Sachin S/O Prakash Pattar vs Mahantesh S Chavadappanavar
2022 Latest Caselaw 8189 Kant

         IN THE HIGH COURT OF KARNATAKA
                 DHARWAD BENCH

       DATED THIS THE 6th DAY OF JUNE, 2022

                      BEFORE

 THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

           M.F.A.NO.23325/2012 (MV-I)

BETWEEN

SHRI SACHIN S/O PRAKASH PATTAR,
AGE: 22 YEARS, OCC: GOLDSMITH,
NOW NIL, R/O: DESHANUR VILLAGE,
TQ: BAILHONGAL, DIST: BELGAUM.
                                       ...APPELLANT
(BY SRI HANAMANT R. LATUR, ADVOCATE)

AND

1.    SRI MAHANTESH S. CHAVADAPPANAVAR,
      AGE: 47 YEARS, OCC: BUSINESS,
      R/O: ALADAKATI VILLAGE, TQ: SAUNDATTI,
      DIST: BELGAUM.

2.    THE DIVISIONAL MANAGER,
      THE ORIENTAL INSURANCE CO. LTD.,
      D.O. MADIWALE ARCADE,
      CLUB ROAD, BELGAUM.
                                    ...RESPONDENTS

(SERVICE OF NOTICE TO RESPONDENT NO.1-SERVED)
(BY SMT ARUNA DESHPANDE, ADV. FOR RESP. NO.2)

     THIS M.F.A. IS FILED U/S 173(1) OF M.V.ACT,
AGAINST THE JUDGMENT AND AWARD DATED 15-03-2012
PASSED IN M.V.C.NO.2085/2011 ON THE FILE OF IV-
ADDITIONAL DISTRICT AND SESSIONS JUDGE AND
MEMBER, MACT-V, BELGAUM, DISMISSING THE PETITION
FILED U/SEC.163-A OF M.V.ACT.
                                  2


                                                      MFA.No.23325/12



     THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                             JUDGMENT

This appeal is preferred by the claimant aggrieved

by the judgment and award passed by IV Additional

District and Sessions Judge, Motor Accident Claims

Tribunal-V, Belagavi (for short 'the Tribunal') in M.V.C. No.

2085/2011 dated 15.03.2012. This appeal is preferred

against the dismissal of the claim petition by the Tribunal.

2. Parties to the appeal shall be referred to as per

their status before the Tribunal.

3. Brief facts of the case are as under:

On 16.05.2011, at about 10.30 p.m., while the

claimant was proceeding on Hero Honda Splendor

motorcycle bearing registration No.KA-24/J-4028 along

with his friend Prakash Basavaraj Bhavikatti from Yaragtti

towards his native place Deshnur. The claimant was riding

the motorcycle in the moderate speed on the left side of

the road by taking of precaution but when he reached

S.R.circle near Pattan Shetty Petrol Bunk suddenly due to

the crossing of a pig on the road, claimant applied breaks

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suddenly, due to which, he and the pillion rider fell down,

as a result both of them sustained injuries. Immediately

thereafter they were shifted to Primary Health Centre,

Yaragatti. Where the first aid treatment was given,

thereafter they shifted to Sai Chidambar Hospital,

Bailhongal and where admitted as inpatient from

17.05.2011 to 14.06.2011. Where the claimant underwent

operation and undertook treatment and spent huge

financial expenses on the said treatment.

4. It is stated that the claimant was hale and healthy

prior to the occurrence of accident. He was aged 21 years

and was doing goldsmith work by earning Rs.3,300/- per

month and in view of the accident claimant has suffered

permanent disability and has lost his earning capacity. So

also he expended huge financial amount towards medical

treatment. It is stated that respondent No.1 is the owner

of vehicle and respondent No.2 is the insurer of the

vehicle. In view of injuries having suffered by the claimant

and financial expenditure having been met, he filed claim

petition seeking compensation against the respondents.

