Dismissed

Sulbha Dilip Bhide v. the Managing Director

Karnataka HC6 Dec 2022MFA/20528/2012

Case brief

AI extract

What is this about?

In two miscellaneous first appeals filed under the Motor Vehicles Act, the High Court addressed a claim for enhancement of compensation and an insurer's challenge to liability. The Court corrected the multiplier used for dependency loss but held the insurer's liability limited to the personal accident cover amount.

What did the court decide?

Compensation allowed at Rs. 2,22,828/- subject to insurer payment of Rs. 1,00,000/- under personal accident cover.

Sulbha Dilip Bhide Vs the Managing Director — Insurance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 6^TH DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE R.NATARAJ MISCELLANEOUS FIRST APPEAL NO.20528/2012 (MVC) C/W MISCELLANEOUS FIRST APPEAL No.21637/2011

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IN M.F.A.No.20528/2012:

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BETWEEN:

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SULBHA DILIP BHIDE W/O DILIP BHIDE, AGE: 58 YEARS, R/O. TILAKWADI,

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TQ: BELGAUM. DIST: BELGUAM.

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SRI YOGESH DILIP BHIDE S/O DILIP BHIDE AGE: 29 YEARS, OCC: STUDENT, R/O. TILAKWADI, TQ: BELGAUM. DIST: BELGAUM.

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MISS.SAMPADA DILIP BHIDE AGE: 24 YEARS, R/O. TILAKWADI, TQ: BELGAUM. DIST: BELGUAM. … APPELLANTS (BY SRI. Y. LAKSHMIKANT REDDY, ADV.)

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AND

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THE MANAGING DIRECTOR THE HIRANYAKESHI CO.OP.

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SUGAR FACTORY LTD.,

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SANKESHWAR TQ., DIST: BELGAUM,.

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THE DIVISIONAL MANAGER,

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THE NATIONAL INSURANCE CO. LTD., RAMDEV GALLI, BELGAUM. … RESPONDENTS

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(BY SRI SURESH S.GUNDI, ADV. FOR R2, R1-NOTICE DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173 (1) OF M.V. ACT, AGAINST THE JUDGMENT AND AWARD DATED 12.01.2011 PASSED IN MVC No.1234/2008 ON THE FILE OF THE I-ADDL. SENIOR CIVIL JUDGE AND MEMBER, MACT, BELGAUM, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A.No.21637/2011:

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BETWEEN:

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DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE, RAMADEV GALLI, BELGAUM, NOW REP: BY ITS ADMINISTRATIVE OFFICER, SMT. RENUKA Y RANEBENNUR, NATIONAL INSURANCE CO. LTD., DIVISIONALOFFICE, SUJATA COMPLEX, HUBLI. …APPELLANT

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(BY SRI. SURESH S. GUNDI, ADV.)

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AND:

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SMT.SULBHA DILIP BHIDE AGE: 57 YEARS, OCC: HOUSE HOLD WORK, R/O TILAKWADI, BELGAUM.

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TQ: AND DIST:BELGAUM.

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SRI. YOGESH DILIP BHIDE AGE: 28 YEARS, OCC: STUDENT, R/O TILAKWADI, BELGAUM.

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MISS.SAMPADA DILIP BHIDE

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AGE: 23 YEARS, OCC: HOUSEHOLD WORK, R/O TILAKWADI, TQ AND DIST:BELGAUM.

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THE MANAGING DIRECTOR, HIRANYAKESHI CO-OP SUGAR FACTORY LTD.,

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SANKESHWAR,

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TQ: HUKKERI, DIST:BELGAUM. … RESPONDENTS

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(BY SRI. Y. LAKSHMIKANT REDDY, ADV FOR R1 & R2, R3 SERVED, SRI B.S.KAMATE, ADV. FOR R4)

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THIS MFA FILED UNDER SECTION 173(1) OF MV ACT, 1988, AGAISNT THE JUDGMENT AND AWARD DATED 12-01-2011 PASSED IN MVC.NO.1234/2008 ON THE FILE OF THE I-ADDL.SENIOR CIVIL JUDGE AND MEMBER, MACT, BELGAUM, AWARDING THE COMPENSATION OF RS.1,42,830/- WITH INTEREST AT THE RATE OF 9% P.A., FROM THE DATE OF PETITION TILL REALISATION.

