M/S Oriental Insruance Co.Ltd vs Guruprasad S/O Mallannagouda ...
2022 Latest Caselaw 610 Kant

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          IN THE HIGH COURT OF KARNATAKA

                 KALABURAGI BENCH


      DATED THIS THE 13TH DAY OF JANUARY, *2022

                       BEFORE


         THE HON'BLE MRS. JUSTICE J.M.KHAZI

               MFA.No.30105/2013 (MV)


BETWEEN:

M/S. ORIENTAL INSURANCE CO. LTD.,
THROUGH DIVISIONAL MANAGER
DIVISION OFFICE, OPP: MINI VIDHAN SOUDHA
STATION ROAD,
GULBARGA
(POLICY COVER NOTE NO.660251, DATED 29.01.2008
TO 28.01.2009)
(NOW, REPRESENTED BY ITS
SR. DIVISIONAL MANAGER,
D.O. GULBARGA)
                                     ... APPELLANT


(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)


AND:


01.     GURUPRASAD S/O MALLANNAGOUDA MALIPATIL
        AGE: 49 YEARS OCC: AGRICULTURE




 * Vide Chamber order dated 04-02-2022.
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02.   SHAILAJA W/O GURUPRASAD
      AGE: 46 YEARS OCC: AGRICULTURE
      BOTH R/O: KAVLUR, TQ & DIST: KOPPAL

03.   RAMESH REDDY S/O ANANTH REDDY
      AGE: 27 YEARS OCC: BUSINESS
      R/O: KONIKAL, TQ: YADGIR
      DIST: GULBARGA
      (HEROHONDA CBZ NO.KA-33-H-8825)


                                      ... RESPONDENTS


(BY SRI. BASAVARAJ R. MATH, ADV., FOR 1 AND 2
RESPONDENT NO.3 SERVED)


      THIS MISCELLANEOUS FIRST        APPEAL   IS   FILED

UNDER SECTION 173 (1) OF THE MOTOR VEHICLES ACT,

1988 PRAYING TO CALL FOR THE RECORDS AND ALLOW

THE ABOVE APPEAL BY SETTING ASIDE THE IMPUGNED

JUDGMENT      AND   AWARD     DATED     08.08.2013     IN

MVC.NO.146/2009 PASSED BY THE IIIRD ADDITIONAL

CIVIL JUDGE (SR. DN) AND MACT GULBARGA.


      THIS APPEAL BEING HEARD AND RESERVED FOR
JUDGMENT,   COMING   ON     FOR   PRONOUNCEMENT       OF
JUDGMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
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                        JUDGMENT

Challenging its liability to pay the compensation

awarded in a petition filed under Section 163-A of the

Motor Vehicles Act, 1988 (hereinafter referred as to 'M.V.

Act'), appellant which is arraigned as respondent No.2 in

MVC.No.146/2009 on the file of the III Additional Civil

Judge (Sr. Dn) and MACT Gulbarga (hereinafter referred to

as 'Tribunal'), has filed this appeal under Section 163-A of

M.V. Act.

02. By the impugned judgment and award, the

Tribunal has granted compensation in a sum of

`.2,82,000/- with interest at the rate of 6% p.a. to be

payable by the appellant - insurance company.

03. For the sake of convenience the parties are

referred to by their rank before the Tribunal.

04. The claimants are the parents of the deceased

- Hari @ Harihant, who is referred as Harish throughout

the impugned judgment and award. They have filed a

claim petition under Section 163-A of the M.V. Act,

claiming compensation against the owner and insurer of

the motorbike bearing Reg.No.KA-33-H-8825 on the

premise of no fault liability.

05. It is the case of the claimants that on

09.07.2008 at 07.15 p.m., after having dinner at Safari

Garden Dhaba, the deceased - Harish along with one

Vishal was proceeding on motorbike bearing Reg.No.KA-

33-H-8825 slowly and cautiously. While they were on

Humnabad - Gulbarga main road, near Kapnoor village, a

tractor - trailer was parked by the side of the road without

any sign or indicator, as a result of which accident

occurred, when the motorbike bearing Reg.No.KA-33-H-

8825 dashed against the tractor-trailer. Harish and Vishal

sustained injuries and died on the spot. The deceased died

due to the use of motorbike bearing Reg.No.KA-33-H-

8825.

06. The respondent No.1 is the owner and

respondent No.2 is the insurer of the motorbike bearing

Reg.No.KA-33-H-8825 and as such both are liable to pay

the compensation under no fault liability.

