Karnataka High Court

Smt. Latha vs The Oriental Insurance Co. Ltd on 29 July, 2022

Bench: J.M.Khazi

                              1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 29TH DAY OF JULY, 2022

                           BEFORE

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

                M.F.A.NO.9135 OF 2010 (MV)
BETWEEN:

1.     SMT. LATHA,
       W/O LATE MUNILINGA SHETTY,
       AGED ABOUT 23 YEARS

2.     MIGHASRI
       D/O LATE MUNILINGASHETTY,
       AGED 4 YEARS,

3.     PUTTALINGAMMA
       W/O LATE LINGASHETTY
       AGED ABOUT 63 YEARS

       ALL ARE R/AT NO.632, M R H B
       COLONY,RANGANATHAPURA,
       KAMAKSHIPALYA,
       BANGALORE-79,

       APPELLANT NO.2 SINCE MINOR
       REPTD. BY HER MOTHER & NATURAL
       GUARDIAN SMT. LATHA i.e.,
       APPELLANT NO.1.

                                            ... APPELLANTS
(BY SRI. SHRIPAD V SHASTRI, ADVOCATE)

AND:

1.     THE ORIENTAL INSURANCE CO. LTD
       D O NO.10, DWARAKA IIND FLOOR,
       NO.79 (OLD NO.3D)
                               2


     UTTAMARGANDHISALAI,
     CHENNAI - 600 034
     BY ITS MANAGER

2.   RANGASWAMY
     W/O LATE THIMMAIAH
     NO.4/18, 5TH CROSS,
     SARASWATHIPURA,
     NANDINI LAYOUT,
     BANGALORE - 96

3.   THE ORIENTAL INSURANCE CO. LTD.,
     NO.22, V C PLAZA, DR. D.V.G. ROAD,
     BASAVANAGUDI,
     BANGALORE - 04
     BY ITS MANAGER
                                          ...RESPONDENTS
(SRI. B.S.UMESH, ADVOCATE FOR R1;
 SRI. C.R.RAVISHANKAR, ADVOCATE FOR R3;
 V/O/DTD 30.10.2014, R2 SERVICE HELD SUFFICIENT)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYED THAT THIS HON'BLE COURT MAY BE PLEASED TO
GRANT Rs.15,00,000/- AS COMPENSATION AS PRAYED IN THE
CLAIM PETITION BY SET ASIDING THE ORDER OF DISMISSAL
PASSED BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL, IX ADDL.
SENIOR CIVIL JUDGE, COURT OF SMALL CAUSES (SCCH-7)
BANGALORE IN MVC NO.5434/2007 DATED 08.04.2010, WITH
COST AND INTEREST, IN THE INTEREST OF JUSTICE.
     THIS MFA HAVING BEEN HEARD AND RESERVED ON
30.06.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                      JUDGMENT

This appeal is filed under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the MV Act') by

the petitioners seeking enhancement of the compensation

granted in MVC.5434/2007 dated 08.04.2010.

2. For the sake of convenience the parties are

referred to by their rank before the Tribunal.

3. FACTS: Brief facts leading to the filing of the claim

petition are that on 14.03.2007 at 1.00 a.m., Munilinga Shetty

being the RC holder of 407 truck bearing registration No.KA-

02/D-3302 (hereinafter referred to as 407 truck) was

travelling in the said vehicle from Kunigal towards Bengaluru

on NH-48. When the vehicle reached Thalekere Hand post, a

lorry bearing registration No.KA-02-C-7295 (hereinafter

referred to as offending vehicle) being driven by its driver in a

rash or negligent manner, suddenly came on the extreme

right side and dashed against the 407 Truck. In the said

accident, Munilinga Shetty (hereinafter referred to as

deceased) and cleaner by name Kumar sustained grievous

injuries and died.

3.1 However, without conducting proper investigation,

the Police have filed charge sheet against the driver of 407

truck, who was no where responsible for the alleged accident.

Respondent No.1 is the insurer and respondent No.2 is the

owner of the offending vehicle. Respondent No.3 is the insurer

of 407 Truck. All of them are jointly and severally liable to pay

the compensation.

3.2 As on the date of the accident, deceased was aged

30 years. He was doing business in empty bottles and earning

Rs.10,000/-p.m. He was also doing agriculture and earning

Rs.1,00,000/-p.a. As the wife and daughter of the deceased,

petitioners were dependent on him and hence the petition.

