Partly allowed

L Mallesh v. Sri Krupa Rao

Karnataka HC27 Jul 2022MFA/417/2010

Case brief

AI extract

What is this about?

MFA appeal against a Motor Accident Claims Tribunal award. The court held that liability under Section 163A is independent of ownership or relationship to the vehicle. It modified the compensation amount from Rs. 3,68,500 to Rs. 6,21,000 based on enhanced notional income and conventional heads of loss, allowing the claimant's appeal partly.

What did the court decide?

Compensation enhanced to Rs. 6,21,000 with interest at 6% p.a.; insurer directed to deposit the amount within two months.

L Mallesh Vs Sri Krupa Rao — Motor Accident Claims | Karnataka HC (2022)

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C/W MFA No. 1292 of 2010

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MFA No. 417 of 2010

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 27TH DAY OF JULY, 2022

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BEFORE

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THE HON'BLE MR JUSTICE N S SANJAY GOWDA

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M.F.A. NO. 417 OF 2010 (MV)

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C/W

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M.F.A. NO. 1292 OF 2010

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IN M.F.A. NO. 417 OF 2010

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BETWEEN:

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SRI.L.MALLESH S/O.LATE KRISHNAIAH AGED ABOUT 50 YEARS

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SMT.L.PADMA W/O.L MALLESH AGED ABOUT 45 YEARS

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SRI.L.VISHAL S/O.L MALLESH AGED ABOUT 22 YEARS

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Digitally signed by PANKAJA S Location: High Court of Karnataka

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ALL ARE R/AT.NO.A-200, 2ND SECTOR, HMT COLONY, JALAHALLI WEST, BANGALORE

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…APPELLANTS

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(BY SRI. K.N.HARISH BABU, ADVOCATE)

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MFA No. 417 of 2010

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C/W MFA No. 1292 of 2010

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AND:

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SRI KRUPA RAO AGED ABOUT MAJOR, NO.423, SIDDARTHA NAGAR JALAHALLI, PEENYA PLANTATION BANGALORE

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THE BRANCH MANAGER NEW INDIA ASSURANCE CO. LTD., 1^ST FLOOR, MAYURA COMPLEX, NEXT TO PIA BHAVAN, PEENYA BANGALORE-560 058

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…RESPONDENTS

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(BY SRI. R JAYAPRAKASH, ADVOCATE FOR R2 NOTICE TO R1 DISPENSED WITH V.O.D. 7-12-17)

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MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.09.2009 PASSED IN MVC NO.36/2008 ON THE FILE OF I ADDITIONAL SCJ & MACT, (SCCH-11), BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A. NO.1292 OF 2010

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BETWEEN:

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NEW INDIA ASSURANCE CO. LTD., REPRESENTED BY SR.DIVN. MANAGER MAYUR COMPLEX KIADB MAIN ROAD, PEENYA BANGALORE

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(BY SRI.R.JAYAPRAKASH, ADVOCATE)

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…APPELLANT

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MFA No. 417 of 2010 C/W MFA No. 1292 of 2010

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AND:

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SRI KRUPA RAO MAJOR, NO.423, SIDDHARTHA NAGAR JALAHALLI, PEENYA PLANTATION BANGALORE

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SRI.L.MALLESH AGED ABOUT 50 YEARS

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SMT.PADMA AGED ABOUT 45 YEARS

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SRI.L.VISHAL S/O.L MALLESH AGED ABOUT 22 YEARS

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ALL ARE R/AT.NO.200, 2ND SECTOR, HMT COLONY, JALAHALLI WEST, BANGALORE

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…RESPONDENTS

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(BY SRI.K.N.HARISH BABU, ADVOCATE FOR R2 TO 4 NOTICE TO R1 DISPENSED WITH V.O.D. 7-12-17)

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MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.09.2009 PASSED IN MVC NO.36/2008 ON THE FILE OF I ADDITIONAL SCJ & MACT, BANGALORE, AWARDING A COMPENSATION OF RS.3,68,500/WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL REALISATION.

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THESE APPEALS COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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MFA No. 417 of 2010

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C/W MFA No. 1292 of 2010

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JUDGMENT

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MFA.1292/2010 is preferred by the Insurer

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challenging the award of `3,68,500/-, while MFA.417/2010 is preferred by the claimants seeking for enhancement of compensation.

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The claimants filed an application under Section 163A of the Motor Vehicles Act, 1988 (for short, 'the MV Act') contending that Rahul, son of claimants 1 and 2 and the brother of claimant No.3 was riding a motorcycle which was owned by the 1st respondent and while so riding the motorcycle, he lost control of the same and met with an accident, which resulted in grievous injuries, to which, he ultimately succumbed to.

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The Tribunal, after considering the evidence, has proceeded to determine that the claimants were entitled for compensation of `3,68,500/-.

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MFA No. 417 of 2010

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C/W MFA No. 1292 of 2010

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Learned counsel for the Insurer contends that Rahul had, by borrowing the motorcycle from the owner of the same, stepped into the shoes of the owner and therefore, the claimants could not maintain the claim under Section 163A of the MV Act.

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He sought to place reliance on the judgments of the Apex Court in the cases of ORIENTAL INSURANCE CO. LTD. Vs. RAJNI DEVI & OTHERS - 2008 VOLUME III ACJ 1441 and DHANRAJ Vs. NEW INDIA ASSURANCE CO. LTD. & ANOTHER - ILR 2005 KAR 1217 , and a Division Bench ruling of this Court in the case of DR.S.JAYARAM SHETTY

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Vs. THE NATIONAL INSURANCE COMPANY LIMITED - ILR 2002 KAR 3117 .