MFA.No.23325/12

5. On service of notice, both respondents appeared

and filed their statement of objections denying inter alia

the accident, nature of injuries sustained by the claimant,

age, avocation and income of claimant. Respondent No.2,

who is the Insurance Company, filed a detailed statement

inter alia denying age, avocation and income and also

pleaded that the provisions of Section 147 of Motor

Vehicles Act, 1988 do not cover the risk of rider of two

wheeler. The 2nd respondent disputed the liability and

pleaded that the claim made is exorbitant and baseless

and also pleaded that the claimant is not a 3rd party, he is

one who borrowed the vehicle from respondent No.1-

owner. Hence, in view of the same the claim petition

under Section 163A of the Motor Vehicles Act is not

maintainable. It is also pleaded that a claimant was not

having a valid driving license as on the date of occurrence

of accident and therefore prayed for dismissal of the claim

petition.

6. On the basis of pleadings, the Tribunal has

framed relevant issues for consideration.

MFA.No.23325/12

7. In order to substantiate the issues raised, the

claimant examined himself as P.W.1 and one witness-

Dr.Chidambar D.Kulkarni as P.W.2 got marked Ex.P.1 to

14, whereas respondent No.2 examined its officer as

R.W.1 and got marked Ex.R.1 to 3.

8. On the basis of material evidence both oral and

documentary and hearing arguments of both counsel, the

Tribunal dismissed the claim petition, aggrieved by the

said order of dismissal claimant is before this Court

challenging the same.

9. It is the vehement contention of learned counsel

for appellant-claimant that the Judgment and Award

passed by the Tribunal is illegal, arbitrary and contrary to

the material evidence placed on record and hence same is

liable to be set aside and reversed. He further contends

that the Tribunal has grossly erred in not considering the

provisions of Section 163A of Motor Vehicles Act, 1988.

Wherein it is clearly laid down that there is no requirement

of pleading to establish the wrongful act or neglect or

default of the owner of the vehicle or vehicle concerned or

any other person. In effect he contends that insurer or

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owner of the vehicle cannot have a defense of no fault

defence theory and cannot claim that there was no

negligence. He further contends that the Tribunal has

grossly erred in not considering the full bench decision of

the Hon'ble Apex Court in the case of Deepal Girishbhai

Soni and Others vs. United India Insurance

Company Limited, Baroda reported in (2004) 5 SCCC

385 and other Judgments relied by him and thereby the

Tribunal has committed a gross error while dismissing the

claim petition causing miscarriage of justice to the

claimant.

10. Learned counsel for claimant relies on the

following Judgments in support of his case.

(a) Deepak Girishbhai Soni and Others vs. United India Insurance Company Limited, Baroda, reported in (2004) 5 SCC 385.

(b) Shivaji and Another vs. Divisional Manager, United India Insurance Company Limited and Others, Civil Appeal No.2816/2018 of Hon'ble Apex Court.

(c) United India Insurance Co. Ltd., Vs. Sunil Kumar and another, reported in 2018 ACJ

1.

MFA.No.23325/12

(d) Chandrakant Tiwari vs. New India Assurance Company Ltd. And another, Civil Appeal No.2527/2020 of Hon'ble Apex Court.

(e) Smt.Ningawwa and others vs. Manjunant and another in MFA.No.20134/2010 (MV) C/W.MFA.No.20454/2010 D.D.21.10.2020.

(f) United India Insurance Company Ltd. Vs. Smt. Akkatai and others in MFA.No.100699/2015 C/W.MFA. No. 23223/2013, D.D.29.01.2021.

(g) Smt Lagamawwa W/o.Mahadev Pujeri vs. Mahadev and another, MFA.No.

20323/2010 D.D.26.07.2021.

11. On the basis of these submissions and the

Judgments relied herein; claimant seeks to set aside the

Judgment and Award passed by the Tribunal and award

suitable compensation.

