle and the Tribunal has granted compensation of Rs.4,58,000/-. At this juncture, it is necessary to consider the line of law as

¶135

¶136

laid down by the Apex Court and this Court, which are relied on by the respective counsel appearing for the parties.

¶137

The Apex Court in the case of Deepal Girishbhai Soni (supra) , has held as follows:

¶138

“ 67. We, therefore, are of the opinion that Kodala [(2001) 5 SCC 175 : 2001 SCC (Cri) 857] has correctly been decided. However, we do not agree with the findings in Kodala [(2001) 5 SCC 175 : 2001 SCC (Cri) 857] that if a person invokes provisions of Section 163-A, the annual income of Rs 40,000 per annum shall be treated as a cap. In our opinion, the proceeding under Section 163-A being a social security provision, providing for a distinct scheme, only those whose annual income is up to Rs 40,000 can take the benefit thereof. All other claims are required to be determined in terms of Chapter XII of the Act.”

¶139

¶140

19. The Apex Court in the case of Shivaji and Another (supra) has held as follows:

¶141

3. The insurer preferred an appeal before the High Court of Karnataka. The appellants also filed an appeal before the High Court seeking enhancement of compensation awarded by the Tribunal. The High Court, by its impugned judgment [United India Insurance Co. Ltd. v. V. Nallathai, 2017 SCC OnLine Kar 4521] , allowed the insurer's appeal and set aside the order of the Tribunal. The High Court opined that the idea behind enacting Section 163-A is to ensure that even in the absence of any mistake on the part of the driver of the offending vehicle, the injured person or the legal heirs of the deceased person are compensated by the owner and the insurer. As a result, under this provision, since the victim has been contemplated to be an innocent third party, protection is extended only to the injured person or to the legal heirs of the deceased victim, and not to the driver who is responsible for causing the said accident. Since the deceased driver in this case was the tortfeasor and responsible for causing the accident, the High

¶142

¶143

Court held that compensation could not have been awarded to the appellants.

¶144

4. The issue which arises before us is no longer res integra and is covered by a recent judgment of three Judges of this Court in United India Insurance Co. Ltd. v. Sunil Kumar [United India Insurance Co. Ltd. v. Sunil Kumar, (2019) 12 SCC 398 : AIR 2017 SC 5710] , wherein it was held that to permit a defence of negligence of the claimant by the insurer and/or to understand Section 163-A of the Act as contemplating such a situation, would be inconsistent with the legislative object behind introduction of this provision, which is “final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability were taking an unduly long time”. The Court observed that if an insurer was permitted to raise a defence of negligence under Section 163-A of the Act, it would “bring a proceeding under Section 163-A of the Act on a par with the proceeding under Section 166 of the Act which would not only be self-contradictory

¶145

¶146

but also defeat the very legislative intention”. Consequently, it was held that in a proceeding under Section 163-A of the Act, the insurer cannot raise any defence of negligence on the part of the victim to counter a claim for compensation.

¶147

20. The Apex Court in the case of Sunil Kumar and

¶148

Another (supra) has held as follows:

¶149

8. From the above discussion, it is clear that grant of compensation under Section 163-A of the Act on the basis of the structured formula is in the nature of a final award and the adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. This is made explicit by Section 163-A(2). Though the aforesaid section of the Act does not specifically exclude a possible defence of the insurer based on the negligence of the claimant as contemplated by Section 140(4), to permit such defence to be introduced by the insurer and/or to understand the

¶150

¶151

provisions of Section 163-A of the Act to be contemplating any such situation would go contrary to the very legislative object behind introduction of Section 163-A of the Act, namely, final compensation within a limited time-frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability were taking an unduly long time. In fact, to understand Section 163-A of the Act to permit the insurer to raise the defence of negligence would be to bring a proceeding under Section 163-A of the Act on a par with the proceeding under Section 166 of the Act which would not only be self-contradictory but also defeat the very legislative intention.

¶152

21. The Apex Court in the case of Chandrakanta Tiwari (supra) has held as follows:

¶153

9. Finally, given that the deceased was aged 28 years and that income was not proved, income was taken to be Rs. 36,000/- per annum minus one-third, which made it Rs.

