Dismissed

The Manager v. Asha

Karnataka HC22 Dec 2021MFA/7072/2010

Case brief

AI extract

What is this about?

This Miscellaneous First Appeal challenged a Motor Accident Claims Tribunal award granting compensation to relatives of a deceased motorcyclist. The insurer argued the rider's own negligence and borrower status barred liability. The court rejected these grounds, holding that liability under Section 163-A of the Motor Vehicles Act attaches based on the use of the vehicle, not the rider's fault, and

What did the court decide?

The appeal filed by the insurance company was dismissed with no order as to costs.

The Manager Vs Asha — Insurance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

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DATED THIS THE 22^ND DAY OF DECEMBER, 2021

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BEFORE

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THE HON'BLE MR.JUSTICE P.N. DESAI

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MISCELLANEOUS FIRST APPEAL NO.7072 OF 2010 (MV)

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BETWEEN

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THE MANAGER UNITED INDIA INSURANCE COMPANY LIMITED VARANACY TOWERS, NELLIKAI ROAD MANGALORE.

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THROUGH REGIIONAL OFFICE, UNITED INDIA INSURANCE CO. LTD., 5^TH FLOOR, KRISHI BHAVAN HUDSON CIRCLE BANGALORE - 560 001.

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... APPELLANT

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(BY SRI. O. MAHESH, ADVOCATE)

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AND

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ASHA, AGE 25 YEARS W/O. LATE GANESH

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MR. AKSHAL, AGE 3 YEARS D/O. LATE GANESH,

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MRS. JANU, AGE 58 YEARS W/O. AYYAPPA

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ALL ARE RESIDING AT YELEMADALU KOPPA CHIKKAMAGALORE DISTRICT

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MR. ESHWARA POOJARY AGED ABOUT 46 YEARS S/O. KORAGAPPA POOJARY R/AT SHRISTI GUNDURAO LANE MANNAGUDDA, MANGALORE.

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... RESPONDENTS

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(BY SRI. MANOHAR K.M. FOR SRI. D. KRISHNA MOORTHY, ADVOCATE FOR R1 AND R3, R2 - MINOR REPRESENTED BY R1 SRI. KRISHNA MOHAN VARMA FOR SRI. MANMOHAN P.N., ADVOCATE FOR R4)

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THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 23.03.2010 PASSED IN MVC NO.704/2009 ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE, MEMBER, MACT-IV, D.K., MANGALORE, AWARDING A COMPENSATION OF RS.4,11,000/WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION UNTIL DEPOSIT IN COURT.

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THIS MFA COMING ON FOR HEARING THROUGH PHYSICAL HEARING/VIDEO CONFERENCING, THIS DAY THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Heard the learned counsel for the appellant -

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Insurance Company and also the learned counsel appearing for respondents No.1 to 3 and 4.

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This appeal is filed challenging the judgment

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and award dated 23.03.2020 passed by the MACT, Dakshina Kannada, Mangalore, in MVC NO.704/2009, wherein the Tribunal has awarded a sum of

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Rs.4,11,000/- as compensation to the petitioners, with interest at 6% per annum from the date of petition till the date of realisation. The Insurer filed this appeal, challenging the same.

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The brief case of the claimants before the Tribunal was that, on 01.04.2009 at about 8.00 p.m., the deceased was proceeding on a motor cycle bearing registration No.KA-19/S-1468 from Kuloor Kavoor Road. When he was near Kavoor Service Station, Shanthinagara, Kavoor Village, due to the fall on a port wall on the road, he lost control and fell down and sustained injuries and then succumbed to the injuries.

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Respondent No.2 Insurer had appeared and filed written statement, denying the contents and also contends that since due to the negligence on the part of the deceased Ganesh, no liability can be fastened on respondent No.2. On the other hand, it is admitted that the offending vehicle is insured with respondent No.2 and the liability is subject to the terms and conditions of the policy.

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Before the Tribunal, the wife of the petitioner

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got examined herself as PW1 and produced the documents which are marked as Exs.P1 to P10, such as FIR, Spot Mahazar, P.M. report, Inquest report, Notice under Section 160 of MV act, IMV Report, spot sketch, ration card and medical bills. Respondents did not chose to adduce any evidence. After hearing both sides, the Tribunal awarded the said amount as compensation, which is under challenge now.

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Heard Sri. O. Mahesh, learned counsel for the appellant and Sri. Manohar K.M. for Sri. D. Krishna Moorthy, learned counsel for respondents No.1 and 3 and Sri. Krishna Mohan Varma for Sri. Manmohan P.N., learned counsel for respondent No.4

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Learned counsel for the appellant contends

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that the Tribunal has erred in determining the compensation, which is not based on the evidence and material placed on record. It is also contended that since the accident occurred due to his own negligence, the claim petition was not maintainable as the deceased

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stepped into the shoes of the owner being the borrower of the insured vehicle.

