Karnataka High Court
Mahantesh S/O Muregappa Gagwade @ ... vs Shrikant S/O Basanagouda Patil ... on 10 November, 2021
Bench: R.Nataraj
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE R. NATARAJ
M.F.A. No.30481/2013 (MV)
BETWEEN:
01. MAHANTESH
S/O MUREGAPPA GAGWADE @ KAGWADE,
AGE: 47 YEARS, OCC: COOLIE
02. NIRMALA
W/O MAHANTESH GAGWADE @ KAGWADE,
AGE: 45 YEARS, OCC: H. H. WORK
BOTH ARE R/O BABANAGAR,
TAL. AND DIST: BIJAPUR-586 101.
... APPELLANTS
(BY SRI. S.V. BIRADAR, ADVOCATE)
AND:
01. SHRIKANT
S/O BASANAGOUDA PATIL
AGE: MAJOR, OCC: BUSINESS
R/O SANKH, TQ: SANKH
DIST: SANGALI-570 002.
02. THE BRANCH MANAGER,
ORIENTAL INSURANCE CO. LTD.,
BIJAPUR-560001.
... RESPONDENTS
(BY SRI. SANJAY M. JOSHI, ADVOCATE FOR R2;
NOTICE TO R1 SERVED)
2
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988 PRAYING TO
SET-ASIDE THE JUDGMENT AND AWARD DATED 01.07.2011
PASSED BY MACT-VII BIJAPUR IN MVC.NO.327/2010 AND
ALLOW THE SAID CLAIM PETITION.
THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT ON 29.07.2021 AND
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is filed by the claimants challenging the
Judgment and Award dated 01.07.2011 passed by the
MACT-VII, Bijapur (henceforth referred as 'the Tribunal') in
MVC.No.327/2010.
02. The claimants are the legal representatives of
Vishal, who was aged 22 years. It is stated that on
25.09.2010 when Vishal along with another person
(Claimant in MVC.No.328/2010) were riding on a
motorcycle bearing Reg.No.MH-10-AC-1799, it met with an
accident. Mr. Vishal who was riding the motorcycle
succumbed to the injuries in the accident, while the pillion
rider suffered grievous injuries. The claimants therefore
filed a claim petition under Section 163A of the Motor
Vehicles Act, 1988 seeking compensation of a sum of
Rs.11,00,000/- from the owner and insurer of the
motorcycle.
03. The owner of the motorcycle was placed
ex-parte.
04. The claim petition was resisted by the insurer
of the motorcycle who denied the accident and also the
relationship of the claimants with the deceased. It
contended that the deceased did not possess a driving
licence at the time of the accident. It also alleged that the
deceased was negligent and was responsible for the
accident and therefore the insurer was not liable to pay
any compensation.
05. Based on these rival contentions, the claim
petition was set down for trial.
06. The claimant No.1 was examined as PW.1 and
the pillion rider was examined as PW.2 and they marked
Exs.P.1 to 10. The insurer examined its official as RW.1
and marked a document as Ex.R.1.
07. Based on the oral and documentary evidence,
the Tribunal held that the deceased was riding the
motorcycle in a rash and negligent manner and accident
occurred due to his negligence. In so far as the claim for
compensation is concerned, the Tribunal noticed that the
deceased was a Bachelor who was aged 22 years and thus
considered his income at a sum of Rs.3,000/- per month
and deducted 50% towards his personal expenses and
considered the age of the claimant No.2 for the purpose of
determining the multiplier and held that the loss of
dependency was a sum of Rs.2,52,000/- and a sum of
Rs.6,000/- under the conventional heads. In so for as the
liability to pay the compensation is concerned, the Tribunal
held that the deceased had borrowed the motorcycle from
its owner and therefore he stepped into the shoes of the
owner. As such, the legal representatives of the deceased
were not entitled to be compensated by the insurer.
Hence, the Tribunal dismissed the claim petition filed by
the claimants.
08. Being aggrieved by the aforesaid judgment and
award passed by the Tribunal the present appeal is filed.
09. The learned counsel for the claimants
contended that the petition was filed under Section 163A
of the Motor Vehicles Act, 1988 and therefore the Tribunal
committed an error in holding that the deceased was
negligent and he was responsible for the accident. He
further contended that the policy in question was a
package policy and therefore the claimants were entitled to
claim compensation from the insurer of the motorcycle.
10. Per contra, the learned counsel for the insurer
contended that the deceased had borrowed the motorcycle
and therefore stepped into the shoes of the owner and
thus the legal representatives of the deceased could not
maintain a claim petition either under Section 166 or under
Section 163A of the Motor Vehicles Act, 1988.
11. I have considered the arguments canvassed by
the learned counsel for the parties and also perused the
records of the Tribunal.
12. It is not in dispute that the petition was filed
under Section 163A of the Motor Vehicles Act, 1988 and
therefore the claimants were entitled to claim
compensation without adducing evidence to prove
negligence. Under the circumstances, the Tribunal
misdirected itself in recording a finding that the accident
was caused due to the rash and negligent riding by the
deceased. In the present case, the motorcycle was covered
by a comprehensive package policy. Therefore, any person
including the insurer could ride the motorcycle in question
provided, he held an effective driving licence at the time of
the accident. In the present case, though it is contended
that the deceased did not possess a driving licence, the
insurer did not take any steps to establish the same.
Since, the motorcycle was covered by a comprehensive
policy of insurance, the insurer cannot claim avoidance of
liability. Consequently, the finding recorded by the Tribunal
that the claimants were not entitled for compensation from
the insurer is incorrect and deserve to be set-aside.
13. In respect of a package policy, the Apex Court
has held in the case of National Insurance Company
Ltd., vs. Balakrishnan [(2013) 1 SCC 731] that "a
comprehensive/package policy would cover the liability of
the insurer for payment of compensation for a occupant in
a car". This is also the law declared by the Apex Court in
the case of Oriental Insurance Company Ltd., vs.
Surendranath Luomba and others [(2012) 13 SCC
72]. Hence, the insurer is liable to pay the compensation
to the claimants.
14. In so far as quantum of compensation to which
the claimants are entitled to, the deceased was 22 years
old and since the claim petition was filed under Section
163A of the Motor Vehicles Act, 1988 and the monthly
income was claimed at a sum of Rs.3,000/-, it is
appropriate that claim of the claimants is considered for
the purpose of awarding the compensation. Hence, the
claimants are entitled to the following compensation:
Heads under which Amount in Rupees
compensation awarded
Loss of dependency : 7,34,400/-
Rs.64,800/- x 1/3 x 17
Funeral Expenses : 2,000/-
Loss of estate : 2,500/-
Total : 7,39,100/-
In view of the above, the appeal is allowed in part.
The impugned Judgment and Award passed by the Tribunal
rejecting the claim petition is set-aside. The claimants are
awarded a sum of Rs.7,39,100/- along with interest at the
rate of 6% per annum from the date of the claim petition
till its realization.
The insurer shall deposit the compensation as
determined along with accrued interest within a period of
one month from the date of receipt of a certified copy of
this Judgment. Upon deposit, the compensation along with
accrued interest, shall be deposited in the name of the
claimants in any nationalized bank for a period of three
years.
Sd/-
JUDGE
KJJ
