Telangana High Court
Bajaj Alliance General Insurance Co. ... vs Sathuluri Pullamma on 12 June, 2025
THE HON'BLE SRI JUSTICE NARSING RAO NANDIKONDA
M.A.C.M.A.No.376 of 2020
JUDGMENT:
The appellant-Insurance Company filed the present appeal against the Award and decree passed by the IV Additional District and Sessions (II FTC) Judge, Nalgonda (hereinafter referred to 'learned Tribunal') in M.V.O.P.No.999 of 2013, dated 28.02.2020, wherein claimants/ respondents herein had filed the claim petition, seeking compensation of Rs.6,00,000/-.
2. Heard Sri A.Ramakrishna Reddy, learned counsel for the appellant/petitioner-Bajaj Alianz General Insurance Company and Ms. Annapurna Sreeram, learned counsel for the respondents. Perused the material on record.
3. For the sake of convenience, the parties will be hereinafter referred to as they are arrayed before the learned Tribunal.
4. The brief facts of the case are that claimants filed M.V.O.P.No.999 of 2013 under Section 166 of Motor Vehicle Rules 1989 of the M.V.Act, 1988 seeking compensation for the death of the S.Suresh (hereinafter referred as 'deceased') who died in the accident on 17.09.2013. 2
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5. It is contended that on 17.09.2013, the deceased along with his co-worker while proceeding on Pulsar Motorcycle bearing No.AP-28-BV- 4043 and when he reached at the outskirts of Aitipamula Village at about 2.30 A.M. due to lighting focus of opposite vehicles, the deceased could not observe the road divider and dashed motorcycle to the divider, as a result, the deceased fell down and sustained grievous injuries on chest, head and other vital parts of the body and died on the spot. The Police registered a case in Crime No.141 of 2013 under Section 304-A and 337 of IPC against the rider of the motor cycle i.e., deceased. The claimants claimed an amount of Rs.6,00,000/- as compensation for the death of the deceased under various heads.
6. The contention of the claimant before the Tribunal, was that as on the date of accident the deceased was aged about 28 years and was earning Rs.12,000/- per month by working as Welder in Infotech Company. Due to the said accident, the petitioners lost their dependency.
7. Before the learned Tribunal, respondent No.1-owner of the lorry remained ex-parte. Respondent No.2 - Bajaj Alianz General Insurance Company, filed counter-affidavit, denying all the averments made in the claim petition, including the manner in which the accident took place, 3 NNR,J M.A.C.M.A.No.376 of 2020 age, avocation and income of the deceased and submitted that deceased was the rider of the motorcycle and the risk is was not covered under the insurance company and further contended that deceased himself being the rider stepped into the shoes of the owner as such he cannot be said to be a third party within the meaning of M.V.Act. For self negligence no amount of compensation is liable to the paid and the provisions of Section 134 (c) and 158 (6) of M.V.Act were not complied and further contended that the compensation claimed was excessive and prayed to dismiss the claim petition.
8. Basing on the pleadings and averments made by both the counsels, the learned Tribunal framed the following issues which reads as under:
i) Whether the deceased by name S.Suresh died in accident due to rash ad negligent driving of driver of motorcycle bearing No.ap-28-BV-4043
ii) Whether the petitioner are entitled for compensation. If so, to what amount and from whom?
iii) To what relief?
9. During the course of enquiry, PW1 was examined and got marked Exs.A1 to A5, on behalf of petitioner. R.W.1 was examined and Exs.B1 to B3 was marked, on behalf of respondent No.2 4 NNR,J M.A.C.M.A.No.376 of 2020
10. After perusing the oral and documentary evidences and after going into the entire record and the evidence placed by both the parties, the learned Tribunal allowed the claim in part and granted compensation of Rs.7,04,678/- along with interest @ 7.5% per annum.
11. Being unsatisfied and aggrieved by the compensation amount awarded by the learned Tribunal, the present appeal is filed by the appellant/Insurance Company on the grounds among the other grounds are that the claimants filed the claim petition under Section 166 of the M.V.Act, 1988 but, the learned Tribunal has treated the petition was filed under Section 163-A of the Act and awarded compensation. Learned counsel for the appellant, further contended that the deceased was driving the crime vehicle motorcycle under the instruction of Owner/Insurer who was travelling as pillion rider on the same motorcycle at the time of the accident, in this regard, as per the settled law, when a person drives a vehicle with the consent and under instructions of Owner of the said Vehicle, such person for all practical purposes steps into the shoes of the owner and cannot be considered as third party for the purpose of claiming compensation under Section 163-A of the M.V.Act.
