THE HON'BLE SMT. JUSTICE M. G. PRIYADARSINI
M.A.C.M.A. No. 1849 of 2014
JUDGMENT:
Feeling aggrieved and dissatisfied with the Award passed by the Chairman, Motor Accident Claims Tribunal- cum-II Additional District Judge, Karimnagar at Jagtial (hereinafter referred to as 'the learned Tribunal'), in O.P.No. 81 of 2011, dated 13.01.2014, the appellants/claimants have preferred the present appeal.
2. For the sake of convenience, the parties hereinafter referred to as they are arrayed before the learned Tribunal.
3. The facts that lead to the present appeal in nutshell, are as under:
The claimants, who are the wife, minor children and father of one Uppu Jalander (hereinafter referred to as 'the deceased'), filed claim-petition under Section 163-A of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') claiming compensation of Rs.5,00,000/- for the death of the deceased in a vehicular accident, which occurred on 03.04.2011. It is stated that on 03.04.2011 at about 7.00 2 MGP, J Macma_1849_2014 pm., while the deceased was riding the bike of respondent No.1 and when he reached near a petrol bunk on the National High Way No.16 at Korutla, due to burst of front tyre of the bike, he lost control and that bike gave dash to the road divider, due to which he had a fatal fall and sustained severe injuries and while undergoing treatment in the hospital succumbed to the injuries. The concerned Police registered a crime for the offence under Section 279 I.P.C. read with 174 Cr.P.C., later on closed the said crime by filing a final report before the Court to the effect 'Action abated'. The claimants filed the aforesaid O.P. against respondent Nos.1 and 2, who are the owner and insurer of the bike respectively.
4. Before the learned Tribunal, while respondent No.1 remained ex parte, respondent No.2-Insurance Company has resisted the claim by filing a counter and contended that the policy was only 'Act policy' and no extra premium was paid to cover the risk of owner or the rider under personal accident coverage and in collusion with respondent No.1, the claimants with a delay of 19 hours got lodged a complaint with the Police with false allegations and the insured i.e. respondent 3 MGP, J Macma_1849_2014 No.1 violated many of the terms and conditions of the policy. Therefore, respondent No.2 is not liable to pay any compensation to the claimants.
5. The Tribunal, considering the claim and the counter filed by the insurer of the offending vehicle, and on evaluation of the evidence, both oral and documentary, has partly allowed the said claim petition and awarded a total sum of Rs.4,14,000/- as compensation along with the interest @ 7.5% per annum from the date of filing of the claim petition till the date of realization payable by respondent No.1 only while dismissing the claim against respondent No.2- Insurance Company. Challenging the same, the present appeal came to be filed by the claimants seeking enhancement of compensation payable by respondent Nos.1 and 2 jointly and severally.
6. Learned counsel for the claimants has vehemently submitted that the learned Tribunal erred in holding that the insurance company is not liable to pay the compensation to the claimants on the ground that Ex.B-1-Policy is only an Act 4 MGP, J Macma_1849_2014 policy and no extra premium was paid to cover the risk of owner or his agent and as the claimants have failed to bring on record that the deceased was a third party to Ex.B-1- Policy, respondent No.2-Insurance Company cannot be fastened with the liability to pay the compensation and the learned Tribunal directed respondent No.1-owner only to pay the compensation awarded to the claimants.
7. It is further submitted by the learned counsel for the claimants that the claim petition preferred by the claimants was under Section 163-A of the Act and, therefore, when the claim petition was preferred under Section 163-A of the Act, there is no need for the claimants to plead or establish that the death in respect of which the claim petition has been made was due to any wrongful act or neglect or default of owner of vehicle concerned or any other person. It is further submitted by the learned counsel for the claimants that the claim petition filed by the claimants was based on the principle of no-fault liability, therefore, as the present claim premised on the no-fault liability under Section 163-A of the Act by the legal heirs of the deceased, the same was 5 MGP, J Macma_1849_2014 maintainable against the owner and insurer of the motor vehicle, which was being driven by him, more particularly, when the deceased was not the owner of the vehicle and that respondent No.1 was the registered owner of the concerned vehicle and, therefore, the Insurance Company cannot be absolved from its liability to pay the compensation.
8. In support thereof, learned counsel for the claimants has relied upon the decision of Hon'ble Supreme Court in the case of Ramkhiladi and another vs. The United Insurance Company and another (Civil Appeal No.9393 of 2019 decided on 07.01.2020).
9. It is also submitted by the learned counsel for the claimants that the learned Tribunal has not awarded the amounts in accordance with the settled decisions under other heads and failed to deduct the amount from the earnings of the deceased in accordance with the settled decisions of the Apex Court and also failed to calculate the amount with appropriate multiplier.