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6. In the case of SHRI VITHAL Vs. SHRI PARASHURAM

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& ANOTHER , the undersigned in MFA.No.22199/2012 disposed of on 11.02.2021 has already held as follows:

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"59. Thus, the question as to who was riding the vehicle or who was responsible for the accident or the relationship of the victim in

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MFA No. 417 of 2010

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C/W MFA No. 1292 of 2010

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relation to the motor vehicle and its owner becomes completely irrelevant as far as the liability to pay compensation under Section 163A is concerned.

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It therefore follows that (a) whether the owner was driving the vehicle or (b) whether the vehicle was borrowed and was being driven by any another person or (c) whether the accident occurred due to a wrongful act of the rider or (d) whether the rider can take advantage of his wrong, all become immaterial in a proceeding under Section 163A of the Act.

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Similarly, the status of the victim vis-àvis the vehicle would also be irrelevant and whether the victim was an occupant of the vehicle or was outside the vehicle would also be of no consequence. The only thing that is necessary for a claim under Section 163A is that the victim should have suffered an accident which had resulted in death or permanent disablement and these two incidents should be relatable to the use of the motor vehicle.

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To put it in simple words, if an accident occurs due to the use of a motor vehicle, the victim will be entitled to compensation as per the

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MFA No. 417 of 2010

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C/W MFA No. 1292 of 2010

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second schedule if the accident and the resultant death or permanent disablement is established and this compensation would have to be paid by the owner or in cases where the vehicle is insured, by the insurer. No other question would arise for determination in a proceeding under Section 163A of the Act.

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In the light of the judgment in Vithal 's case, the contention of the Insurer that Rahul, being the borrower of the motorcycle, was not entitled for compensation cannot be accepted.

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The question as to who was riding the motorcycle or in what manner the victim was related to the owner is completely irrelevant in a proceeding under Section 163A of the MV Act.

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In Dhanraj 's case cited supra, the Apex Court was considering the impact of Section 147 of the MV Act. As noticed in Vithal 's case, I have already held that the provisions of Section 147 or 149 of the MV Act cannot be incorporated in a claim under Section 163A of the MV Act

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MFA No. 417 of 2010

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C/W MFA No. 1292 of 2010

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and that Section 163 of the MV Act is a special provision and so long as the twin requirement of establishing an accident or death or permanent disablement is proved, the consequence of payment of compensation is inevitable.

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Similarly, reliance placed on the decision of the Apex Court in Rajni Devi 's case would not also be applicable to the present case since in that case it was held that the owner of the vehicle cannot be the claimant. As stated above, the rider of the motorcycle was not the owner and therefore, this decision can have no application.

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Reliance placed on the Division Bench ruling of this Court in Jayaram Shetty 's case can also be of no avail to the Insurer. In fact, in the said decision, it has been held by the Division Bench as follows:

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"The term 'third party' must necessarily refer to a party other than those, who are parties to the contract of insurance. For a contract of insurance, the insurer is one party while the policy holder is the other party. Any person or persons other than the

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MFA No. 417 of 2010

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C/W MFA No. 1292 of 2010

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said two party or parties would necessarily be referred to as third parties."

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A reading of the said extract would indicate that any person other than the owner who enters into a contract of insurance with the insurance company would be a third party. Admittedly, the rider of the motorcycle - Rahul was not a party to the contract of insurance and therefore, even according to the decision of the Division Bench, he will have to be held to be a third party. Consequently, I find no reason to entertain the appeal filed by the Insurance Company insofar as the question of liability is concerned. Accordingly, the appeal of the Insurance

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Company is dismissed .

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As far as the claim for compensation is concerned, the claimants contended that though the Tribunal has taken the notional income at 3,000/- per month, it has ultimately awarded a sum of 3,64,000/-.

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MFA No. 417 of 2010

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C/W MFA No. 1292 of 2010

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As per Schedule II, in respect of a victim, whose age does not exceed 20 years, a multiplier of 16 is to be adopted and if the annual income is 36,000/-, the claimants would be entitled to a sum of 6,84,000/-, out of which, 1/3rd has to be deducted towards the personal expenses. Thus, the claimants would be entitled to `4,56,000/-.

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In my view, the order of the Tribunal holding that claimants are entitled for compensation of 3,64,000/- is, therefore, modified and it will have to be held that the claimants are held entitled for 4,56,000/-.

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In addition, the claimants would also be entitled to a sum of 44,000/- each towards loss of consortium and 33,000/- under conventional heads as held by the Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI & OTHERS - (2017) 16 SCC

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680 .

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MFA No. 417 of 2010

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C/W MFA No. 1292 of 2010

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The amount of general damages stipulated in Schedule II would not be applicable having regard to the fact that the amounts mentioned therein are of the year 1998 and the Apex Court itself and in various decisions has held that the notional income indicated in the Schedule II cannot be applied blindly and an enhanced amount would have to be applied taking into consideration the fall in the value of rupee.

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Thus, the claimants are entitled for total compensation of ` 6,21,000/- as against the

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compensation awarded by the Tribunal at `3,68,500/-, along with interest at 6% p.a. from the date of petition till its realisation.

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The Insurance Company shall deposit the amount of compensation within a period of two months from the date of receipt of a certified copy of the judgment.

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