Partly allowed

Krishni Poojarthi v. Santosh Kumar Singh

Karnataka HC3 Nov 2023MFA/3043/2013

Case brief

AI extract

What is this about?

The High Court referred applications filed by a death claimant and an insurance company challenging a Motor Vehicles Tribunal order which had awarded compensation. The court held that since the deceased misappropriated the vehicle, he was not a third party, and neither the insurer nor the owner was liable, dismissing the claimant and allowing the insurer's appeal.

What did the court decide?

Insurance Company's appeal allowed; claimant's appeal dismissed. Insurance Company at liberty to withdraw deposit; trial records returned to Tribunal.

Krishni Poojarthi Vs Santosh Kumar Singh — Insurance | Karnataka HC (2023)

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*NC: 2023:KHC:34561 MFA No. 3043 of 2013 C/W MFA No. 3460 OF 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3^RD DAY OF NOVEMBER, 2023

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BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI MISCELLANEOUS FIRST APPEAL NO. 3043 OF 2013 (MV-D)

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 3460 OF 2013 (MV-D)

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IN MFA NO. 3043/2013

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BETWEEN:

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KRISHNI POOJARTHI, W/O LATE DEVA POOJARY, AGED ABOUT 63 YEARS, MELANDI, NAYAKVADI VILLAGE, KUNDAPURA TALUK, POST: GUJJADI.

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…APPELLANT

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(BY SRI. PAVANA CHANDRA SHETTY H, ADVOCATE)

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AND:

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SANTOSH KUMAR SINGH, S/O CIYAN SINGH, NO.34, ST.JOHNS CHURCH ROAD, OPP TO CHURCH CODLES PARK, BHARATHI NAGAR, BANGALORE.

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Digitally signed by JAI JYOTHI J Location: HIGH COURT OF KARNATAKA

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THE NATIONAL INSURANCE COMPANY LTD., BINDU, NO.1092/2 NEW EXTENSION, NEAR DOMELIGHT CIRCLE,

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KOLAR - 563 101, REPRESENTED: BY ITS MANAGER.

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…RESPONDENTS

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(BY SRI. A. N. KRISHNASWAMY, ADVOCATE FOR R2; R1 - NOTICE DISPENSED WITH VIDE ORDER DATED 21.03.2014)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.12.2012 PASSED IN MVC NO.916/2003 ON THE FILE OF THE SENIOR CIVIL JUDGE, MEMBER, ADDITIONAL MACT, KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO.3460/2013

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BETWEEN:

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NATIONAL INSURANCE CO. LTD., BINDU, NO.1092/2 NEW EXTENSION, NEAR DOMELIGHT CIRCLE, KOLAR - 563 101, NOW REPRESENTED BY ITS REGIONAL MANAGER, NATIONAL INSURANCE CO. LTD., REGIONAL OFFICE, SUBHARAM COMPLEX,

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Retyped and Replaced vide chamber order dated 17.01.2024

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144, M G ROAD, BANGALORE - 560 001.

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…APPELLANT

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(BY SRI. A. N. KRISHNASWAMY, ADVOCATE)

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AND:

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SMT. KRISHNI POOJARTHI, W/O LATE DEVA POOJARY, AGE: MAJOR, R/A MELANDI, NAYAKVADI VILLAGE, POST: GUJJADI, KUNDAPURA TALUK

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SANTOSH KUMAR SINGH, S/O CIYAN SINGH, AGE: MAJOR, NO.34, ST.JOHNS CHURCH ROAD, OPP. TO CHURCH CODLES PARK, BHARATHI NAGAR, BANGALORE.

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…RESPONDENTS

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(BY SRI. PAVANA CHANDRA SHETTY H, ADVOCATE FOR R1; SRI. TAJUDDIN, ADVOCATE FOR R2)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.12.2012 PASSED IN MVC NO.916/2003 ON THE FILE OF THE SENIOR CIVIL JUDGE, MEMBER, ADDITIONAL MACT, KUNDAPURA, AWARDING A COMPENSATION OF RS. 2,01,500/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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

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JUDGMENT

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Aggrieved by the award passed in M.V.C.No.916/2003 dated 26.12.2012, both the claimant as well as the Insurance Company are before this Court. The claimant's appeal is MFA No.3043/2013 and the Insurance Company's appeal is MFA No.3460/2013. The claim petition was filed seeking compensation of an amount of Rs.6,00,000/- for the death of the deceased in the accident.

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This matter was heard by this Court on

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22.09.2023 and this Court had partly allowed the appeal

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Retyped and Replaced vide chamber order dated 17.01.2024

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of the claimant and enhanced the compensation from an amount of Rs.2,01,500/- to Rs.4,17,500/- and observed

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that the owner of the vehicle is liable to pay the compensation. Thereafter, while correcting the order as this Court found that certain aspects was not dealt with in the order, matter was directed to be listed before this Court under the caption 'for being spoken to'.

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In this case, the claimant is the mother of the deceased. According to her, on 11.10.2002 at about 11:30 p.m., near Dosa Stop, Indiranagar, Bangalore,

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when the deceased was driving the Auto Rikshaw parked near the Hotel wherein he was working and without the permission of the owner of the vehicle, he had taken away the vehicle and dashed against the road side tree and died on the spot.

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On the earlier occasion, the claim petition was

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dismissed by order dated 12.03.2007. Aggrieved thereby, the claimant has preferred MFA No.7214/2007 and the same was dismissed on 27.07.2010 wherein considering

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Retyped and Replaced vide chamber order dated 17.01.2024

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the judgments in the case of New India Assurance Company Vs. Sunil and Another¹ and Oriental Insurance Company Ltd. Vs. Smt. Salma and others²

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had opined that the claim petition of the appellant is maintainable and allowed the appeal and the order dated 12.03.2007 dismissing the claim petition is set aside and the appeal was allowed and the matter was remanded to the Court below to consider the case of the claimant and dispose of the case in accordance with law after quantifying the compensation to be awarded to the claimant under Section 163-A of the Motor Vehicles Act. Thereafter, the present order impugned is passed by the Court below.

