Sri G H Hanumaiah vs Shreyash Kumari K S
2022 Latest Caselaw 8799 Kant

                              1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 15TH DAY OF JUNE 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD

                MFA No.4096 OF 2020(MV)

BETWEEN:

1.     Sri. G.H.Hanumaiah,
       Son of Late. Gundappa,
       Aged about 63 years.

2.     Smt. Uma,
       W/o G.H. Hanumaiah,
       Aged about 53 years,

       Both are residing at
       Gowdaiahnadoddi village,
       Kailancha Hobli,
       Ramanagara Taluk & District.          ... Appellants

(By Sri.Raju S., Advocate)

AND:

1.     Sri. Shreyash Kumari K.S.,
       Son of Srinivasa,
       R/at Kailancha Village & Post,
       Kailancha Hobli,
       Ramanagara Taluk & District-572159.

2.     M/s. The Oriental Insurance Company Ltd.,
       No.31, Shilpa Complex,
       B.M. Road,
       Ijoor, Ramanagara Town
       And District-572159.
                             2



     Represented by its
     Branch Manager.                   ... Respondents

(By Sri.P.B.Raju, Advocate for R2:
Sri. R.Shashidhara, Advocate for R1)

       This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:17.12.2019 passed
in MVC No.525/2016 on the file of the III Additional
District and Sessions Judge and Member, Additional MACT,
Ramanagara,      dismissing   the   claim   petition for
compensation.

      This MFA, coming on for admission, this day, this
Court, delivered the following:

                    JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the claimants being

aggrieved by the judgment dated 17.12.2019 passed

by the Motor Accident Claims Tribunal, Ramanagara in

MVC No.525/2016.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 05.07.2016 at 8.00 p.m.,

the deceased Ananth was proceeding on motorcycle

bearing registration No.KA-42/R-9174 in front of

Iyengar Bakery at Ijoor Circle of Ramanagara Town.

At that time, he lost control over the vehicle, fell down

and sustained head injuries and succumbed to the

injuries on 28.08.2016.

3. The claimants filed a petition under Section

163-A of the Act seeking compensation for the death

of the deceased along with interest.

4. On service of summons, the respondent

Nos.1 and 2 appeared through counsel and

respondent No.2 filed written statement in which the

averments made in the petition were denied. The

age, occupation and income of the deceased are

denied. It was pleaded that the petition itself is false

and frivolous in the eye of law. It was further pleaded

that the accident was due to the rash and negligent

riding of the motorcycle by the deceased himself. It

was further pleaded that the rider of the offending

vehicle did not possess valid driving licence as on the

date of the accident. It was further pleaded that the

liability is subject to terms and conditions of the

policy. It was further pleaded that the quantum of

compensation claimed by the claimants is exorbitant.

Hence, he sought for dismissal of the petition.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimants, in order to

prove their case, examined claimant No.1 as PW-1

and got exhibited documents namely Ex.P1 to

Ex.P225. On behalf of respondents, one witness was

examined as RW-1 and got exhibited documents

namely Ex.R1 to Ex.R7(a). The Claims Tribunal, by the

impugned judgment, inter alia, held that the accident

took place on account of rash and negligent driving of

the offending vehicle by its rider, who is the deceased

himself, as a result of which, the deceased sustained

injuries and succumbed to the injuries. The Tribunal

further held that owner of the vehicle or any other

person driving the vehicle and not being an employee

cannot maintain the petition either under Section 163-

A or Section 166 of the Motor Vehicles Act and hence

dismissed the claim petition. Being aggrieved, this

appeal has been filed.

6. Sri S.Raju, the learned counsel for the

claimants has raised the following contentions:

Firstly, the claim petition is filed under Section

163-A of the Motor Vehicles Act. In a proceedings

under Section 163-A of the Act even if the deceased is

a rider or a pillion rider, if the death is due to the

accident arising out of the use of motor vehicle, the

claimants are entitled to compensation. In support of

his contentions, he relied on the judgment of the

Hon'ble Apex Court in the cases of UNITED INDIA

INSURANCE COMPANY LTD. -V- SUNIL KUMAR

AND ANOTHER reported in AIR 2017 SC 5710.

Secondly, the judgment of this Court relied upon

by the Tribunal in MFA No.7074/2016 disposed of

on 06.12.2017 in the case of THE ORIENTAL

INSURANCE COMPANY LTD. Vs. NARESH BABU N.

AND ANOTHER is not applicable to the facts of the

present case. Hence, he sought for allowing the

appeal.

7. On the other hand, Sri P.B.Raju, learned

counsel appearing for the Insurance Company has

contended that if the deceased was wearing a

headgear, he could have avoided death, since he has

violated the provisions of the Motor Vehicles Act, the

Tribunal has rightly dismissed the claim petition.

8. Heard the learned counsel appearing for the

parties. Perused the judgment and award and the

original records.

9. The case of the claimants is that on

05.07.2016 at 8.00 p.m., the deceased Ananth was

proceeding on motorcycle bearing registration No.KA-

42/R-9174 in front of Iyengar Bakery at Ijoor Circle of

Ramanagara Town. At that time, he lost control over

the vehicle, fell down and sustained head injuries and

succumbed to the injuries on 28.08.2016.

10. Since the claim petition is filed under Section

163-A of the Motor Vehicles Act, as per the law laid

down by the Hon'ble Apex Court in the case of SUNIL

KUMAR (supra) it is not open for the insurer to raise

any defence of negligence on the part of the victim.

The Tribunal has not considered the fact that the said

petition is filed under Section 163-A of the Motor

Vehicles Act and has relied on the judgment of this

Court in MFA No.7074/2016 and the same is not

applicable to the facts of the present case.

11. Under these circumstances, the matter

requires to be remitted back to the Tribunal for fresh

consideration in accordance with law.

12. Accordingly, appeal is allowed. The judgment

and award passed by the Tribunal is set aside. The

matter is remitted back to the Tribunal to consider the

matter afresh in accordance with law.

All the contentions of the parties are left open.

The Tribunal is directed to dispose of the claim

petition, in accordance with law, without being

influenced by the observations made hereinabove.

All the parties are directed to appear before the

Tribunal on 29.07.2022. The Tribunal is directed to

dispose of the matter within four months from the

date of appearance of the parties.

Office is directed to return the original records to

the Tribunal forthwith.

Sd/-

JUDGE

Cm/-