Karnataka High Court
Smt. Kasturi vs The Icici Lombard Insurance Co ... on 8 January, 2021
Author: Alok Aradhe Rangaswamy
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.
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
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.
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.
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
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."
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.
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