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12. Learned counsel for the appellant further contended that the Tribunal erred in quantification of the compensation and failed to note that it has no jurisdiction to decide the matter both under Section 163- A and 166 of the M.V.Act and the Tribunal having considered the claim petition under Section 163-A, then the Tribunal ought to have awarded the compensation in accordance with the law laid down under Schedule-II of the M.V.Act and erred in taking future prospectus of 40% and granted an amount of Rs.70,000/- under conventional heads which is contrary to the Schedule-II of the Act and prays this Court to set- aside the Award and Decree passed by the Tribunal and allow the present appeal.
13. Learned counsel for the appellant also relied on the judgments passed by the Hon'ble Supreme Court in i) Ningamma and another Vs. United Insurance Company Linited 1 ii) Deepal Girish Bhai Sony Vs. United India Insurance company 2 iii) Ramkhiladi Vs.United India Insurance Company & Another's 3.
14. Learned counsel for the respondents submits that has contended that considering the oral and documentary evidence, the tribunal has 1 2009 ACJ 2020 2 2004 (5) SCC 385 3 2020 AIR (SC) 527 6 NNR,J M.A.C.M.A.No.376 of 2020 rightly awarded the compensation of Rs.7,04,678/- which is just and reasonable and needs no interference by this Court.
15. Admittedly, the claimants have not filed cross-appeal against the Award and decree passed by the Tribunal. As such, the claimant is satisfied with the Award and decree and the compensation awarded by the Tribunal.. The only point arose before this Court in this appeal is that:
"i) Whether the Tribunal had rightly considered the claimants petition filed under Section 166 read with Section 455 of Motor Vehicle Rules 989 of MV Act 1988 and awarded just compensation.
ii) Whether the petitioner is entitled for the compensation in view of the self made accident and self negligence."
16. The Tribunal in the judgment held that insurance company cannot be permitted to defeat the claim of the claimants merely because of the wrongful act or negligence basing on the judgment of Hon'ble Apex Court in Deepal Giris Bhai Sony Vs. United India Insurance Company Limited 4. On a perusal of the judgment passed by the Hon'ble Supreme Court, in the last operative portion has stated that "This order shall not be treated as a precedent." In view of the same, the judgment which is cited by the Tribunal would clearly shows 4 2004 (5) ALD 11 SC 7 NNR,J M.A.C.M.A.No.376 of 2020 that the Tribunal has miss the sight of the said line which is mentioned in the said Apex Court judgment, hence the Deepal Giri Bhai Sony judgment (cited supra) will not be applicable for coming to an conclusion that the Insurance company is liable to pay compensation to the claimants on the self negligence by the deceased.
17. The deceased dashed motor cycle to the divider and died on spot. Admittedly, there is no vehicle involved in the accident except the vehicle on which the deceased was travelling. In Ningamma v. United Indian Insurance Company Limited (cited supra), the Apex Court discharged the liability of the insurance company in a case where the driver is a representative of the owner and driving the vehicle under the owner's instructions or permission and is thus owner and not a third party. The Apex Court by referring the principle laid down in several other cases, more particularly, in the judgment of New India Assurance Company Limited v. Sadanand Mukhi 5, it was held that neither 163-A, nor 166 would be applicable, if the rider is not a third party and the Apex Court came to a conclusion that Insurer is not liable to pay the compensation.
5 (2009) 2 SCC 417 8 NNR,J M.A.C.M.A.No.376 of 2020
18. In view of above judgments discussed above, it can be safely concluded that the deceased is not third party as he stepped into the shoes of owner and by applying the principle held by the Apex Court in Sadanand Mukhi (cited above), hence the Insurer is not liable to pay compensation, since deceased is not a third party as per the provisions of the M.V. Act, 1988.
19. Accordingly, the appeal is allowed and the Award and Decree dated 28.02.2020 passed by the IV Additional District and Sessions (II FTC) Judge, Nalgonda in M.V.O.P.No.999 of 2013, dated 28.02.2020 are hereby set aside in so far as the appellant - Insurance Company is concerned. The appellant - Insurance Company is at liberty to take appropriate steps to recover the compensation amount if already paid to the claimants in accordance with law. There shall be no order as to costs.
20. Miscellaneous petitions, if any are pending, shall stand closed.
_________________________________ NARSING RAO NANDIKONDA, J 12.06.2025 SHA