07. In his written statement, the respondent No.1

has admit that he is the owner of the motorbike in

question. He has claimed that as on the date of the

accident it was covered by a valid insurance and the

deceased - Harish was having a valid driving license and as

such in the event of allowing the petition, respondent No.2

may be directed to pay the compensation, by indemnifying

him.

08. Though respondent No.2 has admitted that the

motorbike bearing Reg.No.KA-33-H-8825 was covered by a

valid insurance policy issued by it, it has claimed that

petition under Section 163-A of the M.V. Act is not

maintainable against it. Since, the alleged income of

deceased is stated to be `.6,000/- per month, on this

ground also a claim petition under Section 163-A of the

M.V. Act is not maintainable, as it exceeds the limit of

`.40,000/- per annum. The age, occupation and income of

the deceased are denied.

09. On the date of incident the deceased - Harish

was riding the motorbike bearing Reg.No.KA-33-H-8825

along with Vishal and Sharanu as pillion riders, in a rash or

negligent manner and dashed against a stationary tractor-

trailer parked by the side of the road. A criminal case

registered against the deceased - Harish and after

investigation a abated charge-sheet was filed against him.

Since, the deceased was riding the insured vehicle, the risk

of the rider is not required to be covered under Section

147 of the M. V. Act and the policy in question also does

not cover the said risk. It is denied that the deceased

holding a valid and effective driving license. The

respondent No.2 is not liable to pay compensation on

account of death of Harish in the accident in question. The

liability if any of respondent No.2 is subject to the terms

and conditions of the policy and prays to dismiss the claim

petition.

10. Based on the pleading the Tribunal has framed the following issues:-

1. Whether the petitioners prove that on 09.07.2008 when the deceased - Harish was riding the motorcycle bearing Reg.No.KA-33/H-8825 with one Vishal as a pillion rider near Kapnoor village on Humnabad - Gulbarga road slowly and cautiously, a tractor and trailer were parked without indicators and or parking signs as a result of which the said motor cycle against the said tractor and resulting in accident and that on account of the said accident, the said Harish sustained grievous injuries and succumbed a death at the spot?

2. Whether the respondent No.2 proves that the said accident has occurred on account of the rash and negligent riding of the said motorcycle by the deceased - Harish?

3. Whether the respondent NO.2 proves that the rider of the said motor cycle was not holding valid and effective Driving Licence as on the date of the accident to ride the said class of vehicle?

4. Whether the respondent No.2 proves that the risk of the rider of the motor cycle was not covered under the policy pertaining to the said motor cycle and that therefore the Insurance Company is not liable to pay compensation to the petitioner?

5. Whether the petitioners are entitled for compensation? If so, what is the quantum of compensation to which the petitioners are entitled and from whom the compensation amount is recoverable?

6. What Award or Order?

11. In support of the case of the claimants, the

claimant No.1 is examined as PW.1, one witness is

examined as PW.2 and Exs.P.1 to 6 are marked.

12. The respondents have not led any oral and

documentary evidence.

13. By the impugned judgment and award, the

learned Presiding Officer of the Tribunal had partly allowed

the petition granting compensation in a sum of

`.2,82,000/- and directed the respondent No.2 who is

appellant herein to pay the same with interest at the rate

of 6% p.a. by answering the issues No.1 to 5 as follows:-

Issue No.1 : In the Negative Issue No.2 : In the Affirmative Issue No.3 : In the Negative Issue No.4 : In the Negative Issue No.5 : Partly in the Affirmative

14. During the course of arguments, the learned

counsel representing the respondent No.2 - insurance

company submits that the deceased was not a third party

in respect of insured vehicle and as such the petition is not

maintainable against it, even under Section 163-A of the

M.V. Act. He further submits that admittedly a complaint

was filed against the deceased - Harish, alleging that on

account of his rash or negligent driving the accident has

taken place. Even though in the claim petition the

claimants have alleged that the deceased was driving the

motorbike in question in a slow and cautious manner and

the accident had occurred on account of the tractor -

trailer being parked by the side of the road without putting

on the indicator, admittedly no complaint was filed against

the driver of the tractor - trailer and as such the petition

against the owner and insurer of the motorbike which was

ridden by the deceased is not maintainable. He further

submits that under the Motor Vehicles Act, only the third

party claims are payable. Since, the deceased was not a

third party and at the most he may be treated as borrower

of the said motorbike from the registered owner, the claim

petition is not maintainable against the respondent No.2 -

insurer and sought for the dismissal of the same.