¶154

¶155

24,000/- per annum. The Multiplier was taken to be 8, keeping in view the old age of the claimant and accordingly, a sum of Rs. 1,92,000/- was arrived at. In addition thereto, Rs. 2000/- was given as funeral expenses, Rs. 5000/- as loss of consortium, making it a total of Rs. 1,99,000/- together with simple interest at the rate of 6 per cent per annum on this amount from the date of filing of the claim petition up to the date of actual payment.

¶156

10. The High Court, by the impugned judgment, allowed the appeal of the insurance company stating that the claimant, not being an eye witness, could not possibly give evidence as to the accident that took place, as a result of which, the Section 163A petition would have to be dismissed. Also, nothing was brought on record to show that the deceased was having a valid driving license. This would also, therefore, take the case outside the insurance policy, as a result of which, the appeal would deserve to be allowed on this ground also.

¶157

11. Section 163A reads as follows:

¶158

¶159

163A. Special provisions as to payment of compensation on structured formula basis.—

¶160

¶161

Explanation.—For the purposes of this subsection, “permanent disability” shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).

¶162

(2) In any claim for compensation under subsection (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.

¶163

¶164

(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.

¶165

12. A perusal of this provision would show that Shri Sahoo is correct in stating that the claimant need not plead or establish that the death in respect of which the claim was made, was due to any negligence or default of the owner of the vehicle or of any other person.

¶166

(emphasis supplied)

¶167

13. In this view of the matter, it is not relevant that the person insured must be the driver of the vehicle but may well have been riding with somebody else driving a vehicle which resulted in the death of the person driving the vehicle. The High Court, therefore, is clearly wrong in stating that it was necessary under Section 163A to prove that somebody else was driving the vehicle rashly and negligently, as a result of which, the death of the victim would take place.

¶168

14. Further, it is also clear, as has been pointed out hereinabove, that so far as the

¶169

¶170

driving licence aspect of the case is concerned, it was squarely given up by the insurance company before the MACT, but then utilised by the High Court to disentitle the claimant to relief. On this ground also, the High Court is incorrect.

¶171

15. Coming to the argument based on the maximum liability being Rs. 1 lakh, this argument was never taken before in all the courts below, as a result of which, we do not allow the insurance company to take up the point for the first time before us at this stage.

¶172

All the afore-quoted judgments of the Apex Court dealt and

¶173

decided the fact, and the negligence need not be proved in a proceeding under Section 163A of the Act.

¶174

22. The issue that arose in MFA No.20884/2010 c/w

¶175

MFA No.20885/2010 disposed of on 27.11.2019 was with regard to principle of pay and recover, which is not the issue in the case on hand.

¶176

¶177

The issue that arose in MFA No.23666/2009 disposed of on 12.06.2020 was also of pay and recover. The learned Coordinate Bench only followed the decision of the learned Full Bench. Both the afore-quoted two judgments of the Coordinate Bench are not applicable to the facts obtaining in the case of hand.

¶178

All the cases inter alia , which the learned counsel for the claimants relied on primarily pertains to the issue whether a plea of negligence could be raised by the Insurance Company to defeat the claim of the claimants in case of a death or an injury and the Apex Court and this Court have categorically held that plea of negligence cannot be raised as a defence by the Insurance Company

¶179

to deny the compensation.

¶180

The issue in the case on hand is not with regard to plea of negligence. Hence, the entire line of judgments

¶181

¶182

relied on by the learned counsel for the claimants are inapplicable to the facts of the case on hand. The issue concerning whether rider of the vehicle who is not the owner would be entitled to compensation is laid down by the Apex Court in Ningamma and Another (supra) , wherein the Apex Court held as follows:

¶183

15. A number of decisions have been rendered by this Court in respect of Section 163A of the MVA. In Deepal Girishbhai Soni v. United India Insurance Co. Ltd. [(2004) 5 SCC 385 : 2004 SCC (Cri) 1623] , at p. 402, one of us (Hon'ble S.B. Sinha, J.) has observed as follows: (SCC p. 402, para 42)