12. Per contra, learned counsel Smt Aruna

Deshpande appearing for the 2nd respondent-Insurer

vehemently contends that the judgment and award passed

by the Tribunal is in accordance with law, material

evidence on record and the precedents laid down by the

Hon'ble Apex Court as well as this Court. It is her

MFA.No.23325/12

vehement contention that admittedly the claimant has

borrowed the vehicle of respondent No.1-the owner of the

vehicle involved in the accident, therefore in view of

claimant having borrowed the vehicle and being the rider

of the vehicle involved in the accident owned by

respondent No.1, claimant steps into the shoes of

respondent No.1-owner of the vehicle. She vehemently

contends that in a case where the claimant is none other

than the rider of the vehicle owned by the 1st respondent

who is the owner and claiming compensation against the

said owner and the Insurance Company is not

maintainable under Section 163A of the Motor Vehicles

Act, 1988. She say so for the reason that the owner will

not be entitled for compensation against the fault

committed by him as he would himself be the tort feasor

and hence, the tort feasor cannot claim himself

compensation from the Insurer. Under these

circumstances she contends that the present claim petition

preferred by the claimant has been rightfully dismissed by

the Tribunal. He further contends that it is not the case of

claimant that he was a pillion rider, the claimant cannot

MFA.No.23325/12

seek compensation for the fault of the rider or from the

owner of the vehicle and the Insurer. To support her case

she has relied on the Judgment of Hon'ble Apex Court in

the case of Ramkhiladi and another vs. The United

India Insurance Company and Another, reported in

2020 (2) SCC 550. Learned counsel vehemently relies on

paragraph Nos.5.6 of the said Judgment for better

understanding the said paragraph is extracted herein.

" 5.6. In view of the above and for the reasons stated above, in the present case, as the claim under Section 163A of the Act was made only against the owner and insurance company of the vehicle which was being driven by the deceased himself as borrower of the vehicle from the owner of the vehicle and he would be in the shoes of the owner, the High Court has rightly observed and held that such a claim was not maintainable and the claimants ought to have joined and/or ought to have made the claim under Section 163A of the Act against the driver, owner and/or the insurance company of the offending vehicle i.e., RJ 29 2M 9223 being a third party to the said vehicle".

MFA.No.23325/12

13. It is also contended by the learned counsel for

the respondent-Insurer that even if this Court were to

accede to the argument of the claimant, a maximum

entitlement of compensation would be less than

Rs.1,00,000/- as the second schedule prior to the

amendment so prescribes. Relying on this Judgment she

contends that the impugned order and award passed by

the Tribunal does not call for interference and the same

deserves to be confirmed.

14. Having heard the learned counsel for the

appellant-claimant and learned counsel for respondent

No.2-Insurer, the point that would arises for consideration

before this Court is :

"i) Whether the Tribunal has committed a serious error in dismissing the claim petition of the claimant on the ground that the claimant has borrowed the vehicle from the 1st respondent-owner and thereby stepped into the shoes of the owner of the vehicle used. Further he requires to be treated as a tort feasor and not entitled for any compensation?

