Kamalawwa W/O Laxman Byakod vs Ramappa M Byakod
2022 Latest Caselaw 10073 Kant

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                                                     MFA No. 20968 of 2011


                  IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                       DATED THIS THE 30TH DAY OF JUNE, 2022

                                       BEFORE
                      THE HON'BLE MR JUSTICE P.KRISHNA BHAT
             MISCELLANEOUS FIRST APPEAL NO. 20968 OF 2011 (MV-I)
             BETWEEN:

             1.    KAMALAWWA W/O LAXMAN BYAKUD
                   AGE: 33 YEARS, OCC: HOUSEHOLD WORK,
                   R/O: ITNAL, TQ: RAIBAG,
                   NOW AT HALLUR, TQ: GOKAK.

             2.    KUMARI PRATIBA D/O LAXMAN BYAKUD
                   AGE: 11 YEARS, OCC: STUDENT,
                   R/O: HALLUR, TQ: GOKAK

             3.    KUMAR YALLALING S/O LAXMAN BYAKUD
                   AGE: 09 YEARS, OCC: STUDENT,
                   R/O: HALLUR, TQ: GOKAK.

             4.    LAKKAWWA W/O MALAKARI BYAKUD
                   AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
                   R/O: HALLUR, TQ: GOKAK.
                                                             ...APPELLANTS
Digitally
signed by
SUJATA
SUBHASH
             (BY SRI. ROHIT L SHEELVANT, ADV., FOR
PAMMAR
Location:
             SRI. VINAY S KOUJALAGI, ADVOCATE)
HIGH
COURT OF
KARNATAKA,
DHARWAD
             AND:
             1.    RAMAPPA M BYAKUD
                   AGE: 42 YEARS, OCC: AGRICULTURE,
                   R/O: ITNAL, TQ: RAIBAG,
                   (OWNER OF HERO HONDA
                   MOTORCYCLE NO. KA-233/S-2524)

             2.    THE NATIONAL INSURANCE CO. LTD.,
                   BY ITS DIVISIONAL OFFICE,
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                                         MFA No. 20968 of 2011


    RAMDEV GALLI, BELGAUM
    (INSURER OF HERO HONDA MOTORCYCLE
    BEARING NO. KA-23/S-2524,
    VIDE COVER NOTE NO.359628
    COVERING FROM 16/02/ TO 09/02/2006
                                               ...RESPONDENTS
(BY SRI. N. R. KUPPELUR, ADV., FOR R2;
R1 - NOTICE DISPENSED WITH)

     THIS MFA IS FILED U/SEC.173 (1) OF M. V. ACT, AGAINST
THE JUDGMENT AND AWARD DTD:20-10-2010 PASSED IN
MVC.NO.2076/2009 ON THE FILE OF THE PRL.SENIOR CIVIL
JUDGE AND MEMBER, ADDL. MACT, GOKAK, DISMISSING THE
PETITION FILED U/SEC.163-A OF MV ACT.

     THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY
THE COURT DELIVERED THE FOLLOWING.

                         JUDGMENT

The short grievance of the appellants is that their claim

petition under section 163-A of the Motor Vehicles Act, 1988

was rejected by the impugned judgment and award dated

20.10.2010 in MVC No.2076/2009 by the learned Principal

Senior Civil Judge and Additional M.A.C.T., Gokak (for short

"the Tribunal").

2. The brief bracts are that one Laxman, who is the

husband of claimant No.1, father of claimant No.2 and 3 and

son of claimant No.4 had borrowed the Hero Honda

motorcycle bearing registration No.KA23/S-2523 from its

owner and was riding it on 26.05.2005 at about 8.00 p.m. on

MFA No. 20968 of 2011

Chikodi-Mahalingpur road and near Gandhi Nagar, Hullur he

met with an accident and died. The claim petition filed was

resisted by the respondents namely, the owner and the

insurer. After recording the evidence and hearing the learned

counsel on both sides, the learned Tribunal has rejected the

petition.

3. There is no dispute about the fact that deceased

Laxman Malakari Byakud was not the owner of the said

motorcycle and he had borrowed it from its RC owner and

accident had taken place when he was riding the same on

26.05.2005. The sole question for consideration is when the

accident has resulted on account of negligence of the

borrower of the vehicle from its owner, can dependants of

such deceased maintain a claim petition under section 163-A

of the Motor Vehicles Act, 1988 against the owner and the

insurer of such a motor vehicle? The said question is no

longer res-integra. Hon'ble Supreme Court in Ramkhiladi

and another Vs. United India Insurance Company

Limited and another1 has answered the said question in

(2020) 2 SCC 550

MFA No. 20968 of 2011

the negative and has held that such claim petition under

section 163-A of the Act is not maintainable at the instance

of dependants of the borrower of the insured vehicle from

the owner where the accident has resulted from his own

negligence. Moreover, the policy of insurance (Ex.R1) shows

that even though premium was paid to cover the personal

accident risk of the owner-cum-driver to the maximum

extent of Rs.1,00,000/-, since the deceased was only the

borrower-rider of the motorcycle, even the said benefit will

not avail to his dependants. In that view of the matter, there

is no error or illegality in the order passed by the learned

Tribunal impugned herein and this appeal being devoid of

merits is hereby dismissed.

4. In view of disposal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration and are disposed off accordingly.

Sd/-

JUDGE

YAN