Partly allowed

Legal Manager v. Smt.Lakshmi

Karnataka HC4 Jan 2021MFA/594/2015

Case brief

AI extract

What is this about?

Two appeals challenging the judgment awarding compensation under Section 163-A of the Motor Vehicles Act. The High Court affirmed the Tribunal's award, rejecting the insurers' claim that negligence of the claimant could be a defense and upholding liability against the motorcycle insurer despite the deceased not being the owner.

What did the court decide?

Both appeals dismissed; order modified to direct insurance company to deposit balance amount within six weeks.

Legal Manager Vs Smt.Lakshmi — Insurance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^th DAY OF JANUARY 2021

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PRESENT

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THE HON’BLE MR. JUSTICE ALOK ARADHE

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AND

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THE HON’BLE MR. JUSTICE V. SRISHANANDA M. F. A. No. 8455/2014 (MV) C/W.

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M.F.A NO.594/2015 (MV)

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IN MFA No.8455/2014 (MV) BETWEEN:

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SMT. LAKSHMI W/O LATE H.B PRABHU AGED ABOUT 27 YEARS R/AT HANUMANTHAPURA VILLAGE ATAGOORU HOBLI MADDUR TALUK MANDYA DISTRICT

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PRESENTLY R/AT KEMPREGOWDANA DODDI KASABA HOBLI RAMANAGARA TALUK AND DIST. ..APPELLANT (BY SRI RAJU S, ADV.)

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AND :

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SRI. GOPAL S/O LATE NAGEGOWDA AGED BY MAJOR R/AT NO.22, GOPASANDRA

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KANAKAPURA TALUK RAMANAGAR DISTRICT (OWNER OF LORRY BEARING NO KA-42/469)

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THE ORIENTAL INSURANCE COL. LTD NO.22, V.C PLAZA DR. DVG ROAD VASAVANAGUDI BANGALORE – 560004.

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SRI VENKATARAJU S/O VENKATESHAPPA AGED BY MAJOR R/AT SHEENAPPA NEAR OM SHAKTHI TEMPLE MANGAMMANAPALYA BANGALORE – 560068 (OWNER OF BAJAJ MOTORCYCLE NO. KA-01/EC-3393).

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RELIANCE GENERAL INSURANCE CO.LTD 5^TH FLOOR, CENTENARY BUILDING NO.28, M.G ROAD BANGALORE.

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BASAVARAJU HANUMANTHAPURA VILLAGE ATAGOORU HOBLI MADDUR TALUK MANDYA DISTRICT. …RESPONDENTS

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(R1 SERVED. Sri.K SURESHA, ADV FOR R2 R3 NOTICE DISPENSED WITH SRI B PRADEEP ADV FOR R4 SRI B KESHAVAMURTHY ADV FOR R5)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21.07.2014 PASSED IN MVC NO.84/2009 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE RAMANAGARA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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IN M.F.A NO.594/2015 BETWEEN :

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LEGAL MANAGER RELIANCE GENERAL INSURANCE CO.LTD RGIC, NO.28, EAST WING 5^TH FLOOR, CENTENARY BUILDING M.G ROAD, BANGALORE – 560001. ...APPELLANT

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(BY SRI.PRADEEP.B, ADVOCATE)

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AND :

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SMT LAKSHMI W/O LATE H.B PRABHU AGED ABOUT 28 YEARS HANUMANTHAPURA VILLAGE ATAGOORU HOBLI MADDUR TALUUK, MANDYA DIST PRESENTLY R/AT KEMPEGOWDANADODDI KASABA HOBLI RAMANGARA TALUK AND DISTRICT- 562127.

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BASAVARAJU MAJOR HANUMANTHAPURA VILLAGE ATGAGHOORU HOBLI

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MADDUR TALUK RAMANAGARA DIST- 562127.

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GOPALA S/O LATE NAGEGOWDA NO.22, GOPASANDRA, KANAKAPURA TALUK RAMANAGARA DIST- 562127.

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THE ORIENTAL INSURANCE CO.LTD NO.22, V.C PLAZA, DR DVG ROAD BASAVANAGUDI BANGALORE – 04.

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VENKATARAJU V S/O VENKATAESHAPPA C/O SEENAPPA, MAJOR NEAR OM SHANKTHI TEMPLE MANGAMMANAPALYA BANGALORE – 68.

