* THE HON'BLE SMT. JUSTICE M. G. PRIYADARSINI
+ MACMA No.1067 of 2017
% 19-04-2023
# 1. K.Purushottam Rama Sharma,
S/o late Suryanarayana,
Aged 54 years,
R/o. H.No. 9-54/2, Venkateshwaranagar,
Malkajgiri, Hyderabad
... Appellant/Claimant
Vs.
$ 1. G.Subramanya Prasad, S/o. late G.V.N.Murthy,
R/o 306, A-Block, Near Sridevi Theatre,
Hyderabad.
2. The Oriental Insurance Company Limited,
Rep. by its Regional Manager,
Snehalatha Buildings, Near CM Camp Office,
Greenlands, Begumpet, Hyderabad - 16.
Palika Suribabu, S/o Late Lovaraju
... Respondents/Respondents
! Counsel for the Appellants: T VISWARUPA CHARY
Counsel for Respondents : T RAMULU
< Gist:
> Head Note:
? Cases referred:
1) 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
2) Ramkhiladi and another vs. The United Insurance Company and another in Civil
Appeal No.9393 of 2019 decided on 07.01.20220
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Macma_1067_2017
THE HON'BLE SMT. JUSTICE M. G. PRIYADARSINI
M.A.C.M.A. No.1067 of 2017
JUDGMENT:
This appeal is preferred by appellant/claimant, questioning the award and decree, dated 07.04.2016 passed in M.V.O.P.No.1478 of 2013 on the file of the Chairman, Motor Accident Claims Tribunal-cum-X Additional Chief Judge, City Civil Court, Hyderabad (for short, "the Tribunal").
2. For the sake of convenience, the parties have been referred to as arrayed before the Tribunal.
3. The facts, that lead to file the present appeal in nutshell, are as under:
The claimant, who is the husband of one K.M.Valli (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.9,00,000/- for the death of the deceased in a vehicular accident, which occurred on 03.01.2013. It is stated that on the fateful day, at about 10:15 p.m., while the deceased, along 3 MGP, J Macma_1067_2017 with her husband, was proceeding on a motor cycle bearing No. AP 28 AT 1358, owned by respondent No. 1, insured with respondent No. 2, being driven by its rider, from Chanda Nagar to Malkajgiri and when she reached near AOC Centre, the said motor cycle over turned. As a result, she fell down and sustained fatal injuries and she succumbed to the injuries while undergoing treatment in the hospital. According to the claimant, the deceased was aged about 49 years and earning Rs.12,000/- per month as a chef/cooking supervisor and used to contribute her entire earnings. The deceased used to contribute her entire earnings for the welfare of her family, but due to the sudden and untimely death of the deceased, the claimant lost his bread winner, love and affection besides losing future earnings and dependency on the deceased. Therefore, the claimant has claimed Rs.9,00,000/- as compensation against the respondent Nos. 1 & 2, who are the owner and insurer of the motor cycle respectively.
4. Before the Tribunal, while respondent No.1 remained ex parte, respondent No.2-Insurance Company has resisted the 4 MGP, J Macma_1067_2017 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 the rider of the offending vehicle i.e., motor cycle does not possess valid driving licence at the time of the accident and violated the terms and conditions of the policy. Therefore, respondent No.2 is not liable to pay any compensation to the claimant.
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.3,89,000/- 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 claimant seeking enhancement of compensation payable by respondent Nos.1 and 2 jointly and severally.
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6. Learned counsel for the claimant has vehemently submitted that the Tribunal erred in holding that the insurance company is not liable to pay the compensation to the claimant on the ground that Exs.B.1, certified copy of Insurance Policy, is only an Act policy and no extra premium was paid to cover the risk of owner or his agent and as the claimant has 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 claimant. The learned counsel further submitted that the claim petition preferred by the claimant 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 claimant 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 lastly submitted by the learned counsel for the claimant that the claim petition filed 6 MGP, J Macma_1067_2017 by the claimant 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 maintainable against the owner and insurer of the motor cycle, as the deceased was a pillion rider, 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. He further contended that the 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.
7. On the other hand, the learned Standing Counsel appearing on behalf of the Insurance Company, respondent No.2 herein, contended that the Tribunal had rightly dismissed the claim petition against the Insurance Company by placing reliance upon catena of decisions of Andhra 7 MGP, J Macma_1067_2017 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.
8. Heard learned counsel appearing on behalf of the respective parties. Perused the impugned award passed by the Tribunal as well as the evidence on record.
9. The questions, which are posed for consideration of this Court in this appeal, are as follows:
a. "Whether respondent No.2-Insurance Company would be liable to pay the compensation to the claimant under Section 163-A of the Act?
b. Whether the compensation awarded by the Tribunal is just and equitable"?
10. 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, as the deceased was a pillion rider. 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 8 MGP, J Macma_1067_2017 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, she can be said to be permissible user and/or borrower of motor vehicle owned by respondent No.1-owner.
11. The learned Tribunal had recorded a categorical finding that the claimant 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 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 petitioner.
12. 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:
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MGP, J Macma_1067_2017 "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."
13. In the present case, as observed hereinabove, since the deceased cannot be said to be a third party to Ex.B-1-Policy, the 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 claimant. Therefore, this Court is of the considered opinion that the impugned Award passed by the 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 claimant.
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14. 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 claimant, are different with the facts of the present case. Hence, the said decision is not applicable to the present case.
15. In so far as the quantum of compensation is concerned, in the claim petition, the learned Tribunal has applied 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 she was alive and then the tribunal calculated compensation accepting notional income of deceased person, as claimant cannot prove the income of deceased person by concrete and reliable evidence.
16. Under these circumstances, this Court is of the considered view that the 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 11 MGP, J Macma_1067_2017 findings recorded by the Tribunal in above claim petition do not suffer from any illegality, error or factual in accuracy. Hence, the appeal is liable to be dismissed.
17. 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.
Pending Miscellaneous Applications, if any, shall stand closed.
______________________________ JUSTICE M.G. PRIYADARSINI Date:19.04.2023 gms/tsr 12 MGP, J Macma_1067_2017 THE HON'BLE SMT. JUSTICE M.G. PRIYADARSINI M.A.C.M.A. No.1067 of 2017 DATE: 19-04-2023 gms/tsr