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The learned counsel also argued that the Tribunal has not properly considered the income of the deceased. It is artificially brought down to reckon that just to claim compensation under Section 163-A of M.V. Act, which is deliberate. Therefore, the claim petition is not maintainable. With this main ground, the learned counsel argued to set aside the award as far as the direction to pay the insurance amount by the insurance company.

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Against this, the learned counsel for

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respondents No.1 to 3 supported the judgment and award passed by the Tribunal. Further, the learned counsel for respondent No.4 also relied on Section 163-A of M.V. Act itself. There is no distinction between the borrower of the vehicle and rider of the vehicle for a petition filed under Section 163-A of M.V. Act. Therefore, the claim petition under Section 163-A of M.V. Act is

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maintainable and negligence attributed cannot be considered by the court.

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From the material on record, the point that arise for my consideration is :

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(i) Whether the Tribunal is justified in fastening the liability on the Insurance Company for the death of the rider of motor cycle?

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(ii) Whether the income of the deceased was assessed properly? What is required for considering the petition filed under Section 163-A of M.V. Act?

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In my considered view, both pointes are answered negative, for the following reasons :

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Learned counsel appearing for the Insurance Company relied upon the judgment of RAM KHILADI VS. UNITED INDIA INSURANCE COMPANY LIMITED

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reported in 2020 Part II SCC 550 , contending that since the borrower of the vehicle stepped into the shoes of the owner and Insurance Company is not liable to pay

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compensation to the accident caused due to negligence on the part of the rider himself.

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This contention of the learned counsel for the

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Insurance Company is not tenable and no more resintegra that the rider stepped into the Hon'ble Apex Court in the case of CHANDRAKANTA TIWARI vs. NEW INDIA ASSURANCE COMPANY LIMITED reported in (2020) 7 SCC 386, wherein the Hon'ble Apex Court at para 12 held as under :

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"12. 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 163-A 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."

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Further, the learned single Judge in a coordinate bench of this in MFA Crob No.767/2013 c/w. MFA No.24941/2011 decided on 18.09.2020 has also referred to the above decision and held that there cannot be distinction between the rider and the pillion rider for a petition under Section 163-A of the M.V. Act.

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Further, the learned Single judge of this court in the case of H. SUBBRAYA BHAT V/S. SMT SULOCHANA BHAT H. in MFA No.5399/2016 dated 03.12.2021, has also referred to the decision of the UNITED INDIA INSURANCE COMPANY LTD. VS. SUNIL KUMAR AND ANOTHER reported in AIR 2017 SC 5710 , wherein it is held that no defence is available for the Insurance Company to plead the negligence of the deceased. Further, the contention of the Insurance Company in RAM KHILADI VS. UNITED INDIA INSURANCE COMPANY LTD. reported in 2020 Part II SCC 550 is also referred and the judgment of the Hon'ble Apex Court in the case of NINGAMMA vs. UNITED INDIA INSURANCE COMPANY LIMITED (Civil

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Appeal No.3538/2009 - SLP(C) 24236/2008 disposed

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of on 13.05.2009 is also considered and held that the Insurance company cannot avoid liability.

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The coordinate bench of this Court has discussed the provisions of Section 163-A of M.V. Act and relying on the decision of CHANDRAKANTA TIWARI

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vs. NEW INDIA ASSURANCE COMPANY LIMITED

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reported in (2020) 7 SCC 386 and held that the cause of action as per Section 163-A of M.V. Act is use of the motor cycle, cause of action alone which need to be established without any requirement to prove fault on the part of the driver, whether it be the owner or any other person. In view of the pronouncement of this judgment and also the judgment of the other coordinate bench of this court and also the decision of Chandrakanta Tiwari (supra), the first contention of the Insurance Company is not tenable.

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The second contention is considered in the

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light of the petition averments. It is clearly disclose that the monthly income of the deceased is shown as

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Rs.3,000/-. If the said income is taken per month, the said petition filed by the petitioner under Section 163-A of the M.V. Act is maintainable. The Tribunal has rightly taken the earning as Rs.3,000/- per month as per Schedule - II of Section 163-A of the M.V. Act. Therefore, the second contention is also not tenable.

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I find the judgment and award passed by the Tribunal is just and proper and liability fixed is also just as the policy was in force. Hence, there is no grounds to interfere with the finding of the Tribunal. The appeal is being devoid of merits is liable to be dismissed. Hence, I pass the following :

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ORDER

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