The Manager,Icici Lombard ... vs Prabha W/O Waman Gugretkar
2022 Latest Caselaw 8344 Kant

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        IN THE HIGH COURT OF KARNATAKA
                DHARWAD BENCH

      DATED THIS THE 8TH DAY OF JUNE, 2022

                     BEFORE

 THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

           M.F.A.NO.23681/2012 (MV-D)

BETWEEN

THE MANAGER,
ICICI LOMBARD GENERAL INSURANCE CO., LTD.,
ZENITH HOUSE, KESHAVRAO KHADE MARG,
MAHALAXMI, MUMBAI-400 034,
REP. BY THE MANAGER (LEGAL),
ICICI LOMBARD GENERAL INSURANCE CO., LTD.,
BELLAD BUILDING, GOKUL ROAD, HUBLI.
                                      ....APPELLANT
(BY SRI S.K.KAYAKAMATH, ADVOCATE)

AND

1.    SMT PRABHA W/O. WAMAN GUGRETKAR,
      AGE: ABOUT 37 YEARS, OCC: HOUSEHOLD WORK,
      R/O: ALATAGA, TQ AND DIST: BELGAUM.

2.    MASTER VISHAL S/O. WAMAN GUGRETKAR,
      AGE: 19 YEARS, OCC: STUDENT,
      R/O: ALATAGA, TQ AND DIST: BELGAUM.

3.    MASTER VIKRAM S/O. WAMAN GUGRETKAR,
      AGE: 19 YEARS, OCC: STUDENT,
      R/O: ALATAGA,TQ AND DIST: BELGAUM.

4.    SMT. NINGUBAI W/O. GALAGU GUGRETKAR,
      AGE: 63 YEARS, OCC: HOUSEHOLD WORK,
      R/O: ALATAGA, TQ AND DIST: BELGAUM.
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5.   (SRI GALAGU S/O.DEVAPPA GUGRETKAR,
     -DEAD,) THE RESPONDENT NO. 1 TO 4
     ARE THE LEGAL REPRESENTATIVES
     MEMO ACCEPTED VIDE ORDER
     DATED 28-02-2019.

6.   SRI SACHIN S/O. GANU PATIL,
     AGE: MAJOR, OCC: BUSINESS,
     R/O: TAMBATI, POST: KHALAPUR,
     DIST: RAIGAD, STATE: MAHARASHTRA,
     OWNER OF MOTORCYCLE BEARING
     REGN. NO. MH-06/AH-6534.
                                   ....RESPONDENTS

(BY SRI SAJNAY S. KATAGERI, ADVOCATE FOR
RESPONDENT NOS.1 & 4)
(NOTICE TO RESPONDENT NOS.2, 3, 6-SERVED)


     THIS M.F.A. IS FILED U/S 173(1) OF M.V. ACT 1988,

PRAYING TO SET ASIDE THE JUDGMENT AND AWARD

DATED 16-04-2012 PASSED IN M.V.C.NO.3421/2007 ON

THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-I

AND MEMBER, ADDL. M.A.C.T., BELGAUM, AWARDING

THE COMPENSATION OF RS.3,69,500/- WITH INTEREST

AT THE RATE OF 9% P.A., FROM THE DATE OF PETITION

TILL REALISATION.


     THIS APPEAL COMING ON FOR ADMISSION, THIS

DAY, THE COURT DELIVERED THE FOLLOWING:
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                         JUDGMENT

This appeal is directed against the judgment and

award passed by the Fast Track Court-I and Member

Additional M.A.C.T. Belgaum in M.V.C. No.3421/2007

dated 16.04.2012 by the Insurance Company. This appeal

is premised on the ground that the Tribunal has

committed gross error in awarding compensation to the

claimants as they would not be entitled to compensation in

view of deceased being the rider of the vehicle steps into

the shoes of the owner of vehicle.

2. Though this matter is listed for admission, with

consent of learned counsel on both sides, matter is taken

up for final disposal.

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

their status before the tribunal.

4. Brief facts of the case are as under:

On 29.06.2007, the deceased-Waman was

proceeding towards Mumbai on Hero Honda motorcycle

bearing registration No.MH-06/AS-6534. The deceased-

Waman was riding two wheeler at about 7.30 p.m. due to

unavoidable circumstances the vehicle which was ridden

by the deceased skidded on the main road, due to which, ,

the claimant being the rider, sustained injuries and he

instantly died. It is claimed that deceased was aged 40

years and earning Rs.3,200/- per month. Claimants being

the dependants of deceased, have lost their sole bread

winner of the family. They filed claim petition seeking

compensation under Section 163A of the Motor Vehicles

Act, 1988 for total compensation of Rs.4,00,000/-.