4. Though appeared through counsel, respondent

No.2 - owner of the offending vehicle has not filed written

statement.

5. Respondent No.1 - insurer of the offending vehicle

has filed written statement stating that it is not a proper and

necessary party, as the investigation reveal that the vehicle

involved is 407 Truck. The owner and insurer of 407 Truck are

necessary parties.

5.1 Though respondent No.1 admits the coverage, as

the driver of the offending vehicle was not holding a valid and

effective driving license, respondent No.2 is not liable to pay

the compensation.

5.2 Respondent No.1 has denied the age, occupation,

income of the deceased. The compensation claimed is highly

exorbitant, fanciful and without any basis and has sought for

dismissal of the petition against it.

6. Respondent No.3 - the insurer of 407 Truck has

filed written statement contending that it is not a necessary or

proper party to adjudicate the claim petition. 407 Truck in

question is not involved in the accident. Therefore, only

respondent Nos.1 and 2 are liable to pay the compensation.

6.1 Since petitioners are the wife and daughter of

deceased who was the owner of the 407 Truck, as per the

terms and conditions of the policy, respondent No.3 is not

liable to indemnify the claim in respect of death of the

deceased, who is not a third party. The risk of the insured is

not covered under the policy. Since the owner of 407 Truck

has entrusted the same to a person not holding a valid driving

license, on this ground also respondent No.3 is not liable to

pay the compensation.

6.2 Respondent No.3 has also denied the age,

occupation, income of the deceased and prays to dismiss the

petition against it.

7. Based on these pleadings, the Tribunal has framed

necessary issues.

8. During the enquiry, on behalf of petitioners PWs-1

and 2 including petitioner No.1 are examined and Ex.P1 to 13

are marked.

9. On the other hand, on behalf of respondent No.1,

RW-1 is examined and Ex.R1 is marked.

10. On behalf of respondent No.2, RW-2 is examined

and Ex.R2 is marked.

11. Vide the impugned judgment and award, the

Tribunal has dismissed the claim petition.

12. The learned counsel representing the petitioners

argued that the impugned judgment and award is illegal and

contrary to the evidence and settled principles of law. Under

Section 163-A of the MV Act, petitioners are entitled for

compensation under no fault liability. The Tribunal has ignored

various decisions of the Hon'ble High Courts and Supreme

Court. The Tribunal has not properly assessed the oral and

documentary evidence placed on record and prays to allow

the appeal and consequently the petition and grant

compensation.

12.1 In support of his argument, the learned cousnel

has relied upon the following decisions:

1) Chandrakantha Tiwari Vs. New India Assurance Co.Ltd.1 (Chandrakantha Tiwari's case)

2) Priya and others Vs. Armugam and another2 (Priya's case)

3) Bala Vs. Moti Chand Gupta3 (Bala's case)

Civil Appeal No.2527/2020 Dt: 08.06.2020

MFA.No.3889/2011 Dt: 11.06.2019

FAO 3 of 2000 Dt:21.10.2003

4) National Insurance Co.Ltd. Vs. Ashalata Bhowmik and others4 (Ashalata Bhowmik's case)

13. On the other hand, the learned counsel

representing the respondent Nos.1 and 3 - Insurance

companies supported the impugned judgment and award and

has sought for dismissal of the appeal.

13.1 The learned counsel for respondent No.1 has relied

upon the following decisions:

1) Deepal Girishbhai Soni Vs. United India Insurance Co.Ltd5 (Deepal Girishbhai's case)

2) The Oriental Insurance Co. Ltd Vs. Sharada G and others6 (Sharada's case)

14. Heard arguments and perused the record.

15. Thus, the petition filed by the petitioners seeking

compensation on account of death of Munilinga Shetty came

to be dismissed as against respondent No.3 - insurer of 407

Truck on the ground that the accident occurred due to the

rash or negligent driving by the driver of the 407 Truck of

which deceased was the owner. Since he was not third party

(2018) 9 SCC 801

2004 ACJ 934

2010 ACJ 977

so far as insurer of the said vehicle is concerned, petitioners

being his legal representatives are not entitled to claim

compensation under the policy, which is an agreement

between the respondent No.3 - Insurance company and the

deceased to indemnify any liability towards third party i.e., a

third party liable. Since the driver of the offending vehicle was

absolved of criminal liability in respect of the said accident,

the Tribunal held that respondent Nos.1 and 2 are also not

liable to pay the compensation.