¶184

“42. Section 163-A was, thus, enacted for grant of immediate relief to a section of the people whose annual income is not more than Rs 40,000 having regard to the fact that in terms of Section 163-A of the Act read with the Second Schedule appended thereto, compensation is to be paid on a structured formula not only having regard to the age of the victim and his income but also the other factors relevant therefor. An award made thereunder, therefore, shall be in

¶185

¶186

full and final settlement of the claim as would appear from the different columns contained in the Second Schedule appended to the Act. The same is not interim in nature. The note appended to Column 1 which deals with fatal accidents makes the position furthermore clear stating that from the total amount of compensation one-third thereof is to be reduced in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. This together with the other heads of compensation as contained in Columns 2 to 6 thereof leaves no manner of doubt that Parliament intended to lay a comprehensive scheme for the purpose of grant of adequate compensation to a section of victims who would require the amount of compensation without fighting any protracted litigation for proving that the accident occurred owing to negligence on the part of the driver of the motor vehicle or any other fault arising out of use of a motor vehicle.”

¶187

¶188

Thus, after considering the judgment of the Apex Court in the case of Deepal Girishbhai Soni (supra) relied on by the learned counsel for the claimants, the Apex Court has held as follows:

¶189

20. It was held in Oriental Insurance Co. Ltd. case [(2008) 5 SCC 736 : (2008) 3 SCC (Cri) 67] 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.

¶190

21. In our considered opinion, the ratio of the decision in Oriental Insurance Co. Ltd. case [(2008) 5 SCC 736 : (2008) 3 SCC (Cri) 67] 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.

¶191

¶192

He borrowed the said motorbike from its real owner. The deceased cannot be held to be an 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. We have already extracted Section 163-A of the MVA hereinbefore. A bare perusal of the said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle.

¶193

22. In a case wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that event the liability to make payment of the compensation is on the insurance company or the owner, as the case may be as provided under Section 163-A. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of Section 163-A of the MVA. Accordingly, the legal

¶194

¶195

representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163-A of the MVA.

¶196

Subsequently, the Apex Court in the case of Ramkhiladi and Another(supra) considering the entire spectrum of law in a claim arising out of Section 163A of the Act has held as follows:

¶197

9.1 The learned Tribunal held that even in absence of the driver, owner and the insurance company of another vehicle involved in an accident and whose driver was solely negligent, the application under Section 163A of the Act would be maintainable against the owner and the insurance company of the vehicle which was driven by the deceased himself, firstly on the ground that the deceased was in employment of the owner of the vehicle which was driven by him and secondly, in an application under Section 163A of the Act, the negligence is not required to be established and proved and it is enough to establish and prove that the

¶198

¶199

deceased has died in a vehicular accident and while driving a vehicle. The High Court has not agreed with the same and by the impugned Judgment and Order has held that as the claimants have not filed the claim petition against the owner of another vehicle whose driver was in fact negligent, even as per the claimants and the claim petition should have been filed by the claimants against the owner of another vehicle to seek the compensation, the application under Section 163A of the Act against the insurance company of the vehicle driven by the deceased himself is liable to be dismissed.

¶200

9.4 An identical question came to be considered by this Court in the case of Ningamma (supra). In that case, the deceased was driving a motorcycle which was borrowed from its real owner and met with an accident by dashing against a bullock cart i.e. without involving any other vehicle. The claim petition was filed under Section 163A of the Act by the legal representatives of the deceased against

¶201

¶202

the real owner of the motorcycle which was being driven by the deceased. To that, this Court has observed and held that since the deceased has stepped into the shoes of the owner of the vehicle, Section 163A of the Act cannot apply wherein the owner of the vehicle himself is involved. Consequently, it was held that the legal representatives of the deceased could not have claimed the compensation under Section 163A of the Act. Therefore, as such, in the present case, the claimants could have even claimed the compensation and/or filed the claim petition under Section 163A of the Act against the driver, owner and insurance company of the offending vehicle i.e. motorcycle bearing registration No. RJ 29 2M 9223, being a third party with respect to the offending vehicle. However, no claim under Section 163A was filed against the driver, owner and/or insurance company of the motorcycle bearing registration No. RJ 29 2M 9223. It is an admitted position that the claim under Section 163A of the Act was only against the owner and the insurance company of the motorcycle bearing registration No. RJ 02 SA 7811 which was borrowed by the

