Sri Thimarayappa vs Shri Shanthappa
2022 Latest Caselaw 2656 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 17TH DAY OF FEBRUARY, 2022

                         BEFORE:

         THE HON'BLE MR. JUSTICE P.KRISHNA BHAT

MISCELLANEOUS FIRST APPEAL No.10612 OF 2010 [MV]

BETWEEN:

1.     SRI. THIMARAYAPPA,
       AGED ABOUT 47 YEARS,
       S/O. LATE DODDAVENKATAPPA,

2.     SMT. MANGAMMA,
       AGED ABOUT 42 YEARS,
       W/O. THIMMARAYAPPA,

3.     KUM. THULASI,
       AGED ABOUT 20 YEARS,
       D/O. THIMMARAYAPPA,

4.     KUM. SHILPA,
       AGED ABOUT 18 YEARS,
       D/O. THIMMARAYAPPA,

ALL THE APPELLANTS ARE
R/AT DEVARAHALLI, MASTHI HOBLI,
MALUR TALUK, KOLAR DISTRICT.               ... APPELLANTS

[BY SRI. A.K. BHAT, ADVOCATE]

AND:

1.     SHRI. SHANTHAPPA,
       MAJOR,
       FATHER'S NAME NOT KNOWN TO THE APPELLANTS,
       PARAPPANA AGRAHARA,
       HOSA ROAD, BEGUR HOBLI,
       ELECTRONIC CITY POST,
       BANGALORE - 100.
                             2


2.   THE GENERAL MANAGER,
     M/S. ICICI LOMBARD GENERAL,
     INSURANCE COMPANY LTD.,
     NO.89, II FLOOR, SVR COMPLEX,
     HOSUR MAIN ROAD,
     BANGALORE.                            ...   RESPONDENTS

[BY SRI. H.N. KESHAVA PRASHANTH, ADVOCATE FOR R.2;
R.1 - SERVICE HELD SUFFICIENT.]


                          ***


     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED 4.8.2010 PASSED IN
MVC NO.2422/2008 ON THE FILE OF THE XVIII ADDITIONAL
JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT-4,
METROPOLITIAN AREA, BANGALORE, [SCCH.NO.4], DISMISSING
THE CLAIM PETITION FOR COMPENSATION.

     THIS MFA COMING ON FOR HEARING, THROUGH VIDEO
CONFERENCE/PHYSICAL HEARING, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-



                       JUDGMENT

This appeal is at the instance of the claimants,

calling in question the legality and correctness of the

Judgment and Award dated 04.08.2010 in M.F.A.

No.2422/2008, passed by the Motor Accident Claims

Tribunal, Court of Small Causes, Bengaluru, dismissing

the claim petition.

2. The claimants approached the Tribunal in a

petition filed under Section 163-A of the Motor Vehicles

Act, 1988 [hereinafter referred to as 'Act' for short]

alleging that one Manjunatha [hereinafter referred to as

'deceased'] was the son of claimant Nos.1 and 2 and

brother of claimant Nos.3 and 4 and on 21.02.2008 at

about 7.45 a.m., when he was riding a motorcycle

bearing reg. No.KA-51/L-7130 belonging to respondent

No.1 herein from Hoskote to Maluru, he met with an

accident and died due to the injuries suffered in the said

accident. Respondent No.2 herein is the insurer of the

motorcycle in question.

Before the learned Tribunal, the owner of the

motorcycle remained ex-parte. The Insurance Company

contested the proceedings by filing a written statement.

During the trial, claimant No.1 examined himself as

P.W.1 and Exs.P1 to 10 were marked. The Insurance

Company examined one of its officials as R.W.1.

After hearing the learned counsel on both sides and

perusing the records, the learned Tribunal dismissed the

claim petition.

3. The learned counsel for the appellants Sri.

A.K.Bhat strenuously contended that it is true that

deceased Manjunatha had borrowed the motorcycle in

question from its owner who is respondent No.1 herein

and met with the fatal accident while riding the same.

He submits that the claim petition is undoubtedly under

Section 163-A of the Act. He further submits that the

decision of the Hon'ble Supreme Court in the case of

Ningamma and another Vs. United India Insurance

Co. Ltd. reported in AIR 2009 Supreme Court 3056

clearly lays down that the borrower of the insured vehicle

steps into the shoes of the owner of the borrowed vehicle

and therefore he being a tortfeasor cannot make a claim

against the Insurance Company and he cannot maintain

a petition under Section 163-A of the Act. He further

submits that he is also aware that in a subsequent

decision of the Hon'ble Supreme Court in the case of

Ramkhiladi and another Vs. United India Insurance

company and another reported in AIR 2020

Supreme Court 527, the Hon'ble Supreme Court has

held that even in cases of claim petition under Section

163-A of the Act where claimants are dependants of the

tortfeasor, if the policy of insurance covers the personal

accident liability, to the extent liability is taken upon

itself by the Insurance Company, compensation is

required to be awarded to the said extent with

appropriate interest thereon against the Insurance

Company. However, his substantial contention is that

when the deceased borrows the motorcycle from the

insured owner, there is a relation of 'bailor' and 'bailee'

and therefore the rights and liabilities of the parties

should be determined with reference to Section 150 of

the Indian Contract Act, 1872. He submits that the said

aspect has not been looked into by the learned Tribunal

and he therefore submits that the Judgment and Award

impugned herein is illegal for non-consideration of the

said aspect and it is liable to be set aside.

