Karnataka High Court
The Manager vs Asha on 22 December, 2021
Bench: P.N.Desai
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 22ND DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE P.N. DESAI
MISCELLANEOUS FIRST APPEAL NO.7072 OF 2010 (MV)
BETWEEN
THE MANAGER
UNITED INDIA INSURANCE
COMPANY LIMITED
VARANACY TOWERS, NELLIKAI ROAD
MANGALORE.
THROUGH
REGIIONAL OFFICE,
UNITED INDIA INSURANCE CO. LTD.,
5TH FLOOR, KRISHI BHAVAN
HUDSON CIRCLE
BANGALORE - 560 001.
... APPELLANT
(BY SRI. O. MAHESH, ADVOCATE)
AND
1. ASHA,
AGE 25 YEARS
W/O. LATE GANESH
2. MR. AKSHAL,
AGE 3 YEARS
D/O. LATE GANESH,
3. MRS. JANU,
AGE 58 YEARS
W/O. AYYAPPA
ALL ARE RESIDING AT
YELEMADALU KOPPA
CHIKKAMAGALORE DISTRICT
2
4. MR. ESHWARA POOJARY
AGED ABOUT 46 YEARS
S/O. KORAGAPPA POOJARY
R/AT SHRISTI GUNDURAO LANE
MANNAGUDDA, MANGALORE.
... RESPONDENTS
(BY SRI. MANOHAR K.M. FOR SRI. D. KRISHNA MOORTHY,
ADVOCATE FOR R1 AND R3,
R2 - MINOR REPRESENTED BY R1
SRI. KRISHNA MOHAN VARMA FOR SRI. MANMOHAN P.N.,
ADVOCATE FOR R4)
THIS MFA FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 23.03.2010
PASSED IN MVC NO.704/2009 ON THE FILE OF THE III
ADDITIONAL DISTRICT JUDGE, MEMBER, MACT-IV, D.K.,
MANGALORE, AWARDING A COMPENSATION OF RS.4,11,000/-
WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION UNTIL
DEPOSIT IN COURT.
THIS MFA COMING ON FOR HEARING THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING, THIS DAY THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant -
Insurance Company and also the learned counsel
appearing for respondents No.1 to 3 and 4.
2. This appeal is filed challenging the judgment
and award dated 23.03.2020 passed by the MACT,
Dakshina Kannada, Mangalore, in MVC NO.704/2009,
wherein the Tribunal has awarded a sum of
Rs.4,11,000/- as compensation to the petitioners, with
interest at 6% per annum from the date of petition till
the date of realisation. The Insurer filed this appeal,
challenging the same.
3. The brief case of the claimants before the
Tribunal was that, on 01.04.2009 at about 8.00 p.m.,
the deceased was proceeding on a motor cycle bearing
registration No.KA-19/S-1468 from Kuloor Kavoor Road.
When he was near Kavoor Service Station,
Shanthinagara, Kavoor Village, due to the fall on a port
wall on the road, he lost control and fell down and
sustained injuries and then succumbed to the injuries.
4. Respondent No.2 Insurer had appeared and
filed written statement, denying the contents and also
contends that since due to the negligence on the part of
the deceased Ganesh, no liability can be fastened on
respondent No.2. On the other hand, it is admitted that
the offending vehicle is insured with respondent No.2
and the liability is subject to the terms and conditions of
the policy.
5. Before the Tribunal, the wife of the petitioner
got examined herself as PW1 and produced the
documents which are marked as Exs.P1 to P10, such as
FIR, Spot Mahazar, P.M. report, Inquest report, Notice
under Section 160 of MV act, IMV Report, spot sketch,
ration card and medical bills. Respondents did not chose
to adduce any evidence. After hearing both sides, the
Tribunal awarded the said amount as compensation,
which is under challenge now.
6. Heard Sri. O. Mahesh, learned counsel for the
appellant and Sri. Manohar K.M. for Sri. D. Krishna
Moorthy, learned counsel for respondents No.1 and 3
and Sri. Krishna Mohan Varma for Sri. Manmohan P.N.,
learned counsel for respondent No.4
7. Learned counsel for the appellant contends
that the Tribunal has erred in determining the
compensation, which is not based on the evidence and
material placed on record. It is also contended that since
the accident occurred due to his own negligence, the
claim petition was not maintainable as the deceased
stepped into the shoes of the owner being the borrower of
the insured vehicle.
8. The learned counsel also argued that the
Tribunal has not properly considered the income of the
deceased. It is artificially brought down to reckon that
just to claim compensation under Section 163-A of M.V.
Act, which is deliberate. Therefore, the claim petition is
not maintainable. With this main ground, the learned
counsel argued to set aside the award as far as the
direction to pay the insurance amount by the insurance
company.
