Allowed

Smt.Vanita Wd/O Santosh Mendole v. Shri.Suresh Maruti Benni

Karnataka HC22 Sept 2023MFA/100692/2016

Case brief

AI extract

What is this about?

This miscellaneous first appeal challenged the dismissal of a Section 163A claim petition. The High Court held that the insurance company was liable under a comprehensive policy holding the owner-cum-driver, rejecting the contention that the rider was not a third party. Compensation was calculated as per Schedule-II and enhanced.

What did the court decide?

Appeal allowed; impugned judgment and award modified; compensation enhanced to Rs.4,63,833/- with 6% interest.

Smt.Vanita Wd/O Santosh Mendole Vs Shri.Suresh… — Motor Accident Claims | Karnataka HC (2023)

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1 - NC: 2023:KHC-D:11395-DB MFA No. 100692 of 2016

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 22^ND DAY OF SEPTEMBER, 2023

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PRESENT

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THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR

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AND

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THE HON'BLE MR JUSTICE G BASAVARAJA MISCELLANEOUS FIRST APPEAL NO. 100692 OF 2016 (MV)

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BETWEEN:

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SMT. VANITA WD/O. SANTOSH MENDOLE, AGE: 31 YEARS, OCC: HOUSEHOOLD,

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KUM. VAISHNAV S/O. SANTOSH MENDOLE, AGE: 9 YEARS, OCC: STUDENT, (SINCE R/BY APPELLANT NO.1 MOTHER) BOTH R/O: AT/PT: KAKATI, TAL: AND DIST: BELAGAVI.

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…APPELLANTS

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(BY SRI VITTHAL S. TELI, ADVOCATE)

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Digitally signed by SHIVAKUMAR HIREMATH Date: 2024.01.08 16:40:15 +0530

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AND:

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SHRI SURESH MARUTI BENNI, AGE: MAJOR, OCC: NOT KNOWN, R/O: AT AND PO: MANAGUTTI, TAL: HUKKERI, DIST: BELAGAVI.

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THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LTD., 1732, RAMDEV GALLI, BELAGAVI.

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…RESPONDENTS

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(BY SMT. PREETI SHASHANK, ADVOCATE FOR RESP. NO.2; NOTICE SERVED TO R1)

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- 2 - NC: 2023:KHC-D:11395-DB MFA No. 100692 of 2016

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THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, PRAYED THAT, THE JUDGMENT & AWARD DATED:26.11.2015, PASSED IN MVC.NO.2415/2014 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, AND SET ASIDE AND COMPENSATION MAY KINDLY BE AWARDED AS PRAYER WITH INTEREST AT THE RATE OF 18%.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, BASAVARAJA, J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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The claimant has preferred this appeal against the judgment and award dated 26^th November, 2015 passed in MVC No.2415 of 2014 on the file of III Additional Senior Civil Judge and Member, Additional Motor Accident Claims Tribunal, Belagavi (for brevity, hereinafter referred to as the “Tribunal”) by which judgment, the claim petition filed by the claimant under Section 163A of the Motor Vehicles Act, 1988, came to be dismissed.

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For the sake of convenience, the parties in this appeal are referred to as per their status and rank before the Tribunal.

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Brief facts of the petition are that on 27^th October, 2010, deceased husband of the petitioner No.1 was proceeding

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3 - NC: 2023:KHC-D:11395-DB MFA No. 100692 of 2016

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from by name Santosh @ Narayana Vishnu Mendole, was proceeding from Managutti towards Daddi on motorcycle bearing Registration No.KA-23/V-7096. It is state that the said road is not maintained by government for plying of vehicles safely and there many holes, hurdles and humps which caused difficulty in driving and there was no signal or indication at the hurdles on the road. At about 6.45 am, while the deceased was proceeding, as there was a big hole could not be seen by the road users, and to avoid the same he suddenly took his motorcycle towards left side and the motorcycle skidded, resultantly the rider fell. As a result, he sustained head injuries and died on the spot. Thereafter, post-mortem was conducted and the body was handed over to the family of the deceased. It is contended that prior to accident, the deceased was hale and healthy and was earning Rs.40,000/- per annum by doing mason work. The accident occurred solely due to use and involvement of the motorcycle and hence sought for allowing the claim petition.

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Pursuant to notice issued by the Tribunal, respondents 1 and 2 appeared and filed their objections. In the written statement, the respondent No.1 has denied the

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averments made in the petition. It is further contended that if the court comes to the collusion that the petitioner is entitled for compensation, then the responsibility to pay compensation may be saddled on respondent No.2, which is the insurer. On all these grounds, sought dismissal of claim petition.