¶203

¶204

deceased from the opponent owner Bhagwan Sahay. Therefore, applying the law laid down by this Court in the case of Ningamma (supra), and as the deceased has stepped into the shoes of the owner of the vehicle bearing registration No. RJ 02 SA 7811, as rightly held by the High Court, the claim petition under Section 163A of the Act against the owner and insurance company of the vehicle bearing registration No. RJ 02 SA 7811 shall not be maintainable.

¶205

9.5 It is true that, in a claim under Section 163A of the Act, there is no need for the claimants to plead or establish the negligence and/or that the death in respect of which the claim petition is sought to be established was due to wrongful act, neglect or default of the owner of the vehicle concerned. It is also true that the claim petition under Section 163A of the Act is based on the principle of no fault liability. However, at the same time, the deceased has to be a third party and cannot maintain a claim under Section 163A of the Act against the owner/insurer of the vehicle which is borrowed by him as he will be in the shoes of

¶206

¶207

the owner and he cannot maintain a claim under Section 163A of the Act against the owner and insurer of the vehicle bearing registration No. RJ 02 SA 7811. In the present case, the parties are governed by the contract of insurance and under the contract of insurance the liability of the insurance company would be qua third party only. In the present case, as observed hereinabove, the deceased cannot be said to be a third party with respect to the insured vehicle bearing registration No. RJ 02 SA 7811. There cannot be any dispute that the liability of the insurance company would be as per the terms and conditions of the contract of insurance. As held by this Court in the case of Dhanraj (supra), an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorized representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. In the said decision, it is further held by this Court that Section 147 does not require an

¶208

¶209

insurance company to assume risk for death or bodily injury to the owner of the vehicle.

¶210

9.6 In view of the above and for the reasons stated above, in the present case, as the claim under Section 163A of the Act was made only against the owner and insurance company of the vehicle which was being driven by the deceased himself as borrower of the vehicle from the owner of the vehicle and he would be in the shoes of the owner, the High Court has rightly observed and held that such a claim was not maintainable and the claimants ought to have joined and/or ought to have made the claim under Section 163A of the Act against the driver, owner and/or the insurance company of the offending vehicle i.e. RJ 29 2M 9223 being a third party to the said vehicle.

¶211

9.8 However, at the same time, even as per the contract of insurance, in case of personal accident the owner driver 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,

¶212

¶213

it is the case on behalf of the original claimants that there is an amendment to the 2 nd 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 2 nd 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, the driver being in the shoes of the owner of the vehicle.

¶214

10. In view of the above and for the reasons stated above, the present appeal is partly allowed to the aforesaid extent and it is observed and held that the original claimants

¶215

¶216

shall be entitled to a sum of Rs.1 lakh only with interest @ 7.5 per cent per annum from the date of the claim petition till realization. In the facts and circumstance of the present case, there shall be no order as to costs.

¶217

In terms of the afore-extracted law laid down by the Apex Court, it becomes unmistakably clear that the rider of the vehicle, if he is not the owner, but has borrowed the vehicle from the owner steps into the shoes of the owner and would be entitled to compensation only to the extent of the contract between the owner and the insurer.

¶218

In the case on hand, Ex.R1 is the insurance policy placed before the Tribunal. A cursory perusal of the insurance policy would indicate that P.A.(Personal Accident) cover of Rs.50/- is collected by the Insurance Company as premium and in terms of the contract for a P.A. cover, the maximum compensation available is Rs.1,00,000/- to the

¶219

¶220

owner of the vehicle. In the light of the compensation under P.A. covers to the owner being only Rs.1,00,000/-, the rider of the vehicle in MVC No.440/2008 cannot be entitled to a compensation which could be more than Rs.1,00,000/-, in terms of the law laid down by the Apex Court in the afore-stated cases, as he steps into the shoes of the owner and would be entitled a compensation only of Rs.1,00,000/- as against Rs.4,58,000/- determined by the Tribunal.