15. As an alternative arguments, the learned

counsel representing the respondent No.2 - insurance

company submitted that while taking the policy, the owner

of the motorbike in question has paid additional premium

of `.50/- covering the risk of the owner of the vehicle and

in his capacity as borrower of the said motorbike and

stepping into the shoes of the owner of the vehicle, a

maximum of `.1,00,000/- may be granted along with the

interest.

16. On the other hand, the learned counsel

representing the claimants supported the impugned

judgment and award of the Tribunal and prays to dismiss

the appeal.

17. I have heard the arguments of both sides and

perused the records.

18. The points that would arise for consideration

are that:-

1. Since, the respondents are the owner and insurer of the motorbike No.KA-33-H-8825 which was ridden by the deceased at the time of accident, whether a petition under Section 163-A of the M.V. Act under no fault liability is maintainable against them?

2. If point No.1 is answered in the Negative, whether the claimants are entitled for only a sum of `.1,00,000/- with interest as per the contract of insurance?

3. What order?

19. My answer to the above points are as under:-

01. Point No.1 : In the Negative

02. Point No.2 : In the Affirmative

03. Point No.3 : As per the final order for the

following:

REASONS

20. From the evidence placed on record, it is

established that on 09.07.2008 the deceased - Harish was

riding the motorbike No.KA-33-H-8825 in a rash or

negligent manner and at around 07.15 p.m., on

Humnabad-Gulbarga main road, near Kapnoor village, he

dashed the vehicle against a stationary trailer (trolly).

Though throughout the petition a petitioners have

contended that the deceased was riding the vehicle along

with one Vishal as pillion rider, the complaint averments

makes it evident that one more person by name Sharanu

was also a pillion rider. In the petition it is claimed that the

motorbike ridden by the deceased - Harish dashed against

a tractor-trailer the complaint reveal that only a trailer

(trolly) was stationed by the side of the road and the

motorbike dashed against it. The complaint also reveals as

a result of this impact, all the three fell down and

sustained injuries. While Harish and Vishal died on the

spot, Sharanu sustained injuries.

21. Though, in the petition the claimants have

claimed that accident occurred on account of the

negligence on the part of the owner of the tractor-trailer,

no complaint is filed against the owner of the said tractor-

trailer. In fact its registration number is also not

forthcoming. Admittedly, in respect of the said incident a

complaint came to be filed against the deceased - Harish

and after completing the investigation, a charge sheet

came to be filed against him. As he has already died, case

against him came to be abated.

22. In MVC.No.144/2009, which was filed by the

parents of the deceased - Vishal, it is specifically pleaded

that accident occurred due to the rash or negligent riding

by the deceased - Harish. Though in the present claim

petition, the parents of the deceased have pleaded that he

was riding the vehicle slowly and cautiously and accident

had occurred on account of negligent act of the owner of

the tractor - trailer by parking the same by the side of the

road without putting on any indicators, admittedly, no

complaint was filed against the owner of the said tractor -

trailer.

23. Anyhow, since the claimants are claiming

compensation under Section 163-A of the M.V. Act, they

have pleaded that the petition is maintainable against the

respondents being owner and insurer of the motorbike,

which deceased was riding. It is also not in dispute that

the owner and insurer of the tractor - trailer are not

arraigned as respondents and compensation is not claimed

against them. In fact as noted earlier the registration

number of the tractor - trailer is not disclosed and the

complaint states only the presence of the trailer (trolly)

against which the deceased dashed the motorbike in

question.

24. In the circumstances, the question that would

arise for consideration is whether the respondents being

the owner and insurer of the motorbike which the

deceased was riding are liable to pay the compensation

under Section 163-A of the M.V. Act. Insurance is a

contractor between the owner of the vehicle and insurance

company, by which the insurance company undertakes to

indemnify the owner in the event of arising of liability on

account of third party. Since, the deceased was driving the

motorbike in question which belong to respondent No.1

which is covered by the insurance policy issued by

respondent No2, deceased cannot be treated as a third

party and claim of the claimants cannot be treated as

claim by the third party so as to call the respondent No.2

to indemnify the respondent No.1. This situation is clarified

by the Hon'ble Apex Court in the case reported in (2020)