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The substance of written statement of respondent No.2 is that the petition is self-serving and concocted and the accident has occurred solely due to rash and negligent driving of the riding of the motorcycle by deceased. The charge sheet has been filed by Yamakanamardi police against the deceased himself and respondent is not liable to pay any compensation. That the deceased was riding the motorcycle as representative under the authority of respondent No.1. That the deceased has stepped into shoes of the owner, and hence, he cannot be treated as a third party and submits that subject to validity and legality of permit and driving licence, the respondent No.2 may be subject to liability and sought for dismissal of the claim petition.

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Based on the rival pleadings, the Tribunal formulated issues for its consideration:

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Whether the petitioners prove that the alleged accident occurred on 27.12.2010 at 6.45 am on Managutti – Datti Road, within the village limits of Hattargi, was due to the use and involvement of the motor cycle bearing No.KA23.V.7096 and in the said accident Mr. Santosh @ Narayan Vishnu Mendole sustained grievous injuries and died on the spot?

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Whether the petitioners are entitled for compensation? If so, what extent and from whom?

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What order or award?

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To prove the case of the petitioners, petitioner No.1

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has examined herself as PW1 and got marked six documents as Exhibits P1 to P6. On behalf of respondents, respondent No.2 was examined as RW1 and got marked one document as Exhibit R1.

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Upon hearing the arguments of the parties, the

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Tribunal answered the issues as under:

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Issue No.1: In affirmative; Issue No.2: In negative. Issue No.3: As per final order

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In view of the finding Tribunal has dismissed the claim petition. Being aggrieved by the impugned judgment and award, the claimant has preferred this appeal.

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Sri Vittal S. Teli, learned counsel appearing for the appellant submits that the impugned judgment and award passed by the Tribunal is illegal perverse and contrary to facts and evidence of the case. The Tribunal has committed error in holding that petition under Section 163A of Motor Vehicles Act, 1988 is not maintainable. Claimant need not prove the negligence. Even presuming, but not admitting, that the petitioner was rash and negligent, the petition under Section 163A is maintainable. The Tribunal has not considered the decisions of Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. SUNITHA AND OTHERS and also in the case of DEEPAL GIRISHA BAI SONI AND OTHERS v. UNITED INDIA INSURANCE CO. LTD. On all these grounds sought to allow the appeal. In order to substantiate his submissions, he has relied on the following decisions:

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UNITED INDIA INSURANCE COMPANY LTD. v. SUNIL KUMAR AND ANOTHER - (2019)12 scc 398;

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CHANDRAKANT TIWARI v. NEW INDIA ASSURANCE COMPANY LIMTED - (2020)7 SCC 386;

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SHIVAJI AND ANOTHER v. DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED - (2019)12 SCC 395;

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NARAYANA RAO AND ANOTHER v. NAGARAJ AND ANOTHER - (2019)6 KANT L.J. 358;

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SMT. JANCY v. THE DIVISIONAL CONTROLLER - ILR 2021 KAR 2347;

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VITHAN PUNDALIT JIVAI v. PARASHURAM CHANGAPPA HALAGEKAR AND ANOTHER - 2022(1) AKR 221;

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ANNAPURNA AND OTHERS v. UNITED INDIA INSURANCE COMPANY - MFA CROB. 767 of 2013;

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H. SUBBARAYA BHAT v. SULOCHANA - MFA NO.5399 OF 2016;

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ROOPA AND OTHERS v. SAVITA AND ANOTHER - MFA NO.100989 OF 2015;

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SECRETARY TO GOVERNMENT OF KERALA v. JAMES - (2022)9 SCC 593;

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DIRECTOR, MUNICIPAL CORPORATION OF DELHI v. GURUNAM KAUR - AIR 1989 SC 38.

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On the other hand, Smt. Preeti Shashank, learned

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counsel appearing for the learned counsel appearing for respondents submits that the Tribunal has passed the impugned judgment and award in accordance with law and facts and there are no grounds to interfere with the same. She submits that the deceased is not a third party. He has borrowed the motorcycle from the owner and he will step into

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8 - NC: 2023:KHC-D:11395-DB MFA No. 100692 of 2016

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the shoe of the owner of the vehicle. The owner of the vehicle has paid premium of Rs.50/- as compulsory PA to the ownercum-driver and hence, the Insurance Company is liable to pay only Rs.1.00 lakh. The Insurance Company is not liable to pay compensation as per Schedule under Section 163A of the Motor Vehicles Act, 1988 and further, she contends that if this Court is likely to award any compensation to the claimant, the respondent is liable to only to the extent of Rs.1.00 lakh. To substantiate her arguments, she has relied upon the decisions of Hon'ble Supreme Court in the case of RAMKHILADI AND ANOTHER v. THE UNITED INDIA INSURANCE COMPANY AND ANOTHER rendered in Civil Appeal No.9393 of 2019 decided on 07^th January, 2020, and in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157; the decision of co-ordinate Bench of this Court rendered in Miscellaneous First Appeal No.101420 of 2019 decided on 16^th December, 2022 in the case of SMT. PUSHPALATA AND OTHERS v. SHARANABASAPPA AND ANOTHER; and the decision of High Court of Kerala in the case of SATHY v. DILEEP I.S. AND OTHERS rendered in OP (MAC)

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9 - NC: 2023:KHC-D:11395-DB MFA No. 100692 of 2016

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No.51 OF 2022 decided on 01^st June, 2022. On all these

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grounds, she sought for dismissal of the appeal.