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THESE APPEALS COMING ON FOR FINAL HEARING ON 15.11.2022 AND THE SAME HAVING BEEN HEARD AND RESERVED FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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M.F.A.No.20528/2012 is filed by the claimants seeking

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enhancement of the compensation awarded by the I Addl. Senior Civil Judge and MACT, Belgaum, in M.V.C.No.1234/2008. M.F.A.No.21637/2011 is filed by the insurer challenging the liability imposed upon it to pay the compensation awarded in M.V.C.No.1234/2008.

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The claimants are the legal heirs of Dilip Bhide who was aged 55 years and was earning a sum of Rs.40,000/-

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p.a. The claimants’ claimed that on 16.06.2005 at about 3.30

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p.m., the deceased was riding his motorcycle bearing registration No.KA-23/K-4917 from Gotur towards Sankeshwar. By that time, an unknown vehicle dashed against him resulting in serious injuries to him and he died at the hospital. The claimants therefore, filed a claim petition under Section 163-A of the Motor Vehicles Act claiming compensation from the owner and insurer of the motorcycle that the deceased was riding.

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The claim petition was opposed by the owner of the motorcycle who contended that the claim petition was false and frivolous. It however admitted that the deceased was employed by it. It denied the accident as well as the loss sustained by the claimants. It admitted that it was the owner of the motorcycle and it entrusted the motorcycle to the deceased for work in the factory.

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The insurer on the other hand claimed that the claimants had already filed a claim petition under Section 166 of the Motor Vehicles Act, in M.V.C.No.484/2007. It denied the accident as well as the entitlement of the claimants for the

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compensation. It claimed that the deceased was riding the motorcycle in a rash and negligent manner and he himself caused the accident. Based on these rival contentions, the Tribunal set down the case for trial.

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The claimant No.2 was examined as PW-1 and he marked Ex.P.1 to Ex.P.4. The insurer examined one of its officials as RW-1 who marked Ex.R.1 to Ex.R.3.

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Based on the oral and documentary evidence, the

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Tribunal held that the deceased was employed with the owner of the motorcycle. It noticed the contentions urged in the claim petition that the motorcycle was shunted by a goods vehicle resulting in injuries to the deceased. The Tribunal held that since the petition was filed under Section 163-A of the Motor Vehicles Act, there was no need to ascertain who was negligent. The Tribunal therefore, held that the accident occurred involving the motorcycle in question and that the deceased died in that accident arising out of the use of the motorcycle. The Tribunal held that the claimants had restricted the income of the deceased to a sum of Rs.40,000/-

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per annum and held that the claim petition was maintainable

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and consequently, awarded the following compensation:

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Sl. No.	Heads	Amount (In Rs.)
1.	Towards loss of dependency	1,33,330/-
2.	Towards loss of consortium	5,000/-
3.	Towards loss of estate	2,500/-
4.	Towards funeral obsequies and transportation	2,000/-
	Total	1,42,830/-

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The claimants being aggrieved by the

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compensation awarded have filed an appeal before this Court while the insurer has also filed an appeal challenging its liability.

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The learned counsel for the claimants submitted

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that the Tribunal committed an error in applying the multiplier of 5 while the multiplier must have been 8. He submitted that the Tribunal must have awarded enhanced compensation in view of the falling value of the rupee by factoring inflation.

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The insurer on the other hand submitted that the

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claimant was a rider who was riding a motorcycle that

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belonged to his employer and therefore, he stepped into the shoes of the owner. He submitted that at the most he would be entitled to personal accident cover and would not be a third party. He submitted that the claimants cannot file a claim petition against the insurer of the motorcycle that the deceased was riding. He also contended that the claimants had filed M.V.C.No.484/2007 under Section 166 of the Motor Vehicles Act, wherein the income of the deceased was claimed at more than Rs.40,000/- per annum and therefore, a claim petition under Section 163-A of the Motor Vehicles Act, was not maintainable.