5. On service of notice, the 1st respondent-owner

did not appear before the Court and was placed exparte.

Respondent No.2-Insurer filed detailed statement of

objections inter alia denying the occurrence of accident,

the vehicle being ridden by the deceased and also denied

age, avocation and income of the deceased. It was also

pleaded that since the deceased was the borrower of

vehicle and rider of the vehicle, he would not be entitled

for compensation as he stepped into the shoes of

respondent No.1-owner. Hence, he cannot claim

compensation from his own insurer.

6. On the basis of pleadings, Tribunal framed

relevant issues for consideration.

7. In order to substantiate the issues and to

establish the case, claimant No.1-examined herself as

P.W.1 and got marked Exs.P.1 to 10. Whereas, respondent

No.2-Insurer examined its Insurance Officer as R.W.1 and

got marked Ex.R.1 and 2.

8. On the basis of pleadings, evidence both oral and

documentary, the tribunal awarded the total compensation

of Rs.3,69,500/- along with interest @ 9% p.a.

9. Being aggrieved by the said Judgment and Award

passed by the Tribunal, appellant-insurer is before this

Court in appeal.

10. It is vehement contention of learned counsel for

appellant-Insurer that the Tribunal has totally erred in

passing the impugned judgment and award passed by

considering the material evidence both oral and

documentary. Therefore, the impugned judgment deserves

to be set aside. It is further contended that the accident

has occurred due to the rash and negligent driving by the

rider of the motorcycle, the deceased and the charge

sheet also came to be filed against the deceased and it is

not in dispute that there is no other vehicle involved in the

accident. She further contends that admittedly the

accident has occurred due to the negligence of the

deceased himself. Under the circumstances, Tribunal has

committed a gross error in saddling the liability against

the owner and insurer of the vehicle which was ridden by

the deceased for borrowing it from the owner of the

vehicle. Learned counsel vehemently relies on the

Judgment of Hon'ble Apex Court in the case of

Ningamma and Another vs. United India Insurance

Company Limited, reported in 2009(6) Kar. L.J.62

(SC) in support of her case. Wherein, it was held that the

rider of the vehicle if not owner of the vehicle would step

into the shoes of the owner and would not be entitled to

claim compensation against his own insurer. On the basis

of these submissions she seeks to allow the appeal and set

aside the Judgment passed by the Tribunal.

11. Per contra, learned counsel Sri S.S.Katageri,

appearing for respondent Nos.1 and 4/claimant Nos.1 and

4 vehemently contends that the judgment and award

passed by the tribunal is in accordance with material

evidence both oral and documentary and the same is well

reasoned Judgment passed after considering the facts and

circumstances and so also the applicable law as on date.

He contends that the claim is undoubtedly filed under the

provisions of Section 163A of Motor Vehicles Act, 1988

(hereinafter referred as 'the Act' for short), wherein there

is no requirement of the claimant to establish the fact of

negligence of either side. The act itself provides that it is a

provision provided to the claimant to claim compensation

under the structured formula prescribed therein and the

respondent-insurer would not have the liberty to claim no

fault on the offending vehicle or owner of the vehicle. It is

the contention of learned counsel for respondent Nos.1

and 4 that admittedly, the deceased was not the owner of

the vehicle and he was a third partly victim, who borrowed

the vehicle of respondent No.1 and therefore he cannot be

equated to be the owner of vehicle and would agree with

the decided parameters of the Judgment in the case relied

by learned counsel for appellant-Insurer. He further

contends that under Section 163A of the Motor Vehicles

Act, 1988 (hereinafter referred as 'the Act' for short)

there is no need for the claimant to establish the

negligence or accident even if it is occurred without

collision with any other vehicle, the claim would be

maintainable under Section 163A of the Act.

12. Learned counsel further contends that the

amount of compensation awarded by the tribunal is just

and reasonable in accordance to the structured formula as

contemplated in schedule-II of the Act. Therefore, the

same does not call for interference by this Court and seeks

to dismiss the appeal preferred by the insurer. With regard

to the argument addressed by the learned counsel for the

appellant on the question of exorbitant interest awarded

by the tribunal, learned counsel for the respondent

contends that the interest awarded by the tribunal is just

and reasonable and the same need not be interfered.