16. The learned counsel representing the petitioners

put forth three legs of arguments that so far as the liability of

respondent Nos.1 and 2 are concerned, at least 50%

contributory negligence may be attributed to the driver of the

offending vehicle and grant compensation as against

respondent Nos.1 and 2. In the second leg of argument, the

learned counsel for petitioners submitted that under the policy

in question, additional sum of Rs.100/- is collected covering

the personal risk of the owner/driver and therefore at least

Rs.2,00,000/- may be granted as against respondent No.3. In

the third leg of argument, the learned counsel submitted that

in case of death, under Section 140 of the MV Act, a petition

cannot be dismissed and at least Rs.50,000/- may be granted.

17. On the other hand, learned counsel for respondent

No.3 submitted that the fact of additional amount of Rs.100/-

collected covering the risk of the owner/driver of 407 Truck is

not disputed. However, the petitioners are required to

approach the Insurance company and in that event, they are

entitled for Rs.2,00,000/- without interest. So far as the plea

of contributory negligence raised by the learned counsel for

petitioners is concerned, the learned counsel representing

respondent Nos.1 and 2 submitted that since the charge sheet

is filed against the driver of 407 Truck and the same is not

challenged by the petitioners, there is no question of

contributory negligence and even otherwise the evidence

placed on record unerringly point towards the negligence of

the driver of the 407 Truck. Similarly, it is submitted that a

petition filed under Section 166 of MV Act cannot be converted

into 163-A of the MV Act, as against the insurer of the 407

Truck as the claim of the petitioners is not a third party

liability and respondent No.2 is not under obligation to

indemnify any liability other than third party liability, even

under Section 163-A of the MV Act.

18. In the light of these contentions, let me examine

whether the Tribunal is justified in dismissing the claim

petition filed by the petitioner under Section 166 of the MV Act

and there is any scope for accepting the arguments of learned

counsel for petitioners.

19. It is not in dispute that the deceased was the

owner of the 407 Truck of which respondent No.3 is the

insurer and at the time of accident, he was travelling in the

same. Though in respect of the accident in question a

complaint came to be filed against the driver of the offending

vehicle, after conducting a detailed investigation, the

Investigating Officer filed charge sheet against the driver of

407 Truck of which the deceased was the owner. During the

course of the impugned judgment and award, based on the

evidence the Tribunal has come to a definite conclusion that

the entire negligence is on the part of driver of the 407 Truck.

Ex.P5 is the sketch of the scene of occurrence. At the place of

incident the road is running from west to east. The 407 Truck

was plying from Kunigal towards Bengaluru, whereas the

offending vehicle was coming from Bengaluru towards

Kunigal. As per Ex.P5 sketch the accident has taken place on

the southern extreme of the said road. It is towards the

extreme left of the offending vehicle and as such the offending

vehicle was proceeding in the proper direction, whereas the

accident spot is extreme right of the 407 Truck. In other

words, the driver of the 407 Truck was going on the wrong

side of the road and therefore the entire fault is on the part of

the driver of the 407 Truck. Therefore, the argument of the

learned counsel for petitioners that at least 50% contributory

negligence may be saddled on the driver of the offending

vehicle and to that extent compensation may be awarded

cannot be accepted. It is an admitted fact that the petitioners

have not challenged the charge sheet. From the facts and

circumstances of the case, it is crystal clear that the entire

negligence is on the part of 407 Truck. Therefore, the

contention of the petitioners that at least 50% contributory

negligence may be attributed to the driver of the offending

vehicle cannot be accepted.

20. Now, coming to the decisions relied upon by the

both parties. In Chandrakantha Tiwari's case referred to

supra relied by the petitioners, the claim was against the

owner and insurer of the offending vehicle, in which deceased

was travelling as a pillion rider. Therefore, it was a claim

against the third party. However, in the present case, the

petitioners are the wife and children of the insured and

therefore neither a petition under Section 166 nor under

Section 163-A of the MV Act is maintainable and therefore this

decision is not applicable to the case on hand.