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Having heard the learned counsel appearing for the parties, the following points would arise for our consideration in this appeal:

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Whether the appellant-claimant made out a ground for interference has made out a ground for interference in the impugned judgment and award?

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Whether the appellant-claimants are entitled for enhancement of compensation?

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What order or award?

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Our answer for the above points are as under:

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Point No.1: in the affirmative;

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Point No.2: in the affirmative;

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Point No.3: as per final order.

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With regard to the use and involvement of the motorcycle and also the death of Santosh in the accident are not in dispute by the other side. While answering issue No.1, the Tribunal has rightly held that the accident occurred due to use and involvement of motorcycle and in the said accident the

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rider sustained grievous injuries and died on the spot and given its finding to issue No.1 in the affirmative, which is not challenged by the Insurance Company.

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In this case, admittedly, respondent No.1 is the owner of the vehicle. Respondent No.2-Insurance Company has stated in its written objection that the deceased was riding the motor as a representative under the authority and owner of the vehicle, i.e. respondent No.1. Hence, deceased stepped into the shoes of the owner of the vehicle and hence, he cannot be treated as third party by any stretch of imagination. To substantiate this, respondents have not placed any legal evidence before the Tribunal. RW1-Ramesh has deposed in his evidence that the deceased rode the motorcycle as a representative and under the authority of the owner of motorcycle in question, i.e. respondent No.1. But, during the course of cross-examination, he has not seen the accident. Further, he has clearly admitted that Exhibit R1 is a comprehensive and valid as on the date of accident. They have collected the premium for owner-cum-driver and it covers third party also. Under this policy, own damages and third-party claims are covered. Accordingly, they have maintained

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records. This admission made by RW1 clearly shows that, Exhibit R1-Insurance Policy is a comprehensive policy which covers the risk of third-party and the limitation as to the policy

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are also explained in exhibit R1, which reads as under:

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" The Policy covers use of the vehicle for any purpose other than:

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(a) hire or reward;

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(b) carriage of goods (other than samples or personal luggage);

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(c) organized racing;

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(d) pace making;

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(e) speed testing and reliability trials;

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(f) use in connection with motor trade "

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The Tribunal has not considered the contents of the

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policy and fell in error in coming to the conclusion that the Insurance Company Insurance not liable to pay the compensation, which is not sustainable under law. Hence, we are of the considered opinion that the claimants have proved that the deceased Santosh died due to use and involvement of motorcycle bearing No.KA-23/V-7096. In view of Section 163A of the Motor Vehicles Act, 1988 the Insurance Company is

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liable to pay the compensation as per Schedule-II of Motor Vehicles Act, 1988.

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With regard to quantum of compensation is concerned under Section 163A of the Act is concerned, PW1 has clearly stated that the income of the deceased was Rs.40,000/- per annum. Exhibit P6-post-mortem report reveals that the age of the deceased was 32 years as on the date of accident. As per Schedule-II, commensurate to the age of the deceased, the income has to be taken as Rs.40,000/- per annum. The proper multiplier is 17 as per Schedule-II. Onethird is to be deducted towards personal expenses of the deceased. Therefore, claimants would be entitled for compensation of Rs.4,53,333/- (Rs.40,000/- x 1/3 x 17) towards loss of dependency. The claimants are also entitled for Rs.9,500/- under other heads as per Schedule-II of Motor Vehicles Act, 1988. Hence, we answer point No.2 in the affirmative.

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Regarding Point No.3:

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For the aforesaid reasons and discussions, we proceed to pass the following:

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13 - NC: 2023:KHC-D:11395-DB MFA No. 100692 of 2016

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O R D E R

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Appeal is allowed;

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Judgment and award dated 26^th November, 2015 passed in MVC No.2415 of 2014 on the file of III Additional Senior Civil Judge and Member, Additional Motor Accident Claims Tribunal, Belagavi, is modified. The claimants are entitled for compensation of Rs.4,63,833/- with interest at the rate of 6% per annum from the date of petition till realisation;

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Respondent-Insurance is directed to deposit the compensation amount along with interest within sixty days from the date of receipt of certified copy of this judgment;

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Registry to draw award accordingly.

Sd/JUDGE

Sd/JUDGE

CKK

LIST NO.: 1 SL NO.: 30

Smt.Vanita Wd/O Santosh Mendole v. Shri.Suresh Maruti Benni

Case brief

What is this about?

What did the court decide?

Smt.Vanita Wd/O Santosh Mendole v. Shri.Suresh Maruti Benni

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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