      13.   Having    heard          learned   counsel   for   the

appellant-Insurer    and   the       respondents-claimants,    the

points that would arise for consideration is;

(1) Whether there is any illegality or perversity in the order passed by the tribunal with regard to granting of compensation under the provision of Section 163A of the Act, being a structured formula ?

(2) Whether interference is called for by this Court?

(3) Whether the findings arrived at by the tribunal with regard to the deceased himself being tort feasor would be entitled for compensation ?

14. It is not in dispute that the accident occurred

on 29.06.2007, when the deceased by name Waman was

proceeding on his Hero Honda Motorcycle, as mentioned

above and met with the accident along with the pillion

rider. Due to the said accident, both himself and the pillion

rider succumbed to the injuries. This aspect of the mater

is not much dispute with regard to the deceased having

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

he was the rider of the motorcycle, when he met with an

accident having skidded down the road leading to the

injuries and consequently succumbing to the said injuries.

This fact is established by production of Exs.P.1 to P.5,

which are police records and the same evidences that the

deceased was involved in the accident. The vehicle in

question was being ridden while the deceased met with

the accident. So, the involvement of vehicle in the

accident is not in question and the same is not disputed.

This fact of the matter has been considered by the tribunal

and has appreciated the contentions of both the learned

counsel on the aspect of liability under Section 163A of the

Act, wherein the negligence aspect cannot be looked into

by the Court, while awarding compensation under the

structured formula. Therefore, the tribunal has rightly

assessed the income for calculation. The compensation

awarded by the tribunal is in accordance with the

structured formula. So also, there is no challenge to the

impugned order by the claimants. Hence, this Court only

needs to consider whether the judgment and award

passed by the tribunal is in accordance with law. Though,

learned counsel for the insurer has vociferously relies on

the judgment of Ningamma's case, while putting forth

her contention. Learned counsel for the respondents relied

on the judgment of Hon'ble Apex Court in the case of

United India Insurance Company Limited Vs Sunil

Kumar and Another reported in 2018 ACJ 1 and in the

case of Shivaji and another Vs Divisional Manager,

United India Insurance Company Limited and Others

reported in AIR 2018 SC 3705.

15. In the aforesaid judgments passed by the

Hon'ble Apex Court, it is no more res-integra in a case

filed under Section 163A of the Act with regard to the

entitlement of compensation by the owner, who has

driven/ridden the vehicle and met with the accident. It is

also held that it is not open for the insurer to raise defence

of negligence on the part of victim under the said

provision. The question that would arise for consideration

here is whether the deceased would step into the shoes of

the owner, as he had borrowed the vehicle of owner, while

he met with the accident leading to his death. This aspect

is also dealt with in many of the judgments.

16. In the present case, it is not disputed that the

deceased was a 3rd party-victim, who had borrowed the

vehicle and therefore, he cannot be equated with the

owner himself. Therefore, the question of the deceased

being a tort feasor and not being entitled to claim

compensation is farfetched and the same cannot be

accepted and hence it is negatived.

17. In the present case, the tribunal has assessed

the age of the deceased, taken the notional income for

awarding compensation and has awarded just and

reasonable compensation. Therefore, the question of

interfering with the well considered judgment passed by

the tribunal does not arise. More so, keeping in mind the

law laid down by the Hon'ble Apex Court in the

aforementioned cases with regard to the deceased despite

being the tort feasor would not step into the shoes of the

owner, as he is a 3rd party-victim. Hence, he would be

entitled to claim compensation under Section 163A of the

Act.

18. The other point seriously canvassed by the

learned counsel for the appellant-insurer is awarding of

interest at the rate of 9% p.a. I find sufficient force in the

contention put forth by the learned counsel for the

appellant-insurer, as the interest awarded by the tribunal

is on the higher side. The Motor Vehicles Act or the Rules

does not provide for any specific amount of interest, while

granting compensation. However, since no specific amount

is prescribed. Generally, this Court refers to the provisions

of Code of Civil Procedure (hereinafter referred as 'CPC' for

short), where Section 34 of CPC is provided. Section 34 of

CPC deals with the interest, same prescribes interest at

6% per annum. Therefore, under the circumstances, I

agree with the contention of learned counsel for the

appellant that the interest is on the higher side, the same

required to be reduced to 6% p.a. Accordingly, I pass the

following;

ORDER

Appeal is partly allowed only to the extent of

reducing the interest from 9% p.a. to 6% p.a.

The compensation awarded by the tribunal is not

interfered. All other terms and conditions stipulated by the

tribunal is also retained.

The amount in deposit shall be transmitted to the

jurisdictional M.A.C.T forthwith.

Sd/-

JUDGE Ckk/am