Appeal filed by insurer challenging High Court Motor Accidents Award was dismissed. Bench held insurer liable for negligent driving caused death of pillion rider; acquittal of motorcycle rider in criminal case did not bar compensation claim.
Appeal dismissed; amount in deposit transmitted to tribunal for disbursement.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 04TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR.JUSTICE P.N.DESAI
M.F.A. NO.5739 OF 2012 (MV-D)
BETWEEN:
NATIONAL INSURANCE CO., LTD., REGIONAL OFFICE, NO.144, SUBHARAM COMPLEX, M.G.ROAD, BANGALORE-560001, REP. BY ITS ADMINISTRATIVE OFFICER, SMT.D.KARTHIKA. ...APPELLANT
(BY SHRI. B.C.SEETHARAMA RAO, ADVOCATE)
AND:
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(BY SRI T.MOHANDAS SHETTY, ADVOCATE FOR R2, SRI RAVINDRA BABU, ADVOCATE FOR R3 & R4; V/O/DT: 31.06.2016 SERVICE OF NOTICE TO R1 HELD SUFFICIENT)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED: 15.02.2012 PASSED IN MVC NO.6876/2009 ON THE FILE OF XXI ACMM AND XXIII ADDITIONAL SMALL CAUSE JUDGE, BANGALORE, AWARDING A COMPENSATION OF RS.2,33,334/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal lays challenge to the judgment and award
passed by the XXI ACMM and XXIII A.S.C.J, Bengaluru, dated 15.02.2012 in MVC No.6876/2019, wherein the tribunal has awarded a compensation of Rs.2,33,334/- with interest at 6% per annum to the claimant/petitioner who was respondent No.1 in this case.
was that on 30.09.2007, while the deceased – Ramachandra
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@ Chandrakumar was travelling as a pillion rider on the motor cycle bearing registration No.KA-02/EM-3037, which was ridden by one Srinivas towards north-south wise at Subramanyanagar, Bengaluru, at that time, the driver of the car bearing Registration No.KA-04:MD/911 drove the same with a high speed in a rash and negligent manner and dashed against the motor cycle. Due to the impact, the pillion rider – Ramachandra fell down and sustained grievous injuries. Immediately after the accident, Ramachandra shifted to Nimhans hospital, wherein he took treatment as an inpatient and succumbed to the injuries on 04.10.2007. Hence, the petitioner being the father of deceased - Ramachandra filed the claim petition, claiming compensation for the death of his son.
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petitioner. It is contended that the charge-sheet was filed against the rider of the motorcycle and the driver of the car is no way responsible for the accident. Hence, the petitioner is not entitled for any compensation. It is also contended that the driver of the car was not having valid driving license as on the date of the accident, hence, respondent No.1 is not liable to pay compensation and also denied other contentions of petitioner. The owner of the car also took similar contention and contended that the accident was due to negligence on the part of the rider of the motor cycle bearing registration No.KA-02:EM-3037. In fact the driver of the car has lodged the complaint against the rider of motor cycle and the rider of the motor cycle was charge sheeted and there is no negligence on the part of the driver of the car. Further it is also contended that the petitioner is entitled to claim compensation from the owner and insurer of the motor cycle. With these main contentions, they prayed to dismiss the petition.
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injuries and succumbed to the injuries. The police have registered a false case against respondent No.3 on the basis of complaint lodged by driver of the car. But he was acquitted of the charges. It is further contended that as per the case history sheet maintained in the Nimhans hospital, it is stated that the two wheeler is hit by four wheeler in the death memo. Hence, they prayed to dismiss the petition against them.
contentions of the parties, framed the following issues:
2. Whether the petitioner proves that the death of his son Ramachandra @ Chandra Kumar on 4.10.2007 is due to the use of Motor cycle bearing Reg. No.KA-02:EM-3037 on 30.9.2007 in which his son was a pillion rider?
