Dismissed

The Oriental Insurance Co. Ltd. v. Sri Devaraju

Karnataka HC6 Apr 2022MFA/2057/2012

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed an appeal by an insurance company against an award of Rs.50,000 compensation. The court held that Section 140 compensation is based on no-fault liability regardless of the deceased's negligence and that the insurance company failed to prove the deceased lacked a license.

What did the court decide?

The appeal is dismissed; the Tribunal's award of Rs.50,000 with interest is confirmed.

The Oriental Insurance Co. Ltd. Vs Sri Devaraju — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF APRIL, 2022

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BEFORE

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THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.2057/2012 (MV)

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BETWEEN:

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THE ORIENTAL INSURANCE CO. LTD., DO-7, PEENYA, NO.44 ANANTHA COMPLEX NH-4 PEENYA FIRST STAGE TUMKUR ROAD BANGALORE-560 057 THROUGH ITS REGIONAL OFFICE NO.44/45, LEO SHOPPING COMPLEX RESIDENCY ROAD BANGALORE-25 REPRESENTED BY ITS DEPUTY MANAGER.

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… APPELLANT

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(BY SRI.S.V.HEGDE MULKHAND, ADVOCATE (VC))

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AND:

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SRI. DEVARAJU S/O LATE MARIGOWDA AGED ABOUT 48 YEARS

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SMT. BHAGYAMMA W/O SRI. DEVARAJU AGED ABOUT 43 YEARS

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BOTH ARE RESIDING AT NO.220, MALAVALLI SODAMUDDANAKERE

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NEW EXTENSION MANDYA DISTRICT.

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MR. MALLIKARJUNAIAH R/O SAMPURA VIDYAPEETHA POST KENGERIHOBLI BANGALORE-560 057.

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… RESPONDENTS

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(R1 TO R3 ARE SERVED)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:19.03.2011 PASSED IN MVC NO.9385/2009 ON THE FILE OF THE VII ADDITIONAL JUDGE, AND MEMBER , MACT-3 COURT OF SMALL CAUSES, BANGALORE, AWARDING A COMPENSATION OF RS.50,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.

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THIS M.F.A. COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is filed under Section-173(1), of the Motor Vehicles Act, 1988 (‘MV Act’ for brevity), by the appellant - insurance company, challenging the judgment and award dated 19.03.2011, passed in MVC No.9385/2009, on the file of Motor Accident Claims Tribunal, at Bangalore.

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Brief facts:

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That on 23.08.2009 at about 9.30 a.m., deceased Chetan Kumar was riding motor cycle bearing registration No.KA-05-EL-2356 along with pillion rider Shivraj from J.P.Nagar from Kumbalgod on Nice Road. While so proceeding on Nice Road, near Mysore Road Junction, near Kempanna Temple deceased Chetan Kumar lost control over the motor cycle due to unavoidable circumstances lost control over the motor cycle and dashed against the left side of the road medial and thereby accident occurred. Due to this impact, rider Chetan Kumar and pillion rider sustained fatal injuries.

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Soon after the accident, Chetan Kumar was shifted to BGS Global Hospital for treatment. During the course of treatment, on the same day, by 4.15 p.m., injured Chetan Kumar succumbed to the injuries sustained in Road Traffic Accident.

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Thereafter a claim petition was filed by the claimants i.e., parents of the deceased under Section-163A of the M.V. Act, claiming compensation. The Tribunal on

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appreciating the materials on record, allowed the petition in part, and awarded a compensation of Rs.50,000/- along with interest at 6% per annum, from the date of petition till the date of deposit, on invoking the provisions of Section-140 of M.V. Act, on the theory of ‘no fault liability’. Therefore, the appellant-insurance company has preferred the present appeal, challenging the impugned judgment and award of the Tribunal.

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The learned counsel for the appellant – insurance company submitted that the claim petition filed by respondent Nos.1 and 2 – claimants is not maintainable either under Section–163A or under Section-166 of the MV Act, since the deceased himself was negligent. Therefore, compensation ought to not to have been granted under Section–140 of the MV Act on ‘no fault liability’ theory. Therefore, it is submitted the Tribunal has rightly rejected the claim of the claimants under Section – 163A of the MV Act, but awarding compensation under Section–140 of the MV Act is not correct.

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Further, submitted that the deceased was rash and negligent and due to his negligence the accident was caused and at the time of the accident the deceased was not holding a Driving License. Therefore, the appellant – insurance company is not liable to pay the compensation. Therefore, at the most it can be made pay and recovery as per Section–149 of the MV Act. Therefore, prays to allow the appeal.

