Smt Madhuri Choudhary Vs Mr Tushar Kumar

MR TUSHAR KUMAR S/O RAKESH KUMAR, NO.50, MHN KUTEER, 1^ST MAIN ROAD, 3^RD CROSS ROAD, 1^ST BLOCK, SAI LOTUS LAYOUT, CHANNASANDRA BEML 5^TH STAGE, BANGALORE 560 067.

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(R1-EXPARTE).

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HC-KAR

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UNITED INDIA INSURANCE CO. LTD., REGIONAL OFFICE, NO.18, KRUSHI BHAVAN, 4^TH AND 5^TH FLOOR, HUDSON CIRLCE, N.T. ROAD, BANGALORE 560 001. (REPRESENTED BY ITS MANAGER)

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…RESPONDENTS

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(BY SMT.GEETHA RAJ, ADVOCATE FOR R2, VIDE ORDER DATED 02.06.2023 NOTICE TO R1 IS HELD SUFFICIENT)

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THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DT.10.07.2020 PASSED IN MVC NO.1240/2019 ON THE FILE OF THE VII ADDITIONAL SMALL CAUSE JUDGE AND ACMM, MEMBER, MACT-3, BENGALURU, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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This appeal is filed by the claimants being aggrieved by

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the judgment and award dated 10^th July 2020, passed by VII Addl.Small Causes Judge and M.A.C.T-3, Bengaluru, (for short `Tribunal'), in MVC.No.1240/2019.

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For the sake of convenience, the parties are

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referred to as per their ranking before the Tribunal.

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HC-KAR

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The claimants have filed claim petition under Section 163A of Motor Vehicles Act, 1988, contending that, on 16.12.2018, at about 6.10 p.m., one Shivam Kumar was riding a motor cycle bearing registration No.KA-03-HS-3138, towards Channasandra on Uttarahalli-Kengeri main road. When he reached near Mantri Apartments, Kengeri, he lost control over the motorcycle and fell down. Due to which, he sustained grievous injuries and succumbed to the injuries. It is the further contention of the claimants that they are the parents of the deceased. The deceased was studying in 3^rd year B.E. and he was hale and healthy. With these reasons, they have prayed for awarding compensation of Rs.6 lakhs.

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The respondent No.1 is the owner and respondent No.2 is the insurer of the said two wheeler. The respondent No.2-insurer has filed its written statement contending that the petition was not maintainable. It denied the other averments of the claim petition and prayed to dismiss the petition.

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HC-KAR

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From the rival contentions of the parties, the Tribunal framed necessary issues.

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The claimants to prove their case examined one

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witness as PW-1 and marked ten documents as per Exs.P-1 to P-10. The respondents have examined one witness as RW-1 and marked two documents as Exs.R-1 and R-2.

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The Tribunal after hearing both parties, by the impugned judgment, dismissed the claim petition.

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The main contention of the learned counsel for

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the appellants is that the claim petition was filed under Section 163-A of Motor Vehicles Act. The said vehicle was insured with respondent No.2 and it was a package policy, which covers personal accident claim of owner, as well as rider of the vehicle. Even though the claimants may not be entitled for the compensation in view of the law laid down by the Hon'ble Apex Court in the case of Ramkhiladi and

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HC-KAR

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another Vs. United India Insurance Company and

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another¹ , but in the very same judgment, it is held that claimants are entitled for compensation of Rs.1 lakh under the said policy of insurance. The Tribunal has not awarded the said amount in favour of the appellants. Therefore, prayed to allow the appeal and award compensation of Rs.1 lakh as held in the case of Ramkhiladi (supra).

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9. Learned counsel for respondent No.2 submits that

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deceased was a rider/owner of the vehicle therefore he cannot maintain the petition under Section 163(A) of the MV Act against his insurer wherein the said vehicle was insured. The learned counsel further submits that the petition is not maintainable. The claimants have to approach respondentinsurer to claim compensation, since it was contractual liability. The Tribunal rightly dismissed the claim petition and it does not call for any interference by this Court. Hence, prayed to dismiss the petition.

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1 (2020) 2 SCC 550

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HC-KAR

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Undisputedly, the claim petition was filed by the

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parents of the deceased-owner of the vehicle, against the insurer of the offending vehicle. The Hon'ble Apex Court in

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the Ram Khiladis's Case (Supra) held that in such circumstances petition is not maintainable under Section 163(A) of the MV Act. Hence Tribunal was rightly rejected the petition on the said ground. Now the claimants intends to enforce contractual liability. It is undisputed that policy of insurance obtained on the offending vehicle was package policy and extra premium was paid to cover the risk of owner cum driver and said contract enables the claimant to recover Rs.1,00,000/- in case of death of owner. In view of these facts and circumstances instead of directing the claimant to approach the insurance company to recover the said amount, it is necessary to direct the insurer to pay the said amount of compensation. The very same law was laid down by the Hon'ble Supreme Court in the case of Ramkhiladi ( Supra ), which reads as under:

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5.9 Now, so far as the submission made on behalf of the claimants that in a claim under section 163-A of the Act mere use of the vehicle is enough and despite the compensation claimed by the heirs of the owner of the

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HC-KAR

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motor cycle which was involved in the accident resulting in his death, the claim under Section 163-A of the Act would be maintainable is concerned, in view of the decision of this court in Rajni Devi, 2008 ACJ 1441 (SC), the aforesaid cannot be accepted. In Rajni Devi (supra), it has been specifically observed and held that the provisions of section 163-A of the Act cannot be said to have any application with regard to an accident wherein the owner of the motor vehicle himself is involved. After considering the decisions of this court in the cases of Oriental Insurance Co. Ltd. v. Jhuma Saha, 2007 ACJ 818 (SC); Dhanraj, 2005 ACJ 1 (SC); National Insurance Co. Ltd. v. Laxmi Narain Dhut, 2007 ACJ 721 (SC) and Prem Kumari v. Prahlad Dev, 2008 ACJ 776 (SC), it is ultimately concluded by this court that the liability under section 163-A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient and, therefore, the heirs of the owner could not have maintained the claim in terms of section 163-A of the Act. It is further observed that, for the said purpose, only the terms of the contract of insurance could be taken recourse to. In the recent décision of this court in the case of Ashalata Bhowmik, 2018 ACJ 2825 (SC), it is specifically held by this court that the parties shall be governed by the terms and conditions of the contract of insurance. Therefore, as per the contract of insurance, the insurance company shall be liable to pay the compensation to a third party and not to the owner, except to the extent of Rs.1,00,000 as observed hereinabove.

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In view of the law laid down in the above

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said judgment, respondent - insurer is liable to pay Rs.1,00,000/- under the contractual liability.

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HC-KAR

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For the aforesaid discussion, I proceed to

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pass the following:

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ORDER

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i. The appeal is allowed in part.

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ii. The impugned judgment and award dated 10.07.2020 passed by the MACT in MVC.No.1240/2019 is modified.

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iii. Respondent No.2is directed to pay Rs.1,00,000/with interest @ 6% per annum from the date of claim petition till its realization.

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It is apportioned equally between the claimants.

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iv. Respondent No.2 shall deposit the said amount within a period of six weeks from the date of award.

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v. Amount of compensation awarded is meagre and hence entire amount is ordered to be released in favour of the claimant Nos.1 and 2 on due identification.

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