3. Whether the petitioner is entitled for compensation? If so, what is the quantum? From whom payable?
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4. What order or award?”
himself as PW.1, got examined another two witnesses as PWs.2 and 3 and got marked sixteen documents as Exs.P1 to P16 which consists of copy of the FIR, copy of the complaint, requisition letter, mahazar, PM report, inquest report, ration card, election identity car, authorization letter, case sheet, certified copy of the judgment in criminal case against the 3rd respondent, 9 certified copies of depositions, intimation letter etc., On behalf of respondents, one G.Shivakumar – Administrative Officer got examined himself as RW.1 and driver of the car - Bharath Kamath got examined himself as RW.2 and got marked two documents as Exs.R1 and R2.
for the parties, the tribunal passed the impugned judgment and award which is under challenge now.
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the tribunal has failed to appreciate the evidence on record. In fact, the accident occurred due to the negligence of the rider of the motor cycle. The tribunal ought to have decided the negligence issue based on the material evidence placed on record, even though the petition was filed under Section 163-A of the M.V.Act. Even in a bonafide claim under Section 163-A of the Motor Vehicles Act, the liability to pay the compensation would be against the owners and insurers of both the vehicles involved in the accident. The charge sheet was manipulated against rider of the motor cycle. It is the rider of the motor cycle alone who is responsible for the cause of accident and it is the deceased who was riding the motorcycle at the time of accident. Therefore, the father of the deceased is not entitled for any compensation from the third party and the evidence of RW.2 is not considered by the tribunal. Therefore, learned counsel argued that the award of the compensation is contrary to material on record hence, prays to set aside the award and dismiss the appeal.
petitioner/respondent No.1 in this appeal supported the
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impugned judgment and award and stated that the judgment passed by the tribunal is just, proper and reasonable and the same does not requires any interference.
my consideration of this court is:
2. Whether the claimant being father of the deceased who is rider of the motorcycle is entitled for compensation.”
examined himself as PW.1 and produced documents which shows that the deceased died in the accident. The petitioner is not the eye witness to the accident and he has examined rider of the motorcycle as PW.3. Admittedly, the charge sheet is filed against the rider of the motorcycle who admitted that he was riding the motor cycle at the time of
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accident. He was acquitted in the criminal case as per the judgment passed in C.C.No.245/2008 dated 19.08.2010Ex.P13. Therefore, the tribunal held that the death of the deceased while travelling as a pillion rider in the motor cycle is proved. Further, the tribunal taking the income of the deceased and other materials, awarded the compensation.
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insurer has failed to prove that the accident occurred due to the rash and negligent riding of the motorcycle. Further, the respondents have failed to prove that there is no negligence on the part of the driver of the car. Hence, the tribunal found that the accident occurred due to the negligence of the driver of the car. But the tribunal believing the evidence of PW.3 and looking to the evidence of driver of the car, came to conclusion that the accident occurred due to the negligence of the car driver. Therefore, answered that issue.
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Supreme Court in the decision rendered in the case of United India Insurance Company Ltd. vs. SunilKumar and anr. reported in AIR 2017 SC 5710 while considering the claim petition under Section 163A of Motor Vehicles Act (for short the Act), held that in a proceeding under Section 163A of the Act, it is not open for the Insurer to raise any defence of negligence on the part of the victim. Therefore, the question of considering the negligence of the deceased does not arise and insurer could not raise such defence in a petition filed under Section 163A of Act. Whether he was a rider or pillion rider, the tribunal has came to the conclusion based on the evidence and held that it is the driver of the car who has caused the accident and involvement of car is not disputed. Therefore, the insurer/appellant is liable to pay the compensation.
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filed by the appellant does not survive for consideration. The appeal being devoid of merit is liable to be dismissed.
In the result, I proceed to pass the following:
ORDER
(iii) The amount in deposit be immediately
transmitted to the tribunal for disbursement.
Sd/-
JUDGE
HJ
2 issues framed by the court
Whether the appeal against the High Court Appealable Award should be allowed?
Whether the claimant father of deceased is entitled for compensation under Section 163-A of the Motor Vehicles Act?
Colour shows how this judgement treated each authority
United India Insurance Company Ltd. vs. SunilKumar and anr.Referred¶64
_AIR 2017 SC 5710_
3 provisions across 1 enactments
NATIONAL INSURANCE CO., LTD.
SRI. MUNIYAPPA
M/S. ABHARAN JEWELLERS
SRI SRINIVASA
SRI HANUMANTHARAJU
P.N.DESAI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
