IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
M.F.A. NO.7891 OF 2016 (MV-D)
BETWEEN:
1. SMT. KASTURI
W/O R. GANESHAN,
AGED ABOUT 44 YEARS,
2. SRI. R. GANESHAN
S/O LATE RAJGOPAL,
AGED ABOUT 48 YEARS,
3. SRI. VIVEK G.
S/O R. GANESHAN,
AGED ABOUT 21 YEARS,
4. SRI. MURTHY
S/O R. GANESHAN,
AGED ABOUT 19 YEARS,
OLD RESIDENT OF PARIMALANAGARA,
NEAR KANTEERAVA STUDIO,
BANGALORE.
NOW ALL RESIDING AT
SATHYAMANGALA,
KASABA HOBLI,
2
TUMKUR TALUK AND DISTRICT - 577 101.
... APPELLANTS
(BY SRI. M.B. RYAKHA, ADVOCATE)
AND:
THE ICICI LOMBARD INSURANCE CO. LTD.,
NO.89, SVR COMPLEX,
HOSUR ROAD,
BANGALORE-560 089.
... RESPONDENT
(BY SRI. B. PRADEEP, ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT,
1988 AGAINST THE JUDGMENT AND AWARD DATED
20.10.2016 PASSED IN MVC NO.394/2015 ON THE FILE OF
THE II ADDITIONAL SENIOR CIVIL JUDGE AND MACT,
TUMAKURU, DISMISSING THE CLAIM PETITION FOR
COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, NATARAJ RANGASWAMY, J., DELIVERED THE
FOLLOWING:
JUDGMENT
Though this appeal is posted for admission, as records are received from the Motor Accident Claims Tribunal, it is taken up for final hearing with the consent of the learned counsel for the parties.
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2. This appeal is filed by the claimants challenging the quantum of compensation awarded by the Motor Accident Claims Tribunal, Tumakuru, (hereinafter referred to as 'the Tribunal') in MVC No.394/2015.
3. Appellants herein will henceforth be referred to as claimants and the respondent herein will be referred to as the 'insurer' of the offending vehicle involved in the accident.
4. The claim petition discloses that the claimants 1 and 2 are the parents while the claimants 3 and 4 are the siblings of a person named Mr.Shekar. It is stated that on 08.02.2015 at about 6:15 p.m., Mr. Shekar was riding his two wheeler bearing registration KA-02-HU-3254 with his brother riding pillion. However, the said Mr. Shekar rode the bike in a rash and negligent manner and could not control it and fell down and sustained multiple injuries. He was shifted to Government hospital, Tumakuru, where he was administered first aid and thereafter he was shifted to NIMHANS Hospital, Bengaluru. The said Mr. Shekar was 4 shifted to Gimper hospital, Pondicherry, on the advice of Doctor, where he succumbed to the injuries.
5. The claimants contended that the deceased Mr.Shekar was 23 years old and was employed as a Helper in Hitachi Company and was drawing a monthly salary of Rs.15,000/-. Claimants claimed that the deceased was the only earning member in the family and that he was supporting all the claimants. It is stated that the jurisdictional Police had filed an abated charge sheet against the deceased Shekar.
6. The claimants contended that the bike owned by the deceased was duly insured and that the insurer had collected premium for personal accident cover for the owner / driver and thus, filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, (hereinafter referred to as 'the Act') claiming compensation of a sum of Rs.15,00,000/- from the insurer of the Bike bearing registration No.KA-02-HU-3254.
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7. The insurer contested the claim petition and contended that the accident was due to the negligent riding on the part of the deceased and that the same was evident from the abated charge sheet filed by the Police against the deceased. The insurer therefore contended that it was not liable to pay any compensation in respect of the death of the deceased.
8. The claimant No.4 was examined as PW.1 and he marked Exs.P1 to P7 while an employee of the insurer was examined as RW.1 and he marked Exs.R1 and R2. The Tribunal held that the insured was not a third party vis a vis the insurer and therefore, the claim petition under Section 166 of the Act against the insurer of the motor vehicle was not maintainable. The Tribunal noticed from Ex.R1 that the insurer had collected a premium of Rs.50/- for the personal accident cover for the owner-cum-driver, yet, the Tribunal felt that the claimants are not entitled to even the personal accident cover of a sum of Rs.1,00,000/- and thus, dismissed the claim petition. 6
9. Feeling aggrieved by the aforesaid judgment and award of the Tribunal, the claimants are in appeal.
10. We have heard the learned counsel for claimants - appellants and the learned counsel for the respondent - insurer. We have perused the records of the Tribunal as well as its Judgment and Award.
11. It is not in dispute that the accident was due to the negligence on the part of the deceased and the same is evident from the claim petition itself. Thus, the deceased was not a third party vis-a-vis the insurer of the vehicle in question and therefore, the claimants cannot lay a claim for compensation under Section 166 of the Act, against the insurer of the vehicle in question. This view is fortified by the judgment of the Apex Court in the case of National Insurance Company Limited vs. Ashalata Bhowmik and others reported in 2018 ACJ 2825, wherein it is held in para No.7 as under:
"... It is an admitted position that the deceased was the owner-cum-driver of the vehicle in question. The accident had occurred due to the 7 rash and negligent driving of the vehicle by the deceased. No other vehicle was involved in the accident. The deceased himself was responsible for the accident. The deceased being the owner of the offending vehicle was not a third party within the meaning of the Act. The deceased was the victim of his own action of rash and negligent driving. A Claimant, in our view, cannot maintain a claim on the basis of his own fault or negligence and argue that even when he himself may have caused the accident on account of his own rash and negligent driving, he can nevertheless make the insurance company to pay for the same."
Therefore, the respondents being the legal representatives of the deceased could not have maintained the claim petition filed under Section 166 of the Act. It was further held "since the indemnification extended to personal accident of the deceased is limited to Rs.2,00,000/- under the contract of insurance, the respondents are entitled for the said amount towards compensation." 8
12. It is not in dispute that the deceased was the owner of the motor bike in question and also that he was riding the motor bike at the time of the accident. The insurance policy at Ex.R1 would disclose that the insurer had collected premium of Rs.50/- to cover the owner-cum- driver to an extent of Rs.1,00,000/-. In view of the law laid down in the case of Ashalata Bhowmik (supra), the claimants are entitled to personal accident cover of a sum of Rs.1,00,000/- along with interest at the rate of 6% per annum from the date of the claim petition till the date of realization, which is payable by the insurer of the vehicle in question.
Hence, this appeal is allowed in part and the impugned judgment and award passed by the Tribunal in MVC No.394/2015 is set aside and it is held that claimants
- appellants herein are entitled to compensation of a sum of Rs.1,00,000/- along with interest at the rate of 6% per annum from the date of the claim petition till the date of realization, which is payable by the insurer - respondent herein.
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The insurer shall deposit the compensation with interest as aforesaid within one month from the date of receipt of a certified copy of this judgment.
Sd/-
JUDGE Sd/-
JUDGE sma