4. Sri. H.N.Keshava Prashanth, learned counsel

appearing for the respondent/Insurance Company, per

contra, submits that in view of the policy including the

liability of personal accident coverage, all that the

claimants are entitled to is a sum of `1,00,000/- with

appropriate interest thereon. He submits that the rest of

the claim made under Section 163-A of the Act is not

maintainable in view of the decision of the Hon'ble

Supreme Court in Ningamma's Case [supra].

5. I have given my anxious consideration to the

submissions made on both sides and I have carefully

perused the records.

6. The claim petition is filed under Section 163-A

of the Act. The claimants are the legal representatives of

one Manjunatha who had died in the accident. The

pleadings clearly disclose that deceased Manjunatha had

borrowed the motorcycle in question from the owner who

is respondent No.1 herein and while he was riding the

motorcycle, on account of his own negligence the

accident resulted and he succumbed to the injuries. The

death in the accident occurred due to the negligence of

the deceased himself and as held by the Hon'ble

Supreme Court in Ningamma's Case [supra] since he

borrowed the vehicle from the real owner, he stepped

into the shoes of the owner himself and therefore, the

claim petition under Section 163-A of the Act is not

maintainable. Para 17, 18 and 19 of the aforesaid

decision reads as under:

"17. However, in the facts of the present case, it was forcefully argued by the counsel appearing for the respondent that the claimants are not the `third party', and therefore, they are not entitled to claim any benefit under Section 163-A of the MVA. In support of the said contention, the counsel relied on the decision of this Court in the case of Oriental Insurance Co. Ltd. v. Rajni Devi, (2008) 5 SCC 736; and New India Assurance Co. Ltd. v. Sadanand Mukhi and Ors., (2009) 2 SCC 417.

18. In the case of Oriental Insurance Company Ltd. v. Rajni Devi and Others, (2008) 5 SCC 736, wherein one of us, namely, Hon'ble Justice S.B. Sinha is a party, it has been categorically held that in a case where third party is involved, the liability of the insurance company would be unlimited. It was also held in the said decision that where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the claimant against the insurance company would depend upon the terms thereof. It was held in the said decision that Section 163-A of the MVA cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question is no longer res integra. The liability under section 163-A of the MVA is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the MVA. In our considered opinion, the ratio of the aforesaid decision is clearly applicable to the facts of the present case. In the present case, the deceased was not the owner of the motorbike in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be employee of the owner of the motorbike although he was authorised to drive the said vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike.

19. We have already extracted Section 163-A of the MVA hereinbefore. A bare perusal of the said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle. In a case wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that event the liability to make payment of the compensation is on the insurance company or the owner, as the case may be as provided under Section 163-A. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of Section 163-A of the MVA. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163-A of the MVA."

7. However, admittedly the Policy had a

coverage for the personal accident liability to the extent

of `1,00,000/-. In view of the decision of the Hon'ble

Supreme Court in the case of Ramkhiladi [supra], the

claimants are entitled to the award of `1,00,000/- with

interest thereon at 6% per annum from the date of

petition till the date of payment.

8. The substantial contention of learned counsel

Sri. A.K. Bhat for the appellants is that there is a

relationship of 'bailor' and 'bailee' between the owner of

the vehicle and the deceased and therefore, the rights

and liabilities are governed under Section 150 of the

Contract Act and once the owner is liable as a bailor,

Insurance Company is liable to indemnify the

compensation which the owner is liable to pay to the

bailee. In support of the said contention, he further

submitted that there was a patent defect in the motor

vehicle namely, the motorcycle in question and

therefore, respondent No.1-owner was under an

obligation to disclose the same to the deceased

Manjunatha and he having not done the same, the

deceased borrowed the vehicle and while he was using

the same, he met with an accident and therefore, the

owner is liable to pay compensation and the Insurance

Company is bound in law to indemnify the same. The

said submission is wholly misconceived in view of the

fact that the said contention is not supported by even an

iota of pleading in the claim petition. There is no

averment in the claim petition that there was patent

defect in the motorcycle in question and respondent

No.1-owner was aware of the defect and that he failed to

divulge the same to the deceased Manjunatha. In that

view of the matter, the said contention for want of

pleadings which was not even advanced before the

MACT, which is the authority of first instance, cannot be

entertained in this appeal. Accordingly, the same is

rejected. Hence, the following:

ORDER

i) The appeal is allowed in-part.

ii) In modification of the Judgment and Award

dated 4.8.2010 passed in MVC No.2422/2008 on the file

of the XVIII Additional Judge, Court Of Small Causes,

Member, MACT-4, Metropolitan Area, Bangalore, [SCCH-

No.4], respondent No.2-Insurance Company is directed

to pay a sum of `1,00,000/- to the claimants within six

weeks from today with interest thereon at 6% per

annum from the date of petition till the date of payment.

Office to transmit the records to the MACT

forthwith.

Sd/-

JUDGE

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