Dismissed

Rudreshi Since Deceased by Lr v. Ajjaiah

Karnataka HC2 Jun 2021MFA/1659/2015

Case brief

AI extract

What is this about?

In a motor vehicle accident appeal, the appellant challenged the trial court's awarding of compensation to a deceased pillion rider against the vehicle owner, seeking to implicate the insurance company. The High Court dismissed the appeal, holding that statutory policies do not cover pillion riders, who are not considered third parties for such claims.

What the court decided

AI extract

Rudreshi Since Deceased by Lr Vs Ajjaiah — Insurance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF JUNE 2021

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BEFORE

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THE HON’BLE MRS.JUSTICE M.G.UMA

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M.F.A.No.1659 OF 2015 (MV)

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BETWEEN:

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RUDRESHI SINCE DECEASED BY LR SMT. KOTRAMMA W/O LINGANANDHAIAH AGED ABOUT 54 YEARS OCC: HOUSE HOLD WORK R/O. KOGUNDE VILLAGE CHITRADURGA TALUK-577 519.

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… APPELLANT

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(BY.SRI B PRAMOD, ADVOCATE)

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AND:

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AJJAIAH S/O HANUMANTHAPPA

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RC OWNER OF MOTORCYCLE BEARING REG NO.KA-15-H-7516 R/O. BHADHURGATTA VILLAGE BHARAMASAGARA HOBLI

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CHITRADURGA TALUK-577 519.

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BASHA KHAN S/O SALEMAN KHAN

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POLICY HOLDER OF MOTOR CYCLE BEARING REG NO.KA 15 H-7516 R/O. 3^RD CROSS, NEHRU COLONY SHIRALAKOPP

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SHIKARIPURA TALUK- 577 428.

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THE DIVISIONAL MANAGER NATIONAL INSURANCE CO LTD., DIVISIONAL MANAGER MELAGIRI PLAZA

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MCC “B” BLOCK, DENTAL COLLEGE ROAD

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DAVANAGERE – 577 001.

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… RESPONDENTS

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(BY SRI A.N.KRISHNASWAMY, ADVOCATE FOR R3; R1 & R2 SERVED & UNREPRESENTED)

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THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:8.12.2014 PASSED IN MVC No.126/2011 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT-5, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THROUGH VIDEO CONFERENCE THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appellant-claimant aggrieved by the impugned judgment and award dated 08.12.2014 passed in MVC No.126 of 2011 by the learned II Additional Senior Civil Judge and Additional MACT-V, Chitradurga (for short ‘the Tribunal’), awarding compensation of Rs.9,89,600/- with interest at 7.5% per annum and fixing the liability on respondent No.1 by exonerating respondent No.3-Insurance company from the liability, has preferred this appeal.

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Brief facts of the case are as under:

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One Sri Rudreshi filed the claim petition before the Tribunal in MVC No.126 of 2011 contending that he was proceeding in the motorcycle bearing registration No.KA-15H-7516 as a pillion rider on 03.11.2010 at about 6.00 p.m.,

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from Bhadhurgatta village Kogunde village. When the motorcycle reached near the land belonging to Basaveshwara temple in Kogunde village, the rider of the motorcycle ridden the same in a high speed and in a rash and negligent manner, as a result of which, the motorcycle fell down so also the pillion rider and sustained injuries. Immediately he was shifted to Government Hospital, Bharamasagara where he took first aid treatment, thereafter he was shifted to Bapuji hospital, Davanagere and subsequently, he was shifted to Kasturba Medical Hospital, Manipal, wherein he took treatment as inpatient and incurred huge expenses. Therefore, the injured had filed claim petition before the Tribunal claiming compensation.

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During the pendancy of the claim petition, the injured died due to the injuries sustained by him in the road traffic accident and the present appellant being the legal representative of the deceased was impleaded for claiming compensation for the death of the deceased due to rash and negligent riding of the motorcycle by respondent No.1.

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The claim of the claimant was resisted by respondent No.3 contending that the Insurance policy

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obtained by respondent No.1 was an Act policy and therefore, the risk of the pillion rider is not covered and the Insurance company is to be exonerated from the liability.

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As the claimant died during the pendancy of the petition, his mother was impleaded and she was examined as PW1 and also examined the witnesses as PWs.2 to 4 and got marked Exs.P1 to P136 in support of her contention. The respondents got examined RWs.1 to 3 and got marked Exs.R1 to R7 in support of their contention. The Tribunal after considering the contentions of the parties proceeded to allow the petition in part awarding compensation of Rs.9,89,600/with interest at 7.5% p.a., and directed respondent No.1 being the owner of the vehicle to pay the compensation. Respondent No.3 – Insurance company was exonerated holding that since the policy was an Act policy and the deceased was a pillion rider, the risk is not covered under the policy. Aggrieved by the same, the appellant has preferred this appeal.

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Heard Sri B Pramod, learned counsel for the appellant and Sri A N Krishnaswamy, learned counsel for

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respondent No.3. Perused the materials including the Trial Court records.

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Learned counsel for the appellant submitted that even though the deceased was a pillion rider and the policy was an Act policy, still the deceased could be considered as third party and the Insurance company is liable to pay the compensation. In this regard, he has placed reliance on the decision of this Court in the case of Pintu vs. Sri Umalu & Another¹ to contend that the risk of pillion rider is covered even under the Act policy.