MFA.No.23325/12

15. It is not in dispute that the accident occurred on

16.05.2011 at 10.30 p.m. while the claimant was riding

the motorcycle along with pillion rider and met an accident

and therefore accident having been occurred is not in

dispute. The claimant who was riding the motorcycle

having suffered injuries is also not in dispute. The claimant

riding the vehicle belonging to the owner is also not

seriously disputed. To establish these facts, the claimant

has examined himself as P.W.1 and got marked

documents as Ex.P.1 to 6 to show that the accident

occurred and he sustained injuries. The evidentiary

material and these documents have to be accepted and on

their face value and which is not controverted and there

being no contrary material against the said document

same are accepted. It is also not in dispute that the claim

is preferred under Section 163A of the Motor Vehicles Act,

1988. As per the provisions of the Act, the claim is based

on structured formula, which is also not in dispute under

Section 2 of Section 163A of the Motor Vehicles Act. It is

also not in dispute that the claimant is required to plead or

establish only the injuries suffered by him in respect of

MFA.No.23325/12

which claim has been made. He would not be required to

establish wrongful Act or negligence or default of offending

vehicle or vehicle of any other person, therefore, the

question of dealing into the aspect of who is responsible

for causation of accident, occurrence of accident, liability

of accident would not be of much significance in the

present case on hand as it is on the ground of no fault

liability on the basis of structured formula. Hence, this

Court would not want to delve into these aspects as the

same pales into insignificance.

16. In order to consider the present appeal the only

question that requires to be considered is whether the

claimant who is admittedly not the owner of the vehicle

involved in the accident and being the borrower of the

vehicle would be entitled to compensation under Section

163A of the Motor Vehicles Act, 1988.

17. The learned counsel for the claimant has relied

on the judgments stated above. He contends on the basis

of larger bench Judgment of the Hon'ble Apex Court, co-

ordinate Bench of this Court in several matters, has taken

a view that if a person meets with accident whether he

MFA.No.23325/12

is a injured-victim, whether he is a rider as far as he is a

injured victim having suffered injuries in the accident

would be entitled to claim compensation against the owner

of the vehicle and so also against the insurer of the

vehicle. Admittedly, in the present case on hand, the

claimant is a third party as he is not the owner of the

vehicle. Therefore, he will be within the parameter as

stipulated under Section 163A of the M.V.Act, 1988 for

claiming compensation on the basis of structured formula.

Now whether the claimant became would step into the

shoes of the owner is already decided as per the Judgment

stated above. Though, he is the borrower of the vehicle he

is not the owner of vehicle, he is a third party for the

purpose of claiming compensation under Section 163A of

the M.V.Act, 1988. Hence, claimant would be legally

entitled to claim compensation.

18. With regard to the quantum of compensation to

be awarded is the next question to be considered. It is not

in dispute that the total maximum amount of

compensation that would be claimed under the II Schedule

to the Act is Rs.40,000/- per annum. Though, the claim is

MFA.No.23325/12

made for Rs.33,000/- per month maximum is permissible

under Schedule-II is Rs.40,000/- per annum. In the

present case claimant has got examined himself as P.W.2

who is none other than the Doctor who has deposed 10%

disability having suffered by the claimant which is not

seriously disputed.

19. The claimant was aged 21 years as on the date

of occurrence of accident and the multiplier to be adopted

in this case is '18' as per the judgment of the Hon'ble

Apex Court in the case of Sarla Verma (Smt) and

others vs. Delhi Transport Corporation and another

reported in (2009) 6 Supreme Court Cases 121.

Therefore, the claimant would be entitled for the loss of

future earning capacity of Rs.72,000/- (Rs.40,000/- p.a. x

18 X 10%).

20. Towards pain and suffering, the claimant would

be entitled to Rs.5,000/-.

21. Towards medical bills for treatment, claimant

has produced Ex.P.8 to 10 for an amount of Rs.7,250/-

same is awarded. Therefore, the total amount of

MFA.No.23325/12

compensation the claimant would be entitled to

Rs.84,250/-.

22. For the foregoing reasons, I pass the following:

ORDER

i) The appeal is allowed;

ii) The judgment and award passed by IV Additional

District and Sessions Judge and MACT-V,

Belgaum in MVC.No.2085/2011 dated 15.03.2012

is set aside.

      iii)     The claimant is entitled for total compensation of

               Rs.84,250/-       with    interest     @      6%    on    the

compensation awarded which shall be paid before

the concerned Tribunal within a period of six

weeks from the date of receipt of a certified copy

of this judgment;

iv) Respondent No.2-Insurer shall pay the

compensation along with interest.

SD JUDGE ckk