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10. On the other hand, the learned Standing Counsel appearing on behalf of the Insurance Company, respondent No.2 herein, has contended that the learned Tribunal had rightly dismissed the claim petition against the Insurance Company by placing reliance upon catena of decisions of Andhra Pradesh High Court, Kerala High Court and Allahabad High Court and had adequately granted the compensation, as such, the same needs no interference by this Court.
11. Heard learned counsel appearing on behalf of the respective parties. Perused the impugned award passed by the learned Tribunal as well as the evidence on record.
12. The questions, which are posed for consideration of this Court in this appeal, are as follows:
(i). "Whether respondent No.2-Insurance Company would be liable to pay the compensation to the claimants under Section 163-A of the Act?
(ii). Whether the compensation awarded by the learned Tribunal is just and equitable"?
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13. The claim petition was filed under Section 163-A of the Act by the legal representatives of the deceased against the real owner of the motorcycle and the insurer, which was being driven by the deceased. Admittedly, the policy of insurance was an Act policy. The claimants did not adduce any evidence showing that the accident occurred in the course of the employment of the deceased with respondent No.1-owner of the vehicle or that under the terms and conditions of the policy under which the offending vehicle was insured with respondent No.2-Insurance Company, the risk of the deceased is covered. On perusal of evidence on record, the deceased cannot be said to be in employment of respondent No.1-owner and, therefore, he can be said to be permissible user and/or borrower of motor vehicle owned by respondent No.1-owner.
14. The learned Tribunal had recorded a categorical finding that the claimants failed to bring on record that the deceased was a third party to Ex.B-1-Policy, which is an Act policy and thus, respondent No.2-Insurance Company cannot be 8 MGP, J Macma_1849_2014 fastened with the liability to pay compensation and only respondent No.1-owner of the offending vehicle, has to be asked to pay the compensation to the petitioners.
15. In the case of Oriental Insurance Company Limited and others vs. Ramalingam and others in C.M.A.Nos.1982 to 1984 of 2016 and C.M.P.Nos.14321 to 14323 of 2016 and 20793 to 20795 of 2016, decided on 17.03.2020, the Madras High Court in Para No.8 made the following observations:
"This Court is of the considered opinion that in an Act policy liability of the Insurance Company cannot be fixed. The Policy being a contract, the terms and conditions are binding on the parties that the claimants were travelling in the insured car, which met with an accident, then there is no reason to pass an order of pay and recovery against the Insurance Company. In all such cases the owner may be held liable and contrarily, as per the terms and conditions of the Act policy, the Insurance Company cannot be held liable. Then, the Tribunal committed an error in granting compensation in favour of the claimants and passing an order of pay and recovery and compensation is to be granted only against the owner of the vehicle and certainly not against the Insurance Company."9
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16. In the present case, as observed hereinabove, since the deceased cannot be said to be a third party to Ex.B-1-Policy, the learned Tribunal has rightly observed and held that respondent No.2-Insurance Company cannot be fastened with the liability to pay the compensation and only respondent No.1-owner has to be asked to pay the compensation to the claimants. Therefore, this Court is of the considered opinion that the impugned Award passed by the learned Tribunal in so far as it relates to respondent No.2-Insurance Company, is affirmed holding that respondent No.2-Insurance Company is not liable to pay compensation to the claimants.
17. The case facts of Ramkhiladi and another vs. The United Insurance Company and another in Civil Appeal No.9393 of 2019 decided on 07.01.20220, which is relied upon by the learned counsel for the claimants, are different with the facts of the present case. Hence, the said decision is not applicable to the present case.
18. In so far as the quantum of compensation is concerned, in the claim petition, the learned Tribunal has applied 10 MGP, J Macma_1849_2014 multiplier according to second Schedule of Section 163-A of the Act, and deducting one third amount as expenses to be incurred on deceased during life time if he would be alive and then the tribunal calculated compensation accepting notional income of deceased person, as claimants could not prove income of deceased person by concrete and reliable evidence.
19. Under these circumstances, this Court is of the considered view that the learned Tribunal has not committed any error or illegality in applying multiplier according to Second Schedule of Section 163-A of the Act, and deducting one third amount to be incurred on deceased and then calculating amount of compensation considering the age of deceased. The findings recorded by the learned Tribunal in above claim petition do not suffer from any illegality, error or factual in accuracy. Hence, the appeal is liable to be dismissed.
20. In the result, the M.A.C.M.A. stands dismissed confirming the award and decree passed by the learned Tribunal in all respects. No costs.
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21. Pending Miscellaneous Applications, if any, shall stand closed.
______________________________ JUSTICE M.G. PRIYADARSINI Date: 06.04.2023 svl 12 MGP, J Macma_1849_2014 THE HON'BLE SMT. JUSTICE M.G. PRIYADARSINI M.A.C.M.A. No.1849 of 2014 DATE: 06-04-2023 svl