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The respondents are served with notice, but they remained unrepresented.

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Upon considering the submissions made by the learned counsel for the appellant-insurance company and on perusal of the records pertaining to the case, it is seen that the deceased died in the accident while he was riding motor cycle bearing registration No.KA-05-EL-2356. Therefore, respondent Nos.1 and 2 have filed a claim petition under Section–163A of the MV Act. But the Tribunal by following the judgment of the Hon’ble Apex Court in the case of Ningamma And Another vs. United India Insurance Company Limited, reported in AIR 2009

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SC 3056, has dismissed the claim under Section – 163A as the deceased was himself rash and negligent and. Therefore, dismissed the claim under Section–163A and awarded compensation under Section–140 of the MV Act on the ground of ‘no fault theory’ liability under section– 140 of the MV Act. Therefore, the insurance company has preferred the present appeal.

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Upon considering the submissions made by the learned counsel for the appellants that the deceased himself was rash and negligent and he died as he was only responsible for the accident. Therefore, the compensation under Section – 140 of the MV Act ought not to have been granted, which does not have merit. For the reason that Section–140 of the MV Act, the compensation to be awarded on the principle of ‘no fault liability’. The words used in Section – 140 of the MV Act is “any person therefore even the deceased himself was rash and negligent in riding the motor cycle and died in the accident, but the compensation can be awarded under Section – 140 of the MV Act on the principle of ‘no fault

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liability’ and that is correctly exercised by the Tribunal by following the judgment of the Division Bench of this Court in the case of Oriental Insurance Company Limited vs.

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Sharada G. And Others , reported in 2010 SCJ 977 . Therefore, even if the deceased himself was found to be rash and negligent and died in the accident. But, the claimants entitled for the compensation as per the provision of Section – 140 of the MV Act, on the principle of ‘no fault liability’. Therefore, in this regard, I do not find any merit in the submission made by the appellant – insurance company. Therefore, awarding compensation of Rs.50,000/- under Section–140 of the MV Act is correct, which needs no interference of this Court. Therefore, the appeal is liable to be dismissed accordingly.

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The another contention urged by the learned counsel is that the deceased was not holding a Driving License at the time of the accident. Therefore, the insurance company be absolved from payment of compensation, as there is a breach of condition of issuance policy and order of ‘pay and recovery’ can be made.

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On considering this submission, I have perused the judgment and award of the Tribunal, but there is no contention of the insurance company discussed and there is no any observation that the deceased was not holding valid Driving License, as on the date of the accident. Further, upon considering the evidence placed before the Tribunal, it is seen that there is no evidence to prove that the deceased was not holding a driving Licence. Even though the Official Representative of the Insurance Company is examined as RW-1 and also produced document at Exhibit-R1, but no charge-sheet is produced.

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Therefore, it is the contention of the appellant – insurance company that the charge-sheet was laid down against the deceased himself for the offence of non-holding of driving licence. But the insurance company has not produced the charge-sheet to prove the fact that the deceased was not holding the driving license. Therefore, the appellant – insurance company before the Tribunal has not placed any evidence in proof of the factum of nonholding of driving licence by the deceased.

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Even though considering the submission made by the learned counsel for the appellant that the mother of the deceased had admitted in the cross-examination that the deceased was not holding the driving licence. But that is only a stray sentence. When the said submission is in the form of stray sentence, no weightage can be given on the said stray sentence, because PW-1 is the mother of deceased might not know whether the deceased was holding the driving license or not. Therefore, even though the cross-examination was admitted by herself that the deceased was not holding driving licence, but that is answered to the combined question put in the crossexamination. Therefore, it amounts to a stray sentence and hence weightage cannot be given.

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Therefore, there is no evidence found on record to prove that the deceased was not holding driving licence. Hence, an order of ‘pay and recovery’ also cannot be made as the appellant failed to establish its defence in this regard. Therefore, upon considering entire appeal I

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do not find any merit. Hence, the appeal is liable to be dismissed. Accordingly, I proceed to pass the following:

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ORDER

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i. The appeal is dismissed.

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ii. The judgment and award judgment and award dated 19.03.2011, passed in MVC No.9385/2009, on the file of Motor Vehicles Act 1988, at Bangalore is hereby confirmed.

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iii. Registry is directed to transmit the amount in deposit to the Tribunal forthwith, along with TCR and a certified copy of this order.

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iv. Draw award accordingly.

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Sd/JUDGE

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The Oriental Insurance Co. Ltd. v. Sri Devaraju

Case brief

What is this about?

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The Oriental Insurance Co. Ltd. v. Sri Devaraju

Case brief

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