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Per contra , learned counsel for respondent No.3 submitted that as per the decisions in Oriental Insurance Company Ltd., vs. Sudhakaran & Others² and National Insurance Co. Ltd., vs. Balakrishnan & Others³ , the position of law is very clear that when the Insurance company issues an Act policy in respect of a two wheeler, the risk of the pillion rider is not covered under the policy and it is only the owner who will be liable to pay the compensation. Hence, he prays to reject the claim of the appellant against the

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1 [MFA No.200966/2014 dated 16.04.2019]

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2 2008 (7) SCC 428

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3 (2013) 1 SCC 731

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respondent-Insurance company to indemnify the owner of the offending vehicle.

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In view of the rival contentions urged by learned

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counsel for both the parties, the point that would arises for my consideration is:

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“Whether the Tribunal erred in exonerating respondent No.3 – Insurance Company from its liability and the same is liable to be interfered with?”

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My answer to the above point is in ‘Negative’ for the following reasons:

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Learned counsel for respondent No.3 – Insurance company relied on the judgment of this Court in the case of New India Assurance Co. Ltd., vs. Sri G Nagaraju & others⁴ wherein, learned counsel for the appellant therein relied on the following decisions:

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(1) Ningamma v. United India Insurance Co. Ltd., [2009 ACJ 2020 (SC)] (2) New India Assurance Company Ltd., v. Sadanand Mukhi [2009 ACJ 998 (SC)]

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4 2011 ACJ 1129

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(3) Oriental Insurance Co. Ltd., v. Rajni Devi [2008 ACJ 1441 (SC)]

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(4) M Akkavva v. New India Assurance Co., Ltd., [1988 ACJ 445 (Karnataka)]

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to contend that except the insurer and the insured, all others would be third parties and merely because the claim relates to the death or bodily injury to a third party and that the vehicle had valid insurance cover, the insurer cannot be made liable for the award.

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Hon’ble Supreme Court in United India Insurance Co. Ltd., Shimla Vs. Tilak Singh and others⁵ considered the question as to whether the observations made in New India Assurance Co. Ltd., Vs. Asharani⁶ in the mater of carrying passengers in goods vehicle and whether it was applied with equal force to the gratuitous passengers in any other vehicles and further whether the same dictum can be applied to a pillion rider on a motorcycle with a statutory policy. The Court referred to several judgments on this issue and held in paragraph 21 as under:

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“21. In our view, although the observations made in Asha Rani case were in

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5 (2006) 4 SCC 404

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6 (2003) 2 SCC 223

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connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appellant Insurance Company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion rider, as the insurance policy was a statutory policy, and hence it did not cover the risk of death of or bodily injury to a gratuitous passenger.”

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The Hon’ble Apex Court in the later decision in Sudhakaran K V & Another ( supra) considered the law as to whether the risk of the pillion rider is covered under the act policy. It has referred to its earlier decisions on the subject and held that the risk of the pillion rider in a motorcycle will not be covered under the act policy and such pillion rider on a two wheeler cannot be treated as a third party when the accident has taken place owing to the rash and negligent riding of the said motorcycle and observed in paragraph 25 as follows:

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“ 25. The law which emerges from the said decisions, is : (i) the liability of the insurance company in a case of this nature is not extended to a pillion-rider of the motor vehicle unless the requisite amount of premium

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is paid for covering his/her risk; (ii) the legal obligation arising under Section 147 of the Act cannot be extended to an injury or death of the owner of vehicle or the pillion-rider; (iii) the pillion-rider in a two-wheeler was not to be treated as a third party when the accident has taken place owing to rash and negligent riding of the scooter and not on the part of the driver of another vehicle.”

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The Hon’ble Supreme Court in the case of Balakrishnan & Another (supra) considering the position of law regarding liability of the Insurance company in the case of Act policy to cover the risk of a pillion rider and after taking into consideration catena of decisions, the circulars issued on the subject and the instructions that were issued by the Tariff Advisory Committee to all the insurance companies to cover the risk of the pillion riders of the scooter/motorcycle under the comprehensive policy, held in paragraph 26 as under:

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26. In view of the aforesaid factual position, there is no scintilla of doubt that a “comprehensive/package policy” would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an “Act Policy” stands on a different footing from a “Comprehensive/Package

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Policy”. As the circulars have made the position very clear and the IRDA, which is presently the statutory authority, has commanded the insurance companies stating that a “Comprehensive/Package Policy” covers the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of the “Act Policy” which admittedly cannot cover a third party risk of an occupant in a car. But, if the policy is a “Comprehensive/Package Policy”, the liability would be covered. These aspects were not noticed in the case of Bhagyalakshmi¹² (supra) and, therefore, the matter was referred to a larger Bench. We are disposed to think that there is no necessity to refer the present matter to a larger Bench as the IRDA, which is presently the statutory authority, has clarified the position by issuing circulars which have been reproduced in the judgment by the Delhi High Court and we have also reproduced the same.

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(emphasis supplied)

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Therefore, the position of law is very clear from the decisions of Hon’ble Apex Court as noted above. The risk of the pillion rider is not covered under the act or statutory policy issued under Section 147 of M.V. Act. The pillion rider cannot be considered as a third party to seek compensation when the accident in question is occurred due to the rash and

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negligent riding of the motorcycle. In view of these clear verdicts of the Hon’ble Apex Court on the subject, I am of the opinion that the contentions raised by the appellant regarding the liability of Insurance Company cannot be accepted. Hence, I answer the above point in ‘Negative’.

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The appeal is dismissed as devoid of merits.

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Sd/JUDGE

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nms

Rudreshi Since Deceased by Lr v. Ajjaiah

Case brief

What is this about?

What the court decided

Rudreshi Since Deceased by Lr v. Ajjaiah

Case brief

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