¶221

Insofar as the judgment of the Apex Court in the case of Chandrakanta Tiwari (supra) , though the Apex Court has sustained the compensation that was granted by the Tribunal, did not go into the issue of whether the maximum liability in a proceeding under Section 163A of the Act was Rs.1,00,000/- or otherwise, as the Insurance Company has taken the said plea for the first time before the Apex Court. The facts before the Apex Court would clearly indicate that, it was a claim of a pillion

¶222

¶223

rider and not the rider. Hence, the judgment of the Apex Court in the case of Chandrakanta Tiwari (supra) also would not be applicable to the facts of the case on hand.

¶224

The law laid down by the Apex Court in the case of Ramkhiladi and Another (supra) would be applicable to the facts of the case on hand. Hence, MFA No.22058/2011 filed by the Insurance Company challenging quantum of compensation is allowed in part and compensation of Rs.4,58,000/- awarded by the Tribunal is reduced to Rs.1,00,000/-. Needless to state that the claimants are entitled to interest at the rate of 6% p.a. from the date of petition till its satisfaction by the Insurance Company. MFA No.21929/2012 filed by the claimants is dismissed.

¶225

MFA No.22059/2011 is preferred by the Insurance Company challenging the quantum of

¶226

¶227

compensation awarded by the Tribunal concerning the death of a pillion rider. The only head under which the compensation is to be reduced in case of death of a pillion rider is with regard to compensation awarded under statutory heads. Under Second Schedule appended to Section 163A of the Act, the maximum compensation in case of death under Clause 3 General Damages (in case of

¶228

death), which reads as follows:

¶229

(i)	Funeral expenses	Rs.2,000
(ii)	Loss of Consortium, if beneficiary is the	Rs.5,000
	spouse
(iii)	Loss of Estate	Rs.2,500
	Total	Rs.9,500

¶230

Hence, the compensation awarded by the Tribunal under afore-stated heads is reduced to Rs.9,500/as against Rs.35,000/- awarded by the Tribunal. Hence, MFA No.22059/2011 filed by the Insurance Company is allowed in part. The claimants are entitled to total compensation of Rs.3,15,500/- as against Rs.3,41,000/awarded by the Tribunal. Needless to state that the

¶231

¶232

claimants are entitled to interest at the rate of 6% p.a. from the date of petition till its satisfaction by the Insurance Company.

¶233

34. Hence, the following:

¶234

ORDER

¶235

i) MFA No.22058/2011 filed by the Insurance Company challenging quantum of compensation is allowed in part and compensation of Rs.4,58,000/- awarded by the Tribunal is reduced to Rs.1,00,000/-.

¶236

ii) MFA No.22059/2011 filed by the Insurance Company is allowed in part. The claimants are entitled to total compensation of Rs.3,15,500/as against Rs.3,41,000/awarded by the Tribunal.

¶237

iii) Needless to state that the claimants are entitled to interest at the rate of 6% p.a.

¶238

¶239

from the date of petition till its satisfaction by the Insurance Company.

¶240

iv) To the aforesaid extent, the judgment of the Claims Tribunal is modified. v) The amount in deposit, if any, shall be transferred to the Tribunal forthwith. vi) MFA No.21929/2012 and MFA No.21930/2012 filed by the claimants are dismissed.

¶241

Sd/JUDGE

¶242

MBS/-

Bhutali S/O Siddappa Bevannavar v. Tushar Uttam Nagavekar

Case brief

What is this about?

What did the court decide?

Bhutali S/O Siddappa Bevannavar v. Tushar Uttam Nagavekar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Karnataka Neeravari Nigam Ltd, Vs the Special Land Acquisition Officer

Karnataka Neeravari Nigam Ltd, Vs the Special Land Acquisition Officer

Karnataka Neeravari Nigam Ltd, Vs the Special Land Acquisition Officer

Sri K S Nanjegowda Vs the State of Karnataka

Shobhawwa W/O Shekar Pujaari Vs Tushar Uttam Nagavekar

Divisional Manager, Vs Tushar S/O Uttam Nagavekar