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The Insurance Company has canvassed before the Court below that the deceased had stolen the vehicle or he had taken the vehicle without the permission of the driver of the vehicle and he was not having a valid driving license and he met with an accident. The Court below had

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1 2007 ACJ 278

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2 ILR 2008 KAR 1249

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Retyped and Replaced vide chamber order dated 17.01.2024

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not considered any of these submissions made by the Insurance Company. As the Court below has already held that the application is maintainable and the Court below went ahead with quantifying the compensation and granted compensation of an amount of Rs.2,01,500/-. Aggrieved thereby, both the Insurance Company and the claimant are before this Court. The Insurance Company is questioning the liability and the claimant seeks enhancement of the compensation.

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Learned counsel appearing for the Insurance Company submits that the Insurance Company is liable to pay the compensation as per the policy and he has drawn the attention of this Court to Section 147 of the Motor Vehicles Act and he submits that Section 147 deals with requirements of the policy and limits of liability and relying on Section 147 (i)(b) of the Motor Vehicles Act, he submits that they are only liable to pay the compensation as specified in the policy. He submits that the claimant is not a third party to the insurance policy. Unauthorisely, he had taken away the vehicle. Learned counsel relying on

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Retyped and Replaced vide chamber order dated 17.01.2024

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Section 197 of the Motor Vehicles Act submits that taking the vehicle without permission is a punishable offence and it is the case of the claimant that the vehicle had been taken away by the deceased without permission of the owner of the vehicle and they are not liable to pay the compensation as he himself is a tortfeaser.

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Learned counsel appearing for the claimant submits that the Court below had held that the application is maintainable and he is entitled for compensation. In the remand order, the Court below was directed to quantify the compensation. It is submitted that the earlier order passed in MFA No.7214/20017 by the Court below was not challenged by the Insurance Company and now it is not open for them to argue that the application is not maintainable. He submits that it is the negligence on the part of the driver of the vehicle, who has left the key in the vehicle and because he left the key in the vehicle, the deceased had taken it and the accident had taken place. As there is clear negligence on the part of the driver and

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owner of the vehicle, the owner of the vehicle is liable to

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Retyped and Replaced vide chamber order dated 17.01.2024

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pay the compensation and the Insurance Company is liable to indemnify the same. It is submitted by the learned counsel for the claimant that the Court below had rightly considered the liability, but the compensation that was granted by the Tribunal was not reasonable. Hence, they have come up before this Court seeking enhancement of the compensation. Learned counsel for the claimant further submits that the Court below had rightly entertained the petition and the owner of the vehicle was held to be liable to pay the compensation.

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Having heard the learned counsel on either side,

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perused the entire material on record. The Tribunal had observed that admittedly, the deceased was not the driver of the Auto Rikshaw. He was not employed by respondent No.1. It is also a fact that the deceased without the permission of respondent No.1 and the deceased had taken away the parked Auto Rikshaw near the hotel. Therefore, he will not step into the shoes of either respondent No.1 or the driver of the vehicle. The Court below observed that as the deceased had taken away the

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Retyped and Replaced vide chamber order dated 17.01.2024

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Auto Rikshaw without the permission of respondent No.1, hence, respondent No.1 being the RC owner and respondent No.2 being the insurer of the Auto Rikshaw are jointly and severally liable to pay the compensation to the claimant. This Court is not able to appreciate the said observation made by the Tribunal. The Insurance Company is liable to pay the compensation as per the terms and conditions of the policy. At this juncture, it is appropriate to have a look at Section 147 of the Act:

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"147. Requirements of policies and limits of liability. —

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(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which—

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(a) is issued by a person who is an authorised insurer; and

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(b) insures the person or classes of persons specified in the policy to the extent specified in subsection (2)—

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(i) against any liability which may be incurred by him in respect of the death of or bodily [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by

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Retyped and Replaced vide chamber order dated 17.01.2024

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or arising out of the use of the vehicle in a public place;

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(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place."

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In this case, the vehicle was not entrusted to the deceased either by the driver or by the owner of the vehicle. The deceased had taken away the vehicle and the accident had occurred because of the negligence on the part of the deceased. If the Insurance Company is liable to pay any amount, it would be based on the conditions of the policy. At any stretch of imagination, the deceased cannot be termed as a third party and there is no liability to the Insurance Company as per the policy. Even from the side of the owner of the vehicle also he has not entrusted the vehicle and even it is the case of the complainant that after getting the vegetables to the hotel, he went to attend nature call and in the mean time, the deceased had taken away the vehicle, which cannot be termed as negligence on the part of the owner of the vehicle and no liability can be fastened on the owner of the

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Retyped and Replaced vide chamber order dated 17.01.2024

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vehicle. Even for any personal accident coverage also it cannot be said that he has stepped into the shoes of the

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owner of the vehicle as he had taken away the vehicle without any authorization from the owner or driver of the vehicle. In that view of the matter, he is not even entitled for personal accident coverage. The Court below was not right in holding that the Insurance Company as well as the owner of the vehicle is liable to pay the compensation.

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The order dated 22.09.2023 is recalled.

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Accordingly, the appeal of the Insurance Company is

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allowed and the appeal of the claimant is dismissed .

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i. The Insurance Company is at liberty to withdraw the amount in deposit.

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ii. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.

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