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I have considered the submissions made by the learned counsel for the parties.

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It is not in dispute that the claimants had filed a

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claim petition under Section 166 of the Motor Vehicles Act in M.V.C.No.484/2007 and that the said claim petition was withdrawn. No doubt, the claimants had claimed that the income of the deceased was Rs.8,335/- p.m.. However, they had restricted the income of the deceased to Rs.40,000/- per

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annum and had filed the claim petition under Section 163-A of the Motor Vehicles Act. Therefore, the claim petition under Section 163-A of the Act was maintainable.

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Now, coming to the question of the compensation determined by the Tribunal, the Tribunal had considered the age of the deceased at 55 years but had wrongly applied the multiplier as 5 instead of 8. Therefore, the compensation that had to be determined is a sum of Rs.26,666X8 which is equal to Rs.2,13,328/-.

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In addition, the claimants were entitled to loss of consortium of Rs.5,000/- and loss of estate of Rs.2,500/- and funeral expenses of Rs.2,000/-. In all, the claimants would be entitled to a sum of Rs.2,22,828/-.

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Now, coming to the question whether the insurer was liable to pay the compensation, as held by the Hon’ble Apex Court in RAMKHILADI AND ANOTHER VS. UNITED INDIA INSURANCE CO., LTD., AND ANOTHER [2020 ACJ

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627] , the deceased was riding the motorcycle belonging to

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the owner and hence would step into the shoes of the owner and therefore, would be entitled to the personal accident cover under the policy of insurance, as no claim could be made against the insurer of the motorcycle. As the law now stands, the deceased would not be a third party and therefore, the claim petition against the insurer of the motorcycle would not lie.

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The insurance policy which is placed on record as Ex.R.3 discloses that the personal accident cover to the owner/driver was a sum of Rs.1,00,000/- and therefore, the claimants are entitled to recover a sum of Rs.1,00,000/- from the insurer of the offending vehicle along with interest at the rate of 6% p.a. from the date of claim petition till the date of realization.

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Consequently, the appeal filed by the insurer is allowed in part and the liability fixed on the insurer of the motorcycle is limited to a sum of Rs.1,00,000/- payable by it to the claimants along with interest @ 6% per annum from the date of claim petition till the date of realization. The insurer is

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directed to deposit the compensation within a period of one month from the date of receipt of certified copy of this order.

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The appeal filed by the claimants is allowed in

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part .

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Upon deposit, 50% of the compensation along with interest shall be deposited in the name of claimant No.1 in any nationalized bank for a period of three years. Remaining 50% shall be released her favour.

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The amount in deposit is ordered to be transmitted

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to the Tribunal for further orders.

(Sd/-) JUDGE

Jm/-

RNJ: M.F.A.No.20528/2012 C/W

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13.01.2023 M.F.A.No.21637/2011

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‘MATTER PERTAINS TO DHARWAD BENCH’

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ORDER ON 'FOR BEING SPOKEN TO'

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When the judgment in MFA No.20528/2012 c/w MFA No.21637/2011 was pronounced on 06.12.2022, this Court had allowed the appeal filed by the claimants in part. However, this was mistake as the appeal filed by the insurer was allowed in part. Consequently, the appeal filed by the claimants had to be dismissed.

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In view of the above, the operative portion of the judgment dated 06.12.2022 passed in MFA No.20528/2012 c/w MFA No.21637/2011 at paragraph No.17, it shall be read as "the appeal filed by the claimants is dismissed".

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This order shall be read in conjunction with the judgment dated 06.12.2022.

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(Sd/-) JUDGE

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PMR

Sulbha Dilip Bhide v. the Managing Director

Case brief

What is this about?

What did the court decide?

Sulbha Dilip Bhide v. the Managing Director

Case brief

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