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…RESPONDENTS

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(BY SRI RAJU S, ADV FOR R1: SRI KESHAVA MURTHY ADV FOR R2: SRI. BHUSHANI KUMAR, ADV FOR R3 SRI C SHANKARA REDDY, ADV FOR R4: R5-STEPS TO BE TAKEN.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21.07.2014 PASSED IN MVC NO.84/2009 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE RAMANAGARA, AWARDING A COMPENSATION OF RS.4,62,822/- WITH INTEREST @ 6% P.A FROM THE DATE OF THE PETITION TILL THE DATE OF REALIZATION AND ETC.

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THESE APPEALS COMING ON FOR ORDER , THIS DAY, V.SRISHANANDA, J, DELIVERED THE FOLLOWING:

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J U D G M E N T

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Claimant and Insurance Company are in appeal in MFA Nos.8455/2014 and MFA Nos.594/2015 respectively, challenging the validity of the Judgment and Award dated 21^st July 2014 on the file of Addl. Senior Civil Judge and MACT, Ramanagara, in MVC No.84/2009 (hereinafter referred to as “the Tribunal” for short).

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The brief facts, which are necessary for disposal of the appeals are as under:

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A claim petition came to be filed under Section 166 of the Motor Vehicles Act seeking for compensation alleging that on 24.08.2006 at about 12.00 noon, when Mr.H.B.Prabhu was moving on a motor-cycle bearing No.KA-01-EC-3393 on Bangalore-Marathhalli outer ring road, dashed against a parked lorry bearing No.KA-02-469 without proper signal and sustained injuries and succumbed to the injuries. It is further contended that deceased was the sole bread-winner of the family and

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thus, the claimants have sought for awarding suitable compensation.

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In response to the notice issued, respondents 1 and 3 who are the owner of the lorry and owner of the motor-cycle remained absent and they were placed exparte. Respondents 2 and 4 who are the Insurance Company of the motor-cycle and lorry contested the petition and filed the necessary objection statement. When the petition came to be amended, filed written statement so also filed by fourth respondent stating that annual income of the petitioner would be Rs.72,000/-. Therefore, the petition under Section 163-A is not maintainable. Based on the rival contentions, the Tribunal raised the following issues:

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"1. Whether the petitioner proves that on 24.08.2006 at about 12.00 p.m., while the deceased H.B.Prabhu was proceeding with pillioner Krishna, on the motor cycle bearing No.KA-01-EC-3393, dashed to stationary lorry bearing No.KA-42-469 parked negligently near

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ECO Space Business Park, on Marathhalli Outer Ring Road, Bangalore and succumbed to injuries sustained in the accident?

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- 2. Whether second respondent Insurance Co. proves that the accident occurred due to rash and negligent riding of the motor cycle bearing No.KA-01-EC-3393 and dashing against parked lorry bearing No.KA-42469?

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3.Whether petitioner is entitled to compensation? If so, what is the just quantum of compensation and from whom?”

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In order to prove the claim petition averments,

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wife of the deceased Lakshmi is examined as P.W.1 and also examined one Basavaraj as P.W.2. On behalf of the Insurance Company, Smt.Roopa has been examined as R.W.1. On behalf of the claimants, police investigation papers were exhibited and marked as Exs.P1 to P6 and copies of the FIR, charge sheet, spot mahazar, inquest, sketch, PM Report, policies of the vehicles and voters’ identity card were marked as Exs.P.1 to P.9. On behalf of

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the Insurance Company, copy of the policy is marked as Ex.R1.

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On cumulative consideration of oral and documentary evidence on record, the Tribunal allowed the claim petition in part and awarded a sum of Rs.4,62,822/together with interest at 6% p.a., from the date of petition till realization and held that Respondents 1 to 4 are jointly and severally liable to pay the compensation and second and fourth respondent being the Insurance Company directed to pay the compensation with interest. The compensation amount was also ordered to be paid in the ratio of 50:50 by second and fourth respondents-Insurance Companies. It is that judgment which is under challenge by the claimants as well as Insurance Company in these appeals.

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While claimant sought for enhancement of the compensation, Insurance Company contended that the Tribunal failed to notice the ratio laid down by the Apex Court in the case of NINGAMMA AND ANOTHER

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v/s.UNITED INDIA INSURANCE COMPANY LIMITED (2009(13) SCC 710) as well as NEW INDIA INSURANCE COMPANY vs. SADANAND MUKHI (2009(2) SCC 417) . Insurance Company also contended that deceased claimed that there was an income of Rs.6,000/- p.m., and since it exceeded Rs.40,000/- p.a., the Tribunal did not have jurisdiction to allow the claim petition under Section 163-A of the Motor Vehicles Act and thus prayed for allowing the appeal.

