Karnataka High Court
The National Ins.Co.Ltd vs Shaikha Ali S/O Khaja Moinuddin ... on 23 June, 2022
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
MFA No.200831/2014 (MV)
BETWEEN:
THE NATIONAL INSURANCE
COMPANY LIMITED,
THROUGH ITS DIVISIONAL MANAGER,
BILUNDI MANSION MAIN ROAD,
GULBARGA, REPRESENTED BY
SRI.SERE SURESH,
ASST. MANAGER, GULBARGA-585101.
... APPELLANT
(BY SRI. MANVENDRA REDDY, ADVOCATE)
AND:
1. SHAIKH ALI S/O KHAJA MOINUDDIN,
AGE: 33 YEARS, OCC: ELECTRICIAN,
R/O JEELANABAD,
GULBARGA-586105.
2. DEVENDRAPPA S/O SUDARSHAN,
AGE: MAJOR,
R/O VASAVADATTA CEMENT, SEDAM,
LAXMINARAYAN NAGAR,
GULBARGA-585104.
... RESPONDENTS
(BY SRI. SANTOSH BIRADAR, ADVOCATE FOR C/R1;
NOTICE TO R2 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO
CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT AND
AWARD DATED 31.12.2013 PASSED BY THE PRL. SENIOR
2
CIVIL JUDGE AND MACT GULBARGA IN MVC NO.486/2012 BY
ALLOWING THE APPEAL AS PRAYED FOR.
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is filed under Section 173(1) of Motor
Vehicles Act, 1988 ('MV Act' for short) by Insurance Company
challenging the liability in respect of judgment and award
dated 31.12.2013 passed by the Principal Senior Civil Judge
and MACT, Gulbarga, in MVC No.486/2012.
2. For the sake of convenience, the parties herein
are referred as per the ranks occupied by them before the trial
Court.
3. The allegations disclose that, on 27.05.2002 at
about 11.30 p.m., the petitioner along with his friend
Mohammed Mahemood was proceeding on a scooter bearing
Registration No. CNT-674 to Dandeli to attend the marriage.
When he reached near Mugata Village, the vehicle turned
turtle due to skid and the petitioner sustained injuries and
hence, he filed a claim petition. Initially, the claim petition
was filed under Section 140 of the Old MV Act and
subsequently, it was amended as petition under Section
163(A) of the MV Act in respect of 'No fault liability'.
4. The Insurance Company has disputed the liability
on various grounds and sought for absolving the liability of the
Insurance Company.
5. The Tribunal after considering the oral and
documentary evidence has allowed the claim petition partly by
awarding compensation of Rs.1,00,000/- with interest at 6%
pa., by fastening the liability on Respondent/appellant-
Insurance Company.
6. Being aggrieved by the impugned judgment and
award of the Tribunal, the appellant/Insurance Company has
filed this appeal. The main contention of the learned counsel
for the appellant is that, the policy was an Act Policy and the
risk of the owner is not covered under the said policy and
hence, the Tribunal has committed an error in fastening
liability on the Insurance Company. Hence, he would seek for
dismissal of the claim petition by allowing the appeal.
7. Per contra, learned counsel for the appellant would
contend that Insurance Company already having settled the
claim of the pillion rider before Lok-Adalat, now cannot dispute
the liability and required to satisfy the claim.
8. Having heard the arguments and perusing the
records, it is evident that the present claimant himself was the
rider of the scooter, which was involved in the accident.
Hence, he would step into the shoes of the owner and as such,
he cannot maintain the petition as against himself. In this
context, learned counsel for the appellant has placed reliance
on a decision of this Court in MFA No.31173/2011 along
with Misc (Civil) No.153700/2011 [Shankreppa Vs.
Sidharodha and another], wherein this Court relying on the
decision of the Hon'ble Apex Court in the case of Ningamma
and Another Vs. United India Insurance Co. Ltd. [AIR
2009 SC 3056] held that the claimant being the rider of the
offending vehicle cannot maintain the claim petition in respect
of actionable negligence of his own fault. No doubt the claim
petition is filed under Section 163(A) of MV Act and claim of
negligence has no role to play. However, he is claiming
against himself, which is not permissible and in view of the
dictum laid down by the Hon'ble Apex Court in the above
referred decision in Ningamma's case, the present claim
petition is not maintainable.
9. However, before the Tribunal the judgment of this
Court reported in 2010 Karnataka MAC 466 was relied
upon by the learned counsel for respondent No.2. But, on the
basis of the said decision, the Tribunal did not appreciate
evidence in a proper perspective. Hence, the Tribunal has
committed an error in awarding compensation to claimant,
who was rider himself, which is not permissible.
10. Learned counsel for respondent/claimant would
contend that, When the Insurance Company has settled the
claim of a pillion rider, then they could not have disputed their
liability. No doubt, the records disclose that the Insurance
Company has settled the claim of the pillion rider. However,
at the most he would become a gratuitous passenger. But, in
the instant case, the claimant himself was the rider of the
offending vehicle and stepping into the shoes of the owner.
Under such circumstances, settlement of the claim of the
pillion rider in MVC No.622/2002 would not come to the aid of
claimant in any way. Hence, the appeal needs to be allowed.
Accordingly, I proceed to pass the following.
ORDER
i) The appeal is allowed.
ii) The judgment and award dated 31.12.2013
passed by the Principal Senior Civil Judge and
MACT, Gulbarga, in MVC No.486/2012 is set
aside and the claim petition stands dismissed.
The statutory amount in deposit shall be refunded to
the appellant/Insurance Company.
Sd/-
JUDGE
KGR*