21. In Priya's case, referred to supra relied upon by

the petitioner the claimants were the wife and children of the

deceased who was riding a motor cycle and the claim was

against the owner and insurer of the motor cycle i.e.,

respondent Nos.1 and 2. Therefore, the facts and

circumstances of the present case are not applicable to the

said decision. In Bala's case, referred to supra relied upon by

the petitioner a claim was made by the third party against the

owner and insurer. In the said case, it was held that the

negligence was not proved. However, as it was a claim against

third party, the Delhi High Court permitted conversion of the

petition from Section 166 to Section 163-A of the MV Act.

However, in the present case as the liability against

respondent Nos.1 and 2 is negated and since the negligence

was held to be that of the driver of the 407 Truck which was

owned by the deceased and therefore the petitioners being

the wife and children of deceased cannot be termed as third

party. Therefore, this decision is not applicable to the case on

hand.

22. Deepal Girish Bai Soni's case referred to supra

by respondent No.1, was a case of death of a scooter rider

when he hit a road divider. No other vehicle was involved. A

petition was filed under Section 166 of the MV Act. It was held

by the Hon'ble Supreme Court that when there is no other

tort-feasor, a petition under Section 166 of the MV Act by the

persons who are not third party is not maintainable. Similarly,

a petition under Section 163-A of the MV Act is also required

to be maintained against a third party. As a result even a

petition under Section 163-A of the MV Act against the insurer

of the own vehicle is also not maintainable.

23. In Sharada's case referred to supra relied upon

by the respondent No.1, the facts are that a death of the

scooter rider occurred when he hit a road divider and no other

vehicle was involved. It was held that a claim petition under

Section 166 of the MV Act by the legal heirs of the deceased

against the insurer of the vehicle is not maintainable against

the insurer of the own vehicle i.e, vehicle belonging to the

deceased and the petitioners being his legal heirs also cannot

be treated as third parties. Therefore, it was held that the

Tribunal was not justified in converting the petition under

Section 166 into 163-A of the MV Act, for under Section 163-A

also the claim should be is in respect of a third party. These

two decisions are applicable to the case on hand.

24. The learned counsel for petitioners submitted that

as per the insurance policy at Ex.R1, respondent No.3 has

collected additional premium of Rs.100/- covering the risk of

the owner/driver of the offending vehicle and as such he is

liable to pay Rs.2,00,000/- as fixed amount. In this regard he

has relied upon Ashalatha Bhoumik's case, wherein Hon'ble

Supreme Court though dismissed the petition under Section

166 of the MV Act, was pleased to grant compensation in a

sum of Rs.2,00,000/- with interest at 9% p.a. On this aspect

learned counsel for respondent No.3 submits that respondent

No.3 does not dispute the collection of additional premium of

Rs.100/- covering the risk of the owner/driver under contract

of insurance and on account of this, petitioners are entitled for

Rs.2,00,000/- without any interest. However, they are

required to approach the insurance company with the said

claim. Since the liability of the owner/driver of the 407 Truck

is covered by collecting additional premium of Rs.100/-,

respondent No.2 is liable to pay the same, of course it is not

liable to pay any interest and it is fixed amount.

25. As held by the Hon'ble Supreme Court in

Ashalatha Bhowmik's case and also in Ramkhiladi's case,

this Court can direct the respondent No.3 to pay the same.

For the said purpose, once again the petitioners cannot be

forced to approach the respondent No.3. Thus, from the

above discussion, I hold that even though the petition filed

under Section 166 of the MV Act is liable to be dismissed, in

view of the collection of additional premium of Rs.100/-

covering the risk of the owner/driver of the 407 Truck,

respondent No.3 is directed to pay Rs.2,00,000/-. To that

extent, the appeal deserves to be allowed and accordingly, I

proceed to pass the following:

ORDER

(i) Appeal filed by the appellants/petitioners is hereby dismissed, rejecting the petition under Section 116 of the MV Act.

(ii) However, in view of the contract of Insurance between respondent No.3 and deceased and in view of collection of Rs.100/- additional premium, respondent No.3 is directed to pay a sum of Rs.2,00,000/- to the petitioners under the contract of insurance.

(iii) Out of the said amount, petitioner No.1 being the wife is entitled for Rs.1,00,000/- whereas petitioner Nos.2 and 3 are entitled for Rs.50,000/- each.