9. Against this, the learned counsel for
respondents No.1 to 3 supported the judgment and
award passed by the Tribunal. Further, the learned
counsel for respondent No.4 also relied on Section 163-A
of M.V. Act itself. There is no distinction between the
borrower of the vehicle and rider of the vehicle for a
petition filed under Section 163-A of M.V. Act. Therefore,
the claim petition under Section 163-A of M.V. Act is
maintainable and negligence attributed cannot be
considered by the court.
10. From the material on record, the point that
arise for my consideration is :
(i) Whether the Tribunal is justified in fastening
the liability on the Insurance Company for the death
of the rider of motor cycle?
(ii) Whether the income of the deceased was
assessed properly? What is required for considering
the petition filed under Section 163-A of M.V. Act?
In my considered view, both pointes are answered
negative, for the following reasons :
11. Learned counsel appearing for the Insurance
Company relied upon the judgment of RAM KHILADI
VS. UNITED INDIA INSURANCE COMPANY LIMITED
reported in 2020 Part II SCC 550, contending that since
the borrower of the vehicle stepped into the shoes of the
owner and Insurance Company is not liable to pay
compensation to the accident caused due to negligence
on the part of the rider himself.
12. This contention of the learned counsel for the
Insurance Company is not tenable and no more res-
integra that the rider stepped into the Hon'ble Apex
Court in the case of CHANDRAKANTA TIWARI vs. NEW
INDIA ASSURANCE COMPANY LIMITED reported in
(2020) 7 SCC 386, wherein the Hon'ble Apex Court at
para 12 held as under :
"12. In this view of the matter, it is not
relevant that the person insured must be the
driver of the vehicle but may well have been
riding with somebody else driving a vehicle
which resulted in the death of the person
driving the vehicle. The High Court, therefore,
is clearly wrong in stating that it was
necessary under Section 163-A to prove that
somebody else was driving the vehicle rashly
and negligently, as a result of which, the
death of the victim would take place."
13. Further, the learned single Judge in a
coordinate bench of this in MFA Crob No.767/2013
c/w. MFA No.24941/2011 decided on 18.09.2020 has
also referred to the above decision and held that there
cannot be distinction between the rider and the pillion
rider for a petition under Section 163-A of the M.V. Act.
14. Further, the learned Single judge of this court
in the case of H. SUBBRAYA BHAT V/S. SMT
SULOCHANA BHAT H. in MFA No.5399/2016 dated
03.12.2021, has also referred to the decision of the
UNITED INDIA INSURANCE COMPANY LTD. VS. SUNIL
KUMAR AND ANOTHER reported in AIR 2017 SC
5710, wherein it is held that no defence is available for
the Insurance Company to plead the negligence of the
deceased. Further, the contention of the Insurance
Company in RAM KHILADI VS. UNITED INDIA
INSURANCE COMPANY LTD. reported in 2020 Part II
SCC 550 is also referred and the judgment of the
Hon'ble Apex Court in the case of NINGAMMA vs.
UNITED INDIA INSURANCE COMPANY LIMITED (Civil
Appeal No.3538/2009 - SLP(C) 24236/2008 disposed
of on 13.05.2009 is also considered and held that the
Insurance company cannot avoid liability.
15. The coordinate bench of this Court has
discussed the provisions of Section 163-A of M.V. Act
and relying on the decision of CHANDRAKANTA TIWARI
vs. NEW INDIA ASSURANCE COMPANY LIMITED
reported in (2020) 7 SCC 386 and held that the cause of
action as per Section 163-A of M.V. Act is use of the
motor cycle, cause of action alone which need to be
established without any requirement to prove fault on
the part of the driver, whether it be the owner or any
other person. In view of the pronouncement of this
judgment and also the judgment of the other coordinate
bench of this court and also the decision of
Chandrakanta Tiwari (supra), the first contention of the
Insurance Company is not tenable.
16. The second contention is considered in the
light of the petition averments. It is clearly disclose that
the monthly income of the deceased is shown as
Rs.3,000/-. If the said income is taken per month, the
said petition filed by the petitioner under Section 163-A
of the M.V. Act is maintainable. The Tribunal has rightly
taken the earning as Rs.3,000/- per month as per
Schedule - II of Section 163-A of the M.V. Act. Therefore,
the second contention is also not tenable.
17. I find the judgment and award passed by the
Tribunal is just and proper and liability fixed is also just
as the policy was in force. Hence, there is no grounds to
interfere with the finding of the Tribunal. The appeal is
being devoid of merits is liable to be dismissed. Hence, I
pass the following :
ORDER
i) The appeal is dismissed.
ii) No order as to costs.
iii) The amount in deposit if any along with trial
court records be transmitted to the Tribunal for
disbursal in accordance with the award.
Sd/-
JUDGE
snc