2 SCC 550 in the matter of Ramhhiladi and another vs.

United India Insurance Company and another. In this

case also the deceased was riding a motorbike bearing

Reg.No.RJ-02SA7811, wherein allegations are that the

accident occurred due to rash or negligent riding by

another motorbike bearing Reg.No.RJ-29-2M9223. A

criminal case came to be registered against the rider of the

offending vehicle Reg.No.RJ-29-2M9223. However, the

claimants filed claim petition against the owner and insurer

of the motorbike bearing Reg.No.RJ-02SA7811 which was

driven by the deceased. Relying upon the decision of the

Hon'ble Apex Court reported in (2009) 5 SCC (Civil) 241

in the matter of Ningamma vs United India Insurance

Company Limited, the Hon'ble Apex Court held that since

the deceased was riding the motorbike belonging to the

respondent No.1, he could be turned as stepping into the

shoes of the owner and as such the claim petition under

Section 163-A of the M.V. Act against the owner and

insurance company of the vehicle which was ridden by the

deceased is not maintainable. The Hon'ble Apex Court has

held that a petition under Section 163-A of the M.V. Act is

not maintainable against the driver/owner and insurer of

the vehicle which was being driven by the deceased is not

maintainable. The Hon'ble Apex Court further held that

even though under Section 163-A of the M.V. Act there is

no need for the claimants to plead and establish the

negligence and /or that death in respect of which the claim

petition is sought to be establish was due to wrongful act,

negligence or default of the owner of the vehicle

concerned, deceased/injured have to be a third party in

order to attract the liability of the insurance company to

indemnify the owner. As the claim petition is governed by

the contract of insurance, the liability of the insurance

company would be a qua third party only. Since, the

deceased was riding the motorbike which belong to

respondent No.1, he is stepping into the shoes of the

owner and as such respondent No.2 - insurance company

is not liable to indemnify the liability arising out of death of

the deceased.

25. In Ramkhiladi's case referred to supra,

relying upon the decision reported in (2004) 8 SCC 553

in the matter of Dhanaraj vs. New India Assurance

Company, the Hon'ble Apex Court further held that

Section 147 of the M. V. Act does not require an insurance

company to assume the risk for death or bodily injury of

the owner of the vehicle. Since, the deceased was stepping

into the shoes of the owner, respondent No.2 is not liable

to indemnify the claim arising out of his death.

26. Further, in Ramkhiladi's case, relying upon

the decision reported (2008) 5 SCC 736 in the matter of

Oriental Insurance Company Limited vs. Rajanidevi,

the Hon'ble Apex Court has further held that the liability

under Section 163-A of the M.V. Act is on the owner of the

vehicle as a person cannot be both as a claimant as also a

recipient and therefore, the heirs of the owner could not

have maintained the claim in terms of the 163-A of the M.

V. Act. Further, relying upon the decision reported in

(2018) 9 SCC 801 in the matter of National Insurance

Company Limited vs. Ashalata Bhavamik, the Hon'ble

Apex Court held that the parties shall be governed by the

terms and conditions of the contract of the insurance and

since as per the terms of the insurance, the insurance

company is liable to pay compensation to the third and not

to the owner except to the extent of `.1,00,000/-. In view

of the decision of Ramkhiladi's case, the claim petition

filed under Section 163-A of the M. V. Act, by the parents

of the deceased - Harish, who was riding the motorbike

belonging to respondent No.1 which was covered by

insurance policy issued by respondent No.2 is not

maintainable against them. Therefore, the learned

Presiding Officer of the Tribunal has erred in allowing the

claim petition filed under Section 163-A of the M.V. Act,

against respondent No.1 and 2.

27. However, since the respondent No.1 has paid

additional premium of `.50/-, and as such as per the

terms of the contract of insurance, respondent No.2 is

liable to pay compensation in a sum of `.1,00,000/- with

interest at 6% p.a. to the owner/borrower of the

motorbike in question or their legal heirs. To this extent

the impugned judgment and award is liable to be modified

and accordingly, I proceed to pass the following;

ORDER

I. MFA.No.30105/2013 is partly allowed.

II. The judgment and award dated 08.08.2013 passed

in MVC.No.146/2009 by the III Additional Civil Judge

(Sr. Dn) and MACT Gulbarga is set-aside in part.

III. However, appellant-respondent No.2 is directed to

pay the compensation in a sum of `.1,00,000/- with

interest at the rate of 6% p.a. from the date of

petition till its realization to the claimants, as per the

contract of insurance.

IV. If the amount in deposit exceeds the liability of

appellant - respondent No.2, the balance shall be

refunded to it.

V. The amount in deposit if any, be transmitted to the

concerned Tribunal.

Sd/-

JUDGE

KJJ