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Per contra, the learned counsel for the claimants contended that the rider of the motor-cycle being not the owner of the motor-cycle, as against the Insurance Company is a third party and therefore, sought for dismissing the appeal of the Insurance Company and prayed for enhancement of the compensation.

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In view of the rival contentions of the parties, the following points would arise for consideration:

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i) Whether the finding recorded by the Tribunal that Insurance Company of the

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motor-cycle and the Insurance Company of the parked lorry are liable to pay the adjudged compensation inn a sum of Rs.4,62,822/- at the ratio of 50:50 is erroneous?

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ii) Whether the claimants have made out a case for enhancement of the compensation?

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The answer to the above points is in the negative for the following:

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REASONS

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In the case on hand, accidental death of Mr.Prabhu involving motor-cycle bearing No.KA-01-EC3393 and parked lorry bearing No.KA-42-469 is not in dispute. Initially, the claim petition came to be filed under Section 166 of the Motor Vehicles Act. Subsequently,

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same was amended and the petition was sought to be adjudicated under the provisions of Section 163-A of the Motor Vehicles Act. The main contention urged by the learned counsel for the Insurance Company is that the

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Tribunal ought not to have allowed the claim petition against the Insurance Company as the rider of the motorcycle would step into the shoes of the owner of the motorcycle as per the decision of the Hon’ble Apex Court in NINGAMMA and SADANANDA MUKHI's case supra. However, it is now well settled principle of law in view of the Judgment of the Hon’ble Apex Court in UNITED INDIA INSURANCE COMPANY LIMITED vs. SUNIL KUMAR AND ANOTHER reported in (2014)1 SCC 680 , which was subsequently approved in the case of SHIVAJI

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AND ANOTHER vs. DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., reported in AIR 2018 SC

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3705 that since the deceased is not the owner of the motor-cycle, as against the Insurance Company, he would be treated as a third-party. Therefore, the Insurance Company is liable to pay the adjudged compensation. The relevant portion of Sunil Kumar's case is culled out hereunder:

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“6. We are, therefore, of the view that liability to make compensation under Section

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163-A is on the principle of no fault and, therefore, the question as to who is at fault is immaterial and foreign to an enquiry under Section 163-A. Section 163-A does not make any provision for apportionment of the liability. If the owner of the vehicle or the insurance company is permitted to prove contributory negligence or default or wrongful act on the part of the victim or claimant, naturally it would defeat the very object and purpose of Section 163-A of the Act. Legislature never wanted the claimant to plead or establish negligence on the part of the owner or the driver. Once it is established that death or permanent disablement occurred during the course of the user of the vehicle and the vehicle is insured, the insurance company or the owner, as the case may be, shall be liable to pay the compensation, which is a statutory obligation.”

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The said principals of law was again subject

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matter of another decision in Shivaji's case cited supra.

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Relevant portion of the said judgment is culled out hereunder:

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“5. 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 & Anr. 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 163A 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 was taking an unduly long time”. The Court observed that if an insurer was permitted to raise a defence of negligence under Section 163A of the Act, it would “bring a proceeding under Section 163A of the Act at par with the proceeding under Section 166 of the Act which would not only be self-contradictory

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

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Applying the legal principles enunciated, deceased being not the owner of the motor-cycle, the finding recorded by the Tribunal that the Insurance Company of the motor-cycle bearing No.KA-01-EC-3393 is liable to pay the adjudged compensation in the ratio of 50:50 thus cannot be held erroneous and accordingly, point is answered. Insofar as the amount of compensation is concerned, Tribunal has taken into consideration the II Schedule to the Motor Vehicles Act and allowed a sum of Rs.4,62,822/-. In the considered opinion of this Court, since the petition is under Section 163-A of the Motor Vehicles Act, award of sum of Rs.4,62,822/- is perfectly justifiable and the same is as per II Schedule to Section

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163-A of the Motor Vehicles Act. Accordingly, Point No.2 is answered.

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In view of the foregoing discussion, we pass the following order:

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ORDER

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The appeal filed by the Insurance Company as well as the claimants are hereby dismissed. Amount in deposit, if any, is ordered to be transmitted to the Tribunal forthwith. Balance amount is ordered to be deposited by Insurance Company within six weeks from the date of receipt of a certified copy of this order. Office to draw modified award accordingly.

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Sd/JUDGE

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Sd/JUDGE

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BNV

Legal Manager v. Smt.Lakshmi

Case brief

What is this about?

What did the court decide?

Legal Manager v. Smt.Lakshmi

Case brief

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